Kalik and Secretary, Department of Employment and Workplace Relations
[2006] AATA 310
•4 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2005/1519
GENERAL ADMINISTRATIVE DIVISION ) Re JADRANKA KALIK Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N. Isenberg, Member Date4 April 2006
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Ms N. Isenberg
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical and psychiatric impairments – cervical (neck) condition and hearing loss – less than 20 points under Impairment Tables – psychiatric condition not fully diagnosed, treated and stabilised – decision affirmed
Social Security Act 1991 – section 94, Schedule 1B
Social Security (Administration) Act 1999 – Schedule 2
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Tlonan and Department of Social Security (1997) 24 AAR 467
Re Kitanovski and Secretary, Department of Family and Community Services [2004] AATA 301
REASONS FOR DECISION
4 April 2006
Ms N. Isenberg, Member
DECISION UNDER REVIEW
1. This is an application by Mrs Jadranka Kalik for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 4 November 2005 to reject her claim for disability support pension (“DSP”). The SSAT affirmed the decision of an authorised review officer made on 21 April 2005 to reject her claim for DSP as her claimed conditions had not been fully investigated, diagnosed and treated and she did not have a total impairment rating of 20 points.
BACKGROUND
2. Mrs Kalik was born on 13 July 1960 and is now 45 years of age.
3. On 19 October 2004 Mrs Kalik lodged a claim for DSP (T22).
4. On 21 October 2004 a treating doctor’s report was completed by Dr Garagounis in which he considered cervical neck degeneration and thoracic spine degeneration as conditions which have a significant impact on Mrs Kalik’s ability to function. He found her rotator cuff (right shoulder) to be well managed and to have minimal or limited impact on her ability to function (T24). On 2 November 2004 Dr Garagounis completed a medical certificate with reference only to cervical neck discopathy (T25).
5. On 18 November 2004 Mrs Kalik was examined by Ms J Harris, Rehabilitation Consultant, APM (T26). She was given 10 points under Table 5.1 for her neck condition. She was found not to have a continuing inability to work. As a result, on 6 December 2004 Mrs Kalik’s claim for DSP was rejected on the basis that her impairment rating was less than 20 points (T27).
6. On 14 December 2004 Mrs Kalik submitted a further treating doctor’s report completed by Dr Garagounis dated 13 December 2004. There he referred to her cervical neck discopathy and post traumatic stress syndrome as having a significant impact on Mrs Kalik’s ability to function. Her hearing loss, hypertension and vertigo were considered to be well managed and to have minimal or limited impact on her ability to function (T30).
7. On 24 January 2005 a questionnaire was completed by Dr Pickles, Consultant Psychiatrist, who noted that treatment has only begun for Mrs Kalik’s depression (T32).
8. After Mrs Kalik requested a further review of the original decision (T35) she was examined by Ms S Phillips, Centrelink Psychologist on 1 April 2005. She was given a total impairment rating of 10 points (T38). Her PTSD had not been treated and stabilised.
ISSUES BEFORE THE TRIBUNAL
9. There is no dispute that Mrs Kalik has neck and shoulder pain as well as hearing loss. Therefore, she satisfies section 94(1)(a) of the Social Security Act 1991 (“the Act”) with respect to those conditions.
10. The issues to be determined in relation to this matter are:
a)Whether Mrs Kalik had a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,
b)Does she have a continuing inability to work because of the impairment, where:
· the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and either
· the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; or
· such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.
CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP
11. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mrs Kalik was entitled to the disability support pension by 18 January 2005.
THE HEARING
12. A hearing was held on 24 March 2006 at which Mrs Kalik was self-represented and was assisted by a Croatian interpreter. The Secretary, Department of Employment and Workplace Relations (“Centrelink”) was represented by Mr G. Lozynsky, an advocate from the Legal Services Branch of Centrelink.
13. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), further documents were tendered. 14. Mrs Kalik gave evidence and was cross-examined on behalf of Centrelink. I also asked her questions.
15. I asked Mrs Kalik to specifically comment on her conditions as at the date of her application for disability support pension and in the following 3 months, and not her current symptoms. This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 19 FCR 342.
