Reubens-Ippaso and Secretary, Department of Social Services

[2013] AATA 911

[2013] AATA 911  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2237
Re	Jillian Reubens-Ippaso
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Amanda Frazer, Member
Date	16 December 2013
Place	Perth

Decision Summary

The Tribunal affirms the decision under review.

...(Sgd) Dr A Frazer..................

Dr Amanda Frazer, Member

CATCHWORDS

Social Security - Disability Support Pension - Whether the Applicant’s Condition is Fully Diagnosed Treated and Stabilised - Whether the Applicant's Condition Attracts 20 Points or more on the Impairment Tables

LEGISLATION

Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr Amanda Frazer, Member

16 December 2013

INTRODUCTION

1. Ms Ruebens-Ippaso (“the applicant”), who is 52 years of age, lodged a claim for Disability Support Pension (DSP) on 12 October 2012 for her chronic back pain, diabetes and incontinence. On 8 November 2012, Centrelink rejected the applicant’s claim for DSP, concluding that the conditions were not fully diagnosed, treated and stabilised.

2. On 18 February 2013, A Centrelink Authorised Review Officer (ARO) affirmed the decision to reject the applicant’s claim for DSP.

3. On 15 April 2013, the SSAT affirmed the decision to reject the applicant’s claim for DSP.

4. On 8 May 2013, the applicant applied for review to this Tribunal.  

   THE RELEVANT LEGISLATION

5. The conditions which must be satisfied before a person is qualified for DSP are set out in s 94 of the Social Security Act 1991 (Act). The section relevantly provides:

   (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;

6. The impairment tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (IT Determination).

7. Section 6 of the IT Determination provides, in part, as follows:

   …

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   (c) the condition has been fully stabilised; and

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

   (b) what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b) the person has not undertaken reasonable treatment for the condition and:

   (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   …

8. Table 4 of the IT Determination provides:

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)      The person can:

(a)      bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)      turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

30

There is an extreme functional impact on activities involving spinal function.

(1)      The person is:

(a)      completely unable to perform activities involving spinal function; or

(b)      unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).

1. The Social Security (Administration) Act 1999 (Administration Act) provides that the start date for DSP is the date that the claim is made (see ss 41, 42 and sch 2 cl 3). Under sch 2 cl 4(1) provides:

   (1) If:

   (a) a person … makes a claim for a relevant social security payment; and

   (b) the person is not, on the day on which the claim is made, qualified for the payment; and

   (c) … the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d) the person becomes so qualified within that period; the claim is taken to be made on the first day on which the person is qualified for the social security payment.   

   THE EVIDENCE

2. The evidence before the Tribunal comprised of:

   ·The T Documents lodged by the Respondent

   ·A1. Letter from applicant to AAT, 19 September 2013.

   ·A2. Letter from Dr Chapman to Centrelink, 11 September 2013

   ·A3. Appointment letter for applicant from Job Services Australia, 18 August 2010

   ·Letter from President, Returned Services League, 13 May 2011

   The applicants evidence

3. The applicant said she lives independently at home and drives a car. Her friend and daughter visit and help her with heavy house duties. She has had back pain since around 2009. She had an MRI in March 2012 which showed a shallow disc protrusion and some impingement of the left nerve root.

4. The applicant has seen many specialists and tried treatment over the years. This has been physiotherapy, analgesics and physiotherapy. She has seen neurosurgeons at SCGH and is undergoing treatment at the Pain Clinic. The applicant said a nerve sleeve injection was offered however there was no guarantee by the Surgeon that this would improve her pain. The applicant said she has declined this procedure. Similarly, the applicant has declined neurosurgery as the Surgeon outlined there was no guarantee of improvement and there are associated risks of surgery.

5. Overall, the applicant said her low back pain has improved. The applicant said she thought this may be because she has lost a significant amount of weight by watching her diet because of her diabetes. The applicant told the Tribunal that on the day of the Hearing she could bend over to pick something up from the floor. She walks in the pool at least weekly and would go more frequently aside from the cost.

6. The applicant does volunteer work at the local RSL. 

7. The applicant said her diabetes is controlled with diet, exercise and medication and does not cause any functional impairment. The applicant said she has not had her incontinence medically assessed. 

   THE MEDICAL EVIDENCE

8. Report by Dr Mahindu (Neurosurgical Registrar) dated 3 April 2012.

   The report states the applicant had normal strength and power in all of her lower limbs. The applicant had normal sensation and her reflexes in her knees were normal. The applicant could walk on her heels and her toes, and is able to squat and stand up from a squatting position. The recent MRI that confirms a disc protrusion at L4/L5.

9. Report by Dr Austerberry, dated 16 September 2013.

   The report states it is reasonable that the applicant has declined the nerve root sleeve injection as the procedures can have mixed outcomes.  The report states that the  past and current treatment has been conservative (analgesia) and that future treatment will be a review by the chronic pain team.

10. Job Capacity Assessment Report (JCA) on 22 October 2012.

    The JCA considered the applicant’s chronic lower back pain to be fully diagnosed. The JCA detailed the function impacts of the applicant’s chronic lower back and reported:

    ·The applicant has disrupted sleep due to pain and repositioning

    ·The applicant’s walking and standing tolerance reduced to 15-20 minutes

    ·The applicant advised that her exercise is restricted to using a stepper for 10-15 minutes

    ·The applicant may be in bed for days if she turns the wrong way to pick up a light object

    ·The applicant attends the shops each day for short time rather than doing a weekly shop

    ·The applicant attends to her housework in a piecemeal fashion

    ·The applicant drives locally only

    ISSUES

11. The issues before the Tribunal are:

    (a)Whether the applicant has any impairments for the purposes of s 94(1) of the Act

    (b)Whether the applicant’s impairments attract 20 points or more under the Impairment Tables

    (c)Whether the applicant has a continuing inability to work

12. The Tribunal finds that the Relevant Period to assess these issues is 12 October 2012 to 18 January 2013.

    ANALYSIS

    Lower Back Condition

13. It is common ground that, at all material times, the applicant has low back pain and degenerative disc disease, which is an impairment within the meaning of para (a) of s94(1) of the Act. 

    ·The Tribunal then considered whether the Applicant’s lower back condition is fully diagnosed, treated and stabilised for the purposes of assigning an Impairment Rating. The Tribunal does not consider the applicant’s low back impairment is fully stabilised. The Tribunal accepts the impairment has been fully diagnosed and that the applicant’s decision not to undergo any surgical procedures is reasonable. However, the Tribunal notes that the applicant said her low back pain has considerably improved since diagnosis. This may be because the applicant has lost a significant amount of weight. Also the applicant is under review by the Pain Management Clinic and further improvement in function may be possible. Therefore, the Tribunal considers the back impairment is not adequately stabilised at this time, such that it can be considered permanent. This impairment therefore does not attract a rating under the Impairment Tables.

    Diabetes and Incontinence

14. The Tribunal finds that there is inadequate evidence provided to assess whether the applicant’s Diabetes and Incontinence are fully diagnosed or treated.

    CONCLUSION

15. The applicant therefore does not satisfy para (b) of s94(1) of the Act.

16. As the applicant does not satisfy para (b) of the s94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s94 (1) of the Act.

    DECISION

17. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of

....(Sgd) T Freeman....................

Associate

Dated 16 December 2013

Date(s) of hearing	20 September 2013
Applicant	In person
Representative for the Respondent	Ms S Yik Long
Solicitors for the Respondent	Australian Government Solicitor