SUSANNE CAMPBELL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 488
•11 July 2013
[2013] AATA 488
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0118
Re
SUSANNE CAMPBELL
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 11 July 2013 Place Brisbane The Tribunal affirms the decision under review.
……………….[SGD]…………………………
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Physical, intellectual or psychiatric impairment – Fully diagnosed, treated and stabilised – Impairment Tables – Impairment rating less than 20 points – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2
SECONDARY MATERIALS Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
INTRODUCTION
I have to decide whether Ms Susanne Campbell (“the applicant”) is entitled to receive disability support pension. In making a decision about her eligibility for that benefit, I have to examine whether she had medical conditions which impaired her ability to work at the date of her claim or within a period of 13 weeks following the date of her claim.
PRIOR DECISIONS
On 25 July 2012, the applicant notified Centrelink of her intention to make a claim for disability support pension. Her claim form, which was signed on 1 August 2012, was lodged on 2 August 2012.
On 21 August 2012, Centrelink made a decision that the applicant was not qualified to receive disability support pension. This decision was made after a face-to-face job capacity assessment was conducted by Centrelink. On 15 October 2012, the decision was affirmed by an authorised review officer, who considered an additional medical report.
On 4 December 2012, the Social Security Appeals Tribunal also affirmed the decision to reject the applicant’s claim for disability support pension.
On 9 January 2013, the applicant applied for review to this Tribunal.
ELIGIBITY CRITERIA
The entitlement to disability support pension is conferred by s 94 of the Social Security Act 1991 (Cth) (“the Act”).
A person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)(i)).
It is fair to say that the case of the applicant was conducted upon the basis that she was entitled to disability support pension as she should be assessed as having 20 points under the Impairment Tables (s 94(1)(b)). At the hearing I advised the applicant that even if she was assessed as having 20 points under the Impairment Tables, she must also have a “continuing inability to work” (s 94(1)(c)) before she is entitled to receive disability support pension. In response, the applicant stated that she had not been informed of her need to have a “continuing inability to work”. However, I advised the applicant that that requirement was clearly outlined in a pre-hearing document.[1]
[1] Secretary’s Statement of Facts and Contentions, dated 13 March 2013, at [17] and [52].
In considering whether the applicant had a “continuing inability to work”, I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next two years. In considering whether a claimant has a continuing inability to work, the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week, with the wage being at least the relevant minimum wage, and that exists in Australia even if that work is not locally accessible (s 94(5)).
At the hearing I clarified that there are other provisions in s 94 of the Act that the applicant satisfies. She is over the age of 16 years (s 94(1)(d)) and is an Australian resident (s 94(1)(e)(i)).
IMPAIRMENT TABLES
The Impairment Tables which I am required to apply are contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[2]
[2] See s 27 of the Act in regards to the appropriate Impairment Tables to be applied.
In accordance with the Determination, an impairment rating can only be assigned from the Tables if the condition or conditions can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.[3]
[3] See cl 6(3) of the Determination
A condition is permanent if it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.[4]
[4] See cls 6(4), (5) and (6) of the Determination.
TIME FOR DETERMINING ELIBILITY
At the hearing of this application I informed the applicant that to be qualified to receive the disability support pension, she must meet the eligibility criteria on 25 July 2012, which is date she made her claim,[5] or within 13 weeks of the date of her claim.[6] She was aware that in considering this application I am confined to considering the eligibility of the applicant in this 13 week period which ended on 24 October 2012 (“the relevant period”).
EVIDENCE
[5] In accordance with s 13(1) of the Social Security (Administration) Act 1999 (Cth) the applicant is deemed to have made her claim on the day when she first contacted Centrelink.
[6] Social Security (Administration) Act 1999 (Cth), Sch 2, cl 4.
Treating Doctor’s Report
Centrelink was provided with a medical report, dated 2 August 2012, completed by the applicant’s treating doctor, Dr Than Tun.[7] Dr Tun reported a number of conditions. As these reasons are a matter of public record, it is not necessary to fully outline the nature of the applicant’s various conditions which the treating doctor stated caused “nil” impact on the ability of the applicant to function. As they have “nil impact”, they cannot be assigned an impairment rating in any event.
[7] Exhibit 1, T-document 6, pp. 71-78.
Dr Tun reported that the condition with the most impact on the applicant was anxiety and depression; he confirmed that the date of diagnosis of the condition was 2 July 2012. Dr Tun reported that the treatment for this condition was ongoing management with psychologist for CBT as well as probable antidepressants. The treating doctor noted that the current impact on the patient’s ability to function is expected to persist for more than 24 months and that within the next two years the effect of the condition on the applicant’s ability to function was uncertain.
The treating doctor also reported that the applicant has foot pain on left side. The report noted that there was a history of foot pain for two years and that her condition causes ongoing pain and that current treatment was immobilisation/surgery. The treating doctor noted that the current impact on the patient’s ability to function is expected to persist for more than 24 months and that within the next two years the effect of the condition on the applicant’s ability to function was uncertain.
