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

[2020] AATA 1158

Tilbrook and Secretary, Department of Social Services (Social services second review) [2020] AATA 1158 (6 May 2020)

Division:GENERAL DIVISION

File Number:2019/4295          

Re:Louise Tilbrook  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member G Hallwood

Date:6 May 2020

Place:Adelaide

The decision under review is affirmed

..........[sgnd]..........................................................

Member G Hallwood

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Permanent impairment – Sufficient points on impairment tables – Continuing inability to work – Decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Member G Hallwood

6 May 2020

1. This application seeks to review a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 18 June 2019 affirming the decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 27 September 2018.

   THE ISSUES

2. The Tribunal is asked to decide whether Ms Tilbrook qualified for a DSP during the qualifying period between 27 September 2018 and 27 December 2018. The issues to be determined are whether Ms Tilbrook in the qualification period had:

   (a)A physical, intellectual or psychiatric impairment?

   (b)If so, does the impairment rate at least 20 points against the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables)?

   (c)If so, did Ms Tilbrook have a continuing inability to work?

   BACKGROUND

3. On 27 September 2018 Ms Tilbrook lodged a claim for DSP.[1] Her claim included a list of disabilities, illnesses and injuries consisting of:

   [1] Ex R2 (T11) pp 109-141.

   ·     Anxiety;

   ·     Depression;

   ·     Borderline personality disorder;

   ·     Renal;

   ·     Bursitis;

   ·     Scoliosis;

   ·     Eustachian tube dysfunction in both ears;

   ·     Dermatitis;

   ·     Hypoparathyroidism; and

   ·     Cataracts.[2]

   [2] Ex R2 (T11) p 135.

4. On 14 November 2018 Ms Tilbrook’s claim for DSP was rejected by the Department of Human Services (the Department).[3]

   [3] Ex R2 (T16) p 275.

5. Ms Tilbrook requested a review of the decision and on 6 March 2019 an Authorised Review Officer (ARO) affirmed the decision to reject her DSP claim. The ARO found that Ms Tilbrook had the following conditions:

   ·     Hypoparathyroidism;

   ·     Psoriasis;

   ·     Depression;

   ·     Partial hearing loss;

   ·     Kidney disorder;

   ·     Lower and mid back pain;

   ·     Carpal tunnel syndrome;

   ·     Visual loss; and

   ·     Bilateral shoulder bursitis.

6. The ARO also found that the conditions of kidney disorder, lower and mid back pain and bilateral shoulder bursitis were fully diagnosed, fully treated and fully stabilised; assigning 5 points from Impairment Table 2 – Upper Limb Function, and 5 points from Table 4 – Spinal Function. The ARO found the original decision to reject the DSP claim was correct as Ms Tilbrook did not have an impairment rating of at least 20 points.[4]

   [4] Ex R2 (T4) pp 7-10.

7. Ms Tilbrook sought a further review and on 18 June 2019 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject the DSP claim.[5]

   [5] Ex R2 (T3) pp 4-6.

8. On 11 July 2019 Ms Tilbrook lodged an application for review with the General Division of the Administrative Appeals Tribunal and that application is now before this Tribunal.

9. The Department provided 309 pages of documents (T) to the Tribunal. The Tribunal also received the Secretary’s Statement of Issues, Facts and Contentions together with a number of medical reports and written statements from Ms Tilbrook which the Tribunal titled hearing documents and numbered 63 pages (H).  The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.

   THE LEGISLATION AND RULES

10. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.

11. The relevant law is contained in the Social Security Act 1991 (the Act) and Social Security (Administration) Act 1999 (the Administration Act). Also, of relevance are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which contains the Impairment Tables, and Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination).

12. To medically qualify for a DSP a person must meet the qualification criteria set out in   paragraphs (a), (b) and (c) of subsection 94(1) of the (the Act).

    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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

13. The second requirement in paragraph 94(1)(c)[6] is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

    [6] Social Security Act, 1991.

14. To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks, as set out in the Administration Act at subclause 4(1) of Schedule 2.

15. Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP

16. The tables to be applied are contained in the Impairment Tables in accordance with section 27 of the Act.

17. The Impairment Tables contain rules for their application; the Rules for Applying the Impairment Tables (the Rules). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.

18. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition. A person's impairment is to be assessed based on what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person (subsection 6(1) of the Rules).

19. Subsections 6(2) and 6(3) of the Rules set out that the Impairment Tables may only be applied after the person's medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than two years.

20. Subsections 6(3) to 6(7) of the Rules require a condition to be fully diagnosed, fully treated and stabilised, and likely to persist for more than two years in order to be considered permanent.

21. Subsection 6(6) states that a condition is fully stabilised if:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years, or

    (b)the person has not undertaken reasonable medical treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment, or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.

