Verhagen and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1812
•20 October 2017
Verhagen and Secretary, Department of Social Services (Social services second review) [2017] AATA 1812 (20 October 2017)
Division:GENERAL DIVISION
File Number: 2017/2340
Re:Alice Verhagen
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:20 October 2017
Place:Brisbane
The decision is set aside and in substitution it is decided that Mrs Verhagen was qualified for Disability Support Pension during the qualification period.
.................................[Sgd].......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether impairments permanent – whether impairments attracted 20 points or more under the impairment tables during the relevant period – decision under review set aside
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)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
20 October 2017
INTRODUCTION
On 27 April 2016 Mrs Verhagen lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·severe sleep apnoea
·severe depression
·arthritis
[1] Exhibit 1, T Documents, T 8, pages 73 – 102, Mrs Verhagen’s Claim for DSP dated 27 April 2016.
Mrs Verhagen claimed that her conditions affect her “mobility, capacity to lift/carry, [her] memory [and her] day-to-day living”.[2]
[2] Exhibit 1, T Documents, T 8, page 99, Mrs Verhagen’s Claim for DSP dated 27 April 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mrs Verhagen’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T 10, pages 111 – 112, Rejection of claim for DSP dated 4 August 2016.
Claim History
Mrs Verhagen sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[4] The subsequent review by the ARO was unsuccessful on the grounds that
Mrs Verhagen’s medical conditions did not attract an impairment rating of 20 points or more and she did not meet the program of support requirements.[5][4] Exhibit 1, T Documents, T 11, page 113, Letter from Centrelink to Mrs Verhagen dated 30 September 2016.
[5] Exhibit 1, T Documents, T 12, pages 114 – 124, Decision of ARO dated 10 November 2016.
Mrs Verhagen lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mrs Verhagen’s claim and affirmed the ARO’s decision on 21 March 2017.[6]
[6] Exhibit 1, T Documents, T2, pages 4 – 16, SSCSD’s Decision and Reasons for Decision dated 21 March 2017.
Mrs Verhagen has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1 – 3, Application for Review of Decision dated 20 April 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mrs Verhagen must have a physical, intellectual or psychiatric impairment;
(b)Mrs Verhagen’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[8]
(c)Mrs Verhagen has a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mrs Verhagen meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 27 April 2016), unless
Mrs Verhagen becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[9] Therefore, in order to qualify for DSP
Mrs Verhagen must have met the Section 94 Requirements between 27 April 2016 and 26 July 2016 (“Qualification Period”).[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mrs Verhagen’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[10]
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
DID MRS VERHAGEN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
[11] Determination, s 3.
Mrs Verhagen’s medical conditions
Respiratory Infection
In September 2012 Dr Angela Ratcliff, General Practitioner, reported that Mrs Verhagen had a severe respiratory infection which was likely to impact on her ability to function for the next 3 – 24 months and was expected to significantly improve within the next 2 years.[12]
[12] Exhibit 1, T Documents, T 20, pages 166 – 174, Medical Report of Dr Ratcliff dated 6 September 2012.
Mrs Verhagen was reviewed by a Respiratory and Sleep Physician, Dr Sean Tolhurst, in December 2014. The results of Dr Tolhurst review were that Mrs Verhagen has “severe obstructive sleep apnoea”, “absent REM sleep” and “snoring during supine sleep”.[13]
[13] Exhibit 1, T Documents, T 33, pages 209 – 211, Report of Dr Tolhurst dated one December 2014.
In May 2015 Dr Shamsul Muqarrabin, General Practitioner, reported that Mrs Verhagen was still suffering from obstructive sleep apnoea and it was likely to impact on her ability to function for the next 13 – 24 months and that its effect on her ability to function within the next 2 years is uncertain. Dr Muqarrabin reported that she had been treating the condition with a CPAP machine and medication.[14]
[14] Exhibit 1, T Documents, T 46, pages 264 – 274, Report of Dr Muqarrabin dated 1 May 2015.
Dr Suvenesh Prasad, Respiratory & Sleep Physician, reported in June 2017 that
Mrs Verhagen was continuing to use her CPAP.[15][15] Exhibit 4, Report of Dr Prasad dated 6 June 2017.
