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

[2020] AATA 805

Trinick and Secretary, Department of Social Services (Social services second review) [2020] AATA 805 (4 March 2020)

Division:GENERAL DIVISION

File Number:  2019/2146

Re:Linda Trinick

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner, Member

Date:4 March 2020

Date of written reasons:        9 April 2020

Place:Perth

The Tribunal affirms the decision under review.

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

Brigadier A G Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c)

Social Security (Administration) Act 1999 (Cth) – Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011

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

CASES

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Harris v Secretary, Department of Employment and Workplace Relations (2007)
158 FCR 252

SECONDARY MATERIALS

Guide to Social Security Law, Department of Social Services, version 1.262

REASONS FOR DECISION

Brigadier A G Warner, Member

9 April 2020

INTRODUCTION

1. On 4 March 2020, the Administrative Appeals Tribunal (the Tribunal), at the conclusion of a hearing held that day, gave oral reasons for its decision to affirm the decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 20 March 2019. That AAT1 decision affirmed an earlier decision of the Department of Social Services to reject Mrs Trinick’s disability support pension (DSP) claim which was lodged on

   
   

   25 August 2017 (T2/6-14).

2. The hearing of this matter commenced on 8 January 2020 but was adjourned due to difficulties with the written material. The hearing resumed on 4 March 2020 and the Tribunal recorded its appreciation for the patience and cooperation of the parties.

   
   

   Mrs Trinick attended the hearing by telephone conference and gave evidence on affirmation.

3. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.

4. Mrs Trinick subsequently requested a written statement of reasons on 13 March 2020. The written reasons which follow are distilled from the edited transcript of the oral reasons for decision given on 4 March 2020.

   BACKGROUND

5. On 25 August 2017 Mrs Trinick lodged her claim for DSP. In that claim she referred to her medical conditions as an underactive thyroid, fibromyalgia, Lyme’s disease, menopause, osteoarthritis, alopecia, cellulitis, scalp infection, skin infections, and ongoing urinal infections (T17/151). At the time of the claim Mrs Trinick was 54 years old.

6. On 16 September 2017, an Assessment Services Recommendation for DSP medical eligibility was conducted in which Mrs Trinick was considered to be ‘manifestly medically ineligible’ for DSP. The recommendation provided in part:

   Whilst it is noted that the treating doctors have provided several referrals to specialists including Dr Margaret Mazur for treatment of fibromyalgia, Professor Kurt Gebauer for treatment of Alopecia, Dr Arellano for the treatment of possible Lyme Disease - there is no corresponding medical evidence that review and or [sic] treatment for these conditions has occurred.

   As such there is insufficient medical documentation to determine whether the recipient has been managed by relevant specialists and whether all reasonable treatment options have been exhausted at this stage. Therefore the conditions are unable to be considered FDTS at this time (T19/167).

7. On 11 October 2017 the claim for DSP was rejected on the basis that Mrs Trinick did not have an impairment rating of 20 points or more under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Determination) (T20/168-169). She sought review of the decision by an authorised review officer (ARO) of the Department of Human Services and on 27 June 2018 an ARO affirmed the decision under review (T23/172-175), finding that the 11 October 2017 decision was the correct decision.

8. On 30 November 2018 Mrs Trinick sought review of the decision by the AAT1 and on
   20 March 2019 that tribunal affirmed the decision under review, agreeing with the findings of the ARO. The AAT1 found that Mrs Trinick’s conditions attracted nil impairment points under the Impairment Tables (T2/6-13). In its decision, the AAT1 concluded as follows:

   Mrs Trinick may consider testing her eligibility for disability support pension again, with further recent medical evidence from relevant specialists involved in the management of her various medical conditions (T2/13).

9. In her current application for review before this Tribunal, Mrs Trinick claims that the AAT1 decision was wrong for the following reason:

   I had provided Centrelink Medical Certificates that day before hearing, and advised reviewer as this document addressed all the criterias [sic] for the reason the reviewer objected my claim. If he had accepted the document there would have been no need for me to go through this 2nd decision appeal which is hard when you have a disab (T1/5).

   ISSUE

10. The Tribunal must decide whether at the date of the claim for DSP, that is 25 August 2017 or within 13 weeks of that date, Mrs Trinick had a physical, intellectual or psychiatric impairment(s). If so, whether the impairment(s) attract an impairment rating of at least
    20 points under the Impairment Tables and, if so, whether Mrs Trinick had a continuing inability to work (CITW).

