Gonul Bektas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 249
•24 April 2013
[2013] AATA 249
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4270
Re
Gonul Bektas
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member
Date 24 April 2013 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Dr Kerry Breen, Member
SOCIAL SECURITY – disability support pension – cervical disc disease – lower back pain – bilateral knee arthropathy – past polio with weakness of the left leg – generalised arthritis – chronic perforation of the left ear drum – calcaneal spur – chronic perforation of the left ear drum fully treated and stabilised ‑ five impairment points – decision affirmed.
Legislation
Social Security Act 1991 section 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
24 April 2013
Ms Gonul Bektas suffers from a number of medical conditions including cervical disc disease, lower back pain, a perforated left ear drum and the effects of childhood polio. She lodged a claim for disability support pension (DSP) with Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent), on 23 January 2012.
Centrelink referred Ms Bektas for a Job Capacity Assessment (JCA) which was conducted on 23 January 2012. The assessor categorised her medical conditions as: spinal disorder, neck disorder, lower limb deficiencies in relation to her knees, arthritis affecting her joints generally, poliomyelitis, musculoskeletal disorder and tinnitus. The assessor advised that with the exception of tinnitus, none of these conditions were fully diagnosed, treated and stabilised, as required under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
On 12 March 2012, a Centrelink officer rejected Ms Bektas’ DSP claim. On 7 June 2012, a Centrelink Authorised Review Officer (ARO) affirmed the Centrelink officer’s original decision to reject the DSP claim.
On 1 August 2012 Ms Bektas applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 4 September 2012 at which Ms Bektas gave evidence by telephone. The SSAT affirmed the ARO’s decision. Ms Bektas now seeks review of the SSAT decision by this Tribunal.
ISSUES
The issues to be determined by the Tribunal are:
·What permanent medical conditions does Ms Bektas suffer from?
·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 23 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. Section 94(1) of the Act provides:
94(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…
In order for a DSP claimant’s impairment to be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years, as is provided in section 6 of the Impairment Tables which reads as follows:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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
(4) For 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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(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
(5) In 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
(6) For 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…
THE EVIDENCE OF THE APPPLICANT
Ms Bektas appeared in person and gave oral evidence with the assistance of an interpreter in the Turkish language.
In relation to her neck condition, Ms Bektas described daily pain experienced in her neck and right shoulder with associated numbness and pins and needles over the right shoulder and neck. She could not recall the onset of this problem but estimated it as being several years ago. She currently takes Panadol for this condition. A year ago, after attending a hospital emergency department, Ms Bektas was referred for hydrotherapy but she was unable to participate in this because the pool was too cold.
Ms Bektas saw a rheumatologist, Dr Susan Randle, on three occasions. Ms Bektas stated that she could not understand the medical terms used to explain her neck condition and that she had experienced a bad reaction to the medication prescribed by Dr Randle. Ms Bektas said that she did not want to see her [Dr Randle] again, having lost confidence in her. Ms Bektas explained that she attended Northern Hospital for treatment for the adverse reaction and stated that she was told by the medical staff that the medication she had been given was dangerous. She now sees her general practitioner Dr Halil Munir for this and her other medical problems.
Ms Bektas stated that arthritis in her fingers also causes her a lot of pain. She has similar pains in her elbows. She stated that Dr Randle told her that this was degenerative arthritis. She has been prescribed Mobic for this condition but used it sparingly and now does not take it at all.
Ms Bektas stated that she has experienced pain in her lower back for at least 14 years. At times it is so severe that she is unable to get out of bed. While the pain is constant, at times it is a little better. Her doctor has recommended that she exercise regularly and she does try to go walking. Ms Bektas saw a physiotherapist once many years ago. She also visited Northern Hospital because of severe lower back pain and was given an injection. After one visit she was also provided with a walking stick but has not used this very much. Ms Bektas stated that she was unsure of the date of this visit but thought it was last year.