Dr Thomas Toro, General Practitioner, reported in August 2017 that Mrs Verhagen told him:[16]
·she is unable to perform a lot of basic functions due to severe fatigue
·she feels she would not be able to sustain a clerical type job due to memory issues
·she only really leaves the house to attend doctor appointments, grocery shopping and collecting horse feed
·she’s the only one at the house with a licence
·her daughter does the majority of the chores around the home
[16]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment D, Report of Dr Toro dated
23 August 2017.
Dr Toro reports that the latest report of Dr Prasad demonstrates that Mrs Verhagen’s sleep apnoea is fully diagnosed, treated and stabilised.[17]
[17]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment D, Report of Dr Toro dated
Depression/Borderline Personality Disorder
In September 2012 Dr Ratcliff, General Practitioner, reported that Mrs Verhagen had developed depression secondary to her respiratory infection and that it was likely to impact on her ability to function for the next 3 – 24 months and was expected to significantly improve within the next 2 years.[18]
[18] Exhibit 1, T Documents, T 20, pages 166 – 174, Medical Report of Dr Ratcliff dated 6 September 2012.
Dr Jessica Merlo, General Practitioner, reported in May 2014 that Mrs Verhagen had depression and anxiety:[19]
(a)for which she was taking medication and that the future planned treatment was for her psychological and psychiatric treatment and evaluation;
(b)which was likely to impact on her ability to function for the next 3 – 24 months but was likely to significantly improve within the next 2 years.
[19] Exhibit 1, T Documents, T 28, pages 191 – 201, Report of Dr Merlo dated 7 May 2014.
Mrs Verhagen was reviewed via Skype by Dr Joyce Arnold, Psychiatrist, in January 2015. Dr Arnold diagnosed Mrs Verhagen as follows:[20]
·Axis I - Mood disorder, Major depression, nonpsychotic, suicidal, treatment resistant
·Substance abuse disorder – alcohol
·Axis II – personality traits, somatoform, dependent, obsessional, histrionic and
·borderline
·Axis III – sleep apnoea, migraines, von Willebrands
·Axis IV – depression
·Axis V – GAF (global assessment of functioning) score of 51-60
[20] Exhibit 1, T Documents, T 39, page 243, report of Dr Arnold dated 12 January 2015; and Exhibit 6, report of
Dr Arnold dated 12 January 2015.
In May 2015 Dr Shamsul Muqarrabin, General Practitioner, reported that Mrs Verhagen was still suffering from depression and it was likely to impact on her ability to function for the next 13 – 24 months and that its effect on her ability to function within the next 2 years is uncertain. Dr Muqarrabin reported that she had been treating the condition with medication and that she required ongoing review by Dr Arnold.[21]
[21] Exhibit 1, T Documents, T 46, pages 264 – 274, report of Dr Muqarrabin dated 1 May 2015.
Dr Arnold provided a report in July 2016 confirming that she had been providing monthly psychotherapy to Mrs Verhagen since January 2015 and that her lithium medication had stabilised her mood.[22]
[22] Exhibit 1, T Documents, T 54, page 290, report of Dr Arnold dated 27 July 2016.
Dr Arnold provided a report in January 2017 confirming that Mrs Verhagen:[23]
(a)has Borderline Personality Disorder with somatisation disorder;
(b)has depressive mood disorder;
(c)has chronic pain syndrome;
(d)takes medication for her depression and chronic pain; and
(e)has been seeing a psychologist for ongoing therapy.
[23] Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment E, Report of Dr Arnold dated
11 January 2017.
Dr Toro reports that, on the basis of the information provided by Mrs Verhagen (that she sees a psychologist regularly and is on “maximal medication”), he would consider that her mental health conditions are fully diagnosed, treated and stabilised. However, Dr Toro also notes that he is unable to objectively verify any of the restrictions Mrs Verhagen described to him regarding how her mental condition impacts on her ability to function.
Mrs Verhagen became Dr Toro’s patient 6 months after the Qualification Period, on25 January 2017.[24][24]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment D, Report of Dr Toro dated 23 August 2017.
Lumbar Spine
A CT scan of Mrs Verhagen’s lumbosacral spine in November 2012 showed:[25]
·an undisplaced fracture of transverse process of L2
·multilevel degenerative facet joint arthropathy particularly prominent at L4/5 and L5/S1
·Minor abutment of the exiting L3 nerve roots bilaterally
·broad-based disc bulge at L4/5 but do not significantly compress the existing nerve roots
[25] Exhibit 1, T Documents, T 22, page 181, CT report dated 8 November 2012.
In February 2014 and March 2014 Dr Nina Unuth reported that Mrs Verhagen had temporary lethargy and was awaiting the results of blood tests and “other investigations”.[26]
[26]Exhibit 1, T Documents, T 24, Page 187, Medical Certificate of Dr Unuth dated 13 February 2014; T 25, page 188, Medical Certificate of Dr Unuth dated 11 March 2014.
Dr Unuth reported in March 2014 that Mrs Verhagen had been referred to a rheumatologist.[27]
[27] Exhibit 1, T Documents, T 26, page 189, Medical Certificate of Dr Unuth dated 25 March 2014.