    LEGISLATION

11. The legislation applicable in this matter is contained in: the Social Security Act 1991 (Cth) (the Act); the Social Security (Administration) Act 1999 (Cth) (the Administration Act); the Determination; and the Social Security (Active Participation for DisabilitySupport Pension) Determination 2014 (the POS Determination).

12. The statutory and policy provisions are laid out comprehensively in the Secretary’s Statement of Facts and Contentions dated 17 September 2019 (Exhibit R1, paras 20-29).
    The qualification criteria for DSP can be summarised as follows:

    (a)Section 94 of the Act sets out the first requirement for qualification for the DSP, and that is that a person had an impairment at the time they lodged their claim. In this matter the Respondent accepts (Exhibit R1, para 22) and the Tribunal is satisfied that Mrs Trinick meets this requirement as it is agreed that she had a number of conditions when she lodged her claim.

    (b)The second requirement for DSP is also in s 94 of the Act and provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the time they lodge their claim. To apply the Impairment Tables, the condition or impairment must be considered permanent. In the determination, the word ‘permanent’ does not have its usual meaning. For DSP assessment purposes, for a condition to be permanent, it must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and likely to last for more than two years.

    (c)There is also a requirement that an applicant for DSP must have a CITW pursuant to s 94(1)(c) of the Act.

    EVIDENCE

13. The Tribunal had before it the following evidence:

    ·the ‘T Documents’ (T1-T31, pp 1-261) received on 9 May 2019;

    ·a bundle of documents (127 pages) filed by the Applicant on 12 February 2020, indexed 1-33 (Exhibits A1-A33);

    ·

    Secretary’s Statement of Facts and Contentions dated 17 September 2019

    
    

    (Exhibit R1);

    ·Secretary’s email correspondence relating to the Applicant’s Program of Support calculation dated 8 July 2019 (Exhibit R2); and

    ·the oral evidence of the Applicant.

    CONSIDERATION

    Qualification period

14. An applicant’s claim for DSP must be assessed on the basis of the applicant’s medical conditions as at the date of claim or within 13 weeks of that time. In Mrs Trinick’s case the qualification period is 25 August 2017 to 24 November 2017.

15. In the case of Fanning and Secretary, Department of Social Services (2014)
    144 ALD 133, 140 [33], Deputy President Handley relevantly noted that:

    The language in cl 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision.

    (Original emphasis.)

16. In a DSP matter in the Federal Court, namely the matter of Harris v the Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, Gyles J stated (at 253 [1]):

    …the applicant’s entitlement to the pension must be considered as at the date of her claim … and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

17. These authorities establish that a decision-maker such as the Tribunal in the present matter can only consider an applicant’s qualification for DSP within the relevant period.
    If the applicant’s circumstances have subsequently changed, it would be appropriate to lodge a fresh claim.

    WHETHER THE APPLICANT’S IMPAIRMENTS ATTRACT 20 IMPAIRMENT POINTS

18. The Respondent contends that Mrs Trinick had a total impairment rating of zero points during the qualification period on the basis that none of her conditions were fully diagnosed, treated and stabilised, and that she therefore fails to satisfy s 94(1)(b) of the Act (Exhibit R1, para 37). However, this Tribunal’s review is de novo and the Tribunal looks at the claim afresh. The Tribunal now turns to its consideration of Mrs Trinick’s eligibility for DSP.

    Fibromyalgia

19. In his letter dated 7 November 2011, Dr Zilko, rheumatologist, noted Mrs Trinick’s fatigue, aches and pains, and her ‘moderate tenderness of fibromyalgia tender points around the upper and lower limb girdles’. He suspected that her symptoms were attributable to fibromyalgia (T5/107).

20. In a referral letter written by Dr Haque dated 25 July 2014 to Dr Mazur, rheumatologist, Mrs Trinick was said to be suffering from fibromyalgia as diagnosed in 2011 by Dr Zilko (T6/108).

21. There is evidence that during 2014 Dr Mazur saw Mrs Trinick on three occasions and arranged some tests. Since those visits to the specialist, Mrs Trinick has not received any specialist assessment or intervention from a rheumatologist or a neurologist. The AAT1 recorded in its decision dated 20 March 2019 that at that time she currently took no medication specifically for her fibromyalgia and is not engaged in a regular exercise program (T2/11).

22. Before the Tribunal, Mrs Trinick explained that her evidence to the AAT1 just mentioned had resulted from her misunderstanding of the meaning of exercise. Mrs Trinick said that she assumed that it referred to activity such as swimming or going to the gym. She told the Tribunal that she followed an exercise routine in the mornings and walked, including walks with her dog.

