Thomas and Secretary, Department of Social Services (Social services second review)
[2015] AATA 851
•6 November 2015
Thomas and Secretary, Department of Social Services (Social services second review) [2015] AATA 851 (6 November 2015)
Division
General Division
File Number(s)
2015/2125
Re
Sharon Thomas
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 6 November 2015 Place Sydney The decision under review is affirmed.
........................................................................
Mr S. Webb, Member
SOCIAL SECURITY – Disability Support Pension – impairments - diagnosed conditions not fully treated or stabilised – impairments do not attract rating of 20 or more points – no continuing inability to work - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42, Schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
6 November 2015
Sharon Thomas suffers from a number of conditions that affect her ability to function. She claimed Disability Support Pension (DSP). Her claim was rejected. That decision has been affirmed on review, most recently by the (former) Social Security Appeals Tribunal (SSAT). Ms Thomas has applied for review.
ISSUES
The issue to be decided is whether Ms Thomas’ DSP claim can be granted. For that to be done, she must satisfy each of the essential qualification criteria set out in s 94 of the Social Security Act 1991 (Cth) (the Social Security Act) for grant of DSP. The key criteria that arise in the context of this review are –
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;
…
QUALIFICATION PERIOD
Under the ‘start day’ rules under ss 41, 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), for DSP to be payable, each of these criteria must be satisfied on the day Ms Thomas lodged her DSP claim or within 13 weeks thereafter. This means that grant of DSP is dependent upon Ms Thomas satisfying the qualification criteria within 13 weeks of lodging her claim. As she lodged her claim on 16 October 2014, she must be found to satisfy the qualification criteria on that day or by 15 January 2015. I will refer to this period as the qualification period for her claim.
PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT
In her DSP claim, Ms Thomas indicated that she suffered from the following conditions –
(a)cerebral aneurysm,
(b)depression,
(c)high blood pressure,
(d)muscular sinus disease,
(e)migraines, and
(f)tremors.
With the exception of ‘muscular sinus disease’ and ‘tremors’, the existence of these conditions is confirmed by medical reports of Dr De La Cruz, treating general practitioner,[1] and Dr Serisier, treating neurologist.[2] On the medical report of Dr De La Cruz dated 14 October 2014, I am satisfied that the conditions give rise to, or are themselves, impairments for the purposes of s 94(1)(a) of the Social Security Act.
[1] T4.
[2] T10.
RATING OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES
The second requirement is that Ms Thomas’ impairments must attract a rating of 20 or more points under the Impairment Tables. These Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
The Determination is a legislative instrument. It sets out rules in Part 2 that must be applied when determining whether a rating can be assigned under one or more of the Impairment Tables in Part 3. The rating of each impairment is to be made with reference to the DSP claim qualification period.
Under rule 6(3), an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment is more likely than not to persist for more than two years. Rule 6(4) provides that a condition is taken to be permanent only if each of the four preconditioning criteria is made out – the condition has been fully diagnosed (by an ‘appropriately qualified medical practitioner’, being a medical practitioner with qualifications and practice relevant to diagnosing a particular condition), fully treated (rule 6(5) applies), fully stabilised (rule 6(6) applies) and it is likely to persist for more than two years. If the condition is not ‘permanent’, any resulting impairment cannot be assigned a rating under the Impairment Tables.
Cerebral aneurysm
It appears on the report of Dr De La Cruz that the date of onset of this condition was in October 2013 and the initial diagnosis was made by Dr Serisier.[3] On 14 October 2014, Dr De La Cruz reported that the condition was expected to persist for 13 to 24 months and the effect of the condition on Ms Thomas’ ability to function within the next two years was uncertain.[4]
[3] T4 folio 95.
[4] T4 folio 97.
In her DSP claim, Ms Thomas indicated that she expected to undergo an operation to treat her cerebral aneurysm.[5] On 3 November 2014, in a job capacity assessment, Ms Thomas reported that investigations in the form of an MRI scan and blood tests were ongoing and she was due to consult Dr Serisier for review on 4 November 2014.[6] In her oral evidence, she explained that three months ago, in or about August 2015, Dr Serisier recommended that she should not undergo an operation at this time.
[5] T5 folio 115.
[6] T7 folio 133.
On balance, the evidence does not establish that Ms Thomas’ cerebral aneurysm condition was ‘permanent’ during the qualification period – I am satisfied that it was not fully treated or fully stabilised at that time.
It follows that this condition cannot be assigned an impairment rating.
Migraine
Ms Thomas told me that she has suffered from severe headaches from time to time since 2008, when she was admitted to Wollongong Hospital. She said that she was prescribed medications at the time. She told me that her headaches became substantially worse in 2014 and that she has a headache all of the time, but she suffers severe headaches roughly every three days.
On 14 October 2014 Dr De La Cruz reported that “Headaches got worse when aneurysm was diagnosed last year”.[7] Dr De La Cruz’s report proceeds on the basis of an association between Ms Thomas’ headaches and her cerebral aneurysm condition – he reports that treatment for the cerebral aneurysm is “Headache medications” for example.
[7] T4 folio 97.
On 7 November 2014, Dr Serisier reported –
This woman has been under my care over the last 14 months for intractable migraine headaches. This has been treated previously with Sandimgran and is currently under therapy with Isoptin and Topomax. Maxalt wafers are being used for acute attacks. She has also been given a small dose of Endep. The situation is complicated by hypertension and the presence of a small cerebral aneurysm which is under regular review.
