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

[2016] AATA 132

Ryan and Secretary, Department of Social Services (Social services second review) [2016] AATA 132 (4 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3312
Re	Michele Ryan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	4 March 2016
Place	Perth

The Tribunal affirms the decision under review.

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Mr C Ermert, Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - qualification period - physical, intellectual or psychiatric impairments - whether impairments attracted a rating of 20 points or more - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94(1) – 94(1)(a) – 94(1)(b) – 94(1)(c) – 94(1)(d)

Social Security (Administration) Act 1999 (Cth) – ss 41 – 42 – Schedule 2
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth) – ss 6(3) – 6(4) – 6(5)

REASONS FOR DECISION

Mr C Ermert, Member

4 March 2016

INTRODUCTION

1. On 20 November 2014, Ms Ryan lodged a claim for Disability Support Pension (“DSP”) with Centrelink.  Centrelink is the service provider for the Department of Social Services, the Respondent. In her claim she listed Crohn’s Disease as her disability.

2. On 15 December 2014, a Centrelink officer determined that Ms Ryan was not qualified for DSP because her impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).  On 31 March 2015 a Centrelink authorised review officer (“ARO”) affirmed this decision.  Ms Ryan sought review of the ARO decision by the Social Security Appeals Tribunal (“SSAT”). On
   11 June 2015, the SSAT affirmed the ARO’s decision. 

3. This matter is a review of the SSAT decision.

   HEARING

4. At the hearing Ms Ryan represented herself and gave her evidence under affirmation. 
   Ms Sharon Sangha, a solicitor with Mills Oakley Lawyers, represented the Respondent. 

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”). 

6. For Ms Ryan I took in as evidence the following documents:

   ·Exhibit A1 – Facsimile from Ms Ryan dated 16 October 2015;

   ·Exhibit A2 – Letter from University Medical Practice dated 14 October 2015;

   ·Exhibit A3 – Discharge Summary from Sir Charles Gairdner Hospital dated 6 October 2015.

   ·Exhibit A4 – Patient Health Summary from Panaceum Group printed on 25 August 2015;

   ·Exhibit A5 – Report by Dr Greenfield dated 28 January 2015;

   ·Exhibit A6 – Report by Dr Greenfield dated 10 July 2015;

   ·Exhibit A7 – Report by Dr Greenfield dated 13 July 2015;

   ·Exhibit A8 – Medical Discharge Summary from Geraldton Hospital dated 10 August 2015;

   ·Exhibit A9 – Report by Dr Greenfield dated 24 July 2015; and

   ·Exhibit A10 – Report by Mr Menezes dated 24 July 2015.

7. For the Respondent I took in for consideration the Secretary’s Statement of Facts, Issues and Contentions dated 17 September 2015 (Exhibit R1).

   LEGISLATION

8. The legislation relevant to this matter is contained in the Social Security Act 1991 (“the Act”).

9. Section 94 of the Act relevantly prescribes qualification for DSP, as follows:

   (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;

10. A person’s impairment is assessed by reference to the Impairment Tables.

    QUALIFICATION PERIOD

11. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (“the Administration Act”) stipulate that the date for the determination of the claim is the date of the claim.  The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified. 

12. In this case the qualification period runs from 20 November 2014, the day on which the claim was lodged, to 20 February 2015. 

    ISSUES

13. The issues are whether, during the qualification period, Ms Ryan:

    ·had any physical, intellectual or psychiatric impairments; and, if so,

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·she had a continuing inability to work.

    EVIDENCE

14. In opening her evidence Ms Ryan contended that Crohn’s Disease should be assessed under Impairment Table 13 - Continence Function as it is a bowel disease and causes multiple impairments.

15. Responding to Ms Sangha’s questions regarding her functional ability Ms Ryan said that she:

    ·lives by herself;

    ·walks her dog;

    ·does her own shopping; the supermarket is only one minute’s drive away;

    ·lives in Geraldton and travelled to Perth by coach, a duration of about four hours;

    ·can travel by coach as they are equipped with toilets; and

    ·never travels anywhere unless she knows where the toilets are located.