Other Medical Reports
The applicant provided a number of reports as well as copies of X-rays which have been admitted into evidence.
Mr Brownhill, clinical psychologist, prepared a report dated 11 September 2012.[8] The applicant also tendered an undated report by Mr Brownhill.[9] Mr Brownhill reported:
It is my opinion that she is experiencing a major depressive episode. Further, it is my opinion this condition is fully treated, diagnosed and stable.
In that report it is stated that she first attended for treatment on 11 September 2012. Mr Brownhill also confirmed, in his report of 21 June 2013,[10] that the applicant had been referred to him by her GP “for services to address depression”. Attached to that report is a schedule of appointment dates. At the hearing I commented that the remarks “no show” appear next to nine of those appointment dates: the applicant stated that she was unable to attend those appointments.
[8] Exhibit 1, T-documents, pp. 88-95.
[9] Exhibit 3.
[10] Exhibit 2.
Job Capacity Assessment Report
On 15 August 2012, a Job Capacity Assessment Report was completed by a physiotherapist, a registered nurse as well as by a registered psychologist.[11] In the report the applicant’s medical conditions were set out. An impairment rating of 10 points under Table 3 was assigned for the lower limb condition.
[11] Exhibit 1, T-document 7, pp. 79-85.
In regards to the applicant’s psychological condition, the assessors concluded that as the applicant was still to complete a recommended course of treatment at that time, then the condition could not be considered to be fully treated and stabilised. As such they did not consider an impairment rating for this condition.
It was assessed that the current baseline capacity for work for the applicant was 15-22 hours per week, and a capacity for work within two years of 23-29 hours per week with intervention.
CONSIDERATION
There is evidence before me that the applicant has a physical, intellectual or psychiatric impairment for the purpose of the Act (s 94(1)(a)).
I find that the applicant has an impairment which is her lower limb condition. The evidence that I rely upon for making such a finding is the report of her treating doctor, Dr Tun, who, in his report of 2 August 2012, has comprehensively referred to her lower limb condition (hallux valgus, hallux rigidus of the left first metatarsophalangeal joint with transfer metatarsalgia and fracture of the navicular bone). Under the Determination, this report by her treating doctor is regarded as corroborating evidence for a diagnosis of the existence of the impairment.
I also find that the applicant has an impairment which is her depressive condition. Under the Determination it is necessary that the diagnosis of a mental health condition is made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.[12] In this case, her treating doctor (who is not a psychiatrist) has in his report of 2 August 2012 made a diagnosis anxiety and depression. I have earlier mentioned that Mr Brownhill, who is a clinical psychologist, has made a diagnosis that the applicant is experiencing a major depressive episode. I rely upon this evidence for making the finding that the applicant has a depressive condition.
[12] See the Introduction to Table 5 – Mental health Function.
As there is evidence that the applicant had a lower limb condition and depressive condition at the time of her claim, I am satisfied that the applicant satisfied s 94(1)(a) of the Act at the time of her claim.
I must next consider whether any impairment of the applicant warrants her being assigned an impairment rating of 20 points or more under the appropriate table or tables in the Impairment Tables (s 94(1)(b)).
There is no issue that the lower limb condition can be assigned a rating. I rely upon the Job Capacity Assessment Report of 15 August 2012 in which it has been assessed that the lower limb condition has been fully diagnosed, treated and stabilised. Having regard to the concession that has been properly made by the respondent, I rely upon this report to make this finding even though her condition can be improved by surgery for which she is on a waiting list.
I consider that Table 3 of the Impairment Tables is the appropriate table to assess the lower limb condition of the applicant. In giving evidence before me, she has indicated (and I so find) that the lower limb condition has a moderate functional impact which has a rating of 10 points in terms of Table 3. For example, the applicant stated that she is able to use a motor vehicle provided that it has an automatic transmission. She also stated that she can walk around the supermarket. In her statement, she stated that she uses “walking aids in a moon boot and walking stick”.[13] In her evidence before the Tribunal, she stated that she obtains support from using “moon boots”, although, she did not use a “moon boot” at the time of the hearing.
[13] Exhibit 5.
There is no evidence before me to enable me to make a finding that the applicant can be assessed as having a rating of 20 points for her left lower limb condition having regard to the requirements of Table 3.
I have considered whether the depressive condition of the applicant can be assigned a rating under the Determination. I consider that it is not possible to make a finding that the condition can be regarded as fully diagnosed, treated and stabilised in accordance with the Determination.
The applicant’s treating doctor’s medical report indicates that future treatment for her depression would be probable antidepressants. The applicant, in her statement, has indicated that she did not purchase the anti-depressant medication that had been prescribed to her by Dr Tun. Instead, she asserted that she used medication that she has previously been given. There is a report from a nutritionist and metabolic therapist, dated 23 June 2012,[14] which contains the statement that the applicant took anti-depressants for two months. The nutritionist asserted that the anti-depressants made the applicant nauseous and gave her constant headaches as well as blurred vision. However, there is no evidence that the applicant raised her concerns about these side effects with Dr Tun.
