Rees and Secretary, Department of Social Services

[2013] AATA 939

[2013] AATA  939

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4373
Re	Bronwyn Rees
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	23 December 2013
Place	Brisbane

The decision under review is affirmed.

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

Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – eligibility – disability support pension – whether condition fully diagnosed, treated and stabilised – whether impairment rating of 20 points under impairment tables – decision affirmed

LEGISLATION

Social Security Act 1991, s 94(1)(b)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6, Tables 2, 5

REASONS FOR DECISION

Deputy President PE Hack SC

23 December 2013

Introduction

1. The applicant, Ms Bronwyn Rees, made an application for disability support pension on 29 November 2013. The claim was accompanied by a report of Ms Rees’ general practitioner, Dr Danny Lean. The report noted that Ms Rees suffers from posttraumatic stress disorder/depression and bilateral calcific tendonitis of the shoulders and elbows. The claim for disability support pension was rejected by Centrelink. That decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT).

2. Ms Rees seeks a review of that decision.

   The legislation

3. To be eligible for disability support pension a person must satisfy the criteria set out in s 94(1) of the Social Security Act 1991 (Cth) (the Act) on the day the claim is lodged or within the 13 weeks thereafter[1] (the relevant period). The criteria that are presently relevant are expressed in this way in the subsection[2]:

   [1]Clause 4 in Part 2 of Sch 2 of the Social Security (Administration) Act 1999

   [2]Ms Rees satisfies the qualifications relating to age and residence.

   (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;

   …

4. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). An impairment rating may only be assigned under the Impairment Tables if the condition causing the impairment is permanent[3], that is, the condition has been fully diagnosed, fully treated and fully stabilised and is, on the balance of probabilities, likely to persist for more than two years[4].

   [3]See s 6(3) of the Determination

   [4]See s 6(4) of the Determination

5. A “continuing inability to work” is defined in s 94(2) of the Act as:

   A 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.

   An impairment is a “severe impairment” if the person’s impairment has an impairment rating of 20 points or more, of which 20 points or more are under a single Impairment Table[5]. “Work”, for the purposes of the subsection, means at least 15 hours per week at or above the minimum wage[6].

   [5]           See s 94(3B) of the Act.

   [6]           See s 94(5) of the Act.

   Issues

6. The Secretary concedes that Ms Rees’ posttraumatic stress disorder and bilateral calcific tendonitis of the shoulders and elbows are impairments under s 94(1)(a) of the Act. What remains to be determined is whether, during the relevant period, those impairments warranted an impairment rating of 20 points or more under the Impairment Tables and, if so, whether Ms Rees had a continuing inability to work. The relevant period runs from 29 November 2012, the date Ms Rees is taken to have lodged her claim[7], to 28 February 2013.

   Posttraumatic stress disorder/depression

   [7]See s 4(1) of the Act. Ms Rees enquired about disability support pension on 29 November 2012 and lodged a claim on 30 November 2012.

7. In his report of 3 December 2012, Dr Lean stated that Ms Rees was diagnosed with “[posttraumatic stress disorder]/depression” by Ms Wendy Howarth, a clinical psychologist, at least 5 years ago. There is no report from Ms Howarth in the material before me although I note that Dr Lean indicated that Ms Howarth’s report could be provided on request[8]. Dr Lean described Ms Rees’ current treatment as[9],

   MHP [Mental Health Plan] Better Access Interventions

   GP supportive counselling

   Medication.

   The future treatment proposed was to continue counselling and support. Dr Lean reported that the condition had a functional impact on Ms Rees’ concentration and mood as well as an effect on her performance in a group setting, which, in his view, could be expected to persist for more than 2 years. He stated however that the impact of the condition during those two years was both uncertain and likely to fluctuate.

   [8]           Exhibit 1, page 66.

   [9]           Exhibit 1, pages 66-7.