Ms Bektas explained that she has arthritis in her knees and that her right knee gives her more trouble than her left. The arthritis makes walking uphill or climbing stairs difficult. Her right knee tends to lock up. She thinks this problem started many years ago.
Ms Bektas suffers from a shortened and weakened left leg as the result of childhood polio. She sought professional help for this when she first arrived in Australia in 1989 and she subsequently wore an insert in her left shoe. More recently, she was referred to Polio Services Victoria in May last year. Ms Bektas is currently on a waiting list for a new support to build up her left shoe.
Ms Bektas has a longstanding problem of a perforated left ear drum, following an injury 16 years ago. She saw a specialist a few years ago and was advised not to have surgery as the hole in her ear drum is too big. Ms Bektas stated that she was advised to take precautions to avoid inner ear infections, so she has to avoid swimming. Towards the end of last year, her left ear became inflamed and was treated with very strong drops. Ms Bektas experiences some ringing in her left ear and has greatly reduced hearing in that ear.
During her oral evidence, Ms Bektas also reported experiencing intermittent pain and a prickly feeling in her right heel.
Ms Bektas was questioned by the Tribunal about her physical capacity at and around the time of her DSP application. She stated that she was living at home with her son. She was able to do the cooking but had pain all the time which she just has to live with. She needed help from her son with some of the heavier aspects of house cleaning. Her son also helped her to hang out the washing. When she went to the shopping centre, she caught a bus that is very close to her home but generally came back by taxi. At the shopping centre, she could walk for about 15 minutes on a good day but then had to rest because of tiredness.
In regard to the current management of her conditions, Ms Bektas explained that at times she does exercises at home for her neck but is often stopped by her pain. She takes four Panadol Osteo tablets and one vitamin D tablet per day.
In reply to a question from Ms Peta Heffernan (solicitor for the respondent), Ms Bektas stated that she went to see Dr Randle for help with all her problems, including arthritis in her neck, knees, lower back, ankles and joints in her hands. It was Dr Randle who referred her to Polio Services Victoria.
MEDICAL EVIDENCE
The written medical evidence before the Tribunal includes:
·a report of an X-ray of the lumbar spine and the left foot dated 20 July 2005;
·a report of a CT scan of the lumbar spine dated 18 January 2007;
·reports of X-rays of the cervical and lumbar spine and both knees dated 29 November 2011;
·a Centrelink Medical Report Disability Support Pension form completed and signed by Dr Halil Munir dated 19 December 2011;
·a letter dated 6 December 2012 from the Medlot Medical Clinic addressed to Dear Susan;
·a letter from Dr Susan Randle, Rheumatologist and Paediatrician, dated 8 February 2012 addressed to the Post Polio Clinic at St Vincent’s Hospital;
·a medical certificate issued by Dr Munir dated 16 March 2012;
·a letter addressed to Dr Munir from the Emergency Department of the Northern Hospital summarising Ms Bektas’ attendance on 6 April 2012; and
·a letter advising Ms Bektas of her appointment to attend the Polio Service Victoria – Physio Clinic at St Vincent’s Hospital on 1 May , 2012.
In addition, the Tribunal received from Ms Bektas a single page of a newsletter from Polio Services Victoria dated January 2013.
The Tribunal notes that the respondent provided copies of Ms Bektas’ past DSP applications, medical reports that supported those applications, and the reports of assessors who conducted JCAs. Only material from Ms Bektas’ past medical reports that was relevant to the application before the Tribunal has been summarised below.
Paragraphs 24 to 35 summarise the relevant information contained in the written medical evidence before the Tribunal.
Ms Bektas was assessed by Dr D Cheung of Health Services Australia on 20 April 1999. He noted that Ms Bektas had arrived in Australia in 1989 and had last worked full-time as a clothes sorter in 1992. He wrote that she had:
... several long term conditions – polio affecting her left leg resulting in weakness, and damage to her left eardrum with diminished hearing and noises (tinnitus). She has ... low back pain for which she has recently started physiotherapy.
