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

[2016] AATA 494

Provencal and Secretary, Department of Social Services (Social services second review) [2016] AATA 494 (15 July 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0089
Re	Monera-Elise Provencal
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	15 July 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension - whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether applicant suffered severe functional impact on activities – applicant not found to have a severe impairment within one impairment table –  decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

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

Senior Member A Poljak

15 July 2016

INTRODUCTION

1. Ms Provencal seeks review of a decision by the Social Services and Child Support Division of this Tribunal (“SSCSD”) made on 8 December 2015. The SSCSD affirmed a decision made by Centrelink on 17 July 2015, affirmed by an Authorised Review Officer on 10 September 2015, rejecting Ms Provencal’s claim for the disability support pension (“DSP”) which was made on 22 May 2015.

2. Ms Provencal’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”).

3. Section 94 of the Act provides that, to qualify for payment, a person must have:

   (i)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 and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and

   (ii)a continuing inability to work as defined in the Act.

4. Ms Provencal had to satisfy these criteria on 22 May 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 21 August 2015 pursuant to s 42 and Schedule  2 of the Social Security (Administration) Act 1999 (Cth) (“the claim period”).

5. The Secretary accepts that Ms Provencal suffered from a number of conditions including fibromyalgia, chronic fatigue syndrome, post-traumatic stress disorder and migraines during the claim period.

6. In addition to the T-documents, lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), Ms Provencal tendered at hearing the following additional documents:

   (a)Report of St Vincent’s Hospital dated 13 November 2015;

   (b)Report of Dr Dombroski, GP Management Plan dated 8 February 2016; and

   (c)A letter from Ms Provencal to the Department (undated).

   IMPAIRMENT TABLES

7. The Impairment Tables includes rules for assigning ratings to determine the level of functional impact of impairment (and not to assess conditions). Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

8. Subsections 6(3) and 6(4) of the Impairment Tables provide that impairment can only be given a rating if the condition causing it is a fully documented, diagnosed condition which has been investigated, treated and stabilised. The condition must be considered permanent, meaning that, in light of available evidence, it will more likely than not persist for more than two years. 

9. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years.

10. In assessing whether a condition is fully diagnosed, treated and stabilised, subsection 6(5) instructs that a decision- maker must consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

11. 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, subsection 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 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)

12. For multiple conditions causing a common problem, subsections 10(5) and 10(6) of the Impairment Tables provide :

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    FIBROMYALGIA AND CHRONIC FATIGUE SYNDROME

13. The Secretary accepts, and I am satisfied, that both fibromyalgia and chronic fatigue syndrome were fully diagnosed, treated and stabilised during the claim period. This finding is supported by the reports of Dr Dombroski dated 20 May 2015, 3 August 2015 and the Centerlink Medical Certificate dated 3 August 2015.

14. The Secretary contends that impairment resulting from both fibromyalgia and chronic fatigue syndrome should be assessed under the Impairment Tables as one common or combined impairment under a single Table pursuant to subsection 10(5) of the Impairment Tables. It is Ms Provencal’s position that each condition should be assessed separately as she feels that the severity of both conditions was not properly assessed.

15. It is important to reiterate that the Impairment tables are designed to assess the level of functional impact of impairment and not to assess conditions. If two or more conditions cause a common or combined impairment then they are to be given a single rating under a single Table.

16. Table 1 of the Impairment Tables assesses the functional impact of impairment when performing activities requiring physical exertion or stamina. As such, functional impact assessed in Table 1 addresses common impairment resulting from both fibromyalgia and chronic fatigue syndrome. To assess the conditions separately would result in the same impairments being assessed twice.

17. I am satisfied, that the impairment caused by fibromyalgia cannot be differentiated from the impairment caused by chronic fatigue syndrome. Accordingly, Ms Provencal’s fibromyalgia and chronic fatigue syndrome should be rated as a common or combined impairment pursuant to s 10(5) of the Impairment Tables.

18. The report of a Job Capacity Assessment, undertaken on 6 July 2015, shows that Ms Provencal told the assessor she was able to do her groceries twice per week; was able to cook and clean with breaks as required; she often collected her daughter from school and was able to care for her five year old daughter three days per week, where she does tasks such as craft, painting and going to the park.

19. The decision of the SSCSD shows that Ms Provencal told the Tribunal (inter alia) that she was able to look after her 5 year old daughter on the weekends; could do some housework such as cooking, making the bed, changing the sheets; was able to wash, dry and fold laundry; was able to engage with her circle of friends, although she said she did not go out much and enjoyed reading, painting and writing. Ms Provencal said that her friend drove her to the Tribunal and that she couldn’t use public transport.

