Russell and Secretary, Department of Social Services (Social services second review)

[2020] AATA 4583

Russell and Secretary, Department of Social Services (Social services second review) [2020] AATA 4583 (13 November 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2859

Re:Marion Melinda Russell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:13 November 2020

Place:Sydney

I affirm the decision made by the Social Services & Child Support Division of this Tribunal on 9 April 2019 to affirm the Authorised Review Officer’s decision which had affirmed the primary decision to cancel Mrs Russell’s Disability Support Pension.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation - eligibility – whether impairments fully diagnosed, treated and stabilised – whether impairments attract 20 or more points – impairment tables – level of functional impact of impairment – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 94,

Social Security (Administration Act) 1999 (Cth) ss 63, 64, 80

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 3, 5, 6, 11

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

13 November 2020

The reviewable decision

1. Mrs Russell received Disability Support Pension (DSP) from 27 March 2007 until 2 July 2018 when Centrelink decided to cancel it following a medical eligibility review (the primary decision). The reason the DSP was cancelled was that Mrs Russell was not qualified for DSP because she did not satisfy s 94 of the Social Security Act 1991 (Cth) (the Act).[1]   I note that the impairment tables used to assess Mr Russell’s claim for DSP in 2007 were repealed and replaced on 1 January 2012 so the criteria had changed. 

   [1] Section 80 of the Social Security (Administration Act) 1999 (Cth) provides that the Secretary may cancel a person’s social security payment if that person is not qualified for that payment.

2. Mrs Russell unsuccessfully sought review of the primary decision by an Authorised Review Officer (ARO) and then review of the ARO’s decision by the Social Services & Child Support Division of this Tribunal (AAT1) which made its decision on 9 April 2019. I am reviewing the decision of AAT1 to affirm the ARO’s decision which had affirmed the primary decision to cancel DSP.

3. I have to decide:

   (a)whether the notice dated 7 July 2017 asking Mrs Russell to provide current medical evidence from her treating health professionals was valid[2]; and, if so,  

   (b)whether Mrs Russell was qualified for DSP on the day the primary decision was made, 2 July 2018. That is, did she satisfy the requirements of s 94 of the Act on that day.  (Emphasis added.)

   [2] T13/118-120.

   The regulatory regime

4. The regulatory regime comprises:

   ·the Social Security Act 1991 (the Act);

   ·the Social Security (Administration Act) 1999 (Cth) (the Administration Act);

   ·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables);[3]

   ·Departmental policy.

   Was the notice dated 7 July 2017 asking Mrs Russell to provide current medical evidence from her treating health professionals valid?

   [3] T3/18-82.

5. Section 63 of the Administration Act sets out in what circumstances and how the Respondent, the Secretary of the Department of Social Services (the Secretary) can require a person to do certain things. Relevantly, Mrs Russell was receiving DSP (s 63(1)(a)), the Secretary was of the opinion that she should provide information to the Secretary (s 63(2)(d)), the notice was given according to s 63(5), and it informed Mrs Russell that if she did not comply with the notice her payment may be stopped (ss 63(7) and 64).  The notice dated 7 July 2017 was valid.

   Did Mrs Russell satisfy s 94 of the Act on 2 July 2018?

6. Section 94 of the Act sets out the qualification criteria for DSP. Relevantly:

   (1)  the 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; ...

7. The Secretary concedes that Mrs Russell suffers from a number of conditions and accepts that she satisfies s 94(1)(a).

   Is Mrs Russell’s impairment 20 points or more under the Impairment Tables?

8. It is necessary to understand some definitions and terms of the Impairment Tables in order to apply them. 

9. Impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3).

10. The tables are function based, describe functional activities, abilities, symptoms and limitations and determine the level of functional impact of impairment (s 5(1)).

11. An impairment rating can only be assigned if the person’s condition causing that impairment is permanent, which means that it has been fully diagnosed, treated and stabilised (ss 6(3)(a) and (4)) and is more likely than not to persist for more than 2 years (s 6(3)(b)).  Other definitions will be referred to where relevant.

