Cynthia Linard and Secretary, Department of Social Services
[2013] AATA 871
[2013] AATA 871
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3566
Re
Cynthia Linard
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member
Date 6 December 2013 Place Melbourne The Tribunal affirms the decision under review.
........................[sgd]................................................
Dr Kerry Breen, Member
SOCIAL SECURITY - disability support pension – ulcerative colitis – migraine - gastritis - conditions not fully treated and stabilised and permanent - decision affirmed
Legislation
Social Security Act 1991 s 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Kerry Breen, Member
6 December 2013
Ms Cynthia Linard applied to Centrelink for a disability support pension (DSP) on 12 January 2012. Centrelink is the service delivery agency for the Department of Social Services (previously Department of Families, Housing, Community Services and Indigenous Affairs). Ms Linard’s application was supported by a Medical Report DSP (MRD) completed by Dr Iskra Aleksova dated 11 January 2012. The MRD gave the diagnoses of ulcerative colitis, migraine and chronic gastritis.
On 24 January 2012 Ms Linard attended a job capacity assessment. On 2 February 2012 a Centrelink officer rejected Ms Linard’s DSP claim. Ms Linard requested a review of the Centrelink decision. On 20 March 2012 an authorised review officer (ARO) affirmed the original decision.
Ms Linard then applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT affirmed the ARO’s decision on 1 June 2012. On 20 August 2012 Ms Linard applied to this Tribunal for a review of the SSAT decision.
THE ISSUES
The issues to be determined are:
•does Ms Linard have a physical, intellectual or psychiatric impairment;
•what impairment ratings do her conditions attract; and
•if the total impairment rating is 20 points or more, what is the impact of these conditions on her capacity to work.
The relevant assessment period is from 12 January 2012 and the subsequent 13 weeks.
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables determined by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) made pursuant to s 26(1) of the Act. The Determination came into effect from 1 January 2012 and is relevant to this application.
Section 94(1) provides that:
(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; …
CONTENTIONS
Ms Linard, who was unrepresented, contended that her health problems make her too unwell to work and that she should be granted DSP.
The respondent accepted that Ms Linard suffers from a number of medical conditions but contended that these conditions cannot be covered under the Act as the conditions, as at January 2012, had not been fully treated and stabilised. Hence, the conditions could not be deemed to be permanent.
EVIDENCE
MS CYNTHIA LINARD
Ms Linard gave oral evidence to the Tribunal. She described her health problems as including long standing ulcerative colitis, long standing recurrent headaches recently diagnosed as migraine, and gastritis.
Ms Linard stated that she was 11 years of age when ulcerative colitis was first diagnosed. She was living in Bendigo at the time and was hospitalised in Bendigo. She recalled symptoms of feeling very unwell, fainting, vomiting and rectal bleeding. She was in hospital for a month and during that time she had a colonoscopy and blood transfusions. She came under the care of gastroenterologist, Dr Michael Weetch.
Ms Linard stated that she was given treatment which included a high dose of prednisolone and Salazopyrin, and later received Imuran tablets and Salofalk enemas. She stated that since then she has never been completely free of symptoms of the colitis. At various times, her symptoms have included abdominal pain, diarrhoea with urgency and incontinence, and rectal bleeding. She stated that she had never had a day free of diarrhoea.
Ms Linard stated that she completed Year 12 at school. She estimated that during her last two years at school, she missed a total of around two months because of her illness. At that time she recalled symptoms including tiredness, lack of energy, stomach pains, diarrhoea, rectal bleeding, incontinence accidents at school and while going to and from school and depression.
Ms Linard stated that shortly after leaving school, she decided to try to deal with her ill health by going off on all medications, as they had not helped her, using diet alone to regulate her health. She did this for 12 to 18 months. During this period she found part-time work as a shop assistant. She described a sympathetic employer who accepted her missing work because of her ill health. Eventually her rectal bleeding became a lot worse and at around the age of 21 years she returned to the care of a gastroenterologist, Dr Leslie Fisher, also in Bendigo. Ms Linard was living in Melbourne and returned to Bendigo every two months to see Dr Fisher. She was again taking prednisolone and Imuran but was never free of symptoms of bleeding, diarrhoea and abdominal pain. She stated that she was taking up to 120 mg of prednisolone daily.