8. Ms Rees commenced counselling sessions with Mr Mick Devlin, a social worker who specialises in mental health, in July 2013 under a mental health plan written by Dr Lean. It is obvious from the evidence of Ms Rees that Mr Devlin has been of considerable assistance to her. It is equally obvious that Ms Rees is presently in an emotionally fragile state. It would be unnecessarily intrusive to recount her evidence because ultimately resolution of the present issue does not turn on it.

9. The Secretary accepts that Ms Rees’ posttraumatic stress disorder has been fully diagnosed. For my part I am not so sure. But the Secretary submits that the condition has been neither fully treated nor stabilised. In support of that contention, the Secretary points to the fact that Ms Rees only commenced her counselling sessions with Mr Devlin in July 2013, well outside the relevant period. If I were to be satisfied however that the condition was fully diagnosed, treated and stabilised, the Secretary contends that the condition has no more than a moderate impact on Ms Rees ability to function.

10. Mental health function is assessed under Table 5 of the Determination. The Introduction to Table 5 requires a diagnosis of a mental health condition to be made by an appropriately qualified medical practitioner, which includes a psychiatrist, with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

11. There are reports of two psychologists mentioned in the material. The first is a report of Dr Howarth of unknown date purported to confirm a diagnosis of “[posttraumatic stress disorder]/depression” which was noted by Dr Lean in his report of 3 December 2013. As I have said, that report was not included in the material. The second is a report of Dr Jan Parr, clinical psychologist, of 25 August 2013 which confirms that Ms Rees meets the diagnostic criteria for posttraumatic stress disorder.[10] But that is not a diagnosis. In any event the report refers to Ms Rees’ symptoms in August 2013 and thus postdates the relevant period.

    [10]         Exhibit 1, pages 90-91.

12. The SSAT was not satisfied that Dr Lean’s diagnosis of posttraumatic stress disorder/depression was supported by evidence from a clinical psychologist or psychiatrist during the relevant period. I am likewise not satisfied. I find this to be particularly so in circumstances where the diagnosis of the medical practitioner is described as “PTSD/depression”. Such a description is not suggestive of a definitive diagnosis.

13. Further, as Ms Rees had not commenced treatment during the relevant period, I cannot be satisfied that her posttraumatic stress disorder/depression was fully treated or stabilised during the relevant period.

14. As Ms Rees’ posttraumatic stress disorder/depression was not fully diagnosed, treated or stabilised during the relevant period it cannot be assigned an impairment rating however for completeness I note that if the condition were capable of being assigned a rating, on the evidence before me, it could not warrant any more than 10 points under Table 5.

    Bilateral calcific tendonitis of shoulder and elbow

15. Dr Lean stated that Ms Rees suffers from pain, weakness and tenderness due to bilateral calcific tendonitis of the shoulders and elbows. That diagnosis was confirmed by Dr Anthony Houston, an orthopaedic surgeon. Ms Rees current treatment includes rest and physiotherapy, cortisone injections (which are administered by Dr Houston and provide relief for about 6 weeks at a time), anti-inflammatory medication and opioids[11].

    [11]         Exhibit 1, page 69.

16. The Secretary concedes that the tendonitis is fully diagnosed, treated and stabilised. What remains to be considered is the impairment rating of the condition.

17. The functional impact of the condition, according to Dr Lean, is problems with lifting and moving. He indicated that the severity of the condition fluctuates[12], describing her arms and shoulders as “a vulnerable part of her body ready to ‘flare’ at any moment.”[13]

    [12]         Exhibit 1, page 71.

    [13]         Exhibit 1, page 88.

18. That characterisation of the condition is support by the evidence of Ms Rees. She says that during relatively symptom-free periods she is able to do basic household chores as well as feed and shower herself, albeit slowly and with extra care. When her shoulders and elbows are causing her pain however she requires her children to help her with such tasks.

