Sharon Parker and Secretary, Department of Social Services
[2014] AATA 809
•30 October 2014
[2014] AATA 809
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2306
Re
Sharon Parker
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 30 October 2014 Place Brisbane The Tribunal affirms the decision under review.
.............................[Sgd]...........................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension –
Whether a rating of 20 points or more under the Impairment Tables – Section 94(1) not satisfied – Decision affirmed.LEGISLATION
Social Security Act 1991 (Cth) ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), Schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
30 October 2014
INTRODUCTION
Ms Sharon Parker (“the applicant”) suffers from insulin dependent diabetes, mixed anxiety/depression and lower back pain/sciatica. She notified Centrelink of her intention to claim for disability support pension (“DSP”), and lodged a claim on
13 December 2013. Her claim was rejected on 3 February 2014.
On 25 February 2014, an Authorised Review Officer (“ARO”) affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 10 April 2014.
The application for review of the decision by the Administrative Appeals Tribunal was lodged on 6 May 2014.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act provides that the applicant must:
·have a physical, intellectual or psychiatric impairment;
·have an impairment of 20 points or more under the Impairment Tables;[1] and
·have a continuing inability to work.
[1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
A person is regarded as having a continuing inability to work under s 94 of the Act if:
·they have an inability to work, due to their accepted impairments for 15 hours or more a week; and
·they have actively participated in a program of support. This second requirement is not necessary if a person has a severe impairment of 20 impairments or more under a single Impairment Table.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”). The relevant period is 14 December 2013 to 15 March 2014.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”),[2] it is necessary to determine whether Ms Parker’s conditions can be regarded as being permanent, and if the impairment resulting from the conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, fully treated and fully stabilised.[4]
[2] Which was made by the Minister pursuant to s 26(1) of the Act
[3] Section 6(3) of the Determination.
[4] Section 6(4) of the Determination.
Mr Burgess, for the respondent, contends that Ms Parker’s condition of lower back pain/sciatica cannot be assigned an impairment rating as it has not been fully diagnosed, fully treated and fully stabilised.
The issues that I must determine are:
·which, if any of Ms Parker’s conditions can be allocated an impairment rating; and
·if any can be rated, whether she has 20 impairment points or more; and if so,
·whether she has a continuing inability to work.
CONSIDERATION
Does Ms Parker have any conditions that can be allocated a rating from the Impairment Tables?
Type 1, Insulin Dependent Diabetes
Ms Parker gave evidence by telephone at the hearing, and the information provided in this decision pertaining to her account of her medical conditions is that which she gave in oral evidence, unless otherwise specified.
Ms Parker said she developed type 1 diabetes (“diabetes”) after a routine operation to remove an infected gallstone in her bile duct. She developed pain after the surgery and eventually it was discovered that during the operation her pancreas had been damaged and she had developed diabetes as a consequence. She is dependent on insulin, which she self-administers four times a day. To determine the correct dose she must measure her blood sugar levels four to six times a day. She also must undergo regular pathology tests to monitor her long-term sugar control. She is reviewed every three to six months by a consultant endocrinologist. She has seen a dietician, and she understands the condition as she is a registered nurse. She eats a balanced diet and exercises; and she is careful about her sugar consumption. She said most of what she has to do to manage her diabetes is common sense. She is experienced and understands the warning signs. When her vision starts to blur she knows she has a high sugar level.
I agree with the Job Capacity Assessment (“JCA”) and the SSAT in the finding that
Ms Parker’s diabetes is fully diagnosed, fully treated and fully stabilised. The next consideration is what rating it attracts from the Impairment Tables.
Ms Parker continued to work after she was diagnosed with diabetes. She preferred the night shifts, as it was easier for her to monitor her sugars. The day shifts are busy and there are often unpredictable rushes which place demands on her time, and often there is insufficient time for her to monitor her sugars during the day. She was coping with the night shifts until an incident occurred at work. A patient threw a food tray at her in
July 2013. The tray hit her back and she could not get up. She returned to work after approximately one month off work, and was put on light duties. She could not cope with light duties due to the pain in her back.
Dr Christensen stated in his report dated 14 December 2013 that the condition would persist for more than 24 months and would deteriorate. He said as a result of the condition the applicant suffered from poor endurance, which was aggravated by stress.
Table 1 is used to rate the impact of activities requiring physical exertion or stamina on rateable conditions.