20. Giving evidence before this Tribunal, Ms Provencal advised that she was dropped off at the Tribunal by a friend and entered the building without assistance. She said that she cares for her five year old daughter three days per week, where she does tasks such as craft, painting and playing with toys; she makes meals for her daughter and is able to make simple meals for herself that don’t require cooking; she is able to wash, dry and fold laundry and she lives by herself. Ms Provencal told the Tribunal that she has not been able to see or look after her son for four years because of her health.

21. Ms Provencal contends that her capabilities were not accurately recorded during her Job Capacity Assessment. Given the consistency in reporting of Ms Provencal’s day to day abilities before the SSCSD and this Tribunal, I am satisfied that the evidence before the Tribunal is an accurate reflection of her functional ability.

22. On the evidence before me, I am satisfied that this combined or common impairment does warrant a rating of 10 points for moderate functional impact under Table 1.

    POST-TRAUMATIC STRESS DISORDER (“PTSD”)

23. The Secretary contends that Ms Provencal’s mental health condition cannot be considered as fully diagnosed during the claim period because a diagnosis of PTSD had not been confirmed by a clinical psychologist or psychiatrist pursuant to the Introduction to table 5 of the Impairment Tables.

24. The Introduction to table 5 of the Impairment Tables provides (inter alia):

    A diagnosis of a 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)

25. In support of her claim, Ms Provencal relied on the report of registered psychologist Mr Tom Gross, dated 6 August 2015. Mr Gross reported that Ms Provencal was suffering from PTSD and was experiencing high anxiety, panic episodes and significant depression. Mr Gross is not a clinical psychologist and as such his report does not satisfy the requirements under Table 5 of the Impairment Tables.

26. Ms Provencal now relies on the report of psychiatrist Dr Atapattu, dated 19 November 2015. This report however falls outside of the claim period. In any event, Dr Atapattu does not offer a definitive diagnosis of PTSD in her report. She states that there is “evidence of possible chronic PTSD symptoms” (emphasis added).

27. Taking these matters into account, I am not satisfied that Ms Provencal’s PTSD condition was fully diagnosed during the claim period.  It follows that it cannot be given an impairment rating for the claim period.

    COGNITIVE FUNCTION

28. Ms Provencal contends that her cognitive function is affected as a result of all her conditions including fibromyalgia, chronic fatigue syndrome, post-traumatic stress disorder and migraines.

29. Table 7 of the Impairment Tables is used where a person has a permanent condition resulting in functional impairment related to neurological or cognitive function. The Table lists a number of descriptors, namely what degree of difficulty a person has with memory, attention and concentration, problem solving, planning, decision making and comprehension.

30. Dr Dombroski states, in his report dated 20 May 2015, that pain interferes with Ms Provencal’s cognitive function. The report of the Job Capacity Assessment, dated 6 July 2015, shows that Ms Provencal reported reduced memory and concentration due to exhaustion. However, no significant impacts were identified in the assessment.

31. The Introduction to Table 7 of the Impairment Tables instructs that self-reporting alone is insufficient and that there must be corroborating evidence of the person’s impairment such as, but not limited to, a report from a specialist (neurologist, psychiatrist, neuropsychologist or rehabilitation physician) supporting the diagnosis, results of diagnostic tests and results of cognitive assessments. None of these types of reports have been provided for the claim period.

32. I am not satisfied that there is sufficient evidence before this Tribunal to support a diagnosis of a permanent condition resulting in functional impairment related to neurological or cognitive function. It follows that it cannot be given an impairment rating for the claim period.

    MIGRAINES

33. Dr Dombroski states in his reports dated 20 May 2015 and 3 August 2015 that Ms Provencal suffers from migraines. No other clinical details are provided. It follows that it cannot be given an impairment rating for the claim period.

    PROGRAM OF SUPPORT

34. To have a continuing inability to work, s 94(2) of the Act provides that a person must have actively participated in a program of support. Ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP pursuant to the Social Security (Active Participation for Disability Support Pension) Determination 2014. A person, who has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, is not required to have completed a program of support in order to have a continuing inability to work. 

35. As Ms Provencal’s impairments did not rate 20 or more points on the Impairment Tables, her claim for DSP cannot succeed.  It is therefore not necessary to consider whether she also had a continuing inability to work during the claim period.  However, I note that the information before me indicates that she had not completed a program of support before applying for the DSP.

    CONCLUSION

36. For all of the reasons given above, I affirm the decision under review.  Ms Provencal may apply for DSP again at any time. 

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 15 July 2016

Date(s) of hearing	22 June 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services