Avent and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1384

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1384

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° V 200600642

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		JULIE AVENT

Applicant

And

SECRETARY,
DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date30 May 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

C. Ermert

Member

SOCIAL SECURITY – disability support pension – whether physical, intellectual or psychiatric impairment – whether impairment fully documented, diagnosed, investigated, treated, stabilised and permanent – Impairment Tables – whether impairment rated at 20 points or more

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

30 May 2007  Mr C. Ermert, Member

INTRODUCTION

1.      On 16 August 2005 Mrs Julie Avent, the applicant in this matter, lodged a claim for disability support pension (DSP) with Centrelink in respect of epilepsy, a broken leg, depression, asthma and arthritis.  Centrelink, the service provider for the Department of Employment and Workplace Relations, rejected the claim on the basis that Mrs Avent was not qualified.  Centrelink decided that some of Mrs Avent’s conditions were not assessable because they were not fully documented, diagnosed, investigated, treated and stabilised and were unlikely to persist for more than two years.  Centrelink also decided that those of Mrs Avent’s  conditions which were assessable did not attract an impairment rating of at least 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).

2.      On 12 January 2006 an Authorised Review Officer affirmed the decision to reject Mrs Avent’s claim.  On 4 April 2006 the Social Security Appeals Tribunal (SSAT) also affirmed the decision.

3.      On 19 June 2006 Mrs Avent submitted a new claim for DSP.  By this time Mrs Avent’s agoraphobia and epilepsy were assessable conditions and the claim for DSP was granted.

4.      This matter is a review only of the decision of the SSAT made on 4 April 2006 to affirm the decision made by Centrelink in regard to Mrs Avent’s claim made on 16 August 2005 (the original claim).  Therefore, the issue before the Tribunal is whether Mrs Avent was qualified for DSP on 16 August 2005 or within 13 weeks of that date (the relevant period) (Schedule 2 clause 4(1) of the Social Security (Administration ) Act 1999).

THE HEARING

5.      At the hearing Mrs Avent represented herself via a telephone link.  The respondent was represented by Mr David Perdon, an advocate with Centrelink Legal Services.  I heard telephone evidence from Ms Eleanor Eshel, an occupational therapist working with Advanced Personnel Management, a vocational rehabilitation company.

6. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).  I accepted into evidence a report by Mrs Avent’s treating doctor, Dr Murray Porter, dated 26 September 2006 (Exhibit A1), a Job Capacity Assessment Report by Ms Emma Foy dated 27 September 2006 (Exhibit R1), and a Job Capacity Assessment Report by Ms Eshel dated 23 November 2006 (Exhibit R2).

THE ISSUES

7. Section 94(1) of the Social Security Act 1991 (the Act) relevantly provides:

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…

8. The Impairment Tables are contained in Schedule 1B of the Act. The Introduction to the Impairment Tables relevantly provides:

4. … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…

5.        The condition must be considered to be permanent. … 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.

9.      Mrs Avent listed the following conditions on her claim for DSP (T4, p23): epilepsy, broken leg, depression, bronchial disease (asthma) and arthritis. In addition, at the hearing Mrs Avent said that, in August 2005, she also suffered from dysthymic disorder, brittle bones, peripheral neuropathy, slight brain damage and visual problems. Each condition will be considered in turn to determine if it is assessable under the provisions of Schedule 1B of the Act and, if so, what Impairment Rating is to be given to that condition.

10. If the combined ratings are 20 points or more, I will consider whether during the relevant period Mrs Avent had a continuing inability to work. I will then determine whether Mrs Avent is qualified for DSP in accordance with section 94(1) of the Act.

Epilepsy

11.     Mr Perdon accepted that the epilepsy had been present for many years but submitted that the number and frequency of the attacks rated an assessment of nil points under the Impairment Tables.  In her evidence to the hearing Ms Eshel said that at the time of the original claim, Mrs Avent was receiving treatment for epilepsy.  Ms Eshel said that no significant improvement was expected and the condition was considered to be permanent.  In her Job Capacity Assessment Report (Exhibit R2) Ms Eshel reported the functional impact of the condition as:

…Severity = Loss of efficiency discernable in many everyday activities; client reported that bed-rest is often necessary during an attack, however independence is retained; Duration = Short (lasting more than 5 minutes but less than 30 minutes); Frequency = 5+ days per year.

12.     This description of Mrs Avent’s epilepsy has some similarities to Mrs Avent’s own evidence.  Mrs Avent said:

…if you are around the house and you would have a small one, and because I could normally tell if I was going to have a slight attack.  And you would sort of try and contain yourself and - it is hard to explain, but you do, you do know when you are having a slight one. (Transcript, p16)

13. Ms Eshel’s assessment was based on information provided by Mrs Avent and her treating doctor. In the absence of contrary evidence, I accept Ms Eshel’s assessment of the epilepsy. In accordance with Impairment Table 21 of Schedule 1B of the Act these levels of severity, duration and frequency result in a rating of nil for this condition.