12. The following conditions are mentioned in the evidence:

    ·Epilepsy and aneurysms

    ·Vision condition

    ·Emphysema, Chronic Obstructive Pulmonary Disease (COPD)

    ·Liver function

    ·Hypertension

    ·Back pain 

    ·Hypercholesterolaemia

    ·Fractured right ankle

13. As Mrs Russell was not represented at the hearing, I will consider each of those conditions, although the Respondent did not specifically refer to hypertension and hypercholesterolaemia.

14. My task is to determine whether Mrs Russell satisfied the s 94 criteria on 2 July 2018. Much of the evidence came into existence after that date. Such evidence is relevant to the extent that it casts light on whether a particular condition was fully diagnosed, treated and stabilised on 2 July 2018, and if so, which, if any, rating should be assigned.

    Epilepsy and aneurysms (Table 15 - Functions of Consciousness)

15. A report dated 7 October 2003 from the Institute of Neurological Sciences, The Prince Henry and Prince of Wales Hospitals, described Mrs Russell’s admission from 19 August 2003 until 7 October 2003. Right front temporal craniotomy and clipping of post-communicating artery aneurysm was undertaken.

16. Dr Shaun Watson, neurologist, has been looking after Mrs Russell’s epilepsy and aneurysms since approximately 2004.  In his earliest report in evidence dated 19 February 2004, Dr Watson talked about gradually increasing the dosage of Tegretol. In his 27 February 2007 letter “To Whom It May Concern”, Dr Watson wrote that her episodes of epilepsy tend to be triggered by overheating and particularly by hot days when she needs to stay indoors and avoid overactivity.

17. In his 26 April 2018 report, Dr Watson referred to Mrs Russell’s background of several aneurysms of which the main consequence was epilepsy and that she had been on Tegretol since then and had not had a seizure for more than 12 years. To the best of his understanding there were no significant cognitive deficits and she had not complained of diplopia over the last several years.

18. Dr Jessica Ainge Allen’s report of 20 September 2017 provides a comprehensive history.  Mrs Russell had three neurosurgeries for five cerebral aneurysms between 1999 and 2013.  Multiple clips and a stent were present. The onset of epilepsy was in 2003. Mrs Russell’s last seizure was in 2015. Mrs Russell had reported that she had been advised by her neurologist not to travel on public transport alone and that her children assist her with grocery shopping.  She also reported that the possibility of having a seizure has prevented her from returning to work.

19. The Job Capacity Assessment (JCA) dated 3 May 2018 found epilepsy was fully diagnosed, treated and stabilised but assigned 0 points under Table 15 because Mrs Russell suffered no functional loss: Mrs Russell does not experience loss of consciousness or an altered state of consciousness during waking hours when occupied with a task or activity.

20. The JCA assessor remarked that Mrs Russell said that her last follow up with her neurologist was two months ago from the assessment date in November 2017, which would be around September 2017. She reported liver damage secondary to anti-convulsive medication (Tegretol) and therefore requires a medication review with a view to changing the current medication.

21. In her letter dated 5 July 2018, Dr Kristine Allen reported that Mrs Russell’s last seizure was in 2015.  A Medicare Health Assessment to which Mrs Russell consented on 8 January 2019 states both that her last seizure was in 2015 and last simple seizure at home was in 2016.  It does not explain whether they are different kinds of seizures.

22. The ARO spoke with Mrs Russell on 13 July 2018.  She stated that she could die at any minute from an aneurysm or seizure, that Dr Watson had recommended a change in medication and she was concerned that if she is no longer prescribed Tegretol she will be vulnerable to an aneurysm and seizures. She said that was unable to lift anything in case it caused an aneurysm or seizure and therefore has two carers.