16. Mrs Kalik spoke about each of her conditions in turn. The relevant evidence is discussed below.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
17. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
18. The issues to be considered by me are therefore whether Mrs Kalik has an impairment rating of 20 points or more and, if so, whether she has a continuing inability to work. I will address the first issue, of the appropriate impairment rating, by examining each of those conditions in the context of the Impairment Tables.
Did Mrs Kalik by 18 January 2005 have a physical, intellectual or psychiatric impairment of 20 points or more?
Cervical (Neck) Condition
19. Mrs Kalik gave evidence of suffering pain in the upper/mid back between the shoulders and that her shoulder and right neck muscles are tight. She experiences the pain mainly when she is doing any repetitive work. For example she does not have pain while walking or swimming but does so when vacuuming. In 2002 she saw a chiropractor, and in 2003 she saw a physiotherapist. In 2004 she was taking Neurofin, perhaps two a day.
20. In his treating doctor’s report dated 21 October 2004, Dr Garagounis found Mrs Kalik to be suffering from cervical neck pain and disc space reduction of 50% (T24/90).
21. In her report of 18 November 2004, Ms Harris, APM Rehabilitation Consultant, found a loss of half of Mrs Kalik’s range of movement plus pain (T26/105) which attracted a rating of 10 points under Table 5.1. Table 5.1 of the Impairment Tables in Schedule 1B of the Act provides as follows:
“TABLE 5.1 Cervical spine
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement.
TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTY Loss of three-quarters of normal range of movement and constant neck pain.
THIRTY Loss of almost all movement, or complete ankylosis in position of function.
FORTY Ankylosis in an unfavourable position, or unstable joint.”
22. Ms Phillips, Centrelink Psychologist, agreed with a rating of 10 points in her report dated 4 April 2005 (T38/142).
23. I consider that it is appropriate to allocate 10 points in respect of Mrs Kalik’s neck condition under Table 5.1.
Hearing loss
24. Dr Garagounis, in his report dated 21 October 2004 did not mention this condition (T24) and in the medical certificate he completed on 2 November 2004 he did not list hearing loss as a condition impacting on Mrs Kalik’s capacity for work or study (T25/96). In his treating doctor’s report of 13 December 2004, he referred to this condition as being generally well managed and causing minimal or limited impact on her ability to function (T30/119). On this basis Centrelink contended that there is little in terms of objective evidence that would support Mrs Kalik’s claims of being severely disabled as a result of her hearing loss.
25. The SSAT applied Table 12.2 and Mrs Kalik’s binaural hearing loss of 20.9% attracted a nil rating (T2/7). A HSA medical adviser provided a report dated 23 March 2006 which confirmed that calculation.
26. Mrs Kalik told me that she could not understand how her hearing loss could be assessed at 0 points when she is completely deaf in one ear. As anomalous as that result may seem, Table 12.2, which I am bound to apply, relies on the objective audiological testing results (T51). There is no subjective element in making the assessment, for example, as to ability to hear in crowds. Mrs Kalik may experience difficulties in those circumstances, but, unfortunately, that is not the test to be applied.
27. The calculation of Mrs Kalik’s hearing loss was properly assessed at 20.9%, which included both left and right ears taken together, as is the appropriate course. A hearing loss at that level, when applying Table 12.2, results in 0 points.
28. Mrs Kalik told me that, in addition to her hearing loss she suffers ‘constant buzzing’ in the ears. She has had the condition for about 13 years, but it has been worse in the last 6. It is especially bad if she is stressed and gives her headaches. It may occur 2-3 times a week and last for half an hour before it subsides.
29. None of the medical evidence, which includes medical reports back to early 2003, has mentioned the condition. There is no diagnosis of tinnitus. I am unable to make an assessment of a condition which has not even been diagnosed.
Depression or PTSD
30. Mrs Kalik said that she had suffered depression during the Yugoslav War when her husband was a prisoner of war.
31. Her depression was worse in 2002 when she was having conflict at work, which she believed was because her English was poor and her hearing made communication difficult. She saw Dr Kecmanovic, Consultant Psychiatrist, twice (T5) but did not persevere with treatment. She did not find him sympathetic because even though he spoke her language, he was of different ethnicity.
