Suzanne Brown and Secretary, Department of Social Services
[2014] AATA 583
[2014] AATA 583
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0590
Re
Suzanne Brown
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh and Dr J Chaney, Member
Date 21 August 2014 Place Perth The Tribunal affirms the decision under review.
....(Sgd) CR Walsh...............
Senior Member CR Walsh
CATCHWORDS
Social security – disability support pension – applicant had fully diagnosed but not fully treated and stabilised physical impairments arising from a degenerative disease of the lumbar spine and Dupuytren’s contractures of both hands – applicant had hypercholesterolaemia and hypothyroidism which were not fully diagnosed, treated and stabilised – applicant’s physical impairments did not attract 20 points or more under the “Impairment Tables” on the date she claimed DSP or within 13 weeks thereafter – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)
Social Security (Administration) Act 1999 – clauses 3 & 4 of Part 2 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – “Tables for the Assessment of Work Related Impairment”
REASONS FOR DECISION
Senior Member CR Walsh and Dr J Chaney, Member
21 August 2014
INTRODUCTION
Ms Brown seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 9 January 2014, which affirmed a decision of a Centrelink authorised review officer (ARO), dated 6 November 2013, to reject Ms Brown’s claim for disability support pension (DSP) on the basis that she did not satisfy all of the requirements for qualification for DSP, in s 94 of the Social Security Act 1991 (SSA), on the date she claimed DSP.[1]
[1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 29 July 2013.
Specifically, the SSAT decided that whilst Ms Brown suffered from physical impairments arising from a degenerative disease of the lumbar spine and Dupuytren’s contractures of both hands on the date she claimed DSP (and, therefore, satisfied s 94(1)(a) of the SSA), her physical impairments did not attract 20 points or more under the “Tables for Assessment of Work Related Impairment” (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) on the date she claimed DSP or within 13 weeks thereafter, as required by s 94(1)(b) of the SSA.
FACTS & EVIDENCE
By Claim for Disability Support Pension or Sickness Allowance form, dated 10 June 2013, Ms Brown claimed DSP from Centrelink (DSP Claim).
In the DSP Claim Ms Brown stated that:
·the “disabilities” and “injuries” she had were “spinal fusion, degenerative back disease, Dupuytren’s contracture, removal synovial cyst in spinal canal, hypothyroidism, high cholesterol”;
·the treatment she was currently receiving for her disabilities or injuries were “Endep (back),….referral plastic surgeon for Dupuytrens, Mersyndol, Ibuprofen”; and
·the treatment she was currently receiving for her disabilities or injuries affected her ability to “lift/carry/bend. Stand or sit for long periods and walking.”
On 25 June 2013, Ms Brown attended a “job capacity assessment” (JCA) with a Registered Occupational Therapist, JCA assessor, at Centrelink.
In the “Job Capacity Assessment Report”, dated 26 June 2013 (JCA Report), the JCA assessor found that Ms Brown had two medical conditions that could be verified by medical evidence as being fully diagnosed, being a “Spinal Disorder” and a “Shoulder and Upper Arm Disorder”.
The JCA Report described the “Spinal Disorder” as a “severe degenerative facet joint arthropathy with severe foraminal stenosis, L5/S1 and cyst in L5/S1” and its functional impact as follows:
Sensation of lumps under the feet, neuropathic pain in the feet, numbness to the right foot extending up back of leg, slight numbness left calf and leg, mid-lower back pain constantly, worse with rotation, pain left buttock. Difficulty bending and lifting, can’t sit or stand for more than 15 minutes, affects sleep.
In relation to the “Spinal Disorder”, the JCA Report also stated:
The condition is considered permanent as the TDR states that the condition will persist for greater than 24 months and significant improvement is not expected.
The condition is FD as it has been diagnosed by appropriate specialists.
The condition is not considered FTS [fully treated and stabilised] because:
The client may further benefit from a comprehensive pain management program to assist her in maximising her function. The neurosurgical report from Mr Andrew Miles dated 13 December 2012 stated that the client has advised that she has ceased Lyrica and that her leg symptoms are markedly better that preoperatively and he stated that it may take another 12 to 18 months for the nerves to maximally recover (and stabilise). Recent CT scna shows progressive consolidation of the fusion. With a combination of pain management program and time, it is anticipated that the condition is likely to further improve and stabilise so at this stage is not considered FTS [fully treated and stabilised].
The JCA Report described the “Shoulder and Upper Arm Disorder” as “Dupuytren’s Contracture – both hands, onset 2005, diagnosis confirmed by Plastic Surgeon Dr Hanh Nguyen 2006” and its functional impact as follows:
Left hand fixed flexion deformity little finger. Right hand visible defect. Difficulty carrying and typing.
