DEANA TURNBULL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 921

[2012] AATA 921  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2041
Re	DEANA TURNBULL
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	24 December 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical and psychiatric impairments – Impairment Tables – Not fully diagnosed, treated and stabilised – Conditions not permanent – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

Mr R G Kenny, Senior Member

24 December 2012

BACKGROUND

1. On 17 May 2011, Ms Deana Turnbull made a claim for the disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 15 June 2011. On 23 August 2011, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal on 15 March 2012.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Ms Turnbull meets the age and residency requirements of that provision and has a psychiatric impairment and physical impairment in relation to her lumbar and cervical spine and in relation to a gastrointestinal condition. The remaining requirements in s 94 of the Act, and the matters in issue, are:

   ·whether Ms Turnbull has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

   ·whether she has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In Ms Turnbull's case, that period is from 17 May 2011 until 16 August 2011 (the relevant period).

   [1] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4. The Introduction to Schedule 1B of the Act provides guidance in the application of the various Tables which it contains. Part of that introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it is a ”fully documented, diagnosed condition which has been investigated, treated and stabilised”.[2] Ms Brooke Carruthers, for the respondent, submitted that, on the evidence available in the relevant period, none of the conditions identified above were fully diagnosed, treated and stabilised such that an impairment rating could be allocated to them. She also submitted that Ms Turnbull did not satisfy the incapacity for work requirements of s 94(2) of the Act.

   [2] See para 4 of the Introduction to the Impairment Tables in Sch 1B of the Act.

5. Ms Turnbull's submission was that she is now severely incapacitated from her health problems and is not capable of engaging in or training for employment. She described continuing pain in her spine and a need to control her diet for her gastrointestinal difficulties. Her main concern was her mental state, in particular her loss of memory and failure to cope with daily activities. She advised that she had been diagnosed with posttraumatic stress disorder and bipolar affective disorder and was awaiting admission to hospital in relation to her mental health. She submitted that she meets the qualification criteria for the disability support pension.

   EVIDENCE

6. Until recently, Ms Turnbull lived in Toowoomba and received medical treatment at the Carbal Medical Centre. There, she has consulted several doctors including Dr Kathryn James, Dr Stephanie Trust and Dr Stuart Glastonbury. Dr James and Dr Trust completed reports dated 9 May 2011[3] and 19 May 2011,[4] respectively. Dr James made a “presumptive”, rather than a “confirmed”, diagnosis of lumbar and cervical pain which she expected to persist for 3-24 months and which required treatment for pain relief and an MRI scan. Dr Trust diagnosed “lumbosacral: chronic lower back pain-disc bulge with degenerative facet joint changes L3-S1”. She noted that planned treatment comprised “physiotherapy, psychotherapy, medications, specialist review, imaging, regular GP reviews”. Those reports are not consistent in their references to musculoskeletal conditions. Also, they do not refer to psychiatric or gastroenterological conditions. Ms Turnbull's various medical reports make no reference to treatment of any psychiatric condition during the relevant period although there are references to anxiety and depression in reports which pre-date the relevant period. There is also evidence of a diagnosis of posttraumatic stress disorder and bipolar affective disorder by psychiatrist Dr Sodabeh Abazari in November 2011.[5] This is after the relevant period and it is noted that Ms Turnbull is awaiting admission to hospital in relation to her mental health. However, it is not disputed that, during the relevant period, Ms Turnbull underwent investigations for a gastroenterological condition.

   [3] See Exhibit 1, T-document 9, pp. 91-98.

   [4] See Exhibit 1, T-document 10, pp. 99-106.

   [5] See Exhibit 2, pp. 148-151.

7. An MRI of Ms Turnbull's head was carried out on 13 May 2011 and reported on by Dr A Lu as being “normal”.[6]

   [6] See Exhibit 2, p. 135.

8. In relation to Ms Turnbull's gastroenterological condition, an endoscopy was carried out at the Toowoomba Hospital on 17 June 2011 at the request of Dr Trust because of nausea, vomiting, heartburn, dysphagia and weight loss. The associated report described chronic gastritis, a small hiatus hernia and normal stomach and duodenum.[7] On 21 August 2012, Dr Glastonbury referred Ms Turnbull for specialist review by Dr Robyn Nagel for her continuing symptoms.[8] There is no evidence that this has been undertaken.

   [7] See Exhibit 2, pp. 137-141.

   [8] See Exhibit 2, pp. 193-194.

9. On 21 August 2012, Dr Glastonbury referred Ms Turnbull to the Toowoomba Hospital for specialist opinion and management for her spinal conditions.[9] On 23 August 2012, Dr Glastonbury was advised that Ms Turnbull had been placed on a specialist waiting list for her orthopaedic conditions. On 28 August 2012, the Toowoomba Hospital advised that she had been accepted for an assessment at the Orthopaedic Physiotherapy Screening Clinic on 20 September 2012.[10] Ms Turnbull said that she attended the physiotherapy session but did not return because the procedures had left her bed-ridden for some days.

   [9] See Exhibit 2, p. 191.

   [10] See Exhibit 2, pp. 194-195.

10. A Job Capacity Assessment (JCA) report was completed by “GW”, a registered psychologist, and “EK”, a registered nurse, on 10 June 2011.[11] They described Ms Turnbull's musculoskeletal disorder as permanent, in that it was fully diagnosed, but their opinion was that it was not fully treated or stabilised. They noted future planned treatment as described by Dr Trust and Dr James and the reference to the prospect of improvement within the following 24 months. GW and EK described Ms Turnbull's gastroenterological and psychiatric conditions as being temporary on the basis that they were not fully diagnosed, treated or stabilised. Again, they noted the planned treatment for those conditions. They concluded that there were no conditions from which Ms Turnbull suffered that warranted an impairment rating under the Tables in Schedule 1B of the Act. They accepted that Ms Turnbull had a reduced work capacity but that, nonetheless, she had a baseline work capacity of 8 to 14 hours per week and a future work capacity within two years, with intervention, of 15 to 22 hours per week.

    [11] See Exhibit 1, T-document 11, pp. 107-113.

    CONSIDERATION

11. I am satisfied that the JCA report correctly summarised the nature and effect of Ms Turnbull's musculoskeletal, gastroenterological and psychiatric conditions in the relevant period. Even now, Ms Turnbull is awaiting further specialist investigation into her musculoskeletal and gastroenterological conditions and I am satisfied that they were not fully diagnosed, treated and stabilised during that time. While references to anxiety and depression appear in her medical files from before her disability support pension claim, there is no record of treatment for these during the relevant period and the further diagnosis of psychiatric conditions was made some three months after the relevant period and she awaits admission to hospital in relation to these. Again, I am satisfied that her psychiatric status was not fully diagnosed, treated and stabilised during the relevant period. It follows that none of the conditions can be regarded as permanent, as that term is used in the Tables in Schedule 1B of the Act. Accordingly, no impairment rating may be allocated to the conditions and the threshold level of 20 points as provided for in s 94(1)(b) of the Act was not met by Ms Turnbull during the relevant period and she is not qualified for disability support pension.

    DECISION

12. The Tribunal affirms the decision under review.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 24 December 2012 

Date of hearing	18 December 2012
Applicant	In person
Solicitors for the Respondent	Ms Brooke Carruthers