Gnjatovic and Secretary, Department of Social Services (Social services second review)

[2015] AATA 981

Gnjatovic and Secretary, Department of Social Services (Social services second review) [2015] AATA 981 (17 December 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6670
Re	Neda Gnjatovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	17 December 2015
Place	Sydney

The decision under review is affirmed.

..........................[sgd]..............................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – pain – spinal function – lower limb function mental health function – digestive function – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

17 December 2015

1. Mrs Gnjatovic is currently 59 years old and on 6 June 2014 she lodged a claim for Disability Support Pension (“DSP”) on the basis that she suffered several medical conditions which were having an impact on her ability to function.

2. Mrs Gnjatovic’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 because her impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 2 December 2014 the Social Security Appeals Tribunal (“SSAT”) found that Mrs Gnjatovic’s total impairment rating was 5 points under Impairment Table 10 so that she did not satisfy s 94(1)(b) of the Act.

4. In these proceedings Mrs Gnjatovic seeks review of the SSAT decision.

5. At the hearing Mrs Gnjatovic was self–represented and assisted by an interpreter of the Serbian language.

   ISSUES

6. In order to qualify for DSP, Mrs Gnjatovic must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 6 June 2014  and 5 September 2014 (the claim period).

7. Section 94(1) of the Act provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.

8. The Respondent concedes and the Tribunal accepts that Ms Gnjatovic suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a) a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

11. The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

12. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

13. In a Centrelink Medical Report dated 23 May 2014 Dr Tomasevic, GP, listed “osteoarthritis & chronic pains in neck, entire back, left upper limb, right shoulder, both lower limbs” and “anxiety & depression” as medical conditions  that have a significant impact on Mrs Gnjatovic’s ability to function.

14. I note that in the Impairment Determination there is no Table dealing specifically with pain and Rule 6(9)(b) provides that “chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected”.

15. Therefore, the relevant impairments to be considered with respect to Mrs Gnjatovic’s “chronic pain” are spinal function, upper limb function and lower limb function.

16. Dr Tomasevic also lists “dyslipidaemia, gastritis multinodular goitre, gastroeosophageal reflux” as medical conditions that are generally well managed and that cause minimal or limited impact on ability to function.

17. The definitive issues for the Tribunal to consider are whether, during the claim period, the conditions noted above caused Ms Gnjatovic to suffer an impairment of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work. 

    Spinal function

18. Mrs Gnjatovic told the Tribunal that she suffers back pain all time and that the worst pain is “in the middle of the back but generally in the whole of the back” and takes Panadol or Panadol/Osteo to relieve her symptoms.

19. In a letter dated 21 April 2008 Dr Habib, General Surgeon, noted that Mrs Gnjatovic had suffered from neck and back pain for a number of years and made a diagnosis of “degenerative cervical disc disease” and “lumbar  degenerative changes”. The diagnosis is supported by x-rays performed in 1999 which showed some degenerative changes in the cervical, thoracic and lumbar spine.

20. In a very brief letter dated 21 July 2014 Dr Habid noted that Mrs Gnjatovic complained of “widespread aches and pains including neck, thoraco lumbar spine, both upper and lower limbs” and stated that “examination failed to show any obvious joint abnormality or synovitis”.

21. Dr Habib recommended a whole body nuclear scan and stated he would review Mrs Gnjatovic after the scan.  There is no further correspondence from Dr Habib before the Tribunal.

22. A whole body bone scan performed on the 24 July 2014 is reported as showing “no hyperaemia in the vertebral column” and “no area of increased vascularity in the vertebral column”.

23. Dr  P Tomasevic provided two reports dated 23 May 2014 and 22 July 2014, which are essentially identical,  in which he stated that Mrs Gnjatovic suffers “chronic pains in neck, entire back, left upper limb, right shoulder, both lower limbs” and  noted “July 2012 X-ray C1-S5 degenerative changes”.

24. Dr Tomasevic described the impact on ability to function as “reduced mobility, unable to lift heavy objects, unable to sit or stand for long periods, reduced endurance, reduced dexterity” but provides no other details and does not address the relative contribution of the different sources of the pain.

