ZKHF and Secretary, Department of Social Services
[2015] AATA 59
•3 February 2015
[2015] AATA 59
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1643
Re
ZKHF
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin, QC, Deputy President
Date 3 February 2015 Place Sydney The reviewable decision is affirmed.
..............................[sgd]......................................
The Hon. Brian Tamberlin, QC, Deputy President
CATCHWORDS
SOCIAL SECURITY –– disability support pension –– cancellation –– whether applicant has 20 points under the impairment tables –– job capacity assessment –– decision affirmed
LEGISLATION
Social Security Act 1991; s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
The Hon. Brian Tamberlin, QC, Deputy President
The Applicant seeks review of a decision of the Social Security Appeals Tribunal (SSAT) affirming a decision of 21 January 2014 to cancel the Applicant’s disability support pension (DSP) as she did not satisfy section 94 of the Social Security Act 1991 (the Act).
The issue is whether the Applicant was qualified to receive DSP as at the date of cancellation on 15 November 2014.
BACKGROUND
The Applicant is currently in receipt of a Newstart Allowance. She has been in receipt of DSP since 28 March 2000.
On 25 September 2013 Centrelink sent the Applicant a DSP review form and on 22 October 2013 the Applicant completed a medical report disability support pension review form listing a history of her disabilities, illnesses or injuries since 1993 and the medication she takes for these conditions.
On 24 October 2013 Dr Foong completed a medical report for the purpose of review. He made findings that the Applicant has suffered lower back pain secondary to spondylosis, post compound fracture of the right knee, and post reflex sympathetic dystrophy pain in the right knee, since 1993. The Applicant consulted Dr George Kirsh, an orthopaedic surgeon. She has suffered constant pain in the right knee and is unable to stand or walk for prolonged periods. The report also indicated that she suffered from hypothyroidism but that this was well managed and caused minimal or limited impact on her ability to function. In addition, he stated that the Applicant is depressed and has been referred to a psychiatrist, Dr Smith.
A job capacity assessor on 7 November 2013 was satisfied that the back condition, lower limb function and hypothyroidism were permanent at the relevant time. A total of 5 points was assigned for the back condition under Table 4 of the Impairment Tables. The other conditions were found not to warrant any rating under those Tables. The job capacity assessor reported the Applicant’s baseline work capacity to be 8 to 14 hours per week and 15 to 22 hours per week with intervention.
The matter was referred to the Health Professional Advisory Unit and Ms Stillman, a registered nurse, agreed that the back condition warranted a rating of 5 points under the Tables, but assigned nil points to the lower limb condition and was not asked to address the question of hypothyroidism.
On 15 November 2013 the Applicant’s DSP was cancelled, and on 21 November 2013 the Applicant requested a review on 10 March 2014. After an intermediate review, the SSAT reviewed and affirmed the decision to cancel.
On 31 March 2014 the Applicant appealed to this Tribunal.
Since that appeal was lodged, the Applicant provided further medical evidence to this Tribunal and seeks review of the SSAT decision.
LEGISLATION
Under section 94(1)(b) of the Act a person is qualified for a DSP if the person has a physical impairment and the person’s impairment is 20 points or more under the Impairment Tables.
The extent of impairment is to be decided having regard to the Impairment Tables set out in the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Tables).
It is common ground that the Applicant suffered from an impairment which affected her ability to function at the relevant time, thereby satisfying the requirements of section 94(1)(a) of the Act.
An impairment rating can only be assigned if it is permanent, therefore it can only be considered permanent if fully diagnosed, treated and stabilised, and is more likely than not in the light of available evidence to persist for more than two years.
The claims of the Applicant are in respect of a back condition; knee conditions; hypothyroidism and depression. I will deal with each of these in turn.
BACK CONDITION
It is accepted by the Respondent that the Applicant has a history of back problems resulting from a motor vehicle accident and that this condition has been fully diagnosed, investigated, treated and stabilised at the relevant time and can be assessed under the Impairment Tables.
The relevant Table is Table 4 which is used when a person has a permanent condition resulting in functional impairment when performing activities involving spinal function, in bending or turning the back, trunk or neck.
In considering the application of the Tables it is appropriate to bear in mind the guidelines to the Tables, which include a statement that any determination of the condition that best fits the person’s impairment level must be based on available medical evidence, including the person’s medical history, investigations, results and clinical findings. A person’s self-reported symptoms must not solely be relied on. It would be inappropriate to apply the impairment rating based solely on a person’s self-reported functional history if the level of functional impairment is not consistent with the medical evidence.
