Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs
[2012] AATA 664
•2 October 2012
[2012] AATA 664
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4667
Re
KIRSI HYNNINEN
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy RFD
Date 2 October 2012 Place Brisbane The decision under review is affirmed.
........................[sgd]..............................
Senior Member Dr K S Levy RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Applicant suffered from “permanent” impairment – Impairment not attributed at least 20 points under the impairment tables in Schedule 1B – No continuing inability to work – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94, Sch 1B
Social Security (Administration) Act 1991 (Cth), s 39, Sch 2
CASES
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA
1606
Secretary, Department of Family and Community Services v Michael (2001)116 FCR 500
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
REASONS FOR DECISION
Senior Member Dr K S Levy RFD
2 October 2012
INTRODUCTION
The applicant in this case, Kirsi Hynninen, claimed disability support pension on 14 February 2011. Centrelink determined on 2 April 2011 that she did not satisfy the legislative requirements for that category of pension. It has since been rejected after further review by Centrelink (15 June 2011), an authorised review officer (15 July 2011), and by the Social Security Appeals Tribunal (21 September 2011).
Ms Hynninen now appeals to this Tribunal for further independent review.
ISSUES
The issues for determination by this Tribunal are:
1.Does Ms Hynninen have a physical, intellectual or psychiatric impairment of 20 points or more under the impairment tables issued under the Social Security Act 1991 (Cth) (“the Act”); and
2.If so, does Ms Hynninen satisfy the additional legislative requirements that she has a “continuing inability to work”?
THE HEARING
Evidence of the Applicant
Ms Hynninen appeared for herself with her sister attending as a support person for her. Both the applicant and her sister gave sworn evidence.
The background to the claim showed Ms Hynninen has a well-documented history of psychiatric conditions and a number of osteoarthritic conditions (in the neck, shoulders, lower back, hips, knees and ankles). In July 2012, she also was found to have Non-Hodgkin Lymphoma.
The applicant told the Tribunal that she has had long standing psychiatric impairments, commencing with a diagnosis of bipolar disorder in 1997. She has a family history of bipolar disorder with both her mother and brother having also been diagnosed with that condition. Her brother committed suicide about four to five years ago. Ms Hynninen has been under treatment of a psychiatrist and psychologist for many years. She has had medication prescribed by a psychiatrist (Dr Taemets) in 2000 and has been monitored by her general practitioners (Dr Lin and Dr Lyons) since that time.
She has a number of other conditions which cause pain and have some effect on her mobility. These include a spinal condition (at L5), osteoarthritis, osteoporosis and bilateral tendonitis of the shoulders. She gets relief using various strategies when relaxing at home and takes prescribed medication and analgesics.
The applicant worked for the Department of Disability Services as a support/carer person from 1995 to 2008. Her conditions were aggravated in 2008 when she was assaulted by a patient and as a consequence now has some right sided neural damage and more serious mood disorders, particularly depression. There was also a suggestion of suicidal ideation. Ms Hynninen was ultimately retrenched and even escorted from the premises at that time. She received a retrenchment payment but has not been able to work since that time. Ms Hynninen gave evidence that she had previously been an in-patient at Logan Hospital for a psychiatric condition. She was in a security ward and was given electro-convulsive therapy.
Medical Evidence
There was considerable documentary evidence pertaining to the conditions from which the applicant suffers. Dr Taemets, psychiatrist, in his report of 15 June 2000, considered that at that time Ms Hynninen could not work more than 30 hours per week and could not work more than five days consecutively. It appears she continued to work from that time until her retrenchment in 2008.
The applicant has been monitored by her general practitioners since that time. In 2003, Dr Lin stated her medication was problematical for her doing night shift work. On 26 November 2010, Dr Lyons reported that the applicant’s condition of post-traumatic stress disorder affects her ability to communicate and that condition would continue for more than 24 months. His report says her capacity for work in the future was “uncertain”. With respect to her condition of arthritis in the spine, his opinion was that that condition would continue for more than 24 months and could be expected to deteriorate. He regarded that as a chronic illness.