Dr Miller reported in May 2014 that Mrs Verhagen was still awaiting rheumatology review at Ipswich Hospital.[28]
[28] Exhibit 1, T Documents, T 28, pages 191 – 201, Report of Dr Merlo dated 7 May 2014.
Professor David Kandiah, Consultant Physician and Rheumatologist, reviewed
Mrs Verhagen in March 2015. Professor Kandiah suspected that Mrs Verhagen’s pain was related to her depression and that Mrs Verhagen would perhaps be a good candidate for cognitive behavioural therapy rather than more medication. Professor Kandiah offered to refer Mrs Verhagen to physiotherapy but she did not consider it to be worthwhile because of the distance she would have to drive to the physiotherapist. Professor Kandiah said that based on his physical examination he “could not justify putting her on any rheumatological cause of disability” and that she “may need to discuss it with her psychiatrist regarding her depression which seems to be an overwhelming feature of her condition”.
Professor Kandiah noted that if she still had ongoing symptoms that x-rays should be arranged as she may be developing osteoarthritis in her pelvis and right hip.Professor Kandiah referred Mrs Verhagen back to Dr Unuth and suggested she be referred for psychological review with cognitive behavioural therapy as well as physiotherapy.[29][29] Exhibit 1, T Documents, T 45, pages 262 – 263, report of Dr Kandiah dated 28 March 2015.
An x-ray of Mrs Verhagen’s lumbosacral spine in March 2016 showed:[30]
·Disc space narrowing at the L4/5 level
·Degenerative change of the lower lumbar spine and facet joints
·Mild degenerative change of the sacroiliac joints
Migraines
[30] Exhibit 1, T Documents, T 49, page 285, X-ray Report dated 1 March 2016.
Dr Arnold reported in January 2015 that Mrs Verhagen had migraines.[31]
[31] Exhibit 1, T Documents, T 39, page 243, report of Dr Arnold dated 12 January 2015; and Exhibit 6, report of
Dr Arnold dated 12 January 2015.
Dr Kandiah reported that Mrs Verhagen has had a history of migraines for years.[32]
[32] Exhibit 1, T Documents, T 45, page 262, report of Dr Kandiah dated 28 March 2015.
Dr Toro reported in February 2017 that Mrs Verhagen’s migraine condition:[33]
(a)was fully diagnosed and stabilised;
(b)was not likely to improve in the next 2 years;
(c)warranted a moderate impairment rating.
[33] Exhibit 1, T Documents, T 55, pages 291-292, report of Dr Toro dated 13 February 2017.
Von Willebrand Disease
Dr Miller reported in May 2014 that Mrs Verhagen had a background of Von Willebrand Disease, a bleeding disorder, which was generally well managed and caused minimal or limited impact on her ability to function.[34]
[34] Exhibit 1, T Documents, T 28, pages 191 – 201, Report of Dr Merlo dated 7 May 2014.
Dr Arnold reported in January 2015 that Mrs Verhagen had Von Willebrand disease.[35]
[35] Exhibit 1, T Documents, T 39, page 243, report of Dr Arnold dated 12 January 2015; and Exhibit 6, report of
Dr Arnold dated 12 January 2015.
Other
In April 2016 Mrs Verhagen’s doctor referred her to the Fasciomaxillary clinic for review.[36] At the hearing Mrs Verhagen told the Tribunal that the referral was because she needed a tooth removed and that because of her Von Willebrand condition, she was sent to a specialist. Mrs Verhagen confirmed that this condition was a once off situation and had nothing to do with this DSP application.
[36] Exhibit 1, T Documents, T 53, page 289, Letter from West Moreton Hospital and Health Service to Mrs Verhagen
dated 28 April 2016.
Conclusion on Impairments
The Secretary accepts that Mrs Verhagen suffers from impairments for the purposes of section 94(1)(a) at the Qualification Period.[37]
[37] Exhibit 2, Secretary's Statement of Facts and Contentions dated 11 August 2017, para 23.
In light of the above medical evidence I conclude that at the Qualification Period,
Mrs Verhagen suffered from Sleep Apnoea Impairment and Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the migraine condition, there is little to no medical evidence to establish whether this condition was fully treated, or stable during the Qualification Period. There is also insufficient evidence regarding how this condition affected Mrs Verhagen’s functional capacity during the Qualification Period. As a result I am unable to assign an Impairment Rating.
In relation to the Von Willebrand Disease, Dr Miller reported that this condition was generally well managed and caused minimal or limited impact on her ability to function. As a result, I find that this condition is not an Impairment for the purposes of the Act.[38] At the hearing Mrs Verhagen accepted that the migraine condition and Von Willebrand condition were not relevant to this application, and said that they would be more relevant if her eligibility was being assessed today, rather than during the Qualification Period.