Dr Cheung concluded that her polio and ear problems should not prevent work as she has been able to perform full time duties in the past in spite of them.
In July 2005 Dr Munir completed a Treating Doctor’s Report. The report addressed Ms Bektas’ problems of lower back pain and past polio and noted chronic pain in the back & leg on a daily basis of moderate severity. Progressively getting worse with standing or walking. Cervical disc disease was noted as a condition which was generally well managed.
In August 2005, Ms Bektas was assessed by Dr D Wong Shee. In his report he noted:
… a near normal range of neck movement, normal range of back movement and demonstrable loss of strength and mobility in ... the left lower limb such as to cause moderate interference with walking.
Dr Wong Shee also observed that: The claimant appeared to be suffering from moderate depression.
An X-ray of the Ms Bektas’ lumbar spine taken on 20 July 2005 was reported as follows:
There is scoliosis convex to the left. Minimal anterolisthesis of L5 on S1 is seen. Body heights and disc heights are maintained. Sacroiliac joints also appear normal.
An X-ray of Ms Bektas’ left foot on the same day was reported as follows:
There is a high plantar arch with plantar flexion at the ankle joint. No evidence of neuropathic foot. No evidence of inflammatory arthropathy.
X-rays of the cervical and lumbar spine and both knees were taken on 29 November 2011. In the knees, the report identified ... mild articular marginal spurring of the right patella consistent with mild patellofemoral arthropathy. The X-ray of the cervical spine was reported (in part) to show:
...Disc height is mildly reduced at C5/6 where there is endplate spurring, uncovertebral arthropathy and prominent anterior ligamentous ossification. Oblique views show moderate osteophyte encroachment on the right C6 neural exit foramina but not elsewhere.
The X-ray of the lumbosacral spine was reported (in part) as follows:
Quite marked hypertrophic osteoarthropathy is present at L3/4 and L4/5 but the disc height and vertebral body height are normal.
In a Medical Report Disability Support Pension form dated 19 December 2011 Dr Munir provided the diagnosis of Condition 1 as: Disc Pathology Lower Back and Facet Joint Arthritis Degenerative Disease – Neck + Bilateral knee – early arthropathy. The history of this condition was stated to be:
L-S Xray & CT scan: Postero-lateral disc protrusion at L5/S1 + Facet Joint Arthritis. Cervical xray: C5/6 disc height reduction [with] ligamentous ossification + [illegible] Cervical Rib. Xray Both Knees: Mild Patella femoral arthropathy.
Current symptoms were listed as Chronic Neck/Back/Knee pain of moderate severity. worse [with] lifting, bending, standing and doing any heavy daily activities. Current treatment was noted as analgesics + NSAIDS, past treatment was noted as above + Physiotherapy + Exercises and future/planned treatment was noted as above.
In response to the question of how condition 1 currently affects the patient’s ability to function, Dr Munir wrote: Unable to lift, bend or rotate back; Unable to stand up too long or walk long distances [and two additional words that are illegible].
The diagnosis of Condition 2 was stated as Inflammatory arthritis effecting [sic] joints generally + calcaneal spur R. PH of polio affecting L leg – Thinner & Shorter L leg [with] high plantar arch. The history of this condition was given as Xray: High Plantar arch with plantar flexion at the ankle joint L. Xray: R plantar calcaneal spur. Rh factor: 16. ANA –ve. Current symptoms were noted to be:
Chronic aches/pains – generalised but worse legs/feet. Worse [with] prolonged standing, Lifting and walking. Current treatment was described as analgesics + NSAIDS Rheumatologist Treatment.
Under the heading other medical conditions which are generally well managed and that cause minimal or limited impact on ability to function, Dr Munir described L ear tinnitus with reduced hearing.
