Ward and Secretary, Department of Social Services (Social services second review)
[2015] AATA 509
•15 July 2015
Ward and Secretary, Department of Social Services (Social services second review) [2015] AATA 509 (15 July 2015)
Division GENERAL DIVISION File Number(s)
2015/0092
Re
Susan Ward
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President Christopher Kendall
Date 15 July 2015 Place Perth The Tribunal affirms the decision under review.
........................[sgd]...............................................
Deputy President, Dr C Kendall
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Whether applicant’s impairments attract 20 points or more under the Impairment Tables – Whether applicant has a “continuing inability to work” - Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)
Social Security (Administration) Act 1999 (Cth) – s 13(1) – Schedule 2, Clause 3Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 – s 3 – s 8(1) – s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(6) – s 6(7) – s 6(8) – s 8(1) – s 11(5) – Table 2 – Table 3 – Table 4 – Table 5
CASES
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Deputy President, Dr C Kendall
15 July 2015
INTRODUCTION
This matter requires the Tribunal to determine whether Ms Susan Ward qualifies for a Disability Support Pension (“DSP”).
Ms Ward seeks review of a decision of the Social Security Appeals Tribunal (the “SSAT”) made on 2 December 2014, affirming the decision of a Centrelink Authorised Review Officer (“ARO”), dated 15 September 2014. The ARO had affirmed a decision by the Department of Social Services (the “Department”) that Ms Ward was not qualified for DSP when she made her claim for DSP on 4 June 2014. That decision was made on the basis that Ms Ward’s impairments did not attract a rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”).
BACKGROUND
Ms Ward is 57 years of age.
On 4 June 2014, she contacted Centrelink to make a claim for DSP relating to various medical conditions (T2 at 10[2] and T29 at 223).
On 13 June 2014, Ms Ward lodged a claim for DSP with Centrelink (the “DSP Claim”). Her DSP claim was dated 12 June 2014 (T23 at 135 and T29 at 222).
Ms Ward claimed to have:
(i) Osteoarthritis on both knees
(ii) Chronic Low Back Pain
(iii) Shoulder Pain
(iv) Depression and Anxiety
(v) Asthma
(vi) Hyperlipidaemia (Diabetes)
(vii) Hypertension
Ms Ward’s DSP Claim was supported by a medical report dated 8 June 2014 from Dr Oscar D’Souza, her General Practitioner (T22 at 124-134).
On 31 May 2013, prior to lodging her claim, a Job Capacity Assessment (“JCA”) was conducted by a registered occupational therapist, with contribution from a registered psychologist (T6 at 86). For the purposes of Ms Ward’s DSP Claim, the JCA was considered to still be valid.
On 26 June 2014, a Centrelink officer rejected Ms Ward’s DSP Claim on the basis that she did not have an impairment rating of at least 20 points under the Impairment Tables (the “Original Decision”) (T25 at 166-167).
On 4 July 2014, Ms Ward sought an internal review of the Original Decision.
On 15 September 2014, an ARO affirmed the Original Decision (the “ARO Decision”) (T27 at 173).
The ARO found that Ms Ward’s osteoarthritis was “fully diagnosed, fully treated and fully stabilised”. However, the ARO did not accept that Ms Ward’s Chronic Lumbar back pain was “fully diagnosed, fully treated and fully stabilised”. The ARO assigned Ms Ward’s osteoarthritis 10 points under Table 3 (Lower Limb Function) of the Impairment Tables. The ARO further found that Ms Ward’s other conditions required further treatment and specialist management, and, as such, did not attract any impairment rating under the Impairment Tables.
The ARO also found that because the JCA indicated that Ms Ward had a temporary work capacity of 0-7 hours per week, Ms Ward was able to undertake “light less skilled work of at least 15 hours per week”. As such, it was concluded that Ms Ward did not have a “continuing inability to work” as per section 94(2) of the Social Security Act 1991 (the “SSA”).
On 14 October 2014, Ms Ward lodged an application with the SSAT for review of the ARO Decision.