Dr Lyons provided a further report, dated 28 April 2011, confirming that the osteoarthritis conditions were of a degenerative nature. The part of the medical report dealing with bilateral osteoarthritis of the knees, hips and ankles has a handwritten endorsement “FDTS” – meaning fully diagnosed, treated and stabilised. This notation is at the bottom of folio 78, T-documents (Exhibit 1). It is not clear whether that notation was made by Dr Lyons or an officer of Centrelink.
There is a report by medical specialist, Dr Peter Hewitt, dated 18 October 2011, wherein he refers to the osteoarthritis complaints. He verified that the applicant suffers from the conditions specified but he opined that the left ankle is “not impacting on her quality of life enough to justify the morbidity of this”.
With respect to her psychiatric illnesses, a report by Dr John Chalk, psychiatrist, dated 29 April 2009, was comprehensive and described her clinical history of past relationships and her previous marriage. Dr Chalk diagnosed chronic dysthymic symptoms but concluded that he was not convinced that she had a diagnosable psychiatric illness which had its origin in any work related incident. There was outstanding information which he regarded as necessary to make a more definite assessment.
There is also a report by Dr Peter Mulholland, psychiatrist, dated 23 July 2009. In that report Dr Mulholland diagnosed anxiety and depression as being appropriate diagnoses and said that treatment could improve her condition. However, he was cautious in his conclusion and opined that Ms Hynninen was affected by abnormal illness behaviour which aggravated her chance of an optimal treatment outcome.
Job Capacity Assessor Report
The applicant has been further assessed by job capacity assessors (JCA). She was assessed at the Beenleigh office of Centrelink on 15 February 2011 by a registered nurse and a registered psychologist. The job capacity assessors had access to specialist medical reports and they also had personal contact with the applicant’s general practitioner, Dr Lyons.
The job capacity assessors reported on each condition claimed. In relation to post-traumatic stress disorder, Dr Lyons told Phillip Andrews, psychologist, that this condition was fully diagnosed, fully treated and fully stabilised. However, Dr Lyons said that the applicant is “fit for at least 20 hours per week and with support and training could be up to 40 hours”. In relation to the spinal arthritis, the job capacity assessors also found that that condition is fully diagnosed, fully treated and fully stabilised. However, they note that the treating doctor advised that the client is capable of full-time employment (the treating doctor is Dr Lyons, the general practitioner). In relation to Bipolar Affective Disorder, this condition was found to be fully diagnosed but it was not rated due to insufficient medical documentation about treatment and prognosis. Similar comments have been made about the conditions of depression, minor cervical degeneration at C4/5, shoulder and upper arm disorder, left ankle arthritis, lower limb deficiencies, bronchitis and osteoporosis.
In relation to the latter conditions, the job capacity assessors noted that most of those conditions were not discussed by Ms Hynninen in the job capacity assessor interview and that there was insufficient medical evidence about functional impact or prognosis and, as a result, the assessors were unable to make further comment or assessment.
In relation to the lumbar sacral spine arthritis, it was noted that the applicant had almost normal range of movement and that a rating of nil impairment points was therefore appropriate. In relation to the hips, knees and ankles, the job capacity assessor noted, in a report dated 10 June 2011, the general practitioner’s comments that Ms Hynninen has pain walking, sitting and standing. Under Table 4 of the impairment tables, the assessor concluded a rating of nil impairment points was appropriate.
I also note Dr Greg Gillett, on 24 July 2009, stated the applicant’s conditions are more psychiatric than physical. He concluded that he was unable to find any impairment which was consequential to the work injuries.
A subsequent JCA report was conducted on 18 May 2012 by Anne Myers, rehabilitation counsellor. That assessment was undertaken at the Centrelink office in South Brisbane. It is noted that that report allocated 10 impairment points for post-traumatic stress disorder based on the information provided by Dr Lyons, GP, to the psychologist member of the previous JCA panel. Zero (0) points were awarded for the other conditions.
