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

[2019] AATA 2967

Wadeson and Secretary, Department of Social Services (Social services second review) [2019] AATA 2967 (9 August 2019)

Division:GENERAL DIVISION

File Number:           2018/0555

Re:Shaine Wadeson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:9 August 2019

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether the applicant qualifies for DSP pursuant to section 94 of the Social Security Act 1991 – whether the applicant’s impairments are fully diagnosed, treated and stabilised – whether the applicant’s impairments total twenty points or more under the Impairment Tables – whether the applicant has a continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1994 (Cth) s 94

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

Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Senior Member

9 August 2019

1. Ms Wadeson, who is now 49 years old, had been receiving Disability Support Pension (DSP) since June 2010. She had qualified for DSP under the Social Security Act 1991 (the Act) when an earlier version of the Impairment Tables was in force.

2. On 2 March 2017 Ms Wadeson was notified that her eligibility for DSP was going to be reviewed and she was requested to provide an updated Medical Report.

3. On 9 March 2017, Dr Kana, a general practitioner, completed a ‘Section B Medical Report Disability Support Pension Review’. 

4. On 18 April 2017, Ms Wadeson was notified that a decision had been made that she no longer qualified for DSP and that her pension was cancelled. The reason given for cancellation was that Ms Wadeson did not have an impairment rating of 20 points or more under the current Impairment Tables.

5. On 26 June 2017, an Authorised Review Officer affirmed the decision to cancel Ms Wadeson‘s DSP.

6. On 2 January 2018, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to cancel Ms Wadeson’s DSP. The AAT1 found that Mr Wadeson’s relevant medical conditions were not permanent for “DSP purposes” so that a rating under the Impairment Tables could not be assigned.

7. In these proceedings, Ms Wadeson seeks review of the AAT1 decision.

8. Ms Wadeson who was self-represented attended the hearing by telephone and was assisted by her daughter.

   ISSUES

9. DSP is defined as a social security payment in s 23 of the Act.

10. Section 80 of the Social Security (Administration) Act1999 (Administration Act), provides:

    (1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

    (a)who is not, or was not, qualified for the payment; or

    (b)to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

11. Section 117 of the Administration Act provides that an adverse determination “means a determination under section 79, 80, 81, 81A or 82”.

12. Section 118(1) of the Administration Act provides that:

    (1) The day on which an adverse determination takes effect in relation to a social security payment is worked out:

    (b)in the case of carer payment—in accordance with this section and section 120; and

    (c)in the case of any other social security payment—in accordance with this section.

13. Section 118(13) provides for DSP as follows:

    (13) In any other case, an adverse determination takes effect:

    (a)on the day on which it is made; or

    (b)if a later day is specified in the determination, on that day.

14. As the decision to cancel Ms Wadeson’s DSP was an adverse determination within the meaning of s 117 of the Administration Act, she had to satisfy the requirements of s 94 of the Act as at the date of cancellation of her DSP, that is, 18 April 2017. 

15. Section 94(1) of the Act provides that a person is qualified for DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and

    (b)the person’s impairment is 20 points or more under the Impairment Tables (s      94(1)(b)); and

    (c)the person has a continuing inability to work as defined by the Act (s 94(1)(c)(i)).

16. The Respondent concedes, and the Tribunal accepts, that Ms Wadeson suffered medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act.

17. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

18. The Impairment Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

19. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·more likely than not, in light of available evidence, to persist for more than 2 years  (paragraph 6(4)(d)).

20. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

21. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where the person has a permanent condition resulting in functional impairment due to a mental health condition”, states that 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)”.

22. The Respondent contends that as at the date of cancellation, Ms Wadeson had a rating of no more than 10 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

23. Therefore, the definitive issue in this matter is whether, as at the date of cancellation, Ms Wadeson’s impairment was 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.

    Ms Wadeson’s Evidence

24. In the Section B Medical Report Disability Pension Review, dated 6 May 2017, Ms Wadeson listed her medical conditions as “osteoarthritis, RSI, Rheumatoid Arthritis, skillioasis (crooked spine) - lower back & neck [pain] kidney & liver failure, hearing & vision impaired” [sic]. 

25. The medical conditions and symptoms considered by AAT1 include the following:

    poor vision, deafness, memory problems, problems with liver and kidney, peripheral neuritis, peripheral neuropathy, chronic pain, borderline diabetic, COPD, asthma, hypertension, high triglycerides and high cholesterol, rheumatoid arthritis, osteoarthritis.

26. In an email dated 8 April 2019, Ms Wadeson listed her “permanent” medical diagnoses as follows:

    RS, RA, OA, FM, Scoliosis, kidney malfunction, seeing & hearing impaired, fractured tail bone, severe Vit D deficiency, borderline diabetic, high blood pressure.

27. In the email Ms Wadeson stated that “I am in pain 24 hours a day 7 days a week, the more I physically move my body the more pain I am in …. I do not think the doctors wrote all the right information on the reports ….”

