Gudelj-Velaga and Secretary, Department of Family and Community Services

[2005] AATA 807

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 807

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/100

GENERAL ADMINISTRATIVE  DIVISION

Re:BORINKA GUDELJ-VELAGA

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             23 August 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points – whether condition permanent ‑ application dismissed

Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

23 August 2004  Regina Perton, Member

1.      Borinka Gudelj-Velaga (the applicant) sought review of a decision made by the Social Security Appeals Tribunal (SSAT) on 8 January 2004.  The SSAT affirmed a decision of an authorised review officer (ARO) of the Secretary to the Department of Family and Community Services (the respondent) dated 16 October 2003 to refuse an application for disability support pension (DSP).  The ARO refused the application because the applicant did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  The original decision to refuse the application was made by a delegate of the respondent on 24 September 2003.

2.      At the hearing on 15 August 2005, the applicant represented herself with assistance from her daughter, Ms Melanie Celic.  Mr Sean Meehan, a Centrelink advocate, represented the respondent.  An interpreter in the Croatian language facilitated communication. 

3.      The documentary evidence before the Tribunal included the T‑documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T28).

BACKGROUND

4.      The applicant, who was born on 24 August 1954 and is 50 years old, worked in the catering division of Qantas for 14 years.  In 2001, she was diagnosed with breast cancer and underwent surgery and radiotherapy.  The applicant returned to work for a short time but took another break following problems with her right arm.  She resumed work again but gave up in May 2003, following a hysterectomy and ongoing arm, back and leg pain.  She has not been able to work since. 

5.      The applicant applied for DSP on 29 August 2003.  In her application form, she stated that her disabilities, illnesses or injuries were breast cancer for which she had surgery and radiotherapy; spine disc degeneration, right arm pain and constant swelling, endometriosis which led to a hysterectomy, and depression and anxiety which had made it difficult for her to work from February 2001.  A report from her treating doctor stated that the applicant could not continue in the workforce.  On 22 September 2003, a doctor employed by Health Services Australia Ltd (HSA) found that some of the applicant’s health problems had not yet stabilised and that she was temporarily unfit for full‑time work.  On 24 September 2003, a delegate of the respondent rejected the claim for DSP on the ground that the applicant did not achieve the required 20 points under the Impairment Tables.  At the applicant’s request, the delegate revisited her original decision on 10 October 2003 but did not change her decision.  An ARO affirmed the delegate’s decision on 16 October 2003. 

6.      On 8 January 2004, the SSAT affirmed the decision to refuse the claim for DSP.  The SSAT found that the applicant’s upper limb condition was permanent and warranted 10 points under the Impairment Tables.  However, no points could be allocated for the depression or the back pain, as they were not considered fully stabilised.  The applicant filed an application for review of the SSAT decision with this Tribunal on 5 February 2004. 

7.      The applicant lodged a fresh application for DSP on 4 May 2005 which was rejected on 11 June 2005.  The Tribunal does not have jurisdiction to deal with that claim, as it only has the power to deal with a rejected claim after it has been reviewed by an ARO and the SSAT. 

8.      The issue before the Tribunal is whether the applicant satisfied the requirements for DSP as at 29 August 2003 or within 13 weeks of that date.   

EVIDENCE

9.      The applicant told the Tribunal about her extensive employment history and the work she did since migrating to Australia.  Her time out of the work force after the birth of her two daughters was very short.  The applicant’s husband has had three bouts of open heart surgery and has not worked since he was 37 years old. Therefore, she has been the major breadwinner and caregiver for her family. 

10.     The applicant told the Tribunal about her medical history.  She was diagnosed with breast cancer in early 2001 with resultant surgery and radiotherapy.  The removal of lymph nodes has resulted in significant swelling of her dominant right arm and hand which continues to this day, despite extensive physiotherapy and home exercises.  The swelling gets worse as the day progresses.  She has a degenerative spinal condition, the pain of which has been exacerbated following her hysterectomy in May 2003.  The hysterectomy was required because of severe endometriosis.  She has been suffering from depression since the breast cancer surgery.  The ongoing medication to arrest the cancer has caused problems with her ears, adding to her discomfort. 

11.     The applicant said she had been distressed at the way the HSA doctor conducted his brief examination and about his diagnosis.  She highlighted the contrast between the diagnoses of some of her ailments as temporary by HSA doctors and the consistent opinion of her treating doctors that she cannot undertake employment for which she is qualified due to those disabilities.  The applicant said that she could not afford a psychiatrist back in 2003, but had recently started to see one through Medicare.  She said that the sessions are not really benefiting her and that she is now on medication for depression. 

12.     The applicant said that she enjoyed working, including its social aspects, and would be working now if she could.  She did not like being limited in what she can do and being stuck at home.  She also pointed to the difficulties in getting employment given her age and lack of skills and training.   

