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

[2016] AATA 674

Saleeba and Secretary, Department of Social Services (Social services second review) [2016] AATA 674 (2 September 2016)

Division	GENERAL DIVISION
File Number	2015/5472
Re	Eileen Saleeba
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	2 September 2016
Place	Perth

The Tribunal finds that the Applicant was not qualified for DSP in the relevant period, so the reviewable decision in that regard is affirmed.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – surgery to a cited condition – medical reports after relevant period – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) – s 94(1)(b) – s 94(1)(c) – s 94(3B) – s 94(5)

Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Bobera and Secretary, Department of Families, Housing, Communities Services and Indigenous Affairs [2012] AATA 922

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; (2007) 45 AAR 247; [2007] FCA 404

REASONS FOR DECISION

D. J. Morris, Member

2 September 2016

BACKGROUND

1. Mrs Eileen Saleeba seeks a review of the decision to reject her application for Disability Support Pension (DSP) dated 1 May 2015. 

2. The hearing was held on 7 June 2016.  The Applicant was self-represented.  The Respondent was represented by Mr Ashley Burgess.  Mrs Saleeba gave evidence under affirmation and was cross-examined by counsel for the Respondent.

3. The Tribunal considered documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents). 

4. The Applicant tendered the following documents:

   ·Facsimile dated 11 March 2016 comprising of a Medical certificate from Dr Sheena Kartha dated 10 March 2016 and seven following pages;

   ·Facsimile dated 23 March 2016 comprising a letter from the Applicant dated 22 March 2016 and two following pages;

   ·Facsimile dated 2 March 2016 comprising a two page medical report from Dr Johanna Vorster dated 28 January 2016 and a letter from Pinjarra Doctors dated 14 January 2016;

   ·Facsimile dated 22 January 2016 comprising of letters from Dr Philip Finch dated 14 December 2015, 30 June 2006, 24 October 2007, 2 July 2007, 24 May 2007, 26 March 2007, 11 October 2006 and 6 September 2006;

   ·Letter dated 2 December 2015 from Mr Antonio Granari, psychologist;

   ·Medical certificate dated 22 October 2015 from Dr Arno Erasmus;

   ·Care Plan of six pages dated 2 March 2016 and signed by Dr Johanna Vorster; and

   ·Facsimile dated 2 March 2016 comprising Global Diagnostics report of CT sinuses dated 9 March 2016, and a medical report dated 10 March 2016 from Dr Sheena Kartha of Pinjarra Doctors.

   FACTS

5. Mrs Saleeba is a 55 year old lady who lodged a claim for DSP on 1 May 2015.

6. On 15 June 2015, an officer of the Department of Social Services (the Department) decided that Mrs Saleeba was not qualified for DSP under the Social Security Act 1991 (the Act) on the basis that while she had been assessed as having an impairment rating of 20 points under the provisions the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ImpairmentTables), she did not have a severe impairment (that is, 20 points assigned under a single Impairment Table), and had not undergone a program of support.  This was the original decision.

7. Mrs Saleeba asked the Department to review the original decision.  An Authorised Review Officer (ARO) considered the decision and on 13 July 2015 affirmed the original decision. 

8. Mrs Saleeba sought a review of the authorised review officer’s decision to refuse the grant of DSP by the Social Services and Child Support Division of this Tribunal (AAT1).  A hearing was held on 15 September 2015 in Perth. 

9. AAT1 affirmed the original decision to reject the Applicant’s claim for DSP. 

10. Mrs Saleeba has now requested a second review by the General Division of the Tribunal.  That is this hearing.

11. The purpose of this hearing, therefore, is to review the original decision of the Department’s officer that the Applicant was not qualified for DSP on the date she applied, 1 May 2015, or, applying clause 4(1) of Schedule 2 of the Social Security(Administration) Act 1999, that the Applicant did not become qualified for DSP within the period of 13 weeks after the date of claim.  This 13 week period concluded on 31 July 2015 (‘the relevant period’).

    Qualification for DSP under the Act

12. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person has –

    (a)         a physical, psychological or mental impairment;

    (b) the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)         a continuing inability to work.

13. The Impairment Tables under which a person must be assessed under the Act are the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

14. In respect of a ‘continuing inability to work’, if Mrs Saleeba is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act – that is, if she is not assigned 20 or more points under a single Impairment Table – then the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.

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

15. In his report of 30 April 2015, Dr Arno Erasmus stated that the Applicant was diagnosed with chronic back pain, with a date of onset of 2007.  He said that she had had a number of treatments including epidurals and multiple admissions under the care of Dr David Holthouse, specialist neurosurgeon and ‘many’ consultations with Dr Max Majedi, pain specialist.

16. Dr Erasmus also stated that the Applicant was diagnosed with chronic severe neck pain with a date of onset of 2009.  He stated that this diagnosis is confirmed by Dr Holthouse and a number of treatments are being followed including greater occipital nerve blocks, as needed.

17. Dr Erasmus reported that Mrs Saleeba had a number of other medical conditions, namely left trigeminal neuralgia since 1995, left eye retinal detachment with glaucoma, left and right shoulder pain with chronic bursitis, arthritis in the hands and severe arthritis in the right thumb.

18. The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act at the time of her application.

19. The Tribunal finds that Mrs Saleeba satisfied this requirement of the legislation.

    If so, what is the correct rating under the Impairment Tables?

20. On 1 January 2012, the current Impairment Tables came into effect.

21. The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, Rules for applying the Impairment Tables, Rule 5(2)).

22. Rule 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can do, or could do, not on the basis of what a person chooses to do or what others do for the person.

23. Rule 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

24. Rule 6(3) of the Impairment Tables provides that, an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

25. Rule 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

26. The Impairment Tables Rules also provide, at Rule 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

27. There are explicit provisions in the Impairment Tables relating to pain. At Rule 9(b) the Minister’s Determination states:

    (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected.

28. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    Table 1 – Functions requiring physical exertion and stamina

29. The Respondent accepted that Mrs Saleeba’s chronic lower back pain was fully diagnosed, fully treated and fully stabilised during the relevant period.

30. A Job Capacity Assessment (JCA) was carried out on 9 May 2015.  The recommendation of the JCA in relation to the chronic back pain condition was that it generates 5 points under Table 1.  Five points indicates a “mild” functional impact.

31. The Applicant reported to the JCA that she walks to and from the local shopping centre, which is about a 10 minute walk each way.  She repeated this evidence at the hearing.  The Applicant also said she is able to perform routine household chores including vacuuming, washing, changing sheets and cooking.

32. On the evidence in the JCA and the Applicant’s own evidence, and taking into account the Descriptors in Table 1, I consider that the assignment of 5 points to this condition is correct.

    Table 4 – Spinal Function

33. The Respondent accepted that the Applicant’s chronic neck pain was fully diagnosed, fully treated and fully stabilised during the relevant period.

34. In participating in the JCA, Mrs Saleeba said she is able to sit in a car for at least 30 minutes but has some difficulty in sustaining overhead activities and has difficulty in moving her head to look in all directions, such as turning her head to look over her shoulder.

35. She also gave evidence to the Tribunal that she is able to sit in a motor car for a period of over an hour without difficulty, and had travelled to the hearing that day by car, which entailed a journey of about 90 minutes.

36. She informed the Tribunal that she drove a motor vehicle and had no difficulty with driving tasks such as overtaking and looking over her shoulder to pull out into traffic.

37. The Applicant also said at the hearing that she had been able to hang up clothes on an overhead line with some discomfort, but this had been made easier following a modification to the line, which occurred late in 2015.  She said that she was able to take light items from overhead cupboards and return them.

38. Mrs Saleeba said she had discomfort showering and washing her hair owing to difficulty bending, and had to pace herself.

39. The Applicant also informed the JCA, and said to the Tribunal, that she had cared for her late husband, who was in a wheel-chair, and was required to help him with daily tasks such as showering and getting into and out of bed.

40. The Tribunal does not dispute that the Applicant has pain, as is corroborated in the medical reports, but finds that the functional impact in the evidence, using the Descriptors set out in the Determination, is assessed as “moderate”, which attracts a rating under  Impairment Table 4 – Spinal Function of 10 points.

