Susan McDonald and Secretary, Department of Social Services
[2015] AATA 90
•20 February 2015
[2015] AATA 90
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4607
Re
Susan McDonald
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member I Thompson
Date 20 February 2015 Place Adelaide The decision under review is affirmed.
..................[Sgd]............................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - whether applicant has severe impairment - whether applicant has a continuing inability to work - no impairment attracting 20 point rating - no participation in program of support with a designated provider – decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
REASONS FOR DECISION
Member I Thompson
20 February 2015
INTRODUCTION
On 11 May 2012 Mrs McDonald lodged a claim for the disability support pension (DSP) which Centrelink rejected on 12 June 2012. Mrs McDonald applied for an internal review of the decision which an authorised review officer (ARO) of Centrelink affirmed. She applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision of the ARO. The SSAT affirmed the decision under review. By application dated 11 September 2013 Mrs McDonald applied to this tribunal.
LEGISLATION AND ISSUES
The issue for the tribunal is whether Mrs McDonald satisfied the qualification criteria for the DSP which are set out in s 94 of the Social Security Act 1991 (the Act). In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mrs McDonald’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 11 May 2012 to 9 August 2012.
Section 94 of the Act states that a person is qualified for DSP if :
(a)The person has a physical, intellectual or psychiatric impairment;
(b)The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)The person has a continuing inability to work.
In accordance with s 94 of the Act a person is regarded as having a “continuing inability to work” if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.
The respondent accepted that Mrs McDonald had a physical impairment that satisfied s 94(1)(a) of the Act and that her impairment amounted to 20 points under the Impairment Tables, meaning that s 94(1)(b) of the Act was also satisfied. In relation to each of Mrs McDonald’s conditions, the respondent submitted that the appropriate ratings at the date of the DSP claim, are 10 points for lower limb (ankle), 5 points for sciatica (lower back), and 5 points for glaucoma.
The next requirement concerns a continuing inability to work under s 94 of the Act. That term and related terms are defined in s 94(2) of the Act:
“Continuing inability to work
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) -- the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases --either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).”
The requirement concerning participation in a program of support is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table. As the respondent submitted that Mrs McDonald did not have the requisite, severe impairment, it was contended that Mrs McDonald must have actively participated in a program of support and that she must meet the remaining criteria in s 94(2)(a) and (b) of the Act. The respondent argued that if Mrs McDonald failed on any of those criteria, it cannot be concluded that she has a continuing inability to work and is therefore not eligible for DSP.
EVIDENCE
At the hearing Mrs McDonald was self-represented. Mr A Parker represented the respondent. Mrs McDonald gave evidence. The Tribunal also received in evidence as exhibits a bundle of Centrelink documents and various medical reports and certificates, along with copies of records from Mrs McDonald’s former employer. The respondent called one witness, Ms Hanna, a psychologist employed by Centrelink and she gave evidence by telephone.
Mrs McDonald has a long history of employment. She had worked in supermarkets for several years and she had reached the position of supervisor. Previously, she had worked as a cake decorator. She also undertook voluntary counselling work for about ten years.
Evidence of Mrs McDonald
Mrs McDonald gave evidence to the Tribunal in which she provided details of a significant injury which she sustained at work with a supermarket in 2007. She suffered a painful injury to her ankle. The entire episode was highly unfortunate. It involved a distressed bystander at the supermarket. Acting in accordance with advice from police, Mrs McDonald walked outside to get the registration number of a vehicle from which a person was causing distress to the bystander. Mrs McDonald walked up an embankment towards the vehicle when she fell over and rolled her ankle. She grazed her hands and knees and was in considerable pain. Her foot and left ankle were swollen and sore. Initially she was away from work for about a week.
For the next 18 months Mrs McDonald received treatment for the injured ankle from a general medical practitioner and a physiotherapist. The problems continued and she was referred to a surgeon for a left ankle arthroscopy in January 2009. Following surgery, she had difficulties walking and with routine, daily activities. Recovery was steady and slow. She attempted to return to work part-time. In January 2010 she suffered an injury at work when she was sitting down. She developed a sharp pain in her lower back which radiated through to the left buttock and leg. She suffered extreme pain from this episode and she received medical treatment for it. In her evidence she described the various adverse effects and impact of the injuries sustained both in 2007 and in 2010. Through to the time of the DSP claim she had continuing difficulties caused by the injuries and those problems affected her capacity both to carry out her work and undertake some household tasks. She had difficulty bending because of the pain in her lower back. The ankle caused intermittent difficulties with walking and standing and affected her hip as well.
