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

[2016] AATA 886

Stratford and Secretary, Department of Social Services (Social services second review) [2016] AATA 886 (9 November 2016)

Division	GENERAL DIVISION
File Number	2016/0687
Re	Kerrie Stratford
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member P Nolan
Date	9 November 2016
Place	Brisbane

I affirm the decision under review.

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

Senior Member P Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension – Applicant’s condition not fully diagnosed - Applicant’s condition not permanent – unable to assign impairment rating – decision under review 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 (Cth)

REASONS FOR DECISION

Senior Member P Nolan

9 November 2016

INTRODUCTION

1. This is an application for a review of a decision of Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT First Review) dated 13 January 2016. On that date the AAT First Review affirmed the decision of the Department of Human Services (the Department) dated 26 October 2015 to reject a claim for disability support pension (DSP) lodged by Ms Kerrie Stratford (the Applicant).

2. The question is whether the Applicant was qualified to receive DSP in relation to her claim lodged on 19 August 2015. On my assessment, and this was not debated or disputed by either party, the relevant period would be from 19 August 2015 to the 23 November 2015.[1] This assessment is based on the Applicant’s claim for DSP on 19 August 2015.[2]

   [1] See Social Security (Administration) Act 1999 (Cth) Sch 2, Pt 2, cl 4.

   [2] Exhibit 1, T-Documents, T6.

3. The question of whether the Applicant is qualified to receive DSP depends on whether she has:

   (a)a physical, intellectual or psychiatric condition(s); and

   (b)fully diagnosed, treated and stabilised condition(s) which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) (Impairment Tables); and

   (c)a continuing inability to work (CITW).

   BACKGROUND

4. On 19 August 2015, the Applicant lodged a claim for DSP. In the claim she stated she had multiple disabilities being Dercum’s Disease, multi-level disc protrusions, vertebral ostephytosis and extreme pain.[3] The Applicant stated that her disabilities caused her extreme pain, decreased mobility, intermittent fatigue, tiredness, weakness and inability to concentrate or sleep.[4] The Applicant also stated that her disabilities did not make it difficult for her to use public transport or her to care for herself.[5] However, she also stated that she used medical equipment and medically required heating or cooling in her residence.

   [3] Ibid at p. 74.

   [4] Ibid.

   [5] Ibid at p. 87.

5. In support of her claim the Applicant provided a medical certificate from her treating GP, Dr James Telfer, dated 16 August 2015.[6] Dr Telfer confirmed the conditions that had been identified by the Applicant in her claim. The Applicant also tendered a number of x-rays that she had had taken to show what her condition looked like. There were also photographs contained of marks on her back which did not seem to me to be very helpful in relation to this. She also submitted a report from the Community Development Services in Stanthorpe which contained articles about Dercum’s Disease and a report from a psychiatrist, Dr Credo. This showed the Applicant had no psychiatric or mental issues which is again not really an issue.

   [6] Exhibit 1, T-Documents, T11 at p. 110.

6. On 29 September 2015, the Department convened a face to face Job Capacity Assessment (JCA). In support of that assessment the Department sought from Dr Telfer additional information as to the nature and extent of the Applicant’s conditions. Dr Telfer advised that he diagnosed chronic pain but cautioned that the diagnosis was not formal, was without input and was on the basis of the Applicant’s instructions to him. He also advised that the Applicant’s prognosis was uncertain and stated that she was reported as resistant to any other diagnosis or treatment being explored.[7] Dr Telfer also advised that the Applicant had reported that she had undergone some scans and x-rays with no results.[8] Evidence was also available and tendered in statement form plus delivered in oral form by Dr Anthony Turner of the Health Professional Advisory Unit.[9] Both doctors gave oral evidence before the Tribunal however neither varied or changed anything in their written reports.

   [7] Exhibit 1, T-Documents, T8 at p. 92.

   [8] Ibid.

   [9][9] Exhibit 2, Report of Dr Anthony Turner dated 13 May 2016.

7. On 22 October 2015, the JCA Report (the Assessment) was submitted. The Assessment was based upon available medical information and face to face assessment.[10] It stated that the Applicant had a chronic pain condition and a spinal condition but that neither condition could be rated under the Impairment Tables. In respect of the Applicant’s chronic pain condition this was so because the condition had not been fully diagnosed, treated and stabilised. In respect of the Applicant’s spinal condition this was because the condition had not been fully treated and stabilised.