Broken Leg

14.     In her oral evidence and in her report (Exhibit R2) Ms Eshel said that, at the time of the original claim, Mrs Avent presented with a broken leg.  Ms Eshel assessed the condition as temporary, as the limb was not fully healed and stabilised.  In her report Ms Eshel says that Mrs Avent commenced weekly hydrotherapy and physiotherapy in October 2006.  In November 2006 the condition was still not fully treated and stabilised.

15.     In her own evidence Mrs Avent said that her broken leg has still not healed.

16. From the evidence I find that this condition was not fully treated and stabilised at the relevant time. Therefore, the broken leg is not able to be assessed in accordance with Schedule 1B of the Act.

Psychiatric Condition

17.     The term depression was used by Mrs Avent to describe one of her claimed conditions on her original claim form.  The medical evidence before me indicates that Mrs Avent was originally diagnosed as suffering from agoraphobia and panic attacks.  In November 2006 Mrs Avent was diagnosed as suffering claustrophobia and dysthymic disorder.  I will consider them all as part of a psychiatric disorder.  

18.     Mr Perdon submitted that although Mrs Avent claimed the condition in August 2005, she did not see a psychiatrist, Dr Helen Falkiner, until November 2005, and therefore the condition was not diagnosed until then.  Mr Perdon submitted further that the treatment for this condition was still ongoing in 2006 when Mrs Avent was attending weekly counselling sessions for a period of about six months.

19.     In her report, Ms Eshel said that Mrs Avent had been diagnosed with agoraphobia and panic attacks since 1988 but she was first referred to Dr Falkiner in November 2005.  Dr Falkiner indicated that she would see the client again sometime, however, Mrs Avent had not attended further sessions.  Ms Eshel concluded that:

…

Given that the client had not previously consulted a Psychiatrist in order to investigate or treat her reported Agoraphobia AT THE TIME OF THE ORIGINAL CLAIM, the condition was not adequately diagnosed or treated and therefore rated as temporary. (Exhibit R2)

20.In her oral evidence Ms Eshel said:

…When I spoke with Ms Avent in November of last year, it was then she told me that she had been referred to this psychiatrist and had a six month course of counselling, which had then obviously, met the criteria for being adequately treated and stabilised and then her new condition was considered to be permanent. (Transcript, p23).

21.     Mrs Avent did not disagree with the submissions of Mr Perdon and the evidence of Ms Eshel.  On the issue of the psychiatric counselling, Mrs Avent’s evidence was that the counselling went on for six months or longer and took place last year.  This is clearly outside the relevant period.

22.     From the evidence I am satisfied that during the relevant period Mrs Avent’s psychiatric condition was not fully diagnosed, investigated and treated and therefore it was not assessable under the Impairment Tables.

Asthma

23.     In his Statement of Facts and Contentions Mr Perdon submitted that there was no medical evidence of asthma.  Asthma was not a condition considered by Ms Eshel, nor was it a condition considered by Ms Foy in her Job Capacity Assessment Report compiled on 27 September 2006 (Exhibit R1).  Mrs Avent did not refer to the condition in her own evidence.

24.     As there is no medical evidence before me relating to asthma I find that this condition has not been treated, diagnosed and stabilised.  Therefore asthma is not assessable under the Impairment Tables.

Arthritis

25.     Mrs Avent gave evidence that she had arthritis at the time of the original claim and that it had been noted by a Dr Grey.  She said that the only information that would be available would be through Dr Porter.

26.     In her oral evidence, Ms Eshel stated that at the time of the original claim the condition of arthritis was not listed on the Treating Doctor’s Report.  She said that she contacted Dr Porter, who said that at the time he assumed Mrs Avent had arthritis because of her age but he did not send her for investigation.  As a result, Ms Eshel was not able to rate the condition as permanent.  In her written report Ms Eshel also rated the condition as temporary as it was not formally diagnosed, not adequately treated and not stabilised.

27.     Mr Perdon submitted that the condition could not be assigned an impairment rating as it was not fully diagnosed, investigated and treated at the relevant time.

28.     As there is no evidence available to me that the condition was fully diagnosed, investigated and treated, I find that the arthritis was not assessable under the Impairment Tables at the relevant time.

Dysthymic Disorder

29.     In his written report (Exhibit A1) Dr Porter includes dysthymic disorder with the condition of claustrophobia.  Ms Eshel records that, in a telephone discussion, Dr Porter said that the psychiatrist had confirmed Mrs Avent’s condition as claustrophobia and dysthymic disorder.

30.     I have already dealt collectively with these psychiatric disorders above.  I found that at the relevant time they were not assessable as they were not fully diagnosed, investigated and treated.

