Thomas and Secretary, Department of Social Services (Social services second review)

[2018] AATA 1629

Thomas and Secretary, Department of Social Services (Social services second review) [2018] AATA 1629 (6 June 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0621

Re:Jule Thomas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 June 2018

Place:Sydney

The decision under review is affirmed.

...........................[sgd].............................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – application for the disability support pension – physical, intellectual or psychiatric impairment – impairment rating of 20 or more points – fully diagnosed, treated and stabilised condition – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Dr L Bygrave, Member

6 June 2018

INTRODUCTION

1. The applicant, Ms Jule Thomas, was in receipt of the disability support pension from 3 July 2012.

2. On 31 August 2017, the Department of Human Services (Centrelink) decided to cancel Ms Thomas’ disability support pension on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 12 October 2017.

3. Ms Thomas applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and on 30 January 2018, the SSCSD affirmed Centrelink’s decision to cancel Ms Thomas’ disability support pension.

4. On 9 February 2018, Ms Thomas lodged an application for review to the General Division of the Tribunal.

5. The matter was heard in Sydney on 24 May 2018. Ms Thomas did not have legal representation; she attended the hearing in person and gave oral evidence.

   RELEVANT LEGISLATION AND ISSUES

   Qualification for disability support pension

6. To qualify for the disability support pension, Ms Thomas must satisfy the criteria in subsection 94(1) of the Act, which requires her to show she has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Ms Thomas must have satisfied these criteria on 31 August 2017, the date on which her disability support pension was cancelled: subsection 118(13) of the Social Security (Administration) Act 1999.

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding ratings. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevant to this matter is the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition. It states that the diagnosis of the condition:

    must be 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).

14. The Secretary concedes, and the Tribunal agrees, that Ms Thomas suffers medical conditions that cause impairment and therefore she satisfied paragraph 94(1)(a) of the Act at the date of cancellation.

15. It follows that the determinative issues in this matter are whether Ms Thomas had at the date her disability support pension was cancelled:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Does Ms Thomas have medical conditions that can be rated at 20 points or more under the Impairment Tables?

16. The evidence before the Tribunal shows Ms Thomas has the following medical conditions:

    ·spinal condition/chronic regional pain syndrome/fibromyalgia;

    ·post-traumatic stress disorder (PTSD);

    ·emphysema/chronic obstructive pulmonary disease (COPD); and

    ·bilateral foot pain.

17. I now consider each of these medical conditions and their relevant rating in accordance with the Impairment Tables Determination.

    Spinal condition/chronic regional pain syndrome/fibromyalgia

18. Medical imaging reports before the Tribunal in relation to Ms Thomas’ spine show:

    ·On 1 November 2016, Dr K Chan (radiologist) reported that a CT of Ms Thomas’ thoracic and lumbar spine showed ‘[n]o established spondylosis with minimal lower lumber disc bulging. Advanced right L4/5 facet joint arthropathy.’[1]

    ·On 20 December 2016, Dr Shabeer Hassam (radiologist) commented on an MRI scan of Ms Thomas’ whole spine and stated that there:

    …is no significant lesion in the cord. No significant central canal narrowing. There is moderate narrowing of the right C5/6 and mild to moderate narrowing of the left exit foramen at the same level. No significant intracranial abnormality.[2]

    ·On 8 March 2017, Dr Wan Yin Lim (radiologist) found an MRI of Ms Thomas’ whole spine showed ‘L4/5 moderate and L3/4 mild bilateral facet arthropathy, and L5/S1 annular fissure, may potentially be accounting for the lower back pain. Otherwise, no significant central canal or neural foraminal stenosis identified.’[3]

    [1] Exhibit T, T13.

    [2] Exhibit T, T15.

    [3] Exhibit T, T17.

19. A medical report for disability support pension review for portability completed by Dr Kyran Smith (general practitioner) on 22 March 2017 verified that Ms Thomas has had chronic thoracic back pain since 2001. He reported Ms Thomas’ symptoms as ‘“seizures” once or twice a week with severe pain & weakness of legs lasting up to 30 min. Unpredictable but sometimes exacerbated by activities & movements.’[4] Dr Smith noted Ms Thomas had consulted an orthopaedic specialist and undertaken treatment including physiotherapy, massage and swimming, and described her functionality as follows:

    Movement – No bending/twisting/lifting/driving

    Limited endurance – can walk 5 min, stand 5 min, sitting 30 min

    Independent in ADLs [activities of daily living][5]

    [4] Exhibit T, T19.

