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

[2018] AATA 2148

Spurrell and Secretary, Department of Social Services (Social services second review) [2018] AATA 2148 (6 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4468

Re:Sandra Spurrell  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Bennie Ng, Member

Date:6 July 2018

Place:Melbourne

The Tribunal affirms the decision under review.

..........[sgd]..............................................................

Dr Bennie Ng, Member

Catchwords

SOCIAL SECURITY – disability support pension – impairment tables – insufficient points under Impairment tables – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Dr Bennie Ng, Member

6 July 2018

BACKGROUND

1. Ms Sandra Spurrell (the applicant) lodged a claim for disability support pension (DSP) on 11 May 2016. The Department of Human Services (Centrelink) rejected her application by letter dated 13 July 2016.

2. Ms Spurrell requested a review of this decision on 5 December 2016. The original decision was affirmed by an authorised review officer (ARO) on 22 February 2017.

3. On 2 March 2017, Ms Spurrell applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) for a first-tier independent review of the decision made by the ARO.  On 27 June 2017 AAT Tier 1 affirmed the decision to reject Ms Spurrell’s claim for DSP.  The Tribunal accepted that the osteoarthritis of both knees were fully diagnosed, treated, and stabilised at the date of the claim.  Member Markov considered Ms Spurrell’s ability to drive a manual car, walk around the supermarket using a walking stick and perform all self-care tasks (albeit with some difficulty). The Tribunal considered the lower limb impairment to be moderate and assigned an impairment rating of 10 points from Table 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). As Ms Spurrell scored less than the 20 points required under s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act) to meet the criteria for eligibility for DSP, the Tribunal was not required to address the further criteria of whether she had a continuing inability to work under s 94(1)(c)(i).

4. Ms Spurrell lodged a second-tier review of the decision with the General Division of the Administrative Appeals Tribunal on 31 July 2017.  In this application, she cited that she was unfairly treated by the Member at the AAT Tier 1 hearing and that the Member’s questioning style made her unable to answer questions properly. She admitted that her condition has been assessed by an orthopaedic surgeon and cannot be fixed until she is sixty. This has left her unable to function properly, needing to take pain killers, and has made it impossible for her to find employment. 

5. The hearing was conducted via telephone on 30 January 2018. Ms Spurrell was self-represented, and the Secretary of the Department of Social Services (the respondent) was represented by Jenna Molan of the Department of Human Services.

   ISSUES

6. The principal issue for determination is whether Ms Spurrell’s application for DSP lodged on 11 May 2016 can be granted.

7. Subclause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 requires the Tribunal to assess Ms Spurrell’s eligibility for DSP from the time of application, being 11 May 2016, to 13 weeks after that date, being 10 August 2016 (the qualification period).

8. The qualification criteria for the DSP are set out in s 94(1) of the Act. The three main criteria are:

   (a)the  person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies

   (i)      the person has a continuing inability to work;

   …

9. According to the submitted reports, Ms Spurrell worked in a variety of roles including as a retail shop owner, party planner, and also at checkout operations at Safeway.  She completed Year 10 and a basic computer course, and last worked in 2010.  Ms Spurrell is on Newstart and lives with her daughter. She has four other adult children and multiple grandchildren.

10. Ms Spurrell’s current DSP claim form is dated 12 April 2016. The medical condition section of this form was left blank; however the form was signed off by Ms Spurrell.

11. In a Medical Certificate dated 13 March 2016, presumably submitted in relation to the DSP application, Dr Ahmed Hassan advised that he has been Ms Spurrell’s General Practitioner at MedicAid Family Medical and Accident Centre in Geelong since 31 May 2014.

12. Dr Hassan stated that Ms Spurrell suffered from two conditions; a meniscal tear of the left knee, and depression. He reported that both conditions have an uncertain prognosis.  Dr Hassan provided further Medical Certificates and letters dated 10 July 2016, 1 August 2016, 19 September 2016, 3 October 2016, 21 November 2016, 11 December 2016, 4 March 2017 and 7 June 2017.