13.     The application for DSP was accompanied by a treating doctor’s report from Dr Darko Sulava dated 22 August 2003(T4).  The applicant has been his patient since June 1993.  Dr Sulava stated that the applicant suffered from breast cancer and that following surgery and radiotherapy, she developed swelling in her right arm which still persists.  The applicant had a total hysterectomy in May 2003 due to slowly developing endometriosis.  Other conditions from which she suffered included spinal degeneration, depression and anxiety and chronic bilateral otitis.  Dr Sulava’s view was that the applicant’s multiple conditions made her an unfavourable candidate to continue in the workforce as she could not concentrate or lift, carry or push heavy weights.  

14.     The applicant was assessed by Dr Peter Tutton of HSA at the respondent’s request.  In his report of 18 September 2003 (T7) Dr Tutton noted that the applicant was in remission from the breast cancer with a fair prognosis.  He acknowledged her ongoing pain and loss of dexterity in her right arm as a permanent condition.  However, pain following her hysterectomy and her depression had yet to stabilise and be fully treated.  He stated that the applicant was temporarily unfit for full time open work and should be reviewed in 6 to 9 months.

15.     The applicant provided a further opinion from Dr Sulava dated 17 December 2003 (T20) stating that the applicant was permanently unable to work due to her age, education, skills and training and her medical condition.  Dr Joseph Horvat, a medical practitioner practising at the same address as Dr Sulava, provided an opinion dated 13 January 2004 (T21) that, on the balance of probabilities, the applicant was unlikely to work again in a job for which he [sic] is reasonable qualified by education, training or experience because of injury/illness.  Dr John Lamont, stated in a letter dated 13 January 2004 (T22) that the applicant has been a patient at that clinic since 1983 and had several major operations and remains on medication and will require long‑term review.  Dr Lamont stated that the applicant has now reached the stage where she is totally and permanently incapacitated for work.

16.     Further medical reports have recently been prepared in relation to the fresh claim for DSP lodged in May 2005.  The applicant’s current treating doctor, Dr Tim Sheriff, in a report dated 18 April 2005 (T25), indicated that the applicant has been his patient since 2004.  He stated that she suffers from severe secondary depression as a result of her breast cancer and medication and, amongst other things, is chronically agitated, suffers insomnia, tiredness, lethargy and poor concentration and memory.  He indicated that the applicant is seeing a psychologist and has been referred to a rheumatologist. 

17.     The respondent referred the applicant to an HSA doctor, Dr Wong Shee, who provided a report on 24 May 2005 (T26).  Dr Shee stated that the applicant is temporarily unfit for full-time open market employment and recommended a review in 6 to 12 months.  Dr Shee indicated that the applicant has recently started seeing a psychologist for her anxiety/depression and opined that there was potential for improvement of that condition through ongoing psychotherapy and antidepressant medication.  Dr Shee also envisaged possible improvement of the applicant’s right elbow pain with treatment from a rheumatologist. 

CONSIDERATION OF THE ISSUES

18.     Section 94 of the Act sets out the criteria for a person to qualify for DSP. 

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;

…

94(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 within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years….

19. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

…

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  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.

…

20. When deciding whether a person qualifies for the DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security Administration Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. Therefore, in this case, the Tribunal must consider whether the applicant qualified for the DSP either on 29 August 2003 or at a date before 28 November 2003 (the relevant period).

21.     The respondent submitted that during the relevant period the applicant’s condition had not been fully diagnosed, investigated or stabilised and that therefore she did not satisfy s 94 of the Act.  In the alternative, the respondent submitted that the applicant’s conditions did not warrant 20 points under Table 5.2 of the Impairment Tables. 

22.     The Tribunal accepts that the applicant suffers from a number of medical conditions now, as she did at the time she applied for DSP.  The Tribunal also accepts that her condition prevents her from undertaking full-time work at present.  The doctors’ reports, then and now, acknowledge that not all the conditions have stabilised.  The two reports dated 4 May 2005 and 24 May 2005 still indicate that further treatment for the arm problems and depression would be of benefit to the applicant. 

23.     Based on the documentary evidence and the oral evidence of the applicant, the Tribunal finds that the applicant’s depression, difficulties with her arm and pain as a result of the then recent hysterectomy had not been fully treated and stabilised during the relevant period.  Therefore, the Tribunal is unable to assign a rating under the Impairment Tables for these conditions during the relevant period.    

24. The Tribunal concurs with the analysis undertaken by the SSAT. Consequently, during the relevant period, the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). In the circumstances it is not necessary to consider whether the applicant satisfies s 94(2). The decision to refuse the claim for DSP was correct.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       (sgd) Olympia Sarrinikolaou

Clerk

Date of Hearing:  15 August 2005

Date of Decision:  23 August 2005
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr Sean Meehan, Centrelink