On 2 December 2014, the SSAT affirmed the ARO Decision (the “SSAT Decision”).
The SSAT found that at the relevant time, Ms Ward suffered from a number of significant medical conditions. These were described as: depression and anxiety, low back pain, arthritis of the knees, shoulder pains, diabetes, hypertension, hyperlipidaemia and asthma (T2 at 12). The SSAT found that on the basis of the evidence before it, Ms Ward suffered from impairments resulting from these conditions.
The SSAT then determined whether Ms Ward’s impairments rated 20 points on the Impairment Tables.
The SSAT found that these medical conditions were either not “fully treated, fully stabilised and fully diagnosed”, or had not had significant functional impact on Ms Ward. As such, the SSAT found that these conditions did not generate 20 points from the Impairment Tables.
As the SSAT found that Ms Ward’s impairment rating was less than 20 points, the SSAT did not proceed to consider whether Ms Ward had a continuing inability to work.
On 8 January 2015, Ms Ward applied to the Administrative Appeals Tribunal for a review of the SSAT Decision.
THE RELEVANT PERIOD
The Social Security (Administration) Act 1999 (the “Administration Act”) provides that the start-day for a qualified DSP claimant is the day on which the claim is made: Schedule 2, Clause 3. This means that qualification for DSP and any impairment ratings must be determined as at the date of claim.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]–[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, "Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time".
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.
If a person contacts the Department about a claim for payment and lodges a claim within 14 days, the date of the initial contact may be deemed to be the day the claim is made: see section 13(1) of the Administration Act.
Consequently, the relevant period in relation to whether Ms Ward qualifies for DSP is 4 June 2014 (being the date Ms Ward first contracted the Department) to 3 September 2014 (being 13 weeks after Ms Ward first contacted the Department) (the “Relevant Period”).
MEDICAL EVIDENCE
The Tribunal had regard to the following medical evidence. The evidence was clearly summarised by the Secretary, Department of Social Services (the “Secretary”) in the Secretary’s Statement of Facts, Issues and Contentions dated 8 May 2015.
Reports of X-Rays on right hand and wrist and both knees, CT lumbosacral spine, ultrasound on both shoulders, dated 18 October 2013 (T10 at 106-108)
The evidence shows that on 18 October 2013, an x-ray was performed on Ms Ward’s right hand and wrists and both knees. The results of the x-ray on the right hand and wrists revealed:
·Deformity of the 5th metacarpal bone which is in keeping with an old fracture with a well-corticated bony fragment at the base of the 5th metacarpal bone in keeping with post-traumatic ossicle;
·Mild degenerative osteophyte formation at the 4th metacarpophalangeal joint;
·Minimal degenerative osteophyte formation at the 1st metacarpophalangeal joint;
·No abnormality detected, alignment of the wrist joint is preserved.
The results of the x-ray on both knees revealed:
·Moderately severe degenerative changes at both knee joints with marginal osteophyte formation and reduced medial femorotibial joint space;
·Calcification at the left lateral femorotibial joint space;
·Degenerative changes at the patellofemoral joint with marginal osteophyte formation (right side worse than left side);
·Deformity of the right patella.
A CT scan was also performed on Ms Ward’s lumbar spine on 18 October 2013. The results revealed:
·Normal lateral vertebral alignment, no vertebral body collapse is seen;
·No dural sac or nerve root compromise in L1/2, L2/3, L3/4, L4/5 and L5/S1;
·Mild to moderate degenerative changes at bilateral L1/2 facet joints.
An ultrasound on the left and right shoulder was also performed on Ms Ward on 18 October 2013. The results of the ultrasound revealed that:
·Bursitis was present;
·In the right shoulder, a full thickness tear of the mid-to-posterior supraspinatus tendon where anterior supraspinatus tendon is slightly thin and degenerated;
·In the left shoulder, a high-grade partial thickness tear of the anterior to mid supraspinatus tendon where infraspinatus tendon is bulky and shows hypo echoic echotexture.
