Poole and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 397

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 397

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4934

GENERAL ADMINISTRATIVE  DIVISION		)
Re		EVELYN POOLE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date1 June 2009

PlaceCanberra

Decision The decision under review is affirmed.

...........(Signed).................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - conditions not fully documented, diagnosed, treated and stabilised - insufficient impairment points to qualify for grant of pension - decision affirmed

Social Security Act 1991, ss 94, Schedule 1B

Social Security (Administration) Act 1999, ss 41, 42, Schedule 2

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130

REASONS FOR DECISION

1 June 2009 Mr S. Webb, Member         

1.      Evelyn Poole injured her back during an incident involving a dog. She experienced pain and restricted movement in her lower back and legs thereafter. At the time of the injury Ms Poole was due to commence a new job, but was prevented from doing so by the injury. She claimed and was paid a New Start Allowance. Several months passed and she claimed a disability support pension with the support of her treating general practitioner. The claim was rejected as her back condition was not fully documented, diagnosed, treated and stabilised. Ms Poole was unhappy with this decision and asked for it to be reconsidered. Over ensuing months Ms Poole attended a number of job capacity assessments arranged by Centrelink. The decision to reject her claim was reviewed and affirmed by an authorised review officer and the Social Security Appeals Tribunal. After a further job capacity assessment, a fresh claim was lodged and disability support pension was granted.

2.      Thus, the issue for determination is whether Ms Poole was entitled to a disability support pension consequent upon the claim she lodged on 6 December 2007.[1]  She will be entitled if she qualified for a DSP on the day she lodged her claim or within 13 weeks thereafter.

[1] T11

3.      Ms Poole asserts that she is severely restricted by her back injury and cannot work. She says that the injury causes her to experience constant pain and her legs give way without warning. In her submission the pain and other symptoms adversely affect her concentration. She told me that she has become depressed as a result of these symptoms and the consequent loss of her independence – she says that she relies on family members and friends for domestic support, including performing domestic chores and assisting her with shopping.[2] In Ms Poole’s submission she cannot sit or stand for long periods, she cannot walk far and she cannot drive a car.

[2] See Exhibit A10.

4.      Ms Poole’s evidence is that she suffered from osteoarthritis in her knees many years ago, but this condition did not trouble her in 2007. Her principal complaint related to her back. She described feeling pain in her legs and her lower back that is exacerbated by movement and prolonged activities, such as sitting, standing or walking. Ms Poole told me that she may be able to walk up to 200 metres, but she would have to stop and rest before continuing. Her ability to walk was even more restricted on uneven ground. She stated that she experiences difficulty negotiating steps, having fallen when using the steps in her split-level home.[3]

[3] Exhibits A5 and A7 refer.

5.      Ms Poole was concerned about delays in dealing with her claim. She gave evidence that there was a very long delay obtaining an appointment to see Dr Fuller, a neurosurgeon, on referral from her treating general practitioner, Dr Peter Davis. She was also concerned about Centrelink delays in addressing her matter.

6.      In sum, Ms Poole submitted that her disabilities were severe and she should be granted a DSP from 7 December 2007.

7.      As will appear, I do not agree.

8. The qualification criteria for DSP are set out at s 94 of the Social Security Act 1991. The period in which a person must qualify for DSP to be payable is determined in accordance with ss 41, 42 and Schedule 2 of the Social Security (Administration) Act 1999.

9. There is no dispute that Ms Poole has one or more impairments and satisfies subs 94(1)(a) of the SS Act. I am satisfied that she suffers from low back pain and sciatica as a result of lumbar spondylosis and diffuse disc bulges at the L3-4, L4-5 and L5-S1 levels. I accept the evidence of Dr Fuller in that regard.[4]

[4] Exhibit A8; T25 refers.

10.     Ms Poole gave evidence that she suffered from arthritis in her knees 16 or 17 years ago, but this did not trouble her in or about December 2007. I note that Dr Davis recorded “osteoarthritis” in treating doctor reports on 23 January 2008 and 7 April 2008.[5] The Doctor did not, however, record which part of the body this diagnosis related to. Ms Diane Docker, a registered nurse, recorded “Arthritis – Other” in a job capacity assessment on 8 February 2008, but did not record which part of the body was affected.[6] Ms Stephanie Best, a psychologist, conducted a job capacity assessment on 16 May 2008 and recorded that “Osteoarthritis” was permanent, being a condition that was fully diagnosed, treated and stabilised, and verified by medical evidence.[7] Ms Best gave oral evidence that the osteoarthritis was in Ms Poole’s knees. I accept that Ms Poole may have suffered arthritis in her knees.

[5] T18 folio 68 and T24 folio 85, respectively.

[6] T21 folio 74.

[7] T29 folio 94.

11.     Ms Poole’s evidence is that she suffers from depression. Dr Davis recorded “Depression” in the treating doctor reports to which I have referred. I accept that Ms Poole may have suffered depression.

12.     Finally on this point, I note that Ms Poole suffered a prolapsed uterus in 2008 and has recently undergone surgical treatment for this condition. By her own account this condition was not present when she lodged her claim for DSP in December 2007.

