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

[2018] AATA 1508

Tudo and Secretary, Department of Social Services (Social services second review) [2018] AATA 1508 (1 June 2018)

Division:GENERAL DIVISION

File Number            2017/3801

Re:Mach Oy Tudo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:1 June 2018

Place:Adelaide

The Tribunal affirms the decision under review.

...................[Sgd]..................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether the applicant's conditions were fully diagnosed, fully treated and fully stabilised as at the date of the claim or within 13 weeks - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

1 June 2018

INTRODUCTION

1. The applicant Mach Oy Tudo lodged a claim for disability support pension (DSP) on 17 May 2016.  Centrelink rejected the claim in the first instance.  Ms Tudo requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Ms Tudo requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  The decision under review was affirmed.  Ms Tudo applied to the general division of the tribunal for a second review.

2. The Hearing took place on 13 April 2018. Ms Tudo was self-represented and she attended the Tribunal in person with the assistance of an interpreter of the Cantonese language. Ms Odgers represented the respondent, the Department of Social Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

3. In her written application for review, Ms Tudo stated her date of birth as being in September 1955.  She suffers from a number of medical conditions.  In particular those conditions affect her back, upper and lower limbs, and her mental health.

   LEGISLATION AND ISSUES

4. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 17 May 2016 to 16 August 2016.

5. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”. 

   The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

6. Accordingly, Ms Tudo will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that she has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is active participation in a program of support.

7. The Secretary accepted that Ms Tudo suffers from a spinal condition, a right elbow condition and a mental health condition and therefor satisfies s 94(1)(a) of the Act.

8. The Secretary contended that the spinal condition was not fully diagnosed, fully treated and fully stabilised in the assessment period and that no impairment points for any impairment arise from that condition. In the alternative, if the Tribunal decides that the spinal condition is fully diagnosed, fully treated and fully stabilised, the Secretary contended that Ms Tudo should be assigned no more than 10 points under Table 4, spinal function, of the Impairment Tables.

9. The Secretary contended that the right elbow condition was diagnosed, however there was no recent treatment and no impairment rating should be assigned for the functional impairment arising from it. 

10. The Secretary contended that the mental health condition had not been treated for several years prior to the assessment period and therefore was not fully treated and not fully stabilised.  Accordingly the Secretary contended that no impairment points could be assigned for that condition.

11. The main issue for determination is whether Ms Tudo’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether she had a continuing inability to work.

    IMPAIRMENT TABLES

12. The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). That document also contains the Rules for the application of the Impairment Tables.

13. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

14. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

15. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

16. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.

17. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

18. The applicable impairment rating for each of Ms Tudo’s conditions will be considered in turn by reference to the Impairment Tables. As indicated, consideration must be given to whether each condition was fully diagnosed, treated and stabilised during the assessment period before determining an impairment rating, because the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating

    EVIDENCE OF MS TUDO

19. Ms Tudo gave evidence which was honest and helpful.  She resides at home with her husband.  She is his carer.  He has been in poor health since 2009 and has suffered from strokes.  He now requires full time care.  Ms Tudo provides that care continuously.  She attends to all of her husband’s self-care requirements.  She prepares and cooks the meals, she does the shopping and all of the household duties.  Over the last nine years the caring duties have had a severe impact upon her physical health and her mental well‑being.  She has reached a point where she is physically and emotionally exhausted.  She is housebound and has no social life.

20. Ms Tudo and her husband arrived in Australia in 1980 as refugees from Cambodia.  Her husband has a long history of working in a government department.  Ms Tudo worked in a factory for several years.  However in 1989 she suffered a severe injury to her left index finger.  In 2009 she sustained an injury to her neck in a motor vehicle accident.  Degenerative changes in her cervical spine have caused pain and limitation in her physical activities.  She has also suffered from low back pain which affects her sitting, walking, standing and driving.  Bilateral knee pain affects her ability to walk and she uses either a walking stick or a walking frame.  Her mental health functioning has deteriorated to the point that she was admitted to Glenside Hospital in 2016.  She has continued to receive psychiatric treatment.  All of these problems have had an adverse impact on Ms Tudo’s ability to undertake daily activities which are focused entirely on the care and nursing of her husband.

