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Editors --- "Disability support pension: continuing inability to work" [2011] SocSecRpr 29; (2011) 13(4) Social Security Reporter, Article 2


Disability support pension: continuing inability to work

ERB and SECRETARY TO THE DFHCSIA

(2010/4806)

Decided: 5th September 2011 by A. F. Cunningham

Background

Ms Erb lodged a claim for disability support pension on 19 March 2010 which was accompanied by a medical report which listed medical conditions of fibromyalgia with osteoarthritis and Raynaud’s disease and depression. A Job Capacity Assessment (JCA) was conducted on 31 March 2010 and an impairment rating of 15 points was assigned collectively to the conditions of fibromyalgia, osteoarthritis and Raynard’s disease. Ms Erb’s depression was not assigned an impairment rating as it was not considered to be fully treated and stabilised. On 22 April 2010 Ms Erb’s claim was rejected on the basis of her insufficient impairment rating. On 7 May 2010 a further medical report was submitted by Ms Erb’s treating doctor listing hypertension as a further condition. A subsequent JCA did not attribute any points for hypertension, with the comment that the condition is controlled with medication with nil functional impact. Ms Erb appealed the rejection but the original decision was affirmed by an Authorised Review Officer on 23 July 2010 and the SSAT on 22 September 2010. Ms Erb then sought review of this decision before the AAT.

The issue

The issue for the AAT was whether Ms Erb satisfied the qualification provisions in the Social Security Act 1991 (the Act) at the time of lodging her claim on 19 March 2010 or within 13 weeks thereafter – between 19 March 2010 and 18 June 2010. The contested aspects of Ms Erb’s qualification were whether Ms Erb at the relevant time had firstly an impairment rating of at least 20 points according to s.94(1)(b) of the Act, and secondly a continuing inability to work according to s.94(1)(c) of the Act.

Evidence

The AAT heard evidence from Ms Erb, and considered Ms Erb’s treating doctor’s reports of 19 March 2010 and 22 March 2011. They also considered the two JCAs prepared in connection with Ms Erb’s claim. The evidence of Ms Erb and her treating doctor concerned the impact of her conditions on the use of her hands, cramping sensations in her legs, difficulties with her daily activities including walking, bending over, preparing food, showering and getting dressed, and other household tasks.

Reasoning

In relation to Ms Erb’s depression, the AAT considered her treating doctor’s assessment which related to the qualification period, which stated that significant improvement could be anticipated. Accordingly the AAT concluded that the condition was not fully treated and stabilised during the qualification period. The respondent conceded there was no issue as to whether Ms Erb’s other conditions were fully diagnosed, treated and stabilised.

In considering Ms Erb’s functional impairment, the AAT accepted that impairment ratings of 15 under table 3 (upper limb function) and 10 under table 4 (lower limb function) were appropriate, but found that an alternate assessment could be made under table 20 (miscellaneous conditions including pain). The evidence of Ms Erb’s treating doctor, particularly the report of 19 March 2010, and of Ms Erb herself was that her symptoms did impact on her ability to self-care and undertake most daily activities, and this evidence supported an impairment rating of 20 under this alternate assessment.

The AAT considered the recommended interventions suggested in Ms Erb’s JCA which concluded on 31 March 2010 that Ms Erb had a work capacity of between 8 and 14 hours per week. The main intervention suggested in this JCA to enable Ms Erb to undertake suitable work was psychological counselling. The AAT found that given Ms Erb’s identified symptoms included joint and muscle pain, loss of strength, limited tolerance to sitting, standing and walking, the interventions recommended by Ms Erb’s JCA would have little if any impact to increase Ms Erb’s capacity for employment to over 15 hours per week. The AAT found that Ms Erb had a continuing inability to work within the meaning of section 94(2) and therefore satisfied the qualification provisions of section 94(1).

Formal decision

The AAT set aside the decision under review that Ms Erb did not qualify for disability support pension and remitted the matter to the respondent for reassessment in accordance with the AAT’s findings.

K.W.

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