[38] Exhibit 1, T Documents, T 28, pages 191 – 201, Report of Dr Merlo dated 7 May 2014.
DO MRS VERHAGEN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[39] They are function based[40] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[41]
[39] Determination, s 4(2) and 5(2)(a).
[40] Determination, s 5(2)(b) and (c).
[41] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[42]
(a)Mrs Verhagen’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[42] Determination, see s 6(3).
Mrs Verhagen’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[43]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[43] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[44] the following must be considered:[45]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[44] For the purposes of ss 6(4)(a) and (b) of the Determination.
[45] Determination, see s 6(5).
A condition is fully stabilised[46] if:[47]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[48]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[46] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[47] Determination, see s 6(6).
[48] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, I must first consider Mrs Verhagen’s medical history, in relation to the condition causing the Impairments.[49]
[49] Determination, see s 6(2).
IS MRS VERHAGEN’S SLEEP APNOEA IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence establishes that Mrs Verhagen was diagnosed with sleep apnoea in December 2014. The Secretary accepts that Mrs Verhagen’s Sleep Apnoea Impairment has been fully diagnosed.[50]
[50] Exhibit 2, Secretary's Statement of Facts and Contentions dated 11 August 2017, paras 33-34
The issue for determination is whether Mrs Verhagen’s Sleep Apnoea Impairment was fully treated and fully stabilised during the Qualification Period. The Secretary contends it was not because there was the option of participating in a further sleep study and using a CPAP.[51]
[51] Exhibit 2, Secretary's Statement of Facts and Contentions dated 11 August 2017, paras 33-34.
In May 2015 Dr Muqarrabin, General Practitioner, reported that Mrs Verhagen was still suffering from obstructive sleep apnoea and it was likely to impact on her ability to function for the next 13 – 24 months and that its effect on her ability to function within the next 2 years is uncertain. Dr Muqarrabin reported that she had been treating the condition with a CPAP machine and medication.[52]
[52] Exhibit 1, T Documents, T 46, pages 264 – 274, report of Dr Muqarrabin dated 1 May 2015.
Dr Toro reported in February 2017 that Mrs Verhagen’s Sleep Apnoea Impairment was fully diagnosed but not fully treated because she had not had the required follow-up assessment and that there was a reasonable chance of some improvements to symptom management if she had continued expert follow-up.[53] However in August 2017 Dr Toro referred to a recent report from the Respiratory Specialist, Dr Prasad, which he regarded demonstrated that this condition was fully diagnosed, treated and stabilised “from the time of the claim”.[54]
[53] Exhibit 1, T Documents, T 55, page 291, report of Dr Toro dated 13 February 2017.
[54]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment D, report of Dr Toro dated 23 August 2017.
The most recent specialist report is that of Dr Prasad, Respiratory & Sleep Physician from Snore Australia dated 6 June 2017. Dr Prasad reported that Mrs Verhagen “continues” to use her CPAP and that that was to continue at her current settings.[55]
[55] Exhibit 4, Report of Dr Prasad dated 6 June 2017.
It is unclear to the Tribunal what further treatment was recommended reasonable treatment during the Qualification Period that Mrs Verhagen should have undertaken. At the hearing the Secretary submitted that, as at the Qualification Period, Mrs Verhagen had been using an APAP, not a CPAP, and therefore she had not had the recommended treatment. Mr McQuinlan submitted that an APAP was different to a CPAP. Mr McQuinlan also said the impairment was not fully treated because she had not undertaken a further sleep study as suggested by Dr Toro. However, Dr Toro’s suggestion was made 7 months after the Qualification Period and he had only recently commenced consulting with
Mrs Verhagen. Further, Mr McQuinlan conceded that as at the Qualification Period there is no evidence that a further sleep study had been recommended to Mrs Verhagen. At the hearing Mr McQuinlan accepted that Dr Toro only suggests that there “might” be a chance some improvement in symptomology from the conduct of another sleep study. I note that when she was reviewed by the specialist the recommendation was for her to continue doing what she was already doing. Mr McQuinlan also noted that the JCA accepted that Mrs Verhagen’s Sleep Apnoea Impairment was fully treated and stabilised.[56][56] Exhibit 1, T Documents, T 9, pages 103-104, JCA Report dated 4 August 2016.
Mr McQuinlan accepted at the hearing that it is arguable that if you considered the Impairment at the Qualification Period, and not at some time in the future, it was fully treated and fully stabilised.