    CONSIDERATION

21. The applicable impairment rating, if any, for each of Ms Tudo’s conditions will be considered in turn by reference to the Impairment Tables.

22. It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[1], at [34]:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

    [1] [2012] AATA 922.

23. Those comments are particularly relevant to the present case given the lapse of time between lodging the DSP claim on 17 May 2016 and the hearing before this Tribunal on the 13 April 2018.  This is a period close to two years.  The effect of Ms Tudo’s evidence, and much of the medical evidence, is that her medical conditions have worsened over the last two years.  However the task for the Tribunal is to assess her condition at the time of the DSP claim and the assessment period.

    Spinal condition

24. X-ray reports of Ms Tudo’s cervical spine, thoracic and lumbar spine all indicate degenerative changes of some significance.  The reports commence in 2009.  In summary, a report from Ms Tudo’s general medical practitioner, Dr Le Cong written on 4 June 2017, confirms that she has suffered from “cervical spinal degeneration with severe foraminal stenosis causing chronic severe neck pain and restriction.”  Also she has suffered from “lumbar disc protrusion with canal stenosis causing a significant restriction of bending, leaning forwards, lifting and carrying or twisting her body.”  Dr Le Cong also wrote that she suffered from “osteoporosis with a crush fracture of the T8 vertebral body.”[2]

    [2] Exhibit 1, T15 p 188.

25. A Job Capacity Report (JCA) submitted on 30 June 2016 followed a face to face interview with Ms Tudo.  It is important to note that the interview took place during the assessment period.  It summarises difficulties, including severe pain, that Ms Tudo suffered in her daily caring tasks of her husband.  The difficulties included bending, lifting, standing and walking.  Those difficulties were confirmed in the evidence which she gave to the Tribunal regarding her activities at that time.

26. A report from an occupational physician, Dr Christine Brown, written on 4 May 2017, was received in evidence.  The report summarised some of the earlier medical evidence, particularly in relation to x-ray findings.  Dr Brown wrote that the spinal function condition was fully diagnosed, treated and stable and likely to deteriorate.[3] 

    [3] Exhibit 1, T15 p 200-201.

27. The Tribunal has come to the conclusion that Ms Tudo’s spinal function was fully diagnosed, treated and stabilised during the assessment period and it is therefore assessable under Impairment Table 4 which provides the descriptors relating to spinal function.  It is used where the individual has a permanent condition which leads to functional impairment when performing activities involving bending or turning the back, trunk or neck.

28. The report from Dr Brown notes that Ms Tudo was unable to sustain overhead activities, with difficulty moving her head to look in all directions and difficulties bending forward to pick up light objects.

29. For a moderate functional impact Impairment Table 4 states:

Points

Descriptors

10

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. Based on all of the evidence relating to the spinal function, a rating of 10 points under Table 4 is appropriate.

   Right elbow condition

2. Unfortunately the medical evidence concerning the elbow condition is not recent.  An orthopaedic surgeon, Dr A Munyard wrote a report dated 22 March 2011 in which he referred to Ms Tudo’s painful right elbow.  He had just examined the elbow and also noted an earlier report of Dr Le Cong.  He examined the ultrasound which had been performed in September 2010.  He concluded “this shows suspicion of a low density calcification near the attachment of the common extensor tendon.”[4]

   [4] Exhibit 1, T15 p 195-197.

3. The JCA report mentioned that Ms Tudo had consulted a Chinese medical specialist for treatment together with acupuncture.  Dr Brown’s report (4 May 2017) also refers to Ms Tudo’s intermittent radicular pain in the right arm. 

4. While there is no doubt that the right elbow condition causes pain and inconvenience, the evidence does not permit the Tribunal to go further than to conclude that the elbow condition was fully diagnosed at the relevant time.  The evidence does not indicate that it was fully treated and fully stabilised during the assessment period.  Therefore the Tribunal is unable to assign an impairment rating to this condition.