13. The respondent provided the Tribunal with documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal noted that the evidence available consisted of correspondence before and after the date of Ms Spurrell’s DSP application. Correspondence dated from 25 August 2009, before the DSP application, contains Centrelink Medical Certificates (primarily completed by her General Practitioners Drs Margaret Somerville and Ahmed Hassan), Job Capacity Assessment Reports, and Employment Services Assessment Reports. A diabetes assessment, pathology, and lower left limb radiology reports were also received in 2013 and 2015. Correspondence was also received on and after the date of the applicant’s DSP application from Dr Ahmed Hassan, General Practitioner; radiologists Dr David Lun, Dr Peter Morris, Dr Jeffrey Cameron, Dr Donald Robertson; and Linda Jurjevic, clinical psychologist. Further information was sought after the hearing, with a particular focus on materials in relation to letters from Barwon Health, where specialist assessments had taken place.

    THE LEGISLATION

    Impairment Tables

14. The Impairment Tables mentioned in s 94(1)(b) of the Act refer to the 15 separate impairment Tables listed in the Determination. Each Table refers to different bodily functions. The Tables are function-based rather than diagnosis-based, which means it is not enough for a DSP applicant to simply be diagnosed with a condition which falls under one of the Tables. The applicant must also be functionally impaired to an extent sufficient to reach 20 points under one or more of the Tables by applying the relevant descriptors. In this way, the Tables are designed to assign ratings which determine the level of functional impact of a given impairment. The Tables are not designed to assess conditions.

    Impairment – s 94(1)(a)

15. Impairment is defined in s 3 of the Determination to mean a loss of functional capacity affecting a person’s ability to work, that results from the person’s condition.  According to s 6(8) of the Determination, the presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating may be assigned.

16. The respondent does not dispute that Ms Spurrell suffers from a physical, intellectual or psychological impairment. 

17. Considering this concession by the respondent and the available medical evidence, the Tribunal is satisfied that Ms Spurrell suffered from impairments during the qualification period. S 94(1)(a) of the Act is satisfied for the purpose of Ms Spurrell’s application.

    Impairment rating – s 94(1)(b)

18. In order to meet the second criteria for DSP under s 94(1)(b) of the Act, Ms Spurrell’s impairments during the qualification period must attract a rating of 20 or more points under the Impairment Tables set out in the Determination.

19. Under section 6(3) of the Determination, impairments associated with conditions can only be assigned a rating if the condition is permanent. S 6(4) provides that a condition is permanent where it has been fully diagnosed, treated and stabilised, and is likely to persist for more than 2 years.

20. In determining whether the requirements under s 6(4) are met, s 6(5) of the Determination directs the decision maker to consider what treatment or rehabilitation has occurred in relation to the condition, and whether treatment is continuing or planned in the next 2 years.

21. The Impairment Tables are function-based; they describe functional activities, abilities, symptoms, and limitations. From this it follows that the descriptors in each table are measures of the functional impact of an impairment. They are examples that assist in the determination of the rating that may be assigned to an impairment and are referred to in s 11(1)(c) as the descriptors for that level of impairment.

22. Under ss 10(5) and (6), a common or combined impairment resulting from two or more permanent conditions cannot be assigned more than one rating under the Impairment Tables.

23. For the purposes of s 94(1)(b), three key questions are posed:

    (a)Does each impairment under s 94(1)(a) result from a ‘permanent’ medical condition, and is the impairment likely to persist for more than 2 years from the date of claim or the qualification period?

    (b)If so, does the impairment cause functional loss and, if it does, which Impairment Table applies?

    (c)What is the functional impact of the impairment, and what rating should be applied?

24. The Tribunal will now consider each of the key impairments in turn.

    IMPAIRMENTS

    Left Knee condition

25. Ms Spurrell’s first recorded details of issues in relation to her left knee appeared on the Centrelink Medical Certificate completed by Dr Margaret Somerville on 21 May 2014. Dr Somerville was Ms Spurrell’s General Practitioner at Bannockburn Surgery, and she acknowledged that Ms Spurrell had been her patient since 21 May 2001.  On the certificate, Dr Somerville indicated the diagnosis of osteoarthritis of the left knee as temporary.  The symptoms listed were pain and inability to walk, with an uncertain prognosis. 