19. When questioned by the Secretary’s representative, Ms Rees indicated that she was able to pick up a cup of coffee and a carton of milk but uses one hand to steady the object in case her arm gives way. She also said that she is generally able to manipulate small objects and do and undo buttons. While at TAFE she used a laptop with a standard keyboard and modified mouse.

20. Upper limb function is assessed under Table 2 of the Determination. To be capable of being assigned a particular impairment rating under the Table, Ms Rees’ impairment must satisfy “most” of the descriptors for that impairment rating. Where an impairment falls between two impairment ratings, the lower of the two ratings must be assigned unless all the requirements of the higher level are met[14]. If an impairment fluctuates, the rating assigned must reflect the overall functional impact of the impairment, taking into account the severity, duration and frequency of the fluctuations[15].

    [14]         See s 11(1)(c) of the Determination.

    [15]         See s 11(4) of the Determination.

21. Although Ms Rees’ tendonitis was assigned an impairment rating of 10 points by the original decision-maker and on internal review, the SSAT was not persuaded that it warranted an impairment rating higher than 5 points. The Secretary submits that the SSAT’s assessment was correct.

22. The descriptors for those impairment ratings read:

    Points             Descriptors

    …

    5  There is a mild functional impact on activities using hands or arms.

    (1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

    (a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

    (b)       handling very small objects (e.g. coins);

    (c)       doing up buttons;

    (d)       reaching up or out to pick up objects.

    10                  There is a moderate functional impact on activities using hands or arms.

    (1)       The person has difficulty with most of the following:

    (a)       picking up a 1 litre carton full of liquid;

    (b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)       holding and using a pen or pencil;

    (d)       doing up buttons or tying shoelaces;

    (e)       using a standard computer keyboard;

    (f)         unscrewing a lid on a soft-drink bottle.

    …

23. The Introduction to Table 2 specifies that self-report of symptoms alone is insufficient when assigning an impairment rating and must be supported by corroborating evidence such as medical reports and assessments. On Dr Lean’s evidence, Ms Rees has difficulty lifting objects and moving, which is indicative of having difficulty picking up heavier objects and reaching up or out to pick up objects. Accordingly I am satisfied that, at best, Ms Rees satisfies most of the descriptors for an impairment rating of 5 points under Table 2. She does not satisfy most of the descriptors for an impairment rating of 10 points.

    Other conditions

24. In the initial decision and on internal review, consideration was given to Ms Rees’ asthma and bronchitis. It is agreed by both parties that Ms Rees’ asthma and bronchitis do not have any functional impact therefore I need not consider them.

25. Accordingly Ms Rees’ impairments only warrant an impairment rating of 5 points. In those circumstances she does not satisfy s 94(1)(b) of the Act and is therefore ineligible to receive disability support pension.

    Continuing inability to work

26. In light of that conclusion it is unnecessary to consider whether Ms Rees has a continuing inability to work.

    Conclusion

27. In light of my conclusions above Ms Rees was not qualified to receive disability support pension during the relevant period. It is open to Ms Rees to test her eligibility again once her posttraumatic stress disorder has been fully diagnosed, treated and stabilised. It would be in Ms Rees’ interest that any subsequent application be lodged with a medical report that addresses the disability support pension criteria and relevant impairment tables. I note that in his letter of 3 May 2013 Dr Lean stated, seemingly without knowledge of the statutory requirements, that Ms Rees qualified for disability support pension[16]. While this statement was undoubtedly made with the best of intentions, simply asserting that an applicant qualifies for disability support pension without demonstrating knowledge of the statutory criteria and how they are satisfied in the particular case is unhelpful.  It is likely to raise false expectations in an applicant such as Ms Rees.

    [16]         Exhibit 1, page 88.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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

Associate

Dated 23 December 2013

Date(s) of hearing	27 November 2013
Applicant	In person
Advocate for the Respondent	Ms J Forsyth, Program Litigation & Review Branch, Department of Human Services