   Mental Health

5. The evidence indicates that Ms Tudo suffered intermittent mental health problems dating back at least to 1989 following the severe injury which she sustained when she was working in a factory.  It caused her to cease factory work altogether.

6. A psychiatrist, Dr Marcus Bem, provided a written report dated 10 May 2017 in which he summarised her psychiatric problems.  He reported:

   …  From a psychiatric perspective, Mrs Tudo has longstanding major depression, first problematic in 1989.  She has had recurrent bouts of the illness, most recently necessitating admission to Glenside Hospital in October 2016.  She was recommenced on anti-depressant medication at this time and continued sessions with her psychologist, Susan Lau, whom she first consulted in 2009, post motor vehicle accident.

   I suggest that Mrs Tudo has struggled with a plethora of depressive symptoms for well beyond the past 2 years, in part fuelled by her husband’s disability and her chronic pain issues.  She is also negatively affected by her only child residing in the UK.  This daughter appears to be unresponsive to the plight of her parents, discontinuing communication with her mother.

   In addition to feeling depressed and anxious (with a history of panic attacks) on a daily basis, Mrs Tudo suffers sleep disturbance, lack of energy, loss of pleasure and cognitive dulling.  She has periods of being suicidal.  She is globally incapacitated as a consequence of the depression, including elements of self-care and food intake. …

7. Dr Bem’s description of Ms Tudo’s mental health problems resonates strongly with the evidence which she gave to the Tribunal about her difficulties.  In 2010 she commenced therapy with a psychologist, Ms Susan Lau following the motor vehicle accident.  The psychology treatment continued for more than a year.  Ms Lau wrote a report dated 12 January 2010[5] in which she referred to Ms Tudo’s severe anxiety and severe depression.  At that time she was teaching Ms Tudo various mindfulness and coping strategies.  She noted that Ms Tudo had been taking anti-depressant medication intermittently since 1989. 

   [5] Exhibit 1, T14 p 177-179.

8. There is a gap in the evidence of about six or seven years between the cessation of psychology services by Ms Lau until late in 2016 when Dr Le Cong referred Ms Tudo back to Ms Lau for treatment for depression.  Ms Lau provided a report dated 17 May 2017[6] in which she referred to Ms Tudo’s psychological condition as chronic with continuing psychosocial stressors.  She reported that Ms Tudo is suffering from a depressive illness for which she was receiving psychology support, psychiatric treatment and treatment from her general medical practitioner.  Ms Lau wrote that “her condition may remain the same, and it may get worse with the stressors of her husband’s situation.”

   [6] Exhibit 1, T15 p 198-199.

9. Impairment Table 5 concerns mental health function.  It is used where the person has a permanent condition which results in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).  The introduction to Table 5 also acknowledges that the signs and symptoms of mental health impairment may vary over time and that for mental health conditions that are episodic, the rating that best reflects the persons’ overall functional ability is appropriate and needs to take into consideration the severity, duration and frequency of the episodes or fluctuations. 

10. The assessment period is between 17 May 2016 and 16 August 2016.  A medical certificate from the general medical practitioner, Dr Le Cong, dated 11 July 2016[7] refers to a diagnosis of major depression and anxiety.  Treatment by way of psychotherapy was taking place and the condition was described as temporary.  The treatment has continued subsequent to the assessment period.  Accordingly the Tribunal is satisfied that the mental health condition was fully diagnosed during the assessment period.  However it cannot be concluded that the mental health condition was fully treated and fully stabilised during that time.  The psychiatrist, Dr Bem, reported on 14 November 2017 that Ms Tudo was still using an anti-depressant which had been commenced in late July 2017.  Unfortunately it was unclear to Dr Bem whether the treatment was succeeding.[8]  Dr Le Cong also wrote in November 2017 that Ms Tudo needs to continue with psychiatric treatment.[9] 

    [7] Exhibit 1, T12 p 154.

    [8] Exhibit 3.

    [9] Exhibit 4.

1. As the Tribunal is satisfied that the mental health condition was not fully treated and fully stabilised during the assessment period, it cannot attract an allocation of points under the Impairment Tables.

