Xie and Secretary, Department of Social Services (Social services second review)
[2018] AATA 968
•23 April 2018
Xie and Secretary, Department of Social Services (Social services second review) [2018] AATA 968 (23 April 2018)
Division:GENERAL DIVISION
File Number: 2017/5588
Re:Shaoshan Xie
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:23 April 2018
Place:Sydney
The decision under review is affirmed.
...............................[sgd]....................................
Senior Member Linda Kirk
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments are physical,
intellectual or psychiatric – whether impairments amount to 20 points or more – continuing
inability to work – Table 3 – Table 5 – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Admininstration) Act 1999 (Cth), Sch 2, s 42
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Linda Kirk
23 April 2018
Ms Shaoshan Xie (‘the Applicant’) was born on 21 July 1960. She currently receives carer payment and carer allowance. She suffers from a number of serious medical conditions which she claims make it difficult for her to work, or to look for work.
On 6 February 2017, Ms Xie applied for the Disability Support Pension (‘DSP’). On 15 May 2017, her application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’), and on 25 May 2017, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).
Ms Xie applied to the Social Security and Child Support Division of this Administrative Appeals Tribunal for review (‘SSCSD’). In a decision dated 31 August 2017, the SSCSD affirmed the decision of the ARO refusing Ms Xie’s claim for DSP as she did not satisfy section 94(1)(b) of the Act.
On 15 September 2017, Ms Xie applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.
The matter was heard by the Tribunal in Sydney on 13 February 2018. Ms Xie attended the hearing in person and was accompanied and represented by her husband.
ISSUES AND LEGISLATION
The issue before the Tribunal is whether Ms Xie qualified for DSP in the relevant period.
Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for DSP, Ms Xie must satisfy the requirements of section 94 of the Act as at the date she made her claim, 6 February 2017, or within 13 weeks of lodging the claim, that is between 6 February 2017 and 8 May 2017 (‘the qualification period’).
Section 94(1) of the Act provides that a person qualifies for the DSP if:
·the person has a physical, intellectual or psychiatric impairment; and
·the person’s impairment attracts 20 points or more under the Impairment Tables; and
·the person has a continuing inability to work as defined in section 94(2) of the Act.
The Respondent concedes and the Tribunal agrees that Ms Xie suffered medical conditions that caused impairment during the qualification period, and therefore she satisfies section 94(1)(a) of the Act at the time of her claim for disability support pension.
It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, Ms Xie had:
·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and
·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).
The Impairment Tables
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, provides that a condition is ‘permanent’ if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised; and
(d)is more likely than not to persist for more than two years.
In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:
(a)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 Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.
Reasonable treatment is defined in section 6(7) of the Impairment Tables as 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.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)
Medical conditions
Ms Xie claims and the Respondent accepts that during the qualification period she suffered from the following conditions:
(a)Osteoarthritis – right knee
(b)Lower back pain
The first issue for determination by the Tribunal is whether the conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
Which of the medical conditions can be given an impairment rating?
Condition 1 – Osteoarthritis – right knee
The Respondent accepts that Ms Xie suffers from osteoarthritis in her right knee and that it was fully diagnosed, treated and stabilised during the qualification period and accordingly an impairment rating under Table 3 of the Impairment Tables can be assigned.
Ms Xie’s treating doctor, Dr Kek, diagnosed this condition on 25 August 2015 and reported her symptoms as ‘chronic pain limited walking tolerance, needs daily analgesia, pain variable from 4/10 to 7/10 level of pain’. He further reported on 25 July 2016 that Ms Xie has limited physical tolerance especially with ‘prolong (sic) standings, sitting walking tolerance 9 less than 10 minutes (sic)’.
Dr Dao, an orthopaedic knee surgeon reported on 9 August 2016 that the applicant had been experiencing right knee pain for the last 10 years following a fall whilst playing badminton in China. He reported that Ms Xie graded the pain as 7/10 at its worst point and that it is worse in the colder weather, she has difficulty sleeping at night but the pain does not wake her, she can walk for 10 minutes before the pain becomes severe and she finds it difficult using stairs. Dr Dao prescribed paracetamol combined with non-steroidal anti-inflammatory medications and steroid injections for temporary relief of flare-ups of her symptoms. He noted that Ms Xie ‘should consider office duties’ as her knee may be aggravated by ‘prolonged standing, walking or carrying heavy loads’.
In a report dated 2 May 2017 (during the qualification period), Dr Kek, referring to both Ms Xie’s conditions, noted that these ‘will most likely be aggravated by prolonged periods of standing, sitting, walking, lifting, repetitive twisting, turning and lifting.
In her evidence to the Tribunal Ms Xie said that she was the primary carer for her husband for a period of six months following his surgery and discharge from hospital in late May 2016. She said that she continues to care for her husband when she is not in pain, including cooking for him. She stays at home most of the time however sometimes her husband will drive her to the supermarket but he does the shopping. She requires a walking stick and must sit down regularly. She said she cannot go anywhere without support.
The Respondent accepts that that Ms Xie’s knee osteoarthritis is fully diagnosed, treated and stabilised, and is therefore permanent, however contends that there is an absence of contemporaneous corroborating evidence and that no more than five points should be allocated to this condition under Table 3.
On the basis of the evidence before it, the Tribunal accepts the Respondent’s submissions in relation to the functional impact of this condition on Ms Xie, and finds that an impairment rating of five points under Table 3 should be assigned to this condition as the functional impairment resulting from this condition is mild.
Condition 2 – Lower back pain
The Respondent accepts that Ms Xie suffers from lower back pain condition and that this was fully diagnosed, treated and stabilised during the qualification period. A lumbosacral spine CT scan completed on 29 August 2016 indicated degenerative changes in joints at multiple levels and mild disc protrusion.
Dr Kek reported on 2 May 2017 that Ms Xie had degenerative arthritis pain in her lumbar spinal column from severe facet arthritis, and that this would most likely be aggravated by ‘prolonged periods of standing, sitting, walking, lifting and repetitive twisting, turning and lifting.’
The Job Capacity Assessor reported that, at the assessment undertaken on 3 March 2017, Ms Xie sat comfortably with the use of a pillow for approximately 25 minutes. Evidence before the Tribunal, namely Department movement records, shows that Ms Xie took a number of overseas flights during the period August 2015 and June 2017 indicating her ability to remain seated for extended periods of time.
The SSCSD observed that at the hearing, in August 2017, Ms Xie was able to turn her head and look over her shoulder, bend forward and pick up items on the table, and did not require any assistance to get up out of her chair. During the course of the three hour hearing by this Tribunal, Ms Xie sat in a wheelchair however with no obvious signs of discomfort.
The Respondent contends that, based on Dr Kek’s evidence, during the qualification period, Ms Xie had some difficulty with turning, and accordingly her lower back condition should be assigned no more than five points under Table 4 of the Impairment Tables.
On the basis of the evidence before it, the Tribunal accepts the Respondent’s submissions in relation to the functional impact of this condition on Ms Xie, and finds that an impairment rating of five points under Table 5 should be assigned to this condition as the functional impairment resulting from this condition is mild.
CONCLUSION
During the assessment period, Ms Xie suffered from impairments attracting a total rating of 10 points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, it follows that Ms Xie was not qualified for DSP during the qualification period.
As Ms Xie’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether she had a continuing inability to work during the qualification period.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.......................[sgd].............................
Dated: 23 April 2018
Date of hearing: 13 February 2018 Applicant: In person Solicitors for the Respondent: K Dunlop, Department of Human Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
0