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

Ploenges and Secretary, Department of Social Services (Social services second review) [2017] AATA 1211 (1 August 2017)
Division:GENERAL DIVISION
File Number: 2016/1682
Re:Carmelina Ploenges
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:1 August 2017
Place:Adelaide

The Tribunal affirms the decision under review
.....................[Sgd]...................................................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether the applicant's medical conditions were fully diagnosed, fully treated and fully stabilised as at the date of claim or within 13 weeks - Decision under review affirmed.
LEGISLATION
Social Security Act 1991, (Cth) s 94
Social Security (Administration) Act 1999
CASES
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member I Thompson
1 August 2017
INTRODUCTION

The applicant, Ms Ploenges, lodged a claim for disability support pension (DSP) on 8 May 2015. Centrelink rejected the claim in the first instance. Ms Ploenges requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Ms Ploenges requested a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). Centrelink’s decision was affirmed. Ms Ploenges applied to the general division of the Tribunal for a second review.
The hearing took place on 19 May 2017. Ms Ploenges was self-represented and she attended the Tribunal in person. Mr Visser represented the respondent, the Secretary, Department of Human Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and associated documents.
Ms Ploenges is now 48 years old. She suffers from a number of medical conditions which affect her lower back, right hip, mental health, high blood pressure and diabetes.
LEGISLATION AND ISSUES
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 8 May 2015 to 6 August 2015.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Ms Ploenges will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that she has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is active participation in a program of support.
The Secretary accepted that Ms Ploenges suffers from impairments arising from chronic low back pain, right hip condition, diabetes and hypertension and therefore s 94(1)(a) of the Act is satisfied.
The Secretary contended that the low back condition was fully diagnosed, but not fully treated and fully stabilised during the assessment period
The Secretary contended that the right hip, hypertension, diabetes, and mental health conditions were not fully diagnosed, treated and stabilised during the assessment period
The main issue for determination is whether Ms Ploenges’ impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether she had a continuing inability to work.
IMPAIRMENT TABLES
The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). That document also contains the Rules for the application of the Impairment Tables.
In Re Ulukut and Secretary, Department of Social Services[1], Senior Member Isenberg explained the operation of the Impairment Tables in this way at [5-6]:
… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. …
[1] [2014] AATA 399.
Section 6(5) of the Impairment Tables provides that a decision whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for each of Ms Ploenges’ conditions will be considered in turn by reference to the Impairment Tables. As indicated, consideration must be given to whether each condition was fully diagnosed, treated and stabilised during the assessment period before determining an impairment rating, because the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating
EVIDENCE OF MS PLOENGES
Ms Ploenges gave evidence which was reliable and honest. She resides with her husband and three children. Presently she undertakes household activities, to the extent that she can and within the limitations of her medical and health conditions. At the time of her DSP claim her daily routines included some cooking, cleaning, washing dishes and clothes. She was restricted in some movements such as bending and overhead activities. Walking some distance caused pain in her back and right leg. Her husband accompanied her to the supermarket for weekly shopping. She tried to exercise by walking short distances in the vicinity of fifty to hundred meters. Her lifestyle at the time when she applied for the DSP had not improved and the impact of her medical conditions had not abated.
Ms Ploenges described how she had worked in both the private sector and in government. She has a long history of work. She commenced work with a Commonwealth Government department in 2005. Her primary role was in customer support and service. In 2009 she sustained an injury at work which affected her back after she turned around to respond to a colleague. She began treatment which included physiotherapy and medication. About 12 weeks later she returned to her normal duties at work, initially for 36 hours per week which she couldn’t sustain and therefore reduced to 20 hours per week. With some work modifications, such as a special chair, she tried to continue work. However, after an incident that affected her left knee, she was granted 12 months leave from work without pay. She stayed at home during that time. She had treatment for her left knee, which was eventually successful, and for her back. She consulted her general medical practitioner and she received physiotherapy
When Ms Ploenges returned to work, she tried to commit to 20 hours per week. The work was sedentary and involved customer support over the phone. She started to suffer with pain in her hip and the doctor diagnosed bursitis. Her work hours altered and were reduced at one stage to six hours per week, then she tried to work nine hours per week, with attempts to find suitable, alternate duties that reduced prolonged periods of sitting. It was ultimately to no avail and after she had used all of her sick leave and annual leave entitlements, she ceased work altogether, in mid-2015. Her employment was formally terminated in November 2015.[2]
[2] Exhibit 1, T30 p 273.
MEDICAL EVIDENCE
For about fifteen years, Dr D Panozzo has been Ms Ploenges general medical practitioner. He has treated her for her lower back condition, right leg and trochanteric bursitis, diabetes and mental health functioning.
In his report dated 23 May 2016,[3] Dr Panozzo confirmed the diagnosis of chronic lower back pain which was initially diagnosed in 2009. Treatment for the chronic pain caused by the back problems included physiotherapy, traction, acupuncture, hydrotherapy, medications, psychological sessions, exercises and weight loss.
[3] Exhibit 2.
In that report Dr Panozzo also wrote that the right leg neuropathy and right trochanteric bursitis were diagnosed in 2015 by an occupational physician, Dr K Ng. Treatment has included medication, steroid injection and psychology.
In January 2013 Ms Ploenges was referred to the Flinders Medical Centre (FMC). In May 2013, she had a CT guided bilateral L4/5 facet joint injection. In a report dated 8 July 2013,[4] Dr J Hill, FMC Dept of Neurosurgery, referred to findings of ‘… mild disc bulge at L4/5, has no sign of nerve root irritation” and “no role for surgery”. There was no evidence of significant spinal stenosis or nerve root compression.