23. In a medical certificate dated 9 December 2016, Dr Rasalingam referred to Mrs Trinick’s alleged fibromyalgia (T13/120). In a certificate dated 17 May 2017, Dr Onyeka said that Mrs Trinick’s fibromyalgia was a permanent condition (T14/121). In a certificate by
    Dr Zhang dated 14 July 2017, the condition was regarded as a temporary condition (T15/122).

24. In medical certificates provided in the period January 2018 to July 2018, Dr Veerla described Mrs Trinick’s fibromyalgia as both a permanent and temporary condition which was accompanied by fatigue, muscle pains and headaches and for which she was taking the tricyclic antidepressant medication, amitryptiline, and was planning to engage in exercise (T21/170; T22/171; T24/176).

25. More recent medical evidence relevant to this condition is that provided by
    Dr Lim, a gastroenterology registrar, dated 10 October 2018, which included the suggestion that Mrs Trinick’s ongoing fibromyalgia aches and pains should be subject to a rheumatological review to manage the condition (T27/212).

26. The Tribunal had very careful regard to the report by Dr Hugh Derham dated
    8 October 2019. Mrs Trinick told the Tribunal that prior to 2019 she had last seen
    Dr Derham on 11 March 2017 (Transcript, page 13). Dr Derham, a general practitioner with stated expertise and experience in diagnosing and treating patients with fibromyalgia stated as follows:

    Having assessed her in 2015 and 2019, in my opinion I could confidently say she has been fully diagnosed, fully treated with reasonably supportable treatments, stabilised, and extremely unlikely to show any significant improvement within the next two years or the foreseeable future. In my opinion these conditions would also have been true at the date of her application for DSP in August 2017
    (Exhibit A18/92-93).

27. However, in a report completed a month earlier on 3 September 2019, Dr Derham states as follows:

    She has Fibromyalgia according to the American College of Rheumatology 2012 criteria. I feel the only realistic future for her would be a disability pension, for which she well qualifies, provided a specialist can write that she is fully diagnosed, fully treated, stabilised and unlikely to show any significant improvement in the next two years (Exhibit A19/94).

28. The Tribunal gives weight to Dr Zilko’s opinion in November 2011 that Mrs Trinick’s symptoms were attributable to this condition (paragraph 19 above refers) and also gives weight to Dr Derham’s report dated 8 October 2019 (paragraph 26 above refers).
    Despite inconsistencies in the evidence provided by Mrs Trinick’s general practitioners suggesting in various reports that the condition was considered permanent or temporary, despite the absence of evidence from the specialist Dr Mazur who saw Mrs Trinick in 2014, and despite Mrs Trinick’s concerns that some of her symptoms could also be related to Lyme disease, the Tribunal accepts that her condition can be considered to be fully diagnosed.

29. However, in the absence of recent interventions for the diagnosed fibromyalgia, preferably as recommended by the relevant specialist, the Tribunal finds that the condition cannot be considered fully treated and fully stabilised and therefore cannot be assigned an impairment rating.

    Other conditions

30. Mrs Trinick offered little evidence in relation to her ‘other conditions’ and during the hearing, she questioned why some were included in the present DSP application and review. Relevant to the other conditions, the Respondent submits as follows:

    In respect of the Applicant’s other conditions, which have been raised in either
    self-reports or the medical evidence, and include underactive thyroid, Lyme disease, osteoarthritis, alopecia, facial cellulitis, skin abscesses, scalp infections, ongoing urinal infections, left otitis external, head and neck sores, and depression (T2/12; T17/151), the Secretary contends that there is insufficient evidence to make an assessment as to whether the conditions were fully diagnosed, treated and stabilised during the qualification period. There is also insufficient evidence to determine whether the impairments resulting from the conditions were more likely than not, expected to persist for more than two years (Exhibit R1, para 35).

31. The Tribunal notes that under the rules for the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (T3/23, s 8(1)).

32. Mrs Trinick told the Tribunal of her suspicion that many of her problems are a consequence of contracting Lyme disease during a visit to the United States in 2005.
    A letter written by Dr Valentine dated 30 June 2015 refers Mrs Trinick to an infectious disease specialist, Dr Arellano, with respect to the possible Lyme disease (T9/115).
    There is no other medical evidence relating to this condition before the Tribunal.
    Mrs Trinick told the Tribunal that she had attempted to see the specialist as referred but Dr Arellano had not been available and so Mrs Trinick took the referral no further.
    Mrs Trinick also told the Tribunal that she would not bother progressing further investigation with respect to Lyme disease.

33. In a GP mental healthcare plan prepared by Dr Chowdavarapu dated 18 August 2014, it was mentioned that Mrs Trinick was suffering from depression (T7/109-113), and
    Dr Derham in his 8 October 2019 report refers to Mrs Trinick’s ‘greatly reduced mental and physical stamina’ (Exhibit A18/92).