Reports from Dr Oscar D’Souza dated 15 July 2013 (T7 at 94-95), 17 December 2013 (T12 at 111), 24 March 2014 (T17 at 118), 8 June 2014 (T22 at 124-134)
In a report dated 15 July 2013, Dr Oscar D’Souza, of the Lockridge Medical Centre (Ms Ward’s GP), describes Ms Ward’s individual conditions as being: bilateral shoulder pain, chronic low back pain, bilateral knee pain and asthma. Dr D’Souza also mentions depression and anxiety and notes that this condition is to be assessed by a psychologist and/or a psychiatrist.
In a Medical Certificate for Centrelink, dated 17 December 2013, Dr D’Souza reports that Ms Ward was experiencing bilateral shoulder pains with bursitis, bilateral knee osteoarthritis, low back pain and depression. Dr D’Souza describes Ms Ward as “unfit for work from 17 December 2013 to 17 March 2013”.
In a Medical Report dated 24 March 2014, Dr D’Souza notes Ms Ward’s medical history and medications. Her medications are said to include:
·Aspirin 100mg
·Seretide MDI (250/25)
·Ventolin 100mcg
·Ventolin Respirator Solution 5mg/1mL
·Diazepam 2mg
·Panadol Osteo 665mg
·Candesartan Cilexetil 4mg
·Crestor 10mg
·Janumet 50mg/1000mg
·Lexapro 10mg
In the Medical Report for DSP dated 8 June 2014, Dr D’Souza states that Ms Ward has been diagnosed as having severe osteoarthritis of both knees and chronic lumbar back pain. He describes Ms Wards “current symptoms” as follows:
She is in constant pain in both knees. This is exacerbated by prolonged standing or walking more than 50 metres. The right knee is worse. Bending or kneeling or taking steps aggravate her symptoms…
Chronic low back pains (all the time) aggravated by prolonged standing, bending
Psychological Counselling Report from Soula Doukakis dated 7 January 2014 (T13 at 112-113)
In a counselling report by dated 7 January 2014, Soula Doukakis (who is not a qualified psychologist but who is referred to in the correspondence as “a mental health professional” with “CBT Counselling and Psychotherapy”), describes Ms Ward as having symptoms of depression and anxiety. She states that this is as a result of stressors relating to “unresolved family of origin issues, including physical and sexual abuse, the death of her mother at the age of six, domestic violence and the dissolution of three marriages.”
Report from Dr J. F. Perica dated 9 April 2014 (T20 at 122)
In a letter to Dr D’Souza dated 9 April 2014, Dr J. F. Perica, a consultant psychiatrist with “Nofra Klinik”, states that Ms Ward is taking the medication “Lexapro” at a dose of 10 mg per day. It is noted that the average dose of Lexapro is 20 mg to 80 mg per day. Dr Perica mentions Ms Ward’s long history of primary post-traumatic stress disorder and a history of drug and alcohol misuse.
The JCA Report dated 31 May 2013 (T6 at 86-93)
Ms Ward attended a JCA with two JCA Assessors (a registered occupational therapist with contribution from a registered physcologist) on 31 May 2013.
The JCA Report states that Ms Ward has a permanent medical condition of lower limb deficiencies which is verified by medical evidence as fully diagnosed, fully treated and fully stabilised.
The JCA Assessors gave Ms Ward’s bilateral knee osteoarthritis a recommended rating of 10 points under Table 3 (Lower Limb Function) of the Impairment Tables, giving Ms Ward’s osteoarthritis a total impairment rating under the Impairment Tables of 10 points.
The functional impact of Ms Ward’s osteoarthritis is described in the JCA Report as follows:
Bilateral knee osteoarthritis. There is moderate functional impact on activities using the lower limbs. The person is unable to walk far outside the home and needs to drive or get other transport to local shops or community facilities, is unable to stand more than 5 minutes. Person can move around independently using walking aids.