[14] Exhibit 4.
There is some inconsistency in the evidence before me as to what anti-depressant medication the applicant has actually taken. The applicant has asserted that she was taking anti-depressant medication at a time before her treating doctor wrote his report. However, there is a statement in that report that the only current treatment was counselling and that there was no past treatment.
The applicant, in her statement, remarked:[15]
I don’t believe in taking medication or drugs of any kind, I prefer natural herbal remedies and teas with positive and strong support.
However, there is no medical evidence before me as to whether these remedies can be properly regarded as treatment.
[15] Exhibit 5.
On the state of the evidence before me, I cannot be satisfied that the applicant has taken anti-depressant medication as prescribed by her treating doctor. In the circumstances I do not consider that the depressive condition of the applicant can be regarded as being fully treated and stabilised during the relevant period.
At the hearing of this application the applicant mentioned that she has a number of conditions which are not referred to in Dr Tun’s report. That report lists the applicant as having a lower limb condition on her left side. However, the applicant asserts that she also has a lower limb condition on her right side; this condition is not mentioned in the report. In particular, the applicant states that she has a huge bone growth on the top of her right foot which is touching on the tendons; this condition is not mentioned in the report. She also asserts that she has a spinal condition; this condition is not mentioned in the report. Having regard to the terms of the Determination, the self-report of the applicant alone is insufficient to make a diagnosis of a condition of the applicant. I cannot consider these other conditions as they have not yet been verified by the treating doctor. There is no evidence that these conditions existed during the relevant period.
Continuing inability to work
As the applicant does not have an impairment rating of 20 points or more under the Impairment Tables, it is therefore not necessary for me to determine whether she has a continuing inability to work. However, it is appropriate for me to discuss the application of s 94(2) of the Act. This is because, as I have mentioned earlier, the applicant was under a misapprehension that she would be entitled to disability support pension once her lower limb impairment was assigned a total of 20 impairment points. At the hearing, the applicant stated that she was not made aware of this. However, in a pre-hearing document the applicant was, in my view, fairly advised that “if the Tribunal finds the Applicant is to be assigned a total of 20 points under the Impairment Tables, it will be necessary to consider whether she has a continuing inability to work”.[16]
[16] Secretary’s Statement of Facts and Contentions, dated 13 March 2013, at [52].
In order for the Secretary to conclude that a person has a “continued inability to work” in terms of s 94(1)(c)(i) of the Act, it is necessary that the criteria in both s 94(2)(a) and s 94 (2)(b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).
At the outset of my consideration as to whether the applicant has a continuing inability to work, it is important to mention that since 15 December 2010 the applicant has, to her credit, actively participated in a program of support. This has the consequence that she satisfies s 94(2)(aa) of the Act, which is essential as her impairment has not been assigned a total of 20 points under the Impairment Tables and therefore she cannot be considered to have a “severe impairment”.
In considering whether the applicant has a continuing inability to work, I have to consider the application of s 94(2)(a) of the Act, which refers to whether her impairment is of itself sufficient to prevent the applicant from doing any “work” independently of a program of support within the next two years. The definition of “work” in s 94(5) of the Act refers to work for at least 15 hours per week on wages that are at or above the relevant minimum wage. This work must exist in Australia even if not within the person’s locally accessible labour market.
On 15 August 2012, a Job Capacity Assessment Report assessed the current baseline capacity for work of the applicant as 15-22 hours per week, and a capacity for work within two years of 23-29 hours per week with intervention. The applicant has not challenged the assessment of her current baseline capacity for work. This report is unchallenged evidence which I accept. I consider that the report was carefully prepared with the assistance of three health professionals who have fairly assessed the conditions of the applicant. The applicant was assessed as being capable of performing sedentary work, which is consistent with her statement in her email of 9 January 2013 that she is “limited to sit down jobs”.
I do not consider that the impairments of the applicant prevent her from undertaking educational or vocational training or on-the-job training during the next two years in terms of s 94(2)(b)(i) of the Act. It is important to mention that the applicant has completed studies in childcare, information technology and office administration.
I would recommend that assistance should be provided to the applicant to identify any suitable training programmes. It is important that she be given support from a social worker.
Having regard to all of the evidence before me, I have come to the conclusion that the applicant does not qualify for disability support pension during the relevant period. The applicant has been advised by Centrelink that she can make another claim for disability support pension to enable her condition to be considered as at a later date.
DECISION
I affirm the decision under review.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD Senior Member .......................[SGD]............................................
Associate
Dated 11 July 2013
Date of hearing 24 June 2013 Applicant In person Solicitors for the Respondent Chris Bishop
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