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

Vorhauer and Secretary, Department of Social Services (Social services second review) [2018] AATA 338 (26 February 2018)

Division:General Division
File Number(s): 2017/5399
Re:Rachael Vorhauer
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION

Tribunal:Member J Quinlivan
Date:26 February 2018
Place:Canberra

The decision under review is affirmed.

Member J Quinlivan

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment – whether disability is fully diagnosed, treated and fully stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables – lower limb disorder – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Schedule 2

SECONDARY MATERIALS

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

WRITTEN REASONS FOR DECISION

Member J Quinlivan

26 February 2018

INTRODUCTION

The applicant, Miss Rachael Vorhauer, lodged an application for the disability support pension (DSP) on 23 December 2016.
On 25 January 2017, the Department of Human Services (Centrelink) decided to reject Miss Vorhauer’s claim for the disability support pension on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 21 April 2017.
Miss Vorhauer subsequently applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (AAT1) for review and, on 14 August 2017, the SSCSD affirmed Centrelink’s decision to cancel Miss Vorhauer’s disability support pension.
On 6 September 2017, Miss Vorhauer applied to the General Division of the Tribunal for a review of the SSCSD decision.
The matter was scheduled for hearing in Canberra on 23 February 2018. On 22 February 2018, both parties agreed the matter could be dealt with on the papers.

RELEVANT LEGISLATION AND ISSUES

6.Subsection 94(1) of the Act provides that a person qualifies for the disability support pension if:
(a)The person has a physical, intellectual or psychiatric impairment; and

(b) The person’s impairment is of 20 points or more under the Impairment Tables; and

In accordance with the requirements set out in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Miss Vorhauer must satisfy the requirements of section 94 of the Act as at the date of her claim or within 13 weeks of lodging the claim, that is between 23 December 2016 and 24 March 2017 (the claim period)^1,2,3.
The Secretary concedes, and the Tribunal agrees, that Miss Vorhauer suffers from a medical condition that causes impairment and therefore, she satisfied paragraph 94(1)(a) of the Act at the time of her claim for the disability support pension.
It follows that the determinative issues in this matter are whether, during the claim period, Miss Vorhauer had:

(a)An impairment rating of 20 points or more under the Impairment Tables; and
(b)A continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION

Does Miss Vorhauer have a medical condition that can be rated at 20 points or more under the Impairment Tables?

The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’.
As set out in subsection 6(4) of the Impairment Tables Determination, a medical condition is permanent if it:

(a)Has been fully diagnosed; and

(b) Has been fully treated; and

(d)Is more likely than not to persist for more than two years.