Unhappily at this stage her headaches remain poorly controlled and at such frequency and severity that she has been unable to attend work.[8]
[8] T10 folio 140.
On this evidence, it appears that the migraine headache condition from which Ms Thomas suffers was complicated by hypertension and her cerebral aneurysm condition, and it was not fully stabilised as of 7 November 2014. By Ms Thomas’ own account, surgical treatment was only ruled out three months ago, in or about August 2015. The present evidence does not establish that Ms Thomas’ headache condition was fully treated or fully stabilised during the qualification period. For this reason, it cannot be considered ‘permanent’ at that time and an impairment rating cannot be assigned.
Muscular sinus disease
There is very scant evidence of this condition. Dr De La Cruz did not refer to it in his medical report of 14 October 2014 and Dr Serisier did not mention it in his report of 7 November 2014.
Ms Thomas told me that this condition commenced after her cerebral aneurysm was diagnosed and that Dr De La Cruz referred her for an MRI scan in or about January 2015 as she had been suffering bad nose bleeds. She said that the doctor prescribed a puffer treatment which helps with symptoms.
The present evidence does not establish that this condition was diagnosed, fully treated or fully stabilised during the qualification period. For this reason, it cannot be assigned an impairment rating.
Depression
In his report of 14 October 2014, Dr De La Cruz recorded Ms Thomas’ depression as a condition that had minimal or limited impact on her ability to function.
Ms Thomas told me that she has suffered from depression for a number of years, since she was admitted to the Wollongong Hospital in 2008. She saw a psychologist at the Wollongong Hospital and she was prescribed Endep. She said that, until 2014, she thought that she could manage symptoms of depression herself, taking half an Endep tablet from time to time. By her account, the condition became worse sometime in the latter part of 2014 and more recently. She consulted Dr Serisier, who recommended increasing the dose of Endep. Dr De La Cruz referred her to a psychologist for treatment. She started consulting a psychologist five weeks ago.
On the present evidence, I am unable to conclude that Ms Thomas’ depression was ‘permanent’ during the qualification period. To my mind, it was not fully treated or fully stabilised at that time. Furthermore, it was causing only a minimal impact on Ms Thomas’ ability to function, such that even it is was accepted as permanent, it would attract a Nil rating.
Hypertension
Dr De La Cruz does not refer to hypertension or high blood pressure in his report of 14 October 2014. On 7 November 2014, however, Dr Serisier reports hypertension as a complication of Ms Thomas’ migraine headaches. Dr Serisier’s report does not establish that Ms Thomas’ hypertension was fully treated or fully stabilised at that time.
I accept that Ms Thomas has had high blood pressure from time to time. She told me that she was prescribed blood pressure medication in early 2009, but she stopped taking this. She explained that she was found to have low levels of iron, so she took iron pills to manage this. By her account, in 2014 she experienced dizzy spells and hot flushes for which Dr Serisier prescribed blood pressure medication, which she takes every morning. She told me that her blood pressure and related symptoms are now well controlled.
The present evidence is not sufficient to establish that Ms Thomas’ hypertension was ‘permanent’ during the qualification period, or that it was the cause of impairment likely to persist for more than two years at that time. Even if it was found to be permanent, on the present evidence it would not attract a rating of more than nil impairment points.
Tremors
With regard to the ‘tremors’, Ms Thomas explained that she experiences profound shaking (to the point where she cannot hold onto anything). This, she says, has been ongoing from the latter part of 2014. She associated it with panic attacks and becoming very nervous in many situations, if she has to talk to her TAFE class for example. Her evidence is that she discussed these symptoms with her treating doctors and with the psychologist she has been consulting over the past five weeks in respect of depression, but no specific treatment has been prescribed other than breathing techniques.
Dr De La Cruz and Dr Serisier did not refer to tremors or panic attacks in their reports.
It is conceivable that the symptoms Ms Thomas described are manifestations of a mental condition, possibly associated with ‘depression’, for which she is now obtaining treatment. But this is not established by evidence.
I am unable to find that the tremors or panic attacks Ms Thomas described is a condition that was diagnosed, fully treated and fully stabilised during the qualification period. For this reason, it is not a ‘permanent’ condition and it cannot be assigned an impairment rating.
IMPAIRMENT POINTS
The conditions and impairments Ms Thomas suffers cannot be assigned an impairment rating under the Impairment Tables during the qualification period.
It follows that Ms Thomas does not satisfy the second essential requirement to qualify for grant of DSP.
For this reason her claim cannot succeed.
CONTINUING INABILITY TO WORK
Ms Thomas gave evidence that she was in employment when she lodged her claim for DSP and she has continued in that employment to the present day. By her account she has worked more than 15 hours per week, and in some instances up to 92 hours in a fortnight.
The records of her employment and earnings in Exhibit 1 confirm her account.
For this reason, alone, Ms Thomas cannot qualify for grant of DSP – she did not have a continuing inability to work 15 or more hours per week during the qualification period.
CONCLUSION
Ms Thomas’ DSP claim cannot be granted. Her various conditions and impairments do not attract a rating of 20 or more points under the Impairment Tables and she did not have a continuing inability to work 15 or more hours per week during the qualification period.
I note that Ms Thomas has obtained further treatment for her conditions and she is about to leave work because she says that she is unable to continue for health reasons. There is no bar to her lodging a fresh claim for DSP if she considers it necessary to do so.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..............................[sgd]..........................................
Associate
Dated 6 November 2015
Date(s) of hearing 22 October 2015 Applicant By phone Solicitors for the Respondent Department of Social Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairments
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Continuing Inability to Work
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