[4] Exhibit 1, T38 p 315.
The referral to the Pain Management Unit at the FMC was significantly delayed because of pressures on the waiting list.[5] Eventually, in February 2014, she was reviewed by Dr Ng, and his diagnosis was “chronic discogenic low back pain.” He recommended a referral for pain management guided by a psychologist, and an exercise program under supervision by a physiotherapist. In mid 2014 Dr Ng referred Ms Ploenges to the Repatriation General Hospital Pain Management Unit (RGHPMU).[6]
[5] Exhibit 1, T14 p 200.
[6] Exhibit 1, T16 p 202.
At the RGHPMU in April 2015, Ms Ploenges’ conditions were described as “…chronic low back and symptoms of neuropathic pain in the right thigh”.[7] She was prescribed a number of medications. A trial of psychiatry and clinical psychology was recommended to address possible, psychosocial factors.
[7] Exhibit 1, T48 p353-354.
Further, Dr Panozzo reported on 23 May 2016, a mental health issue which included depression, anxiety and stress, which were diagnosed in 2015 by a psychiatrist, Dr L McCarthy. Treatment had included fortnightly psychology sessions and medication. Dr Panozzo described the impact on Ms Ploenges function – “does not participate in social events, feels anxious, emotional, argumentative, angry, has negative feelings.”
Dr Prestage is a consultant occupational physician to whom Ms Ploenges was referred for assessment. He first saw her in August 2013 when she was waiting for a pain management program and he re-assessed her subsequently in January 2015.
In Dr Prestage’s report dated 30 January 2015[8] he noted that Ms Ploenges presented with continuing, persistent low back pain together with radiation into the right thigh region. He considered that a pain management program which is multi-disciplinary was still required. In his opinion, the symptoms were disproportionate to the evidence of bursitis and there was “… evidence of secondary sensitisation of the pain perception pathways which has led to pain and disability disproportionate to the pathology present.”[9] He added that he did not consider that opioids were suitable for Ms Ploenges’ long-term treatment and she should cease use of Endone promptly. He wrote “... there is no evidence that this group of medications leads to improved function in people suffering from chronic non-malignant pain.”
[8] Exhibit 1, T45 p 337.
[9] Exhibit 1, T45 p 340.
The diagnosis which Dr Prestage made in January 2015 was that Ms Ploenges suffered from mechanical low back pain, referred pain in the right leg, trochanteric bursitis, and secondary chronic pain syndrome. While he formed an impression that Ms Ploenges had signs of depression, he acknowledged that was outside his area of expertise.[10]
[10] Exhibit 1, T45 p 341.
Dr Ng continued to monitor Ms Ploenges condition. In a report dated 10 October 2014[11] he confirmed a diagnosis of chronic low back pain and secondary right hip trochanteric bursitis. He recommended continuing Endep and Lyrica, hydrotherapy, walking and psychology, together with ultrasound of the right hip and steroid injection which took place in November 2014.[12]
[11] Exhibit 1, T42 p 333.
[12] Exhibit 1, T43 p 334.
Dr Ng reported in January 2015 that Ms Ploenges had undergone the right hip injection. However, Dr Ng added that “…unfortunately she did not participate in hydrotherapy or psychology. Expectantly, the effects of this are only short-lived as the 3 needed to occur concomitantly”.[13]
[13] Exhibit 1, T44 p 335.
The RGHPMU conducted an assessment of Ms Ploenges on 2 April 2015. The results of the assessment were recorded in a report by Dr Slattery (consultant: anaesthesia) written on 4 April 2015 and confirmed the presence of chronic low back pain and symptoms of neuropathic pain in the right of thigh. Alluding to mental health function, Dr Slattery reported:
“…there are likely to be significant psychosocial factors contributing to her disability ….and have suggested that she have a multidisciplinary assessment in the pain unit aiming primarily to improve her functional status, leaving aside further physical treatments at this stage. She has agreed to psychiatry and clinical psychology assessments (she has already had extensive physiotherapy assessment and treatment through FMC.” [14]
[14] Exhibit 1, T48 p 353.
Psychiatric treatment was arranged through Dr McCarthy a senior staff specialist, Southern Mental Health at the Repatriation General Hospital. Dr McCarthy has been the treating psychiatrist for Ms Ploenges since May 2015, which is in the DSP assessment period, and has seen her regularly since that time. Dr McCarthy recommended that the Mindfulness and Pain (MAP) programme could be beneficial. It is used to support people with chronic pain and it is based on medication, movement and strategies to assist in reducing the impact to pain and to find ways of helping people to accept and cope with their condition.[15]
[15] Exhibit 1, T29 p 272.
In a report dated 1 September 2016,[16] Dr McCarthy referred to anxiety, depression and stress that have continued to affect Ms Ploenges. Dr McCarthy described the extent of the difficulties as moderately severe with continuing manifestations in poor sleeping patterns, tiredness, lack of confidence and motivation, insecurity and social withdrawal, and irritability. These problems have had an adverse impact on her ability to carry out daily activities. They have affected her family life and relationships and they have impacted upon her occupational functioning.
[16] Exhibit 4.
CONSIDERATION
The applicable impairment rating, if any, for each of Ms Ploenges’ conditions will be considered in turn by reference to the Impairment Tables.
In the assessment of impairment ratings it is important note the remarks of Deputy President Handley in Fanning and Secretary, Department of Social Services[17], at [33]:-
“The language in cl 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the Tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”
[17] (2014) 144 ALD 133.
Equally, it is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[18], at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[18] [2012] AATA 922.
Spinal condition- impairment rating
A Job Capacity Assessment (JCA) report with a submit date of 5 June 2015 recorded Ms Ploenges condition as not fully diagnosed, treated and stabilized during the assessment period. The report considered the condition under the heading “chronic pain.”
Section 9 of the Rules for applying the Impairment Tables requires the Tribunal to approach the assessment of chronic pain as a condition which, when it has been diagnosed, should result in the assessment of the impairment by use of the Table relevant to the area of function affected.[19] In this instance, Impairment Table 4 is the relevant table in relation to spinal condition. It is used where the person has a permanent condition that leads to functional impairment in activities involving spinal function, in particular bending or turning the back, trunk or neck.
[19] Exhibit 1, T5 p 28.

