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

[2017] AATA 136

Sciarrotta and Secretary, Department of Social Services (Social services second review) [2017] AATA 136 (9 February 2017)

Division:GENERAL DIVISION

File Number:           2016/2969

Re:Paula Sciarrotta

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:9 February 2017

Place:Adelaide

The Tribunal affirms the decision under review.

......................[Sgd]............................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether the applicant's medical conditions were fully diagnosed, fully treated and fully stabilised within 13 weeks of the claim (the assessment period) - whether conditions attract 20 points or more under the Impairment Tables - whether applicant's conditions warrant a rating of 20 points or more under a single impairment table - applicant not qualified for DSP in the assessment period - decision under review affirmed.

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

9 February 2017

INTRODUCTION

1. Ms Sciarrotta lodged a claim for disability support pension (DSP).  Centrelink rejected the claim.  She applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of that decision.  Her application did not succeed.  Subsequently she applied to this Tribunal for a review of the decision of the AAT1.

   LEGISLATION AND ISSUES

2. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  Section 94(1) of the Act provides that an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)a continuing inability to work.

3. Under s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

4. Under ss 41 and 42, and cls 3 and 4 of the Social Security (Administration) Act 1999 (Administration Act) an applicant must qualify for a Social Security payment on the day on which the claim was made or within 13 weeks of that date (the “Assessment Period”). 

5. In Centrelink’s decision to reject the DSP claim, an authorised review officer (ARO) made the following findings:

   ·Ms Sciarrotta had medical conditions of left side sciatica and hallux valgus of the left foot.

   ·Neither of these conditions were fully treated and stabilised and could not be given an impairment rating.

6. On review of the Centrelink decision, the AAT1 found that Ms Sciarrotta’s back and foot conditions were fully diagnosed, but not fully treated and stabilised.  In relation to a condition of depression and anxiety, the AAT1 concluded that it was not fully diagnosed.  In all, the finding was that none of Ms Sciarrotta’s conditions could be allocated impairment points and the Centrelink decision was affirmed. 

7. In the statement of facts, issues and contentions the Secretary contended that:

   ·The effective date upon which the DSP claim was 4 August 2015 and the assessment period is between 4 August 2015 and 3 November 2015.

   ·During the assessment period Ms Sciarrotta suffered from impairments and satisfied s 94(1)(a) of the Act.

   ·Ms Sciarrotta’s lower back condition is fully diagnosed, but not fully treated and stabilised during the assessment period.  Alternatively if the Tribunal finds that the lower back condition is fully treated and stabilised, the condition results in a mild functional impact which rates 5 points on Table 4 of the Impairment Tables.

   ·The left foot condition was fully diagnosed, however it was not fully treated and stabilised during the assessment period.  Alternatively if the Tribunal finds that the condition is fully treated and stabilised, the condition has a mild functional impact rating 5 points on Table 3 of the Impairment Tables.

   ·The condition of depression and anxiety was not fully diagnosed, treated or stabilised during the assessment period.

   ·There is insufficient evidence in relation to other conditions including arthritis, sleep difficulties, hypertension, obesity and dyspnoea to conclude that any of them were diagnosed, treated and stabilised within the meaning specified in the Impairment Tables.

   THE HEARING

8. The hearing took place on 15 December 2016.  Ms Sciarrotta was self represented.  She attended by telephone.  Mr A Burgess represented the Secretary.  Ms Sciarrotta called oral evidence from two witnesses.  Various medical reports, certificates and letters were received in evidence as exhibits.  Included within those exhibits were several detailed letters from Ms Sciarrotta.  They set out details of her circumstances and various matters in relation to her claim.

   EVIDENCE

   Evidence of Ms Sciarrotta

9. Ms Sciarrotta gave oral evidence to the Tribunal.  She is now 57 years old.  She lives alone.  She reached third year at high school followed by further formal study at a business college when she was about 17-18.  She worked as a cleaner for about 14 years in a casual capacity with one organisation.  Subsequently she worked on a permanent part-time basis for another organisation in aged care services as a cleaner with a component of domiciliary care.  She finished work in 2008 and then cared for her mother until she was admitted to a nursing home in 2011.  Subsequently she cared for her father until he passed away in 2015.  Then she applied for the DSP.

10. In her evidence Ms Sciarrotta confirmed that she lives alone in rented accommodation.  She does not have a drivers licence and she relies upon public transport or a friend to drive her around.  She uses a walking stick and a trolley when she goes shopping at a nearby shopping centre.  She moves slowly and sometimes has a friend with her to help.  She does her own housework.  However she does it slowly.  She cannot stand for more than 30 minutes.  She sweeps and vacuums slowly.  She has difficulty bending.  Her sleep patterns are interrupted.  Her lower back and left leg causes pain which she attributes to sciatica and her left foot is very painful.  She said that “she can’t walk straight” and needs a walking stick.  She is able to use public transport.  Occasionally she catches a bus by herself.  In her evidence she said that she cannot stand for more than 30 minutes.  She emphasised that she does everything slowly

11. In a hand-written letter dated 6 April 2016[1] to the Tribunal, Ms Sciarrotta described her difficulties as follows:-

    “…constant pain in back and left leg and will not get better. I also have arthritis in my left leg, back and hand adding to my general pain discomfort. I have been treated for fluid in my legs and knee and have very poor circulation in my left foot. Because of the above problems I have difficulty in standing on her feet for more than 30 minutes at a time. Also I have problem with mobility and everyday task such as housework and catching public transport are difficult for me. I need to rest constantly throughout a normal day. I as result of my physical disability feeling constantly depressed and anxious and trouble difficulty sleeping.  For all reason find it impossible to cope in normal work environment. …”

    [1] Exhibit 1, T16 p151-153.