   [10] Exhibit 1, T-Documents, T9.

   LEGISLATION

8. The statutory provisions relevant to this review are contained in s 94 of the Social Security Act 1991 (Cth) (the Act), the Impairment Tables contained in the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011, and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

9. The requirements to qualify for DSP are set out under s 94 of the Act. In summary, s 94(1)(a) of the Act requires that the person has a physical, intellectual or psychiatric impairment. Section 94(1)(b) requires that the impairment(s) be assigned an impairment rating of 20 points or more in total. This test is completed by reference to the Impairment Tables. Section 94(1)(c) of the Act requires one of the following apply, either that the person has a continuing inability to work or the person has participated in a program administered by the Commonwealth known as supported wage system.

   CONSIDERATION

10. To claim for DSP the person must be qualified at the date of the claim or 13 weeks thereafter. I have covered this above and it doesn’t need reiterating. The dates are clearly not in issue.

11. The Applicant appeared by telephone because of her inability to travel to Brisbane and, in my assessment of her, she was quite capable of putting forward her case. She maintained from the outset that she was suffering from Dercum’s Disease. I will cover the meaning of that condition shortly. She explained that she cared for her husband of 17 years who died sometime back (although I do not have his date of death it was about a year ago). She indicated that she had been on many medications and that her primary aim was to help her husband and that she put up with the pain while doing this.

12. She indicated that she had conveyed this to her treating GP which was not contested by the GP. She indicated quite clearly that she had not seen a pain specialist or any pain management programs. In essence she does not appear to have followed any of the advice given to her by her GP as to what she should do with respect to the pain that she was suffering.

13. Dr Telfer in his report of 16 August 2015 reported that the Applicant had a point pain condition which may be thought to be Dercum’s Disease. He indicated that it was seen by him as a multi-level disc protrusion and vertebral osteophytosis in her lumbar-sacral regions compounding the pain. He noted that she had been a full-time carer for her late husband and that she largely ignored her symptoms in order to take care of her husband. He also reported that her pain had proven recalcitrant to all therapies prevailing to date and that it is likely to be exacerbated by stress in social circumstances.

14. The JCA of 29 September 2015 noted that there was no specialist involvement and determined that the Applicant’s chronic pain condition was not fully diagnosed, treated and stabilised and therefore could not be assigned an impairment rating. In a further letter from Dr Telfer dated 10 November 2015 reported that the Applicant had chronic pain condition which was a combination of multi-level disc disease and lipomatous pain condition possibly Dercum’s Disease. The diagnosis of Dercum’s Disease has not been confirmed but it is clear that there is a chronic pain condition here.

15. At this stage it is worth commenting on an opinion contained within the report of the Professional Advisory Unit which was Exhibit 2 at the hearing. This is under the hand of Dr Anthony Turner who says Dercum’s Disease is a rare disease characterised by generalised overweight or obesity, pronounced pain in the adipose tissue and a number of associated symptoms. The pain is chronic, often disabling and is resistant to traditional analgesic. It is common between the ages of 35 and 50 and 5 to 30 times more common in women than men.[11] After examining the material carefully he concluded that his medical opinion was that the Applicant’s medical condition of Dercum’s Disease is currently unable to be considered fully diagnosed, treated and stabilised as required in the legislation.[12] The fact that the Applicant has refused to trial treatment with corticosteroids was important in his mind. At the hearing he gave evidence to the effect that there had been no attempt by the Applicant to undertake any of the suggestions made by her GP because of her desire to look after her husband and as such it would be impossible to attribute any points to her.

    [11] Exhibit 2, Report of Dr Anthony Turner dated 13 May 2016 at p. 7.

    [12] Ibid at pp. 8-9.

16. With respect to the spinal condition, the Applicant has always maintained that she has chronic pain and nothing helps her back. She has not seen a specialist about her back although she has had scans and did tender some at the hearing. She has not had any injections and is reluctant to do this.  Dr Telfer reports and I accept that she has multi-level disc protrusions and vertebral osteophytosis in her neck and lumbar-sacral regions adding to her chronic pain condition.