26. A report of a Left Lower Extremity MRI from Barwon Health, referred by Dr Geoff Harrison and validated by Dr Peter Morris, was conducted on 30 May 2014. It  concluded that there was:

    …a complex tear at the body of the medial meniscus with an oblique tear involving the posterior horn.  Moderately severe osteoarthritis is present with relatively high-grade chondral thinning and marginal osteophyte formation affecting the medial compartment.  The lateral compartment and patella-femoral joints are relatively well preserved with some suggestion of chondral pathology involving the medial face of the patella.

27. In the subsequent Centrelink Employment Services Assessment on 21 July 2014, it was remarked that that there were past treatments of analgesics, steroid injections and a specialist appointment.  The Assessment suggested that Ms Spurrell had been put on a waiting list for surgery at Barwon Health in May 2014. 

28. An orthopaedic outpatient letter provided by Ms Spurrell after the hearing revealed the outcome of the orthopaedic outpatient clinic visit which confirmed mildly symptomatic osteoarthritis and stiff patella-femoral joint (PFJ) with loss of terminal knee extension range on 15 September 2014.  The management plan, as dictated by medical officer Rachael Hely, involved:

    1. Referral to CHC physiotherapy for knee extension program

    2. Referral to surgeon for discussion re surgical options (given history of falling)

    3. Discussion re analgesics…GP to provide appropriate analgesic program. 

    The specialist recommended 6 tablets a day of Panadol Osteo and that the Ms Spurrell commence a strength program (hydrotherapy, bike and walking) after the next cortisone injection.

29. In the Centrelink medical assessor report completed by Dr Hassan on 2 June 2015, severe osteoarthritis of the left knee was nominated as the condition with the most impact.  It indicated that Ms Spurrell was referred to Mr Richard Page, an orthopaedic surgeon at Barwon Health.  However, no direct correspondence was received from this specialist prior to 2016. Dr Hassan also quoted morbid obesity as a contributing factor to the knee condition, and reported that Ms Spurrell required a total knee replacement.  She was prescribed Endone 5mg four times a day, Lyrica 75mg twice a day, and physiotherapy. The symptoms were described in the report as pain in the left knee (cannot flex, bend or extend), cannot walk for long distance, no kneeling, no prolonged standing, starts to affect lower back and the other knee.  From a functional perspective, he indicated Ms Spurrell was struggling with her ADL (activities of daily living) with restricted movements and physical effort.  Dr Hassan indicated that her knee condition is deteriorating over the next few years till she has total knee replacement.

30. The medication summary as at 13 April 2016 showed Ms Spurrell was prescribed with Endone 5mg tablets and Panadeine Forte (paracetamol/codeine) 500mg/30mg tablets up to four times a day if required.

31. No medical report was received from the General Practitioner at the time of the DSP application. However, on 6 July 2016 Dr Donald Robertson provided an X-ray report with the following findings:

    The pelvic girdle is intact…The hip joint spaces are well-preserved and degenerative changes negligible. No focal or acute pathology is noted on either side.

    …

    Both Knees: There is significant reduction in the cartilage space in the medial compartment of both knees but more particularly on the left side. Some minor marginal osteophyte development is noted medially. The lateral join compartments are well preserved.

32. The Tribunal noted in the Job Capacity Assessment Report of 11 July 2016 that Ms Spurrell:

    …was able to walk around her home unaided, standing is limited to five minutes with postural change, unable to walk to local shops (20 minutes walk), unable to walk around her local block, requires to be driven to the supermarket (issues with use of clutch in a car), walks around the supermarket reliant on the trolley for support and limits her shopping to a half her usual requirements and limits walking around a shopping centre to 1-2 shops, before returning to the car.  

33. The assessor considered the condition to be permanent, fully diagnosed, treated and stabilised. From an impairment perspective, osteoarthritis was considered to have had moderate functional impact on activities requiring the use of lower limbs, with an impairment rating of 10 points assigned  in accordance with Criteria 1(a) and (c) of Table 3 of the Determination.

