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

[2017] AATA 1224

Wheeler and Secretary, Department of Social Services (Social services second review) [2017] AATA 1224 (7 August 2017)

Division:GENERAL DIVISION

File Number:           2016/5440

Re:Annelis Wheeler

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:7 August 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension – psychiatric impairment – back and wrist conditions – whether conditions were fully diagnosed, treated and stabilised – relevant qualification period – where Applicant sought other treatment during and after the qualification period – conditions not fully diagnosed, treated and stabilised – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), ss 41 and 42, and cls 3 and 4(1), Schedule 2, Part 2

CASES

Bobera and Secretary, Department of Families, housing, community Services and Indigenous Affairs [2012] AATA 992

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member P E Nolan

7 August 2017

INTRODUCTION

1. On 7 March 2016 Mrs Annelis Wheeler (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing her medical conditions as:[1]

   “Bipolar – 20 years

   High Anxiety

   Depression

   Panic Attacks

   Chronic Pain in right wrist from fracture in 2014

   Lower back Pain

   Unable to do her housework due to the Pain in wrist and back”

   [1] Exhibit 1, T Documents, T 11, p 98.

2. The Applicant’s initial claim for DSP was rejected by the Secretary, Department of Social Services (the “Respondent”) on 11 March 2016.[2] The Applicant sought a review of that decision by an Authorised Review Officer (“ARO”), and was again unsuccessful.[3] Dissatisfied with this result, the Applicant appealed to the Social Security and Child Support Division of this Tribunal (“AAT1”), where the original decision was affirmed in a decision dated 7 September 2016.[4]

   [2] Exhibit 1, T Documents, T 12, pp 104-105.

   [3] Exhibit 1, T Documents, T 13, pp 106-111.

   [4] Exhibit 1, T Documents, T 3, pp 9-13.

3. The Applicant now seeks a review of the decision to reject her claim for DSP by this Tribunal. Consequently, the issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim, 7 March 2016 or within 13 weeks thereafter, that being until 6 June 2016. This is the relevant qualification period (the “Relevant Period)” for assessing the Applicant’s claims.

   LEGISLATIVE FRAMEWORK

   4. 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.

   5.       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, 7 March 2016). 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.[5]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 7 March 2016 and 6 June 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[6]

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

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

   6.       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”).[7] 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.[8] 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.[9]

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

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

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

   7.       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.[10] 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.[11]

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

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

   8.       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.[12]

   9.       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.[13]

   10.     “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.[14] An impairment rating can only be assigned in accordance with the rating points in each Table.

   11. 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.

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

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

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

   ISSUES FOR THE TRIBUNAL

4. 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 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

   CONSIDERATION

   Are the Applicant’s Conditions Fully Diagnosed, Treated and Stabilised?

5. There is no question that the Applicant has impairments; the Respondent has conceded as much.[15] The issue for the Tribunal is whether the Applicant has a condition or combination of conditions which qualified her for the DSP between 7 March 2016 and

   
   

   6 June 2016.

   [15] See Respondent’s Statement of Issues, Facts and Contentions, [21].

6. There are three core conditions for which the Applicant seeks to claim DSP: a wrist injury, a lower back condition, and several mental health conditions.

   Wrist and Back Conditions

7. The injuries regarding the Applicant’s wrist and back cannot attract any impairment points because they are not “permanent”. These conditions were mentioned in a report by        Dr Sara Kate Shapland, the Applicant’s GP, dated 3 March 2016. It is not clear to me that this cursory mention was sufficient to constitute a formal diagnosis. In any event, there is no substantial evidence of treatment, so they cannot be considered fully treated or stabilised.

8. In the Applicant’s oral evidence at the hearing, she indicated that she did not feel these conditions were very serious, although they were conditions. As there does not appear to have been any stabilisation or treatment, they cannot be considered fully diagnosed, treated and stabilised.

9. I therefore find that neither the Applicant’s wrist nor her back conditions can be assigned impairment points under the relevant Impairment Tables as they are not fully diagnosed, treated or stabilised.

   Psychiatric Condition

10. There is no doubt that, at this moment, the Applicant suffers from depression and bi-polar disorder. The difficulty that I face is determining whether there is enough evidence to say that the Applicant’s psychiatric condition was fully diagnosed, treated and stabilised in the Relevant Period.

11. The Applicant is being treated by a clinical psychologist, Ms Alexandra Grainger, who has provided two reports to the Tribunal. The first is dated 2 March 2016,[16] and the second
    

    [16] Exhibit 1, T Documents, T 9, p 71.