Ms Bektas provided the Tribunal with a one page letter dated 6 December 2012 from Dr Munir of the Medlot Medical Clinic addressed to Dear Susan. The Tribunal assumes that this letter was the letter of referral to Dr Susan Randle as the letter began with: Thank you for seeing this patient for review of her pains. Please assess and manage. The letter lists Current Problems as follows:
·Chronic lower back pain,
·Chronic neck pain,
·Plantar fasciitis,
·Polio,
·OA of knees,
·Decreased hearing left ear.
The letter then lists Current Medications which included: Celebrex, Panadeine Forte, Panadol Osteo, Panamax and Salazopyrin.
On 8 February 2012, Dr Randle, Rheumatologist and Paediatrician, wrote a letter of referral to the Post Polio Clinic at St Vincent’s Hospital as follows:
Thank you for sending an appointment for Gonul to be seen in your Clinic. I am seeing her for the first time today for treatment of her arthritis. She has pains in her neck, back and knees as well as in her right Achilles tendon insertion site. Gonul apparently had polio when she was around one year old and she has a short left leg and small left foot and she has weakness of the left leg. She also had a significant osteoarthritis developing in her knees on films from 4 years ago and I feel she is putting extra stresses on her lower limbs with her altered gait due to her old polio.
I would be grateful for your help in assessing Gonul’s joint pains. ...
In a letter addressed to Dr Munir from the Emergency Department of The Northern Hospital Dr Jonathan Galtieri summarised Ms Bektas’ attendance on 6 April 2012. The letter stated (in part) that Ms Bekats:
... commenced Plaquenil 1 week ago for management of her arthritis… Who presented with 2 days of rash and 1 day of fevers, dry cough.... She was febrile 38.4 and tachycardic at 106… There was a papular/nodular rash to all four limbs and trunk...
Dr Galtieri wrote:
My impression is that this is likely an upper respiratory tract infection with perhaps the rash caused by the commencement of Plaquenil ….
OTHER EVIDENCE
A JCA was completed by Ms Tina Hristovska, occupational therapist, on 23 January 2012 and the JCA report was submitted on 9 March 2012. The assessor noted that Ms Bektas’ lower back condition was being treated with Mobic (one tablet a day) and panadol osteo (six tablets a day). Ms Bektas was reported as stating that she had not had previous physiotherapy and had not seen a specialist. The assessor noted:
… Chronic back pain limiting movement and tolerance limits. Sitting for 15 minutes, standing and walking is significantly impaired due to a combination of her back condition and long term effects of polio.
In the same JCA report Ms Hristovska wrote in regard to Ms Bektas’ neck complaint:
Symptoms: chronic pain limiting movements. Able to reach above shoulder height (with pain), difficulties experienced with looking down which leads her to avoiding reading. Limitations in neck movement however is able to turn sideways without turning trunk.
Ms Hristovska commented on Ms Bektas’ other problems with her knees, inflammatory arthritis affecting her joints generally, poliomyelitis, calcaneal spur and tinnitus in the JCA report. Under the heading inflammatory arthritis affecting her joints generally, the assessor wrote Ms Bektas is yet to see Dr Randle (rheumatologist) however a referral has been made. Under the heading poliomyelitis, she wrote:
Symptoms: Pain limiting strength and mobility. Mrs Bektas stated that she avoids negotiating stairs, requires regular rests whilst shopping. House duties such as vacuuming is avoided.
Under the heading Work Capacity, Ms Hristovska wrote Ms Bektas requires time to seek specialist treatment and management of her condition. During this time she will not be able to engage in other activities. Further she wrote:
Mrs Bektas’ physical abilities, endurance and mobility is significantly impaired due to her arthritis, polio effects and spinal conditions. An assessment [of] her baseline capacity for work is difficult to conduct as her working ability in appropriate and modified duties have not been tested, additionally her conditions are yet to be treated appropriately. It is hoped with specialist management she may be able to engage in part time employment.