16. Ms Ryan said that her condition is well managed and under control.  She has had the advice of a dietitian and has had to cut a lot of things from her daily diet.  Ms Ryan said she suffers flare-ups of her condition about every six weeks.  She said the flare-ups were always caused by stress.  She has had a number of consultation sessions with Dr Peter Watt, a psychologist.  She does not take medications to manage her condition but lives her life in as stress-free a manner as she can. 

17. Ms Ryan stated that she had participated in a trial conducted for patients with Crohn’s Disease.  Ms Ryan agreed that she has not been to a Clinical Psychologist as she has never been referred to one, but would have done so had she been referred.

18. In her submissions Ms Ryan said that her General Practitioner (GP), Dr Hofmeyr, referred her to Dr Greenfield to get her Crohn’s Disease under control.  Dr Greenfield referred her to Mr Geoffrey Menezes, a General Surgeon, whom she saw for the first time in July 2015.  She said that she could not see Mr Menezes during the qualification period as no appointments were available. 

19. Ms Ryan contended that she has done everything she can to go back to work.  She said she would really like to work but she knows her own capabilities.  She said she can no longer function, she has no energy or capacity to work, which adds to her depression.

    TRIBUNAL CONSIDERATIONS

    Does Ms Ryan have an Impairment? (section 94(1)(a)) of the Act

20. The Respondent concedes, correctly in my opinion, that during the qualifying period

    
    

    Ms Ryan had impairments from Crohn’s Disease, which satisfied the requirements of section 94(1)(a) of the Act. The concession is supported by medical evidence, and I find accordingly.

21. In her application for a review of the ARO decision Ms Ryan sought to include depression as a condition for consideration.  The SSAT considered depression in its findings.  The Respondent also includes consideration of depression as a condition in the Secretary’s Statement of Facts, Issues and Contentions.

22. I note the Medical Certificate dated 23 October 2014 (T-Documents T18, page 67) in which Dr Hofmeyr records the condition of Depression.  This condition was accepted for assessment by the JCA in the report dated 6 November 2014.

23. I accept that there is sufficient medical evidence to show that during the qualifying period Ms Ryan suffered from depression, thereby satisfying the requirements of section 94(1)(a) of the Act.

    Do the Impairments attract an Impairment Rating of 20 points or more?
    (section 94(1(b)) of the Act

24. I must now determine whether Ms Ryan’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

25. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

26. Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:

    (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.

27. I will consider each of the conditions in turn.

    Crohn’s Disease

28. In the Secretary’s Statement of Facts, Issues and Contentions the Respondent accepts that the Crohn’s Disease is fully diagnosed, treated and stabilised and that a rating can be applied from the Impairment Tables. There is considerable medical evidence to support this concession. I find that during the qualifying period the condition of Crohn’s Disease is permanent in the terms of the Act and an impairment rating can be applied to the condition.

29. Before considering the level of functional impairment I must first resolve the question of which table is to be applied.  Ms Ryan contends that Crohn’s Disease is a condition of the bowel and the resulting impairment should be assessed under Table 13 - Continence Function. 

30. Ms Sangha submitted that the appropriate table is Table 10 - Digestive and Reproductive Function.  In support of her submission Ms Sangha referred to the report of the Health Professional Advisory Unit dated 30 March 2015 (T-Documents T30, pages 125-127).  That report records discussions with Dr Hofmeyr in regard to the descriptors in Table 10.  The report records also that the case was discussed with Dr Armstrong who agreed with the recommendations.  Ms Sangha contends that the three doctors involved in the report accepted Table 10 as the appropriate table for the assessment of Ms Ryan’s impairments resulting from her Crohn’s Disease. She submits, therefore, that the Tribunal should also use Table 10 as the appropriate table for the assessment of Ms Ryan’s functional impairments.

