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

[2016] AATA 680

Walton and Secretary, Department of Social Services (Social services second review) [2016] AATA 680 (2 September 2016)

Division	GENERAL DIVISION
File Number	2015/3973
Re	Melissa Joanne Walton
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	2 September 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Regina Perton, Member

SOCIAL SECURITY - disability support pension – whether medical conditions diagnosed, fully treated and stabilised at time of claim or within 13 weeks of that date – points to be allocated - decision affirmed

Legislation

Social Security Act 1991 section 94

Social Security (Administration) Act 1999 section 4 of Schedule 2

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

REASONS FOR DECISION

Regina Perton, Member

2 September 2016

1. Melissa Walton lodged a claim for disability support pension (DSP) with Centrelink on 15 July 2014.  On 23 August 2014 a Centrelink officer rejected Ms Walton’s claim (the original decision). Centrelink administers DSP for the Secretary, Department of Social Services (the respondent).

2. On 27 November 2014 Ms Walton sought a review of the original decision by a Centrelink authorised review officer (ARO).  On 7 December 2014 the ARO affirmed the original decision. 

3. Ms Walton lodged an application for review of the ARO's decision with the Social Security Appeals Tribunal (SSAT) on 20 May 2014.   On 22 July 2015 the SSAT (now known as the Social Security & Child Support Division) of the Administrative Appeals Tribunal (AAT1) affirmed the ARO's decision to refuse DSP on the basis that Ms Walton's impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 16 July 2014 or within 13 weeks of that date (the relevant period). 

4. On 5 August 2015 Ms Walton lodged an application for review of the AAT1’s decision with this Tribunal.  Ms Walton asked that the Tribunal consider her application on the papers without a hearing in person because of her medical condition.  The respondent agreed to the request as did the Tribunal.

5. The issue before the Tribunal is whether Ms Walton satisfied the requirements for DSP during the relevant period.  The Tribunal is not empowered to decide whether Ms Walton met the requirements at a later date or at the present time.

   QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD

6. Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP. 

   94(1)   A person is qualified for 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

   (c) the person has a continuing inability to work

   …          

7. When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date.

8. On 7 July 2014 Ms Walton’s general practitioner, Dr Elaine Coulter, completed a medical report indicating that Ms Walton suffered from chronic cough, right ulnar neuropathy and  restless legs syndrome. Dr Coulter indicated that Ms Walton had been her patient since 2002.   

9. In her claim form, Ms Walton stated that she also suffered from depression/anxiety and PTSD (post-traumatic stress disorder).    

10. The Tribunal accepts that Ms Walton suffered from a number of medical conditions during the relevant period and continues to do so. Her impairments included a chronic cough, right ulnar neuropathy and a psychological condition. The Tribunal accepts that Ms Walton suffered from physical and mental impairments at the time she lodged her claim for DSP. She therefore meets the requirements of section 94(1)(a) of the Act.

11. The Tribunal must next decide whether Ms Walton's medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under sections 6(3) and (4) of the Impairment Tables.  The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(2) of the Act). 

12. Section 6 of the Impairment Tables states that:

    Applying the Tables

    (2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

    …

    Impairment ratings

    (3)An impairment rating can only be assigned to an impairment if:

    (a)the person’s condition causing that impairment is permanent; and

    Note: For permanent see subsection 6(4).

    (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.

    …

    Permanency of conditions

    (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note: For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note: For fully stabilised see subsection 6(6).

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (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.

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (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

    (bthe 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; or

    (ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    Note:        For reasonable treatment see subsection 6(7).

    Reasonable treatment

    (7)For the purposes of subsection 6(6), reasonable treatment is treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    Impairment has no functional impact

    (8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

    Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

    Assessing functional impact of pain

    (9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:

    (a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

13. Section 8 of the Impairment Tables sets out what cannot be taken into account.

    8Information that must not be taken into account in applying the Tables

    (1)...

    (2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.

    Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.

    Ms Walton’s chronic cough / asthma

14. The Tribunal accepts that Ms Walton was suffering from a chronic cough during the relevant period.  In her July 2014 report, Dr Coulter stated that the date of onset was around August 2009 and had been confirmed by an ear, nose and throat (ENT) specialist.  Ms Walton had been prescribed inhalers since about 2009, with a different type prescribed from 2013 onwards. Various treatments have been trialled.  Ms Walton had been examined by two respiratory physicians and an ENT specialist prior to making the claim.  Dr Coulter stated that future/planned treatment included ongoing treatment by a speech pathologist and a psychologist.

15. Dr Coulter described Ms Walton’s current symptoms as:

    Cough – chronic, harsh, sometimes spasms cause blacking out, incontinence, SOB. Present all day & night, worsens but never settles completely.

16. The impact on Ms Walton’s ability to function was described as:

    Severely restricts normal functioning, had to leave her job at Target due to cough.  Avoids leaving home for fear of blacking out or incontinence.  Feels very self conscious and embarrassed in public.  Marked anxiety and low mood.