    CONSIDERATION

22. Ms Tilbrook is 55 years old and her working life has largely been in the aged care sector as a carer at many facilities having worked with agencies as well as at Disability SA and for Minda Inc in their aged care facility. She ceased work as a carer in 2014 and started working as a house cleaner until 2018 when she ceased work altogether.

23. Before being largely housebound due to the threat to her health posed by Corona virus, Ms Tilbrook enjoyed Zumba classes (limiting the use of her arms to below shoulder height) and attending fortnightly sci-fi club meetings.

    Does Ms Tilbrook have impairment?

24. In order to qualify for DSP paragraph 94(1)(a) of the Act firstly requires a person to have a physical, intellectual or psychiatric impairment.

25. The Tribunal finds, based on the medical evidence submitted, that during the qualifying period Ms Tilbrook had the impairments that could affect her ability to work:

    ·     Hypoparathyroidism;

    ·     Psoriasis;

    ·     Depression;

    ·     Partial hearing loss;

    ·     Kidney disorder;

    ·     Lower and mid back pain;

    ·     Carpal tunnel syndrome;

    ·     Visual loss; and

    ·     Bilateral shoulder bursitis

    If so, does Ms Tilbrook’s impairment rate at least 20 points against the Impairment Tables?

26. The second requirement under subsection 94(1) of the Act for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables at the time of lodging the claim, or within 13 weeks of that. The qualification period in this case is from 27 September 2018 to 27 December 2018. The Tribunal cannot consider medical problems or developments that have arisen after that time. Such issues can only be addressed by a new claim.

27. The Secretary contends that Ms Tilbrook does not satisfy paragraph 94(1)(b) as she does not have a total impairment rating of 20 points under the Impairment Tables.

28. Before any of Ms Tilbrook’s conditions can be assigned an impairment rating against the Impairment Tables, the condition must be considered permanent.[7]

    [7] Subsections 6(3) and (4) of the Impairment Determination.

29. A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[8]

    [8] Subsections 6(5), (6) and (7) of the Impairment Determination.

30. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[9]

    [9] Subsection 6(4) of the Impairment Determination.

31. A medical certificate dated 11 July 2017 signed by Dr Stefanie Humphray, GP, diagnoses carpal tunnel syndrome and states the condition is temporary.[10] The Tribunal was unable to find any medical evidence that this condition has been treated. For this reason, the Tribunal finds the carpal tunnel syndrome is fully diagnosed but not fully treated or stabilised during the qualification period therefore this condition has not been assessed against the Impairment Tables.

    [10] Ex R2 (T14) p 196.

32. Dr Rajiv Juneja, nephrologist, in a report dated 13 March 2018, indicates that Ms Tilbrook feels well.[11] This is reinforced in a report dated 18 March 2020, and outside the qualification period, that diagnoses chronic kidney disease Stage 3, for which Ms Tilbrook was receiving no specific medication from a renal point of view and noting that her renal function had remained stable over the last few years.[12] For these reasons, the Tribunal finds the renal condition is fully diagnosed, fully treated, and fully stabilised but there is no corroborating medical evidence supporting any functional impact of this condition. For this reason, the Tribunal finds this condition has no functional impact and zero points are allocated against Table 1 – Functions requiring physical exertion and stamina.

    [11] Ex R2 (T14) p 230.

    [12] A3 p 39.

33. Dr Anagha Vase, opthamologist, in a report dated 20 December 2017, diagnoses mild posterior subcapsular cataract in Ms Tilbrook’s right eye. Dr Vase found that Ms Tilbrook had normal uncorrected vision noting that the cataract was not very symptomatic.[13] As there is no treatment, the Tribunal has not assessed this condition against the Impairment Tables.

    [13] Ex R2 (T14) p 205.

34. Associate Professor Stephen Stranks, endocrinologist, in a report dated 23 November 2017, mentions the skin condition ichthyosis. There is no information about treatment or stabilisation of this condition.[14] For this reason the Tribunal has not assessed this condition against the Impairment Tables.

    [14] Ex R2 (T14) p 176.

    Mental Health Conditions

35. In a report dated 27 July 2017 Dr Tushar Singh, psychiatrist, diagnosed Ms Tilbrook as having generalised anxiety disorder, panic attacks, phobias and mild depression. In his recommendations Dr Singh notes previous occasions when Ms Tilbrook had suffered depression in 2000 and 2014 with treatment then including antidepressant medication and a psychologist which had both led to improvements for her. Dr Singh’s report went on to recommend medication and cognitive behavioural therapy.[15]

    [15] Ex R2 (T14) pp 200-202.

36. The Secretary noted[16] that approximately one week before Ms Tilbrook’s claim for DSP and more than a year after Dr Singh’s report, Ms Tilbrook arranged to commence a Mental Health Care Plan with her GP. The plan indicates that Ms Tilbrook was not on any medication and was not seeing a therapist.[17]

    [16] A1 p 7.