The respondent provided a copy of the Reasons for Decision written by the ARO after a telephone discussion with Ms Bektas (which took place on 8 June 2102 with the assistance of an interpreter). Ms Bektas was reported to have told the ARO that she:
…has attended two appointments with Dr Randle Rheumatologist and is not happy to take the medication she has been prescribed….. She is currently waiting for an appointment in July 2012 to obtain a second opinion re her back, neck and feet and to review the medication she has been prescribed. She was also advised to start hydrotherapy but after two sessions she ceased and will not be starting again until after winter.
CONSIDERATION OF THE ISSUES
The respondent acknowledged that Ms Bektas suffers from the conditions of chronic back pain, degenerative disease of the neck, mild bilateral knee arthropathy, arthritis, poliomyelitis, calcaneal spur and tinnitus. The respondent submitted that none of these conditions have been fully diagnosed, treated and stabilised and that therefore they could not be assigned an impairment rating under the Impairment Tables. Accordingly, the respondent argued that it was not necessary to address whether or not Ms Bektas has a continuing inability to work.
Ms Bektas submitted that her doctors had told her that all her conditions were chronic conditions which could not be treated and that she should therefore be granted DSP.
The Tribunal notes that various terminology has been used to describe the conditions suffered by Ms Bektas. From this point the Tribunal will refer to these conditions as:
·cervical disc disease;
·low back pain;
·bilateral knee arthropathy;
·past polio with weakness of the left leg;
·generalised arthritis;
·chronic perforation of the left ear drum; and
·calcaneal spur.
Are the conditions fully diagnosed, treated and stabilised?
The Tribunal is satisfied that (at the time of Ms Bektas’ DSP application) for the purposes of s 94(1) of the Act, the conditions of cervical disc disease, low back pain, bilateral knee arthropathy, past polio with weakness of the left leg, chronic perforation of the left ear drum and calcaneal spur had been fully diagnosed. The Tribunal’s finding is based on the reports of Ms Bektas’ general practitioner Dr Munir from 2005 and 2011, together with the independent reports of Dr Cheung in 1999 and Dr Wong Shee in 2005, and the radiology reports from 2005, 2007 and 2011.
It is less clear to the Tribunal that the condition of generalised arthritis had been adequately described and investigated to enable a firm diagnosis to be made. In the Medical Report Disability Support Pension form dated 19 December 2011 Dr Munir diagnosed inflammatory arthritis but the limited investigations he quoted (namely Rh factor: 16. ANA –ve.) did not support this diagnosis. In that report Dr Munir presaged the need for Ms Bektas to see a rheumatologist. Ms Bektas has informed the Tribunal that she subsequently did attend a rheumatologist, Dr Randle, on three occasions. Ms Bektas also told the Tribunal that Dr Randle mentioned degenerative arthritis. However, Dr Randle prescribed the drug Plaquenil and earlier it appears that Dr Munir had prescribed the drug Salazopyrin.
It is within the knowledge of the Tribunal that both drugs are prescribed for rheumatoid arthritis but are not usually prescribed for degenerative osteoarthritis. The Tribunal received only very limited and provisional information from Dr Randle via her brief letter of referral to Polio Services Victoria. Thus it is the view of the Tribunal that at the time of the DSP application, the diagnosis of the cause and hence the appropriate treatment of generalised arthritis had not been adequately established; that is it has not been fully diagnosed as is required under s 94(1) of the Act.
The next issue for the Tribunal’s consideration is whether Ms Bektas’ other fully diagnosed conditions had been fully treated and stabilised. The Tribunal will address each condition individually.
