Smalldon and Secretary, Department of Social Services (Social services second review)
[2015] AATA 575
•31 July 2015
Smalldon and Secretary, Department of Social Services (Social services second review) [2015] AATA 575 (31 July 2015)
Division
GENERAL DIVISION
File Number(s)
2015/0964
Re
Susan Smalldon
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 31 July 2015 Date of written reasons 06 August 2015 Place Brisbane The decision under review is remitted to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 having regard to the findings of fact made by this Tribunal.
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Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether conditions fully diagnosed, treated and stabilised at the relevant time – Fibromyalgia, arthritis, costochondritis, temporomandibular joint pain – Decision remitted to respondent for reconsideration
LEGISLATION
Social Security Act 1991 (Cth).
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
Administrative Appeals Tribunal Act1975 (Cth).
REASONS FOR DECISION
The applicant commenced proceedings in the Tribunal which concluded with a hearing on the 31 July 2015. A decision was made at the hearing, and these reasons are distilled from the hearing transcript.
Ms Smalldon made an application for the Disability Support Pension (DSP) in 2014. Previous unsuccessful applications had been lodged by Ms Smalldon over time, but for the purposes of these reasons I am dealing with the application deemed unsuccessful by the Authorised Review Officer on 12 September 2014. For her DSP application to succeed Ms Smalldon needs to satisfy the medical criteria found in s 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth). Those requirements must be met at the relevant time – that is, at the time of her original application on 26 March 2014 and in the 13 week period that followed.
The first of the requirements, set out in s 94(1)(a), is that the applicant suffer from a physical, intellectual or psychiatric impairment. The evidence is clear that Ms Smalldon suffers from a number of medical conditions. The most important of these is fibromyalgia which is not a well-understood condition; nonetheless it is one that is not uncommon. Ms Smalldon has a number of other medical conditions including arthritis, costochondritis and temporomandibular joint pain (TMJ). Reference has also been made to lower limb and upper limb impairments, some mental health conditions, and some other less-defined conditions. At a minimum however, we are talking about the fibromyalgia, arthritis, costochondritis and TMJ.
The second requirement outlined in s 94(1)(b) has been the sticking point in these proceedings so far. To satisfy the requirements of s 94(1)(b), a person must have at least 20 points allocated under the impairment tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”). A pre-condition for receiving an allocation of points is that the condition must be fully diagnosed, fully treated and fully stabilised: s 6(4) of the Determination.
I note there is some dispute over the correct diagnosis of the mental health condition in particular, and in relation to some other conditions that we will refer to as being on the fringe. But there have been diagnoses made and accepted in relation to the fibromyalgia, the arthritis condition, the TMJ, and the costochondritis.
The issue is whether those diagnosed conditions are fully treated and fully stabilised. The answer turns on whether attending a pain management clinic or undertaking a pain management program in response to the fibromyalgia would also benefit the other conditions. The respondent has said that in the absence of appropriate pain management, one cannot say any of the diagnosed conditions are fully treated and stabilised. The respondent submits there is good reason to believe that a pain management program is likely to lead to functional improvement. The evidence does not establish that Ms Smalldon’s pain would be eliminated or that the underlying conditions would be fixed, but there is a possibility such treatment might help Ms Smalldon to function better if the pain is addressed.
That said, I am ultimately satisfied from Dr Ng’s report dated 18 June 2014 (exhibit 3) that pain management is not likely to yield significant benefit to Ms Smalldon. Ms Smalldon is being optimally treated and was being optimally treated during the relevant period. Dr Ng is Ms Smalldon’s principal rheumatologist and his letter suggests the treatment at the relevant time was appropriate. Dr Vecchio concurred in a letter dated 30 October 2014 (exhibit 3).
