Rybarczyk; Secretary, Department of Social Services and

[2016] AATA 1066

Rybarczyk; Secretary, Department of Social Services and [2016] AATA 1066 (1 December 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6627
Re	Secretary, Department of Social Services
APPLICANT
And	Deborah Rybarczyk
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	1 December 2016
Date of written reasons	22 December 2016
Place	Brisbane

I set aside the decision under review and in substitution decide that the respondent does not qualify for disability support pension.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical and psychiatric impairments – whether claimant’s conditions are permanent – whether claimant has undertaken reasonable treatment – whether claimant’s impairment is of 20 points or more under the Impairment Tables – whether claimant has a continuing inability to work – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2, s 4

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

22 December 2016

INTRODUCTION

1. This is a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the SSCSD”) dated 11 November 2015. On that date, the SSCSD set aside the decision under review and referred the matter back for reconsideration in accordance with a direction that Ms Deborah Rybarczyk (“the respondent”) satisfied paras 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (“the Act”) as at 26 May 2015.[1]

   [1] Exhibit A, T-Documents, T2.

   BACKGROUND

2. On 26 May 2015, the respondent lodged a claim for a disability support pension (“DSP”).[2] The claim was made in respect of bilateral carpal tunnel, sciatica and depression conditions.[3]

   [2] Exhibit A, T-Documents, T9.

   [3] Ibid at p. 109.

3. On 13 July 2015, the respondent’s claim for DSP was rejected. The basis for the decision was that the respondent’s impairment was not of 20 points or more under the Impairment Tables.[4] The respondent sought a review of the decision to reject her DSP claim.

   [4] Exhibit A, T-Documents, T12.

4. On 8 September 2015, an authorised review officer (“ARO”) found that the decision to reject the respondent’s DSP claim was correct.[5] The basis for the decision was that the respondent’s bilateral carpal tunnel and depression conditions were not fully diagnosed, treated and stabilised; the respondent’s impairment was not of 20 points or more under the Impairment Tables; and the respondent did not have a continuing inability to work.[6] The respondent sought a review of the ARO’s decision.

   [5] Exhibit A, T-Documents, T15.

   [6] Ibid at p. 147.

5. On 11 November 2015, the SSCSD set aside the decision under review and referred the matter back for reconsideration in accordance with a direction that the respondent satisfied paras 94(1)(a), (b) and (c) of the Act as at 26 May 2015.[7] The SSCSD assigned 20 points to the respondent’s bilateral carpel tunnel syndrome under Table 2 of the Impairment Tables.[8] The SSCSD also found that the respondent had a continuing inability to work.[9]

   [7] Exhibit A, T-Documents, T2.

   [8] Ibid at pp. 6-7.

   [9] Ibid at p. 8.

6. On 18 December 2015, the Secretary of the Department of Social Services (“the applicant”) sought a review of the decision of the SSCSD with this Tribunal. The applicant stated that the reason for the application was that the SSCSD erred in finding that the respondent’s carpel tunnel condition was fully diagnosed, treated and stabilised and that the respondent satisfied paras 94(1)(b) and (c) of the Act at the date of claim.

   CONTENTIONS

7. The applicant contends that the relevant period for assessing the respondent’s eligibility for DSP is from 26 May 2015 to 26 August 2015 (“the relevant period”), being the date the respondent lodged her claim to 13 weeks thereafter. The applicant contends that the Tribunal can only consider the respondent’s qualification for DSP within the relevant period.

8. Both parties are in agreement that the respondent had impairments arising from her conditions in the relevant period.

9. The respondent contends that her depression, carpel tunnel and spinal conditions were fully diagnosed, treated and stabilised within the relevant period. She contends that the report of Dr Minogue should be given minimal weight on the basis that he “has been very selective in the information he has written in his report and failed to mention any facts, neither the operations I have had nor the sensitivity to medications that have affected my health detrimentally”.[10]

   [10] Exhibit E, Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2015.

10. The applicant contends that the respondent’s depression condition was not fully diagnosed by an appropriately qualified medical practitioner within the relevant period. The applicant contends that the respondent has not undertaken reasonable treatment for her carpel tunnel and spinal conditions.

11. The respondent contends that she has a continuing inability to work. She contends that the Job Capacity Assessor who assessed her in 2011 failed to take into account her former relationship which she was required to leave as a result of domestic violence.[11]

    [11] Exhibit E, Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2015.