The JCA Report also noted the following findings in relation to the “Shoulder and Upper Arm Disorder”:
The condition is considered permanent due to its long standing nature (since 2005) however it is noted that the TDR [treating doctor] does not state the expected duration of the condition as it depends on the outcome of future surgery.
The condition is FD [fully diagnosed] as it has been diagnosed by the appropriate specialist.
The condition is not FTS [fully treated and stabilised] as the client has not undergone any recent tx [treatment] (last treatment 2006) and with future treatment it is possible that the condition will improve.
The JCA Report did not give an impairment rating under the Impairment Tables to the “Spinal Disorder” or the “Shoulder and Upper Arm Disorder” for the reason that neither condition had been verified as “Fully diagnosed, Treated and Stabilised”.
The JCA Report described Ms Brown’s fully diagnosed, treated and stabilised “work capacity” as:
30+ hours per week, as [she] does not have any permanent, fully diagnosed, treated and stabilised medical conditions.
Further, the JCA Report stated that MS Brown’s “Capacity for work within 2 years with Intervention” as “15-22 Hours per week”.
In the JCA Report, the JCA assessor recommended that Ms Brown be given a “Delayed referral to DES-DMS [Disability Management Services] to allow for the completion of optimal tx [treatment]”.
There is no evidence of Ms Brown having participated in any such “program of support” as at the date of the DSP Claim.
On 29 July 2013, a Centrelink officer rejected the DSP Claim (Original Decision).
On 7 August 2013, Ms Brown requested an internal review of the Original Decision by a Centrelink ARO on the basis that “her condition is degenerative [and] that she will always have pain and has to live with this and should be eligible for DSP”.
On 6 November 2013, in affirming the Original Decision, a Centrelink ARO made the following findings (ARO Decision):
·Ms Brown suffered from the conditions of spinal disorder, Dupuytren’s contracture (both hands), hypercholesterolaemia and hypothyroidism;
·As none of Ms Brown’s conditions had been “fully diagnosed, treated and stabilised” at the time of the DSP Claim, they could not be assigned an impairment rating under the Impairment Tables such that Ms Brown “did not satisfy the 20 point impairment requirement needed to qualify for [DSP]”; and
·She did not have a “continuing inability to work 15 hours per week or more because of [her] impairment”.
On 19 November 2013, Mr Brown applied to the SSAT for a review of the ARO Decision.
On 9 January 2014, the SSAT affirmed the ARO Decision (SSAT Decision). In the SSAT Decision, the SSAT reached the following conclusions:
15. In light of the evidence in the medical reports, the Tribunal finds that, on the date of the claim, Ms Brown suffered from [a] (sic.) impairments due to degenerative disease of the lumbar spine and Dupuytren’s contractures and she therefore satisfied paragraph 94(1)(a) of the [SSA].
…
41. The Tribunal has found that Ms Brown had no permanent impairments attracting any ratings under the Impairment Tables at the date of the claim. Therefore Ms Brown did not satisfy paragraph 94(1)(b) of the [SSA] and was not qualified for disability support pension at that time.
…
42. As the Tribunal has found that Ms Brown did not satisfy paragraph 94(1)(b) of the [SSA] at the date of the claim, it was not required to consider her continuing ability to work.
Medical evidence relevant to DSP Claim
The following medical evidence is relevant to the DSP Claim as it relates to the Relevant Period: refer to paragraph 32 below regarding the meaning of “Relevant Period”. All medical evidence provided by Ms Brown after the Relevant Period, is irrelevant to this application.
Report of Dr Weng Chin (dated 8 December 2012)
In a SKG Radiology report, dated 6 December 2012, Dr Weng Chin stated the following in relation to Ms Brown’s spinal disorder condition:
Sagittal and coronal reconstructions have been performed through the L5/S1 fusion. Pedicular screws are present, together with interbody spacer. There does appear to be early consolidation of the disc with some trabecular formation. There appears to be a minimally displace fracture of the L5 transverse process. Apart from this, the posterior elements appear uncomplicated.