17. The JCA determined that the Applicant’s spinal condition of multi-level disc protrusions and vertebral osteophytosis in her neck and lumbar-sacral regions was not fully diagnosed, treated and stabilised since she had not had any specialist review or specialist treatment and as such no impairment rating could be applied.

    CONCLUSION

18. In conclusion I find the Applicant has total impairment of 0 points in that none of the conditions she complains about have been fully diagnosed, treated and stabilised and thus cannot be assigned an impairment rating.

19. As to whether the Applicant comes within the requirements of s 94(1)(c) of the Act it would have to be assumed that my conclusions are wrong. Once it is found that she does not come within the confines of s 94(1)(b) of the Act is pointless to go further. However, in the event that I am wrong the question would be whether there is anything by way of evidence to suggest she has a continuing inability to work as defined in s 94(2) of the Act.

20. If I am wrong to the extent that the Applicant has a fully diagnosed, treated and stabilised condition there is nothing in the material that will allow me to attribute 20 points from the Impairment Table for that. There is no corroborating medical evidence to support such a conclusion and the Applicant’s view that she suffers from Dercum’s Disease seems to be based on her evidence that at the age of 16 she was an inpatient at the Royal Brisbane Hospital and a doctor told her that she would suffer from Dercum’s Disease in the future.

21. Dercum’s Disease is defined in a document attached to Exhibit 5 headed Dercum’s Disease – rather a Mimic of Fibromyalgia by Dr Gihyun Myung and Dr Meike A. Fang. The authors describe the disease as:[13]

    Dercum’s disease (DD), also called adiposa dolorosa is a rare condition characterised by painful subcutaneous lipomas. There are three types of DD: Type 1 involves joints, classical the knees; Type 2 is diffuse generalized; Type 3 is nodular, which causes intense pain around multiple “lipomas”.

    The pain is chronic (>3 months), symmetrical, often disabling. Even though prevalence is not known yet, DD is five to thirty times more common in women than in men. It most commonly occurs in peri- and post-menopausal women between the ages of 40 and 60 years and is characterised by lipomas involving the trunk and extremities. The presence of pain which is required for diagnosis, is most commonly described as a burning or aching sensation. Usually, patients complain of pain that appears out of proportion to the physical findings, but pain can range from hyperalgesia, discomfort on palpitation, to paroxysmal attacks of pain. Even though obesity has been related with DD. it has been reported that people with normal weight can also have DD.

    In addition to pain, there are reported associations with weakness, depression, confusion, lethargy, and dementia…

    The exact etiology of DD is unknown. Some early reported cases suggested treating thyroid disorders decreased pain raising the possibility that thyroid dysfunction is associated with DD. However, DD generally continues to progress even if thyroid replacement treatment is started, and recent studies have not revealed any endocrine laboratory abnormalities in patients with DD.

    [13] Exhibit 5, Report of Dr Dean Creado dated 12 July 2016 with attachments.

22. The authors conclude it is a rare condition and a diagnosis of exclusion. Although it is more common in obese women of middle age it can occur in males that have normal BMI. It is clear on the material that there is no real evidence of the Applicant suffering from this and in terms of its relationship with her continued inability to work it is difficult to know how it would affect that.

23. To have a continuing inability to work the person either needs an impairment that is a severe impairment within the meaning of s 94(3B) of the Act or the person must have actively participated in a program of support within the meaning of s 94(3C) of the Act. There is no evidence before me of severe impairment or that the Applicant has actively participated in a program of support in order to meet a continuing inability to work requirement.

24. I have covered this point briefly because I am of the view that the Applicant’s case does not proceed to come within the confines of s 94(1)(c) but if I am wrong on that then she certainly does not come within any of the confines of the requirement to show a continuing inability to work.

25. The Applicant does not qualify for DSP because her impairments were not fully diagnosed, treated and stabilised within the relevant period.

26. Accordingly, the decision under review is affirmed.

    DECISION

27. I affirm the decision under review.

I certify that the preceding 27 (twenty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Nolan

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Associate

Dated 9 November 2016

Date of hearing	26 August 2016
Applicant	By telephone
Solicitors for the Joined Party	Department of Human Services