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

[2017] AATA 235

Wu; Secretary, Department of Social Services and (Social services second review) [2017] AATA 235 (7 February 2017)

Division:GENERAL DIVISION

File Number:  2016/2168

Re:Secretary, Department of Social Services

APPLICANT

Sue WuAnd  

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:7 February 2017

Date of written reasons:        24 February 2017

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 7 February 2017, the Tribunal sets aside the decision under review and in substitution decides that Ms Wu did not satisfy s 94(1)(b) and (c) at the date of claim, being 16 April 2015, or within the following 13 weeks, and therefore did not qualify for Disability Support Pension.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY– Disability Support Pension – whether applicant qualified – first tribunal satisfied applicant qualified – additional medical information available on review – whether applicant’s impairments fully diagnosed treated and stabilised during claim period – whether impairments rated 20 points or more – program of support – Tribunal not satisfied applicant qualified during claim period – decision under review set aside

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42 & Sch 2

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Senior Member J F Toohey

24 February 2017

Background

1. Ms Sue Wu was in a shopping centre during her lunch hour on 23 August 2014 when she fell and hit her head on a concrete floor.  She has not worked since.  She made a claim for workers’ compensation which is not related to this application.

2. On 16 April 2015, Ms Wu applied for Disability Support Pension (DSP).  Centrelink decided she did not qualify for the payment.  Ms Wu sought review of that decision in the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal.

3. On 23 March 2016, the SSCSD decided that Ms Wu qualified for DSP.  The Secretary disagrees, and seeks review of that decision.

4. Ms Wu and her partner, Mr Bruno Baras, attended a hearing before the Tribunal on 7 February 2017.  At the conclusion of the hearing, I decided that Ms Wu did not qualify for DSP when she applied on 16 April 2015.  These written reasons reflect the reasons I gave orally at the conclusion of the hearing.

   Qualification for the DSP

5. To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). Put briefly, a person must have:

   (i)an impairment rating of 20 or more points according to the Impairment Tables in the Act; and

   (ii)a continuing inability to work.

6. Ms Wu had to satisfy these criteria on 16 April 2015 when she applied for DSP, or within the following 13 weeks, that is by 14 July 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period. 

7. A person may apply for DSP at any time.  A fresh claim period starts at the date of each application. 

   Rules for assigning impairment ratings 

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).

9. The Impairment Tables include instructions and rules for assessing an impairment and corresponding rating.  Depending on how it affects a person’s ability to function, an impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: paragraph 6(4). 

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future; and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: paragraph 6(5) and (6).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).

    Summary of my decision

13. Ms Wu’s application for DSP was accompanied by a medical report dated 16 April 2015 from her general practitioner at the time, Dr Nicholas Bernard.  Dr Bernard identified her conditions as whiplash, closed head injury and bilateral ulnar nerve neuropraxia.

14. Dr Bernard reported that Ms Wu’s whiplash was expected to persist for three to 12 months and was expected to resolve within the next two years.  He thought her ulnar nerve neuropraxia would persist for three to 12 months and would significantly improve within the next two years.  He noted that he had referred Ms Wu to Dr Neil Simon, neurologist, and that she needed nerve conduction studies.  

15. It appears, from the SSCSD’s decision, that the only other reports available when it made its decision were reports dated 25 June 2015 and 19 September 2015 from consultant neurologist, Dr Paul Teychenné. 

16. In his second report, Dr Teychenné referred to reports and clinical notes, including from Dr Phillipa Norrie, general practitioner; Dr Neil Simon, her treating neurologist; Sharmine Dewhurst, physiotherapist; Dr Dudley O’Sullivan, neurologist; Dr Roberts (area of expertise unclear); and Dr John McMahon, clinical psychologist.   Dr Teychenne noted the opinions of Dr Roberts and Dr McMahon that Ms Wu appeared to be “over-reporting” her symptoms and could be malingering.

17. It does not appear that any of the reports referred to by Dr Teychenné was available to the SSCSD.  The Secretary has produced those reports, as well as reports from Ms Wu’s most recent general practitioner, Dr Caroline Rogers, and from Professor Arun Krishnan, a consultant neurologist who saw Ms Wu on 6 December 2016 for assessment.

18. Taking into account the information now available to the Tribunal, I am not satisfied that Ms Wu’s conditions were fully diagnosed, fully treated and fully stabilised during the claim period.  This means they cannot be given an impairment rating for how they affected her functioning during the claim period. 

19. Ms Wu says her conditions have continued to deteriorate since she applied for DSP.  I accept what she says but I can only consider whether she qualified for DSP during the claim period, that is, from 16 April 2015 to 14 July 2015.

    Were Ms Wu’s conditions fully diagnosed, fully treated and fully stabilised during the claim period?

    Ms Wu’s head and neck condition

20. I will refer to this as Ms Wu’s head and neck condition because, since her fall, she has suffered from headaches as well as pain in her neck.  She also complains of symptoms including dizziness, fatigue, memory loss and lack of concentration.