28. At the hearing Ms Wadeson told the Tribunal that she lives alone, but has regular assistance by a friend who attends for about half a day two times per week and who drives her to medical appointments. Her daughter also assists during the school holidays.

29. Ms Wadeson explained that she suffers generalised pain “all over” and that her symptoms have increased significantly in the last 12 months. She has difficulty with mobility and needs to use an electric mobility scooter when outside the house.

30. Ms Wadeson stated that she needs to use three pairs of glasses, but currently still has problems with reading. She said that usually she uses hearing aids, but was not using them during the hearing because her ears were “blocked”. However, she appeared to have no difficulty during the telephone exchange during the hearing.

31. Ms Wadeson stated that recently she had been diagnosed with “stage 4 kidney failure” and needed dialysis and a kidney transplant, but was unable to provide any supporting documents.  

32. Ms Wadeson denied any difficulties with her weight and stated that her increased weight was due to a past history of weightlifting which caused an increase in muscle bulk and that she had “70% muscle and 30% fat”.

    MEDICAL EVIDENCE

33. In a Centrelink Medical Report dated 22 February 2008, Dr Haldar, a general practitioner, listed “chronic low back pain” and “RSI in both arms” as medical conditions that had a significant impact on Ms Wadeson’s ability to function. He provided no explanation to support the diagnoses and provided no meaningful assessment of functional impact.   

34. Dr Haldar listed “asthma, fracture of coccyx, obesity and kidney stone” as medical conditions that were generally well managed and caused minimal impact on ability to function. Dr Haldar provided limited information to support the diagnoses and no meaningful assessment of functional impact.

35. The Clinical Chemistry report, dated 8 February 2016, detailed the following results:[1]

    • Renal function – moderate decrease in GFR;
    • Liver function – mild elevation GGT;
    • Fasting glucose – normal;[2]
    • Elevated cholesterol and triglycerides.

    [1] Section 37 Documents, T20 at p. 225.

    [2] This is not consistent with a diagnosis of diabetes.

36. In his medical report of 9 March 2017, Dr Kana listed “multiple joint osteoarthrites” [sic] as the medical condition with the most impact. Current treatment is noted as “Panamax, massage therapy”.

37. Impact on ability to function was described as “movement – walking, bending, standing, lifting, carrying and manipulating objects”. No other relevant details were provided.

38. Dr Kana listed “gross obesity” as a medical condition with significant impact on ability to function. Current treatment is noted as “continue support and advice” with current symptoms described as “breathless on minimal exertion, using frame at home”.

39. Dr Kana lists “shortness of breath on minimal exertion, hypertension, high cholesterol, high triglycerides, renal impairment, liver derangement” as medical conditions that are generally well managed and that cause minimal or limited impact on ability to function but provided no other details.

40. In a subsequent report dated 9 May 2017 Dr Kana provided a list of symptoms and diagnoses, similar to the list provided by Ms Wadeson as noted above, but with no additional relevant information apart from current medication.

41. Dr Kana noted in his report that Ms Wadeson’s current medication included Panadol-Osteo,[3] magnesium, Tramal,[4] Karvezide[5] and Crestor.[6]

    [3] Analgesic.

    [4] Opioid-like analgesic.

    [5] Anti-hypertensive.

    [6] Lipid lowering agent.

42. The Tribunal was provided with copies of two undated medical reports from Dr Lee and Dr Tan that were filed by Ms Wadeson on 9 September 2018. Both copies were illegible and at the hearing neither the Respondent nor Ms Wadeson was able to provide legible copies.

43. The Tribunal was provided a report by Dr Smith of the Health Professional Advisory Unit (HPAU).

44. In  Dr Smith’s report, dated December 2018, he provided summaries of relevant information in various reports and letters that had been provided to the HPAU as follows:

    • 8 May 2017 - Ms Wang, optometrist - best corrected visual acuity 6/7.5 right eye and 6/15 left eye;
    • 11 July 2017 - Dr Budideti, general practitioner - Lists rheumatoid arthritis and osteoarthritis;
    • 26 September 2017 - Dr Lee, rheumatologist - States 10 year history of pain involving wrists, shoulders, hips, lower back, knees and ankles; no swelling or morning stiffness noted. Past history of cholecystectomy, renal calculus, hypertension, dyslipidaemia, vitamin D deficiency and possible glucose intolerance ……Clinically: obesity noted, nicotine stained fingers; tone of upper and lower limbs normal, power normal with encouragement, reflexes normal…. Decreased range of movement of lumbar spine in all directions - difficult to assess due to pain. No evidence of synovitis rash or vasculitis. Remainder of examination normal.  States has chronic pain. No underlying inflammatory arthritis and although ESR and CRP raised, normal levels of rheumatoid factor and ENA…..Recommended strengthening exercises about which Ms Wadeson was circumspect, stating that she had gained weight with physiotherapy. Suggested pain clinic review…..agreed to this referral…vitamin D level noted to be reduced – increased amount of replacement; and
    • 16 May 2018 -  Dr Tan, rehabilitation physician - states long history of multifocal pain; previous pain counselling without benefit, state “doing her own hydrotherapy at home”; offered to refer to chronic pain management group therapy - declined.