The JCA Report also states that Ms Ward has:
·a temporary work capacity of 0 to 7 hours per week (end date 30 November 2011) as a temporary incapacity to enable further investigations and treatments of physical conditions; and
·a baseline work capacity of 8 to 14 hours per week in light less-skilled work; and
·a capacity for work within 2 years with intervention of 15 to 22 hours per week in light semi-skilled work.
ISSUES
The ultimate issue for consideration by the Tribunal is whether Ms Ward was qualified for DSP during the Relevant Period for the purposes of s 94(1) of the SSA.
This requires consideration of whether, during the Relevant Period:
(a)Ms Ward had any physical, intellectual or psychological “impairments” (s 94(1)(a) of the SSA); and
(b)If so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables (s 94(1)(b) of the SSA); and
(c)If so, whether Ms Ward had a “continuing inability to work” as defined in s 94(2) of the SSA (s 94(1)(c) of the SSA).
ANALYSIS
Qualification for DSP – s 94(1) of the SSA
The requirements for qualification for DSP are set out in s 94(1) of the SSA, as follows:
94 Qualification for disability support pension
(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) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;
Does Ms Ward have “Impairments” (s 94(1)(a) of the SSA)?
The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
It is clear from the relevant medical evidence set out above (which is not in dispute), that during the Relevant Period Ms Ward suffered from the following “impairments” for the purposes of s 94(1)(a) of the SSA: osteoarthritis of both knees, chronic low back pain, shoulder pain, depression and anxiety, diabetes, hypertension, hyperlipidaemia and asthma.
Can these impairments be assigned at least 20 points under the Impairment Tables?
What is in dispute, and what the Tribunal must consider, is whether during the Relevant Period Ms Ward’s “impairments” attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether Ms Ward had a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA.
An impairment rating can only be assigned a rating under the Impairment Tables in accordance with the provisions in the Impairment Determination, which contains the Impairment Tables and rules for applying them when deciding if a person is qualified for DSP.
Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition. A person’s level of impairment 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: s 6(1) of the Impairment Tables.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg explains the operation of the Impairment Tables in the following words at [5]:
… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
Importantly, the Impairment 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: s 6(2) of the Impairment Tables.
The “Introduction” to the Impairment Tables makes clear that an impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years: s 6(3)-(7) of the Impairment Tables.
A condition is “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years: s 6(4) of the Impairment Tables.
An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables as follows:
Fully diagnosed and fully treated
(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 paragraph 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
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables as follows:
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
(b)the person has not undertaken reasonable treatment for the condition and:
(c)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
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The phrase “reasonable treatment” is defined, for the purposes of s 6(6) of the Impairment Tables, in s 6(7) of the Impairment Tables as treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person.
Pursuant to s 6(8) of the Impairment Tables:
…the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborative evidence: s 8(1) of the Impairment Tables.
A diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned: s 11(5) of the Impairment Tables.
The relevant impairment rating to be assigned to each of Ms Ward’s “impairments” under the Impairment Tables is considered below.
Upper limb function (Table 2) – Shoulder pain
Ms Ward’s JCA Assessment of 31 May 2013 (T6 at 86-93) indicates that, as no new medical evidence had been provided for the DSP claim, the JCA was valid and relevant to this claim. The JCA Report states that Ms Ward has tendonitis/bursitis in her left shoulder with an onset date of January 2012 and that it is a current exacerbation of an existing condition. Ms Ward’s treatment is described as including analgesic, anti-inflammatories and cortisone injections. The Report further states that the condition is permanent and “fully diagnosed” but not “fully treated and fully stabilised”. No impairment points were thus assigned for this condition.
A letter from Dr D’Souza dated 15 July 2013 (T7 at 94) states that Ms Ward has a “bilateral shoulder pain problem with bursitis condition of the left shoulder that unfortunately has not made any gains from a steroid injection in the past”.
The ultrasound of Ms Ward’s shoulders completed on 18 October 2013 (T10 at 107) found a “full-thickness tear of the mid-to-posterior supraspinatus tendon” in the right shoulder and a “high-grade partial-thickness tear of the anterior to mid supraspinatus tendon” in her left shoulder.
The medical certificate from Dr D’Souza dated 17 December 2013 (T12 at 111) states that Ms Ward has bilateral shoulder pains with bursitis and impingement.
The ARO states (T27 at 174) that this condition is currently being treated by medication but not considered “fully treated and fully stabilised”.
In the SSAT decision (T2 at 16), the SSAT heard evidence from Ms Ward wherein she says that she had trouble lifting things and getting her hands in the air and she has had various shoulder problems due to heavy workloads over the years.
The SSAT concluded that there was no record of any recent or ongoing treatment for the condition. As such, it could not be considered “fully treated and fully stabilised”.
The evidence from various medical reports before the Tribunal reveals that Ms Ward does suffer from bilateral shoulder pains. The Tribunal is satisfied, consistent with the ARO decision and the SSAT decision, that Ms Ward’s shoulder pains have been “fully diagnosed”. However, the Tribunal finds that Ms Ward does not appear to have pursued reasonable treatment or had any specialist assessment for her shoulders.
An impairment rating cannot be assigned to Ms Ward’s bilateral shoulder pain under Table 2 of the Impairment Tables, titled “Upper Limb Function” as the condition has not yet been “fully treated and fully stabilised”.
Lower Limb Function (Table 3) – Osteoarthritis in both knees
The evidence from various medical reports demonstrates that Ms Ward has osteoarthritis in both knees with a date of onset of more than 10 years ago and a date of diagnosis at approximately 2000.
Ms Ward’s treatment at the relevant time included Panadol, Voltaren and the use of a support brace for her osteoarthritis in both knees.
The JCA report states that Ms Ward has ‘bilateral knee osteoarthritis’ and likely to require bilateral knee replacement in the future. Her condition is considered to be permanent and “fully diagnosed, fully treated and fully stabilised”.
The JCA assigned Ms Ward 10 impairment points for this condition.
The SSAT did not assign any points for this condition because they found that there was a probability of surgery in the future.
The Tribunal finds that Ms Ward does suffer from this impairment. However, an impairment rating cannot be assigned to Ms Ward’s knee osteoarthritis under Table 3 of the Impairment Tables, titled “Lower Limb Function”, as it has not yet been “fully diagnosed, fully treated and fully stabilised”. In reaching this conclusion, the Tribunal notes that the SSAT found that there was a high probability that Ms Ward would have surgery in the near future on both her knees. Treatment had been recommended and was pending. The Tribunal heard no evidence to contradict this finding.
The Tribunal finds that this condition has not been “fully treated” and “fully stabilised”. As such, an impairment rating cannot be assigned.
Spinal function (Table 4) – Chronic low back pain
The evidence in the various medical reports before the Tribunal reveals that Ms Ward has chronic low back pain with a date of onset of approximately 5 years ago and a date of diagnosis at 24 July 2010.
The CT report of Ms Ward’s lumbosacral spine dated 18 October 2013 (T10 at 106) states, amongst other things, that “no dural sac or nerve root compromise [was] detected at any of the lumbar levels” and that there were “mild to moderate degenerative changes at bilateral L1/2 facet joints, [the] left side more than the right side”.
The medical report from Dr D’Souza dated 8 June 2014 (T22 at 124) states that Ms Ward was awaiting a specialist appointment and that her chronic lumbar back pain condition would deteriorate within the next 2 years.
In the JCA report dated 31 May 2013 (T6 at 87), it is noted that Ms Ward’s current treatment for this condition was pain relief medication and anti-inflammatories. It is also reported that Ms Ward is unable to bend to floor level and walk for more than 5 to 10 minutes without rest.
The JCA report does not indicate that this condition is “fully treated and fully stabilised”.
The ARO decision (T27 at 175) notes that the medical evidence indicates that this condition requires further treatment and specialist management. As such, the ARO declines to assign an impairment rating.
The evidence from the various medical reports before the Tribunal reveals that Ms Ward does suffer from chronic low back pains. However, there is little evidence of any active and ongoing treatment for this condition. The Tribunal finds that, as such, this condition cannot be considered “fully diagnosed, fully treated and fully stabilised”. Accordingly, an impairment rating cannot be assigned.
Mental health condition (Table 5) – Depression and anxiety
In a medical report by Ms Ward’s GP, Dr D’Souza, dated 15 July 2013 (T7 at 94-95), it is reported that an assessment by a psychologist and/or psychiatrist may occur in the near future under a mental health plan.
In a letter dated 7 January 2014 (T13 at 112-113), Soula Doukakis RGN MHN BN MHC described as a “Mental Health Professional”, wrote to Dr D’Souza. In this letter, she notes that Ms Ward had been referred to her for “psychological counselling”. She also notes that, in her opinion, Ms Ward presents symptoms of depression and anxiety. Ms Doukakis also notes that she has referred Ms Ward to a psychiatrist.
In a letter dated 9 April 2014 (T20 at 122), Dr Perica, a Consultant Psychiatrist, wrote to Dr D’Souza stating that Ms Ward “has a long standing history of PTSD, which has been complicated by secondary alcohol and other drug misuse. I note that she is seeing a psychologist”. With regard to treatment, Dr Perica notes that Ms Ward is taking 10mg of Lexapro per day and that the average dosage for this medication is 20mg to 80mg per day. He states that in relation to this medication, “compliance is questionable”.
Table 5 of the Impairment Tables, titled “Mental Health Function”, is the table used when a 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 a mental health condition (depression) 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).
The Tribunal finds that at the Relevant Period Ms Ward was receiving counselling from a mental health professional, but not from a clinical psychologist. She had seen a registered psychiatrist on one occasion. In that regard, however, the Tribunal notes that Miss Ward first saw this psychiatrist only two months prior to her the date of DSP claim. At the relevant time, it was recorded that her condition was PTSD and that the dosage of her medication was well below the average dose range, with questionable compliance (T20 at 122). The Guidelines to the Tables state it is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate her condition unless there is a medical or other compelling acceptable reason for not proceeding with treatment.
The Tribunal finds that at the Relevant Period, Ms Ward had not undertaken reasonable treatment for this condition.
Based on the relevant medical evidence before it, the Tribunal finds that Ms Ward’s mental health condition cannot be assigned an impairment rating under Table 5 of the Impairment Tables, titled “Mental Health Function”, as the condition was not fully treated and stabilised during the Relevant Period.
Other medical conditions – Diabetes
In hearings before the SSAT, Ms Ward stated that her diabetes was diagnosed some years ago and was being managed by Dr D’Souza (T2 at 16). She stated that she takes daily tablets, tests her sugar levels twice a week, has regular foot and eye checks and, to the best of her knowledge, the situation is satisfactory.
Apart from the JCA report (T6 at 86) which states that Ms Ward’s conditions was newly diagnosed on a medical certificate dated May 2011 and are currently being treated by medication, there are no further medical reports about Ms Ward’s diabetes.
The Tribunal finds that there is currently insufficient relevant medical evidence before the Tribunal to establish that this condition is “fully diagnosed, fully treated and fully stabilised”.
Further, the limited evidence available shows that this condition has minimal or no impact on Ms Ward’s ability to function.
Hence, no impairment ratings can be given for this condition.
Other medical conditions – Hypertension
At the SSAT, Ms Ward stated that she takes tablets on a regular basis for this condition and Dr D’Souza regularly checks her blood pressure and seems happy with it (T2 at 16).
Apart from a reference in a section on Ms Ward’s medical history in letters from Dr D’Souza dated 2 December 2013 and 24 March 2014 (T11 at 109 and T17 at 118); there are no further medical reports that provide information in relation to hypertension.
The Tribunal finds that there is currently insufficient relevant medical evidence before the Tribunal to establish that this condition is “fully diagnosed, fully treated and fully stabilised”. Further, there appears to be minimal or no impact on Ms Ward’s ability to function.
Hence, no impairment ratings can be given for this condition.