12. The applicant contends that the respondent did not have a continuing inability to work within the relevant period. They contend that the respondent did not actively participate in a program of support within the relevant period. They further contend that the applicant’s work capacity with intervention was 15 to 22 hours per week or at least 30 hours per week when taking into account only her fully diagnosed, treated and stabilised conditions.

    LEGISLATIVE FRAMEWORK

13. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria necessary to qualify for DSP. Section 4(1) of Sch 2 to the Social Security (Administration) Act 1999 (Cth) provides that whether or not a claimant qualifies for DSP is to be assessed at the period between when the claim for DSP was lodged and 13 weeks after that date.

14. The first criterion, set out under s 94(1)(a) of the Act, requires that the claimant has a physical, intellectual or psychiatric impairment.

15. The second criterion, set out under s 94(1)(b) of the Act, requires that the impairment be assigned an impairment rating of 20 points or more. This test is completed by reference to the Impairment Tables set out in Pt 3 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).

16. Section 6(3) of the Determination provides that an impairment can only be assigned an impairment rating if the condition causing the impairment is permanent and the impairment is likely to persist for more than two years. Section 6(4) of the Determination provides that a condition is permanent if it is fully diagnosed, treated and stabilised, and is likely to persist for more than two years.

17. Section 6(5) of the Determination provides that the following are relevant to determining whether a condition has been fully diagnosed and treated by an appropriately qualified medical practitioner:

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

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

    (c)whether treatment is continuing or is planned in the following two years.

18. Section 6(6) of the Determination provides that a condition has been fully stabilised if:

    (a)the claimant 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 claimant to undertake work in the next 2 years; or

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

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

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

19. Section 6(7) of the Determination defines reasonable treatment as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

20. The third criterion, set out under s 94(1)(c)(i) of the Act, requires that the applicant have a continuing inability to work. Section 94(2) provides that a person has a continuing inability to work because of an impairment if:

    (aa)  in a case where the person's impairment is not a severe

    
    

    impairment within the meaning of subsection (3B) or the person

    
    

    is a reviewed 2008-2011 DSP starter who has had an

    
    

    opportunity to participate in a program of support--the person

    
    

    has actively participated in a program of support within the

    
    

    meaning of subsection (3C), and the program of support was

    
    

    wholly or partly funded by the Commonwealth; 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.

21. A claimant is not required to complete a program of support if they have a severe impairment within the meaning of s 94(3B) of the Act, namely, an impairment of 20 points or more are under a single Impairment Table.

    CONSIDERATION

    Does the respondent have a physical, intellectual or psychiatric impairment?

22. There is no issue that on the date of claim the respondent had physical and psychiatric impairments for the purposes of s 94(1)(a) of the Act.

    Do the respondent’s impairments attract 20 points or more under the Impairment Tables?

    Lower limb condition

23. Dr Couzens, orthopaedic hand surgeon, in his report dated 23 November 2004 has diagnosed the respondent with bilateral carpel tunnel syndrome and recommended further assessment of the condition by nerve conduction studies for the purposes of surgical release.[12]  There is evidence that Dr Reid had arranged for nerve conduction studies in 2004 but the respondent did not want to proceed with surgery.[13] Dr Thiele, Chairman of the Division of Surgery, advised in his letter dated 29 August 2005 that the respondent did not want to proceed with carpel tunnel release and had requested to be removed from the surgical waiting list.[14] Dr Doneley, Director of the Orthapaedic Department, in his letter dated 3 September 2013 had requested Dr Ryan to arrange for further nerve conduction studies but this had not been done.[15] 

    [12] Exhibit B, Supplementary T-Documents, ST56.

    [13] Exhibit A, T-Documents, T5.

    [14] Exhibit B, Supplementary T-Documents, ST57.

    [15] Exhibit B, Supplementary T-Documents, ST61.

24. The respondent has given evidence that she does not want to undergo carpel tunnel release. In a report dated 12 November 2015 Dr Fitzpatrick, orthopaedic surgeon, advised Dr Patel that the respondent “really doesn’t want any treatment for these symptoms despite quite marked wasting of the thenar musculature”.[16]

    [16] Exhibit B, Supplementary T-Documents, ST46

25. Dr Minogue, specialist occupational physician, in his report dated 15 April 2016 has reviewed the medical reports concerning the lower limb condition. I accept the assessment of Dr Minogue who is of the opinion that the refusal of carpel tunnel surgery is not reasonable assuming that the related symptoms are sufficiently troublesome to her. Dr Minogue considers that carpel tunnel surgery is a minor procedure, very safe and has a very high success rate.[17] The condition cannot be regarded as fully stabilised when the applicant has not undertaken reasonable treatment for the condition.[18] In these circumstances the lower limb condition cannot be assigned an impairment rating as the condition cannot be regarded as permanent within the meaning of s 6(4) of the Determination.