    [17] Ex R2 (T14) pp 216-223.

37. While there is evidence that Ms Tilbrook was fully diagnosed by a psychiatrist during her qualifying period, there is no evidence that she had been fully treated or fully stabilised. For this reason, the Tribunal has not assessed this condition against the Impairment Tables.

    Hypoparathyroidism

38. Associate Professor Stranks, in a report dated 2 October 2018, wrote that Ms Tilbrook was asymptomatic.[18] While there is evidence satisfying the Tribunal that Ms Tilbrook’s condition was fully diagnosed, fully treated and fully stable during the qualifying period, there is no evidence that this condition is causing any loss of function. For this reason, the Tribunal finds this condition has no functional impact and zero points are allocated against Table 1 – Functions requiring physical exertion and stamina.

    [18] Ex R2 (T14) p 231.

    Hearing Loss

39. The Secretary contends that, if the hearing loss condition were to be found to be fully diagnosed, fully treated and fully stabilised at the qualification period, that there is little functional impact resulting from this condition.

40. On 17 December 2017 Dr Michael Schultz, ENT surgeon, reported that Ms Tilbrook’s eustachian tube disfunction and significant R>L tympanic retraction was relatively stable and would require six monthly surveillance.[19]

    [19] Ex R2 (T14) p 234.

41. Dr Schultz, in a report dated 10 February 2020 and some fourteen months outside the qualification period, diagnoses persistent bilateral tympanic membrane retraction with an associated mild hearing loss. Dr Schultz indicates that he is considering Ms Tilbrook’s condition from September to December 2018. Dr Schultz notes that the condition has been stable for a number of years and requires six monthly surveillance. Dr Schultz offers an opinion in relation to Table 11 – Hearing and other functions of the ear suggesting 5 points may be appropriate. Dr Schultz does not indicate the functional loss indicators in the Table from which he drew that conclusion but does indicate that Ms Tilbrook is amenable to a hearing aid which is indicative of a mild functional impact. As an indicator of her hearing loss Ms Tilbrook indicated in the hearing that she has been in trouble in the workplace for speaking too loudly.

42. Table 11 - Hearing and other Functions of the Ear is used where a person has a permanent condition resulting in functional impairment when performing activities involving hearing (communication) function or other functions of the ear (e.g. balance). The descriptors for a mild functional impact are contained in the Table.

5

There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.

(1)      The person:

(a)      has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and

(b)      may use a hearing aid, cochlear implant or other device; and

(c)      has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or

(2)      The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).

1. The Tribunal is satisfied that Dr Schultz’ report was based on Ms Tilbrook’s condition during the qualifying period. The Tribunal is also satisfied that Ms Tilbrook’s condition was fully diagnosed, fully treated, and fully stable at that time. The Tribunal has considered the description in Dr Schultz report, and in particular, his indication that Ms Tilbrook is amenable to a hearing aid but that the wearing of hearing aids is contra indicated because of the potential for infection due to previous surgery. For these reasons, the Tribunal finds Ms Tilbrook’s condition has a mild functional impact on her hearing and allocates 5 points under Table 11 – Hearing and other functions of the ear.

   Spinal Condition

2. Ms Tilbrook’s lower and mid back pain has been well documented, and the Secretary does not dispute that it was fully diagnosed, fully treated and fully stabilised during the qualifying period. The Tribunal is also satisfied this is the case.

3. Dr Peita Rowlands, chiropractor, in a report dated 20 October 2018, describes treatment including gentle manipulation, home exercise advice, and Zumba classes.[20] This report is consistent with a report from Dr Ben Wingfield, chiropractor, dated 26 November 2017.[21]

   [20] Ex R2 (T14) p 232.

   [21] Ex R2 (T14) pp 212-213.

4. A report from Dr Wingfield dated 3 March 2020, more than 15 months after the qualifying period, Dr Wingfield indicates that Ms Tilbrook was, during the qualifying period, functionally impaired in her lower back. Dr Wingfield described Ms Tilbrook as having an overall Oswestry low back pain disability score resulting in a 44% disability.[22] This score suggests for Ms Tilbrook that “pain remains the main problem in this group but activities of daily living are affected”. Dr Wingfield offered an opinion that Ms Tilbrook’s spinal conditions had a moderate impact on her functioning.

   [22] Ex A2 pp 28-33.

5. Table 4 – Spinal function is used where a person has a permanent condition resulting in functional impairment when performing activities involving spinal function.