25. In a letter dated 23 July 2014, Mr V Tomasevic, physiotherapist, noted that Mrs Gnjatovic had a long history of “constant neck, shoulder, mid back pain, discomfort and ache” and over the past few months “has difficulty standing, sitting and walking for long periods due to increasing back pain”.

26. On observation he noted that Mrs Gnjatovic

    had poor postural awareness and flattened thoracic spine, she felt pain and reduced ROM in her neck with left side flexion and left rotation. There was significantly reduced thoracic range of motion especially on her right which appeared to increase muscle tension and pressure on her upper and lower back.

27. Mr Tomasevic recommends a treatment plan that “will focus on addressing her symptoms”.

28. In a Job Capacity Assessment (JCA) report submitted on 29 August 2014  the assessor noted, inter alia, the following:

    client reported independence in self-care…..assistance in housework…..confirmed the ability to complete some household chores with pacing such as changing bed sheets and washing/hanging clothes; she stated that vacuuming results in increased pain experiences…..client was observed to sit for 35 minutes and transfer independently …client reported a walking tolerance of 10-15 minutes, standing 5 minutes (limited by thoracic spinal pain) and a lifting /carrying tolerance of 2-3kg….stated she can complete light shopping requirements independently.

29. Mrs Gnjatovic told the Tribunal that she does most of the household chores, with some assistance from her son, because her husband also has a severe back and arm condition.

    Consideration

30. The medical evidence in respect of Mrs Gnjatovic’s “chronic back pain” is, in my view, somewhat limited and does not provide a satisfactory explanation for the claimed extent and severity of Mrs Gnjatovic’s symptoms.

31. I accept that Mrs Gnjatovic has degenerative changes in her spine, however, the relevance of these changes, with respect to her global symptoms, is not clear.

32. The limited evidence, in my view, tends to suggests that during claim period Mrs Gnjatovic “chronic back pain” was not fully treated and fully stabilised, however, on balance I accept the condition was permanent for the purposes of the Impairment Determination.

33. The corroborative evidence with respect to the functional impact of the “chronic back pain” on Mrs Gnjatovic’s activities involving spinal function is also somewhat limited and, in my view, is consistent with a rating of only five points under Impairment Table 4.

    Lower limb function

34. Mrs Gnjatovic claims she suffers chronic pain in both lower limbs. 

35. In his report of 23 May 2014, Dr Tomasevic noted “October 2009 Xray right knee degenerative changes” but no other relevant information with respect to the lower limbs.

36. In a letter dated 22 January 2010 Dr White, consultant rheumatologist, states, inter alia, the following:

    Thank you for referring this fifty-three year old lady with lower limb pain…at first the pain was mainly localised to her right knee. Her left subsequently became affected…the pain has tended to spread from both to her legs, ankles and feet …she described milder aching in her wrists and hands…

    On examination, she didn’t have difficulty arising from a chair and walked without a limp…mild bony enlargement characterised the DIP joints of her fingers and first CMC joints. There was no synovial swelling in her wrists or hands. There were no effusions in the knees. Movements of both were normal in range although accompanied by crepitus. There was no ligamentous instability. Examination of her hips, ankles and feet was unremarkable…

    X-rays of her right knee were normal.

    Although I agree that Mrs Gnjatovic has primary generalised OA her symptomatology seems disproportionate to the objective findings [emphasis added].

37. The bone scan performed on 24 July 2014 is reported as showing mildly active arthritic changes in “both ankles and the intertarsal joints of both feet” and “moderately active arthritic change in the “proximal left tibio-fibular”.

38. The limited medical evidence before the Tribunal supports a conclusion that Mrs Gnjatovic has mild arthritic changes in her lower limbs but does not, in my view, provide a satisfactory explanation for the extent and severity of her claimed symptoms.

39. Accordingly, I am not satisfied that, during the claim period, the cause of  Mrs Gnjatovic chronic lower limb pain has been fully diagnosed, fully treated or fully stabilised so that a rating under the Impairment Tables cannot be applied.