    [5] Exhibit T, T19.

20. On 29 June 2017, Centrelink reported that Dr Smith stated in a telephone interview that Ms Thomas’ MRI and CT scans have ‘not revealed any structural deficits’, ‘this condition is best diagnosed as chronic regional pain syndrome’, and her symptoms and functional impacts were:

    Chronic ongoing pain, unexplained neurological episodes which [Ms Thomas] reports to be seizures. [Dr Smith] stated that no loss of consciousness is attained and it is unsure if she is experiencing muscle spasms or an actual neurological episode resulting in loss of function and sensation. [Dr Smith] has not witnessed one of these episodes nor has she presented to medical practitioner/hospital for these so they remain undetermined. The seizures also don’t fit into a diagnostic profile...[6]

    [6] Exhibit T, T23.

21. A Job Capacity Assessment (JCA) report dated 6 July 2017 concluded that Ms Thomas’ condition was not fully diagnosed, treated or stabilised because the ‘medical imaging does not provide any diagnostic information that would account for [her] pain and symptoms’.[7] The JCA also considered that Ms Thomas could benefit from a multidisciplinary treatment approach to manage her pain and symptoms and/or neurology to determine the diagnosis of pain and treatment.

    [7] Exhibit T, T25.

22. At the Tribunal hearing, Ms Thomas stated that she decided to seek assessment by a neurologist following the JCA and travelled to France in July 2017 to see a specialist. There are no reports before the Tribunal in relation to any medical assessment of Ms Thomas’ condition while she was in France and she told the Tribunal this process had not provided her with any further treatment options. Ms Thomas said she then travelled to Portugal where she stayed with a friend for the period of August to December 2017. However, she did not seek any further medical assistance for her spinal condition until October 2017 when she visited Professor Antonio Freire Gonçalves (neurologist).

23. Professor Gonçalves reported on 4 October 2017 that:

    The final diagnosis is fibromyalgia, complicated by the presence of degenerative changes in the spine, with permanent incapacity for normal physical activity and possibly no chance of significant improvement in the future.[8]

    [8] Exhibit T, T34 page 229.

24. Ms Thomas returned to Australia in December 2017. She provided the Tribunal with further medical reports and discharge referral notes from the Royal North Shore Hospital, which show she was admitted for hospital for assessment and medical care from 15 to 20 December 2017. A report by Dr Rodger Laurent (rheumatologist) dated 29 January 2018 summarised that Ms Thomas’ ‘major problems are fibromyalgia, cervical spondylosis with a right C6 radiculopathy, thoracic and lumbar spondylosis and marked deconditioning’.[9]

    [9] Exhibit T, T34, page 227.

25. Dr Patricia Brazier (general practitioner) provided reports dated 12 February 2018[10] and 9 April 2018[11] in which she further verified a diagnosis of chronic pain syndrome. I note that on 9 April 2018, Dr Brazier reported on the symptoms suffered by Ms Thomas as at the date of cancellation of her disability support pension. However, I am unable to place any weight on this information because Ms Thomas did not receive medical care or assessment from Dr Brazier until January 2018 and consequently, I cannot be satisfied that Dr Brazier was in a position to independently and accurately assess Ms Thomas’ functionality in relation to her spinal condition on 31 August 2017. Ms Thomas confirmed at the Tribunal hearing that Dr Brazier’s report reflected only the information she conveyed to Dr Brazier after she returned to Australia, four months after her disability support pension was cancelled.

    [10] Exhibit T, T34 page 226.

    [11] Exhibit A1.

26. As set out above, I must assess Ms Thomas’ spinal condition as at 31 August 2017, the date her disability support pension was cancelled. Ms Thomas told the Tribunal that in August 2017 she was residing with her friend in Portugal. She said her spinal condition has remained the same since 2012 when she first received the disability support pension and contended the medical evidence has been consistent in terms of diagnosing that she suffers from chronic pain in her spine. She has found pain medication has no effect and the treatment that provides her most benefit is regular massage and swimming. Ms Thomas explained that she travelled to Bali between 2013 and 2015 to access massage therapy, which is less expensive than in Australia. She also said that she travelled overseas to the United States of America and Canada during this period to undertake voluntary work. The Tribunal notes that Ms Thomas’ travel record shows she travelled overseas on four occasions in 2013, six occasions in 2014, twice in 2015 and once in 2017.[12]

    [12] Exhibit T, T36 page 265.