32. Mrs Kalik said her depression continues.
33. However, in relation to an earlier claim for the disability support pension a treating doctor’s report was provided by Dr Todorovic (T10/32) dated 22 October 2003. No mention was made of any psychiatric condition. Similarly, when assessed by Ms Harris, Rehabilitation Consultant of APM, on 29 October 2003 (T12/41) no mention was made of a psychiatric condition. A medical certificate provided by Dr Hakewill dated 5 August 2004 (T17) also did not refer to such a condition.
34. In relation to the present claim dated 19 October 2004 and lodged by Mrs Kalik, no mention is made of her suffering from depression (T22/75). Neither did Dr Garagounis, in his report dated 21 October 2004 (T24). Similarly, the medical certificate completed by Dr Garagounis, dated 2 November 2004, did not list depression as a condition impacting on Mrs Kalik’s capacity for work or study (T25). The fresh report of Ms Harris, dated 18 November 2004, also made no mention of depression (T26).
35. In relation to these omissions Mrs Kalik said that she did not know what her doctors wrote because they gave her their reports in envelopes. When she was examined on Centrelink’s behalf she just answered questions as they were put to her.
36. In Dr Garagounis’ treating doctor’s report dated 13 December 2004, the diagnosis of post traumatic stress disorder was presumptive only and at that time Mrs Kalik was only receiving counselling (T30/117-118). This contrasts with a letter dated 18 March 2006 from Dr Garagounis, stating that she has suffered “reactive depression” for at least 10 years.
37. Mrs Kalik said she was referred by her GP to another psychiatrist, Dr Pickles, who she saw for the first time in January 2005. She was prescribed Luvox but did not take all the medication because it made her sleepy.
38. In the questionnaire completed by Dr Pickles dated 24 January 2005, it was noted that Mrs Kalik had recently commenced treatment and was required to trial this treatment for at least 6 months (T32/123). No prognosis was given because the doctor had only seen Mrs Kalik on two occasions (T32/122). The doctor commented that there were no factors such as literacy, poor concentration or memory which would affect Mrs Kalik’s capacity to search for jobs (T32/123). Mrs Kalik said that in November 2005 her prescription was changed from Luvox to Xydep which she also did not continue because it made her laugh all the time.
39. In her report dated 4 April 2005, Ms Phillips, Centrelink Psychologist, considered that Mrs Kalik’s mental health condition had not been treated and stabilised and noted that she had only commenced seeing a psychiatrist in the previous 6 months (T38/136). According to information provided by Dr Pickles, the medication would take a while to work (T38/137). Ms Phillips agreed that Mrs Kalik requires ongoing counselling and medication to treat her depression (T38/144).
40. I do not know why, if Mrs Kalik has had as long a history of depression as she claims, no medical professional since early 2003 (other than the recent remarks by the GP) has mentioned the condition. It is clear though that Mrs Kalik in early 2005 came under the care of a psychiatrist, Dr Pickles. From January 2005 she was being trialled on anti-depressants by Dr Pickles who was expecting to see results after 6 months use (T32). (From Mrs Kalik’s evidence it appears that the initial medication was unsuitable, as has been that prescribed in November 2005.)
41. Clauses 4 and 5 of the Introduction to the “Tables for the Assessment of Work-Related Impairment for Disability Support Pension” (Schedule 1B of the Act) state that:
“4. … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...
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…”
42. Centrelink contended that Mrs Kalik’s psychiatric condition cannot be regarded as a permanent condition because it had not been fully diagnosed, treated and stabilised within 13 weeks of lodgement of her claim for DSP. I agree with this submission. There is insufficient evidence for me to find that her psychiatric condition was “treated” and “stabilised” within 13 weeks of her claim for the purpose of the Impairment Tables as was held in the AAT cases of Re Tlonan and Department of Social Security (1997) 24 AAR 467 and Re Kitanovski and Secretary, Department of Family and Community Services [2004] AATA 301.
Combined impairment
43. The overall impairment rating is therefore 10 points. This falls short of the 20 points or more required under section 94 of the Act for eligibility to receive the disability support pension. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether Mrs Kalik has a continuing inability to work.
DECISION
44. The decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member:
Signed: A. Garcia
AssociateDate of Hearing 24 March 2006
Date of Decision 4 April 2006
Representative of the Applicant self represented
Advocate for the Respondent Mr G. Lozynsky
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