23. In his letter dated 19 July 2018, Dr Watson wrote about having to lower Mrs Russell’s Tegretol level because of rising liver function tests and the likelihood of having to change her medication with all of the attendant risks and disruption to her routine.  He looked carefully back through her file and noted some minor seizures documented around 2006 when her Tegretol dose was increased and again up until 2010.  Nothing had been documented since then, but Mrs Russell considered that she had had a few minor seizures at home that she had not brought to his attention. Dr Watson considered her epilepsy to still be active and given current problems and the need to adjust her medication, he considered that there would be a fair risk that she would have seizures over the next six-month period before her next review.

24. A “Full Summary as at 20 August 2018” from the Aboriginal Medical Service Co-operative Ltd included Tegretol as the current medication for epilepsy and in the “Active” history listed cerebral aneurysm and epilepsy from 2004, stent – unspecified artery location right posterior communicating aneurysm in 2012, and seizures cerebral aneurysm and right MCA stent in 2016. Cerebral aneurysm in 1999 was listed under the heading “Inactive”.  

25. A Medicare Health Assessment provided under cover of a letter dated 20 February 2019 listed Mrs Russell’s last seizure in 2015 but also listed last simple seizure at home in 2016. It is unclear whether a doctor or nurse prepared the document but it was sent by Dr Priya Loomba, general practitioner, to Mrs Russell’s representative during the AAT1 appeal. The covering letter from Mrs Russell’s representative to AAT1 also said it had been prepared by Dr Priya Loomba.  In relation to epilepsy, the report apparently identified the risk factor:  Poor and reduced mobility, unable to perform self-care an[d] daily living tasks at home without supervision or assistance of one family member.

26. Dr Watson states the following in his report dated 18 September 2019. He has looked after Mrs Russell in relation to her epilepsy and aneurysms since approximately 2004.  She had been on Tegretol 200 mg bd for many years and had been stable from a neurological perspective.  There were concerning elevations of her liver function tests which led to her liver specialist recommending reducing the dose, which was done from 22 February 2019 over a period of six months to 100 mg twice daily.  So far there had been no major problems but the low dose definitely puts her at risk of experiencing further seizures.  Her liver function tests are still abnormal and it may be necessary to change her from Tegretol to another agent which would also put her at risk of further seizures and other medication side effect.

27. Dr Loomba’s report of 19 November 2019 assessed three conditions under the Impairment Tables.  She did not assess epilepsy.

28. At the hearing of this matter, Mrs Russell said that her last seizure was in 2016. She said that Dr Watson was going to change her medication but would not do it this year because of COVID-19.  Mrs Russell confirmed that heat, watching television or reading too long had caused seizures in the past

29. The reduced dosage of Tegretol Dr Watson talked about in his 18 September 2019 report had fortunately not resulted in seizures.  Although Mrs Russell is at risk of seizures, her epilepsy has been well controlled from 2015 or 2016 to the date of the hearing in 2020.  Mrs Russell’s epilepsy is permanent. However, there is no functional impact from loss of consciousness or an altered state of consciousness during waking hours when occupied with a task or activity.  The level of frequency of Mrs Russell’s seizures is less than that required to assign 5 points under Table 15.  Nil points must be assigned for epilepsy under Table 15.     

    Vision condition (Table 12 – Visual Function)

30. A discharge letter from Prince of Wales Hospital (POW) Emergency Department dated 10 June 2005 includes the following. Mrs Russell presented on that day with left side headaches. She has a background of cerebral aneurysms – two left aneurysms were clipped in 1999 and one right aneurysm was clipped in 2003. Mrs Russell suffers from residual left sided diplopia and an enlarged left pupil post aneurysm clipping. The consensus of the neurosurgical registrar and Associate Professor Marcus Stoodley as he was at the time was that her pain was almost certainly self-limiting, sinus-related.  She was to attend the neurosurgical outpatients the following week to ensure things had settled and to clarify medium-term imaging plans.

31. The JCA dated 23 March 2007 reported the following: 3rd Nerve Palsy resulting in restricted left eye movement. Previous surgery. It also states that the 1999 and 2003 surgery had caused a mild traumatic brain injury resulting in her conditions of epilepsy and heterotropia with diplopia, all directions of upward gaze.