17. Dr Coulter expected that the condition would impact on Ms Walton’s ability to function for more than 24 months.  Dr Coulter stated that the effect of the condition on Ms Walton’s ability to function was uncertain stating that despite extensive treatment and trials of various treatments the cough had failed to improve.

18. On 25 March 2014 Dr Alan Young, Respiratory and Sleep Physician, wrote to Dr Coulter stating:

    …

    Problem List

    1.     Chronic cough, Normal spirometry, gas transfer, CT chest, ECHOES, bronchoscopy and gastroscopy.  Minimal response to Seritide, Symbicourt, Alvesco, prednisolone, Parriet, Nexium, Rhinocort and Atrovent nasal sprays…

    2.    Asthma.  Symptoms commenced 4yo. Diagnosed 10 yo.  Symptomatic during Spring.  Ventolin PRN.  Seretide in the past.

    3.    Anxiety/depression

    4.    Restless leg syndrome.

    5.    Seasonal rhinitis.

    She has seen speech pathologist Debbie Phyland on a couple of occasions and has been given some breathing exercises that have thus far not improved her cough. I understand she has subsequently been referred to a psychologist for review to deal with some of the traumatic feelings related to the cough such as losing her job.  Thereafter, she will return for speech pathology review.

    Her asthma appears well controlled currently.  She had a mild increase in her symptoms related to the change in the weather and this has now settled.  She has not required any prednisolone.  She remains on Seretide and is using her Ventolin occasionally pre-exercise.  She is also avoiding exercise due to the cough.

    I have left her current inhaler therapy unchanged given the stability of her asthma.  She will have ongoing psychologist and speech pathology review.  She has an appointment to return in six months at which time I would consider discharging her from clinic back to your care.

19. Ms Walton had seen Dr Young previously and he had tried a range of treatments without success over the three previous years.  Other specialists of various specializations had also seen Ms Walton and were unable to determine the cause of the cough.

20. Susan Jenkin, a psychologist, provided a report dated 12 June 2014 in which she stated:

    Melissa was referred to me for psychotherapy by her general practitioner (G.P.) to assist in the management of long standing anxiety and a chronic cough she has had for over 4 years.  According to her GP this has been extensively investigated which has included various treatment trials.

    One such treatment included speech pathology in which the resistance to treatment led the speech pathologist to feel that Melissa needed to deal with her anxiety and trauma associated with the cough before any treatment could be effective.

    I have now seen Melissa for five sessions and in that time Melissa has exhibited behaviour that is in accordance with previous findings that Melissa’s cough does indeed exclude her from everyday activities that bring her in contact with others.

    Melissa reports that her coughing fits are triggered by many things, such as animated talking, laughing, the fog on cold days, and any form of exercise.  When a coughing fit occurs, Melissa reports that she often blacks out and loses control of her bladder.  Both of these things severely affect her ability to venture outside for risk of humiliations or serious injury.

    In my opinion, it would further debilitate Melissa should she be made to go out to work before treating this chronic cough and the associated symptoms.

21. As at July 2014, there had still not been a diagnosis as to what was causing Ms Walton’s cough.  As stated above, she had seen an array of specialists who were bewildered by what was causing her symptoms, which continued to persist. Ms Walton’s general practitioner referred her to a psychologist and a speech pathologist who were continuing to treat her at that time.   Dr Young was to review Ms Walton around September 2014.

22. The respondent submitted that the Tribunal should not accept that Ms Walton’s chronic cough condition was fully diagnosed, treated and stabilised as there had been no physical cause identified.  Ms Walton was also seeing a speech pathologist and a psychologist who both indicated that there was a likelihood of some improvement of the condition with ongoing consultations. 

23. Regrettably, the Tribunal concurs with the respondent.  The Tribunal accepts that the cough was debilitating in July 2014 and its impact on Ms Walton profound.  However, the evidence before the Tribunal does not lead it to be satisfied that the condition had been diagnosed, fully treated and stabilised.  Therefore no points can be awarded for the condition.

    Ulnar neuropathy

24. In her report dated 7 July 2014, Dr Coulter stated that Ms Walton was diagnosed with ulnar neuropathy in October 2010, stating the condition had been confirmed by a neurologist, Dr Stephen Ng, at that time.  In a report to Dr Coulter, Dr Ng stated that he had performed nerve conduction studies that were normal.  Dr Ng suggested the following management of Ms Walton’s pain in his letter:

    I think the right hand chronic pain is due to soft tissue injury or tendonitis through repetitive use of her hand.  I think the left hand symptom is consistent with ulnar neuropathy, although the nerve study is entirely normal. I have referred her for an MRI of the left elbow to see if she has any obvious structural lesion or evidence of ulnar neuritis.  I have also included an x-ray to assess for previous fracture site.

    For treatment, I have asked her to avoid pressure over the left elbow for obvious reasons.  I think she would benefit from hand therapy with regards to the right hand pain and I have asked her to return to see you in the future for consideration of referring to a hand therapist.  I will see her again after the MRI scan.

25. After an MRI was undertaken on 31 December 2010, Dr Ng reviewed Ms Walton on 11 January 2011 and reported to Dr Coulter:

    I reviewed Melissa today.  Her left elbow MRI showed no obvious evidence of ulnar neuritis.  Her left elbow x-ray showed deformity at the supracondylar region, with some evidence of sclerosis.  There is also evidence of old fracture line, as well as some evidence of deformity.

    Clinically, she still reports ongoing left intermittent ulnar nerve symptoms…

    In addition to the ulnar nerve symptoms, she has ongoing pain in both hands.  Her work involves repetitive use of the hand, gripping objects for scanning.

    …

    …I do not think she needs an operation at this stage.  I, however, mentioned to her that ulnar nerve transposition can be considered if she finds her current symptoms unacceptable.

26. On 11 February 2011 Diana Francis, hand therapist, reported to Dr Coulter that she had discussed with Ms Walton how to avoid pressure on the nerve of her elbow by keeping her elbow extended, particularly overnight, and to avoid leaning on her elbow.  She provided exercises and instructions how to massage her forearm muscles and other related suggestions.

27. In her July 2014 report, Dr Coulter stated that no future treatment was proposed for this condition.  Ms Walton’s current symptoms were described as pain & weakness affecting the R hand.   The impact on Ms Walton’s ability to function was:

    Difficulty picking up objects, lifting heavy things, some difficulty dressing.

28. The respondent, and the Tribunal, accept that the condition is fully diagnosed, treated and stabilised.  Table 2 of the Impairment Tables is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

29. The Tribunal finds in accordance with medical evidence, and that of Ms Walton, indicating that her condition warrants five points:

    There is a mild functional impact on activities using hands or arms.

    (1)        The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

    (a)        picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

    (b)        handling very small objects (e.g. coins);

    (c)        doing up buttons;

    (d)        reaching up or out to pick up objects.

    Depression / anxiety

30. Table 5 of the Impairment Tables covers mental health function.  The preamble at the start of the table states:

    ·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.

31. The Tribunal had before it a report addressed to Centrelink from Elizabeth Clarkson, clinical psychologist, dated 11 September 2015. It also had a letter from Ms Clarkson addressed to Ms Lewis who represented the respondent at the Tribunal dated 28 October 2015 and a letter addressed to Dr Coulter dated 27 January 2016.

32. The first letter indicates that it has been written at Ms Walton’s request to support her application for DSP.  Ms Clarkson indicates that she had two assessment consultations with Ms Walton in September 2015.  Ms Clarkson describes Ms Walton’s medical and social history.  Ms Clarkson reports that Ms Walton told her that she experienced her symptoms of depression and anxiety for at least two years but had become worse in the two months before she first saw Ms Clarkson.  Ms Clarkson reported that:

    My diagnosis is that Ms Walton is depressed with comorbid anxiety.  Her capacity to work and cope outside of her home is adversely affected by her unresolved medical problem.

1. Dr Coulter had already indicated in 2012 that Ms Walton had experienced anxiety for many years.  In her medical report prepared for the DSP application made in July 2014, Dr Coulter stated that her patient suffered from depression.  There is no evidence of confirmation of the conditions by a psychiatrist or clinical psychologist before September 2015, which is more than a year after the application for DSP which the Tribunal is considering.

2. While the Tribunal accepts that Ms Walton is likely to have suffered from anxiety and depression prior to July 2014, it is unable to allocate any points as there had not been a diagnosis by a psychiatrist or confirmation by a clinical psychologist before or during the period under consideration in early July to early September 2014.   

   Other conditions

3. Dr Coulter stated in her July 2014 report that Ms Walton suffers from restless legs syndrome. However, the condition was listed in the section of the report detailing  Ms Walton’s conditions that are generally well-managed and cause minimal or limited impact on ability to function.  No further details are given.  The Tribunal subsequently finds that no points are to be awarded for that condition.

   Conclusion

4. Ms Walton’s total impairment rating at the time of the qualifying period is 5 impairment points. The Tribunal finds that Ms Walton does not meet section 94(1)(b) of the Act during the relevant period as she has not been allocated a total of 20 points for her impairments under the Impairment Tables.

5. The Tribunal accepts that Ms Walton is unable to work given the debilitating nature of her symptoms.  As stated earlier in these Reasons for Decision, the Tribunal is not able to consider whether Ms Walton would qualify for DSP if it were considering her medical conditions and limitations at the present time. 

   DECISION

6. The Tribunal affirms the decision under review

39.      

40.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member

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

Associate
Dated   2 September 2016

Date of hearing: 24 March 2016 (on the papers)