FELICITY BALANCIO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 456
•20 July 2012
[2012] AATA 456
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4987
Re
FELICITY BALANCIO
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Senior Member Dr K S Levy, RFD
Date 20 July 2012 Place Brisbane The Tribunal affirms the decision under review.
........................[Sgd]..................................
Senior Member Dr K S Levy, RFD
Catchwords
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment Tables – Conditions not fully diagnosed, treated and stabilised – Decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth) Schedule 2
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
20 July 2012
INTRODUCTION
Ms Balancio is now 62 years of age and has claimed a disability support pension. She has a number of conditions which, in her application dated 17 May 2011, were listed as:
1) Fractured left wrist;
2) Sore right arm;
3) Bunions on right and left big toes; and
4) Varicose veins right and left legs.
The application was rejected by Centrelink on 3 June 2011. There have been subsequent reviews by an Authorised Review Officer and the Social Security Appeals Tribunal. Both of those points of review have affirmed the original decision. On 21 November 2011, Ms Balancio has appealed that decision to this Tribunal.
issues
The issues to be determined by the Tribunal are whether, Ms Balancio satisfies the following questions as at 17 May 2011 (or within 13 weeks of that date):
1)Does Ms Balancio have an impairment rating of at least 20 points under the impairment tables relevant to s 94 of the Social Security Act 1991 (Cth) (“the Act”); and
2)If yes to Question 1, does she have a “continuing inability to work”?
evidence
At the hearing of the application, Ms Balancio made claim to a number of conditions as follows:
1) left wrist condition
2) bunions on her right and left big toes
3) varicose veins
4) a psychological disorder
5) a back condition
The applicant gave evidence that her left wrist condition commenced in 2003 when she lived in Sydney and had a fall. She had the matter attended to at a hospital in Sydney but could not afford to have it treated. She described a deterioration of that condition. In relation to the varicose veins, she had some concern about having surgery for that condition. She also told the Tribunal of a back condition.
Ms Balancio described also a psychological condition and that she had seen a psychiatrist some years earlier. She described going to the mental health office in Caboolture but said that the staff there laughed at her. She told the Tribunal she would like to see a psychiatrist but has more recently seen a psychologist, Sherylyn Crisp. Ms Crisps’ report, dated 10 February 2012, has been provided but is outside of the period covered by this review.
A Job Capacity Assessor’s report dated 23 May 2011 and completed by psychologist Blaise Deshon, was provided to the Tribunal. Ms Deshon also gave sworn oral evidence. She is a registered psychologist and a university graduate since 2001. Her role as an assessor is to take account of biological, psychological and social capacity and issues of the applicant. She noted that the applicant also had a consultation with a registered nurse, Vanessa Knowles, and spoke to Ms Knowles about her earlier job capacity assessment report.
The Job Capacity Assessor had available to her a number of reports by the applicant’s various treating doctors (general practitioners and specialists), including the letter by her current general practitioner, Dr Kennedy, dated 27 April 2011.
Ms Deshon reported on the claimed conditions. The left wrist condition, the bilateral bunions and bilateral varicose veins are discussed and the Job Capacity Assessor concludes each of those conditions is fully diagnosed but is not fully treated and stabilised. The reported psychological or psychiatric disorder had not previously been reported to her treating doctor, although Ms Deshon said that it could certainly have an effect on her confidence and motivation to return to work. She noted Ms Balancio was not having any treatment at the time she saw her. She concluded that Ms Balancio had a temporary work capacity of 8-14 hours a week but would expect, after treatment, to have a work line capacity after 23 November 2011 of between 15 and 22 hours per week. If her other medical conditions were treated, she saw Ms Balancio as having a future capacity for work within two years of 23-29 hours per week.
Since that time, there are two further reports provided by Dr Kennedy. The first, dated 8 July 2011, refers to deterioration in the condition of bilateral bunions and that she has been put on the waiting list for surgery at the Royal Brisbane and Women’s Hospital. The second report, dated 4 August 2011, reiterates the complaint of bunions and makes further reference to pain and numbness in both knees. The latter is said to be “associated with pains in both thighs and lower back. She is also complaining of imbalance due to the above condition”.
consideration
I have considered all of the evidence provided by the applicant and submitted to the Tribunal by the respondent, including professional reports of X-ray in 2003 and the more recent reports by Dr Kennedy.
The application by Ms Balancio must be determined in accordance with s 94 of the Act. The relevant provisions of s 94 are as follows:
(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:for Impairment Tables see section 23(1) and Schedule 1B.
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
Paragraph 4 of Part 2 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) states that an applicant will be qualified for a payment only where the person satisfies the relevant criteria at the date of application or within a period of 13 weeks from the date of the application. In addition, a person must obtain 20 points under the impairment tables as set out in Schedule 1B of the Act. Under para 4 of that schedule, a rating will only be applied where a condition is “… a fully documented, diagnosed condition which has been investigated, treated and stabilised.” If those criteria are satisfied the condition will be considered permanent. If, in addition, it is more likely than not that the condition will persist with or without reasonable treatment for the foreseeable future, then paragraph 5 of Schedule 1B states “[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”.
In relation to the claims made by Ms Balancio, I find the back condition cannot attract a rating as it does not seem to have been assessed by the JCA and it is not indicated in the medical report as being fully treated and stabilised. It was also not mentioned by Ms Balancio at the time she consulted with psychologist Ms Deshon, the job capacity assessor. Therefore I find no rating can be made of that condition as it is not fully diagnosed, treated and stabilised.
In relation to the left wrist condition, the Job Capacity Assessor has found that that was not fully treated and stabilised as Ms Balancio had not commenced treatment (hand exercises) and further interventions may improve that condition. The job capacity assessor concluded that that condition is not fully treated or stabilised.
In relation to the bunion condition, it is noted that Ms Balancio is awaiting assessment and possible treatment from an orthopaedic surgeon from the Royal Brisbane and Women’s Hospital. The Job Capacity Assessor said that that would occur in two or more years based on her priority. However, more recently, her doctor has indicated the bunions have got worse and she has been advanced in priority order. Nevertheless, the condition was, as at 17 May 2011 or within 13 weeks of that date, still not fully treated or stabilised.
For the treatment of the varicose veins condition, Ms Balancio has previously refused surgery. The job capacity assessor found that the applicant would benefit from pursuing some alternative options in relation to that condition and therefore it is not fully diagnosed, treated or stabilised.
In relation to the psychological condition of anxiety or depression, the Job Capacity Assessor recommended to the applicant that she speak with her general practitioner about that matter. She has since been referred to a psychologist but that condition is not diagnosed, treated or stabilised either at the date of the application or within 13 weeks of that date.
In applying the evidence to s 94 of the Act, I find none of the conditions, at the date of the application or within 13 weeks of that date, were such that they could be allocated an impairment rating. Therefore, the only rating that can be allocated at this time is 0 points. As she does not have 20 impairment points, she therefore does not satisfy s 94(1) of the Act. As that criterion is not met, she cannot qualify for DSP and, consequently, it is unnecessary to consider whether she has a continuing inability to work.
As the applicant fails to satisfy s 94(1) of the Act as at 17 May 2011 or within 13 weeks of that date, her application is unsuccessful.
decision
The decision under review is therefore affirmed.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD. .........................[Sgd]............................
Associate
Dated 20 July 2012
Date of hearing 30 May 2012 Applicant In person Advocate for the Respondent Rick McQuinlan
0
0
0