The available medical evidence indicates Ms Bektas has had symptoms related to her cervical spine since at least 2005 when Cervical disc disease was noted by Dr Munir as a condition which was generally well managed. In the same year Dr Wong Shee wrote in his report that the claimant has a near normal range of neck movement and frequent neck pain radiating into her arms (attributed to cervical disc disorder). At the time of her DSP application, Ms Bektas had not seen a specialist about this condition, although she had had an X-ray of the cervical spine on 29 November 2011 that was reported to show significant pathology. She was receiving minimal treatment for this condition. Accordingly the Tribunal finds that for the purposes of the Act, the condition of cervical disc disease had not been fully treated and stabilised.
The Tribunal notes that Ms Bektas’ condition of lower back pain is presumably due to the changes noted on the X-ray in November 2011 and reported (in part) as follows: Quite marked hypertrophic osteoarthropathy is present at L3/4 and L4/5 but the disc height and vertebral body height are normal. While Dr Munir wrote in the Medical Report Disability Support Pension form on 19 December 2011 that Ms Bektas was receiving treatment (including analgesics and NSAIDs) and that in the past had received those treatments as well as exercises and physiotherapy, Ms Bektas’ own evidence was that her use of NSAIDs and physiotherapy were quite limited. There may be quite justifiable reasons for Ms Bektas to have taken this approach. However, in the absence of specialist opinion that nothing more can be done to reduce her lower back symptoms it is not possible for the Tribunal to be satisfied that this condition has been fully treated and stabilised. (As the Tribunal will refer to below in para 51, there is the related issue of how fully treated is Ms Bektas’ disability from past polio since there is medical evidence to indicate that her longstanding leg weakness and abnormal gait may be contributing to her knee and back problems).
It was unclear when Ms Bektas first experienced symptoms from her knee condition which was diagnosed in 2011 by Dr Munir as bilateral knee – early arthropathy. The report of X-rays of her knees taken on 29 November 2011 identified mild articular marginal spurring of the right patella consistent with mild patellofemoral arthropathy. It was also unclear what treatment Ms Bektas has had for this condition. At the time of her DSP application she had not seen a specialist for this problem. Accordingly, the Tribunal is unable to find that this condition has been fully treated and stabilised.
With regard to her past polio, which has left Ms Bektas with permanent shortening and weakness of her left leg, there are aspects of this condition which remain to be fully stabilised and treated. Ms Bektas recounted seeing a specialist about this condition soon after arriving in Australia in 1989. Neither Dr Cheung nor Dr Wong Shee remarked on any use of orthotics to assist with Ms Bektas’ gait. However, Dr Cheung observed that she walked with a limp and Dr Wong Shee commented on moderate interference with walking. Dr Munir included P.H. Polio effected L leg as part of condition 2 and listed future/planned treatment as analgesics + NSAIDs Rheumatologist treatment. After Ms Bektas’ DSP application was lodged, Dr Randle recognised that more assistance might be available to Ms Bektas via Polio Services Victoria. In her letter to Polio Services Victoria, Dr Randle alluded to the contribution past polio might be having on the arthritis in Ms Bektas’ knees. From Ms Bektas’ evidence, it appears that the recommendations of Polio Services Victoria have not yet been able to be followed through. Accordingly, the Tribunal is unable to find that this condition has been fully treated and stabilised.
In the medical reports available to the Tribunal, chronic perforation of the left ear drum was first noted by Dr Cheung in 1999. Dr Cheung recorded bouts of infection secondary to the perforation but did not discuss any specialist advice about possible surgical repair. Dr Wong Shee’s report does not mention problems with Ms Bektas’ left ear, although Dr Munir in 2011 refers to it indirectly as the condition of tinnitus. Ms Bektas gave evidence that she has been advised that surgical repair is not possible. Although it is somewhat unsatisfactory that the Tribunal does not have medical evidence to support Ms Bektas’ oral evidence, the Tribunal accepts that no further treatment is possible. Accordingly, the Tribunal finds that this condition has been fully treated and stabilised. It follows that the condition of chronic perforation of the left ear drum is deemed to be permanent. As it meets the requirements of s 94(1)(a) of the Act and the requirements of para 6 of the Impairment Tables, this condition can be awarded an impairment rating.