13. For the purposes of subs 94(1(b) of the SS Act, in order to qualify for a DSP a claimant’s impairments must warrant a rating of 20 or more points applying the criteria set out in Schedule 1B of the SS Act. The preamble to the Schedule provides that an impairment, being a functional impairment, may only be assessed if it arises from a condition that has been fully documented, diagnosed, investigated, treated and stabilised.[8]

[8] See Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [7]-[10]; Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [23].

14.     I am reasonably satisfied that Ms Poole’s lumbar spondylosis amd related symptoms had not been fully documented, diagnosed, investigated, treated and stabilised when she lodged her claim for DSP or within a period of 13 weeks thereafter. By her own account, she did not consult Dr Fuller until September 2008, approximately nine months after she lodged the claim for DSP.[9] Furthermore, it appears that Dr Fuller recommended treatments, including hydrotherapy and SPECT bone scans.[10] Ms Poole’s evidence is that the aquatic physiotherapy[11] was helpful, but the bone scans had not yet been undertaken. On that evidence I am reasonably satisfied that Ms Poole’s lower back condition was not permanent for the purposes of Schedule 1B of the SS Act during the qualifying period of 13 weeks following the day on which she lodged her claim for DSP, and cannot therefore be rated applying the Impairment Tables set out therein. That conclusion is consistent with the evidence of Dr Davis. In December 2007 and January 2008 the Doctor reported that Ms Poole’s “traumatic low back pain” was likely to “significantly improve” within two years.[12] On 7 April 2008 Dr Davis diagnosed “low back pain; lumbar disc prolapse; L sciatica spinal canal stenosis” that was likely to deteriorate and persist for more than two years; the Doctor certified that the condition was permanent.[13] It appears that this fresh diagnosis and prognosis was based on a CT scan of Ms Poole’s lumbrosacral spine that was taken on 31 March 2008.[14] Dr Davis referred Ms Poole to Dr Fuller for further investigation and specialist treatment. It cannot be said, therefore, that Ms Poole’s lumbar condition was fully diagnosed, investigated, treated or stabilised at that time. Plainly enough it was not, and I so find.

[9] T25 folio 88 and Exhibit A 8 refer.

[10] See Exhibits A8 and A9.

[11] See Exhibit A3.

[12] T13 folio 58 and T18 folio 67.

[13] T24 folios 83-84; Exhibit A1.

[14] T23.

15. With regard to the arthritis in Ms Poole’s knees, there is very scant evidence before me. Ms Poole told me that she had previously suffered from arthritis in her knees, but this was not troubling her at the time she lodged her claim for DSP. She gave evidence that her legs give way without warning and that she has fallen as a result on a number of occasions. There is no medical evidence to illuminate or support this evidence. On the present evidence it is unclear whether Ms Best’s assessment that the arthritis in Ms Poole’s knees was fully documented, diagnosed, investigated, treated and stabilised, or that it any such conclusion was verified by medical evidence. Ms Best’s oral evidence is that she could not recall. I prefer the evidence of Ms Docker, who concluded that arthritis was not fully diagnosed, treated and stabilised. Ms Docker is a registered nurse and her evidence carries more weight on this point than that of Ms Best, who has no formal medical training or qualifications, being qualified as a psychologist. Nevertheless, I was informed that the Respondent Secretary does not dispute that Ms Poole’s arthritis of the knees is permanent for the purposes of subs 94(1(b) and warrants a rating of 10 impairment points under Table 4 of Schedule 1B of the SS Act. That proposition is not made out on the present evidence. Even so, it is not necessary for me to make further findings on this point, as it is not determinative – even if I accept that Ms Poole has 10 impairment points relating to her knee condition, that is not sufficient to satisfy the requirements of subs 94(1)(b), which requires a rating of 20 or more impairment points.

16.     With regard to Ms Poole’s depression, there is no evidence before me that this condition has been fully documented, diagnosed, investigated, treated and stabilised. Dr Davis included references to depression in the contemporaneous treating doctor reports at T13, T18 and T24. There is no evidence that Ms Poole was referred to a psychiatrist or to a psychologist for investigation and treatment for this condition prior to December 2008. The report of Ms Sonia Symons, a psychologist, indicates that Ms Poole had appointments on 15 December 2008, 12 January 2009 and 19 January 2009. It follows, on the present evidence, that Ms Poole’s depression cannot be said to have been fully documented, diagnosed, investigated, treated and stabilised on 7 December 2007 or within the period of 13 weeks thereafter. I am reasonably satisfied that it was not.

17.     That being so, Ms Poole does not suffer from impairments that warrant a rating of 20 or more points applying Schedule 1B of the SS Act. It follows that her claim for DSP lodged on 7 December 2007 cannot succeed, and the decision under review must be affirmed.

18. It is not necessary to proceed further to consider whether Ms Poole has a continuing inability to work for the purposes of subs 94(1)(c) of the SS Act.

decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...........(Peter Strauch)................
  Associate

Date of Hearing  28 May 2009
Date of Decision  1 June 2009
Applicant  Self represented
Solicitor for the Respondent        Keely Horan
  Centrelink Legal Services