    Table 12 – Visual Function

41. Dr Erasmus reported a diagnosis of “left eye retinal detachment with 2nd glaucoma.”  The JCA reported that the Applicant can perform most day to day activities but has mild difficulties seeing things at distance when wearing spectacles.  The Applicant said she experiences some discomfort, uses eye drops and can have some loss of vision with sudden movements of the head.

42. The JCA assigned 5 points to Mrs Saleeba under Table 12, as did the ARO.

43. Table 12 requires, in the Introduction to that table, that a diagnosis must be made by an appropriately qualified medical practitioner with corroborated evidence from an ophthalmologist.  The Tribunal had before it a medical report from Dr Edward Mele, ophthalmic surgeon, dated 26 November 2014.  He reported a diagnosis of secondary glaucoma following left retinal detachment.  Dr Mele reported that the Applicant had had the retinal detachment repaired surgically in 2014 but that a secondary glaucoma had developed.

44. Dr Mele confirmed that vision in both eyes remained stable with a 6/9 rating in the left eye and a 6/6 rating in the right eye.  The Tribunal notes that normal visual acuity is recorded as 6/6.

45. The Tribunal accepts that the Applicant does have some vision difficulties, but notes that she gave evidence that she used public transport without difficulty, shopped at the local shopping centre without visual difficulty and drove a motor vehicle.  Dr Erasmus said in his report dated 30 April 2015 that Mrs Saleeba’s eye condition is generally well managed and caused minimal or limited impact on her ability to function.

46. The Tribunal therefore finds the correct rating under Table 12 is zero.  On the specialist medical evidence, the original decision-maker and the ARO were wrong to assign 5 points to this condition; with respect AAT1 was correct in its conclusions about this condition.

    Other conditions

47. Other medical conditions reported by Dr Erasmus were left trigeminal neuralgia and osteoarthritis. The Respondent accepted that these conditions are fully diagnosed, fully treated and fully stabilised but submitted that they are generally well managed and had minimal or little impact on the Applicant’s ability to function and contended that they should not attract points under the Impairment Tables.

48. At the hearing, Mrs Saleeba gave evidence that she had no difficulty picking up light items such as a book but that she did avoid carrying heavy shopping home if she walked to the shops.

49. Dr Erasmus reported that the Applicant’s shoulder pain and arthritis were generally well managed and caused minimal or limited impact on her ability to function.

50. The JCA reported that Mrs Saleeba was shortly to undergo shoulder surgery.  She is also recovering from damage to her coccyx sustained as the result of a fall.  Pending treatment and recovering from an injury mitigate against conditions being said to be fully treated or fully stabilised.

51. The Tribunal finds that the other conditions do not attract points under the Impairment Tables.

52. Therefore, the outcome is that the total points that can be correctly assigned to the Applicant under the Impairment Tables is 15 points.

    Later medical reports submitted

53. The Applicant tendered a number of other medical reports before the Tribunal, but as they are not referrable to the relevant period, they do not assist her in the claim for DSP she made on 1 May 2015.

54. In Harris v Secretary, Department of Employment and Workplace Relations, Gyles J said at 253 [1]:

    This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the Court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

55. Also relevant is a 2012 AAT decision, Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.  Member Breen said at [34]:

    [It] is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused.  In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors.  If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

56. In short, if a person’s medical conditions have changed for the worse after the period beginning on the date when they applied for a DSP and ending on the day thirteen weeks from that first date, then any such deterioration cannot be taken into account in assessing qualification at the particular time.

57. For a person to be qualified for DSP, the requirements of section 94(1) of the Act, as stated above, must each be met.  And they must be met in the qualifying period, which in this case is the period that started on 1 May 2015 and ended on 31 July 2015.

58. As the Tribunal has found that the Applicant did not satisfy the requirements of section 94(1)(b) of the Act in the relevant period, it is not necessary for me to go on to consider whether she had participated in a program of support. The regrettable outcome for her is that the reviewable decision must be affirmed.

    DECISION

59. The Applicant was not qualified for DSP in the relevant period, so the reviewable decision in that regard is affirmed.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member  

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Administrative Assistant

Dated 2 September 2016

Date of hearing	7 June 2016
Applicant	In person
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers