Joulet Gergis and Secretary, Department of Social Services
[2014] AATA 645
[2014] AATA 645
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3364
Re
Joulet Gergis
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 5 September 2014 Place Sydney The decision under review is affirmed.
............................[sgd]............................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)(a), 94(1)(b)
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
5 September 2014
BACKGROUND
On 8 May 2012 Mrs Gergis lodged a claim for Disability Support Pension (DSP) on the basis that her various medical conditions were having an impact on her ability to function. The conditions as described in the claim form included “depression” and a number of symptoms related to her spine, upper and lower limbs, heart and abdomen.
Mrs Gergis’ claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that she did not have an impairment rating of at least 20 points under the Impairment Tables.
In this proceeding Mrs Gergis seeks review of the decision of the SSAT.
At the hearing Mrs Gergis was self-represented and assisted by an Assyrian language interpreter.
ISSUES
In order to be qualify for DSP Mrs Gergis had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 8 May 2012 and 6 August 2012.
The respondent accepts that, during the claim period, Mrs Gergis satisfied s 94(1)(a) of the Act, in so far as she had impairments arising from the following medical conditions:
·Mental health condition
·Spinal condition (cervical spondylosis)
·Right upper limb condition
·Right lower limb condition
·Hay fever
·Osteopaenia
·Gynaecological condition
·Visual condition
The respondent contends that, during the claim period, none of these medical conditions was permanent within the meaning of the Act and that no impairment ratings could be assigned so that the total rating under the Impairment Tables was nil and that Mrs Gergis was not qualified for DSP.
Therefore the relevant issue to be decided by the Tribunal is whether, during the claim period, Mrs Gergis’ impairment had a rating of 20 points or more under the Impairment Tables.
IMPAIRMENT RATING
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner and that in the assessment of a person’s impairment there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
Mrs Gergis’ Mental Health Condition
Mrs Gergis claim was supported by a Centrelink Medical Report dated 4 April 2012 in which Dr Lam, general practitioner, lists “Anxiety/ Depression’ as a condition that has a significant impact on Mrs Gergis’ capacity to function.
Dr Lam records various symptoms, describes current treatment as counselling and “relation technique” and indicates that medication and “psychiatrist” may be needed.
I note that functional impairment caused by a mental health condition is assessed under Impairment Table 5 and that the Introduction to the Table stipulates that the diagnosis of a 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 by a psychiatrist)”.
In a Centrelink Medical Report dated 14 September 2011 Dr Benjamin, consultant psychiatrist, lists “Hypochondriasis - Obsessive Compulsive Disorder” as a condition which has significant impact on Mrs Gergis’s ability to function and notes that she has been his patient since 23 November 2010.
Dr Benjamin records past treatment as Lexapro, current treatment as Endep, Neulactil and psychotherapy and describes the impacts of the condition upon her ability to function; primarily, poor concentration, poor motivation and social withdrawal.
In a Job Capacity Assessment (JCA) report submitted on 30 April 204 the assessor reports a discussion with Dr Benjamin that occurred on 29 April 2014.
In this discussion Dr Benjamin is reported as confirming that Mrs Gergis had intermittent presentation of very mild anxiety and on most occasions would be well functioning; that she had attended sporadically 5-6 session of treatment over a course of 4 years during 2008-2012 and told him during consultations that she did not take her medications regularly and that she was responsible for and manages all home duties including cleaning and cooking.
Dr Benjamin stated that Mrs Gergis was well presented, her self-care was not affected and that she did not require further psychiatric treatment.
The evidence in respect of Mrs Gergis’ mental health condition during the claim period is perhaps best described as confusing with some inconsistencies.
Nevertheless, I am satisfied that Dr Benjamin had diagnosed a condition that has been treated and stabilised during the claim period and that this had a mild functional impact on Mrs Gergis’ activities involving mental health function.
Therefore, a rating of 5 points under Impairment Table 5 can be allocated.
Mrs Gergis’ Spinal Condition
In his report of 4 April 2012 Dr Lam lists cervical spondylosis as a condition that has a significant impact on Mrs Gergis’ ability to function.
Dr Lam notes current treatment as Panadol-Osteo and neck exercise and future treatment as conservative. He describes functional impact as “unable to do heavy or repetitive lifting. Unable to work in awkward postures.”
The report of a cervical spine X-ray dated 16 March 2012 notes moderate to severe spondylosis at the C4/C5 and C6/C7 discs as well as anterior subluxation of C4 on C5.
I am satisfied that, during the claim period, Mrs Gergis suffered from cervical spondylosis and that the condition was permanent within the meaning of the Act
There is little corroborating evidence in respect of functional impact but I am satisfied the Mrs Gergis suffered at least mild functional impact during the claim period and that 5 points under Impairment Table 4 can be allocated.
Mrs Gergis’ right upper limb condition
At the hearing Mrs Gergis explained that she had developed symptoms in the right shoulder about 2 years ago and that she was treated with analgesia and told to rest, however, the symptoms did not go away and in fact increased.
An X-ray of the right shoulder performed on the 27 March 2012 was reported as showing a “minor subacromial spur” and “minimal degenerative change” at the inferior margin of the acromioclavicular joint. There was no fracture or rotator cuff tendon calcification seen.
In his report of 4 April 2012 Dr Lam makes no mention of a right shoulder condition.
In a letter dated 4 October 2013 Dr William Menashi, general practitioner, states that Mrs Gergis has had chronic right shoulder pain and that he has diagnosed supraspinatous tendinopathy which was confirmed by an ultrasound examination on 16 August 2013.
In my view there is insufficient evidence before Tribunal to support a conclusion that Mrs Gergis’ shoulder condition was diagnosed, treated and stabilised during the claim period and therefore an impairment rating cannot be allocated
The positive findings of the ultrasound examination of 16 August 2013, 12 months after the end of the claim period, is of no assistance in this application but may be of benefit in a new application for DSP
Right Lower Limb condition
In his report of 4 April 2012, Dr Lam lists “painful swelling of R ankle” as a condition that is generally well managed, which causes limited impact, but which he nevertheless notes as having an impact in the form of being “unable to have prolonged walking”.
Dr Lam provides no diagnosis, no date of onset and makes no comment as to how long any impairment is likely to persist.
On 23 October 2006 a SPECT bone scan was performed because of a “painful and swollen right ankle”. The scan is reported as showing marked increase in osteoblatic reaction in basal lateral aspect of right navicular bone and increased uptake in the” left 1st MTP joint”. The scan appearance was considered to be consistent with acute stress fracture of the basal lateral aspect of the right navicular bone.
The report of a CT scan of the right foot dated 24 November 2006 describes the findings as a “small to moderate sized plantar calcaneal spur” and a “bony ossicle adjacent to medial aspect of the navicular, this is a normal variant. The navicular bone otherwise appeared normal with no fracture noted.”
The report of an X-ray of the right ankle dated 19 March 2012 describes the findings as “an accessory ossicle is noted adjacent to the neck of the talus. The foot shows a degree of pes planus. Plantar calcaneal spur formation is noted. An accessory ossicle is noted medial to the navicular”.
The relevance of these scans and X-ray findings with respect to Mrs Gergis’ claimed symptoms of recurrent pain and swelling of the right ankle is unclear.
Therefore, as there is no working diagnosis and little corroborating medical evidence with respect to treatment or ongoing functional impairment during the claim period, I am satisfied that Mrs Gergis’ claimed lower limb condition cannot be allocated any points under the Impairment Tables.
Mrs Gergis’ other medical conditions
In his report of 4 April 2012 Dr Lam lists “hay fever “ as a condition that it well managed and causes minimal or limited functional impact, therefore, the impairment rating is nil.
The report of a bone mineral densitomety study performed on the 31 October 2006 notes that lumbar spine bone mineral density is normal and that femoral neck bone mineral density is mildly reduced consistent with osteopaenia. I note that the report does not diagnose ‘osteoporosis’.
There is no corroborating medical evidence of any functional impact in respect of this condition and therefore the impairment rating is nil.
I note that on 15 May 2012 Mrs Gergis’ told the JCA assessor that she had three surgical procedures to remove ovarian cysts prior to 2007.
There is no other relevant medical evidence in respect of her gynaecological condition and therefore the impairment rating is nil.
In a letter dated 10 May 2012 Dr Franks, eye surgeon, notes that Mrs Gergis has visual acuity of 6/6 in each eye, a cataract in the left eye and that no treatment is required other than a prescription for new spectacles.
As there is no evidence of any significant functional impact in respect of Mrs Gergis’ visual condition the impairment rating is nil.
DECISION
For the reasons set out above, I am satisfied that during the claim period Mrs Gergis’ total impairment rating under the Impairment Tables was not greater than 10 points.
This means that Mrs Gergis’ did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander ........................................................................
Associate
Dated 5 September 2014
Date of hearing 29 August 2014 Applicant In person Solicitors for the Applicant Ms Andrea Garcia, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Disability Support Pension
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Statutory Interpretation
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