When deciding whether a condition is ‘fully diagnosed’, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified medical practitioner.
When deciding if a condition is ‘fully treated’, it is necessary to consider what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.
When deciding if a condition is ‘fully stabilized’, it is necessary to consider whether it is unlikely that there will be any significant functional improvement in the condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment. An impairment can be rated between nil and 30 points, depending on how it affects a person’s ability to function.
The introduction to each Impairment Table states that a person’s self-report of symptoms alone ‘is insufficient’ and there ‘must be corroborating evidence of the person’s impairment’.
The discharge summary from Wagga Wagga Rural Referral Hospital (WWRRH) dated 3 January 2017 stated Miss Vorhauer was admitted on 20 December 2016 following a simple mechanical fall. She was diagnosed with a left femoral fracture. She underwent operative fixation of the left femoral condyle and application of external fixation device on 23 December 2016 (T8, page 94). The discharge summary states:
Postoperatively, the admission has been complicated by difficult analgesia and reluctance to engage with physiotherapy activity.
Miss Vorhauer was transferred to Cootamundra Hospital for care, due to her lack of home supports, on 3 January 2017, until the fracture was stable enough to have removal of the external fixation device at WWRRH (T8, page 96).
On 13 January 2017 Miss Vorhauer was readmitted to WWRRH for operative removal of the external fixation device and application of a cast. Surgery was performed on 14 January 2017. The discharge summary notes Miss Vorhauer was reluctant to engage with physiotherapy and there were difficulties with pain management (T8, page 91). The summary states:
Miss Vorhauer once again displayed subversive behavior with refusal to engage in physiotherapy, refusal to mobilise and citing a myriad of reasons.
Her pain has been extensively discussed and reviewed by relevant medical staff and her current plan is at a suitable maximum.
She has also intermittently refused her subcut clexane DVT prophylaxis despite being informed of the high-risk for VTE.
The discharge plan following this admission was (T8, page 92):
Discharge Plan:
1. Transfer to Cootamundra Hospital, Dr Zeng has accepted care.
2. Non-weightbearing left lower limb for 4 weeks in cast. Review in post-op clinic in 4 weeks – xray and removal of cast, commence touch weight bearing for 6 weeks (then gradually increase weightbearing thereafter)
3. May mobilise with FASF or step down to PUF when/if deemed fit by physio
4. Wean analgesia as able (not for increased doses of Lyrica)
Miss Vorhauer was discharged to Cootamundra Hospital as planned. However a letter written by Ms Jill Ludford, the Chief Executive of Murrumbidgee Local Health District on 14 February 2017 stated that Miss Vorhauer subsequently prematurely discharged herself against medical advice from the rehabilitation unit of Cootamundra Hospital (T10). The letter stated:
I have been advised by the Cootamundra Cluster Manager, Ms Kerry Lindeman, that during a discussion with Miss Vorhauer on 2 February 2017 regarding her care, Ms Rachael Vorhauer stated that her plaster was wet.
The plaster was removed following consultation with the Visiting Medical Officer at Cootamundra and the Orthopaedic Junior Medical Officer at Wagga Wagga Rural Referral Hospital. A Zimmer splint was applied to allow improved air flow and showering. The Zimmer splint was reviewed at Wagga Wagga Rural Referral Hospital on 9 February 2017. Ms Rachael Vorhauer discharged herself against medical advice following that appointment.
Miss Vorhauer subsequently presented to the emergency department of WWRRH on 28 March 2017 after her general practitioner noted swelling in the left leg and expressed a concern about possible displacement of the fracture or a deep vein thrombosis. The discharge summary stated that following discharging herself against medical advice from her rehabilitation bed at Cootamundra hospital, Miss Vorhauer had been receiving Compacks home care. Imaging studies documented the fracture was not displaced and there was no deep vein thrombosis. Management was discussed with the orthopaedic team who advised that they were now happy for Miss Vorhauer to weightbear as tolerated.
Miss Vorhauer was subsequently reviewed in the orthopaedic outpatient clinic on 6 June 2017 by registrar Dr John Hamid (T8, page 78-79) and she had not yet commenced weightbearing as advised. The doctor wrote:
I reviewed Ms Vorhauer in clinic today 6 months post op from Wagga Hospital. She has a stiff L knee following a prolonged period of immobilization. X-rays done on 29/5/17 show satisfactory screw position and she can commence protected weightbearing with a frame. I have referred her to outpatient physiotherapy. She will need ongoing monitoring and analgesia for her physiotherapy. I have informed her that her long term range of movement may be limited without physiotherapy.
The referral written by orthopaedic registrar Dr Hamid on 6 June 2017 for Miss Vorhauer to undertake physiotherapy gave specific treatment advice (T8, page 80). The doctor wrote:
Treatment requested
1. Zimmer splint while mobilising protected weight bearing
2. Can start active and passive range of motion left knee
3. Discontinue Zimmer splint at other times unless mobilising
The tribunal found that on the date of claim for DSP and within the relevant review period, Miss Vorhauer was ‘fully diagnosed’ with a left femoral fracture by medical staff from the WWRRH.
However, the tribunal found the medical condition was not ‘fully treated and stabilized’ on 23 December 2016 or within the relevant review period. Miss Vorhauer underwent primary surgery of internal fixation of the left femoral condyle and application of external fixation device on 23 December 2016 and secondary surgery to remove the external fixation device on 14 January 2017. Her post operative rehabilitation was delayed due to her reluctance to engage in post operative physiotherapy, subsequent discharge against medical advice from the Cootamundra Hospital on 9 February 2017 and failure to pursue the advice given by the orthopaedic team at WWRRH on 28 March 2017 to begin weightbearing as tolerated. When Miss Vorhauer was reviewed by orthopaedic registrar Dr Hamid on 6 June 2017 there remained a clear intention by the treating specialist medical staff that the applicant engage in physiotherapy to progress mobilization and range of movement in her left knee. It was likely that Miss Vorhauer would gain functional improvement in lower limb function with engagement in physiotherapy and rehabilitation during the next two years.
The applicant argued Miss Vorhauer had undergone surgery during the period of the review and therefore Miss Vorhauer had received treatment. However, whilst surgery represented treatment, it did not mean the condition was ‘fully treated and stabilised’ as further reasonable treatment in the form of rehabilitation had not yet occurred, and it was likely that following rehabilitation and physiotherapy there would be further functional improvement as the fracture healed and increasing weightbearing and mobility occurred.
As the tribunal has found the left femoral fracture was not ‘fully treated and stabilised’ on the date of claim for DSP or within the relevant review period, it follows that the condition is not a permanent condition as set out in subsection 6(4) of the Impairment Tables Determination.
As a result the functional impairment for the condition cannot be rated under the relevant Impairment Table.
As a result the tribunal found Miss Vorhauer has no points rated under the Impairment Tables and did not satisfy paragraph 94(1)(b).
The tribunal did consider other arguments raised in the submissions of the applicant. The applicant argued that Centrelink had not opposed the original review and therefore the applicant should have had the decision made in their favour. However, the tribunal noted Centrelink had lodged paperwork at the AAT1 hearing that included documents outlining the arguments by which they arrived at their decision (T2).
The applicant argued the Impairment Tables were used to give a rating of 0 when they should not have been used, as the condition was not a permanent condition. The tribunal agrees. The tribunal has found the medical condition was not fully diagnosed, treated and stabilised and therefore does not fulfil the requirements of a permanent condition as defined in subsection 6(4) of the Impairment Tables Determination. Therefore the tribunal has not applied a rating for the condition under the Impairment Tables.
The applicant made several submissions in regard to the respondent being the Secretary, and being represented. The tribunal considered these submissions, but found they reflected a misunderstanding on the part of the applicant and were not relevant to the review outcome.
The tribunal noted that the applicant made several submissions in regard to the Commonwealth of Australia Constitution Act 1900 (Cth) and the legislative powers contained in s51. The tribunal considered the submissions, but found they were not relevant to the review.
CONCLUSION
For the reasons set out above, I am satisfied that Miss Vorhauer did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period as her impairment was not rated at 20 points or more under the Impairment Tables.
As I find that Miss Vorhauer did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether she had a continuing inability to work.

DECISION

The decision under review is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of
J Quinlivan, Member

........................................................................

Associate

Dated: 26 February 2018

Date of hearing	23 February 2018
Applicant	Self-represented
Representative for the Respondent	J Tsianikas, Department of Human Services

[2018] AATA 338

26 February 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Standing

Statutory Construction