The criteria for between zero and five points from Table 1 are as follows:
Table 1 – Functions requiring Physical Exertion and Stamina
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(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).
In the report dated 14 January 2014, the JCA assessor assigned a rating of five impairment points from Table 1. In the report it was noted Ms Parker said she could walk around a shopping centre but that she occasionally needs to rest due to the frequent necessity to monitor her blood sugar levels.
Until the injury to her back, Ms Parker was able to work at night three to four times a week, for eight to 10 hours. She had to drive one hour each way from her home to work. She persisted with this work for many years after the diagnosis of diabetes was made, and there is no suggestion in the medical evidence that this condition has worsened to any significant level during the relevant period.
When deciding which rating from Table 1 is appropriate, the effect of Ms Parker’s back pain cannot be taken into consideration for the reason that I have decided that that condition is not fully diagnosed, fully treated and fully stabilised.
I consider the most appropriate rating from Table 1 is zero. In coming to this conclusion, I must point out that I found Ms Parker to be a credible witness who gave evidence in a direct and unequivocal manner. I accept that Ms Parker needed to change her working routine from day to night shifts, but that was due to her back pain, and not because of her diabetes. Prior to her back injury, Ms Parker has been coping with shifts of eight to
10 hours, three times a week. Ms Parker’s travel time to and from work added an additional two hours to each shift. Her doctor does not attribute any shortness of breath due to her diabetes. Stopping her routine to take her blood sugar levels a few times a day is not sufficient in itself to qualify for five points form Table 1. I do not accept that the whole of the evidence supports a finding of five points. I find Ms Parker’s diabetes attracts zero points from Table 1.
Depression/anxiety
Ms Parker was assessed by psychiatrist Dr Katz, and has been treated by him for some time. She sees him every two months or so, and she has been on the same anti-depressant medication for about seven years. She does not see counsellors as her experience has been negative in the past. She felt they bring up things she does not want to focus on, and she ends up crying and is more upset after the consultation. Although Ms Parker said that her depression has been much worse since the injury to her back, the Secretary accepts that the applicant’s psychiatric condition is fully diagnosed, fully treated and fully stabilised. As the back condition is temporary, I see no reason to disturb the position of the Secretary and so I agree the condition is permanent, and fully diagnosed, fully treated and fully stabilised.
Ms Parker lives alone. Her son resides close by and helps her twice a week with tasks such as groceries. She does her own housework, cooking and laundry. She has “lots” of friends who “pop in and out”. She fills her days with the company of friends, and spends time on the computer. She has “black” days where she “does very little”. Understandably, her depression has worsened as a result of her back injury, the subsequent difficulties she has experienced in her work, and the subsequent lack of money. She is still able drive her automatic car.
Table 5 of the Determination is used to assess mental health function. The rating criteria for zero to 20 points read as follows:
Table 5 – Mental Health Function
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
The JCA assessor noted that due to depression, Ms Parker reports having mild difficulties with social recreational activities and with travel. She claimed to have episodic panic attacks when shopping. It was noted she had maintained part time work for four years, and a rating of five points was allocated. The SSAT heard evidence from Ms Parker’s friend, Ms Taggart. The SSAT noted Ms Parker’s son assists her on a regular basis each week, and concluded the Ms Parker has difficulty coping with situations involving stress, pressure and performance tasks, and is unable to work. The SSAT considered 10 points from Table 5 having found that depression had a moderate impact on Ms Parker’s activities involving mental health.
Dr Christensen said that due to her depression/anxiety, Ms Parker is unable to concentrate and suffers from persistent issues with insomnia, poor decision-making and poor memory.[5] Dr Christensen did not refer to any panic attacks.
[5] Exhibit 1, folio 96.
DSP is a pension provided to those who are unable to work as a result of permanent medical incapacity. The Impairment Tables reflect this. The rating given from the Impairment Tables is for the person’s functional capacity rated to their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the
Impairment Tables. An impairment that is not related to a person’s capacity to work is not eligible for a rating from the Impairment Tables. Impairment is assessed on the basis of what a person can or cannot do, and is not assessed on the basis of what a person chooses to do, or what others do for the person.
Until the incident in which Ms Parker’s back was injured in 2013, she was driving one hour each way to work, performing the duties of a registered nurse for lengthy shifts four times a week, managing her diabetes; and living alone, totally independently. There is no evidence that supports a conclusion that it is due to depression that she is unable to work. She still has lots of friends dropping by, and is independent, attending to the usual activities of daily living as well as her diabetes. She was unable to concentrate during the hearing and as a result was unable give coherent responses to all questions asked. Any difficulty in concentration she may be experiencing does not affect her capacity to monitor and care for her diabetes.