For a mild functional impact, Table 4 states:

Points

Descriptors

5
There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

For a moderate functional impact on activities involving spinal function, the Impairment Table provides:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

In his report dated 23 May 2016, Dr Panozzo wrote that the lower back condition caused functional impact in daily activities which he listed as:-
·Unable to sit, walk, stand for long periods of time
·Unable to drive for long periods of time
·Difficulty in using a clothes line to hang clothes (needs to use a clothes drier)
·Difficulties bending forward/turning to right side
·Cannot take dog for a walk without assistance
·Cannot push a shopping trolley without assistance
·Cannot lift heavy bags without assistance
·Difficulties sleeping
·Chronic pain and medication inhibit concentration, driving etc.
Section 6(7) of the Rules for applying the Impairment Tables defines reasonable treatment. It includes treatment that can reliably be expected to result in substantial improvement in functional capacity, carries a high success rate and a low risk to the person. In her evidence to the Tribunal, Ms Ploenges stated that she would not agree to undergo lumbar facet joint rhizolysis and its likely efficacy and longevity for her condition is not clear in any event. Her approach in that regard appears to be reasonable and realistic.
The Secretary contended that the chronic low back pain condition was fully diagnosed, though not fully treated and fully stabilised in the assessment period. However, noting in particular the reports of Dr Panozzo and Dr Prestage in relation to the back pain, the Tribunal considers there is sufficient evidence to support a finding that the spinal condition was fully diagnosed, treated and stabilised during the assessment period. By that time considerable treatment had taken place, and the worrying, outstanding concern related to factors involving mental health
Noting all of the evidence about the spinal function, the Tribunal considers that the spinal condition was fully diagnosed, fully treated and fully stabilised at the time of the DSP claim. The evidence demonstrates that a rating of 5 impairment points is appropriate under Impairment Table 4
Lower limbs - impairment rating
Impairment Table 3 provides the descriptors relating to use of the lower limbs. It is used where the individual has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.
For a mild functional impact on activities using the lower limbs, Impairment Table 3 states:

