Susan Smalldon and Secretary, Department of Social Services

[2015] AATA 2

[2015] AATA 2  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/6256
Re	Susan Smalldon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	5 January 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability Support Pension – DSP – 20 points or more under the Impairment Tables – Seronegative inflammatory arthritis – Fibromyalgia – Costochondritis – Temporomandibular joint dysfunction – Tinnitus – Chronic pain – Whether fully diagnosed, fully treated and fully stabilised within relevant period – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr M Denovan, Member

5 January 2015

1. Ms Sue Smalldon is the applicant in these proceedings. Ms Smalldon applied for Disability Support Pension (“DSP”) on 26 March 2014 (“the first application”), and again on 24 September 2014 (“the second application”). The respondent rejected both applications. I am reviewing the decision to reject the first application only, as review of the second decision by the Social Security Appeals Tribunal (“SSAT”) is still pending.

2. An Authorised Review Officer affirmed the decision to reject the first application on
   12 September 2014, as did the SSAT on 10 November 2014. Ms Smalldon applied for review by this Tribunal on 2 December 2014.

3. Mr Guthrie for the respondent, in oral submissions, varied the submissions of the Secretary that were filed. It was his position that, after hearing all of the evidence, none of Ms Smalldon’s conditions could be allocated a rating from the Impairment Tables (“the Tables”).

4. DSP can only be granted when a person who has made a claim meets all of the legislative requirements either on the date of claim, or within 13 weeks of that date.[1] The relevant period in this case is between 26 March 2014 and 25 June 2014.

   [1] Schedule 2, Part 2, cl 4 of the Social Security (Administration) Act 1999 (Cth).

5. One of the legislative requirements to qualify for DSP, is that a person must have

   
   

   20 or more impairment points from Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth). Not all impairments can be given a rating. A rating can only be assigned if a person’s condition causing that impairment is permanent, and the impairment that results from the permanent condition is likely to persist for more than two years.

6. A condition can be regarded as permanent only when it has been fully diagnosed,
   fully treated, and fully stabilised. If a condition has not been fully diagnosed, fully treated and fully stabilised within the 13 week period after the date of claim, then it cannot be regarded as permanent.

7. When a person has functional incapacity from an unknown cause, and investigations and/or specialist review are pending, it will usually be found that the condition is not fully diagnosed. It is also necessary to consider what treatment has taken place, and what treatment is planned. When conditions have been diagnosed only recently, it is often impossible to determine the full extent of what treatment will be necessary, and what the efficacy of that treatment will be, within 13 weeks of that diagnosis. A condition can only be regarded as fully stabilised when the decision maker can be reasonably satisfied that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

8. It is rare for an application for DSP to be granted when, at the time of application, the diagnosis of the condition or conditions causing the impairment the applicant complains of, is still unknown. This is because, when a person first presents with an aliment, it usually takes far longer than 13 weeks for all necessary investigations to be performed, and all reasonable treatment modalities to be undertaken. There are a number of reasons for this. Lengthy delays to see a specialist medical practitioner often exist, even for those fortunate enough to have private health insurance. One of the benefits of advances in medical science is that more types of investigations and treatment modalities become available each year. It may take several weeks or months for the condition or conditions causing impairment to be fully diagnosed. It will then usually be the case that one or more types of treatment will need to be attempted before a decision maker can be satisfied that it is more likely than not that there will be no functional improvement and the impairment will persist for more than two years. Trials of various treatment options often takes weeks or months.

9. Ms Smalldon did not qualify for DSP at the time she applied or within the 13 weeks following, because none of her conditions that cause the impairment she complains of were fully diagnosed, fully treated, and fully stabilised within the 13 weeks of her application.  Most of her conditions were not even fully diagnosed within that time.

10. Ms Smalldon, herself, made this very clear in the covering letter attached to her application, dated 20 March 2014. In that letter, she stated the following:

    I have a multitude of issues and my doctors have had trouble with diagnosis… Doctors still don’t know what is the cause, but all agree my joint damage is permanent. I am continuing to see specialists and undertaking any medical tests they want me to do to determine the cause.[2]

    [2] Exhibit 1, T15, page 142.

11. Although Ms Smalldon’s doctors regard her joint damage as permanent, it is not the case that the impairment from her as yet unidentified conditions can be regarded as permanent for the purpose of the legislation.