As Mrs Verhagen explained to the Tribunal, an APAP machine is an automated version of a CPAP and adjusts air pressure automatically, whereas a CPAP delivers a constant continuous air pressure. Mrs Verhagen gave evidence that she switched her APAP to a constant level of air pressure, thereby making it function as a CPAP. Mr McQuinlan did not produce any evidence which would contradict Mrs Verhagen’s evidence on this point. Mr McQuinlan said there is no evidence that Snore Australia knew if she was using an APAP or a CPAP. However, I am not sure if that is relevant. Mr McQuinlan also conceded that he was not suggesting that an APAP could not be “turned into” a CPAP by adjusting the settings. Even if Mrs Verhagen was using an APAP machine and not a CPAP, I am not sure that this takes the matter anywhere in terms of suggesting that she was not fully treated. Both machines involve positive air pressure being applied.
Mrs Verhagen said when it was suggested by Dr Toro that she needed a further sleep study Dr Toro misunderstood. Her previous General Practitioner, Dr Muqarrabin, had referred her to Snore Australia because she was still having apnoeas.[57] Mrs Verhagen spoke to someone at Snore and they suggested changing her APAP settings to CPAP and as a result she felt that she did not need to attend another sleep session. Tweaking machine settings and having repeated sleep studies is not uncommon for someone with Sleep Apnoea. I do not think that this therefore means that the condition is not fully treated and fully stabilised.
[57]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment B, Letter from Snore Australia to
Dr Muqarrabin dated 18 July 2016.
I find that Mrs Verhagen’s Sleep Apnoea Impairment was fully diagnosed, treated and stabilised during the Qualification Period and an impairment rating can therefore be assigned.
Using the Impairment Tables
I have to assess the level of impact of Mrs Verhagen’s Impairment against the descriptors[58] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[59]
[58]Determination, see ss 3 and 5(3).
[59] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of 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.[60]
[60] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[61]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[61] Determination, see s 7.
I must not take into account the following information in applying the Tables:[62]
(a)symptoms reported by Mrs Verhagen in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mrs Verhagen’s local community.
[62] Determination, see s 8.
Which Tables are appropriate are determined by:[63]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[63]Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[64]
[64] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[65]
[65] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[66]
[66] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[67]
[67] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 1 of the Determination, which deals with functions requiring physical exertion and stamina, is the relevant Table.
The Introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
·results of exercise, cardiac stress or treadmill testing.
Mrs Verhagen submits that an appropriate Impairment Rating under Table 1 is 10 points.[68]
[68] Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, para 8.
The Secretary provided no written submissions regarding what Impairment Rating would be appropriate in the event the Tribunal found the Sleep Apnoea Impairment was permanent.
Mrs Verhagen told the Tribunal that:
·she does not exercise
·she cannot do anything
·her daughter does everything for her at home
In May 2015 Dr Muqarrabin reported that Mrs Verhagen’s Sleep Apnoea Impairment was causing her daytime tiredness and sleep disturbance.[69]
[69] Exhibit 1, T Documents, T 46, page 268, DSP medical report dated 1 May 2015.
The JCA assessed the Sleep Apnoea Impairment as warranting a 5 point rating. The JCA reported that Mrs Verhagen said that:[70]
·she has daytime sleepiness and has sleep disturbance due to sleep apnoea
·spends a lot of the day sleeping and always feels tired
·she limits driving as a result and her teenage daughter helps out at home
[70] Exhibit 1, T Documents, T9, pages 103 – 110, JCA report dated 4 August 2016.
Dr Prasad reported in June 2017 that Mrs Verhagen:[71]
·is persistently tired during the day and it is likely that other factors (medication, depression et cetera) are contributing
·knows she must not drive if she feels tired or sleepy or if she does drive, she knows to take frequent breaks
·avoids driving for more than 15 minutes
[71] Exhibit 4, Report of Dr Prasad dated 6 June 2017.
Dr Toro reported in August 2017 that Mrs Verhagen told him that:[72]
·she is unable to perform a lot of basic functions due to severe fatigue.
·she feels she would not be able to sustain a clerical type job due to memory issues
·she only really leaves the house for doctor appointments, grocery shopping and collecting horse feed
·her daughter does the majority of the chores around the home
[72]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment D, report of Dr Toro dated 23 August 2017.
The difficulty with relying on Dr Toro’s report as corroborating evidence of how
Mrs Verhagen’s Sleep Apnoea Impairment impacts on her ability to function is that the report is more than 12 months after the Qualification Period and Dr Toro was not
Mrs Verhagen’s treating doctor during the Qualification Period.To assign an impairment rating of 10 points the corroborative evidence would need to show that Mrs Verhagen:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, Mrs Verhagen:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
To assign an impairment rating of 5 points the corroborative evidence would need to show that Mrs Verhagen:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
Given the evidence that is available I find that an appropriate impairment rating for
Mrs Verhagen’s Sleep Apnoea Impairment is 5 points under Table 1. I also note there is also evidence that some of the fatigue that Mrs Verhagen experiences may be related to her spinal impairment and her mental health impairment.
