QJPK and Secretary, Department of Social Services (Social service second review)

[2016] AATA 106

QJPK and Secretary, Department of Social Services (Social service second review) [2016] AATA 106 (26 February 2016) 

Division	GENERAL DIVISION
File Number(s)	2013/5899
Re	QJPK
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	26 February 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – bilateral Achilles tendonitis – plantar fasciitis – psychological condition – applicant granted DSP in August 2013 – whether applicant qualified when made earlier claim in February 2011 – whether conditions were fully diagnosed treated and stabilised during earlier claim period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, Schedule 1B

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Senior Member J F Toohey

26 February 2016

BACKGROUND

1. On 18 February 2011, the applicant applied for a disability support pension (DSP).  On 13 May 2013, after a lengthy process of assessment and internal review, Centrelink decided the applicant did not qualify for DSP.  On 14 August 2013, the applicant lodged a second application.  Centrelink determined that she qualified for DSP as of 2 August 2013.

2. The applicant says she qualified for DSP when she applied on 18 February 2011 and is entitled to payment from that date. 

3. The Tribunal has made an order under s 35(3) of the Administrative Appeals Tribunal Act1975 (Cth) prohibiting the disclosure of information tending to reveal the identity of the applicant. She is referred to here as QJPK.

   QUALIFICATION FOR DSP

4. The legislation concerning qualification for DSP is in the Social Security Act 1991 (Cth) (the Act). Section 94 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 Impairment Tables in the Act; and

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

5. To qualify for DSP as of 18 February 2011, the applicant had to satisfy these criteria on that date or within the following 13 weeks, that is by 20 May 2011: s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth). I will call this the claim period.

   THE IMPAIRMENT TABLES

6. The Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B to the Act were in force when the applicant made her first claim. They comprise 22 Tables by which the effect of impairments on work performance is assessed. According to its severity, an impairment may be given a rating between nil and 40 points.

7. An 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”.  A condition must be considered permanent, meaning that, in light of available evidence, it will more likely than not persist for more than two years.  Fully stabilised means it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years: Introduction to the Tables.

8. The Introduction to the Tables provides that, in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

   ·what treatment or rehabilitation has occurred;

   ·whether treatment is still continuing or is planned in the near future;

   ·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

9. Reasonable treatment for the purposes of the Tables means:

   ·treatment that is feasible and accessible ie, available locally at a reasonable cost;

   ·where a substantial improvement can reliably be expected and where the treatment or procedure is of the type regularly undertaken or performed, with a high success rate and low risk for the patient.

   WERE THE APPLICANT’S IMPAIRMENTS FULLY DIAGNOSED DURING THE CLAIM PERIOD?

10. In her claim for DSP, the applicant identified her conditions as bilateral Achilles tendonitis, acute plantar fasciitis on the right foot, and coeliac disease. 

11. There is no information before me concerning the treatment for, or effect of, the applicant’s coeliac disease.  Even allowing that it is permanent and could be assigned a rating, the information before me does not suggest that it had any effect on her ability to function during the claim period.  For this reason, I will not consider it further.

12. Although the applicant did not refer to any psychological condition in her claim, her general practitioner at the time, Dr H, who had not been seeing the applicant for very long, referred to her as also suffering from stress.  Other medical reports refer to a more serious and long-standing condition which has been diagnosed over the years as severe depression, anxiety and post-traumatic stress disorder.  I will refer to this as the applicant’s “psychological condition”.

    Bilateral Achilles tendonitis, acute plantar fasciitis on the right foot

13. There is ample evidence from the applicant’s orthopaedic surgeon, general practitioners and podiatrist confirming that her bilateral Achilles tendonitis and plantar fasciitis were fully diagnosed during the claim period.  The Secretary accepts, and I am satisfied, that these conditions were fully diagnosed for the purposes of the Act.

    Psychological condition

14. As I understand it, the Secretary does not accept that the applicant’s psychological condition was fully diagnosed during the claim period. 

15. There is evidence that the applicant has suffered from a psychological condition since around 2003.  It is not necessary to go into its causes other than to say that she has suffered a number of extremely traumatic events and was homeless for a long period.  

16. On 3 May 2005, Dr M, a psychiatrist, reported to the applicant’s then general practitioner after she had sought a second opinion from him “concerning her diagnosis”.  At that time the applicant had been well since December 2004.  Dr M said he could not elicit evidence of bipolar disorder although “certainly she had a period of what it would appear antidepressant-induced hypomania with the Cipramil”.  He noted that Cipramil had been prescribed for a “significant episode of depression” that began in June 2003 and led to the applicant’s hospitalisation in October 2004 for about seven weeks.  Dr M said there was “no doubt” the applicant had “significant depressed symptoms” and “there has also been evidence of a mild post-traumatic stress disorder” during her admission to hospital.  He recommended she continue on Cipramil and have counselling.

17. On 23 June 2008, Dr L, the applicant’s general practitioner at the time, noted “mild anxiety 18 month but worst (sic).  Paranoia/nightmares/hallucination x 1”.  In a Centrelink Medical Certificate dated 4 July 2008, Dr L recorded that she had “panic attacks” which was “likely to show considerable improvement within the next 2 years”.