Points

Descriptors

5

There is a mild functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)       the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)       the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)       the person has some difficulty climbing stairs; and

(2)       At least one of the following applies:

(a)       the person is unable to stand for more than 10 minutes;

(b)       The person can mobilise effectively but needs to use lower limb prosthesis or a walking stick.

Dr Panozzo reported, on 23 May 2016, that the impact on function caused by the right leg condition and trochanteric bursitis included :-
·Unable to walk far – has to be driven
·Difficulties walking up and down stairs or ramps – does not use walking aids
Taking into account all of the medical evidence as summarised previously, together with Ms Ploenges’ evidence, the Tribunal considers that the lower limb condition was fully diagnosed, fully treated and fully stabilised at the time of the DSP claim. She had undertaken reasonable treatment in relation to the lower limb condition. That treatment was, through no fault of her own, delayed significantly because of referrals being subjected to hospital waiting lists. Ms Ploenges clearly has some difficulty with walking, climbing stairs and standing. Based on all of the evidence relating to the lower limb condition a rating of 5 impairment points under Impairment Table 3 is appropriate.
Mental health function
Impairment Table 5 refers to mental health function. It is used where the person has a permanent condition that leads to functional impairment arising out of a mental health condition. The diagnosis must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist if the diagnosis is not by a psychiatrist.
The Tribunal is not satisfied that an appropriate diagnosis of mental health function had been made at the time of the assessment period. Treatment by Dr McCarthy, a psychiatrist, had only commenced in the assessment period and it was continuing well after that time. When she wrote her report in September 2016, Dr McCarthy indicated that Ms Ploenges continued to be affected by anxiety, depression and stress. The evidence is clear that the mental health condition was not fully diagnosed, fully treated and fully stabilised during the assessment period. Accordingly it does not attract an allocation of points under the Impairment Tables.
Other conditions
In his report dated 15 April 2015[20] Dr Panozzo confirmed that Ms Ploenges suffers from diabetes and high blood pressure, dating back to 2010. Recommended treatment included medication and diet and symptoms included tiredness. These conditions came within the descriptor of medical conditions that are generally well managed and have minimal or limited impact on ability to function. In his report (23 May 2016) Dr Panozzo reported that that diabetes alone does not cause functional impact, however taken together with chronic pain it has an effect on endurance through fatigue and lethargy.
[20] Exhibit 1, T50 p 356-366.
The Tribunal is satisfied that neither of these other conditions can be relied upon in a substantive way to support the DSP claim.
CONCLUSION
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined, the Tribunal finds that Ms Ploenges’ spinal condition was fully diagnosed, fully treated and fully stabilised during the assessment period. The applicable rating for the spinal condition is 5 impairment points.
The Tribunal finds that Ms Ploenges’ lower limb condition was fully diagnosed, fully treated and fully stabilised during the assessment period. The applicable rating for that condition is 5 impairment points.
The mental health condition was not fully diagnosed, treated and stabilised at the relevant time and no rating can be assigned in respect of it.
With a total of 10 impairment points, Ms Ploenges does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore she does not satisfy s 94(1)(b) of the Act.
In these circumstances it is not necessary to consider whether or not during the assessment period Ms Ploenges had a continuing inability to work within the meaning of s 94(1)(c) of the Act.
As Ms Ploenges was not qualified for DSP at the time she lodged her claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.
This decision does not mean that the Tribunal under-estimates the difficulties with which Ms Ploenges has contended and the steps that she has taken to address them. The impact of the Tribunal’s decision is that she did not meet the necessary criteria for qualification for DSP at the time that she lodged the claim and during the subsequent assessment period.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

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Administrative Assistant
Dated: 1 August 2017

Date(s) of hearing: 19 May 2017

Applicant: In person

Advocate for the Respondent: Mr C Visser

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1211

1 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	19 May 2017
Applicant:	In person
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Department of Human Services