Ms Linard stated that she returned to live in Bendigo for some time but by 2009 had moved back to Melbourne to start a hair dresser training course. At around this time she became very ill with colitis, having diarrhoea more than 10 times per day with increased rectal bleeding. This led to her being hospitalised at St Vincent’s Hospital. She thought that this happened in April 2009. At the end of the hospital stay, she noticed some lessening of the bleeding. After that admission to hospital she continued under the care of Dr Fisher in Bendigo, seeing him every six to eight weeks. She stated that Dr Fisher said he could do nothing more for her. She was advised that surgery should be considered but she was very reluctant to have surgery.
Ms Linard stated that she again tried to manage her condition without drugs but this failed. She was again living in Melbourne and she saw a general practitioner, Dr Iskra Aleksova who referred her to see a gastroenterologist, Dr Christopher Leung, at the Austin Hospital. The first visit to Dr Leung was in October or November 2011. Dr Leung prescribed prednisolone and Imuran, and later 6MP. She stated that she was seeing Dr Leung initially every two to three weeks and then every four to six weeks. She noted a slight improvement in her diarrhoea.
Ms Linard stated that following a colonoscopy examination in May or June 2012, she was telephoned and advised to admit herself to the Austin Hospital because a bug had been found in her bowel. In hospital, her condition did not improve but worsened and after five weeks she underwent surgery. The surgery involved removal of her colon but not her rectum, and the creation of an ileostomy. She was discharged six days after the surgery.
Since that time, Ms Linard has remained unwell, troubled by bowel blockages, nausea, tiredness and failure to gain weight. She continues to have bleeding from the rectum and is being treated with Predsol enemas and another medication. She sees colorectal surgeon, Ms Adele Burgess every six weeks and Dr Leung every four to six weeks.
Ms Linard stated that she has suffered from headaches since she was a child and that these have been diagnosed as migraines. She said that the headaches became very severe in or around March 2011 and that Dr Aleksova referred her to neurologist, Dr Graeme Symington. She first attended Dr Symington in April 2011. When the migraine attacks are severe, she may spend three to four days at home in bed in a darkened room. In recent months, the episodes have improved so that she is not so bad and the headaches are not so many. She is taking two medications for migraine and the treatment makes her feel tired.
Ms Linard stated that she was hospitalised for migraine in November 2011 when she had an attack that lasted three weeks. She described needing to be in a darkened room, being unable to eat, unable to move and having a feeling of her head being in a vice. She was experiencing an attack once a week and has a dull throbbing headache on a daily basis. From around April and May 2012, there has been a reduction in the frequency and severity of the attacks, with the attacks now coming around once every three weeks.
Ms Linard stated that in June or July 2011 she first experienced pain high in the abdomen after eating. Her general practitioner referred her for a gastroscopy, performed by Dr Leung, and she was told she had gastritis. She stated that she was prescribed a stronger form of Nexium but that she still experiences similar symptoms.
Ms Linard stated that she commenced training in Melbourne to become a hairdresser around March 2009. This involved attending TAFE classes all day, one day a week and working as an apprentice hairdresser. She stated that she missed a fair bit of the classroom work but could make this up on other days. In some weeks, she was able to attend the hairdressing work for eight hours per day for four days of the week. This is a two-year course but she still has eight months to complete. She has not undertaken any training since August 2011 because she has felt too unwell. Prior to this she estimated that she was able to attend the workplace about 80 per cent of the scheduled time.
MEDICAL EVIDENCE
The medical and other written evidence available initially to the Tribunal included the following:
·a Centrelink Medical Certificate completed by Dr G Guarrella dated 12 December 2011;
·a Centrelink Medical Report completed by Dr I Aleksova dated 11 January 2012;
·a report of a Job Capacity Assessment undertaken on 24 January 2012;
·a Centrelink Medical Report completed by Dr C Leung dated 16 March 2012;
·a brief letter signed by Dr Aleksova dated 8 October 2012; and
·a document created by Paula Green of the Centrelink Health Professional Advisory Unit dated 25 January 2012.
The Tribunal adjourned the hearing pending receipt of additional medical reports. A report was received from Dr Leslie Fisher dated 6 June 2013. In response to subpoenas, the Tribunal received the complete medical records of Ms Linard from the Austin Hospital and the medical records of Ms Linard from neurologist, Dr G Symington.