Other medical conditions – Hyperlipidaemia
At the SSAT, Ms Ward stated that she takes tablets for her cholesterol and to the best of her knowledge, her doctor, being Dr D’Souza, is happy with her levels.
Apart from a reference to this condition in a section on Ms Ward’s medical history in letters from Dr D’Souza dated 2 December 2013 and 24 Mach 2014 (T11 at 109 and T17 at 118), there are no further medical reports that discuss hyperlipidaemia.
The Tribunal finds that there is currently insufficient relevant medical evidence before the Tribunal to establish that this condition is “fully diagnosed, fully treated and fully stabilised”. Further, there appears to be minimal or no impact on Ms Ward’s ability to function.
Hence, no impairment ratings can be given for this condition.
Asthma
It is not in dispute that Ms Ward’s asthma condition is well managed by prescription medications delivered using a puffer.
In hearings before the SSAT, Ms Ward stated that she has had asthma for most of her life, that she owned a nebuliser machine but that she had not used it for some time. She explained that she takes regular puffs of Seretide and Ventolin when she needs it. Ms Ward also stated that she finds that if she remembers to take Seretide, the use of Ventolin is not needed as often.
In a medical report dated 15 July 2013 (T7 at 95), Dr D’Souza state that Ms Ward’s “shortness of breath is exacerbated by physical activities and poor compliance of the use of her puffers”.
Apart from a reference in a section on Ms Ward’s medical history in letters from Dr D’Souza dated 2 December 2013 and 24 Mach 2014 (T11 at 109 and T17 at 118), there are no further medical reports relevant to Ms Ward’s asthma.
The Tribunal finds there is currently insufficient relevant medical evidence before the Tribunal to establish that this condition is “fully treated and fully stabilised”. Further, there appears from the available evidence to be minimal or no impact on Ms Ward’s ability to function.
Hence, no impairment ratings can be given for this condition.
Conclusion – Ms Ward’s total impairment rating
In conclusion, the Tribunal finds that Ms Ward’s impairments attract a total of 0 points under the Impairment Tables during the Relevant Period, as follows:
(i)Osteoarthritis on both knees – 0 points (not “fully treated and fully stabilised” under Table 3);
(ii)Chronic Low Back Pain – 0 points (not “fully diagnosed, fully treated and fully stabilised” under Table 4);
(iii)Shoulder Pain – 0 points (not “fully treated and fully stabilised” under Table 2);
(iv)Depression and Anxiety – 0 points (not “fully diagnosed, fully treated and fully stabilised” under Table 5);
(v)Asthma – 0 points (insufficient evidence of functional impairment);
(vi)Hyperlipidaemia (Diabetes) – 0 points (insufficient evidence of functional impairment); and
(vii) Hypertension – 0 points (insufficient evidence of functional impairment).
The Tribunal finds that Ms Ward does not satisfy the requirements of s 94(1)(b) of the SSA for the Relevant Period.
Does Ms Ward have a continuing inability to work (s 94(1)(c) of the SSA)?
The Tribunal finds that Ms Ward “impairments” do not attract ratings of at least 20 points under the Impairment Tables. As such, the Tribunal is not required to consider whether Ms Ward has a “continuing inability to work” for the purposes of s 94(1)(c) of the SSA.
DECISION
The Tribunal does not doubt that Ms Ward’s numerous medical conditions are distressing and cause her pain and suffering. Ms Ward was deeply distressed before the Tribunal and the Tribunal feels considerable sympathy for her. However, the Tribunal can only apply the evidence it has before it to the relevant provisions of the Social Security Act. Having done that, the Tribunal can only conclude that, in relation to the Relevant Period, Ms Ward’s medical conditions do not attract an impairment rating of 20 points under the Impairment Tables. As such, she cannot be deemed to have been entitled to DSP at the time she made her claim for DSP.
Accordingly, the decision under review is affirmed.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President, Dr C Kendall ..........[sgd].........................................
Associate S Nguyen
Dated 15 July 2015
Date of hearing 6 July 2015 Applicant In person Solicitors for the Respondent S. Y. Long
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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