I acknowledge the material includes a number of references to the possibility of seeking pain management assistance, but I am satisfied on the basis of the advice of Dr Ng – her treating specialist, and an expert in the management of fibromyalgia – that Ms Smalldon’s fibromyalgia condition was fully diagnosed, treated and stabilised at the relevant time. That means impairment points can be allocated in respect of the fibromyalgia and the arthritis, TMJ and costochondritis conditions where the respondent argued the effect of those conditions was hard to assess because of the untreated fibromyalgia.
But that is not the end of the matter. In advance of her application, the T documents indicate Ms Smalldon was enrolled in, and attended, a program of support for at least 18 months. The difficulty is that the 18 month period included medical exemptions for at least some of that time. It follows Ms Smalldon was not actively participating in a program of support, at least for some of the 18 month period.
That means Ms Smalldon would not, with one qualification, be able to satisfy the third criterion in s 94(1)(c) which is that the person is able to demonstrate a continuing inability to work. The program of support requirement is waived if the person is allocated 20 points under one of the impairment tables, or if the person is exited from a program (but that is not the case here). Accepting as I must that impairment might be the product of multiple, suitable underlying conditions, and given the finding I have made that all the relevant conditions have been fully diagnosed, treated and stabilised, the question is whether Ms Smalldon’s conditions amount to 20 points under any one of those tables.
I note the evidence Ms Smalldon gave in response to questions asked by the respondent about her mobility in the relevant period. She described an outing that involved her catching the bus and, with some difficulty, moving around Southbank. That evidence suggests Ms Smalldon would not reach 20 points under table 1, at least at the relevant time.
However, there is a possibility that Ms Smalldon could satisfy the requirements in table 2 which deals with upper limb function. Her oral evidence suggests Ms Smalldon may come close to a severe functional impairment which would give her 20 points under table 2. The problem is the Tribunal cannot simply rely upon Ms Smalldon’s uncorroborated evidence. Further difficulty arises here because the appropriate Job Capacity Assessments were not undertaken due to the assumptions made about Ms Smalldon’s condition being not fully treated and stabilised at the relevant time. In the absence of that evidence, the Tribunal is flying blind. I cannot simply rely on Ms Smalldon’s account of her own conditions.
The question is: what to do about it? One possibility is for me to simply decide Ms Smalldon does not succeed in her application because I am not persuaded by the evidence as it stands. The alternative is to remit the matter to the respondent for reconsideration which would require Centrelink to conduct a further Job Capacity Assessment, most obviously having regard to table 2, to take account of the conditions I found are fully diagnosed, treated and stabilised. It may be Ms Smalldon does not reach 20 points as a consequence of any one of them. It may also be the case that Ms Smalldon reaches 20 points cumulatively, which will not get Ms Smalldon over the line if the program of support requirement is still there. But the assessment should still be completed.
I think the appropriate thing to do in the circumstances is to remit the decision under s 42D of the Administrative Appeals Tribunal Act1975 (Cth) so the respondent can carry out a Job Capacity Assessment having regard to the findings of fact I have made. There is the usual time limit of 28 days for that to occur. In the event it takes longer to organise, the respondent can seek an extension of time.
Ms Smalldon is free to submit a further application for DSP which can be considered at the same time as the reconsideration, in effect, because the same Job Capacity Assessment Report can apply to both the application before this Tribunal, and to any fresh application. She suggests the conditions may be getting worse, so it would be convenient for the respondent to assess them as at late 2014 and the relevant time under a fresh application. The result may be that Ms Smalldon does not succeed on the old application but she may succeed on a new one.
The medical evidence is complicated by the fact we are discussing a condition that is not particularly well-understood. Nonetheless, I am satisfied that the appropriate course is to make an order pursuant to s 42D of the Administrative Appeals Tribunal Act1975 (Cth) remitting the decision under review to the respondent for reconsideration having regard to the findings of fact made by this Tribunal.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. .......................[Sgd]..................................
Associate
Dated 6 August 2015
Date of hearing 31 July 2015 Applicant Susan Smalldon Respondent representative Sparke Helmore 06 August 2015
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