Gulsun KODEN and Secretary, Department of Social Services

[2015] AATA 236

[2015] AATA 236

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4359
Re	Gulsun KODEN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	20 April 2015
Place	Melbourne

The Tribunal affirms the reviewable decision.

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

Member

SOCIAL SECURITY – disability support pension – whether the Applicant’s impairment attracts 20 points

Legislation

Social Security Act 1991 s94

Secondary Materials

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

REASONS FOR DECISION

Mr C Ermert, Member
20 April 2015

INTRODUCTION

1. Mrs Koden, the Applicant, started receiving the disability support pension (DSP) in 1989.  On 27 November 2013 as part of a review of eligibility, Centrelink issued a notice to Mrs Koden requiring information regarding her continuing qualification for the DSP.  Centrelink is the service provider for the Department of Social Services, the Respondent.

2. On 5 December 2013 Dr Baglar prepared a medical report advising that Mrs Koden suffered from an L4 radiculopathy which had caused her constant pain for the past 30 years.  He advised also that she suffered from hypertension and hypothyroidism which were well managed and had minimal or limited impact on her ability to function. 

3. Centrelink required Mrs Koden to attend a job capacity assessment.  The job capacity assessor (JCA) provided a report dated 16 May 2014 in which he assessed Mrs Koden as being able to work for 15 to 22 hours per week in light, less skilled employment.  On 21 May 2014 Dr Polong, of the Centrelink Health Professional Advisory Unit, reviewed Mrs Koden’s medical history.  He considered that Mrs Koden’s spinal condition warranted ten impairment points and her hypertension and hypothyroidism together warranted five impairment points, resulting in a total of 15 impairment points.

4. On 23 May 2014 Centrelink made a decision (the original decision) to cancel Mrs Koden’s DSP.  Her level of functional impairment, assessed at 15 points, did not satisfy the requirements of the legislation which necessitates a level of impairment of 20 points. 

5. On 17 June 2014 a Centrelink authorised review officer (ARO) affirmed the original decision.  The Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision on 8 August 2014.  This matter is a review of the SSAT decision.

   THE HEARING

6. Mrs Koden represented herself at the hearing, assisted by an interpreter of the Turkish language.  Mr Henderson, a departmental lawyer, represented the Respondent.  Mrs Koden’s son attended in support of his mother.

7. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  Mrs Koden submitted no additional documentation.  For the Respondent, I had before me the Secretary’s Statement of Facts and Contentions dated 5 February 2015.   Supplementary T-Document ST1, a medical report by Dr Baglar dated 20 October 2014, was attached to the Statement of Facts and Contentions and was also taken into evidence.

   LEGISLATION

8. The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).

9. Section 94 of the Act  relevantly prescribes the qualifications for DSP:

   (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; ...

10. A person’s impairment is assessed by reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

11. The Respondent concedes that, at the relevant date, Mrs Koden suffered impairments that satisfied section 94(1)(a) of the Act. 

12. In his submissions, Mr Henderson reiterated the reasoning in the Secretary’s Statement of Facts and Contentions, sections 4.18 to 4.24.  The Secretary accepts the opinion of the JCA that Mrs Koden has an ability to work from 15 to 22 hours per week.  Although this is less than the 30 hours required by the version of the Act in force at the time Mrs Koden was first granted the DSP the amending legislation provided that changes to the continuing inability to work test did not apply to persons who had received DSP payments prior to 1 July 2006.  The Secretary concedes that Mrs Koden satisfies section 94(1)(c) of the Act.

13. I consider that the Respondent’s concessions have been correctly made.  I find that Mrs Koden satisfies sections 94(1)(a) and (c) of the Act.

14. The issue I must determine is whether Mrs Koden’s satisfies section 94(1)(b) of the Act whereby the Applicant’s impairment attracts 20 or more points under the Impairment Tables .

    THE RELEVANT DATE

15. Centrelink made the decision to cancel Mrs Koden’s DSP on 23 May 2014.  Accordingly, I must determine whether Mrs Koden was qualified for DSP on 23 May 2014.

    THE EVIDENCE

16. In her oral evidence Mrs Koden said that she had not properly recovered after her spinal surgery.  She said that over the last few months she had developed problems with the toes on her right foot.  She has continuous pain in her lower back and is fearful of becoming paralysed. 

17. Mrs Koden stated she has great difficulty walking and she cannot sit or stand for long.  She said that her son and her husband help her at home.  She said she is disturbed about her psychological condition and she is not psychologically balanced.

18. Under cross examination Mrs Koden agreed that she told the JCA:

    ·she continues to have difficulty bending and requires assistance with putting on her socks and shoes;

    ·she avoids heavy manual tasks such as vacuuming and mopping;

    ·she is able to sit for 20 to 30 minutes; and

    ·she can go to a shopping centre but needs rest breaks.

19. Mrs Koden agreed also that she told the SSAT member:

    ·she generally rises at 7:30am, showers, dresses, makes breakfast and does the dishes;

    ·she goes for a walk in the garden and does housework but no heavy chores.

    ·she can clean the bathroom and do the laundry with a washing machine;

    ·she goes shopping weekly;

    ·she cooks food and does the washing up;

    ·she can walk for about 20 minutes and then has a rest; and

    ·she reads Turkish papers and watches television for about three to four hours daily.

20. In answer to questions from Mr Henderson, Mrs Koden said that in 2014 she was able to:

    ·do certain things above her head, such as hang out the washing and put things in cupboards, as long as it was not too high;

    ·turn her head and bend her neck, but not too much;

    ·bend forward to pick up a glass from a desk or table; and

    ·stay seated for 10 minutes at a time.

21. In her submissions, Mrs Koden recounted that she told Centrelink that the pain from her back was lighter after her surgery but it had not gone.  She said she thinks that Centrelink may have thought the pain had all gone and that was the reason the DSP payments were stopped.

22. In his oral submissions, Mr Henderson said he relied on the reasoning in the Secretary’s Statement of Facts and Contentions.  He contended that the relevant date was 23 May 2014.  He stated the Respondent accepts that Mrs Koden has an impairment and satisfies section 94(1)(a) of the Act.

23. Mr Henderson said the Respondent accepts that Mrs Koden’s spinal condition is fully diagnosed, treated and stabilised and, accordingly, it can be assigned a rating from the Impairment Tables.  The Respondent accepts that Mrs Koden’s impairment warrants a rating of 10 points from Table 4 Spinal Function. 

24. Mr Henderson contends that Mrs Koden meets none of the requirements which would attract a rating of 20 points.  He submitted that her own evidence was that she was able to perform some overhead activities:

    (a)she could turn her head and bend her neck;

    (b)she was able to bend forward to pick up something from a table; and

    (c)she could remain seated for at least 10 minutes. 

    He said this evidence was the same as her statements to the JCA and her evidence to the SSAT. 

25. Mr Henderson contends that Mrs Koden’s impairments attract a total of only 10 impairment points.  Accordingly, she does not satisfy the provisions of section 94(1)(b) of the Act.  Mr Henderson contends that as the sub-sections of section 94(1) are cumulative all three must be satisfied before the section as a whole can be satisfied.  As Mrs Koden does not satisfy the provisions of section 94(1) of the Act at the relevant date, Mr Henderson contends that she is not qualified for DSP at that date.  Mr Henderson submits therefore that the decision to cancel Mrs Koden’s DSP was correct and should be affirmed.

26. In response Mrs Koden said she did not understand why her present medical condition is not being considered in this hearing.

    TRIBUNAL CONSIDERATION

27. Section 6(3) of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.

28. At the relevant date Mrs Koden suffered from:

    ·spinal condition,

    ·hypertension, and

    ·hypothyroidism.

    Spinal Condition

29. In his report dated 5 December 2013 (T-Documents pages 128-129, 135) Dr Baglar recorded a diagnosis of L4 Radiculopathy which was confirmed by a specialist neurosurgeon. The past treatment for the condition was recorded as L3/L4 microdiscectomy on 5 June 2013.  Future treatment was recorded as analgesics.  Dr Baglar recorded that the impact of this condition on Mrs Koden’s ability to function is expected to last for more than 24 months. 

30. In his report dated 16 May 2014 (T-Documents pages 144–146) the JCA recorded a condition of Spinal Disorder – Other as being fully diagnosed, treated and stabilised.

31. In his Statement of Facts and Contentions, the Respondent accepts that Mrs Koden’s spinal condition is fully diagnosed, treated and stabilised.

32. From the evidence I accept that Mrs Koden’s spinal condition is fully diagnosed, treated and stabilised.  I find that the condition satisfies the requirements of the section 6(3) of the Impairment Tables.  As a result, an impairment rating can be assigned to this condition.

33. The introduction to Impairment Table 4 Spinal Function states:

    Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

34. I am satisfied that Table 4 is the correct table to use in the assessment of Mrs Koden’s spinal condition.

35. In Table 4 the descriptors for an assignment of 10 points are:

    There is a moderate functional impact on activities involving spinal function.

    (1)   The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)     the person is unable to sustain overhead activities (e.g. accessing items overhead height); or

    (b)     the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)     the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)     the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

36. Mrs Koden’s evidence was that she could:

    ·do certain things above her head as long as it was not too high;

    ·turn her head and bend her neck, but not too much;

    ·bend forward to pick up a glass from a desk or table; and

    ·stay seated for 10 minutes at a time.

37. In his assessment the JCA recorded:

    … She continues to have difficulty bending, and therefore continues to require assistance with lower body depressing such as putting on her socks and shoes.  She avoids heavy manual tasks such as vacuuming and mopping as this can aggravate her condition … Mrs Koden reported she is able to sit for 20-30 minutes … She stated that she cannot lift a bag off the floor as this can aggravate the pain in her back.  She reported she can go to a shopping centre, however requires rest breaks to be able to walk around, … Her level of functioning corresponds with a rating of 10 points

38. I accept that the JCA’s report largely corroborates Mrs Koden’s own description of her functional impairment with the exception of her ability to sit for only 10 minutes.  I note Mrs Koden’s evidence to the SSAT that she reads Turkish papers and watches television for about three to four hours daily.  This corresponds more closely to the 20 to 30 minutes recorded by the JCA than the 10 minutes stated by Mrs Koden in her oral evidence.

39. The introduction to Table 4 states relevantly that self-report of symptoms alone is insufficient.  There must be corroborating evidence of the person’s impairment such as from the person’s treating doctor, medical specialist or physiotherapist or rehabilitation therapist.  From the evidence given by Mrs Koden to the SSAT and the JCA, I accept that Mrs Koden is able to sit in a car for at least 30 minutes and that she is able to perform overhead activities but not sustain them and she has difficulty moving her head.  I am satisfied that Mrs Koden satisfies the descriptors relevant to 10 points in Table 4.

40. In considering the descriptors for 20 points, I note Mrs Koden’s oral evidence that she is not unable to:

    ·perform any overhead activities; or

    ·turn their head, or bend their neck, without moving their trunk; or

    ·bend forward to pick up a light object from a desk or table; or

    ·remain seated for at least 10 minutes.

41. There is no supporting evidence that points to Mrs Koden’s inability to perform any of the described activities.  Consequently, Mrs Koden does not satisfy the requirement for 20 impairment points as a result of her spinal condition.  I find that Mrs Koden’s impairment from her spinal condition warrants the assignment of 10 impairment points.

    Hypertension and Hypothyroidism

42. In his report dated 16 May 2014, the JCA stated that these conditions were verified by medical evidence and were fully diagnosed, treated and stabilised.  However, I could find no medical reports that provided such verification.

43. In his report dated 5 December 2013, Dr Baglar recorded the conditions as being generally well managed causing minimal or limited impact on Mrs Koden’s ability to function. 

44. In his report dated 21 May 2014 (T-Documents page 152), Dr Polong includes the conditions in his list of Minimally Impacting Conditions.  As Dr Polong has not examined Mrs Koden but has compiled information from available documents, I consider it probable that he included the conditions based solely on Dr Baglar’s report. 

45. Dr Baglar’s description of Mrs Koden’s hypertension and hypothyroidism as being generally well-managed with no recommendations for further treatment indicates to me that the conditions are fully diagnosed, treated and stabilised.  I accept this to be the case and find that the conditions satisfy the requirements of section 6(3).  Accordingly, the conditions could be assessed for an impairment rating.  However, there is no evidence of any functional impairment as a result of these conditions. 

46. Dr Polong assigned 5 points against Table 1 Stamina because would not be expected to perform heavy strenuous physical activity because it could worsen hypertension.   I can find no material on which Dr Polong could have based his opinion.  I accept it as a generalised opinion based on his personal medical knowledge.  Nonetheless, I do not accept it as evidence relating to Mrs Koden. 

47. As I have no evidence that Mrs Koden suffers a functional impairment as a result of her hypertension and hypothyroidism, I assign to them an impairment rating of zero.

    Depression

48. Mrs Koden did not include depression in her application.  However, in her oral evidence she said she is disturbed about her psychological condition.  In addition, I note that in his report dated 4 June 1991 (T-Documents page 51), Dr Paulson included that Mrs Koden suffered from depression as one of three conditions.  In that report he assigned an impairment rating of five points.

49. Depression has not been included as a condition suffered by Mrs Koden in any reports since that of Dr Paulson.  Depression is not included in the report by Dr Milecki dated 9 July 1993 (T-Documents page 79). 

50. As there is no evidence at the relevant date that Mrs Koden suffered from depression, I find that the condition is not fully diagnosed, fully treated or fully stabilised.  Accordingly, it is not a permanent condition for the purposes of the Act and an impairment rating cannot be assigned to it.

    CONCLUSIONS

51. At the relevant date Mrs Koden suffered a spinal condition which attracts an impairment rating of 10 points.  In addition, she suffered from hypertension and hypothyroidism which attract a rating of zero points.

52. The total impairment rating is therefore 10 points.  This is less than the 20 points required to satisfy section 94(1)(b) of the Act.  In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied. Consequently Mrs Koden did not satisfy the provisions of section 94(1) of the Act and I find accordingly.  This means that at the relevant date Mrs Koden was not qualified for DSP.

53. This finding relates to Mrs Koden’s condition at 23 May 2014.  If Mrs Koden feels that her conditions have changed since that time she is at liberty to submit a further application for DSP.

    DECISION

54. I affirm the reviewable decision.

I certify that the preceding 54 (fifty‑four) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

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

Associate

Dated  20 April 2015

Date of hearing	7 April 2015
Applicant	In person
Advocate for the Respondent	Mr James Henderson – Human Services