The Centrelink Medical Certificate of Dr Guarrella dated 12 December 2011 listed the medical conditions of migraine and abdominal pain – under investigation. Dr Guarrella noted that symptoms were severe headache, nausea and epigastric pain –aggravated by food.
The Centrelink Medical Report of Dr Aleksova dated 11 January 2012 gave the diagnosis of condition 1 as ulcerative colitis and listed under the heading History the symptoms of abdo pain, diarrhoea, blood in the stool. Current treatment was described as none at present, awaits further assessment. In response to the question of the current impact of this condition on the patient’s ability to function, Dr Aleksova ticked the box expected to persist for more than 24 months and for the condition to fluctuate during the same time period.
In the same medical report, Dr Aleksova diagnosed condition 2 as migraine of onset in March 2011. History was stated as severe headache affecting her vision, nausea, vomiting. Current treatment was listed as Topamax and future/planned treatment as observe on Topamax. A third condition of chronic gastritis was given under the heading of other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function.
The Centrelink Medical Report of Dr Leung dated 16 March 2012 diagnosed condition 1 as ULCERATIVE COLITIS, MIGRAINES. History was given as flares of UC 2009 2012 requiring pred (interpreted as prednisolone). Current symptoms were listed as diarrhoea blood mucus. Condition 2 was listed as MIGRAINES with a note added that this was managed by Dr Symington. A third condition of gastritis was listed under the heading of other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function.
The letter of Dr Aleksova dated 8 October 2012 stated in part that her condition of ulcerative colitis:
... is long lasting, chronic with frequent exacerbations and remissions. …. When she applied for disability pension in Jan 2012 her condition was stabilized with multiple medications. She had an (sic) ongoing symptoms that were controlable but had precluded her from meaningful employment.
A Job Capacity Assessment Report was completed by assessor Alistair Davies, qualified social worker, on 24 January 2012. Mr Davies recorded that Ms Linard informed him that she had not seen a gastroenterologist for over 12 months and that her treating doctor has referred her to a new one at the Austin Hospital on 27/1/12. The report also noted that Ms Linard had been hospitalised for four days in November 2011 because of a severe migraine episode.
The document created by Paula Green of the Centrelink Health Professional Advisory Unit dated 25 January 2012 outlines advice Ms Green gave to the job capacity assessor, Alistair Davies. The report is relevant in so far as it contains Ms Green’s record of a telephone discussion she had with Dr Aleksova on 25 January 2012. Ms Green noted that Dr Aleksova stated that Ms Linard was relatively new to her practice and had seen her for assessment of her migraines. Dr Aleksova was reported as informing Ms Green that she had referred Ms Linard to a gastroenterologist for a complete new work up and review of her condition and had referred her to a neurologist to assess her headaches. It was also reported that Dr Aleksova was expecting a further report from the neurologist.
A medical report dated 6 June 2013 was received from Dr Leslie Fisher, gastroenterologist from Bendigo. Dr Fisher wrote that Ms Linard ... was initially diagnosed with ulcerative colitis at the age of 11 and that he had been involved in her care from January 2000 to June 2005. He attached a copy of a discharge summary from St Vincent’s Hospital Melbourne relating to the admission of Ms Linard to that hospital from 14 April 2009 to 17 April 2009 with an exacerbation of ulcerative colitis.
The medical records of the Austin Hospital noted an attendance at the Emergency Department on 23 November 2011 because of sudden onset of abdominal pain and severe headache. The record of attendance included a history taken by Dr Sern Wei Yeoh in regard to the colitis that Ms Linard has not been on medication for > 18 months and that she has not had flares for that time.
From the Emergency Department, Ms Linard was referred to the hospital’s inflammatory bowel disease outpatient clinic with an appointment for early January 2012. In June 2012, Ms Linard was advised to admit herself to the Austin Hospital because tests had shown she had a cytomegalovirus infection of the bowel superimposed on her colitis. Her colitis did not improve with medical treatment and she accepted advice to undergo surgery. She had a colectomy with construction of an ileostomy on 18 July 2012. The medical records show that in the early months after the surgery she was unwell because of ongoing inflammation in her retained rectum and because of problems with the ileostomy.
