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

Schipkie and Secretary, Department of Social Services (Social services second review) [2017] AATA 2027 (31 October 2017)
Division:GENERAL DIVISION
File Number: 2017/1645
Re:Joy Schipkie
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:31 October 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension –– whether conditions permanent - whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
31 October 2017
INTRODUCTION AND CLAIMS HISTORY

On 4 May 2016 Ms Schipkie lodged a claim for Disability Support Pension (“DSP”).[1] Accompanying the claim was a report from Dr David Russell, Cardiology Registrar, dated 19 February 2016. Dr Russell’s report lists Ms Schipkie’s medical conditions as:[2]
(a)cardiomyopathy likely secondary to myocarditis on a background of previous alcohol abuse;
(b)moderate to severe COPD;
(c)mild coronary disease; and
(d)anxiety with panic attacks
[1] Exhibit 1, T Documents, T 9, pages 62 – 91, Ms Schipke’s Claim for DSP dated for May 2016.
[2] Exhibit 1, T Documents, T7, pages 58 – 59, report of Dr Russell dated 19 February 2016.
On 10 August 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Ms Schipkie by a Registered Psychologist and Accredited Exercise Physiologist. The JCA concluded that Ms Schipkie’s ischaemic heart disease and COPD were fully diagnosed, treated and stabilised but not her anxiety.[3] The JCA assigned an impairment rating of 10 points for Ms Schipkie’s permanent conditions.
[3] Exhibit 1, T Documents, T 11, pages 94 – 99, JCA Report dated 12 August 2016.
As a result of the JCA report the Department of Human Services (“Centrelink”) rejected Ms Schipkie’s claim for DSP on 12 August 2016.[4]
[4] Exhibit 1, T Documents, T 10, pages 92 – 93, Letter from Centrelink dated 12 August 2016.
Claim History
Ms Schipkie requested a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Schipkie’s medical conditions did not have a total impairment rating of at least 20 points.[5]
[5] Exhibit 1, T Documents, T 12, pages 100 – 105, Decision of ARO and notes dated 17 October 2016.
Ms Schipkie then sought a review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Ms Schipkie’s claim and affirmed the ARO’s decision on 7 February 2017.[6]
[6] Exhibit 1, T Documents, T3, pages 7 – 14, SSCSD’s Decision and Reasons for Decision dated 7 February 2017.
Ms Schipkie has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T2, pages 3 – 6, Ms Schipke’s Application for Review dated 21 March 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Schipkie must have a physical, intellectual or psychiatric impairment;
(b)Ms Schipkie’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Ms Schipkie must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Schipkie meets the Section 94 Requirements is the date the claim is lodged (in this instance as at 27 April 2016[9]), unless Ms Schipkie becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[10] Therefore, to qualify for DSP Ms Schipkie must have met the Section 94 Requirements between 27 April 2016 and 27 July 2016 (“Qualification Period”).
[9] The date that Ms Schipke contacted Centrelink about lodging a claim for DSP - Exhibit 1, T Documents, T8,
pages 60 – 61, letter from Centrelink to Ms Schipke confirming intention to claim dated 27 April 2016.
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Schipkie’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[11]
DID MS SCHIPKIE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]
Ms Schipkie’s Medical Conditions
[12] Determination, s 3.
Ischaemic Heart Disease
In June 2014 Dr Amrit Prasad reported that Ms Schipkie had “LVF” and “IHD” (ischaemic heart disease) which was causing her shortness of breath for which she was on medication.[13]
[13] Exhibit 1, T Documents, T5, page 56, Medical Certificate of Dr Prasad dated 3 June 2014.
In July 2014 Dr Prasad reported that Ms Schipkie had heart failure (cardiomyopathy) for which she was having specialist treatment and that it was a permanent condition which was likely to deteriorate over the next 2 years.[14]
[14] Exhibit 1, T Documents, T6, page 57, Medical Certificate of Dr Prasad dated 2 July 2014.
In February 2016 Dr David Russell, Cardiology Registrar, reported that Ms Schipkie was clinically stable “albeit in NYHA class III dyspnoea which is certainly a combination of her heart and probably more so her lungs”.[15]
[15] Exhibit 1, T Documents, T7, page 58, Report of Dr Russell dated 19 February 2016.
COPD
In November 2014 a respiratory examination showed that Ms Schipkie had “mild airflow obstruction” and “mild impairment of gas transfer”.[16]
[16] Exhibit 3, Report of Dr Masel, Thoracic Physician dated 19 June 2014.
In November 2016 Dr Quach reported that Ms Schipkie had severe COPD which was permanent and had a poor prognosis.[17]
[17] Exhibit 1, T Documents, T 13, page 106, Medical Certificate of Dr Quach dated 29 November 2016.
Conclusion on Impairment
The Secretary accepts that Ms Schipkie suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[18]
[18] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 September 2017, para 4.24.
In light of the medical evidence I conclude that at the Qualification Date Ms Schipkie suffered from a Heart Disease Impairment and a COPD Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
