Piper and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1394

Piper and Secretary, Department of Social Services (Social services second review) [2017] AATA 1394 (31 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3730

Re:Kaye Piper

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:31 August 2017

Place:Sydney

The decision under review is affirmed.

....................[sgd]...................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) Sch 2, s 42

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A Poljak

31 August 2017

1. Kaye Piper, the applicant, seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 7 June 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 27 January 2016, and affirmed by an Authorised Review Officer (“ARO”) on 31 March 2016, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 30 October 2015.

2. The applicant’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, she had to satisfy these criteria on 30 October 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 29 January 2016 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that the applicant was qualified for DSP during the relevant period.

5. The Secretary accepts that the applicant suffered from a number of conditions during the relevant period. She therefore satisfies section 94(1)(a) of the Act. The issues to be determined in these proceedings are whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether she has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the applicant’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that an impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c)if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. (emphasis added)

    Mental Health Condition - Anxiety

13. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (emphasis added)

14. In Medical Certificates dated 6 July 2012 and 30 November 2012, Dr Wong, the applicant’s general practitioner, cites a diagnosis of “stress” and “stress, anxiety”, respectively. In a letter dated 25 May 2015, Dr S Evans reports that the applicant was “under stress of divorce…and can only work 15 hours a week”.

15. In the Job Capacity Assessment Report dated 27 January 2016, the applicant reported “having tried half a Valium tablet once however had not taken any further medication for depression or anxiety and attended (Health) psychologist, Claire Scannell about three months between 2012 and 2015”. She reported feeling “very worried, persistent negativity, panic which she manages with breathing and relaxation. She noted significant anxiety due to brain aneurysm”.

16. The applicant has provided a report by Dr Scannell dated 8 December 2013. Doctor Scannell advises that the applicant “is suffering from high levels of anxiety, high levels of depression and possible post-traumatic stress disorder”. The letter indicates that Dr Scannell has a BA Honours Clinical Psychology, however the Australian Health Practitioner Regulation Agency record relating to Dr Scannell shows that her approved area of practice is “health psychology”. It does not endorse Dr Scannell as a clinical psychologist.

17. At hearing the applicant provided a report from Ms Carolynn Hodges, a clinical psychologist, dated 26 March 2017. The report notes that the applicant attended for initial assessment on 9 March 2017 and that Ms Hodges saw the applicant again on 16 March 2017. She says that the applicant was referred by her GP for treatment of her chronic anxiety and depression. Ms Hodges opines that the applicant’s presentation and symptoms reported were “consistent with a diagnosis of post-traumatic stress disorder (with anxious state and depressed mood), with stressors being…and the medical traumas associated with her surgery”. Doctor Hodges then goes on to identify the functional impact of this condition and her ability to participate in the workforce. While this report may be of assistance for any future claims for DSP which the applicant may make, it is of little assistance in these proceedings as it falls well outside of the relevant period and her presentation, symptoms and diagnosis appears to be strongly related to her surgery which was undertaken on 11 August 2016.

18. Since I do not have any evidence from a clinical psychologist or psychiatrist diagnosing the applicant’s mental health condition during the relevant period, I am unable to find that this condition was fully diagnosed, treated and stabilised at that time. It follows that no impairment rating may be given for this condition.

    Circulatory system - other (cerebral aneurysm)

19. I am satisfied that the applicant’s condition of cerebral aneurysm was fully diagnosed during the relevant period. This is supported by the evidence of Dr Wong, General practitioner, the medical certificate completed by Dr Cheryl Quinton dated 9 February 2016, reports of A/Professor Arun Aggarwal, neurologist, dated 17 September and 10 December 2015, CT reports and the report of a XA angiography head and neck undertaken on 7 December 2015.

20. In the report dated 17 September 2015, A/Professor Aggarwal notes the applicant presented with intermittent headaches described as a throbbing sensation and that she mentioned having some numbness and paraesthesia of both hands. In the report dated 10 December 2015, A/Professor Aggarwal again notes that the applicant was experiencing headaches and notes occasional changes in her left visual field.

21. In the Job Capacity Assessment Report dated 29 March 2016, it is noted that the client reported “stress increased the pulsations and headaches which can also cause neck pain that radiates to the right shoulder and causes pins and needles in the hands”. The applicant “denied problems with coordination, senses or nerves as well as having memory and concentration intact”.

22. The medical certificates of both Dr Wong dated 15 July 2016, and Dr Cheryl Quinton dated 9 February 2016, indicate that the applicant was to undergo surgery for this condition. At hearing the applicant confirmed that she underwent the operation on 11 August 2016. She reported that since the operation her headaches have ceased although she still has swelling on the brain. She advised that she is booked in for another brain scan in October 2017, and may need to undertake speech and occupational therapy.

23. Given that the applicant had the operation for this condition well past the relevant period and that she is still to undergo further treatment, I am unable to find this condition was fully treated and stabilised during the relevant period. It follows that no impairment rating may be given for this condition.

    CONCLUSION

24. Since the applicant’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether she had a continuing inability to work during the relevant period. It follows that her claim for DSP cannot succeed.

25. I affirm the decision under review. 

26. The applicant may apply for DSP again at any time, particularly after her conditions have been fully treated and are considered stabilised.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.......................[sgd]................................

Associate

Dated: 31 August 2017

Date(s) of hearing:	17 July 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services