Brittle Bones

31.     Mrs Avent gave oral evidence that she suffered from brittle bones at the time of her original claim.  From her evidence I understand that this phrase encompasses the conditions of her broken left arm and her vertebral crush fractures.  In her evidence Mrs Avent said that Dr Porter referred her to Dr Prakash Nyagam in regard to these conditions.  Dr Porter reported that the fractured left neck of the humerus occurred in February 2006 and the vertebral crush fracture in 2006 (Exhibit A1).

32.     Mr Perdon put to Mrs Avent that the bone fractures did not happen until 2006 and that, according to Dr Porter’s records, she had first seen Dr Nyagam in May 2006.  Although Mrs Avent thought that these events happened earlier, she conceded that the records must be correct.

33.     Ms Eshel recorded that Mrs Avent fell and fractured her left NOH and several lumbar vertebrae in February 2006 (Exhibit R2), which is outside the relevant period. Therefore, this condition could not be rated at the time of the original claim.  Mrs Avent did not question Ms Eshel on this issue at the hearing.

34.     On the evidence before me, I find that the claimed condition of brittle bones was not diagnosed during the relevant period; and therefore was not assessable under the Impairment Tables.

Peripheral Neuropathy

35.     Dr Porter reported that Mrs Avent’s peripheral neuropathy is a permanent condition, diagnosis confirmed by Dr Prakash Nyagam (consultant physician) – resulting in frequent falls (Exhibit A1).  In an undated report (T24, p78), Dr Porter notes that Dr Nyagam diagnosed the condition in May 2006.  In Exhibit R2 Ms Eshel reported that Dr Porter confirmed to her that Dr Nyagam made the diagnosis in May 2006.

36.     As described in paragraph 31, Mrs Avent thought these events took place earlier than May 2006; but conceded that the records must be correct.

37.     On the evidence before me, I find that Mrs Avent’s condition of peripheral neuropathy was not diagnosed within the relevant period and consequently was not assessable under the Impairment Tables.

Brain Damage

38.     Dr Porter recorded that Mrs Avent suffers from Minimal Brain Damage (Exhibit A1).  This is a permanent condition diagnosis confirmed by Dr Prakash Nyagam.  In Exhibit R2 Ms Eshel records that in her discussions with Dr Porter he confirmed that Mrs Avent was formally diagnosed with minimal brain damage by Dr Nyagam in May 2006; which is outside the relevant period.

39.     On the evidence before me I find that Mrs Avent’s condition of brain damage was not diagnosed within the relevant period and consequently is not assessable under the Impairment Tables.

Visual Problems

40.     In her evidence Mrs Avent said that she has a cataract in her left eye and that she has been having regular tests for years at Integrated Health.

41.     Ms Eshel gave oral evidence that she spoke to Dr Porter about this condition and that he was not able to confirm the condition; nor did he have any information on it.  Mrs Avent did not challenge this evidence.  Mr Perdon submitted that there was no medical evidence in regard to this condition.

42.     I find no evidence to show that Mrs Avent had a diagnosed visual impairment condition in the relevant period.  As a consequence, I find that the condition is not assessable under the Impairment Tables.

CONCLUSION

43. Of all the conditions claimed by Mrs Avent in her original claim, there is only one condition that was fully documented, diagnosed, investigated, treated, stabilised and therefore permanent. That condition is epilepsy. The evidence of Mrs Avent and Ms Eshel suggests that Mrs Avent suffers mild seizures of 10 to15 minutes’ duration, 5 to 6 times a year. Epilepsy is assessable under Impairment Table 21 of Schedule 1B of the Act. Mrs Avent’s epilepsy is assessed at nil impairment points.

44.     I have found that all of the other claimed conditions – the broken leg, psychiatric condition, bronchial disease (asthma), arthritis, dysthymic disorder, brittle bones, peripheral neuropathy, slight brain damage and visual problems ‑ were not fully diagnosed and treated during the relevant period.  As a consequence, these conditions were not assessable under the Impairment Tables for the purposes of Mrs Avent’s original claim for DSP.

45. According to the provisions of section 94(1)(b) of the Act, for Mrs Avent to qualify for DSP her claimed conditions had to be assessed at 20 impairment points or more under the Impairment Tables at the relevant period. I have found that Mrs Avent’s only assessable condition was epilepsy and it attracted nil impairment points. As the impairment was not assessed at 20 points or more, Mrs Avent’s claim fails at this point and I have no need to consider Mrs Avent’s inability to work at that time. As Mrs Avent did not satisfy section 94(1)(b), she cannot satisfy section 94(1). As a consequence, I find that Mrs Avent did not qualify for DSP on the basis of her original claim.

46.     This finding does not affect, in any way, Mrs Avent’s qualification for DSP as a result of the claim she lodged on 19 June 2006.

DECISION

47.The Tribunal affirms the decision under review.

I certify that the forty‑seven [47] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)     Olympia Sarrinikolaou
  Clerk

Date of Hearing:  11 April 2007

Date of Decision:  30 May 2007

Advocate for the applicant:                 Self-represented

Advocate for the respondent:             Mr David Perdon, Centrelink Legal Services