    Other evidence

12. Ms Sciarrotta called two witnesses who gave evidence to the Tribunal by telephone.  They gave evidence of their observations of Ms Sciarrotta.  They confirmed the restrictions and difficulties which they observed in her everyday life.  As neighbours and friends, they mix with her socially and accompany her to the local shopping centre.

13. Another friend of Ms Sciarrotta provided a written statement[2] in which he confirmed that he had known her for 7 years.  He confirmed that he and his wife supported her in cleaning her unit, assisted with her shopping and helping her to pay her bills.  He wrote that he noticed that she struggles walking, that she has some difficulty with breathing and she was under a degree of stress. 

    [2] Exhibit 7.

    Medical evidence

14. The Tribunal examined the medical reports which provided a history of Ms Sciarrotta’s medical conditions.  For several years she has been a patient at a suburban surgery where her assessment and treatment have been coordinated.  Her general medical practitioner, Dr R Ling, wrote in a report dated 19 September 2015[3] that Ms Sciarrotta has left sided sciatica for which she was receiving treatment.

    [3] Exhibit 1, T28, p 180.

15. In a subsequent report dated 17 October 2015, Dr Ling[4] confirmed that the sciatica resulted from spinal disc bulges which caused pain if she has to stand for any length of time.  She needs to stop and rest and cannot tolerate protracted standing.  Dr Ling advised her to minimise bending and prescribed Tramadol to control the pain.

    [4] Exhibit 1, T29, p 182.

16. In a further report dated 5 December 2015[5] Dr Ling referred to Ms Sciarrotta’s multiple medical problems which would prevent her from working “in a normal employment situation.”  These observations were repeated in subsequent reports.  In particular, in a report dated 5 March 2016,[6] Dr Ling wrote that the ongoing back pain had arisen in 2009.  He referred to a CT scan in July 2015 which showed “multilevel, mild, broad based disc protrusions” and “mild left sided L4-5 and L5-S1 foraminal narrowing”.  She was being treated by medication comprising Tramadol and Meloxicam to alleviate the pain in the back and also in her knees.

    [5] Exhibit 1, T30, p 183.

    [6] Exhibit 1, T34, p 187.

17. In a report dated 22 August 2015,[7] Dr Ling also confirmed a diagnosis of hallux valgus in the left foot causing pain.  Treatment by medication was prescribed.  A report from Benson Radiology dated 30 July 2015,[8] reported xray findings of the left foot showing significant degeneration of the first MTP joint causing marked hallux valgus deformity.  While there were no fractures or dislocation there was some thickening along the shaft of the second metatarsal bone and a prominent calcaneal spur. 

    [7] Exhibit 1, T26, p 173.

    [8] Exhibit 1, T25, p 171.

18. The medical reports contained little information about Ms Sciarrotta’s anxiety.  In the report dated 17 October 2015 Dr Ling wrote that “she is also feeling depressed.”  Similarly, in the report dated 5 March 2016 Dr Ling wrote that she “has symptoms of anxiety and depression.”  She told Dr Ling that she is easily fatigued.

    CONSIDERATION

19. The Tribunal accepts the evidence which Ms Sciarrotta gave about her health condition, problems and the limitations on her activities of daily living.  Similarly, the Tribunal accepts the evidence of her friends and neighbours who confirm the impact of the problems on her general wellbeing and routines. 

20. The Secretary accepted that Ms Sciarrotta suffered from functional impairments and that she satisfies s 94(1)(a) of the Act.  That concession is correct.  As the records from Centrelink indicate that the DSP claim was lodged on 4 August 2015, it follows that the assessment period is between 4 August 2015 and 3 November 2015.  The next step is to determine whether the impairments attract any impairment points and the rating that should be assigned under one or more of the Impairment Tables.

21. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairments.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the Rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than 2 years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individuals’ capacity to work.

22. The applicable impairment rating, if any, for each of Ms Sciarrotta’s conditions will be considered in turn by reference to the Impairment Tables.

    Back Condition

23. Impairment Table 4 concerns spinal function and is used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.  The diagnosis of the condition must be made by a qualified medical practitioner and self report of symptoms alone is not sufficient. 

24. The Secretary accepted that Ms Sciarrotta’s lower back condition was fully diagnosed, however contended that it was not fully treated and stabilised. 

