Re Lamb and Secretary, Department of Social Services
[2015] AATA 290
•1 May 2015
[2015] AATA 290
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3930
Christine Lamb
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 1 May 2015 Place Canberra The Social Security Appeals Tribunal’s decision on 27 June 2014 is affirmed.
..............................[sgd]..........................................
James Popple, Senior Member
CATCHWORDS
SOCIAL SECURITY — Disability support pension — whether conditions fully diagnosed, treated and stabilised — assessment of impairment rating — assessment cannot be made without corroborating evidence — evidence before or after relevant period — moderate impact on spinal function — decision affirmed.
LEGISLATION
Social Security Act 1991, s 94(1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
James Popple, Senior Member
1 May 2015
Summary
I affirm the decision of the Social Security Appeals Tribunal (the SSAT) to reject the applicant’s claim for the disability support pension (the DSP). The applicant had a physical impairment during the relevant period, but that impairment was not of 20 points or more under the Impairment Tables. She does not qualify for the DSP under s 94(1) of the Social Security Act 1991 (the SS Act).
Background
On 26 June 2013, Ms Christine Lamb lodged a claim for the DSP with Centrelink. On 15 August 2013, Centrelink rejected her claim. At Ms Lamb’s request, that decision was reconsidered by a Centrelink authorised review officer. On 2 June 2014, the authorised review officer affirmed the decision to reject her claim. On the same day, Ms Lamb applied to the SSAT for review of that decision. On 27 June 2014, the SSAT affirmed Centrelink’s decision.
On 25 July 2014, Ms Lamb applied to the Tribunal, under s 149 of the Social Security (Administration) Act 1999 and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.
Decision under review
The decision under review is the SSAT’s decision on 27 June 2014 affirming Centrelink’s decision to reject Ms Lamb’s claim for the DSP.
Issue
The issue in this review is whether Ms Lamb qualifies for the DSP under s 94(1) of the SS Act. That depends on whether she had a physical, intellectual or psychiatric impairment during the relevant period; whether that impairment was of 20 points or more under the Impairment Tables; and whether she had a continuing inability to work.
Legislative framework
At the time that Ms Lamb made her claim, s 94(1) of the SS Act relevantly provided:
94 Qualification for disability support pension
(1) A 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
(c) one of the following applies:
(i)the person has a continuing inability to work;
…
…
Section 23(1) of the SS Act provides that “Impairment Tables” means the tables determined by an instrument under s 26(1). That instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
The relevant period
A claim for the DSP must be assessed as at the date of the claim or within 13 weeks of that date.[1] The relevant period for Ms Lamb’s claim is 26 June to 24 September 2013.
[1] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J. See Social Security (Administration) Act 1999, s 42 and clause 4(1) of Schedule 2.
Did Ms Lamb have a physical, intellectual or psychiatric impairment (s 94(1)(a) of the SS Act)?
The first requirement to qualify for the DSP is that the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)). The Impairment Tables define “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[2] An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than two years.[3] A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.[4]
[2] Impairment Tables, s 3.
[3] Impairment Tables, s 6(3).
[4] Impairment Tables, s 6(4).
In her DSP claim, Ms Lamb said that she suffered from “bursitis, tendonitis, carpel tunnel, backache, injured knee, arthritis, tinnitus and hearing [loss], general unwell, allergy, reflux, sinus [sic]”. She included, with her claim, a medical report from her general practitioner, Dr Robert Campbell, dated 25 June 2013. In that report, Dr Campbell said that Ms Lamb had been diagnosed with osteoarthritis (predominantly spinal) and fibromyalgia. He listed tinnitus and deafness in her left ear as conditions from which Ms Lamb suffered, but which were generally well managed and caused minimal or limited impact on her ability to function.
In an earlier report (undated, but most likely written in September 2011), Dr Campbell said that Ms Lamb had also been diagnosed with “anxiety disorder / personality disorder”, sciatica and tendonitis. He listed gastro-oesophageal reflux disease, chronic sinusitis and tinnitus as conditions from which she suffered, but which were generally well managed and caused minimal or limited impact on her ability to function.