Report of Dr Andrew Miles (dated 13 December 2012)
In a report dated 13 December 2012 Dr Andrew Miles, Neurosurgeon, (Dr Miles Report) stated the following regarding Ms Brown’s spinal disorder condition:
…She reports some ongoing mild intermittent lower back pain with increased activity and prolonged sitting. I have reassured her that this is normal and most likely arising from degenerative disease elsewhere in her lumbar spine. I have encouraged her to persist with an exercise program to strengthen her back and abdominal muscles which hopefully will minimise this symptom. She also describes neuropathic symptoms in the legs but has ceased the Lyrica and does say that the leg symptoms [are] (sic.) markedly better than preoperatively. It may take another 12-18 months for the nerves to maximally recover. Recent CT scan confirms progressive consolidation of the fusion and no untoward features. [Emphasis added]
Reports of Dr Eleanor Sharland (dated 6 June 2013 and 8 August 2013)
In a Centrelink “Medical Report”, dated 6 June 3013, Dr Eleanor Sharland (6 June 2013 Medical Report) diagnosed Ms Brown as suffering from “Severe degenerative facet joint arthopathy, severe foraminal stenosis L5/S1 and cyst in L5/S1” (i.e. Ms Brown’s spinal disorder), Dupuytren’s contracture – both hands, Hypercholesterolaemia and Hypthyroidism;
In relation to Ms Brown’s spinal disorder condition, the 6 June 2013 Medical Report noted that:
·Ms Brown has received surgery for her spinal disorder condition on 24 July 2012 (by Dr Miles),
·Ms Brown may need further surgery for her spinal disorder condition;
·the current treatment for Ms Brown’s spinal disorder condition was physiotherapy, Endep 25mg and Ibuprofen 400mg, as needed;
·the impact of the spinal disorder condition on Ms Brown’s “ability to function” was that she “Can’t bend and lift; can’t sit or stand for more than 15 minutes; affects sleep”; and
·and that her spinal disorder condition was likely to impact on her “ ability to function” for “More than 24 months” and was “Uncertain”.
In relation to Ms Brown’s Dupuytren’s contracture – both hands condition, the 6 June 2013 Medical Report stated that:
·Ms Brown had already had bilateral release surgery (by Dr Nguyen) for the Dupuytren’s contracture - both hands condition in 2006;
·Ms Brown been referred again to Dr Nguyen for further surgery in relation to her Dupuytren’s contracture - both hands condition;
·Ms Brown was genetically predisposed to the Dupuytren’s contracture - both hands condition;
·the Dupuytren’s contracture - both hands condition caused Ms Brown difficulty carrying and typing; and
·how long the Dupuytren’s contracture - both hands condition would continue to impact upon Ms Brown’s “ability to function” was “Uncertain” and was dependent upon the “outcomes of specialist review +/- surgery”.
The 6 June 2013 Medical Report described Ms Brown’s hypercholesterolaemia and hypothyroidism conditions as “generally well managed” and that they caused “minimal or limited impact” on her “ability to function”.
In a report, dated 8 August 2013, Dr Sharland (8 August 2013 Report) stated that Ms Brown:
…is currently on pain medication for her back, as outlined in the [DSP] application form.
They have since been adjusted, with the switch from Endep to Lyrica 75mg BD.
Redimed Pty Ltd letter (dated 20 August 2013)
By letter dated 20 August 2013, Redimed Pty Ltd’s Reception wrote to Ms Brown confirming that a “Fasciectomy left hand + Zplasty” operation had been scheduled for her on 30 August 2013 at Hollywood Private Hospital (Redimed Letter).
Report of Dr Hanh Nguyen (dated 24 September 2013)
In a report dated 24 September 2013, Dr Hanh Nguyen (Dr Nguyen Report) stated the following concerning Ms Brown’s Dupuytren’s contracture - both hands condition:
…It is worse in her left hand. She is not able to extend her fingers fully. She has trouble [of] (sic.) using her hands.
I have advised her that she will need surgery on both hands. She will not be able to use her hands for 6 months.
LEGISLATION & ANALYSIS
A person’s qualification for DSP is required to be assessed based on his or her relevant impairment as at the date that the person claims DSP, or within 13 weeks of that time: see clauses 3 and 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999.
Consequently, Ms Brown’s qualification for DSP is to be assessed based on her physical impairments in the period from 10 June 2013 (being the date of the DSP Claim) to 9 September 2013 (being 13 weeks after the date of the DSP Claim) (Relevant Period).
The requirements for qualification for DSP are set out in s 94 of the SSA, which states:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
…
It is common ground that Ms Brown has physical impairments arising from a degenerative disease of the lumbar spine and Dupuytren’s contractures of both hands on the date of the DSP Claim and she, therefore, satisfied 94(1)(a) of the SSA.
What is in dispute, and what the Tribunal must consider, is whether as at 10 June 2013 (being the date of the DSP Claim), or within 13 weeks thereafter, Ms Brown’s impairments attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether Ms Brown had a “continuing inability to work” on the date of the DSP Claim (or within 13 weeks thereafter) within the meaning and for the purposes of s 94(1)(c) of the SSA.
20 points or more under the Impairment Tables
An impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years: see s 6(3) of the Impairment Determination.
A condition will be “permanent” if it is:
(i)Fully diagnosed by an appropriately qualified medical practitioner;
(ii)Fully treated;
(iii)Fully stabilised; and
(iv)Likely to persist for more than 2 years: see s 6(4) of the Impairment Tables Determination.
Section 6 of Part 2 of the Impairment Determination provides the following guidance as to the meaning of terms such as “fully diagnosed, treated and stabilised”:
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition, and
(b)what treatment or rehabilitation has occurred in relation to the condition, and
(c)whether treatment is continuing or is planned in the next 2 years.