Her evidence is her depression has been “much worse” since the back injury. I accept that currently her depression is severe enough to attract a rating of five points, were it permanently worsened. The evidence indicates the worsening of her depression is temporary; Ms Parker must therefore be assessed on the basis of her functional capacity prior to the worsening of the condition that occurred after the incident in 2013. Any significant deterioration in her mental health is likely to be due to her back injury. If the deterioration is significant, it brings into question whether the condition is fully diagnosed, fully treated and fully stabilised. As I indicated above, I have accepted this condition can be allocated a rating, but any rating given must be for Ms Parker’s depression, as it exists independent of the effect of the back injury. Ms Parker, prior to her back injury, was not having even mild difficulties with most of the listed activities included in the description of five points. I find the appropriate rating from Table 5 is zero.
Lower back pain/sciatica
Dr Christensen recorded Ms Parker as suffering from “persistent low back pain and sciatica”.[6] He notes this was a condition that was generally well managed and had minimal or limited impact on Ms Parker’s capacity to function. Dr Christensen’s opinion is inconsistent with the evidence of the applicant, and the other medical evidence available at the hearing. I think it likely Dr Christensen did not fully read the questions contained in the medical report form provided by Centrelink before he completed the answers.
[6] Exhibit 1, folio 98.
Ms Parker described her back condition as being particularly severe. She uses morphine patches continuously. She was taking Panadeine Forte but that did not control the pain. She is currently under the care of a pain specialist – Dr Tim Grice. She has consulted this pain specialist twice in the past four months. This is not the type of treatment a person usually receives for a condition that has a minimal impact on their capacity to function.
Ms Parker is on the waiting list at the Gold Coast Hospital for an MRI (magnetic resonance imaging). It is not clear to me whether this MRI is for the purpose of diagnosis, or whether the plan is to perform some form of treatment with MRI guidance, such as a nerve block. Ms Parker has already tried a pain blocking injection. This provided excellent relief but for only a temporary period of about two weeks. She has been informed that she is permitted only three of these a year, as any more would damage the underlying bones. However, she is not going to have any more pain blocking injections due to the expense and the short period of relief she gained from the last injection. She has no private health insurance.
She exercises daily, she has an exercise ball. She has constant pain, but she experiences some days when the pain is worse. She never knows when the pain is going to get worse; there is no way of predicting which will be the days that the pain will be worse. She finds some relief from heat packs when the pain is severe.
In his report dated 8 May 2014, Dr Grice said he had a “long discussion with [Ms Parker] about possible treatment options”.[7] He opined she would benefit from radiofrequency neurotomy. That she has not pursued this treatment option does not necessarily preclude a rating for the condition being given.
[7] Exhibit 2.
Pursuant to the introduction to the Determination, a condition is considered fully stabilised if 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 two years.[8]
[8] Section 6(6) of the Determination.
It is not expected that all possible types of treatment must be tried before a person can be said to have undertaken reasonable treatment. Reasonable treatment is among other things that which can reliably be expected to result in a substantial improvement in functional capacity and has a high success rate; and is available at a reasonable cost and at a location accessible to the person.[9]
[9] Section 6(7) of the Determination.
Ms Parker is dependent on the public health care system; the closest hospital is located one hour drive from her home. It is not reasonable to expect her to undergo treatment that she cannot afford. I do however; consider it reasonable for her to under the MRI, which she is on a waiting list for. As I have stated, the reason for the MRI is not clear, however until it has been performed, it is not possible for Ms Parker’s back condition and sciatica to be regarded as fully diagnosed, fully treated and fully stabilised. She can therefore not be given a rating under the Impairment Tables.
CONCLUSION
Although Ms Parker is currently experiencing significant pain that is affecting her life and her capacity to maintain her previous job, she only has two conditions that can be allocated a rating from the Impairment Tables. As explained above, both of those conditions attract a rating of zero. As she does not have a combined impairment rating of 20 or more points, she does not satisfy s 94(1) of the Act. I therefore do need to not consider whether she had a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ..........................[Sgd]..............................................
Associate
Dated 30 October 2014
Date of hearing 26 September 2014 Applicant In person Solicitors for the Respondent Ashley Burgess, Department of Human Services
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