While I acknowledge that Dr Russell reported that Ms Schipkie also suffers from anxiety with panic attacks, there is no other corroborating medical evidence of the condition. Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health 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). There is no evidence of any diagnosis having been made by a clinical psychologist or psychiatrist prior to or during the Qualification Period. Further there is no evidence that Ms Schipkie has had any treatment for her mental health conditions such that it could be said that her mental health conditions were fully stabilised as at the qualification period. As a result Ms Schipkie’s mental health conditions cannot be considered for the purposes of this DSP application.
DO MS SCHIPKIE’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[19] They are function based[20] and designed to assign ratings to determine the level of functional impact of the impairment (“Impairment Rating”) and not to assess conditions.[21]
[19] Determination, s 4(2) and 5(2)(a).
[20] Determination, s 5(2)(b) and (c).
[21] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[22]
(a)Ms Schipkie’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[22] Determination, see s 6(3).
Ms Schipkie’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[23]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[23] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”[24] the following must be considered:[25]
(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.
[24] For the purposes of ss 6(4)(a) and (b) of the Determination.
[25] Determination, see s 6(5).
A condition is “fully stabilised”[26] if:[27]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[28] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[26] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[27] Determination, see s 6(6).
[28] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Ms Schipkie’s medical history, in relation to the condition causing the Impairments.[29]
HEART DISEASE AND COPD IMPAIRMENT
[29] Determination, see s 6(2).
Is Ms Schipkie’s Heart Disease Impairment permanent and likely to persist for at least 2 years?
The Secretary accepts that Ms Schipkie’s Heart Disease Impairment was fully diagnosed, fully treated and fully stabilised during the Qualification Period.[30]
[30] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 September 2017, para 4.27.
The medical evidence supports a finding that Ms Schipkie’s Heart Disease Impairment was permanent during the Qualification Date and as a result an impairment rating can be assigned.
Using the Impairment Tables
I have to assess the level of impact of Ms Schipkie’s Heart Disease Impairment against the descriptors[31] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[32]
[31] Determination, see ss 3 and 5(3).
[32] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[33]
[33] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[34]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[34] Determination, see s 7.
I must not take into account the following information in applying the Tables:[35]
(a)symptoms reported by Ms Schipkie in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Schipkie’s local community.
[35] Determination, see s 8.
Which Tables are appropriate are determined by:[36]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[36] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[37]
[37] Determination, see s 10(3).
If an impairment is considered as falling between two Impairment Ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[38]
[38] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[39]
[39] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[40]
[40] Determination, see s 11(5).
Function Evidence and Impairment Rating
The Table relevant to an assignment of an Impairment Rating in relation to Ms Schipkie’s Heart Disease Impairment is Table 1 which is concerned with functions requiring physical exertion and stamina.
The Introduction to Table 1 of the Determination provides:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
The Secretary submits that an appropriate Impairment Rating for Ms Schipkie’s heart disease Impairment is 5 points.[41]
[41] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 September 2017, para 4.27.
At the hearing Ms Schipkie submitted that her Heart Disease Impairment was having a significant functional impact on activities involving physical exertion and stamina and warrants an Impairment Rating of over 10 points.
To obtain a 5 point rating the corroborating evidence would need to show that Ms Schipkie:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
To obtain a 10 point rating the corroborating evidence would need to show that Ms Schipkie:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, Ms Schipkie:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(a)is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
There is very limited medical or other corroborating evidence regarding how the Heart Disease Impairment impacts Ms Schipkie’s ability to function:-
(a)Dr Prasad reported that Ms Schipkie has shortness of breath and dyspnoea.
(b)Dr Russell reported that Ms Schipkie sleeps on 2 pillows for a combination of comfort and orthopnoea (which is a shortness of breath which occurs when lying flat).
(c)An Australian Super Initial Medical Attendant’s Statement prepared in or about May 2016 reports that Ms Schipkie’s Heart Disease Impairment condition causes a “severe restriction on any activities” and that Ms Schipkie is “totally incapacitated”.[42]
[42] Exhibit 1, T Documents, T 14, pages 107-109, Australian Super Initial Medical Attendant's Statement (undated).