Within the records of the Austin Hospital there is a copy of a report of a gastroscopy undertaken by Dr C Leung at the Ivanhoe Endoscopy Centre on 13 December 2011. The report noted findings of gastro-oesophageal reflux disease and mild antral gastritis.
At Ms Linard’s attendance at the Austin Hospital Emergency Department on 23 November 2011, a history was recorded of the onset of her headaches in March 2011.
Dr Symington’s medical records of Ms Linard noted that she first attended him on 4 August 2011. Her referral letter from her general practitioner noted severe nocturnal headaches since Easter. Dr Symington confirmed a diagnosis of migraine and changed her treatment from Sandomigran to Topamax. On 20 December 2011 he noted that her headaches were under excellent control. However, in May 2012 he noted that her headaches were much worse and linked the deterioration to a flare up of her colitis. He wrote in a letter dated 20 September 2012 to her general practitioner that until May this year she was almost totally free of migraine.
CONSIDERATION OF THE ISSUES
Does Ms Linard have any physical, intellectual or psychiatric impairments?
The evidence from Dr Fisher and from the records of the Austin Hospital makes it clear that Ms Linard suffers from ulcerative colitis. The records of neurologist Dr Symington confirm that Ms Linard suffers from migraine. A gastroscopy report of Dr Leung noted mild antral gastritis but also made a finding of gastro-oesophageal reflux disease. Ms Linard understands that she is being treated for gastritis and both Dr Aleksova and Dr Leung have written certificates to that effect. The Tribunal accepts the diagnosis of gastritis but notes that gastro-oesophageal reflux disease may also explain Ms Linard’s upper abdominal pain.
Are any of Ms Linard’s conditions permanent?
In order to make an impairment rating, it is first necessary to determine whether Ms Linard’s diagnosed conditions have been fully treated and stabilised, and whether any associated impairment is likely to last more than 24 months. If so, the condition can be deemed as permanent for the purposes of the Act. Each diagnosed condition is examined separately in the following paragraphs.
Ulcerative colitis
At the time of Ms Linard’s application for DSP on 12 January 2012, her evidence, supported by the available medical evidence, was that she had only very recently sought specialist treatment for her longstanding illness of ulcerative colitis. It is unclear to the Tribunal how much this chronic illness had troubled Ms Linard throughout 2010 and 2011. She gave evidence that she had decided during this time to try to manage her symptoms without seeking medical help.
When seen at the Austin Hospital Emergency Department on 23 November 2011, a doctor recorded that Ms Linard had had no flare ups of the colitis during the previous 18 months. In his medical report dated 16 March 2012, gastroenterologist Dr Leung noted Flares of UC 2009 2012 Requiring pred (i.e. prednisolone therapy). He reported that the future impact of this condition was unknown and that its effects over the next 2 years were uncertain and that it depends upon response to treatment.
Unfortunately, Ms Linard’s colitis did not respond to medication and she needed surgery which was performed in July 2012. This took place some four months after the end of the assessment period for her DSP application.
Based on the medical reports, the Tribunal formed the view that at the time of her DSP application, the condition of ulcerative colitis had not been fully treated and stabilised.
Migraine
The Tribunal accepts that Ms Linard’s condition of migraine troubled her significantly in the months before her DSP application. At the time of her application, she had been attending Dr Symington, neurologist, since August 2011. Dr Symington’s records show that between her first visit in August 2011 and September 2012 he needed to alter her medications on two occasions. In November 2011, Ms Linard was hospitalised for four days with a severe attack of migraine. At her visit in December 2011, less than a month before Ms Linard applied for DSP, he noted that her headaches were under excellent control. On 20 September 2012 Dr Symington reported that until May this year she was almost totally free of migraine. In the Tribunal’s view, the fluctuation in the course of Ms Linard’s migraine and the need for changes of medication are not consistent with the requirement that the condition be fully stabilised, nor with the requirement that any associated impairment be likely to persist for the next two years.
Upper abdominal pain
As discussed above in paragraph 37, it is unclear to the Tribunal what the cause of Ms Linard’s upper abdominal pain is. As Dr Aleksova and Dr Leung certified a diagnosis of chronic gastritis and gastritis respectively, the Tribunal adopts the diagnosis of gastritis for the purposes of the DSP application. Both doctors regarded the condition as one that was generally well managed and caused minimal or limited impact on Ms Linard’s ability to function. Accordingly, the Tribunal is satisfied that at the time of the DSP application this condition was fully treated and stabilised.