IS MRS VERHAGEN’S SPINAL IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence supports a finding that Mrs Verhagen has arthritis in her lumbar spine. The Secretary accepts that Mrs Verhagen’s Spinal Impairment was fully diagnosed in the Qualification Period but contends that it was not fully treated.
When asked what reasonable treatment Mrs Verhagen should have undertaken for the impairment to be considered fully treated, Mr McQuinlan said “there was still a need for further review by a rheumatologist”. Mrs Verhagen was reviewed by a Rheumatologist Consultant Physician, Dr Kandiah in April 2015. Dr Kandiah reported that Mrs Verhagen’s pain may be related to her depression and that she may “be a good candidate for cognitive behavioural therapy”.[73] However, I note that Dr Kandiah makes no reference to Mrs Verhagen’s osteoarthritis of the spine. At the hearing I suggested to Mr McQuinlan, and he accepted, that Mrs Verhagen went to Dr Kandiah for pain treatment not for her spinal condition.
[73] Exhibit 1, T Documents, T 45, page 263, Report of Dr Kandiah dated 28 March 2015.
Mrs Verhagen explained that the appointment with Dr Kandiah was for the purposes of her joint pain (relating to her knees and hips etc), not her lumbar spine condition and therefore his recommendations have no bearing on this condition. Mrs Verhagen confirmed that her joint pain condition had sorted itself and was not relevant to this DSP application.
Dr Toro reported in February 2017 that Mrs Verhagen’s spinal dysfunction:[74]
(a)was fully diagnosed and fully treated because there were no further new treatments available;
(b)was not likely to improve in the next 2 years; and
(c)warranted a moderate impairment rating.
[74] Exhibit 1, T Documents, T 55, pages 291-292, report of Dr Toro dated 13 February 2017.
However, Dr Toro does not explain what treatment Mrs Verhagen had had or why he considers this condition to be stable. Further, Dr Toro only commenced consulting with Mrs Verhagen in 2017, which is after the Qualification Period.
Mrs Verhagen says there is nothing that can be done other than pain relief medication. She says she had had physiotherapy in the past but it did not assist.
Mr McQuinlan said, given the evidence regarding Dr Kandiah, which is accepted, it is open to concede that this condition was fully treated and stabilised.
I find that Mrs Verhagen’s Spinal Impairment was fully treated and stabilised. There is certainly no evidence to suggest the contrary.
I find, therefore, that Mrs Verhagen’s Spinal Impairment was fully treated and stabilised during the Qualification Period and therefore an impairment rating can be assigned.
Relevant Impairment Table and Impairment Rating
Table 4 of the Determination, which deals with spinal function, is the relevant Table.
The Secretary provided no written submissions regarding what Impairment Rating would be appropriate in the event the Tribunal found the spinal impairment was permanent. At the hearing Mr McQuinlan referred to Dr Toro’s report in February 2017 where he rated Mrs Verhagen’s functional impairment as moderate.[75]
[75] Exhibit 1, T Documents, T 55, page 291, report of Dr Toro dated 13 February 2017.
Mrs Verhagen submitted that her Spinal Impairment is having a moderate functional impact on activities involving spinal function and warrants an Impairment Rating of 10 points.[76]
[76] Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, para 15.
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a five-point rating the corroborating evidence would be to show that
Mrs Verhagen has some difficulty in:(i)activities over head height (e.g. activities requiring the person to look upwards); or
(ii)bending to knee level and straightening up again without difficulty; or
(iii)turning their trunk or moving their head (e.g. to look to the sides or upwards).
To obtain a 10 point rating the corroborating evidence would need to show that
Mrs Verhagen:
(1)…is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[she] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[she] has difficulty moving [his] head to look in all directions (e.g. turning [his] head to look over [his] shoulder); or
(c)[she] is unable to bend forward to pick up a light object placed at knee height; or
(d)[she] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20 point rating the corroborating evidence would need to show that
Mrs Verhagen:
(1)…is unable to:
(a)perform any overhead activities; or
(b)turn [her] head, or bend [her] neck, without moving [her] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
At the hearing Mrs Verhagen said:
·she cannot sit for more than 10 minutes at a time
·she can get out of a chair by herself (although painful)
·she does what she has to and just puts up with the pain
Mrs Verhagen referred the Tribunal to the evidence she gave before the SSCSD.