…
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either 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.
…
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
…
It is not in dispute that two of Ms Brown’s physical impairments (being her spinal disorder condition and her Dupuytren’s contracture - both hands condition) were ‘fully diagnosed” by an appropriately qualified medical conditioner as at the Relevant Period for the purposes of s 6(4) of the Impairment Determination. What is in dispute is whether either of Ms Brown’s fully diagnosed physical impairments were “fully treated” and “fully stabilised” as at the Relevant Period for the purposes of s 6(4) of the Impairment Determination.
Spinal disorder condition
The Tribunal considers that Ms Brown’s spinal disorder condition was not “fully treated” and “fully stabilised” as at the Relevant Period for the purposes of s 6(4) of the Impairment Determination, such that it cannot be assigned a rating under the Impairment Tables for the purposes of s 94(1)(b) of the SSA.
In reaching this conclusion, the Tribunal relies on the following evidence:
·The 6 June 2013 Medical Report in which Dr Sharland noted that Ms Brown may require further surgery in relation to her spinal order condition;
·The 6 June 2013 Medical Report and the 8 August 2013 Report in which Dr Sharland reported on adjustments to Ms Brown’s pain medication for the management of her spinal disorder condition; and
·The Dr Miles Report (dated 13 December 2012) in which Dr Miles stated that it “may take another 12-18 months for [Ms Brown’s] nerves to maximally recover”.
Both the JCA assessor (in the JCA Report) and the ARO (in the ARO Decision) commented that pain management was an appropriate treatment for Ms Brown’s spinal disorder condition, particularly since Ms Brown experienced neuropathic pain arising from her spinal surgery on 24 July 2012. Such treatment would, in Ms Brown’s circumstances, seem “reasonable”.
Dupuytren’s contracture - both hands condition
The Tribunal considers that Ms Brown’s Dupuytren’s contracture - both hands condition was not “fully treated” and “fully stabilised” as at the Relevant Period for the purposes of s 6(4) of the Impairment Determination such that it cannot be assigned a rating under the Impairment Tables for the purposes of s 94(1)(b) of the SSA.
In reaching this conclusion, the Tribunal relies on the following evidence:
·The 6 June 2013 Medical Report in which Dr Sharland stated that Ms Brown was waiting on specialist review of and surgery on her hands and that the duration and impact of the Dupuytren’s contracture - both hands condition on Ms Brown’s ability to function was “uncertain” and dependent on the outcome of surgery;
·The Dr Nguyen Report in which Dr Nguyen stated that Ms Brown required surgery on both hands in relation to the Dupuytren’s contracture - both hands condition and that he had arranged for to have the appropriate surgery; and
·The Redimed Letter in which Ms Brown received written confirmation that surgery on her left hand had been scheduled (by Dr Nguyen) on 30 August 2013 at the Hollywood Private Hospital.
Hypercholesterolaemia & Hypothyroidism conditions
The Tribunal finds that Ms Brown’s hypercholesterolaemia and hypothyroidism conditions have not been “fully diagnosed” (by an appropriately qualified medical practitioner), “fully treated” and “fully stabilised” for the purposes of s 6(4) of the Impairment Determination. Consequently, that they cannot be assigned a rating under the Impairment Tables for the purposes of s 94(1)(b) of the SSA.
The reason for this is that, as correctly identified by the JCA assessor (in the JCA Report), there was no evidence of specialist investigation of either of these conditions on the date of the DSP Claim (or in the 13 weeks thereafter). Further, since these conditions were diagnosed by Dr Sharland (in the 6 June 2013 Report) as being well-managed conditions which caused limited or minimal impact on Ms Brown’s ability to function, they would likely attract an impairment rating of zero points as at the Relevant Period under the Impairment Tables.
Conclusion
For the above reasons, Ms Brown’s physical impairments as at the Relevant Period attracted a rating of less than 20 points under the Impairment Tables such that she did not satisfy s 94(1)(b) of the SSA at the Relevant Period. Accordingly, the DSP Claim must fail.
Continuing inability to work
Since for the above reasons the Tribunal finds that Ms Brown’s physical impairments (namely her spinal order condition and her Dupuytren’s contracture – both hands condition) could not be assigned an impairment rating under the Impairment Tables as at the Relevant Period, it is unnecessary for it to consider whether Ms Brown has a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA or whether Ms Brown satisfies the other requirements for qualification for DSP, in s 94 of the SSA.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
50. I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh and Dr J Chaney, Member
..(Sgd) T Freeman.........
Associate
Dated 21 August 2014
Date of hearing 14 August 2014 Advocate for the Applicant Self Representative for the Respondent Ms M de Reus Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Disability Support Pension
-
Medical Evidence
-
Impairment
0
0
0