21. On 8 October 2014, Dr Simon reported that Ms Wu’s symptoms were “most consistent” with a post-concussive syndrome which he thought it reasonable to suggest was a result of her fall on 23 August 2014.  He recommended she start taking amitriptyline at night to help with her headaches and sleep, and he thought it would be “critically important” for her to start a graded exercise program. He thought physiotherapy could be one approach that would help. He thought she was “most likely to be able to get on top of her symptoms over the course of weeks to months”.

22. Dr O’Sullivan saw Ms Wu in October 2014. He agreed with Dr Simon’s diagnosis and he noted that Dr Simon was to undertake further investigations to determine if there was any evidence of post traumatic benign positional vertigo.  He did not think Ms Wu was fit for any work at that time but he thought “with the passage of time her symptoms should gradually resolve” and she should be able to start returning to work over the next six to eight weeks.  He thought she should continue with physiotherapy as Dr Simon recommended.

23. On 19 November 2014, Dr Simon reported that, Ms Wu said she had been slowly getting better since their last meeting.  He increased her amitriptyline and said ongoing physical therapy would be important.  He thought she may benefit from seeing a rehabilitation physician to help with “physical and psychological reconditioning.”

24. On 15 January 2015, Dr Simon again increased the dosage of amitriptyline and noted that Ms Wu had developed numbness in the fourth and fifth fingers and medial aspects of her hands. He thought it important she planned for a graded return to physical activity and said nerve conduction studies could be undertaken to document the ulnar neuropathy.

25. On 24 March 2015, Dr Simon noted that Ms Wu symptoms were “ongoing although I sense an improvement”.  He again increased the amitriptyline and said nerve conduction studies “may be useful” (although he did not think the symptoms in her hands were related to the workplace injury).

26. As set out above, on 16 April 2015, Dr Bernard thought Ms Wu’s whiplash would persist for three to 12 months and would resolve within the next two years.

27. On 9 June 2016, Dr Simon reported that there was now “secondary functional overlay”.  He stated in the report,  “I was frank in my discussions with Sue today and gave her two options…”: to continue along the current path, “focusing on injustice regarding her insurance and legal standing,” in which case she was very unlikely to improve; or “to participate in her rehabilitation by exercising three times a week, including swimming, as well as undertaking a formal relaxation program.”

28. Dr O’Sullivan and Professor Krishnan, who saw Ms Wu in December 2016, agreed with Dr Simon’s diagnosis of post-concussion syndrome.  Dr Teychenné reached a different diagnosis. He thought Ms Wu had an incomplete cervical cord lesion. 

29. Just because there is a difference of opinion about diagnosis does not mean a condition is not fully diagnosed during a claim period.  There may be sufficient weight of opinion to support one diagnosis over another.  In Ms Wu’s case, the majority of doctors thought she had post-concussive syndrome. 

30. However, the nerve conduction studies suggested by Dr Simon were not carried out until January 2016, well after the claim period.  Dr Teychenné undertook the studies and concluded they were consistent with an incomplete cervical cord lesion.  Leaving aside whether his diagnosis was correct or not, he had not completed his investigations until the studies had been undertaken. 

31. Even if I accept that Ms Wu’s head and neck condition was fully diagnosed during the claim period as post-concussive syndrome, it was not fully treated and fully stabilised during the claim period. 

32. The claim period ended on 14 July 2015, less than a year after Ms Wu’s fall.  In April 2015, Dr Bernard thought her condition would resolve within two years.   In March 2015, Dr Simon “sensed” an improvement.   In November 2014, he thought Ms Wu might benefit from seeing a rehabilitation physician to help with “physical and psychological reconditioning.”  In June 2016, he recommended to Ms Wu that she participate in her rehabilitation by exercising three times a week, as well as undertaking a formal relaxation program.   In September 2015, Dr Teychenné thought she “may require a further MRI scan of the cervical spine (in conjunction with further full neurologic assessment)” to determine if she had developed evidence of T2 hypersensitivity at a higher level in the cervical cord.

33. I appreciate that the pain Ms Wu experiences makes it difficult for her to exercise but she had not undertaken the sort of rehabilitation program recommended by Dr Simon.  She gave evidence that she walks around the block most days, when she can, and she tried swimming around the end of 2016.  She has not seen a rehabilitation physician as recommended by Dr Simon.  In December 2016, Dr Krishnan thought she could require “further neuropathic pain therapy”.

34. Based on these reports, and the limited treatment Ms Wu had by the end of the claim period, I am not satisfied that her head and neck condition was fully treated and fully stabilised during the claim period.  It follows that it cannot be given an impairment rating for that period.

    Ms Wu’s ulnar nerve neuropraxia

35. In March 2015, Dr Simon recommended Ms Wu have nerve conduction studies to investigate the symptoms in her arms and hands. 