Mrs Verhagen told the SSCSD that she can shower herself but it was very painful and that it hurts having her arms up to wash her hair. On this basis the SSCSD included that
Mrs Verhagen’s Spinal Impairment was having a moderate functional impact.
Mr McQuinlan submitted that, on the basis of the evidence before the SSCSD (which he said was consistent with Dr Toro’s report), an impairment rating of 10 points was appropriate.
However, it is not clear to me that the cause of Mrs Verhagen’s pain when raising her arms above her head is related to the osteoarthritis in her lower spine. I note that before the SSCSD Mrs Verhagen also referred to the fact that her arms get tired because she has no muscle strength in her body and because her arms have not been used for a long time. The introduction to Table 4 specifically provides that “descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2”.
While Dr Toro has suggested a moderate impairment he does not explain how he arrived at that conclusion. I also note that based on the evidence that is available the condition could be assessed at either 5 points or 10 points. In those circumstances, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[77]
[77] Determination, see s 11(1).
I find therefore that the most appropriate Impairment Rating for Mrs Verhagen’s Spinal Impairment during the qualification period is 5 points.
IS MRS VERHAGEN’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Mrs Verhagen was diagnosed by Dr Arnold, a psychiatrist (as required by Table 5 of the Determination) with “depression” and “personality disorder…borderline” in January 2015, which is prior to the Qualification Period.[78]
[78] Exhibit 1, T Documents, T 39, page 243, report of Dr Arnold dated 12 January 2015.
In the written submissions the Secretary submits that Mrs Verhagen’s Borderline Personality Disorder is not permanent because the full diagnosis was not made until after the Qualification Period.[79]
[79] Exhibit 2, Secretary's Statement of Facts and Contentions dated 11 August 2017, para 38.
However, at the hearing Mr McQuinlan confirmed the Secretary no longer contends that Mrs Verhagen’s mental health conditions of depression and borderline personality disorder were not fully diagnosed.
The Secretary’s written submissions did not address whether Mrs Verhagen’s mental health conditions were fully treated and fully stabilised. However, at the hearing
Mr McQuinlan conceded that Mrs Verhagen’s mental health conditions were also fully treated. I agree with that concession as the medical evidence demonstrates that
Mrs Verhagen’s had had been treated with anti-depressants and other medication and regular psychotherapy. There is no evidence that further treatment would significantly improve Mrs Verhagen’s ability to function within the next 2 years.
I find that Mrs Verhagen’s Mental Health Impairment is permanent and an Impairment Rating can be assigned.
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The Introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·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).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Mr McQuinlan submitted at the hearing that a 10 point moderate Impairment Rating would be an appropriate rating for Mrs Verhagen’s Mental Health Impairment.
To assign an Impairment Rating of 20 points the evidence would need to show that
Mrs Verhagen’s Mental Health Impairment is having a severe functional impact on activities involving mental health function.The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Evidence Identifying the Loss of Function
In 2012 Dr Ratcliffe reported that Mrs Verhagen had low mood, fatigue, and lethargy.[80]
[80] Exhibit 1, T Documents, T 20, page 170, medical report of Dr Ratcliffe dated 6 September 2012.
In 2014 Dr Mello reported that Mrs Verhagen:[81]
·“stays in bed all day, does not face things”.
·“lack of interest in life, poor motivation to seek appropriate assistance/management”
[81] Exhibit 1, T Documents, T 28, pages 195 – 196, medical report of Dr Bello dated 7 May 2014.
Unfortunately, Dr Arnold does not address the descriptors in her reports but she described Mrs Verhagen’s depression as “major” and says she has ongoing interpersonal problems that cause distress.[82]
[82] Exhibit 1, T Documents, T 54, page 290, report of Dr Arnold dated 27 July 2016.
In May 2015 Dr Muqarrabin reported that Mrs Verhagen had a lack of concentration and sleep disturbance.[83]
[83] Exhibit 1, T Documents, T 46, page 271, report of Dr Muqarrabin dated 1 May 2015.
In May 2015 Mrs Verhagen reported to Centrelink that she had “poor concentration and memory”.[84]
[84] Exhibit 1, T Documents, T 47, page 276, extract of claim for DSP dated 29 May 2015.
Dr Toro reported in June 2017 that Mrs Verhagen had requested he provide a report regarding the functional impact of her mental illness. Dr Toro reports that Mrs Verhagen told him:[85]
·she suffers from social and recreational restrictions which means that she only travels within familiar areas
·she has very limited social contacts
·she has difficulty concentrating for longer than 10 minutes
·she is unable to attend work, education or training due to her ongoing mental illness
·she is seeing a psychologist regularly and is on maximal medication
·there has been no improvement in her symptoms since early 2015
[85]Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, Attachment F, Report of Dr Toro dated 16 June 2017.
