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

[2017] AATA 1456

Wason and Secretary, Department of Social Services (Social services second review) [2017] AATA 1456 (13 September 2017)

Division:GENERAL DIVISION

File Number:           2016/6360

Re:Loretta Wason

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:13 September 2017

Place:Brisbane

The decision under review is affirmed.

.................................[Sgd].......................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – spinal condition – hypertension – hearing impairment – where conditions were not listed on application -  cannot be assigned impairment points - decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Senior Member P E Nolan

13 September 2017

INTRODUCTION

1. On 16 November 2015, Mrs Loretta Wason (the “Applicant”) lodged a claim for Disability Support Pension (“DSP”). The Applicant did not list her claimed conditions in her application form.[1] The conditions considered in this review are those raised at the hearing, by the Applicant’s General Practitioner and from previous claims made by the Applicant.

   [1] Exhibit 1, T Documents, T 20, p. 134

2. The Applicant has:

   a spinal condition – degenerative changes to lumbosacral spine and coccygeal pain;

   hypertension; and

   hearing difficulties.

3. The evidence available raises a number of medical conditions that were not included on the original application form for DSP. However, the Applicant did include, as the Respondent helpfully raised,[2] with her claim, a letter from Dr Eltherington, the Applicant’s General Practitioner, dated 22 December 2015 in which her medical conditions were listed as:[3]

   … degenerative changes to her lumbosacral spine which she suffers back pain from, Lorretta’s mobility is impaired due to her back pain and she is unable to sit for long periods due to the coccygeal pain. She also has hypertension and most recently mild left ventricular hypertrophy with raised filling pressures ?heart [sic] failure.

   [2] Exhibit 2, Respondent’s Statement of Facts Issues and Contentions, at [3.3].

   [3] Exhibit 1, T Documents, T 20, p.139.

4. The Applicant’s medical reports provided in previous claims were also available to the Tribunal and are contained within Exhibit 1 – T Documents. Further material was attached to the Respondent’s Statement of Facts, Issues and Contentions.[4]

   [4] see Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [3.5] and Attachments A-D.

   HISTORY OF THE MATTER

5. On 16 November 2015, the Applicant made an application for DSP. A Job Capacity Assessment was conducted on 24 February 2016.[5] The application was rejected by Centrelink on 29 February 2016.[6] The Applicant then sought review by an Authorised Review Officer of Centrelink, the Review Officer, on 2 May 2016, affirmed the original decision to reject the claim.[7]

   [5] Exhibit 1, T Documents, T 21, Job Capacity Assessment, p140.

   [6] Exhibit 1, T Documents, T 22, p.146.

   [7] Exhibit 1, T Documents, T 24, p.149.

6. The Applicant made an application to the Social Services and Child Support Division of this Tribunal, again the decision to reject the application for DSP was affirmed on
   

   [8] Exhibit 1, T Documents, T 3, p.5.

   12 October 2016.[8]

7. On 16 November 2016 the Applicant made an application, to the General Division of this Tribunal.

8. The representative for the Respondent, during the hearing and prior to the hearing in writing, presented helpful submissions on the law and their position on how it ought to be applied in this matter and indeed how it has been applied in previous reviews. The Applicant demonstrated that they were not particularly interested in engaging with the process within the hearing.

   ISSUES FOR THE TRIBUNAL

   9.The issues for me to consider are:

   (a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric conditions which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

   (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

   (d)whether the Applicant has a continuing inability to work.

   10.     Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

   11. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

   12.     The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 16 November 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[9]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 16 November 2015 and 15 February 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[10]

   [9] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   [10] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

   13.     The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[11] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[12] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[13]

   [11] See s 26(1) of the Act.

   [12] See s 5(2) of the Determination.

   [13] See s 6(1) of the Determination.

   14.     Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[14] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[15]

   [14] See s 6(3) of the Determination.

   [15] See s 6(4) of the Determination.

   15.     In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

   (a)whether there is corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next two years.[16]

   16.     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.[17]

   17.     “Reasonable treatment” is 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.[18] An impairment rating can only be assigned in accordance with the rating points in each Table.

   18. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

   [16] See s 6(5) of the Determination.

   [17] See s 6(6) of the Determination.

   [18] See s 6(7) of the Determination.

   CONSIDERATION

   Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

9. It is accepted that the Applicant suffers from degenerative changes in the lumbosacral spine and coccygeal pain, hypertension and partial hearing loss.

10. In her application form, for this review, the Applicant stated she believed her conditions had worsened. This position was confirmed at the hearing during the Applicant’s evidence. The concept of the Relevant Period was explained to the Applicant and she seemed to understand the difference between the period of time relevant to this review and the timeframe that would be looked at in a new application for DSP.

11. I will now consider how the Applicant’s conditions manifested as impairment, and if relevant assign an appropriate rating under the Impairment Tables.  

    Spinal disorder: degenerative changes in lumbosacral spine and coccygeal pain – Table 4 – Spinal Function

12. The Applicant has suffered degenerative changes to her lumbosacral spine and has coccygeal pain. The Respondent does not contend the existence of a spinal condition. The manifestation of ‘back pain’ was identified by Dr Arshad in 2012, but there was no reference made to specialist investigations, and physiotherapy was recorded as a future treatment.[19]

    [19] Exhibit 1, T Documents, T 7, p.56-57.

13. The Respondent contends that the Applicant’s spinal condition, although long-standing and expected to last more than 24 months, is not permanent for the purposes of the Act.[20]

    [20] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, at [4.22].

14. The basis of this contention, and given in both written and oral submissions, was that during the Relevant Period the Applicant had not yet seen a specialist or attended a pain management program. The Applicant had seen a physiotherapist for two or three sessions in 2013 and saw a physiotherapist and chiropractor after the Relevant Period. On this basis the Applicant’s spinal condition cannot be considered permanent for the purposes of the Act.

15. The Applicant provided, and sought to rely on, a letter from a Mr Jace van der Westhuizen, her treating physiotherapist. The letter helpfully provides information on the Applicant’s loss of range of movement. This letter may have been considered corroborating evidence for the purpose of Table 4,[21] however, for the purpose of this proceeding it falls outside the Relevant Period and cannot be given any weight. The letter is dated 13 January 2017, it speaks to the past only to the extent of stating that the Applicant had presented to that clinic ‘over the course of the past few months’. Although possibly relevant for future claims it falls outside the Relevant Period of this review.

    [21] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, Introduction to Table 4.

16. From the evidence before me, it is not clear that the Applicant has had any specialist investigation or pain management intervention. For this and the reasons stated, I find that the Applicant’s back condition cannot be considered permanent for the purposes of the Act as it is not fully treated or stabilised.

    Hearing Loss – Table 11 – Hearing and other Functions of the Ear

17. The Applicant suffers from some hearing loss. Dr Coppin identified a moderate hearing loss as a medical condition, albeit causing minimal functional impact.[22] Table 11 – Hearing and other Functions of the Ear requires the condition to have been supported by evidence from an audiologist or ear, nose and throat specialist. No such evidence has been made available to the Tribunal. This condition can not be considered fully diagnosed, fully treated and fully stabilised and, therefore, cannot be assigned impairment points. The condition cannot be considered permanent under the Act.

    [22] Exhibit 1, T Documents, T 14, p.96.

    Hypertension

18. The Respondent, helpfully, concedes that this condition is fully diagnosed. However, contends that it was not fully treated or stabilised within the relevant period.

19. This condition was confirmed in a report by Dr Eltherington, dated 22 December 2015.[23] Dr Eltherington referred the Applicant to a cardiologist for the purpose of optimising her medication.[24] The Applicant did so two weeks prior to the Job Capacity Assessment in February 2016.[25] There were a number of not insignificant changes, recommended to the Applicant, to the type and dosage of medication reported by Dr Weerasoorlya on

    
    

    10 February 2016.[26] In addition to medication changes, Dr Weerasoorlya suggested additional clinical investigations and monitoring.

    [23] Exhibit 1, T Documents, T 20, p.139.

    [24] Exhibit 1, T Documents, T 20, p.139.

    [25] Exhibit 1, T Documents, T 21, p.141.

    [26] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment B.

20. On the evidence before me I cannot conclude that the Applicant’s condition was fully treated and fully stabilised as further investigations are ongoing. Hypertension cannot be assigned an impairment rating.

    Conclusion on points

21. The impairments considered in this review cannot be assigned Impairment Points as they cannot be considered permanent for the purposes of the Act.

    Continuing Inability to Work?

22. Given that this Applicant does not reach 20 points or more, under the Impairment Tables, at the Relevant Period, it is not necessary for me to consider whether she satisfies the remaining criteria for DSP.

    An additional observation

23. The Applicant, during the hearing, agreed that she is worse of now than she was when she made the application for DSP. In light of this, the Applicant may benefit from lodging a new application for DSP with additional and more recent medical evidence.

    CONCLUSION

24. The Applicant does not qualify for DSP because her conditions cannot be assigned impairment points during the Relevant Period.

25. The decision under review is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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Associate

Dated: 13 September 2017

Date of hearing:	9 June 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Michelle Brazier Secretary, Department of Social Services

(Cth).

[2012] AATA 922 at [34].