ANKA VIDOVIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 586
[2012] AATA 586
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0794
Re
ANKA VIDOVIC
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Ms K Hogan, Member
Dr J Chaney, MemberDate 24 August 2012 Place Perth DECISION SUMMARY
The Tribunal affirms the decision under review.
Ms K Hogan, Member
…(sgd) Ms K Hogan……..Catchwords
Social Security – Pensions – Disability support pension – Qualification – Whether applicant has an impairment attracting at least 20 points under Impairment Tables – Impairment does not attract 20 points – Decision under review affirmed.
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Ms K Hogan, Member
Dr J Chaney, Member24 August 2012
History
On 10 February 2011 the applicant lodged a claim for disability support pension.
On 23 February 2011 a Centrelink officer rejected the claim on the basis that the applicant’s medical impairment rating was less than 20 points and that she should be able to perform her usual work, or be reskilled to work more than 15 hours per week, within the next two years.
The decision was reviewed by a Centrelink authorised review officer (ARO) who found that the applicant’s impairments could not be considered to be fully treated and stabilised and therefore affirmed the decision to reject her claim for disability support pension.
The applicant lodged an application for review of that decision with the Social Security Appeals Tribunal (SSAT) which affirmed the decision.
The applicant sought review of that decision with this Tribunal.
THE IssueS
The issues to be considered by the Tribunal are:
(a)whether the applicant has any impairments;
(b)if so, whether her impairments rate at least 20 points under the Impairment Tables; and
(c)if so, whether she has a continuing inability to work.
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the parties.
The Tribunal heard oral submissions on behalf of the parties.
CONSIDERATION OF THE ISSUES
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Provisions relating to whether a person is qualified for disability support pension and whether disability support pension is payable to the person are contained in Part 2.3 of the Act.
Subsection 94(1) of the Act states, in part, that:
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
…
The period in question
In accordance with subclause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine the applicant’s qualification for disability support pension on the date she is taken to have lodged her claim, being 10 February 2011 or, if not qualified at that date, within the 13 week period thereafter.
ISSUE ONE: WHETHER THE APPLICANT HAS ANY IMPAIRMENTS
Relevant law
Paragraph 94(1)(a) of the Act provides that the first qualification for disability support pension is that a person has a physical, intellectual or psychiatric impairment.
Evidence, findings of fact and application of law
The respondent did not dispute that the applicant suffers from polyarthritis/ankylosing spondilitis, left and right sided subacromial bursitis, right common extensor origin tendonopathy and carpal tunnel syndrome.
The Tribunal reviewed the reports in the section 37 documents and the reports provided by the applicant at the hearing.
On the basis of the medical evidence the Tribunal found that the applicant suffers from impairments due to these conditions and that she satisfies paragraph 94(1)(a) of the Act.
ISSUE TWO: WHETHER THE APPLICANT’S IMPAIRMENTS RATE 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES
Relevant law
As stated above, paragraph 94(1)(b) of the Act provides that the second qualification for disability support pension is that the person’s impairment rates 20 points or more under the Impairment Tables.
Paragraph 4 of the Introduction to the Impairment Tables states:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised …
Paragraphs 5 and 6 of the Introduction to the Impairment Tables state:
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
Evidence, findings of fact and application of law
The Tribunal accepts that the applicant suffers from polyarthritis/ankylosing spondilitis, left and right sided subacromial bursitis, right common extensor origin tendonopathy and carpal tunnel syndrome but does not feel the conditions had been fully investigated, treated and stabilised within the 'period in question' referred to in paragraph 12 above.
The applicant was diagnosed with inflammatory polyarthritis in October 2010 and in February 2011 had received treatment with Salozopyrin and Voltaren. [T4A: pp 106 - 107].
On 14 December 2010 Dr Ng, a Rheumatologist reported that the applicant had symptoms of either rheumatoid arthritis or psoriatic arthritis. On 14 February 2011, Dr Ng reported he had commenced the applicant on Methotrexate and Folic Acid [T2A: pp 11-12].
The Job Capacity Assessment Report (JCA) of 15 February 2011 notes that in addition to the diagnosis of arthritis the applicant suffered bilateral shoulder bursitis, right elbow tendonitis and carpal tunnel syndrome [T6: pp 117-120].
On 27 April 2012, Dr Mastaglia certified the applicant suffered ankylosing spondilitis, and inflammatory arthritis. Dr Mastaglia noted that treatment with Humira injections had been commenced [respondent’s Statement of Facts and Contentions - attachment 3].
On 21 May 2012, Dr Ian Smith from the Department of Human Services, Health Professional Advisory Unit opined that Humira had a reasonable chance of inducing remission [respondent’s Statement of Facts and Contentions - attachment 4].
Whilst the JCA of 15 February 2011 identified that the applicant suffered bursitis in her shoulders, tendonitis in her elbow and carpal tunnel syndrome, there was no specific evidence of treatment for these conditions other than that reported for the arthritis.
The applicant was represented by her daughter, Ms Rahela Vidovich. Ms Vidovich was not able to identify any medical evidence to support a finding that in the 'period in question' (10 February 2011 - 12 May 2011) the applicant’s conditions had been fully investigated, treated and stabilised.
The Tribunal was not able to assign to the applicant any impairment points under the Impairment Tables. As paragraph 49(1)(b) of the Act requires an impairment rating of 20 points or more to qualify for disability support pension the Tribunal determined that the applicant does not meet this requirement and consequently her claim for disability support pension must be rejected.
The applicant’s undated statement, provided to the Tribunal on the day of the hearing, and the submission made on her behalf indicate that Humira has not afforded any significant changes to her pain, mobility or psoriatic arthritis.
It may be the case that the applicant’s conditions, since the date of the 'period in question' have now been fully investigated, treated and stabilised however, if that is the case, it is necessary for the applicant to lodge a new application for the disability support pension.
ISSUE three: WHETHER THE APPLICANT has a continuing inability to work
Relevant law
Paragraph 94(1)(c) of the Act requires that the applicant has a continuing inability to work because of her impairment.
Evidence, findings of fact and application of law
In view of the Tribunal’s finding that the applicant’s medical conditions do not attract an impairment rating, the Tribunal did not address the issue of her continuing inability to work.
DECISION
The Tribunal affirms the Decision under review.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member and Dr J Chaney, Member.
....(sgd) T Freeman...................
Associate
Dated 24 August 2012
Date of hearing 20 August 2012 Applicant Ms R Vidovic
Advocate for the Respondent Ms L Gallagher Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Impairment Rating
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Condition Stabilization
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