    [17] Exhibit C, Medical report of Dr Minogue, specialist occupational physician, dated 15 April 2016 at p. 4.

    [18] See Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 subs 6(6) and (7).

    Spinal condition

26. The medical report from Dr Ryan that was lodged with the claim for DSP does not refer to any spinal condition.[19] However, in his letter of 28 July 2015 Dr Patel has identified that the respondent has lumbar back pain.[20] It appears from a report of Dr Taylor, neurosurgical PHO, dated 8 September 2016 that the respondent had a fall after the relevant period.[21]

    [19] Exhibit A, T-Documents, T10.

    [20] Exhibit A, T-Documents, T14. 

    [21] Exhibit F, Report of Dr Taylor, neurosurgical PHO, dated 8 September 2016.

27. I am unable to assign an impairment rating to the spinal condition as it was not fully diagnosed, treated and stabilised in the relevant period. The introduction to Table 4 provides that examples of corroborating evidence in regard to functional impairment include a report from a medical specialist confirming the diagnosis as well as a report from a physiotherapist or rehabilitation practitioner confirming loss of range of movement. Dr Ryan in his clinical note entry of 23 May 2015 records that the chiropractor of the respondent has confirmed that she has a good range of movement except for flexion.

28. It was only after the relevant period had expired that the respondent had an initial specialist assessment on 22 October 2015 by Dr Cooke who examined her range of movement and referred her for further MRI investigation which recommended surgical procedures have not been carried out on the spinal condition.[22]

    [22] Exhibit B, Supplementary T-Documents, ST55 at p. 136.

29. The respondent appears to have been assisted by taking Gabapetin as Dr Sharma reported on 22 February 2016 that the respondent is “quite happy with the relief of her symptoms”.[23] However, there is some inconsistency when Dr Taylor has recently reported that the respondent is not happy taking Gabapetin.

    [23] Exhibit B, Supplementary T-Documents, ST54 at p. 129.

30. The spinal condition was not fully treated within the relevant period. On 15 February 2016, Dr Sharma, rehabilitation physician, recommended cortisone injections at the right L5 nerve root and the right L5/S1 facet joint, there is no evidence that this procedure has been undertaken.[24] Dr Minogue has pointed out that a surgical procedure such as unilateral or bilateral formaminotomy in cases of nerve root compression can relieve nerve root compression.[25] It is also apparent from the reports of Dr Cooke and Dr Taylor that the respondent should pursue weight loss in view of her obesity. Dr Taylor considers that intervention would be complicated by her obesity. In these circumstances the spinal condition cannot be assigned an impairment rating as the condition cannot be regarded as permanent within the meaning of s 6(4) of the Determination.

    [24] Exhibit B, Supplementary T-Documents, ST54 at pp. 129-130.

    [25] Exhibit C, Medical report of Dr Minogue, specialist occupational physician, dated 15 April 2016 at p. 5.

    Mental health condition

31. I am not satisfied within the relevant period that the respondent’s mental health condition was fully diagnosed and treated by an appropriately qualified medical practitioner for the purposes of s 6(5) of the Determination.

32. The treating doctor’s report of 24 May 2015 refers to a depression condition that had an onset in 2015.[26] The treatment for the condition was listed as Pristiq. On 4 June 2015 the respondent was referred to a psychologist for treatment under a mental health plan.[27] In the circumstances I do not consider that the mental health condition was fully treated and stabilised within the relevant period. The treatment of the mental health condition only commenced after the applicant sought DSP.

    [26] Exhibit A, T-Documents, T10 at p. 131.

    [27] Exhibit B, Supplementary T-Documents, ST32 and 33.

33. Ms Axford, clinical psychologist, in her report of 18 September 2016 has given her opinion that the respondent has “(l)ong term Post Traumatic Stress Disorder”. Ms Axford does not give a date of onset of this condition in her report.[28]

    [28] Exhibit G, Report of Ms Axford, clinical psychologist, dated 18 September 2016.