32. In his 26 April 2018 report, Dr Watson wrote that to the best of his understanding there are no significant cognitive deficits and Mrs Russell has not complained of diplopia over the last several years. 

33. The JCA dated 3 May 2018 assigned this condition 0 points – no functional impact on activities involving visual function under Table 12. 

34. Steven Spirou, optometrist, provided a letter dated 15 November 2018 reporting that he examined Mrs Russell’s eyes on that day and found her left eye had a squint or “phoria” which means that looking in certain direction gives her double vision.

35. Dr Loomba addressed Table 12 in her 19 November 2019 report.  She listed the following:

    Since 1999

    Mild visual functional impairment

    Long term chronic mild loss and impairment of left eye function

    Reduced coordination and ability to move left eye

    Reduced visual fields of left eye

    functional vision is within the right eye only, but still mild impairment.

    Vision is corrected with glasses.

    She has double vision on and reduced lateral movements in her left eye, this is due to ocular nerve damage from her previous Cerebral aneurysm, impaired functional movement of: inferior oblique, superior and lateral rectus left eye muscle.

36. Mrs Russell gave the following oral evidence. She thought Mr Spirou was an eye specialist.  She sees her local doctor and Mr Spirou regarding her vision but there is nothing they can do.  She has not seen anyone other than Mr Spirou.  It is permanent.

37. It is not apparent what information Dr Loomba relied on when she prepared her report.  She may have had records from 1999 available. I accept that Mrs Russell has double vision/diplopia and that the condition is permanent based on the 2005 discharge report from POW.  I infer that Mrs Russell has not mentioned it to Dr Watson in the past several years because she has accepted that it is permanent and nothing can be done.  I have carefully considered Table 12.  It is not clear from the evidence how the diplopia affects Mrs Russel’s visual function.  I do not consider that she has a full field of vision as described in (1)(c) in relation to 0 points and therefore should not be assigned 0 points.  However, she did not complain of having mild difficulties seeing things at a distance or close up as required to be assigned for 5 points. Section 11(1)(c) of the Impairment Tables requires that the lower of the two ratings be assigned if the impairment falls between two impairment ratings.  0 points are assigned to Mrs Russell’s visual function.

    Emphysema, Chronic Obstructive Pulmonary Disease (COPD) (Table 1 – Functions requiring Physical Exertion and Stamina)

38. Dr Jessica Ainge Allen’s report dated 20 September 2017 listed a dosage of Ventolin “as necessary for cough wheeze or sob, via spacer if available”.  I infer that “sob” is an acronym of shortness of breath. No history of emphysema or COPD was listed.

39. Dr Kristine Allen recorded onset of COPD in October 2009 and the current medication Ventolin in her 5 July 2018 letter.

40. On 10 July 2018, the Applicant undertook a Pulmonary Function Report.

41. The ARO did not accept that Mrs Russell’s emphysema was permanent because it had not been fully diagnosed, treated and stabilised. She considered that the minimum standard of medical evidence was not provided to assess this condition.

42. The 2018 JCA noted that Mrs Russell reported a diagnosis of emphysema with onset in 2009 when she was hospitalised and had follow-up treatment at POW. Mrs Russell reported an improvement in her symptoms since cessation of smoking five years ago.  She reported that the condition had minimal impact on her functioning.

43. The “Full Summary as at 20 August 2018” from the Aboriginal Medical Service Co-operative Ltd listed COPD as an active condition from 2009 but no relevant medication.

44. Dr Loomba signed a medical certificate dated 22 August 2018 certifying the following.  Mrs Russell was unfit for work pending further medical review of her chronic lung disease. Recent spirometry had confirmed irreversible lung disease likely COPD. She was also diagnosed in 2009. She has a respiratory specialist review booked for 3 October. In letters dated 5 March 2019 and 26 March 2019 Dr Loomba discusses the statements in the August 2018 certificate and explained that there was confusion about how to treat Mrs Russell and whether there was a reversible component of the COPD or “mixed lung disease picture”.  She also stated that follow up lung functions tests at the GP practice “indicated some irreversibility”.