18. Clinical records of Dr T, who was the applicant’s general practitioner from 2008 to 2010, show that, on 12 August 2008, she was “somewhat hypomanic”.  He diagnosed depression and queried whether she had bipolar disorder but wanted to see past correspondence from Dr M.  On 29 January 2009, Dr T provided a medical certificate stating that the applicant was suffering from “anxiety/depression”, the symptoms of which were “likely to show considerable improvement within the next two years”.  On 17 December 2009, he recorded that the applicant was “feeling depressed” and having “anxiety symptoms”.

19. On 11 May 2010, Dr T provided a report in relation to a claim by the applicant for workers compensation for her feet conditions.  He commented that “financial hardship and depression have not helped her recover as quick as would have otherwise been possible”. 

20. On 20 May 2010, Dr T completed a GP Mental Health Assessment.  He noted that the applicant presented with “anxiety and depression symptoms”.  The notes show “Discuss chronic anxiety/depression.  Current stresses have bought (sic) up anxieties from PTSD from [past events]”.  Dr T noted she was on Cipramil and referred her to a psychologist for “issues related anxiety/depression”.

21. On 7 April 2014, Dr T provided a report to the Department of Human Services in which he said the applicant had “symptoms consistent with both Post Traumatic Stress Disorder and Major Depression” since the time she first met her in mid-2008.

22. Considering all of this information, I am satisfied that, by 18 February 2011, the applicant had been diagnosed on several occasions as suffering from depression.  In particular, she was diagnosed by a psychiatrist with significant depressed symptoms in 2005.  It appears, although it is not clear, that she had also been diagnosed as suffering from PTSD but whether that diagnosis had been made out by the time of the claim period does not matter for present purposes. 

23. For the reasons that follow, however, I am not satisfied this condition was fully treated and stabilised during the claim period, meaning it could not be assigned an impairment rating.

    WERE THE APPLICANT’S IMPAIRMENTS FULLY TREATED AND STABILISED DURING THE CLAIM PERIOD?

    Bilateral Achilles tendonitis, acute plantar fasciitis on the right foot

24. The applicant claims she developed these conditions as a result of standing long hours while working as a volunteer in an art gallery.  I do not understand the Secretary to dispute the cause of her conditions which has been the subject of a workers compensation claim.  However, the Secretary contends they were not fully treated and stabilised during the claim period.

25. On 23 November 2009, S, a physiotherapist, prescribed “Rest in boot x 6 weeks then start physio”.  On 4 March 2010, Dr T reported that the applicant had been in an air cast boot “from 23 November 2010 to 23 February 2010” (it is clear from his report that it should read “23 November 2009”), and she had been using Voltaren creams and nurofen tablets.

26. On 17 May 2010, Dr L, a foot and ankle surgeon, reported to Dr T that the applicant was “doing her stretching exercises under the supervision of her physiotherapist and also attending hydrotherapy”.  He said he had stressed to her the importance of stretching and weight loss, and she needed to “work on a self-directed programme under the supervision of her therapist between sessions” and should continue with Voltaren and Hirudoid to help settle the pain topically; he would review her in three months. 

27. In September 2010, Dr H referred the applicant to a podiatrist, Mr U, for “assessment of her current conditions, it’s current limitations and any treatment recommendations”.  Dr H noted that she had only begun seeing the applicant recently.

28. On 15 December 2010, Mr B, a podiatrist, reported to the applicant’s workers compensation insurer that she required customised orthotics to be used in conjunction with heel lifts; “strengthening exercises would need to be reinforced and a program started” and continued stretching would be important.  He concluded that, failing significant improvement, “injection therapy would need to be considered”.

29. In her report dated 18 February 2011 in support of the applicant’s claim for DSP, Dr H described her Achilles tendonitis and plantar fasciitis as “expected to persist for 3 to 24 months” and to “significantly improve”.  The applicant told the Tribunal that she was unhappy with Dr H’s treatment generally and did not agree with her assessment.  It is not clear on what basis Dr H concluded that the condition would significantly improve but, nevertheless, it is in line with Mr B’s report two months earlier.

30. On 28 February 2011, Dr P assessed the applicant for the purposes of her workers compensation claim.  He thought it would “probably be reasonable” for her to be seen on at least one occasion by a specialist treating rheumatologist and she might “come to require MR imaging of both ankles/feet”.  He did not see a need for surgical intervention, but thought she would benefit from an in-shoe orthotic.

31. On 21 June 2011, Mr B provided a report for the purposes of the applicant’s workers compensation claim.  He stated that he had that day implemented treatment “in the form of footwear changes to more supportive shoes (joggers) which she has now purchased”.  He said he had used arch support taping for a trial period with good results and re-taping was applied.  He noted that, on review on 17 June 2011, the applicant continued to improve and was able to walk with less discomfort.  He concluded:

    If appropriate intervention was to occur and patient compliance with the treatment was not an issue, the conditions that present have the ability to improve with time. …  Multiple sites of injury does (sic) make the healing process more difficult, and it would be difficult to place a time frame on recovery time compared to cases where only one site of injury presents.  However, without appropriate intervention, her injury state is most likely to remain chronic and persist.     