34. Dr Hassan had made a semi-urgent referral on 10 July 2016 for Ms Spurrell to Barwon Health Orthopaedics for a further outpatient appointment. The reason for the referral was listed as possible bilateral knee replacement.  Ms Spurrell was reviewed on 20 October 2016.  The report noted that Ms Spurrell received good results from a cortisone injection and was awaiting another one.  It reported that she attended a physiotherapy clinic through access to Enhanced Primary Care plans, and that she received laser treatment and massage of the right knee.  The report concluded that Ms Spurrell suffered from chronic pain and depression.  The management plan had the following points:

    (a)Patient not a surgical candidate at this stage

    Await cortisone injection (CSI), previously great results as tried neuropathic pain relief and patches with minimal symptom relief

    GP to consider pain management clinic and discuss with patient

    Continue physiotherapy to concentrate on increase knee strength and control with use of exercise bike programme

    Ms Spurrell was discharged from the clinic with no further review appointments

35. The Tribunal received further radiology reports from the respondent in 2017 which reported that an X-ray of both knees were performed on 12 September 2017 and CT-guided injections of local anaesthetics and steroid had been carried out on the right knee on 13 September 2017, and on the left knee on 14 September 2017.

36. The Tribunal noted that there was a lack of other allied health assessments prior to the qualification period. The only evidence presented to the Tribunal was a referral initiated by Dr Hassan on 5 July 2016 to Katrina Verhoeven, a physiotherapist and lymphoedema therapist at Health e Allied Services.  In a letter dated 6 October 2016, Ms Verhoeven stated that Ms Spurrell’s knee condition was treated five times. The Tribunal noted that no comments were made, nor were any other reports received in regard to clinical progress and functional outcomes in managing the knee condition and its related factors.

37. During the tribunal hearing, Ms Spurrell spoke English on the telephone clearly.  Ms Spurrell told the Tribunal that she struggles to walk and becomes numb when sitting.  She walks with a walking stick and trips over a lot. She has a fear of going out because of the risk of falling.  She indicated that she can shower and do most basic activities of daily living independently. From a management point of view, she indicated that she feels better with cortisone injections, but has stated that the effect does not last for long.  As with physiotherapy treatment, she was told that there is nothing she can do.  She did attend the local hydrotherapy pool but cannot recall a specific exercise programme.

38. The Tribunal acknowledged Ms Spurrell received a definitive diagnosis in regard to her knees from radiology reports.  Reports from orthopaedic specialists at Barwon Health indicated that issues associated with the knee can be improved with better management through a combination of cortisone injections, enrolment in a pain management program, and an appropriate exercise regime. This appeared to be the key reason why Ms Spurrell had not been listed as a surgical candidate at that time. However, it was also clear that the orthopaedic specialist had left the option of surgery open.  

39. The Tribunal noted that no referral or correspondence was made to or from a specialist pain service or clinic as set out by the Barwon Health Orthopaedic Service.  It is therefore difficult to assess the management, compliance, and progress of this condition. Notwithstanding that the management of the condition were mostly conducted after the end of the qualification period, the Tribunal concluded Ms Spurrell’s treatment plan has yet to be finalised or stabilised.

40. Overall, the Tribunal is satisfied that the condition was fully diagnosed; but the active referral, review, and actions taken by medical specialists since and after the qualification period show her condition was not fully treated and stabilised.  The Tribunal therefore deems it unnecessary to provide an impairment rating. 

    Depression

41. Depression has been listed as one of the key diagnoses since Dr Margaret Somerville reported it on the Centrelink Medical Certificate dated 19 August 2010. The Certificate listed symptoms of lowered mood, poor concentration, and poor sleep.  In the Job Capacity Assessment Report dated 28 March 2011, the assessor noted Ms Spurrell was prescribed anti-depressant medication and referred to a psychiatrist.  However, there is no evidence of any review by a clinical psychologist or a psychiatrist until the initial assessment on 13 October 2016.

42. In the medical assessor report dated 2 June 2015, Dr Hassan listed depression as a condition which was generally well managed and that caused minimal or limited impact on ability to function. The medication summary as at 13 April 2016 showed Ms Spurrell was prescribed with Lexapro (escitalopram) in 10 and 20mg tablets once a day as well as Valium (diazepam) one tablet a night as required. On the Chronic Disease Management Team Care Arrangements referral made on 5 July 2016, the 10mg tablet of Lexapro was no longer listed on the medication list.  Ms Spurrell indicated during the hearing that her dose of Lexapro is 30mg per day. In the Centrelink Medical Certificate dated 10 July 2016, Dr Hassan listed the prognosis of her depression as uncertain. 