45. In a referral letter to the La Perouse Aboriginal Health Centre, Respiratory Clinic dated 26 March 2019, Dr Loomba reported that Mrs Russell had a lung function test at POW in 2009 indicating moderate airflow limitation with reversibility. Dr Loomba referred to later tests which led to her to be confused about appropriate treatment.

46. A Medicare Health Assessment provided in February 2019 noted that COPD was an issue and stated that the patient sees the lung clinic at POW and a steroid inhaler was prescribed by a doctor at the Aboriginal Medical Service Co-operative Ltd which the patient does not use.

47. Dr Sultana Syeda Aziza, respiratory and sleep physician, in response to the referral by Dr Loomba wrote reports dated 18 December 2018, 5 March 2019 and 29 March 2019. In the 18 December 2018 report Dr Aziza provided an “update” on Mrs Russell who she saw with symptoms of lower respiratory tract infection with bronchitis and wondered whether Mrs Russell has mild COPD with reversibility and chronic rhinosinusitis. Mrs Russell agreed to have puffers, which she had previously rejected and the doctor prescribed two. In her 5 March 2019 report Dr Aziza described Mrs Russell’s COPD as “mild”.  Mrs Russell’s legal representative stated in the email of 4 April 2019 to AAT1 that the 29 March 2019 letter was prepared after Mrs Russell’s most recent lung function tests. In that letter, Dr Aziza wrote that Mrs Russell suffers from “moderate COPD and emphysema for which she is on multiple puffers. Her major respiratory symptom from this is shortness of breath which limits her activity”.

1. A Lung Function Report dated 5 April 2019 and signed by Dr Nicholas Murray FRACP related to tests undertaken on 20 March 2019 where he concluded:

   Total lung capacity is reduced and vital capacity is decreased in proportion consistent with a restrictive process.  Vital capacity is reduced.  Airway function is within normal limits.  There is moderate impairment of gas exchange.  This value assumes a normal haemoglobin.

   There has been a significant decrease in vital capacity compared with previous results.

2. Dr Aziza stated in a brief report dated 18 April 2019 that Mrs Russell suffers moderate COPD and emphysema and that the latter is an irreversible condition.  Dr Aziza reviewed Mrs Russell on 27 June 2019 when she was suffering from a sinus infection. She gave the same diagnosis as in the 18 April 2019 report.  She did not describe the functional impact of the emphysema.

3. Dr Loomba issued a Centrelink Medical Certificate for the period 30 April 2019 to 30 July 2019 in which she stated that the date of onset of COPD/emphysema was 2009, it had worsened at the end of 2018, the condition was permanent but the prognosis was unclear. The symptoms were breathlessness with minimal exertional activity.  In the letter dated 30 July 2019 Dr Loomba listed in the history moderate COPD and emphysema confirmed in 2019 under Dr Aziza.

4. In her report of 19 November 2019 Dr Loomba set out a detailed description of Mrs Russell’s moderate functional impact on activities due to her emphysema and COPD according to Table 1. It concluded: COPD/Emphysema October 2009, Moderate level confirmed on review in several workups over 2019 and in June 2019.

5. Mrs Russell’s respiratory condition was investigated and a diagnosis determined after the DSP cancellation decision was made on 2 July 2018. It was not fully diagnosed, treated and stabilised and therefore was not permanent at that date.  No rating can be assigned to the condition.

   Liver function (Table 1 – Functions requiring Physical Exertion and Stamina)

6. In her report dated 20 September 2017, Dr Jessica Ainge Allen listed Fatty liver as an ongoing medical condition with regular follow up with Dr Strasser at the Liver Clinic at Royal Prince Alfred Hospital.  