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. In discussing the functional impact of her spinal condition on her activities Ms Tilbrook indicated that she has some difficulty when performing activities over head height and has to remember not to lift her arms above her shoulders while doing Zumba. Ms Tilbrook does not like to drive far, although she described her biggest barrier was large amounts of traffic and a preference to only drive in places she knows. She will catch public transport including multiple buses and trains to get to appointments. Ms Tilbrook said she has problems bending to knee level and straightening up without difficulty, finding it difficult on bad days. Ms Tilbrook said that she can look upwards, indicating she has recently seen a spider on her ceiling, but has difficulty turning her trunk but that this was mainly due to problems with her hips.

2. Based on Ms Tilbrook’s functional descriptions, together with the various above-mentioned assessment of Dr Wingfield, the Tribunal finds of Ms Tilbrook that there is a mild functional impact on activities involving spinal function and is allocated 5 points against Table 4 – Spinal Function.

   Upper Limb

3. An ultrasound report dated 6 November 2015 signed by Dr Khimseng Tew, radiologist, identifies bilateral subacromial bursitis.[23] The Job Capacity Assessment Report dated 10 April 2018[24] describes Ms Tilbrook’s musculoskeletal disorder; based on a number of medical reports including Dr Wingfield of 20 November 2015,[25] Dr Jean Engela (X-ray report) of 11 April 2008,[26] and Dr Humphry’s report of 11 July 2017;[27] as fully diagnosed, fully treated and fully stabilised. The Tribunal is satisfied this is the case.

   [23] Ex R2 (T14) p 172.

   [24] Ex R2 (T12) pp 156-157.

   [25] Ex R2 (T14) p 174.

   [26] Ex R2 (T14) p 188.

   [27] Ex R2 (T14) p 196.

4. The Job Capacity Assessment Report dated 10 April 2018[28] also notes reports from Dr Preveena Nair, GP, of 8 January 2018[29] and Dr Humphry, GP, dated 11 July 2017[30] and Dr Wingfield of 20 November 2015[31] as being consistent with spinal conditions having a mild functional impact on Ms Tilbrook.

   [28] Ex R2 (T12) p 160.

   [29] Ex R2 (T14) p 199.

   [30] Ex R2 (T14) p 196.

   [31] Ex R2 (T14) p 174.

5. Table 2 – Upper limb function is used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

There is a mild functional impact on activities using hands or arms.

(1)      The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)      picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)      handling very small objects (e.g. coins);

(c)      doing up buttons;

(d)      reaching up or out to pick up objects.

There is a moderate functional impact on activities using hands or arms.

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

1. At the hearing Ms Tilbrook described being unable to lift a litre of milk. Under cross examination Ms Tilbrook stated that her physiotherapist had restricted her to lifting no more than three kilograms and Ms Tilbrook did not seem to be aware that a litre of milk was approximately one kilogram. Ms Tilbrook described being very limited and unable to pick up anything when she is not well and picking up more on good days. She said she was able to unscrew the top of a soft drink bottle, use a computer keyboard, and hold a pen or pencil. Ms Tilbrook told the Tribunal she can usually do up buttons although at times has numbness in her fingers which gives her some difficulty. Ms Tilbrook’s descriptions closely align with the descriptions of a mild functional impact in Table 2- Upper Limb Function.

2. Based on Ms Tilbrook’s evidence together with the corroborating evidence as described in the Job Capacity Assessment of 10 April 2018 the Tribunal is satisfied that Ms Tilbrook’s upper limb conditions have a mild functional impact on her activities requiring the use of her hands and arms. For this reason, the Tribunal allocates 5 points against Table 2.

   Total Impairment Rating

3. The Tribunal finds Ms Tilbrook has a total impairment rating of 15 points comprised of: 5 points under Table 2 – Upper limb function; 5 points under Table 4 – Spinal function; and 5 points under Table 11 – Hearing and other functions of the ear.

4. The Tribunal in this matter recognises that Ms Tilbrook has impairments that are having a significant impact on her life, and that the snapshot of these impairments during the qualification period, based on her conditions that were fully stabilised at that time, may not be reflective of her current condition.

5. As Ms Tilbrook scores less than 20 points against the Impairment Tables she does not satisfy the requirements of paragraph 94(1)(b) of the Act and so does not qualify for a DSP.

   Did Ms Tilbrook have a continuing inability to work?

6. As one of the required criteria to qualify for DSP that “the person’s impairment is of 20 points or more under the Impairment Tables”[32] has not been met the Tribunal is not required to further explore Ms Tilbrook’s continuing inability to work as she cannot qualify regardless of the findings on this matter.

   [32] Subsection 94(1)(b) of the Act.

   CONCLUSION

7. The Tribunal finds that Ms Tilbrook does not qualify for DSP in the qualifying period.

   DECISION

8. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

.............[sgnd].................................................

Administrative Assistant Legal

Dated: 6 May 2020

Date of hearing:	27 April 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr C Visser, Department of Human Services