45. Dr Mehrotra, general practitioner, provided 2 medical certificates dated 9 January 2018 and 17 April 2018 which listed osteoarthritis and fibromyalgia as medical conditions which were having an impact on Ms Wadeson’s functional capacity. Symptoms were noted as “pain and reduced mobility, social isolation” and current treatment described as “awaiting to be seen in pain clinic”. No other treatment was indicated.

46. Dr Mehrotra provided no details to support either diagnosis particularly the new diagnosis of fibromyalgia and no meaningful assessment of functional impact.

47. The Chronic Disease GP management plan dated 3 July 2019 by Dr Mehrotra states:

    • Patient problems - fibromyalgia, osteoarthritis, renal impairment, impaired fasting glycaemia, hyperlipidaemia, Insulin resistance syndrome, vitamin D deficiency, hypertension; 
    • Being investigated by renal and neurology clinic; and
    •  Prescribed medication: Lyrica[7] and Ramipril.[8]

    [7] Anti-epileptic for neuropathic pain.

    [8] Antihypertensive.

    CONSIDERATION

48. Ms Wadeson contends that at the date of cancellation of her DSP she suffered several medical conditions which had a significant impact on her ability to function.

49. The difficulty for Ms Wadeson is that the medical evidence, which can best be described as incomplete and lacking in detail, does not provide sufficient evidence to support some of her claimed diagnoses and does not provide a satisfactory explanation for the currently claimed severity of her symptoms and functional impairment.

50. Furthermore, at the hearing Ms Wadeson emphasised that her symptoms and decreased mobility had significantly deteriorated over the last 12 months, and for present purposes, much of the current medical evidence is unhelpful.

51. The contemporaneous evidence of Dr Kana in March and May 2017 is, in my view. of limited value.

52. It would appear that, at the date of cancellation of DSP, the medical conditions having a significant impact on Ms Wadeson’s ability to function were chronic pain caused by osteoarthritis in multiple joints and obesity.

53. Dr Kana pointed to no evidence which would support a conclusion that Ms Wadeson’s chronic pain could be explained by generalised osteoarthritis and provided no convincing assessment of the impact on Ms Wadeson’s ability to function.

54. Apart from the reports of CT scans performed on 20 May 2010, which showed some degenerative changes in the cervical and lumbar spine and mild degenerative changes in the shoulders, there is no other convincing evidence that Ms Wadeson suffered significant generalised osteoarthritis.

55. Furthermore, in September 2017, Dr Lee did not appear to confirm a diagnosis of generalised osteoarthritis, but did confirm that there was no evidence of inflammatory arthritis with a normal level of rheumatoid factor. Dr Lee also noted normal tone, power and reflexes in upper and lower limbs and some limitation in the range of movement of the lumbar spine with no assessment that would suggest significant functional impairment.

56. With respect to the condition of obesity, which was denied by Ms Wadeson at the hearing, Dr Kana provided no evidence of any treatment and no convincing assessment of the impact on Ms Wadeson’s ability to function.

57. Furthermore, Dr Kana provided no evidence which would support a conclusion that, at the date of cancellation, Ms Wadeson suffered RSI, COPD, peripheral neurites or significant renal impairment.

58. With respect to the remaining medical conditions listed by Dr Kana there is no evidence that, at that time of cancellation, these conditions had a significant impact on Ms Wadeson’s ability to function.

59. With respect to the conditions of osteoarthritis and obesity, I am not persuaded that there is sufficient corroborative evidence to support a conclusion that, at the date of cancellation of DSP, these conditions were fully treated and fully stabilised, and therefore not permanent for the purposes of the Impairment Determination. 

60. Furthermore, even if I were to accept that, at the date of cancellation of DSP, these two medical conditions were permanent for the purposes of the Impairment Determination, I am not satisfied that there is sufficient corroborative evidence to allow for any reasonable assessment of the impact of these conditions on Ms Wadeson’s ability to function.

61. Therefore, I am satisfied that a rating under the Impairment Tables could not have been assigned and that the decision to cancel Ms Wadeson’s DSP was correct.

    DECISION

62. For the reasons set out above, the Tribunal is satisfied that, at the date of cancellation on 18 April 2017, Ms Wadeson’s impairment was not 20 points or more and she does not satisfy s 94(1)(b) of the Act. Therefore, at that time, she did not qualify for DSP, so the decision to cancel her DSP was correct.

63. The decision under review is affirmed.

I certify that the preceding  63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated:  9 August 2019

Date(s) of hearing:	18 July 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services