Mrs McDonald gave evidence about her efforts to return to work and to sustain work at the supermarket. Initially, following the ankle injury, she was unable to carry out her work as a supervisor and she was obliged to carry out other tasks such as rostering and ticketing. She was placed on a return to work program which included part-time work, medical review and aquatic based rehabilitation physiotherapy. While she was strongly motivated to return to her former duties, the progress was slow and irregular because of the combined effects of the left ankle and hip condition, and the subsequent lower back injury in 2010. Ultimately, a successful return to full time work as a supervisor could not be achieved.
Medical evidence
Dr Balendran is Mrs McDonald’s general medical practitioner and she consulted him following the ankle injury in 2007. Medical reports by Dr Balendran were received in evidence as exhibits. In a report dated 18 February 2014 Dr Balendran summarised Mrs McDonald’s injuries.[1] He stated that she had suffered a severe left ankle injury accompanied by Achilles Tendonitis that had not settled despite surgery. She is left with residual, “moderately severe” osteoarthritis of the left ankle joint and suffers from Achilles Tendonitis of the left ankle, from time to time interspersed with Plantar Fasciitis. She has continued to use an ankle support, a walking stick, and requires assistance climbing stairs and steps. Dr Balendran reported that Mrs McDonald has continued to suffer from left sciatica which causes intermittent, unexpected problems. She manages this condition through exercise, swimming and analgesia. It causes her difficulty bending forwards to touch her knees.
[1] Exhibit 2.
Dr Balendran also stated that Mrs McDonald has suffered depression and anxiety because of the injuries. Her concentration and emotional stability have been severely affected. She has become less confident in social situations and has difficulties travelling alone.
Dr Balendran also reported that Mrs McDonald was diagnosed to be suffering from type 2 diabetes in 2012. The treatment is medication, diet and swimming. In 1996 Mrs McDonald had been diagnosed with glaucoma which was treated by laser therapy. It is necessary to take considerable care to manage the complications caused by diabetes and glaucoma. She has continuing difficulty reading fine print in magazines and newspapers. Finally, Dr Balendran also referred to early onset of osteoarthritis of Mrs McDonald’s cervical spine following a motor vehicle accident in 1984 which had resulted in some problems with tasks above shoulder height. A report by a general surgeon, Dr Raptis, dated 8 March 1985 was received as an exhibit.[2] In Dr Raptis’ opinion Mrs McDonald had suffered from a soft tissue injury affecting the cervical spine, the condition was stable and unlikely to improve with further medical treatment.
[2] Exhibit 1, T8 page 127.
Dr Cullum is a Consultant Occupational Physician. He wrote a report dated 28 October 2010 and a subsequent report dated 24 January 2011 which were received in evidence as exhibits.[3] Dr Cullum assessed the left ankle injury sustained in June 2007 and the lower back injury sustained in January 2010. He reported that:
“This patient has had considerable difficulties with her lower back but also has a significant pathology in her left ankle, resulting in a significant loss of movement and subsequent gait disturbance which has resulted in hip pathology and trochanteric bursitis.
The patient’s x-ray of the left ankle showed significant degenerative change adjacent to the lateral medial malleolus and there is small subcutaneous scar tissue on ultrasound near the sural nerve of the distal end of the scar on the lateral side of the ankle, which has resulted in substantial range of motion loss.”[4]
[3] Exhibit 1, T12 page 132 and T13 page 138.
[4] Exhibit 1, T13 page 138.
Dr Pincombe is a psychiatrist whom Mrs McDonald consulted on four occasions in 2010. Dr Pincombe wrote a report dated 15 August 2010,[5] stating that “the presence of a physical and psychological co-morbidity” led to a guarded prognosis. Mrs McDonald suffered from depression and anxiety which required treatment with a combination of psychotherapy and psychopharmacology, managed by Dr Pincombe and a psychologist Ali Rinaldi. Dr Pincombe’s report noted that Mrs McDonald was encountering significant difficulties with the return to work plan at the supermarket. She had disagreements with the supervisor in charge of that plan. While she was strongly committed to getting back to work, she felt that the employer no longer valued her and queried her motivation for work. She told Dr Pincombe that she felt devalued and that her trust in her employer was betrayed.
[5] Exhibit 4.
A psychologist, Ali Rinaldi, wrote a report dated 12 December 2013 that was received in evidence.[6] The report confirmed that Mrs McDonald was treated for adjustment disorder with mixed anxious and depressed mood over the duration of her WorkCover claim. Following the finalisation of that claim, psychology treatment continued from time to time.
[6] Exhibit 3.