34. The Tribunal relevantly notes that in order for a mental health condition to be considered in the assessment of an applicant’s qualification for DSP, the condition must be diagnosed and assessed by a psychiatrist or a clinical psychologist and then be subject to related intervention and review (Introduction to Table 5 of the Determination). Before the Tribunal, Mrs Trinick confirmed that this requirement had not been met with respect to depression.

35. Correspondence from Fiona Stanley Hospital dated 2 July 2015, 2 September 2016 and 23 August 2017 (T10/116-117; T11/118; T16/123-125) makes mention of Mrs Trinick’s left otitis externa as well as her head and neck sores, facial cellulitis and skin abscesses, which had arisen since the onset of her alopecia and associated treatment. The evidence is that Mrs Trinick was referred to a dermatologist in March 2015 (Exhibit A23/101). In a letter dated 12 June 2019, Associate Professor Kurt Gebauer, dermatologist, reported that Mrs Trinick had attended his practice on 25 July 2014, 22 August 2014 and 25 July 2016, and when last reviewed on 25 July 2016, a year before Mrs Trinick lodged her claim for DSP, her condition was ongoing despite treatment. Dr Gebauer’s report does not identify the treatment, symptoms or impact of her alopecia condition (Exhibit A23/101).

36. Having careful regard to all the evidence, including Mrs Trinick’s testimony before the Tribunal, the Tribunal accepts the Respondent’s contention with respect to the other conditions and finds that they cannot be assessed under the Impairment Tables.

37. Finally, the Tribunal, after having considered all the evidence before it, accepts the conclusion of the Assessment Services Recommendation for DSP medical eligibility dated
    16 September 2017 (paragraph 6 above refers) which states as follows:

    General Practitioner Dr Zhang 14/07/17 noted the condition of Fibromyalgia. Treatment is noted as nil with regular GP review noted as planned treatment. General Practitioner Dr Rasalingam (09/12/16) noted treatment as Endep and Panadol Osteo.

    Whilst it is noted that the treating doctors have provided several referrals to specialists including Dr Margaret Mazur for treatment of fibromyalgia, Professor Kurt Gebauer for treatment of Alopecia, Dr Arellano for the treatment of possible Lyme Disease - there is no corresponding medical evidence that review and or [sic] treatment for these conditions has occurred.

    As such there is insufficient medical documentation to determine whether the recipient has been managed by relevant specialists and whether all reasonable treatment options have been exhausted at this stage. Therefore the conditions are unable to be considered FDTS at this time (T19/167).

1. The Tribunal notes that this assessment was conducted by a rehabilitation counsellor (T19/166). Before the Tribunal, Mrs Trinick expressed her dissatisfaction with the assessment, stating ‘I believe that assessment was very poorly done, by someone who was a psychiatrist and not really in the medical terms. Whereas I’ve been assessed by many doctors’ (Transcript, page 8). There is no evidence that the assessor was not appropriately qualified to conduct the assessment.

   CONCLUSION

2. Having considered all the evidence before it, the Tribunal finds that Mrs Trinick’s medical conditions attract an impairment rating of zero points under the Impairment Tables. As this is less than 20 points, Mrs Trinick does not satisfy s 94(1)(b) of the Act and consequently was not qualified for DSP at the date of claim or during the qualification period.

3. Having found that Mrs Trinick does not qualify for the DSP, there is no requirement for the Tribunal to address and nor has it addressed the issue of whether Mrs Trinick has a CITW pursuant to s 94(1)(c) of the Act. That said, however, the Tribunal notes the evidence that in the 36 months immediately before lodgement of her DSP claim Mrs Trinick had recorded 132 days, that is approximately 4.3 months, of active participation in a program of support, which is well short of the necessary 18 months (Exhibit R2).

4. The Tribunal is sympathetic to Mrs Trinick and her medical circumstances and reiterates the comment in the AAT1 decision to the effect: ‘Mrs Trinick may consider testing her eligibility for disability support pension again, with further recent medical evidence from relevant specialists involved in the management of her various medical conditions’ (T2/13).

   DECISION

5. It follows from all of the above that the decision to reject Mrs Trinick’s claim for DSP was the correct and preferable decision and therefore the Tribunal affirms the decision under review, that being the decision of the Social Services & Child Support Division of the Tribunal dated 20 March 2019.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member.

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

Associate

Dated: 9 April 2020

Date of hearing:	4 March 2020
Applicant:	By telephone
Counsel for the Respondent:	Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers