Aleysha Ayda and Secretary, Department of Social Services
[2014] AATA 545
[2014] AATA 545
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0847
Re
Aleysha Ayda
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 8 August 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – disability support pension – whether accepted medical conditions attract 20 points within 13 weeks of the claim – decision affirmed
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 4 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
8 August 2014
Ms Ayda is a 41 year-old woman who suffers from a number of medical conditions. Ms Ayda lodged the claim for disability support pension (DSP) with Centrelink on 6 August 2012. Several medical reports accompanied the claim. On 29 August 2012 a Centrelink officer rejected Ms Ayda's claim (the original decision). Centrelink administers DSP for the respondent.
Ms Ayda sought a review of the original decision by a Centrelink authorised review officer (ARO). On 5 November 2012 the ARO affirmed the original decision.
Ms Ayda lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT). On 31 January 2013 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Ms Ayda’s impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) by 6 August 2012 or within 13 weeks of that date (the relevant period).
On 24 February 2013 Ms Ayda lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether Ms Ayda satisfied the requirements for DSP during the relevant period.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Were Ms Ayda’s medical conditions permanent and do they therefore attract an impairment rating of at least 20 points?
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of her application, to do so within 13 weeks of that date.
The Tribunal accepts that Ms Ayda suffered from a number of medical conditions during the relevant period and continues to do so. The Tribunal must decide whether Ms Ayda’s medical conditions attract a sufficient impairment rating, subject to satisfying the requirements under sections 3 and 4 of the Determination, which require the medical conditions to be fully diagnosed, treated and stabilised to be considered permanent.
On 14 August 2012 Ms Ayda’s then general practitioner, Dr Jayawardena, completed a medical report indicating that Ms Ayda suffered from depression and anxiety, osteoarthritis, hypertension, renal impairment and asthma. Dr Jayawardena indicated that Ms Ayda had been a patient at the practice since August 2007. Accompanying the report was a GP Management Plan & Team Care Arrangement dated 14 August 2012 which set out various strategies and treatments to optimise Ms Ayda’s health outcomes, with roles ascribed to various health professionals.
The Tribunal accepts that during the relevant period Ms Ayda suffered from a number of disabilities as described in the medical report. She therefore meets the requirements of section 94(1)(a) of the Act.
As stated earlier, the legislation only allows for an impairment to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(1)(b) of the Act).
Section 6 of the Impairment Tables states that:
…
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.
…
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.
…
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.
(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
(bthe 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).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Depression and anxiety
The Tribunal accepts that Ms Ayda had been suffering from depression and anxiety for some years and that the conditions are linked to her physical state as well as her personal circumstances. Nonetheless, the conditions do not appear to meet the legislative requirements of being fully diagnosed, treated or stabilised during the relevant period in 2012
There are referrals and reports that indicate that health professionals recommended further diagnosis and treatment after the relevant period. There is also contemporaneous evidence suggesting that in mid-2012 Ms Ayda did not persevere with the suggested treatment for her mental health state.
On 4 June 2012 Sonia Dolcetta, a Social Worker at the Craigieburn Health Service, wrote a reference for Ms Ayda, stating that:
…Social Work had seen Aleysha in 2010 but was re-referred by Physiotherapy to look at depression and sleeping in February 2012. Social Work saw Aleysha for the first visit on the 20/04/2012.
…
During this assessment it was identified that Aleysha had a long history of depression but was not getting any treatment for this. Social Work has made a referral to NorthWest Mental Health and they have been seeing Aleysha for treatment of Depression. Aleysha is currently linked into this service. Aleysha’s mental health and mood is affecting her ability to carry out day to day functions.
…
Clinical notes from the North West Area Mental Health Service were provided to the Tribunal. Notes by Terese Pagano, Senior Clinician, dated 30 October 2012, indicated that :
…
Aleysha was difficult to engage. Aleysha often did not make her appointments and would then call to say she really needed therapy however, again would not attend. Aleysha attended approximately 3 sessions over time. Aleysha has now been discharged from NW Shared Care
Recommendations for Relapse Prevention
A letter has been sent to Aleysha discharging her. Attempted to make contact with her on several occasions however, no response.
Aleysha aware if need arises again can contact NW Shared Care or can be referred to private counsellor/psychologist via her GP.
Ms Pagano indicated that she could not administer a number of standard tests to accompany her report as she had not seen Ms Ayda for months. Ms Pagano wrote to Ms Ayda on 29 October 2012 stating:
…
Hope you are doing well.
It has been difficult making contact with you. I know that you have a number of different medical appointments that you attend. This must also make it difficult to find the time to attend the therapy sessions.
Due to the number of sessions that you have not attended, I am sorry, but I need to discharge you from our service.
If in the future, your situation changes and you become more available and are considering therapy, please do not hesitate to contact our service ...
Ms Pagano had written to Ms Ayda on an earlier occasion, namely 27 August 2012:
…
Hope you are well. You missed the last appointment and I’m not certain whether you forgot or had some other appointment on. In the past you have told me that at times you have a number of different appointments scheduled in the one week. I imagine that must be overwhelming just trying to manage all of that.
I wonder if therapy is a priority for you at the moment. You have missed a number of appointments organised. As you are aware, when too much time passes, it is difficult to remember where we left off from and then therapy can feel irrelevant.
….
On 14 September 2013 Dr Mohammad Al-Magableh provided a referral for Ms Ayda to Dr Damian Hardwick of the Craigieburn Health Service for six sessions of treatment under a Mental Health Treatment Plan. The referral was for 12 months.
The Tribunal is unable to be satisfied that Ms Ayda’s mental health condition was fully treated between late June and late September 2012. Therefore, no points can be awarded for her depression and anxiety at that time.
Osteoarthritis
In relation to osteoarthritis, the Tribunal accepts that Ms Ayda suffers from some changes in her lumbar spine resulting in pain (x-ray taken on 16 September 2010). Ms Ayda described the profound impact her pain had on her lifestyle. Ms Ayda said that she finds that massage provides temporary relief but the pain is ever present. She confirmed that she did not attend all her physiotherapist appointments as she found it too difficult. She confirmed that she had stopped attending by mid-2012. She said that she cannot sleep at night because of her back pain and cannot stand for very long
Unfortunately, there is no evidence before the Tribunal that Ms Ayda has been optimally treated for this condition. Ms Ayda told the Tribunal that she had seen a number of specialists several years ago; and that she had been referred to, and had seen, a specialist at the Northern Hospital more recently. She could not recall when it was or the specialist’s name and did not have any report or other information.
The Tribunal and the respondent’s representative, Ms P Heffernan of the Australian Government Solicitor, with Ms Ayda’s consent, decided that Ms Heffernan should contact the hospital to find out about the appointment and outcome. On 22 April 2014 Ms Heffernan wrote to the Manager of the Ambulatory Care Outpatients Department at the Northern Hospital as follows:
1. We act for the above named respondent, the Secretary, Department of Social Services, in relation to an appeal brought by Ms Ayda in the Administrative Appeals Tribunal (the Tribunal) against a decision by Centrelink to reject her claim for a disability support pension.
2.On 14 March 2014 Ms Ayda’s appeal was heard by the Tribunal.
3.The Tribunal has since drawn our attention to a letter sent by your department to Ms Ayda’s treating practitioner, Dr Van Vu, dated 3 February 2011 in response to a referral by Dr Vu for an appointment in the rheumatology clinic for Ms Ayda.
4.A copy of that letter is enclosed for your information.
5.We note that in that letter the Manager of the Department advises Dr Vu that Ms Ayda will be notified when an appointment time with the rheumatology clinic becomes available
6.We would be therefore grateful if you could provide the following information in response to this letter:
·Whether an appointment was actually made for Ms Ayda with the rheumatology clinic, and if so on what date;
·Whether Ms Ayda ever attended the rheumatology clinic at the Northern Hospital for treatment and if so who was the rheumatologist who saw Ms Ayda;
·On what date or dates was Ms Ayda seen by the rheumatologist;
·Whether you have any records of any treatment provided to Ms Ayda and the rheumatology clinic of the Northern Hospital
7.We confirm that this information is sought to enable us to ascertain the nature of treatment obtained by Ms Ada in relation to the back condition….
The hospital did not respond to Ms Heffernan’s letter and she followed it up with a telephone call on 24 June 2014. A copy of Ms Heffernan’s email to the Tribunal recording her contact with the hospital that day was sent to Ms Ayda for her information and comment. It was also discussed at a telephone directions hearing on 31 July 2014:
…
- The applicant had made a number of appointments - namely about 20 but had only attended 4 or 5 of them. All were with Allied Health;
- There had been no appointments since 2012;
- She was a chronic “no-show”, ie. a serial “non attender”;
- Most appointments were with the social worker;
- There was only one appointment she had made in relation to her lower back pain and she was put on a waiting list.
…
The Tribunal is unable to be satisfied that during the relevant period all reasonable treatment for Ms Ayda’s back had been undertaken. The Tribunal is therefore unable to find that her osteoarthritis was fully treated and stabilised during the relevant period. Consequently, no points can be awarded for this condition.
Other conditions
Ms Ayda’s hypertension appears to be well-managed and causes minimal or limited impact on her ability to function. Therefore, no impairment rating can be assigned to this condition.
In relation to Ms Ayda’s renal impairment, the evidence of Dr Jayawardena in the report dated 14 August 2012 indicates that this condition is well-managed and causes minimal or limited impact on ability to function. Therefore, no impairment rating can be assigned to this condition
As for Ms Ayda’s asthma, the doctor’s report of 14 August 2012 indicates that this condition is generally well-managed and causes minimal or limited impact on her ability to function. The Tribunal notes that there is a recommendation that she give up smoking to help alleviate this condition. No impairment rating can be assigned to this condition.
The Tribunal finds that on the date of claim, and throughout the relevant period of 13 weeks following, Ms Ayda did not achieve 20 points on the Impairment Tables. Therefore, she does not meet section 94(1)(b) of the Act and does not qualify for DSP during the relevant period.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 31 (thirty‑one) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Administrative Assistant
Dated 8 August 2014
Date of hearing 14 March 2014 Date final submissions received 31 July 2014 Applicant In person Advocate for the Respondent Ms P Heffernan Solicitors for the Respondent Australian Government Solicitor
0
0
0