25. A Job Capacity Assessment report (JCA) was submitted on 9 October 2015[9]  following a face to face assessment with Ms Sciarrotta.  The JCA report confirmed the difficulties which she has with physical exertion, particularly walking, and bending.  The report referred to her neck movement as reasonable, with some soreness on extension when she looks up.  The report also mentioned that she suffers from cramps in the back of her legs.  The report also referred to the interference with house work and the need for her to sweep and vacuum slowly. 

    [9] Exhibit 1, T27 p 174-179.

26. Noting the reports from the general medical practitioner, Dr Ling, the Tribunal is satisfied that the lower back condition was fully diagnosed, treated and stabilised in the assessment period. 

27. In relation to a mild functional impact, Impairment Table 4 states as follows:

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1)  The person has some difficulty in:

(a)  activities over head height (e.g. activities requiring the person to look upwards); or

(b)  bending to knee level and straightening up again without difficulty; or

(c)  turning their trunk or moving their head (e.g. to look to the sides or upwards.

1. On consideration of all of the medical evidence, the JCA report, the evidence of Ms Sciarrotta and her supporting witnesses, the Tribunal considers that the appropriate rating is 5 points under Table 4 regarding the lower back condition.

   Left Foot Condition

2. Impairment Table 3, lower limb function, is used where the person has a permanent condition resulting in functional impairment in the performance of activities involving legs or feet.  The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

3. The Secretary accepted that Ms Sciarrotta’s foot condition was fully diagnosed, though not fully treated and stabilised during the assessment period. 

4. The JCA report summarised some of the problems which Ms Sciarrotta has with left foot pain.  She told the assessor that she had poor circulation and could not stand for 30 minutes.  The treatment was medication and she confirmed that she had not received physiotherapy or a referral to a specialist.  She understood that the treatment for the condition would continue and that the condition would remain the same. 

5. In relation to mild functional impact, Impairment Table 3 states as follows:

Points

Descriptors

5

There is a mild functional impact on activities using lower limbs.

(1)  At least one of the following applies:

(a)  the person has some difficulty walking to local facilities (e.g. the shops or bus stop); or

(b)  the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)  the person has some difficulty climbing stairs; and

(2)  At least one of the following applies:

(a)  the person is unable to stand for more than 10 minutes;

(b)  the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

1. Although the medical evidence is sparse, the Tribunal considers there is sufficient material before it to conclude that the lower limb function was fully diagnosed, treated and stabilised during the assessment period.  Taking into account the medical evidence in addition to Ms Sciarrotta’s evidence and the confirmation from her witnesses, the Tribunal considers that she has a mild functional impact on activities involving walking, shopping, climbing stairs and the necessity to use a walking stick.  Accordingly the condition involving the left foot attracts a rating of 5 impairment points under Table 3.

   Depression and Anxiety

2. The introduction to Impairment Table 5, mental health function, states that a diagnosis is required from an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist when the diagnosis has not been made by a psychiatrist.  The criterial in the introduction to Impairment Table 5 are clear in relation to the requirements for providing a diagnosis of a mental health condition. 

3. In the medical reports about Mrs Sciarrotta the only reference to a diagnosis of a mental health condition is in the brief reports from her general medical practitioner, Dr Ling.  There is no evidence either from a psychiatrist or a clinical psychologist in support of a diagnosis of depression or anxiety.  The Secretary contended that a condition of anxiety and depression in these circumstances was not fully diagnosed, treated or stabilised.  That contention is correct. The Tribunal finds that an impairment rating cannot be assigned to the mental health function. 

   Other conditions

4. None of the other conditions including difficulty with sleep, hypertension, obesity and dyspnoea were relied upon in a substantive way to support the DSP claim.  The evidence does not support a finding in relation to any of those conditions as being fully diagnosed, treated or stabilised during the assessment period.

   SUMMARY

5. During the assessment period, Ms Sciarrotta suffered from impairments as a result of a spinal condition and a lower limb condition.  She met the requirements of s 94(1)(a) of the Act.

6. As outlined, the Tribunal finds that Ms Sciarrotta’s spinal condition was fully diagnosed, fully treated and stabilised during the assessment period.  The Tribunal considers that the appropriate rating for that condition is 5 points under the Impairment Tables. 

7. The Tribunal finds that Ms Sciarrotta’s lower limb condition was fully diagnosed, treated and stabilised during the assessment period.  The applicable rating for that condition is 5 points.

8. Ms Sciarrotta’s condition of depression and anxiety was not fully diagnosed, treated and stabilised during the assessment period.  An impairment rating under the Impairment Tables cannot be given in relation to mental health condition. 

9. With a total of 10 impairment points, the Tribunal finds that Ms Sciarrotta does not have an impairment or combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period.  This means that she does not meet the requirements of s 94(1)(b) of the Act and does not qualify in the assessment period for the DSP.  It follows that it is not necessary to consider whether she has a continuing inability to work within the meaning of s 94(1)(c) of the Act. 

   DECISION

10. For the reasons set out above the Tribunal affirms the decision under review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

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Administrative Assistant

Dated: 9 February 2017

Date(s) of hearing:	15 December 2017
Applicant:	In person
Advocate for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers