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

[2017] AATA 1163

Starkey and Secretary, Department of Social Services (Social services second review) [2017] AATA 1163 (28 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2970

Re:Susan Starkey

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 July 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

Catchwords

SOCIAL SECURITY - disability support pension - whether applicant's conditions were fully diagnosed, treated and stabilised - whether applicant's impairments are rated 20 points or more under the Impairment Tables - depression and PTSD - decision affirmed

Legislation

Social Security Act 1991 (Cth) s 94

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

Senior Member A Poljak

28 July 2017

1. Ms Starkey, the applicant, seeks review of a decision made by the Social Security and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) on 11 May 2016. In its decision the SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 20 October 2015, and affirmed by an Authorised Review officer (“ARO”) on 2 March 2016, to refuse the applicant’s claim for the disability support pension (“DSP”) which was lodged on 8 July 2015.

2. The applicant’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, she had to satisfy these criteria on 8 July 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 7 October 2015 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”). The Secretary contends that the medical evidence does not support a finding that the applicant was qualified for DSP during the relevant period.

4. The Secretary accepts that the applicant suffered from a number of conditions during the relevant period. She therefore satisfies section 94(1)(a) of the Act.

5. The issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   IMPAIRMENT TABLES

6. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

7. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

8. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred and whether treatment is still continuing or is planned in the next two years.

9. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

   (a)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; or

   (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

10. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Lower Limb Condition- Osteoarthritis and Right Total Hip Replacement

11. The Secretary accepts that the applicant’s osteoarthritis and total replacement of the right hip was fully diagnosed, treated and stabilised during the relevant period and contends that this condition merits 10 points under Impairment Table 3 (lower limb function).

12. In a Medical Certificate dated 30 July 2015, the applicant’s general practitioner, Dr Peter Van Niekerk diagnosed the permanent condition of osteoarthritis, right total hip replacement June 2012, then right femur fracture July 2012. The right femur fracture was confirmed in an x-ray report of the right femur dated 15 October 2012.

13. The applicant underwent a job capacity assessment on 2 September 2015. In the Job Capacity Assessment Report dated 13 October 2015 (“the JCA”), the applicant reported that she had been “using a walking stick since June 2012 when she leave her home to assist in mobilising.”

14. At the hearing before the SSCSD, the applicant gave evidence that she could not sit or stand for very long and used a walking stick all the time. She said that she could do housework “bit by bit”. The applicant advised that with regard to shopping, she could drive to the supermarket, usually with her daughter, and was able to collect items and then return home. She also gave evidence that she was able to use public transport but was fearful that she might be knocked over by other commuters. It is noted at paragraph 19 of the SSCSD decision that the applicant did not need physical assistance to stand up from her seated position at the hearing.

15. During these proceedings, the applicant said that in 2015 her lower limb impairment was “not too bad” but “everything is getting worse”. She advised that she caught the train to the Tribunal but said that it was painful and that it “wasn’t that bad back in 2015”. The applicant advised that it was now harder to get up and down. She said she could still shop locally. Although she had a walking stick in 2015 she said that she didn’t use it as much then as she does now. The applicant confirmed that she could still manage housework but didn’t go outside much. She said that she could maybe work in an office type job, something small, that wasn’t too physically demanding.

16. There is no evidence to indicate that the applicant requires assistance from another person and cannot use public transport or move independently around the workplace or training facility (even when using a walking aid). There is also no evidence to indicate that the applicant is unable to walk around shopping centre or supermarket without assistance; walk from the car park into a shopping centre or supermarket without assistance or stand up from a sitting position without assistance.

17. Based on the evidence before me and having regard to the descriptors contained in Table 3 of the Impairment Tables, I am satisfied that this condition was fully diagnosed, treated and stabilised during the relevant period and I find that the applicant has a moderate functional impact as a result of the lower limb condition, which equates to an impairment rating of 10 points.

    Lower Limb Condition- Osteoarthritis and labral tear (left hip)

18. In the Medical Certificate dated 30 July 2015, Dr Van Niekerk indicates that the applicant’s condition of osteoarthritis and labral tear is “temporary” and that it was “likely to show considerable improvement within two years.”

19. In the JCA it is noted that:

    a Contributing Assessor (Rehabilitation Counsellor) was consulted and advised that this condition is considered temporary due to the recency of onset of this condition, specialist review yet to be undertaken and likely prognosis indicated by the GP.

20. I am satisfied that the applicant’s left hip osteoarthritis and labral tear were not permanent conditions during the relevant period, as the medical evidence indicates that they were likely to show considerable improvement within the two years following the qualification period. Accordingly no impairment rating may be given for this condition.

    Osteoporosis

21. The applicant has osteoporosis and receives an injection of Prolia every six months. This is confirmed by the medical certificate of Dr Van Niekerk dated 4 December 2015 and the report of Dr Sorial, orthopaedic surgeon, dated 2 December 2015.

22. In the Medical Certificate dated 30 July 2015, Dr Van Niekerk records a diagnosis of “osteoporosis left rib fractures (8th and 9th)”. This is confirmed by a chest and left rib x-ray dated 21 July 2015. In the Medical Certificate dated 4 December 2015, Dr Van Niekerk records a diagnosis of “osteoporosis- L rib fractures x 2 July 2015, R Rib fractures x 3 in 2010”. He indicates that the condition is a “temporary exacerbation of a permanent condition” with an “uncertain” prognosis.

23. In the JCA it is noted that:

    …a Contributing Assessor (Rehabilitation Counsellor) was consulted and advised that this condition is considered temporary due to the recency of onset of this condition, specialist review yet to be undertaken and likely prognosis indicated by the GP.

24. Having regard to the evidence before me, I am satisfied that during the relevant period the applicant’s symptoms of osteoporosis were temporary. The available evidence suggests that during the relevant period the applicant’s left rib fractures, left chest wall pain and restricted breathing capacity was likely to show considerable improvement within two years. It follows that an impairment rating cannot be given for this condition.

    Other Conditions

25. The applicant’s other conditions of hyperthyroidism and depression and anxiety cannot be assigned an impairment rating under the Impairment Tables. There is insufficient medical evidence to find that these conditions were fully treated and stabilised during the relevant period.

26. The applicant provided at hearing a recent report from Mr Mark Boyce, a clinical psychologist, dated 9 March 2017, in which he advised that the applicant “meets diagnostic criteria for Major Depressive Disorder and an Agoraphobia-like Anxiety response subsequent to her legitimate physical difficulties.” While this report may be of assistance in any future applications for DSP, it is not relevant to these proceedings as the diagnosis falls well outside the relevant period.

    CONCLUSION

27. Since the applicant’s conditions do not rate 20 or more points under the Impairment Tables it is not necessary for me to consider whether she had a continuing inability to work during the relevant period.  It follows that her claim for DSP cannot succeed.

28. I affirm the decision under review. 

29. The applicant may apply for DSP again at any time.

I certify that the preceding 29 paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 28 July 2017

Date(s) of hearing:	9 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr A Baril, Department of Human Services