32. She has said, and I accept, that she was in extremely difficult circumstances at the time and unable to afford the necessary treatment.  However, it was not until June 2011, after the claim period, that Mr B reported that she had started wearing suitable shoes and was showing good results with them and with re-taping.  Taking all of these reports into consideration, I am not satisfied that the applicant’s foot and ankle conditions were fully treated and stabilised during the claim period.  It follows that these conditions could not be assigned an impairment rating at that time.

    Psychological condition

33. In her report accompanying the applicant’s claim for DSP, Dr H referred to a diagnosis of stress, the treatment of which was “rest, supportive therapy”.  Dr H recorded the condition as one which was “generally well managed” and caused “minimal or limited impact on ability to function”.  She stated that significant improvement was expected.

34. The applicant disputes Dr H’s assessment of her condition.  She gave evidence that she was not happy with Dr H generally and changed to another general practitioner.  Given other reports of the long-standing, serious nature of the applicant’s psychological condition, Dr H’s assessment appears at odds with other reports and I place no weight on it for present purposes.

35. The only evidence in the medical reports of treatment for the applicant’s psychological condition up to and including the claim period is the prescription of Citalopram and references to counselling. 

36. The applicant says, and I accept, that she sought counselling and support from a number of different people over the years.  I accept that she saw a doctor for weekly treatment in another city in about 2005-2006.  I accept that her very difficult circumstances, which included having to move address a number of times, being homeless for an extended period, and her extreme financial hardship, made consistent treatment difficult. 

37. The applicant says she was in complex and extreme circumstances at the time of her first claim; it was not possible to get the evidence she needed at that time and she was unable to obtain regular treatment.  She has submitted a letter dated 18 September 2015 from a support service which outlines her extreme circumstances at the time that she first made contact with the service in March 2011.  It states that the applicant was in crisis for reasons including that she was homeless, and she was disadvantaged when she made her first application for DSP. 

38. Because the applicant’s psychological condition has clearly been long-standing, and because of the difficulty she has had obtaining treatment and reports, the Tribunal heard evidence from Mr H, a psychologist, whom she has been seeing for monthly treatment since 19 April 2013. 

39. Mr H gave evidence that, other than what the applicant had told him, he had no knowledge of a diagnosis of the condition during the claim period.  However, her condition has been consistent throughout the time he has seen her, and has features that could be described as anxiety, depression, and PTSD following a “complex trauma history”.

40. Asked if he could comment on whether the applicant’s condition was fully treated and stabilised during the claim period, Mr H said he could not.  However, he did not think, before she came to see him that she had had any counselling in “a meaningful or ongoing way”.  In response to this, the applicant says Mr H was not aware of the number of people she had seen before coming to him.  I accept what she says but the very number of people she saw, some of whom she saw only once, tends to bear out Mr H’s comment.

41. Mr H gave evidence that he had not seen “any real stabilisation” while treating the applicant, and she continues to have ups and downs.  He said her condition tends to be episodic and has remained much the same in the time he has seen her.  That said, he has seen a “slow, gentle improvement”, much of which he attributes to the applicant’s dogged determination to get better.

42. Dr K, who has been the applicant’s general practitioner since December 2013, also spoke to the Tribunal by telephone.  He has seen the applicant primarily for her psychological condition.  Based on the history of her symptoms, he believes the applicant had suffered from chronic PTSD since at least February 2011.  However, he was unable to say whether it was fully treated and stabilised at that time.

43. The applicant provided copies of Dr T’s clinical records.  For reasons which are not clear, they show few references to her psychological condition.  In any event, they do not assist me in determining whether her condition was fully treated and stabilised during the claim period.

44. Given that she had not had any consistent treatment, other than medication, and given Mr H’s evidence that she has shown slow but steady improvement with regular treatment since April 2013, I am not satisfied that the applicant’s psychological condition was fully treated and stabilised during the claim period.  It follows that it could not be assigned an impairment rating.

    CONTINUING INABILITY TO WORK

45. Because I find that the applicant’s conditions did not have an impairment rating of 20 or more points during the claim period, it is not necessary to determine whether she had a continuing inability to work during that period.

    CONCLUSION

46. The applicant asks the Tribunal to consider the extreme circumstances and trauma with which she was living at the time of her first claim.  I accept what she says about her circumstances but I can only make a decision based on the information I have.  Whether her conditions were fully treated and stabilised is a matter for her treating team.  Based on the information they have provided, I am not satisfied her conditions were fully treated and stabilised.   

47. The applicant has a number of complaints about her dealings with Centrelink.  In particular, she has complaints about the job capacity assessment process, the job capacity assessor who saw her in relation to both claims, and information in the assessor’s report.  She also complains of delays on Centrelink’s part in providing documents.  She may well have grounds for her complaints but the Tribunal can only deal with the review of the decision concerning her qualification for DSP.

48. I affirm the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated 26 February 2016

Date(s) of hearing	19 October 2015
Date final submissions received	11 January 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services