    Upper Limb function

40. Mrs Gnjatovic claims she suffers pain in her “left upper limb and right shoulder”.  

41. The report of the whole body scan of 24 July 2014 showed “mildly active arthritic change in the acriomoclavicular joints…the left radiohumeral joint”.

42. There is no other medical evidence before the Tribunal to explain the cause of Mrs Gnjatovic chronic upper limb symptoms.

43. Accordingly, I am satisfied that, during the claim period, Mrs Gnjatovic’s  condition of chronic upper limb pain was not fully diagnosed, fully treated or fully stabilised so that a rating under the Impairment Tables cannot be applied.

    Mental health Function

44. In 2009 Mrs Gnjatovic consulted a Psychiatrist, Dr Sokolovic.

45. In a brief hand written letter dated 3 April 2009 Dr Sokolovic stated, inter alia, that Mrs Gnjatovic is suffering from

    post traumatic stress disorder… the symptoms of which are fluctuating…also suffering of neromusculo/skeletal and other somatic…causing her reactive depression…is currently on treatment by antidepressant and anxiolytic medication in addition to…cognitive behaviour therapy…has to continue with psychiatric treatment and followup.

46. In his two reports Dr Tomasevic provided a diagnosis of anxiety and depression and listed current treatment as “counselling medications Lexapro 10mg at night”. He described the impact on ability to function as “reduced cognitive function, reduced ability to interact or communicate with other people”.

47. Mrs Gnjatovic told the Tribunal she had not seen Dr Sokolovic for several years until recently and had seen him on several occasions during 2015. She said that Dr Sokolovic was unwilling to provide a report and told her to continue seeing her GP and continue on the medication she has been taking for many years.

48. In a letter dated 23 July 2015 Dr Tomasevic  noted the following:

    Due to Mrs Gnjatovic ‘s chronic anxiety and depression she suffers insomnia, headaches, difficulty concentrating, is withdrawn, dysphoric and has a poor sense of self and a bleak view of the future.

49. On the evidence I am satisfied that, during the claim period Mrs Gnjatovic mental health condition was permanent for the purposes of the Impairment Determination.

50. However, on consideration of the descriptors in Impairment Table 5 I am not satisfied that there is sufficient corroborative medical evidence with respect to the functional impact of the condition on activities involving mental function which would allow for a rating under the Impairment Tables to be applied.

51. The limited evidence that is available, in my view, tends to suggest a mild functional impact with an impairment rating of 5 points.

    Digestive function

52. In a letter dated 8 November 2013 Dr Hong, general surgeon, stated that a recent gastroscopy found “mild reflux changes and evidence of chronic gastritis” and that “at this stage the Nexium is certainly controlling her symptoms”.

53. Mrs Gnjatovic told the SSAT she has “chronic inflammation of her stomach and bowel and oesophagus. She takes Nexium. She has constant pain which sometimes makes it difficult to breathe but the Nexium makes it bearable.”

54. In his two reports Dr Tomasevic noted that the conditions of gastritis and gastroesophageal are generally well managed and cause minimal or limited functional impact.

55. In a letter dated 28 October 2014 Dr Hong stated that Mrs Gnjatovic “continues to experience episodes of recurring reflux and epigastric pain, she is taking Nexium regularly every day to control these symptoms. The symptoms are worsening and sometimes at night especially when she lies down”. Dr Hong expresses no opinion and makes no recommendation.

56. I accept that Mrs Gnjatovic’s digestive condition is permanent for the purposes of the Impairment Determination and on consideration of the evidence and the descriptors in Impairment Table 10 I am satisfied that a rating of 0 points should be applied.

    Other Conditions

57. In his two medical reports Dr Tomasevic notes that the conditions of dyslipidaemia and multinodular goitre are generally well managed and cause minimal or limited functional impact.

58. In my view, there is insufficient evidence before the Tribunal to make any findings in respect of these two medical conditions.

    DECISION

59. For reasons set out above I am satisfied that, during the claim period, Mrs Gnjatovic’s impairment was not 20 points or more so that she did not satisfy s94(1)(b) of the Act and did not qualify for DSP.

60. The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...............................[sgd].........................................

Associate

Dated 17 December 2015

Date(s) of hearing	26 November 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services