Newcombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 259 (29 April 2013)

Last Updated: 29 April 2013

[2013] AATA 259

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4631
Re	KERRIE NEWCOMBE
	APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
	RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	29 April 2013
Place	Brisbane

The Tribunal affirms the decision under review.

...................................[Sgd].....................................
Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical and psychiatric impairments – Impairment Tables – First condition not fully treated and stabilised – Condition not permanent – Second condition assessed at 10 points under the Impairment Tables – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 27, 94

Social Security (Administration) Act 1999 (Cth) Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

1. On 18 January 2012, Ms Kerrie Newcombe made a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 27 February 2012. On 7 June 2012, an authorised review officer affirmed that decision, as did the Social Security Appeals Tribunal on 30 August 2012. The conditions identified by Ms Newcombe’s treating practitioner, Dr S Joseph, in his report dated 31 January 2012, were “L5/S1 disc prolapse with nerve root compression” and “depression”.^[1]

LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Ms Newcombe meets the age and residency requirements of that provision and has a psychiatric impairment and physical impairment in relation to her depression and spinal condition, respectively. The remaining requirements in s 94 of the Act, and the matters in issue, are:
   • whether Ms Newcombe has an impairment rating of 20 points or more which is calculated under the Impairment Tables^[2] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 as required by s 94(1)(b) thereof; and, if so
   • whether she has a continuing inability to work as required by s 94(1)(c)(i) of the Act.
3. To qualify for disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.^[3] In Ms Newcombe’s case, that period is from 18 January 2012 until 18 April 2012 (the relevant period). It is noted that a subsequent claim by Ms Newcombe for disability support pension was granted by the respondent with effect from 21 September 2012.
4. The requirements to be followed in applying the Impairment Tables are set out in s 6 therein, which reads:

6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.


Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:

(a) the person’s condition causing that impairment is permanent; and

Note: For permanent see subsection 6(4).

(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

(b) the condition has been fully treated; and

Note: For fully diagnosed and fully treated see subsection 6(5).

(c) the condition has been fully stabilised; and

Note: For fully stabilised see subsection 6(6).

(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

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

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

(c) whether treatment is continuing or is planned in the next 2 years.

Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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:

(i) 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

(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

Note: For reasonable treatment see subsection 6(7).

Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is 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.

Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

5. Ms Bob Hamilton, for the respondent, submitted that, on the evidence available in the relevant period, only one of the two conditions identified above was fully diagnosed, fully treated and fully stabilised such that it is permanent and for which an impairment rating could be allocated. This was Ms Newcombe’s spinal condition. He submitted that a rating of 10 points, assessed under Table 4 of the Impairment Tables, was appropriate for that condition which meant that the level of impairment required under s 94(1) of the Act was not satisfied. He also submitted that Ms Newcombe did not satisfy the incapacity for work requirements of s 94(2) of the Act during the relevant period. In particular, he expressed concern that Ms Newcombe may not have completed a program of support (POS), as required under s 94(2)(aa) of the Act, where no individual impairment rating reaches the 20 points level.^[4]
6. Ms Newcombe’s submission was that she is now severely incapacitated from her health problems and is not capable of engaging in or training for employment. She described continuing pain and limitations of function because of her spinal condition and increasing symptoms for her depression. She submitted that she meets the qualification criteria for 20 points under Table 4 for her spinal condition and 10 points under Table 5 for her depression. She submitted that she was qualified for the disability support pension.

EVIDENCE

7. Ms Newcombe described her limitations referrable to her back condition as including an inability to perform overhead activities such as hanging washing on a high clothes line, turning her head in an activity such as reversing her car, being able to bend forward to lift items or to remain seated for a long period. However, Ms Newcombe also agreed that her condition has been deteriorating since her claim was made and that is consistent with the findings in a Job Capacity Assessment (JCA) report completed by “CW”, a rehabilitation counsellor, and “JS”, a social worker, on 16 February 2012.
8. The JCA reporters wrote that Ms Newcombe had reported:^[5]

pain constant with periodic acute episodes about 1 per month where unable to get out of bed. walk 1klm or 20 min slowly. stand sit 20 mins then needs to move. bend to knee height not repetitive prefers squat but difficulty rising unsupported. lift carry 3-5kg. difficulty working over shoulder height. difficulty stair climbing. altered gait.

9. The JCA reporters also concluded that Ms Newcombe had a baseline work capacity of 8-14 hours per week and a capacity, with intervention, for work within two years of 15-22 hours per week in light less-skilled activity such as customer service, light hospitality or in a call centre.
10. Dr Swapna Joseph, Ms Newcombe treating practitioner, provided a report, dated 31 January 2012,^[6] which accompanied her claim for disability support pension. She wrote that Ms Newcombe had “difficulty in sitting, standing or walking for long time – cannot lift anything heavy”.
11. Ms Newcombe’s evidence was that her depression has worsened through 2012 and that she has not had the benefit of continuing counselling which ceased after she received a sum on settlement of a worker’s compensation claim. She also believed that the serious illness of her father in 2012 had impacted on her condition. In her report, Dr Joseph described “depressed mood, poor sleep, low self-esteem” and wrote that the applicant’s depression was improving with medication and was likely to significantly improve over the following two years. The JCA reporters noted that counselling had concluded in December 2011 and expressed the opinion that functional impacts may be reduced with psychotherapy interventions.^[7]

CONSIDERATION

12. As noted above, the assessment for disability support pension is made in accordance with the presentation of symptoms in the relevant period. The evidence of Dr Joseph and the JCA reporters during that period leaves me reasonably satisfied that Ms Newcombe’s depression had not been fully treated and fully stabilised at that time. That means that it is not permanent and an impairment rating may not be allocated to that condition.^[8]
13. For her back condition, Ms Newcombe’s symptoms, as they presented in the relevant period, reflect the criteria at a level no higher than 10 points under Table 4 of the Impairment Tables. It reads:

There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c) the person is unable to bend forward to pick up a light object placed at knee height; or

(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

14. I am satisfied that 10 is the appropriate allocation of impairment points under that Table. This results in a total of 10 impairment points for Ms Newcombe’s conditions during the relevant period and that is not sufficient to meet the threshold of 20 points required to qualify for disability support pension at that time.
15. That finding makes it unnecessary to consider Ms Newcombe capacity for work although I have noted the opinion of the JCA reporters in that regard. It also makes it unnecessary for consideration to be given to whether Ms Newcombe has undertaken a POS. I have noted Mr Hamilton’s submissions in that regard and also the findings of the respondent in granting disability support pension to Ms Newcombe with effect from 21 September 2012.

DECISION

16. The Tribunal affirms the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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

Dated 29 April 2013

Date of hearing	6 April 2013
Applicant	In person
Solicitor for the Respondent	Mr Bob Hamilton

---

^[1] Exhibit 1, T-document 14, pp. 170-177.

^[2] See s 27 of the Act.

^[3] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

^[4] See also s 94(3B) of the Act.

^[5] Exhibit 1, T-document 15, pp. 178-183.

^[6] Exhibit 1, T-document 14, pp. 170-177.

^[7] Exhibit 1, T-document 15, p. 179.

^[8] See s 6(3) and (4) of the Impairment Tables.