Dr Muqarrabin reported in July 2017 Mrs Verhagen says:[86]
·she has tiredness, lack of concentration, lack of interaction with other people and avoid social interaction secondary to her anxiety
·her daughter takes her to do supermarket shopping
·she does not have any motivation to do anything and does not find any interest to do anything
·she “feels self harm at times but does not have any plan only for her daughter”
[86]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 11 August 2017, Attachment A, Report of Dr Muqarrabin dated 11 July 2017.
Mr McQuinlan said the difficulty with the report of Dr Toro was that this was merely a self-report of Mrs Verhagen’s symptoms and therefore the Tribunal cannot assign a rating.
However, Mr McQuinlan later accepted that I could assign an Impairment Rating based on the evidence that was available prior to the Qualification Period. Mr McQuinlan submitted that if the Tribunal found an impairment rating could be assigned a moderate impairment rating of 10 points would be appropriate.
Based on the evidence available I find that the mental health impairment could be considered as falling between a 10 and 20 point impairment rating. In that circumstance, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[87]
[87] Determination, see s 11(1).
In the circumstances I find that an Impairment Rating of 10 points is appropriate for
Mrs Verhagen’s Mental Health Impairment. At the hearing Mrs Verhagen also accepted that 10 points was appropriate.
ARE MRS VERHAGEN’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).
I have found that the total Impairment Rating for Mrs Verhagen’s permanent impairments was 20 points, therefore Mrs Verhagen satisfies section 94(1)(b) of the Act.
DID MRS VERHAGEN HAVE A CONTINUING INABILITY TO WORK? (SECTION 94(1)(C))
I have concluded that Mrs Verhagen’s permanent impairments attract an impairment rating of more than 20 points under the Impairment Tables in the Qualification Period. Therefore, it is necessary for me to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Mrs Verhagen’s Impairments have not attracted 20 points under one single Impairment Table (i.e. they are not “severe impairments” as defined in s 94(3B)), therefore s 94(2)(aa) is the appropriate section under consideration.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
…
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (s 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mrs Verhagen must have actively participated in a POS for at least 18 months between 27 April 2013 and 27 April 2016. A POS is an obligatory legislative requirement.
The ARO found that Mrs Verhagen had only participated in 5 months of a POS in the relevant period.[88] The Secretary’s Statement of Issues, Facts and Contentions stated
Mrs Verhagen had participated in 13 months of a POS in the relevant period.[89]
Mrs Verhagen submitted that she had undertaken approximately 30 months of a POS and referred to Centrelink’s POS summary.[90] At the hearing the Secretary was still waiting on confirmation as to the correct POS calculation. It is unclear why this information was not requested and obtained prior to the hearing. In any event, the POS information was provided the week following the hearing and confirmed Mrs Verhagen’s submission that she had complied with the POS requirement. The information obtained from the Department of Employment shows that, in the relevant period, Mrs Verhagen participated in approximately 28.6 months of a POS.[91] The Secretary now concedes thatMrs Verhagen meets the POS requirements.[88] Exhibit 1, T12, page 118, ARO’s Decision dated 10 November 2016.
[89] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 11 August 2017, para 57.
[90] Exhibit 3, Submissions of Mrs Verhagen dated 8 August 2017, para 17; Exhibit 1, T Documents, T15, page 152,
POS Summary.
[91] Further submissions from the Secretary dated 6 October 2017, attaching Department of Employment
POS calculation.
The JCA concluded that the current functional impacts of Mrs Verhagen’s permanent (i.e. not temporary) conditions (of sleep apnoea, depression, Von Willebrand disease, spinal disorder, migraines) resulted in a “baseline work capacity: 8-14 hours per week”.[92]
[92] Exhibit 1, T Documents, T9, pages 103-110, JCA Report dated 4 August 2015.
Mr McQuinlan conceded at the hearing that in the event that Mrs Verhagen’s Impairment/s totalled 20 points, the evidence supported a finding that she would have a continuing inability to work.
As a result, I find that during the Qualification Period Mrs Verhagen satisfied the requirements in section 94(2) of the Act and therefore, has fulfilled the requirement in section 94(1)(c) of the Act.
DECISION
Mrs Verhagen qualified for DSP during the Qualification Period. The decision under review is set aside.
I certify that the preceding 136 (one hundred and thirty - six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
...............................[Sgd]...................................
Associate
Dated: 20 October 2017
Date of hearing: 28 September 2017 Date final submissions received: 6 October 2017 Applicant: By Phone Solicitors for the Respondent: Mr Rick McQuinlan
Department of Human Services
23 August 2017.
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