The corroborating medical evidence available does not specifically address the Descriptors or go into great detail concerning Ms Schipkie’s functional disability resulting from this Impairment.
The JCA reported that Ms Schipkie told them:[43]
·she can experience shortness of breath sometimes for no apparent reason
·when hanging clothes on the line and when looking up she experiences shortness of breath
·she can experience shortness of breath when walking and is able to walk for 10 minutes then needs to sit to rest (depending on how she is feeling)
·she experiences tiredness
·she is able to do a little sweeping but is not able to do the vacuuming, is able to self care, but has difficulty making a bed
·she is not able to do the gardening.
[43] Exhibit 1, T Documents, T 11, pages 96 – 97, JCA report dated 12 August 2016.
At the hearing Ms Schipkie agreed with what had been recorded by the JCA and said:
·She can walk a couple of blocks to the shops but has to take regular rests;
·She can walk for 5-10 minutes slowly;
·How far she can walk or whether she can walk at all differs from day-to-day
·She struggles walking up stairs
·She is able to use public transport unaided
·Her daughter assists her with domestic chores on the weekends and her housemate assists at other times
·She feels she does have a disability
·She can no longer work as a cleaner which was her job prior to her cardiomyopathy arising
·She is currently exempted from attending any job provider appointments because of her condition.
The JCA recommended a rating of 10 points for a combination of the heart disease impairment and COPD impairment.[44]
[44] Exhibit 1, T Documents, T11, page 96, JCA Report dated 12 August 2016.
Ms Schipkie is clearly having frequent symptoms of shortness of breath.
Ms Schipkie’s Impairment does not attract a 20-point rating because there is no evidence that Ms Schipkie cannot:
(a)walk around a shopping centre by herself;
(b)use public transport by herself; or
(c)perform light household activities.
Based on the information available the Tribunal finds that the most appropriate Impairment Rating for Ms Schipkie’s Heart Disease Impairment is 10 points. If this condition has deteriorated since the Qualification Period, it is open to Ms Schipke to make a new application for DSP with supporting corroborative evidence.
Is Ms Schipkie’s COPD Impairment permanent and likely to persist for at least 2 years?
The Secretary contends that Ms Schipkie’s COPD Impairment was fully diagnosed but was not fully treated and fully stabilised.[45]
[45] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 September 2017, para 4.30.
The Tribunal accepts that Ms Schipkie’s COPD Impairment was fully diagnosed.
However there is no corroborating medical evidence regarding what treatment Ms Schipkie has undertaken, or whether the condition has stabilised. In fact, other than a medical certificate of Dr Quach and the report of Dr Russell confirming the diagnosis, there is no other medical evidence available for the Tribunal to consider. The Tribunal appreciates that Dr Quach reports that this condition is permanent and severe, however, there is just no evidence available to assess whether this impairment has been fully treated and is fully stabilised as required by the Determination.
At the hearing Ms Schipkie said she has used inhalers to treat the condition in the past but they are not working well so she may need oxygen therapy and is on a waiting list to see a Dr Burke, a Respiroatory Specialist, at the Prince Charles Hospital.
In these circumstances the Tribunal is unable to find that Ms Schipkie’s COPD Impairment was permanent for the purposes of the Act and no Impairment Rating can be assigned.
The Tribunal notes however that even if the COPD Impairment was found to be permanent it would not have altered the total impairment rating assigned to Ms Schipke. This is because the Determination provides that where two or more conditions (such as cardiomyopathy and CODP) cause a common or combined impairment (they both impact on Ms Schipkie’s ability to breath), a single rating should be assigned in relation to that common or combined impairment under a single Table. The Determination also provides that where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once. The example given in the Determination is:
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
The inability of the Tribunal to find that Ms Schipkie’s COPD was permanent did not impact on the impairment rating that would be assigned when taking into account Ms Schipkie’s ability to function during the Qualification Period.
Ms Schipkie told the Tribunal that her conditions have deteriorated so she may wish to consider making a new DSP once she has corroborating medical evidence.
WERE MS SCHIPKIE’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. I have found that the total Impairment Rating for Ms Schipke’s Impairments was 10 points.
DID MS SCHIPKIE HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Ms Schipkie’s Impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Ms Schipkie had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Ms Schipkie’s claim fails. Her impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result she did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 31 October 2017

Date of hearing: 24 October 2017

Applicant: In person

Solicitors for the Respondent: Jake Kyranis for Sparke Helmore

[2017] AATA 2027

31 October 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	24 October 2017
Applicant:	In person
Solicitors for the Respondent:	Jake Kyranis for Sparke Helmore