CONSIDERATION
I have taken into account all of the oral and documentary evidence. The issues to be determined are governed by section 94 of the Social Security Act 1991 (Cth). That section provides relevantly:
Qualification for disability support pension
1A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
one of the following applies:
(i) the person has a continuing inability to work;
…
Continuing inability to work
2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
It is also noted that under s 94(5) of the Act, certain definitional terms are explained. In relation to “work”, that term is defined as:
“work” means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
In respect of whether the applicant has a continuing inability to work under s 94(1)(c)(i), the Secretary submitted that a number of factors must be disregarded. It was submitted that these included:
·any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001)116 FCR 500);
·the availability of work in the person’s locally accessible labour market (s 94(3)(b));
·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517).
I accept that submission of the Secretary as being relevant and correct.
The commencement of the assessment of the applicant’s claim is also affected by s 39(3) and cl 4 of Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth) (as it was current prior to 1 January 2012). There, it specifies that an applicant needs to be qualified (in accordance with s 94 of the Act) at the date that the claim is made or within 13 weeks of that date. I therefore find that the relevant period for which the applicant needs to be qualified is the period from 14 February 2011 to 15 May 2011.
A summary of the extensive history of assessments in relation to the post-traumatic stress disorder, including the recent determination by the Social Security Appeals Tribunal (SSAT), are as follows:
DATE
DECISION MAKER
POINTS
REFERENCE
15 February 2011
Original Decision
10 points
T 7 at folio 36
28 March 2011
JCA
T 12 at folio 60
2 June 2011
JCA
10 points (psychiatric)
T 16 at folio 91
15 July 2011
ARO
10 points (psychiatric)
T 5 at folio 25
21 September 2011
SSAT
0 points
T 2 at folio 10
22 May 2012
JCA Reviewer
10 points
Exhibit 3 at page 7
In relation to the above, the Secretary’s advocate noted in the hearing that neither of the SSAT members were medical doctors. In relation to work capacity for the future, the following is a summary of the evidence:
DATE
DECISION MAKER
WORK CAPACITY
REFERENCE
15 February 2011
Original Decision Maker
30 hours or more per week
T 7 at folio 37
28 March 2011
JCA
23 – 29 hours per week
T 12 at folio 62
2 June 2011
JCA
23 – 29 hours per week
T 16 at folio 92
15 July 2011
ARO
23 – 29 hours per week
T 5 at folio 23
28 September 2011
SSAT
Not addressed
T 2 at folio 10
22 May 2012
JCA Review
15-22 hours per week (with potential for 23 – 29 hours within 2 years)
Exhibit 3 at page 7
With respect to the conditions claimed, the respondent accepts that Ms Hynninen has the following impairments for the purposes of s 94(1)(a):
Psychiatric Conditions
1.PTSD
2.Bipolar Disorder
3.Depression
Medical Conditions
1.Lumbosacral spine arthritis
2.Osteoarthritis of hips, knees and ankles
In assessing whether these conditions satisfy the s 94(1)(a) criteria, Schedule 1B of the Act contains mandatory criteria to be met before impairment ratings can be assigned to any condition (Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606). Specifically, the mandatory requirements set out in the Introduction to Schedule 1B include:
1.A rating is only to be assigned after a comprehensive history and examination (see para 4).
2.An impairment rating can only be allocated if the condition is permanent (that is, it has been diagnosed, treated and stabilised, and is considered to be likely to persist for the foreseeable future). A condition will be considered fully stabilised if it is unlikely that there will be any significant functional improvement in the following two years (see para 5).
3.In determining whether a condition is permanent and therefore fully diagnosed, treated and stabilised, a decision maker must consider:
·what treatment or rehabilitation has occurred;
·wether treatment is still continuing or is planned; and
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years (see para 6).
The psychiatric conditions are clearly diagnosed. They have now been in existence for some years and Ms Hynninen’s general practitioner feels the duration and consistency of her symptoms indicates to him that they are permanent conditions. However, considering the expert evidence of Dr Mulholland and Dr Chalk, significant weight must be given to their conclusions and that, notwithstanding a presentation of anxiety and depression, both doctors were circumspect about the real underlying drivers of Ms Hynninen’s psychiatric conditions. Dr Mulholland considers her anxiety and depression should improve with treatment although he expresses some reservations about the potential outcome because of personality factors and the impact of previous life events. On the basis of those reports, it cannot be said that the best evidence points to her psychiatric conditions being fully treated and stabilised. That conclusion is strengthened by the fact that the assessment period is between 14 February and 15 May 2011. Therefore, I consider an impairment rating either cannot be attributed for the relevant period or, if a rating is made, only a rating of nil points could be appropriately allocated.
The medical conditions are assessed as follows:
1.The lumbosacral spine condition is apparently functional in the sense that the applicant has nearly a normal range of movement. This must be assessed under Table 5.2, which, according to the medical evidence provided, would equate to nil impairment points. Interpolation of points within the rating scale is not permitted (see para 10 of the Introduction to Schedule 1B).
2.In relation to the bilateral conditions affecting her hips, knees and ankles, her general practitioner states that the applicant is in pain. However, after independent review by orthopaedic surgeon Dr Greg Gillett, he says the psychiatric issues override the physical conditions. As a result, this condition cannot be regarded as being fully treated and stabilised because of the overlapping psychiatric condition. How much of the psychiatric condition is affecting the presentation of the medical condition cannot be determined from the available evidence. I note also a comment by Dr Steven Goode, dated 9 September 2009 for the Board of WorkCover, where he advised that the applicant is unlikely to return to her (former) substantive position in Disability Services Queensland, indicating the chance of a positive resolution may be in the lower range of probabilities.
3.With respect to the shoulder and bronchitis conditions, the JCA report did not discuss these on the basis that there was either insufficient medical evidence or that Ms Hynninen did not discuss these matters at interview. The JCA report is therefore not particularly helpful in resolving these issues. However, it is noted that Dr Lyons has reported that these conditions are well managed and do not have any significant impact on Ms Hynninen’s daily functioning. Even if those conditions could be regarded as fully diagnosed, treated and stabilised, I find that nil points is the appropriate rating here under Table 3 and Table 2, respectively.
Are the legislative requirements met?
The applicant clearly has some current physical and psychiatric impairment. However, for the purposes of s 94(1)(a), these impairments must be sufficient to satisfy the criteria in Schedule 1B and demonstrate that 20 impairment points or more are justified under the impairment tables (s 94(1)(b)). In addition, there must also be a continuing inability to work (s 94(1)(c)). The total rating of nil impairment points does not satisfy s 94(1)(b). As a result, Ms Hynninen is not qualified under s 94 for disability support pension. Because of this conclusion, consideration of 94(1)(c) becomes redundant.
However, even if Ms Hynninen had established 20 impairment points, she would still need to establish a continuing inability to work as required by s 94(1)(c). This section also disregards various factors. Based on the JCA reports (and other specialist medical reports), Ms Hynninen must be regarded by professional evidence as being capable of undertaking 15-23 hours of work per week over the next two years and potentially greater hours within two years.
It is possible these conditions may have deteriorated in the past 12-18 months, particularly with a new diagnosis of Non-Hodgkin Lymphoma being superimposed on the applicant’s documented conditions. However, the expert medical evidence of Dr Gillett, Dr Chalk and Dr Mulholland, all of which I have accepted, shows the applicant has an aggregate of nil points for the assessment period.
Therefore, it cannot be said for the period 14 February 2011 to 15 May 2011, that the applicant has 20 impairment points or more and nor does she have a continuing inability to work. The application cannot succeed at this time.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD. .......................[sgd].....................................
Associate
Dated 2 October 2012
Date(s) of hearing 8 August 2012 Applicant In person Advocate for the Respondent Bob Hamilton
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