What impairment ratings do her conditions attract?
Under Section 94(1) of the Act, points under the Impairment Tables can only be allocated if a condition is deemed to be permanent. Section 6 of the Impairment Tables relevantly provides:
6 Applying the Tables
…
Impairment ratings
3An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(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
4For 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
…
(c)the condition has been fully stabilised; and
…
(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
5In 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
6For 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.
…
(original emphasis)
In the view of the Tribunal only the condition of gastritis has been fully treated and stabilised and likely to persist for 24 months and therefore meets the above requirements. The relevant Table for making an impairment rating is Table 10 – Digestive and Reproductive Function. Under this table, Ms Linard’s condition fits best with the descriptor of There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition (original emphasis) and accordingly the impairment rating is 0 points.
Does Ms Linard have a continuing inability to work?
As none of the conditions from which Ms Linard suffers meet the requirements of s 94(1)(b) of the Act, it is not necessary for the Tribunal to examine this question.
ADDITIONAL REMARKS
When Ms Linard gave her oral evidence, it became clear to the Tribunal that shortly after the end of the 13week assessment period of the DSP application made on 12 January 2012, Ms Linard’s longstanding condition of ulcerative colitis deteriorated markedly. This deterioration led to her decision to finally accept major surgery. Ms Linard’s evidence was that recovery from surgery was very prolonged and that further surgery was planned. Her evidence was confirmed when the Tribunal subpoenaed and examined the records of the Austin Hospital.
In addition, it was also clear to the Tribunal that after the end of the assessment period, Ms Linard’s migraine attacks became more severe and more frequent. This was also confirmed when the records of Dr Symington were subpoenaed and examined.
As was explained to Ms Linard, the task of the Tribunal was to consider her state of health between 12 January 2012 and 12 April 2012. Under the legislation the Tribunal was obliged to consider only the medical evidence available at that time. It was also explained that the evidence of subsequent deterioration of her health could not be used by the Tribunal in hearing this matter but was likely to be highly relevant if she was to make a new application for DSP.
The Tribunal was impressed by what appeared to be considerable stoicism in the manner in which Ms Linard had coped with her longstanding illness. The Tribunal was concerned that her stoicism may have led to her doctors underestimating the degree of disability Ms Linard had experienced during 2009, 2010 and up until mid-2011 when her health clearly changed and when she again sought medical advice from a general practitioner. For this reason, the hearing was adjourned on two occasions to enable the Tribunal to access relevant medical records. However, those records did not contain any additional information to support Ms Linard’s DSP application as at 12 January 2012.
CONCLUSIONS
The Tribunal is satisfied that Ms Linard suffers from the conditions of ulcerative colitis, migraine and gastritis. Thus she meets the requirements of s 94(1)(a) of the Act.
The Tribunal is satisfied that, with the exception of gastritis, at the time of her application for DSP, Ms Linard’s conditions of ulcerative colitis and migraine had not been fully treated and stabilised, and therefore did not meet the requirements of s 94(1)(b) of the Act and the Impairment Tables.
Applying Table 10 of the Impairment Tables, the Tribunal finds that Ms Linard’s condition of gastritis attracts an impairment rating of 0 points. The condition therefore does not meet the requirements of s 94(1)(b) of the Act.
As the requirements of s 94(1)(b) of the Act are not met, it follows that the Tribunal does not need to examine whether Ms Linard had a continuing inability to work under s 94(1)(c) of the Act.
As Ms Linard does not meet all the requirements of s 94 of the Act, she was not entitled to DSP as at 12 January 2012.
DECISION
The Tribunal affirms the decision under review. Ms Linard was not qualified for Disability Support Pension as at 12 January 2012.
I certify that the preceding 57 (fifty‑seven) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member ..........................[sgd]..............................................
Associate
Dated 6 December 2013
Dates of hearing
13 March, 17 April, 3 September, 20 November 2013
Date final submissions received 10 October 2013 Applicant In person Advocate for the Respondent Mr Tim Noonan, Program Litigation &
Review Branch, Department of Human Services
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