7. In his letter dated 19 July 2018, Dr Watson wrote that Mrs Russell had a new problem with rising liver function tests and her Tegretol level (medication) was having to be lowered which put her at risk of further seizures and there was a likelihood that her medication would have to be changed with all the attendant risks and disruption to her routine.

8. Dr Simone Strasser wrote the following in a letter dated 5 December 2018.  She had been seeing Mrs Russell in her liver clinic at Royal Prince Alfred Hospital since 2015 and had last reviewed her in May 2018. Mrs Russell has “persistently elevated liver enzymes” and multiple likely causes for abnormal liver function including non-alcoholic fatty liver disease related to metabolic syndrome and obesity, a history of low to moderate alcohol consumption, and drug induced liver injury related to carbamazepine (Tegretol) which is required for seizure control. Mrs Russell complains of persistent tiredness and poor concentration and gets some abdominal discomfort.  Her symptoms related to liver disease have a moderate functional impact on her work-related activity.  She feels she is unable to work because of her overall condition. Mrs Russell had been last reviewed in May 2018.  Her condition will continue long term. 

9. A Medicare Health Assessment to which Mrs Russell consented on 8 January 2019 records that Fatty liver was one of her current issues.

10. In his report dated 18 September 2019, Dr Watson wrote the following.  Mrs Russell had been on Tegretol 200 mg bd for many years and had been stable from a neurological perspective.  There were concerning elevations of her liver function tests which led to her liver specialist recommending reducing the dose, which was done over a period of six months to 100 mg twice daily.  So far there had been no major problems but the low dose definitely puts her at risk of experiencing further seizures.  Her liver function tests were still abnormal and it may be necessary to change her from Tegretol to another agent which would also put her at risk of further seizures and other medication side effect.

11. I accept that on 2 July 2018 Mrs Russell had a permanent condition of abnormal liver function with multiple likely causes including drug induced liver injury related to Tegretol.  In July 2018 there was a new problem with rising liver function tests consequently managed in part by reducing her dosage of Tegretol.  I take into account Dr Strasser’s description of the functional impact on Mrs Russell and her assessment that it was moderate. She does not identify an Impairment Table as the basis for that assessment. She does not identify any descriptors from an Impairment Table. She does not refer to the impact of emphysema/COPD which Dr Loomba found to be moderate according to Table 1 but which I have found is not a permanent condition at 2 July 2018.  Further, Dr Loomba does not mention Mrs Russell’s liver condition in her letter of 19 November 2019 when she wrote: “A full comprehensive list of her diagnosis is below and specific comment in relation to her functional capacity” and addressed Table 1, Table 4 (spinal function) and Table 12 (visual impairment). 

12. I am not satisfied that the evidence supports a rating solely for Mrs Russell’s liver condition.

    Hypertension

13. Mrs Russell’s hypertension is longstanding.  The first reference in the evidence is in a report from Dr Wilfred Saw, Cardiologist, to Dr Sue Phon dated 3 July 2006.  At that time she was taking Coversyl. Dr Jessica Ainge Allen’s report of 20 September 2017 noted regular medications, Cartia and Coversyl to control blood pressure. Those medications were also included in Dr Kristine Allen’s letter dated 5 July 2018. 

14. The “Full Summary as at 20 August 2018” from the Aboriginal Medical Service Co-operative Ltd listed hypertension as active from 2004 and the current medication Coversyl as well as Aspirin.

15. I accept that Mrs Russell’s hypertension has been fully diagnosed, treated and stabilised. It is permanent. Dr Loomba did not assess hypertension under the Impairment Tables in her 19 November 2019 report. There is no suggestion in the evidence that hypertension results in a functional impact.  A zero rating must be assigned.[4]

    [4] Section 11(5) of the Impairment Tables.