In medical certificates dated 27 September and 25 October 2011, Dr Campbell diagnosed Ms Lamb as suffering from lumbar pain and sciatica. On 29 September 2011, Ms Lamb had a computed tomography scan of her lumbar spine. Dr Ian Alexander reported that the scan showed disc degenerative changes, but that there was no evidence of canal stenosis or nerve root compression. On 3 September 2013, Ms Lamb had a whole body bone scan. Dr Ganesh Shrestha reported that there was discovertebral degenerative disease in her lumbar spine. On 13 September 2013, Dr Peter Renshaw diagnosed Ms Lamb as suffering from “multiple aches and pains of uncertain origin” and noted that there was documented “facet joint arthropathy lumbar spine” confirmed by specialist opinion.
I note that some of this evidence significantly predates the relevant period for Ms Lamb’s claim. That evidence can be of only limited relevance in deciding whether Ms Lamb qualifies for the DSP.
Ms Lamb provided the Tribunal with other medical evidence relating to her condition after the relevant period. As the Federal Court has explained, any subsequent change in a person’s health is irrelevant to the question of whether they qualify for the DSP, except insofar as it may cast light on the position during the relevant period.[5] I do not think that any of this other evidence does that.
[5] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J.
On the basis of the medical evidence, I find that Ms Lamb suffered from the following conditions during the relevant period: osteoarthritis; lumbar pain; fibromyalgia; tinnitus and deafness in her left ear.
I do not find that Ms Lamb suffered from a mental health condition. There is some evidence that she suffered from such a condition during the relevant period. But the introduction to Table 5 (which is about mental health function) requires that “[t]he diagnosis of the 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)”. There is no evidence that Ms Lamb has been so diagnosed. Accordingly, even if I had found that she suffered from a mental health condition during the relevant period, I would have had to assign an impairment rating of zero under Table 5.[6]
[6] Impairment Tables, s 11(5).
Ms Lamb says that she suffered from other conditions during the relevant period. In applying the Impairment Tables, I cannot take into account the symptoms that she reports unless there is corroborating evidence.[7]
[7] Impairment Tables, s 8(1).
Osteoarthritis and lumbar pain
In his report on 25 June 2013, Dr Campbell indicated that his diagnosis of osteoarthritis was confirmed. He said that Ms Lamb had a long history of progressive spinal problems, that her movement and endurance was diminished, and that she was unable to sit for long. He said that the then current treatment was chiropractic, together with anti-inflammatories and analgesics. He said that he expected Ms Lamb’s condition to deteriorate during the following two years, the “natural progression of osteoarthritis”.
Having regard to that report, and the reports of Dr Shrestha and (to some extent) Dr Renshaw, and to other evidence before me about the treatment of Ms Lamb’s lumbar spine, I make the following findings. I find that Ms Lamb’s osteoarthritis and the disc degeneration of her lumbar spine were fully diagnosed, fully treated and fully stabilised during the relevant period, and were likely to persist for more than two years. (I note that the Secretary accepts this.) I also find that Ms Lamb’s osteoarthritis and lumbar pain have caused a loss of her functional capacity affecting her ability to work.
Accordingly, during the relevant period, Ms Lamb had a physical impairment caused by permanent conditions (osteoarthritis and lumbar pain). I find that that impairment was likely to persist for more than two years.
Fibromyalgia
In his report on 25 June 2013, Dr Campbell indicated that his diagnosis of fibromyalgia was presumptive. There had been no specialist consultation, and no further investigations or tests were planned to confirm the diagnosis. He also indicated that the then current treatment was massage, analgesics and sleep agents. He listed Ms Lamb’s symptoms as being general aches and pains and tiredness. He said that the impact of fibromyalgia on Ms Lamb’s ability to function was diminished endurance.
The Secretary says that Ms Lamb’s fibromyalgia was not fully diagnosed, fully treated and fully stabilised during the relevant period. The Secretary points out that investigations into Ms Lamb’s fibromyalgia continued after the relevant period and, on 24 October 2013 (one month after the relevant period), Dr Ramesh Arora, a consultant rheumatologist, arranged for further blood tests, and set out a care plan for Ms Lamb’s fibromyalgia.
I find that Ms Lamb’s fibromyalgia was not fully treated and fully stabilised during the relevant period. Given that finding, I do not need to make a finding about whether her fibromyalgia was fully diagnosed or was likely to persist for more than two years.
Tinnitus and deafness
On 30 June 2011, Ms Lamb underwent a hearing test, which showed mild high-frequency hearing loss. As noted above, in his report on 25 June 2013, Dr Campbell said that Ms Lamb suffered from tinnitus and deafness in her left ear. He also said that these conditions were generally well managed and caused minimal or limited impact on her ability to function. Dr Renshaw came to the same conclusion, in relation to the tinnitus, in his report on 13 September 2013.