12. I understand Ms Smalldon has now been diagnosed with a number of conditions, including sero-negative inflammatory arthritis, complex tear of the posterior horn of the medial meniscus in her right knee, calcaneal spurs, minor degenerative changes in the tibio-femoral joint, fibromyalgia, costochondritis, temporomandibular joint dysfunction, tinnitus, and adjustment disorder. The majority of these diagnoses were made after the relevant 13 week period.

13. Fibromyalgia was first diagnosed in May 2014; the first time any treatment was suggested was in June when Ms Smalldon saw Dr Chin Ng, a visiting Consultant Rheumatologist.[3] Often many different types of treatment must be attempted, and additional therapeutic modalities added to a treatment plan, before the treatment of a condition can be regarded as having been optimised. Even though treatment commenced during the relevant 13 week period, it was not possible during the relevant period to conclude this condition was fully treated.

    [3] Exhibit 1, T27, page 263.

14. Dr Phillip Vecchio, director of Rheumatology, provided a brief letter dated
    

    [4] Exhibit 2.

    30 October 2014. Dr Vecchio indicated Ms Smalldon may be referred to pain clinics, to help manage her pain, however opined that the pain management clinic will not provide a likely significant functional improvement to return Ms Smalldon to work, and that currently her “treatment is as optimal as [her] condition dictates”. [4]

15. Ms Smalldon confirmed she is on a waiting list to attend a pain management clinic.
    It was Ms Smalldon’s evidence that due to her chronic pain, she cannot tolerate people.
    She said it was due to chronic pain that she argued with her boss, and lost her last job.
    Ms Smalldon gave examples of how she cannot tolerate others in what others may describe as everyday situations. She said she is unable to reduce her rent bills by taking in a flatmate because she cannot tolerate the presence of others. Ms Smalldon also told me that she is aware that her brain amplifies her pain levels. She told me that her brain registers her pain at a very high level, when in fact the real level is likely not as high.

16. As all Ms Smalldon’s impairments relate to pain, or the effects of that pain, I consider it inappropriate to regard any of her conditions as permanent until she has at least completed a course of pain management at a recognised pain clinic. It is usual for pain management clinics to address the very problems Ms Smalldon complains of, and to help chronic pain suffers cope with the pain and the effects of chronic pain. Dr Vecchio is not a pain specialist, nor is he an occupational physician. It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is usual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored. I do not find anything in Dr Vecchio’s brief letter to persuade me that Ms Smalldon’s circumstances present a reason to depart from this established position. Until Ms Smalldon has completed a pain management course, and a specialist form pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.

17. Ms Smalldon has authored a number of letters in which she details her impairments. She had her general practitioner attest by signature to the validity of the contents. On questioning, Ms Smalldon claims the letters were co-edited, as her doctor made some changes and checked the contents prior to signing. Evidence created in this manner is not objective, and I can put very little weight on it. The letters do not read in a manner that suggests they are the opinion of a qualified medical practitioner. I make this point only to assist Ms Smalldon for future reference. The reason Ms Smalldon’s claim does not succeed is that none of her conditions have been fully diagnosed, fully treated and
    fully stabilised within the relevant 13 week period.

18. It is Ms Smalldon’s evidence that, as she perceives the current state of circumstances, her impairment is primarily the result of one condition: chronic pain. She argues that all of her impairments should be assessed under Table 1 – Functions requiring Physical Exertion and Stamina. It is my opinion that Ms Smalldon’s view is influenced by her understanding that when a program of support has not been completed, it is necessary to have 20 or more impairment points from one Table if a person is to qualify for DSP.

19. The introduction to the Tables states that when chronic pain can be rated, any resulting impairment should be assessed using the Table (or Tables) relevant to the area of function affected. When Ms Smalldon’s conditions causing her impairment have been fully diagnosed, fully treated, and fully stabilised, she should be allocated ratings using the Tables that apply to the area of function affected.

    CONCLUSION

20. Ms Smalldon did not qualify for DSP at the time of her application or within the
    13 weeks following, for the reason that none of her conditions that cause the impairment she complains of were fully diagnosed, fully treated, and fully stabilised within the relevant 13 week period.

    DECISION

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 5 January 2015

Date of hearing	18 December 2014
Applicant	In person
Solicitors for the Respondent	Joe Guthrie, Department of Human Services