36. Dr Teychenné did not carry out nerve conduction studies until some months after the claim period.  The assessments were undertaken over several sessions in November and December 2015, and January 2016.  It follows that this condition was not fully investigated and diagnosed until after the claim period.  (It appears there may be some difference of opinion as to the diagnosis but it makes no difference for present purposes).      

37. Ms Wu gave evidence that she has had no treatment for the pain in her arms and hands, and she asked why should she, when she was previously fit and well. 

38. The condition in Ms Wu’s arms and hands was not fully diagnosed, fully treated and fully stabilised during the claim period.  It follows that it cannot be given an impairment rating for that period, and her claim must fail. 

    Even if Ms Wu’s impairments were fully diagnosed, fully treated and fully stabilised

39. For completeness, I would add that, even if Ms Wu’s conditions could be given impairment ratings, neither would have rated 20 points or more on a single Impairment Table and her claim would have failed because she has not actively participated in a Program of Support.  As a result, she did not have a continuing inability to work during the claim period.

40. The meaning of continuing inability to work is set out in s 94(2) of the Act. It includes the requirement that, unless a person has an impairment that rates 20 points or more under a single Impairment Table (meaning it is severe), she or he must have actively participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP: s 94(2)(aa) and Social Security (Active Participation for Disability Support Pension) Determination 2014 paragraph 5(1) and (2).

41. Based on what Ms Wu said at the hearing about the effects of her conditions on her ability to function, neither was severe according to any one Impairment Table. 

42. The SSCSD used Table 1 (Functions requiring Physical Exertion and Stamina) and assigned Ms Wu’s conditions together rated 20 points.  I am not of the view that is the appropriate table for her conditions, whether separately or combined, but, in any event, I do not agree that there was severe functional impact rating 20 points, according to this table.  A rating of 20 points requires that a person usually experiences symptoms such as shortness of breath, fatigue or cardiac pain when performing light physical duties and, as a result, is unable to walk around a shopping centre or supermarket, or walk from the car park into a shopping centre or supermarket, or use public transport without assistance; or perform like day-to-day household activities such as folding and putting away laundry. 

43. Table 2 is used for Upper Limb Function. For a rating of 20 points, most of the following must apply: limited movement or coordination in both hands or arms, or has an amputation rendering a hand or arm non-functional; severe difficulty handling, moving or carrying most objects even when using a wearing a prosthesis or assistive device; difficulty using a computer keyboard, despite appropriate adaptation; severe difficulty using a pen or pencil; severe difficulty turning the pages of the book without assistance.

44. Table 4 is used for Spinal Function.  For a rating of 20 points, a person must be unable to: perform any overhead activities, turn the head or bend the neck without moving the trunk, or bend forward pick up a light objects from a desk or table, or remain seated for at least 10 minutes.

45. The Secretary suggested that Table 7 (Brain Function) could be considered relevant because of Ms Wu symptoms of dizziness, fatigue, memory loss and lack of concentration.  However, even if there was sufficient evidence to conclude that these symptoms are permanent, Ms Wu’s impairment would not rate 20 points on Table 7.  A rating of 20 points requires the person to need assistance and supervision at least once a day and severe difficulties with at least one of the following: memory, attention and concentration, problem solving, planning, decision-making, comprehension, visuo-spatial function, behavioural regulation or self-awareness.

46. The report of the job capacity assessment undertaken on 17 November 2015 shows that Ms Wu told the assessor that she was slow with all activities; she remained independent with most dressing, cleaning and meal preparation, and she continued to drive a car. She reported being able to walk up to 20 minutes before needing a rest, and walking three flights of stairs to her home.  Ms Wu gave similar evidence to the Tribunal, and added that she drives most days to the local shopping centre.

47. I accept that Ms Wu is slower in all these activities than she was before her fall. However, I am not satisfied that the effect of her conditions is severe according to any of the potentially relevant Impairment Tables.

48. It follows from this that, because she had not actively participated in a program of support before claiming DSP, Ms Wu did not have a continuing inability to work during the claim period.

    Conclusion

49. I have no doubt that Ms Wu suffers the painful effects of her head and neck injury, and that she suffers pain in her arms and hands.  However, for the reasons above, I am not satisfied that either condition was fully diagnosed, fully treated and fully stabilised during the claim period. It follows that neither can be given an impairment rating and that her claim for DSP must fail.

50. It is open to Ms Wu to apply again at any time for DSP and to test her eligibility again.

51. For these reasons I set aside the decision under review and in substitution decided that Ms Wu did not satisfy s94(1)(b) and (c) at the date of claim, being 16 April 2015, or within the following 13 weeks, and therefore did not qualify for Disability Support Pension.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated: 24 February 2017

Date of hearing:	7 February 2017
Solicitors for the Applicant:	Dr S Thompson, Department of Human Services
Respondent:	In person