The Secretary says that Ms Lamb’s tinnitus and deafness were not fully diagnosed, fully treated and fully stabilised during the relevant period. The Secretary points out that the introduction to Table 11 (which is about hearing and other functions of the ear) requires that “[t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist”. There is no evidence that Ms Lamb’s tinnitus has been so diagnosed. The Secretary also points out that there is no medical evidence that Ms Lamb has undertaken any treatment for tinnitus or, in relation to the hearing loss, trialled the use of hearing aids.
I find that Ms Lamb’s tinnitus and deafness were not fully diagnosed, fully treated and fully stabilised during the relevant period.
Summary
During the relevant period, Ms Lamb had a physical impairment caused by permanent conditions (osteoarthritis and lumbar pain), and that impairment was likely to persist for more than two years. So, Ms Lamb had a physical impairment for the purposes of s 94(1)(a) of the SS Act, and that impairment can be assigned an impairment rating under the Impairment Tables.
Was Ms Lamb’s impairment of 20 points or more under the Impairment Tables (s 94(1)(b) of the SS Act)?
The second requirement to qualify for the DSP is that the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)). Section 10 of the Impairment Tables relevantly provides:
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
…
Multiple conditions causing a common impairment
(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) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), 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.
Ms Lamb’s impairment, caused by osteoarthritis and lumbar pain, is to her limb function and her spinal function. The related tables are Table 2 (which is about upper limb function), Table 3 (lower limb function) and Table 4 (spinal function).
As noted above, Dr Campbell reported on 25 June 2013 that Ms Lamb’s movement and endurance were limited due to her osteoarthritis. Ms Lamb gave evidence at the hearing about her limb function, but the Impairment Tables prevent me from taking that evidence into account without corroborating evidence.[8] There is no evidence about Ms Lamb’s limb function upon which I can apply any of the descriptors in Tables 2 and 3, except for the descriptor in each table that corresponds to a rating of zero.
[8] Impairment Tables, s 8(1). See also the introductions to Tables 2 and 3.
The evidence is that, during the relevant period, Ms Lamb’s osteoarthritis and lumbar pain restricted her movement “in many directions” (Dr Campbell on 30 October 2013) and resulted in “limited mobility” (Dr Renshaw). This evidence is consistent with the application of the descriptors in Table 4 corresponding to an impairment rating of 10: for example, “[t]he person is able to sit in or drive a car for at least 30 minutes, and … has difficulty moving their head to look in all directions” (1(b)). It is not consistent with the application of any of the descriptors corresponding to an impairment rating of 20 (the next highest rating): for example, “the person is unable to turn their head, or bend their neck, without moving their trunk” (1(b)). I can assign an impairment rating of 10 to Ms Lamb’s impairment under Table 4. This means that the impairment had what the table describes as “a moderate functional impact on activities involving spinal function”.
Ms Lamb’s multiple conditions (osteoarthritis and lumbar pain) caused a common or combined impairment which had a moderate functional impact on activities involving her spinal function. Because of ss 10(5) and (6) of the Impairment Tables, I must assign a single rating under a single table for both conditions. Accordingly, I assign an impairment rating of 10 to Ms Lamb’s impairment under Table 4.
Ms Lamb’s impairment was not of 20 points or more under the Impairment Tables. She does not meet the requirement in s 94(1)(b) of the SS Act.
Did Ms Lamb have a continuing inability to work (s 94(1)(c)(i) of the SS Act)?
Because of my conclusion that Ms Lamb’s impairment was not of 20 points or more, I do not need to consider whether she meets the next requirement to qualify for the DSP: a continuing inability to work (s 94(1)(c)(i)).
Evidence about Ms Lamb’s conditions since the relevant period
Some of the evidence before me suggests that some of Ms Lamb’s conditions have changed since the relevant period. As the Tribunal has pointed out:
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.[9]
[9] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] per Breen M.
Conclusion
During the relevant period, Ms Lamb had a physical impairment for the purposes of s 94(1)(a) of the SS Act. But her impairment was not of 20 points or more under the Impairment Tables, so she does not meet the requirement in s 94(1)(b). Accordingly, she is not qualified for the DSP.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ..............................[sgd]..........................................
Associate
Dated 1 May 2015
Date of hearing 2 April 2015 Applicant In person Counsel for the Respondent Ms Laura Weston
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Administrative Appeals
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Impairment Rating
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Social Security
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Evidence
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Statutory Interpretation
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