    Hypocholesterolaemia

16. Dr Kristine Allen recorded hypercholesterolaemia under Past History in her letter dated 5 July 2018 and current medication Crestor.  The “Full Summary as at 20 August 2018” from the Aboriginal Medical Service Co-operative Ltd sets out Mrs Russell’s medical history and medications.  Neither hypercholesterolaemia nor Crestor was listed. A Medicare Health Assessment for which consent was given on 8 January 2019 listed hypercholesterolaemia as a current issue and Crestor as a medication. It listed hypertriglyceridaemia from 29 November 2018.  It is not clear that hypocholesterolaemia had been fully diagnosed, treated and stabilised on 2 July 2018.  In any event, the evidence does not suggest that the condition has a functional impact on Mrs Russell. Dr Loomba did not assess it against the Impairment Tables in her report of 19 November 2019. A zero rating must be assigned.[5]

    [5] Ibid.

    Back pain

17. A Discharge Referral Note from Prince of Wales Emergency Department states that Mrs Russell was discharged on the same day as admission, 21 February 2018, with a diagnosis of low back pain.  The history taken was:

    ·lower back pain right sacroiliac region with no radiation;

    ·The onset was the previous day with no trauma.

18. In her letter of 19 November 2019, Dr Loomba addressed Table 4.  She recorded the onset of chronic degenerative disease in September 2019.  She recorded right back pain and acute back pain exacerbation on 4 September 2019 and mild scoliosis, lumbosacral degenerative changes on 17 September 2019.  I infer that Dr Loomba arranged imaging of Mrs Russell’s back after the back pain reported on 4 September 2019 and it was on that basis that she listed the pathology noted on 17 September 2019.  I conclude that the condition had not been fully diagnosed as at 2 July 2018.  No rating can be assigned to that condition.  

    Fracture of right ankle

19. A Medicare Health Assessment for Mrs Russell for which she gave consent on 8 January 2019 identified a fall in October 2018 at Prince of Wales Hospital which resulted in a fracture of the right ankle.

20. Dr Loomba signed a Centrelink Medical Certificate on 29 August 2018 which stated that Mrs Russell had a fractured fibula right ankle with a date of onset of 17 August 2018. The condition was temporary.  Mrs Russell was unfit for work/study from 17 August 2018 to 5 October 2018.

21. A medical certificate dated 22 August 2018 from the Fracture Clinic at Prince of Wales Hospital from the orthopaedic registrar certified that Mrs Russell attended as an outpatient on 22 August 2018 and would be unfit for work/usual activities from 22 August 2018 to 30 September 2018.  I infer that this relates to her fracture of the right ankle which occurred on 17 August 2018, that is after the date of cancellation. In any event the evidence is that it was a temporary condition.  This condition is not relevant to this decision.

    Other evidence

22. Mrs Russell provided an undated letter from the Chief Executive Officer of Wyanga Aboriginal Aged Care Program Inc who stated that Mrs Russell had been a client of that organisation since July 2009 on their Home Care Package Program (My Aged Care).  She received care within the home weekly to assist with domestic duties and shopping excursions.  A letter dated 8 February 2019 signed by the client service coordinator of the same organisation provided similar information and stated that Mrs Russell had been a client on the Home Care Package Program (My Aged Care) since November 2003. That information does not assist to determine the functional impairment Mrs Russell suffers from any permanent medical condition.

    Conclusion

23. For the above reasons, Mrs Russell’s permanent conditions warrant a total of 0 points under the Impairment Tables and therefore she did not satisfy s 94(1)(b) of the Act and was not qualified for DSP on the day the primary decision was made, 2 July 2018, more than two years ago.

24. My decision does not prevent Mrs Russell from applying for DSP again now or at any point in the future and providing up-to-date evidence about her current conditions and their functional impact upon her assessed according to the Impairment Tables.

    DECISION

25. I affirm the decision made by the Social Services & Child Support Division of this Tribunal on 9 April 2019 to affirm the Authorised Review Officer’s decision which had affirmed the primary decision to cancel Mrs Russell’s Disability Support Pension.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 13 November 2020

Date of hearing:	16 April 2020
Solicitors for the Respondent:	Ms B Erak, Services Australia