Dr Ewer is a psychiatrist and he provided a report dated 16 March 2011.[7] He reviewed Mrs McDonald on 15 March 2011. He noted that Mrs McDonald had been seeing a treating psychologist Ms Rinaldi every two to three weeks and that she had also consulted her treating psychiatrist Dr Pincombe every four to six weeks. Mrs McDonald presented with physical problems and emotional difficulties. In particular she felt anxiety on a regular basis which affected her level of effective functioning. She was taking medication to help her to cope with the psychological problems. She told Dr Ewer that she regularly felt depressed and she felt angry and frustrated as a result of the physical injuries. Dr Ewer stated that Mrs McDonald was moderately depressed and anxious[8] with impairment to her short term memory and concentration. Dr Ewer continued that it was likely “that Mrs McDonald was suffering from a chronic adjustment disorder with depressed and anxious mood which is mainly caused and perpetuated by pain in her left ankle, left hip and lower back”. He recommended additional treatment for the adjustment disorder. In particular he suggested that a different antidepressant be tried. He also recommended that Mrs McDonald try additional pain management strategies and he considered that further cognitive behaviour therapy should be helpful to address the symptoms of depression and anxiety.
[7] Exhibit 1, T 14 page 140- 156.
[8] Exhibit 1, T 14 page 149.
CONSIDERATION
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. An impairment rating can only be assigned if the person’s condition causing that impairment is permanent and if the impairment results from a condition that is more likely than not to persist for more than two years. Under the Impairment Tables, a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.
Table 3 of the Impairment Tables concerns lower limb function. For a moderate functional impact on activities using the lower limbs, Table 3 of the Impairment Tables assigns a rating of 10 points for difficulties such as walking moderate distances, climbing stairs, or standing. In a Job Capacity Assessment report dated 8 June 2012[9] it was noted that Mrs McDonald had achieved maximum medical improvement regarding the left ankle condition. By that time she was continuing with exercises and she was using anti-inflammatory medication. The Tribunal considers that the left ankle condition was fully diagnosed, treated and stabilised at the time of the DSP claim and that Mrs McDonald has an impairment rating of 10 points under Table 3.
[9] Exhibit 1, T17 page 161-167.
Table 4 of the Impairment Tables concerns spinal function. The Job Capacity Assessment report dated 8 June 2012 confirmed that Mrs McDonald was continuing with conservative management of the lower back pain with modification of activity. On consideration of the medical evidence and the evidence of Mrs McDonald the Tribunal is satisfied that the lower back condition was fully diagnosed, treated and stabilised at the time of making the DSP claim. A rating of 5 impairment points is allocated under Table 4 of the Impairment Tables for a mild functional impact on activities involving spinal function where, for example, the individual has difficulty in bending to knee level and straightening up without difficulty or turning their trunk to move their head. A rating of 5 impairment points is appropriate for Mrs McDonald’s lower back condition.
Mrs McDonald has suffered from glaucoma for many years. In his report dated 18 February 2014 Dr Balendran stated that Mrs McDonald was diagnosed with type 2 diabetes in 2012 which was treated with medication, diet and swimming. Dr Balendran continued:
“the complications of type 2 diabetes together with her glaucoma which was diagnosed in 1996 and treated by Laser therapy can cause her to become blind if both the conditions are not managed meticulously. Currently she has difficulty reading fine print in magazines, newspapers and does not drive at night”.[10]
Table 12 of the Impairment Tables concerns visual function. For a mild functional impact on activities involving visual function, 5 points would be allocated for circumstances such as difficulty reading fine print in newspapers or magazines, or difficulty seeing street signs, or discomfort such as mild watering of the eyes. The respondent acknowledged that 5 points was the appropriate rating for Mrs McDonald’s glaucoma. The Tribunal considers that 5 points is the correct rating.
[10] Exhibit 2.
The Tribunal has considered the evidence regarding Mrs McDonald’s psychological condition. In particular, reports from Dr Pincombe, Dr Cullum and Ms Rinaldi have been considered fully. The respondent contended that the psychological condition was not fully treated at the time when the DSP claim was made on 11 May 2012 and during the relevant assessment period which is 11 May 2012 to 9 August 2012. The Job Capacity Assessment report dated 8 June 2012 concluded that the condition was diagnosed, but not fully treated or stabilised. The author of that report is Kellie Hanna, a registered psychologist, and she also gave evidence to the Tribunal. Her report was prepared following a fact to face assessment. In a report dated 16 March 2011 Dr Ewer had recommended further treatment and therapy for Mrs McDonald. Reports from the psychologist Ms Rinaldi dated 12 December 2013[11] and 18 January 2014 confirmed that treatment for psychological conditions of adjustment disorder with mixed anxious and depressed mood, was continuing and was not completed. Accordingly the Tribunal considers that the psychological condition was not fully treated and stabilised at the date of the DSP claim and during the assessment period. In that event, no points can be assigned under the Impairment Tables for the psychological condition.
[11] Exhibit 3.
The Tribunal has also noted references to Mrs McDonald’s hypothyroid and cervical spine. The Tribunal considers that the evidence does not warrant assignment of impairment rating points for either of those conditions.