27. Based on the evidence, I am satisfied that Ms Thomas suffered from long-term chronic thoracic back pain, which was diagnosed as ‘chronic regional pain syndrome’ as at 31 August 2017. However, it was not until October 2017, more than five weeks after Ms Thomas’ disability support pension was cancelled, that she consulted a neurologist who diagnosed her with ‘fibromyalgia’. While I accept Ms Thomas’ submission that she does not respond to pain medication, I also note that treatment of physiotherapy recommended by Dr Laurent on 29 January 2018 was approximately five months after Ms Thomas’ disability support pension was cancelled. I am therefore not satisfied that Ms Thomas’ condition was fully diagnosed, fully treated and fully stabilised as at the date her disability support pension was cancelled. For this reason, I am unable to assign any points for this condition in accordance with the Impairment Tables Determination.

    PTSD

28. Dr Smith reported on 22 March 2017 that Ms Thomas likely has PTSD and has been suffering from anxiety, nightmares, inner restlessness and distress following a physical assault and subsequent court proceedings.[13]

    [13] Exhibit T, T19, pages 169-171.

29. Ms Thomas confirmed at the Tribunal hearing that she viewed this condition as temporary and she has not seen either a clinical psychologist or a psychiatrist for assessment or treatment. As this condition was not permanent at the date Ms Thomas’ disability support pension was cancelled and has not been diagnosed by an appropriately qualified medical practitioner as required by the Impairment Tables Determination, I am unable to assign any points for this condition.

    Emphysema/COPD

30. Dr Peter Jones (general practitioner) reported on 13 July 2012 that Ms Thomas has persistent coughing and smoking-related COPD, which requires further investigation and management.

31. On 22 March 2017, Dr Smith listed ‘mild emphysema’ as a condition that is generally well managed and causes minimal functional impact.[14] Dr Smith also stated to Centrelink on 29 June 2017 that this condition has ‘no functional impact’ and Ms Thomas’ lung function ‘is good’.[15]

    [14] Exhibit T, T19.

    [15] Exhibit T, T23.

32. Dr Richard Shaw (neurologist) reported on 20 December 2017, almost four months after Ms Thomas’ disability support pension was cancelled, that Ms Thomas has ‘shortness of breath on exertion, [and] limited lung capacity’.[16]

    [16] Exhibit T, T34.

33. Ms Thomas told the Tribunal her COPD continues to be treated with medication and she has not seen a specialist.

34. I find the medical evidence in relation to Ms Thomas’ COPD is limited and inconsistent, and there is a lack of specialist assessment. I am therefore not satisfied that this condition was fully treated and fully stabilised at the date of cancellation and, for this reason, I cannot assign any points in accordance with the Impairment Tables Determination.

    Bilateral foot condition

35. Dr Smith reported on 29 March 2017 that Ms Thomas:

    …has reported bilateral foot and ankle pain since the assault [in September 2016]. She has been seen by the orthopaedic team and had a number of imaging studies done including an MRI. These have not shown any major structural damage. But the pain has continued and is restricting how far [Ms Thomas] can walk and what sort of footwear she can use. [Ms Thomas] has also experienced knee pain… [17]

    [17] Exhibit t, T21.

36. At the hearing, Ms Thomas told the Tribunal that she continues to have difficulty walking and she is seeking further neurological investigation.

37. Due to the minimal medical evidence before the Tribunal, I am not satisfied this condition was fully diagnosed, fully treated and fully stabilised at the date Ms Thomas’ disability support pension was cancelled. I therefore cannot assign any points for this condition in accordance with the Impairment Tables Determination.

    CONCLUSION

38. For the reasons set out above, I am satisfied that Ms Thomas did not meet the requirements of paragraph 94(1)(b) of the Act at the date her disability support pension was cancelled because her impairments were not rated at 20 points or more under the Impairment Tables.

39. As I find that Ms Thomas did not qualify for the disability support pension at the date of cancellation, it is not necessary for me to consider whether she had a continuing inability to work.

40. If Ms Thomas’ circumstances change, she is entitled to submit a new application for the disability support pension.

    DECISION

41. The decision under review is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[sgd]............................................

Associate

Dated: 6 June 2018

Date(s) of hearing:	24 May 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Sangha, Department of Human Services