    [17] Exhibit 1, T Documents, T 2, p 6.

    [18] Exhibit 2, Letter from Dr Ravi Rawlley, dated 28 May 2017.

    [19] Exhibit 1, T Documents, T 10, p 72.

    [20] Exhibit 3. Letter from Dr Kate Shapland, dated 14 Feb 2017.

    23 July 2016.[17] She also recently saw a psychologist, Dr Ravi Rawlley, who supported a diagnosis of “Bipolar Affective Disorder” for the Applicant in a report dated 28 May 2017.[18] Finally, there are two reports from Dr Shapland, the Applicant’s treating GP. The first is dated 3 March 2016,[19] and the second 14 February 2017.[20]

12. I note that in the second of Dr Shapland’s reports, she stated at paragraph 8 that she felt that the Applicant’s psychiatric conditions have “flared up” over the last two years, and have become substantially less manageable since March 2016.[21]

    [21] Exhibit 3. Letter from Dr Kate Shapland, dated 14 Feb 2017.

13. In the Applicant’s evidence at the hearing, she indicated that Dr Rawlley had put her on medication which she seemed to think was working. She mentioned that she had scheduled a further appointment with him about two weeks after the hearing.

14. From the evidence that is before me, it is clear that the Applicant has taken a proactive approach to her mental health since March 2016. However, the issue I face is determining whether the Applicant’s treatment in the 16 months since then is sufficient to show that the Applicant was fully diagnosed, treated and stabilised in the 13 weeks starting on
    7 March 2016. On the evidence before me, I cannot say that it was.

15. I have seen no substantial evidence that the Applicant was treated for her mental health conditions before March 2016 by any way other than regular visits with her GP,
    

    [22] Exhibit 3. Letter from Dr Kate Shapland, dated 14 Feb 2017, [1], [4].

    Dr Shapland, and taking some antidepressants and anti-anxiety medication.[22] There is no evidence before me as to how long the Applicant was taking these medications, or indeed which medications she was taking during the Relevant Period, if she in fact taking medications during that period. This is, in my view, insufficient evidence to say the Applicant’s condition was being fully treated in the Relevant Period.

16. It appears from present evidence that the Applicant’s first visit to a psychologist was to Ms Grainger on 2 March 2016.[23] On 23 July 2016, some six weeks after the end-date of the Relevant Period, Ms Grainger recommended that the Applicant access treatment from a psychiatrist.[24] The Applicant subsequently has visited Dr Rawlley, a psychiatrist, and has given evidence that his treatment was having a positive effect on her.

    [23] Exhibit 1, T Documents, T 2, pp 3-8.

    [24] Exhibit 1, T Documents, T 2, p 6.

17. Clearly, during the Relevant Period (i.e. between 7 March 2016 and 6 June 2016), there was a course of reasonable treatment that was available to the Applicant – the course of treatment she is now undertaking. What this means is that I cannot find her psychiatric conditions to have been fully diagnosed, treated and stabilised during the relevant qualification period, as there was reasonable treatment available to her.

18. As the Applicant had not yet taken this reasonable treatment, I cannot say that her condition was fully treated during the Relevant Period. I would be similarly hesitant to say her condition has fully stabilised, especially given the seemingly positive effect this treatment has had on the Applicant. Consequently, I cannot find that her condition was fully diagnosed, treated and stabilised, and so it is not capable of attracting an impairment rating.

    Conclusion: Fully Diagnosed, Treated and Stabilised?

19. On the basis of the above, I cannot find that any of the Applicant’s claimed conditions were fully diagnosed, treated and stabilised during the Relevant Period. Consequently, no rating can be assigned for them under the relevant Impairment Tables.

20. As no rating can be assigned, I need not progress to discussing whether the Applicant has a continuing inability to work.

    CONCLUSION

21. It is encouraging to see the Applicant has proactively sought treatment for her mental health conditions; however, she has failed to reach 20 points or more. I note her conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent medical evidence

22. As the Applicant’s conditions cannot attract a rating under the Impairment Tables because they are not fully diagnosed, treated and stabilised, her application must fail.

23. The decision under review is affirmed.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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

Associate

Dated: 7 August 2017

Dates of hearing:	5 June 2017
Applicant:	By phone
Solicitors for the Joined Party:	Ms Claire Campbell Department of Human Services

(Cth).

[2012] AATA 922 at [34]