31. There is no evidence of an opinion from a medical professional that Table 13 is the appropriate table for this assessment.  From the medical evidence I accept that the appropriate impairment table to be used in this assessment is Table 10 and find accordingly.

32. The Introduction to Table 10 provides that self-report of symptoms alone is insufficient and there must be corroborating evidence from medical professionals or the results of medical investigations.  The relevant corroborated evidence is contained in the following reports:

    ·Report of Dr Greenfield dated 1 October 2014 (T-Documents T17) which records:

    … she has not been particularly symptomatic except for this year and this was combined with severe stress with her family … I feel that at the moment she could see how she fares without any treatment.  If she relapses, we could restart her Prednisolone and then immunomodulation;

    ·JCA report dated 6 November 2014 (T-Documents T19) which records:

    MR Symptoms: nausea, pain, vomiting for last 2-3 months.  Currently largely improved.  MR Impact – recurrent abdominal discomfort.  During flares will get abdominal pain, nausea, diarrhoea.  Flares may last for several weeks;

    ·JCA report dated 11 December 2014 (T-Documents T20) which records:

    Moderate functional impact on work related or daily activities due to symptoms or personal care need … unable to sustain work activity or other tasks for more than 2 hours without a break … the person is often (once per month) absent from work, education or training activities due to the digestive system condition;

    ·Report of Dr Hofmeyr dated 12 November 2014 (T-Documents T21) which records:

    Impact on ability to function - … Digestive function impaired – leading to rectal bleeds and intermittent urinary incontinence.  This leads to depression and decreased functioning;

    ·Medical Certificate by Dr Hofmeyr dated 4 February 2015 (T-Documents T27) which records:

    Intermittent loose bloody stools, with abdominal pains;

    ·Report of the Health Professional Advisory Unit dated 30 March 2015 (T-Documents T30) which records:

    Review of historical medical evidence indicates that apart from irregular abdominal discomfort she was generally well with good bowel functioning (1-2 day).  She did however experience episodic flares of her symptoms … The most recent review by Dr Greenfield in January 2015 indicates that between October and January there was one episode of diarrhoea and vomiting … Dr Hofmeyr confirmed that when well the customer has reported regular daily bowel functioning and is “generally well, and when well could maintain part time work”.  A discussion was held around the descriptors for Table 10 and Dr Hofmeyr stated that when stable there is mild to moderate functional impact on digestive function … The functional impacts listed in the medical evidence and reported by the JCA Assessor and treating doctor best meet the descriptors for a moderate impairment rating of 10 points on Table 10;

    ·Report of Dr Greenfield dated 10 April 2015 (T-Documents T33) which records:

    So far as her Crohn’s disease is concerned, her abdomen seems to be fine with no symptoms and no diarrhoea and in discussion with Perth we feel that we should see how she goes and whether she has a relapse; and

    ·The response of Dr Greenfield to an HPAU questionnaire dated 8 June 2015 (T-Documents, page 141) which records:

    … to what extent overall, does her gastrointestinal condition impact her activities: Not sure at this point in time; Is her attention and concentration at a task frequently (at least once per hour) interrupted or reduced by pain or other symptoms or personal care needs: No;  Is she unable to sustain work activity or other tasks for a total of more than 3 hours a day even with regular breaks, due to symptoms: Probably not;  Would her condition affect the comfort or attention of co-workers: No;  Would she be frequently (twice or more per months) absent from work, education or training activities due to the Crohns condition: Maybe;  In respect of continence of the bowel, how frequently does this occur (daily, weekly): Continence is not a problem.

33. In the Secretary’s Statement of Facts, Issues and Contentions the Respondent concedes that the condition warrants an impairment rating of 10 points under Table 10.  I accept the corroborated evidence supports this concession and find accordingly.

34. I must now consider whether the impairment attracts a higher rating.  For a rating of 20 points Table 10 requires:

    (1)  At least two of the following apply to the person:

    (a)  the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

    (b)  the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;

    (c)  the person’s condition may affect the comfort or attention of co-workers;

    (d)  the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.

35. In considering the issue of attention and concentration ((1)(a)) I note the evidence of the HPAU that apart from irregular abdominal discomfort Ms Ryan is generally well with regular (1 to 2 a day) bowel functioning.  In his responses to the HPAU Dr Greenfield recorded that Ms Ryan’s attention and concentration were not interrupted at least once every hour.  I am not satisfied that there is evidence to support this descriptor.

36. In considering Ms Ryan’s ability to sustain work activities for a total of more than three hours a day I note the report of the JCA in T20 that Ms Ryan is unable to sustain activities for more than two hours without a break.  In the HPAU report T30 Dr Hofmeyr is recorded as saying that Ms Ryan is generally well and could maintain part time work. 

37. In his responses to the HPAU Dr Greenfield responded probably not to the question of whether Ms Ryan is unable to sustain work for more than three hours a day.  I accept that the double negative is unintended and that Dr Greenfield intended to respond that Ms Ryan is not able to sustain work for more than three hours a day.  However it is not clear that the responses relate to the qualifying period or Ms Ryan’s condition as at the date of the report. 

38. In this case I prefer the contemporaneous opinions of Dr Hofmeyr and those compiled by the JCA and find that Ms Ryan’s condition does not satisfy the requirements of descriptor (1)(b).

39. There is no evidence that Ms Ryan’s condition may affect the comfort or attention of other workers.  I find that the requirements of descriptor (1)(c) are not satisfied.

40. In regard to the issue of absence from work I note the report of the JCA which recorded the assessment that Ms Ryan is absent from work once a month.  In his June 2015 report Dr Greenfield recorded maybe in response to this issue.  However I note also Dr Greenfield’s earlier assessments that Ms Ryan’s abdomen is fine with no diarrhoea and that continence was not a problem.

41. From the evidence I am not satisfied that requirements of descriptor (1)(d) are satisfied. 

42. I find that none of the descriptors for a severe functional impact attracting 20 points are satisfied and find that Ms Ryan’s impairment from Crohn’s Disease rates 10 impairment points under Table 10.

    Depression

43. In the Secretary’s Statement of Facts Issues and Contentions the Respondent contends that this condition has not been fully diagnosed and as a result an impairment rating can not be applied.

44. The Introduction to Table 5 - Mental Health Function provides: “the 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).” 

45. There is no evidence of a diagnosis by a psychiatrist.  Ms Ryan’s evidence was that she attended counselling sessions with Mr Peter Watt, a psychologist.  Ms Ryan agreed that Mr Watt was not a clinical psychologist.

46. As the condition has not been diagnosed by a psychiatrist or other appropriately qualified medical practitioner with evidence from a clinical psychologist, I find that Ms Ryan’s depression has not been fully diagnosed.  As a result, the condition cannot be assessed for an impairment rating.

    Total Impairment Rating

47. For Ms Ryan’s conditions during the qualifying period, I have found the following levels of impairment:

    (a)Crohn’s Disease – 10 impairment points; and

    (b)Depression – not fully diagnosed, treated and stabilised – unable to assign an impairment rating.

48. Therefore, the total impairment rating at the qualifying date is 10 impairment points.

    CONCLUSION

49. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all of the sub-sections must be satisfied. Ms Ryan does not satisfy the requirements of section 94(1)(b) of the Act. As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.

1. The result is that during the qualifying period Ms Ryan was not qualified for DSP and I find accordingly.

2. If Ms Ryan’s conditions have changed since the qualifying period she is entitled to submit a new application for DSP with Centrelink at any time.

   DECISION

3. I affirm the reviewable decision.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

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Administrative Assistant

Dated 4 March 2016

Date of hearing	25 February 2016
Applicant	In person
Representative for the Respondent	Ms S Sangha
Solicitors for the Respondent	Mills Oakleigh Lawyers