In this case the medical evidence in relation to the back condition is that on 14 October 2013 the Applicant undertook a CT scan of the lumbosacral spine, and Dr Glasson reported that there was a very minor disc margin spondylolytic lipping and that none of the levels have focal or other significant disc protrusion. The facet joints appeared normal and the soft tissues showed no abnormality. The conclusion therefore was that there was no disc protrusion or other significant abnormality.
On the same date an x-ray of the Applicant’s lumbar spine showed the disc margin to have minor degenerative lipping.
On the same date an x-ray of the Applicant’s cervical spine showed mild degenerative change but no other significant bony or joint abnormality. There was no neural stenosis and no other significant abnormality. On 24 April 2014, after the decision of the SSAT, the Applicant had an MRI scan of the lumbar spine which showed very minimal posterior disc bulging; minor posterior disc bulging without significant stenosis, a very small protrusion causing some minor effacement; and at L5/S1 level very minimal posterior disc bulging without canal stenosis. There was evidence from Ms Stillman that an impairment rating of 5 points under Table 4 was appropriate for the back condition.
Applying the guidelines the Applicant’s claim is not consistent with the medical evidence.
On the evidence before me I am not persuaded that a rating of more than 5 points under Table 4 of the Impairment Tables is appropriate for the Applicant’s back condition.
KNEE CONDITION
On 14 October 2013 on considering an x-ray of the right knee Dr Glass reported that there may be a very slight early lipping of patellar upper margin and tibial spines, but no significant or other bone or joint abnormality.
On 24 October 2013 Dr Foong reported that the Applicant suffered a post compound fracture of the right knee and post reflex sympathetic dystrophy pain in the right knee. He reported no future or planned treatment for this condition.
On 10 February 2014 Dr Kirsh reported that the Applicant should have a MRI scan just to make sure nothing had been missed. This was conducted on 24 February 2014.
On 19 March 2014 Dr Kirsh reported that the Applicant had some arthritis and a possible tear. He advised physiotherapy to see if it would settle. He has given her papers to go on his waiting list for an arthroscopy just in case the conditions do no settle.
On 5 June 2014 the Applicant was reviewed by Dr Kirsh and he said that physiotherapy improved her possibly 20 per cent, but she is now wearing a support and the knee still locks at time and that she has pain when she relaxes or when trying to sleep.
On 20 June 2014 Dr Foong reported that the Applicant was on a waiting list for an arthroscopy.
On the above evidence the Tribunal finds that the right knee condition was not fully diagnosed, treated or stabilised as at 15 November 2013 or, as the evidence indicated, that it was still being investigated and treated subsequently, and that the condition had not stabilised.
Accordingly, at the relevant time the Applicant’s knee condition could not be assessed under the Impairment Tables in respect of the knee condition.
HYPOTHYROIDISM
The evidence of Dr Foong on 24 October 2013 was that the Applicant suffered hypothyroidism, which is generally well managed and caused minimal or limited impact on her ability to function. Accordingly, no points were assigned on the basis of the evidence of Dr Foong.
DEPRESSION
The relevant Table to apply when a person has a permanent condition resulting in functional impairment due to a mental health condition states that diagnosis must be made by an appropriately qualified medical practitioner, including a psychiatrist, with evidence from a clinical psychologist if a diagnosis has not been made by a psychiatrist. In this case there is no evidence that at the relevant time there was any evidence from a psychiatrist or clinical psychologist verifying this condition. The report of Dr Foong on 24 October 2013 underlines the necessity to have evidence from a psychiatrist.
The Applicant told the SSAT that she was referred to a psychologist who saw her once but that she had not been prescribed antidepressants.
Accordingly, in view of the fact that there is no evidence that at the relevant time the provisional diagnosis of depression had been confirmed by a psychiatrist or a clinical psychologist or by any evidence of an expert opinion of a suitably qualified person, it cannot be said that the Applicant’s mental health condition had not been fully diagnosed, treated or stabilised as at 15 November 2013, therefore it could not be assessed under the Impairment Tables.
CONCLUSION
Having regard to the Tribunal finding that the Applicant does not satisfy paragraph 94(1)(b) of the Act at the relevant time, because her conditions do not attract 20 impairment points or more, the decision under review is affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President ...........................[sgd].....................................
Associate
Dated 3 February 2015
Date(s) of hearing 11 December 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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