34. For a number of reasons I am not satisfied that the respondent has had a long-term PTSD disorder. Dr Ryan in his treating doctor’s report states that the onset of the mental health condition of the respondent was in 2015 and so there could not be a long-term condition.[29] Dr Patel referred the respondent to Ms Hand, psychologist, for an opinion regarding mental health issues on 4 June 2015.[30] While Ms Hand initially stated in 2015 that she was “confident” of a diagnosis of PTSD, later in 2016 she made no such diagnosis and restricted her diagnosis to one of major depressive disorder. Ms Axford in her report refers to a number of distressing allegations.[31] There are no such allegations in the clinical notes of Dr Ryan who in his entries refers to relationship issues with the partner of the respondent. Even if the diagnosis of PTSD is correct, there is no evidence that the condition was fully treated and fully stabilised as required by the Determination. In these circumstances the depression condition cannot be assigned an impairment rating as the condition cannot be regarded as permanent within the meaning of s 6(4) of the Determination.

    [29] Exhibit A, T-Documents, T10 at p. 131.

    [30] Exhibit B, Supplementary T-Documents, ST33

    [31] Exhibit G, Medical report of Ms Axford, clinical psychologist. Dated 18 September 2016.

    Foot condition

35. The treating doctor’s report of 24 May 2015 did not refer to the foot condition of the respondent.[32] This plantar fasciitis condition is referred to in the report of Dr Patel dated 20 September 2016.[33] I cannot assign an impairment rating to this condition as the condition has not been treated and stabilised within the relevant period. It was only on 2 June 2016 that the respondent attended a hospital for the fitting of orthotics.[34]

    [32] Exhibit A, T-Documents, T10.

    [33] Exhibit H, Medical report of Dr Patel, general practitioner, dated 20 September 2016.

    [34] Exhibit D, Respondent’s submissions dated 10 June 2016 with attachments at attachment F.

    Asthma

36. The treating doctor’s report of 24 May 2015 did not refer to the asthma condition of the respondent.[35] This condition is referred to in the report of Dr Patel dated 20 September 2016 in which he states that the respondent is treated with Seretide and Ventolin.[36] I adopt the recommendation of Dr Minogue that this condition be allocated 5 points under Table 1.[37]

    [35] Exhibit A, T-Documents, T10.

    [36] Exhibit H, Medical report of Dr Patel, general practitioner, dated 20 September 2016.

    [37] Exhibit C, Medical report of Dr Minogue, specialist occupational physician, dated 15 April 2016 at p. 5.

    Total impairment rating

37. In summary, the respondent has a total of 5 points under the Impairment Tables and, therefore, is not eligible to received DSP because she did not satisfy s 94(1)(b) of the Act.

    Does the respondent have a continuing inability to work?

1. Within the relevant period the respondent was not eligible to receive DSP because she did not satisfy s 94(1)(c) of the Act.

2. The respondent was unable to offer any evidence which directly challenged the conclusions in the JCA report that assessed her as having a capacity of 15 to 22 hours per week within two years with intervention.[38] That report is in my opinion a fair and balanced report of the work capacity of the respondent. Dr Minogue has also reported that the respondent can work for 15 hours per week within two years with intervention.[39] In reliance on those reports I find that the respondent did not have a continuing inability to work within the relevant period.

   [38] Exhibit A, T-Documents, T11 at p. 139.

   [39] Exhibit C, Medical report of Dr Minogue, specialist occupational physician, dated 15 April 2016 at p. 5.

3. The respondent does not have a severe impairment and does not satisfy s 94(2)(aa) of the Act having not participated in a program of support for the required 18 month period.

   CONCLUSION

4. Within the relevant period the respondent was not eligible to receive DSP because she did not satisfy s 94(1)(b) of the Act having a total impairment rating of 5 points under the Impairment Tables. Moreover, she did not satisfy s 94(1)(c) of the Act because she did not have a continuing inability to work. I consider that it was fair for the respondent to be given an exemption from the activity test to enable her have treatment for her various conditions.

5. I would like to acknowledge the respondent’s daughter for assisting her mother throughout these proceedings.

   DECISION

6. I set aside the decision under review and in substitution decide that the respondent does not qualify for disability support pension.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated: 22 December 2016

Date(s) of hearing:	2 August 2016; 1 December 2016
Solicitors for the Applicant:	Department of Human Services
Respondent:	In person