   Lower Limbs

2. Dr Le Cong wrote in his report dated 4 June 2017 that Ms Tudo’s medical conditions included osteoarthritis of both knees.[10]  It was one of the numerous conditions which Dr Le Cong expected would worsen with time and deteriorate with age.

   [10] Exhibit 1, T15 p 188.

3. Dr Christine Brown wrote in her report dated 4 May 2017[11] that Ms Tudo suffers from bilateral knee pain.  It was noted that Ms Tudo has difficulty walking for 10 minutes, carrying items that weigh around one kilogram together with difficulties climbing steps.  She uses a walking stick or a walking frame.  Dr Brown diagnosed a condition of chondromalacia patellae.  Dr Brown reported that the condition was diagnosed and was treated by medication.  She reported that no other treatment was considered to be appropriate. 

   [11] Exhibit 1, T15 p 200.

4. Impairment Table 3 relates to lower limb function.  It provides the descriptors relating to the use of the lower limbs.  It is used where a person has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.

5. For a mild functional impact on activities using the lower limbs Impairment Table 3 states:

Points

Descriptors

5

There is a mild functional impact on activities using lower limbs

(1)  At least one of the following applies:

(a)  the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)  the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)  the person has some difficulty climbing stairs; and

(2)  At least one of the following applies:

(a)  The person is unable to stand for more than 10 minutes;

(b)  The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

1. Taking into account all of the medical evidence together with the evidence from Ms Tudo, the Tribunal considers that the lower limb condition relating to the knees was fully diagnosed, fully treated and fully stabilised at the time of the DSP claim.  Ms Tudo had undertaken reasonable treatment for the knee problems.  A rating of 5 impairment points under Impairment Table 3 is appropriate.

   Other Matters

2. Ms Tudo provided an affidavit dated 9 April 2018. Her correct date of birth is the issue which arises from the affidavit. It also seeks to clarify her husband’s correct date of birth. If the contents of the affidavit are correct, the conclusion would be that Ms Tudo’s date of birth is in September 1951 which would mean that she is now 67 years of age. However the records which the Australian government has indicate her date of birth is in September 1955, which means she is 62 years old. For the purpose of this hearing it is not relevant to determine whether Ms Tudo was born in 1951, or in 1955. Ms Odgers acknowledged that Ms Tudo meets the qualifications under s 94 of the Act regarding age and Australian residency.

3. Ms Tudo’s veracity does not come into question at all regarding the issue of her age.  Her evidence to the Tribunal was compelling.

   CONCLUSION

4. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

5. As outlined, the Tribunal finds that Ms Tudo’s spinal condition was fully diagnosed, fully treated and fully stabilised during the assessment period.  The applicable rating for the spinal condition is 10 impairment points.

6. The Tribunal finds that Ms Tudo’s elbow condition was fully diagnosed during the assessment period. However it was not fully treated and not fully stabilised and an impairment rating under the Impairment Tables cannot be given.

7. Ms Tudo’s mental health condition was not fully treated and stabilised during the assessment period and no rating can be assigned in respect of it.

8. Ms Tudo’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the assessment period and the applicable rating for that condition is 5 impairment points.

9. With a total of 15 impairment points, Ms Tudo does not have an impairment, or combination of impairments, attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore she does not satisfy s 94(1)(b) of the Act.

10. In these circumstances it is not necessary to consider whether or not during the assessment period Ms Tudo had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

11. As Ms Tudo was not qualified for DSP at the time she lodged her claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.  This decision does not mean that the Tribunal underestimates the significant complexities of Ms Tudo’s medical conditions and the problems which they cause for her in providing care and support for her husband.  The effect of the Tribunal’s decision is that she does not meet the necessary criteria for qualification for DSP at the time she lodged the claim and during the subsequent assessment period.

    DECISION

12. The Tribunal affirms the decision under the review.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

....................[Sgd]....................................................

Administrative Assistant

Dated: 1 June 2018

Date(s) of hearing:	13 April 2018
Applicant:	In person
Advocate for the Respondent:	Ms L-A Odgers
Solicitors for the Respondent:	Department of Human Services