Mrs McDonald has a total rating of 20 points across the Impairment Tables. However she does not have an assessment of 20 points or more under one table and therefore does not meet the definition of having a severe impairment. For her to have a continuing inability to work, as defined in s 94(2) of the Act, she must have actively participated in a program of support and her impairment must be sufficient from preventing her from doing any work or training activity independently of a program of support within the next two years.
The next step is to consider whether Mrs McDonald had actively engaged in a program of support for 18 months out of a period of 36 months preceding her DSP application as required by Part 2 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination). It is a requirement of the Determination that a program of support is provided by a designated provider. Part 1 of the Determination defines a designated provider as follows:
“ (a) Job Services Australia provider;
(b) a Disability Employment Service;
(c) an Australian Disability Enterprise;
(d) a provider authorised by a State or Territory government to conduct a transition to work program;
(e) a provider authorised by the relevant worker’s compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory;
(f) a provider authorised by an insurer as a result of a claim under a contract of insurance for a accident (including a motor vehicle accident), sickness or other trauma;
(g) a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.”
The respondent submitted that the supermarket which employed Mrs McDonald was not a designated provider within the meaning of the Determination and that she had not undergone a program of a type which came within the criteria of subsections (b), (c) and (d) of s 6 of the Determination.
A rehabilitation and return to work plan was initially prepared by Mrs McDonald’s employer following the ankle injury in 2007. Various iterations of the plan followed.[12] Eventually Mrs McDonald’s WorkCover claim was resolved. Her employer, who was self-insured pursuant to the Workers Rehabilitation and Compensation Act 1986, agreed to payment to Mrs McDonald of sums of money in settlement and redemption of any liability attaching to the employer. It appears that details of the redemption agreement were finalised at an attendance at the South Australian Workers Compensation Tribunal on 29 March 2011.[13]
[12] Exhibits 7 and 8.
[13] Exhibit 1, T15 page 157.
Mrs McDonald gave evidence to the Tribunal that she had done everything that she could have done through the return to work program. She wanted to return to work in her role as a supervisor. However there were a number of tasks that she could no longer undertake because of the impact of the ankle injury and the lower back injury. At times the return to work and rehabilitation comprised a combination of part-time work and attendances for physiotherapy and counselling.
The Tribunal finds that the rehabilitation and return to work program which Mrs McDonald undertook does not come within the definition of a program of support under s 94(5) of the Act which states:
“ program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designated to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.”
The return to work program in which Mrs McDonald participated commenced in September 2007 and terminated in March 2010. Mrs McDonald was determined to do all that she could do to return to work. Her motivation and commitment were clear. It is unfortunate for her that the program was ultimately unsuccessful. However, the Tribunal concludes that the return to work program in which she participated would not come within the definition of a program of support required by the Act for the purpose of the criteria for claiming the DSP. While there may be similarities between some of the aims and objectives of an individual return to work program initiated by an employer, the Tribunal is required to interpret the meaning of a program of support as defined in the legislation.
Additionally, the respondent argued that Mrs McDonald’s return to work program commenced in September 2007 and finished in March 2010. The respondent contended that only the later part of the program fell within a 36 month period prior to the date of the DSP claim. With a program of support, the Act requires that it must have been undertaken for at least 18 months of the previous 36 months immediately prior to the DSP claim. Be that as it may, as Mrs McDonald’s return to work program did not satisfy the requirements of s 94(5) of the Act, there is no need for the Tribunal to go further.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
The Tribunal finds that s 94(1)(b) of the Act is satisfied as Mrs McDonald has a cumulative rating of 20 points under the Impairment Tables.
Mrs McDonald does not have a severe impairment within the meaning of s 94(2)(aa) of the Act as she does not have an impairment of 20 points or more under a single Impairment Table. Accordingly there was a need for her to actively participate in a program of support within the meaning of s 94(3C). However, Mrs McDonald does not meet the requirements for participation in a program of support and does not satisfy the criteria for a continuing inability to work within the meaning of s 94(1)(c) of the Act.
Accordingly she has not qualified for DSP at the time she made her claim and during the assessment period.
As Mrs McDonald was not qualified for the DSP at the time she lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.
This decision does not mean that the Tribunal under-estimates the problems which Mrs McDonald suffered and the steps that she consistently took to address them. As Ms Rinaldi wrote in a report:
“… Mrs McDonald has presented with a high degree of distress in coming to terms with her chronic injury, pain, losses and self image and secondarily as a consequence of contaminating factors associated with her workers compensation claim, industrial issues and rehabilitation issues.”[14]
The impact of the Tribunal’s decision for Mrs McDonald is that she did not meet the necessary criteria for qualification for DSP at the time that she lodged the claim and during the subsequent assessment period.
[14] Report dated 28 March 2011.
DECISION
The decision under review is affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson ....................[Sgd]....................................................
Administrative Assistant
Dated 20 February 2015
Date(s) of hearing 13 November 2014 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Department of Human Services
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