With regard to the condition of calcaneal spur, the Tribunal notes that the diagnosis of a right plantar calcaneal spur was identified as part of Condition 2 by Dr Munir. In his report of 2011, condition 2 was stated as Inflammatory arthritis affecting joints generally + calcaneal spur R. PH of polio effected [sic] L leg – Thinner and Shorter L leg with high plantar arch. The history of this condition was given as Xray: High Plantar arch with plantar flexion at the ankle joint L. Xray: R plantar calcaneal spur. Dr Munir’s report appears to include future treatment of the calcaneal spur under the planned treatment of the other conditions, ie inflammatory arthritis and past polio, for which he had identified rheumatologist treatment. Accordingly, the Tribunal finds that this condition has not been fully treated and stabilised. [emphasis added]
What impairment points does the chronic perforation of the left ear drum attract?
Ms Bektas describes very poor hearing in her left ear and is troubled also by tinnitus. The assessor who conducted the JCA in January 2012 reported that Ms Bektas had been provided with a hearing aid but had not used it as she found it uncomfortable. No reports were available to the Tribunal from an audiometrist or a medical specialist. The introduction to Table 11 (entitled Hearing and other Functions of the Ear) of the Impairment Tables states that: The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist. The document is silent in regard to what constitutes such supporting evidence. The Tribunal in this instance is prepared to accept as supporting evidence the evidence given on affirmation by Ms Bektas that several years ago she did consult an Ear, Nose and Throat specialist, that the diagnosis of a perforated ear drum was confirmed and that the perforation was not suitable for surgical repair. In the view of the Tribunal, it would be an inappropriate cost to the applicant and/or the health care system to insist on either obtaining a report from that specialist or from a new specialist. [emphasis added]
Having considered Ms Bektas’ symptoms and the available impairment ratings under Table 11, the Tribunal considers that an impairment rating of five points is appropriate. Five points are to be awarded when:
There is mild functional impact on activities involving hearing (communication)
function or other functions of the ear.(1)The person:
(a)has some difficulty hearing a conversation at an average volume
in a room with background noise (e.g. other people talking quietly
in the background); and(b)may use a hearing aid, cochlear implant or other device; and
(c)has difficulty hearing conversations when using a standard
telephone, particularly in a room with background noise; or
(2)The person has occasional difficulty with balance (e.g. occasional
dizziness) or ringing in the ears which occasionally interferes with
communication ability or routine activities due to a medically diagnosed
disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).CONCLUSIONS
The Tribunal is satisfied that Ms Bektas suffers from the conditions of cervical disc disease, low back pain, bilateral knee arthropathy, past polio with weakness of the left leg, generalised arthritis, chronic perforation of the left ear drum and calcaneal spur.
The Tribunal is satisfied that all of these conditions, with the exception of generalised arthritis, have been fully diagnosed. However, with exception of the condition of chronic perforation of the left ear drum, the Tribunal is not satisfied from all the available evidence that the conditions have been fully treated and stabilised and likely to persist for more than 2 years. Thus these several conditions (although permanent in a medical sense) are not able to be deemed permanent as required by s 94(1) of the Act.
The one condition that has been fully diagnosed, fully treated and stabilised is chronic perforation of the left ear drum. Under Table 11, the Tribunal has allocated five impairment points for this condition. As this does not amount to the required 20 impairment points for DSP, Ms Bektas did not meet the requirement of s 94(1)(b) of the Act as at 23 January 2012. Accordingly, her application for DSP cannot succeed.
Since the application fails on this ground, the Tribunal has not considered the issue of whether Ms Bektas has a continuing inability to work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. [sgd]...............................................................
K. Randall, Associate
Dated 24 April 2013
Date of hearing 9 April 2013 Applicant In person Solicitors for the Respondent Peta Heffernan, Australian Government Solicitor
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