1. In the letter dated 3 October 2016, Dr Hassan stated that Ms Spurrell developed chronic major depression due to chronic pain, insomnia and frustration as Geelong Hospital [sic] is pushing her to have the surgery at the age of 60.

2. In a letter dated 25 October 2016 Linda Jurjevic, clinical psychologist, indicated that Ms 4Spurrell described feeling that she has had depression her entire life, and that her experience of knee pain for the last 4 years had impacted on her functioning and mood. She reported ruminating on past losses (2 marriages and a shop) and feels that that she has been a disappointment to her children.  On psychometric testing, she scored in the extremely severe range for depression and anxiety and in the severe range for stress. Suicidal ideation was denied. The letter also reported that Ms Spurrell felt supported by her partner.  Ms Jurjevic indicated that work can be done on developing insight and learning cognitive behavioural strategies to manage anxiety, depression and chronic pain.

3. During the hearing, Ms Spurrell told the Tribunal that she has had ineffective counselling before and has been considering the need to change.  Without going into specific details, she also admitted that she was enrolled in a program of support, but did not attend it. 

4. Based on the evidence, the Tribunal is not satisfied that Ms Spurrell’s depressive condition has been fully diagnosed, treated and stabilised. The Tribunal therefore deems it unnecessary to provide an impairment rating. 

   Morbid obesity

5. In the medical assessor report dated 2 June 2015, Dr Hassan quoted morbid obesity as a contributing factor to the knee condition, and at the same time listed it as generally well managed and causing minimal or limited impact on ability to function.

6. No reports have been received from specialists looking into this condition. There were no other active medical or allied health plans which have been reported to address this condition.

7. In the Job Capacity Assessment Report dated 12 July 2016, it was reported that as at 5 July 2016 Ms Spurrell had a BMI of 40. Her height was listed as 159cm and her weight as 101kg.

8. The Tribunal regards this condition as fully diagnosed but has not received contemporaneous evidence that it is fully treated and stabilised, especially in relation to the knee condition.  The Tribunal therefore deems it unnecessary to provide an impairment rating. 

   Hypertension

9. In the medical assessor report dated 2 June 2015, Dr Hassan listed hypertension as a condition which was generally well managed and one that caused minimal or limited impact on ability to function. The medication summary as at 13 April 2016 showed Ms Spurrell was prescribed with Coveram (Perindopril/Amlodipine) 10/10mg tablets once a day as well as Minax (metoprolol) 25mg twice a day.

10. No complaints of any symptoms of note have been listed.  There were no other reports received from specialists looking into this condition.

11. The Tribunal is satisfied that the condition was fully diagnosed, treated, and stabilised but caused no or limited impact to function. As a result the Tribunal assigned a rating of zero impairment points under Table 1.

    Gastro-oesophageal reflux disease (GORD)

12. In the medical assessor report dated 2 June 2015, Dr Hassan listed GORD as a condition which was generally well managed and that caused minimal or limited impact on ability to function. The medication summary as at 5 July 2016 showed Ms Spurrell was prescribed with Somac EC 40mg tablets once a day.

13. No complaints of any symptoms of note have been listed.  There were no other reports received from specialists looking into this condition.

14. The Tribunal is satisfied that the condition was fully diagnosed, treated, and stabilised, but that it caused no or limited impact to function. As a result the Tribunal assigned zero impairment points under Table 10.    

    CONCLUSION

15. In summary, Ms Spurrell’s knee conditions, depression, and morbid obesity were not fully diagnosed, treated and stabilised.  Hypertension and GORD were fully diagnosed, treated and stabilised, but attracted a total impairment rating of zero points under the Determination.

16. As Ms Spurrell does not have a total impairment rating of 20 points or more under the Impairment Tables in the Determination, she does not satisfy s 94(1)(b) of the Act.

17. As a result, there is no requirement to consider whether or not she has a continuing inability to work under s 94(1)(c) of the Act.

18. The Tribunal affirms the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Bennie Ng, Member.

............[sgd]............................................................

Associate

Dated: 6 July 2018

Date(s) of hearing:	30 January 2018
Date final submissions received:	23 February 2018
Applicant:	By phone
Solicitor for the Respondent:	Jenna Molan, Department of Human Services