Kalik and Secretary, Department of Social Services (Social services second review)

[2018] AATA 3745

Kalik and Secretary, Department of Social Services (Social services second review) [2018] AATA 3745 (9 October 2018)

Division:GENERAL DIVISION

File Number:           2018/0137

Re:Jadranka Kalik

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:9 October 2018

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualifies for the disability support pension – multiple medical impairments – whether applicant has permanent medical impairments which can be rated at 20 points or more under the Impairment Tables – whether applicant’s medical impairments are fully diagnosed, fully treated, fully stabilised and likely to persist for more than two years – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 42

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6

REASONS FOR DECISION

Dr L Bygrave, Member

9 October 2018

INTRODUCTION

1. Mrs Jadranka Kalik lodged a claim for disability support pension on 22 March 2017.

2. On 1 June 2017, the Department of Human Services (Centrelink) decided to refuse Mrs Kalik’s claim on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). This decision was affirmed by an authorised review officer of Centrelink on 31 October 2017.

3. Mrs Kalik then applied to the Social Services and Child Support Division (SSCSD) of the Tribunal for review and, on 11 December 2017, the SSCSD affirmed Centrelink’s decision to refuse Mrs Kalik’s claim for disability support pension.

4. On 11 January 2018, Mrs Kalik lodged an application for review to the General Division of the Tribunal.

5. The matter was heard in Sydney on 13 September 2018. Mrs Kalik did not have legal representation. She attended the hearing in person and gave evidence with the assistance of an interpreter of the Croatian language.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for the disability support pension, Mrs Kalik must satisfy the criteria in subsection 94(1) of the Act, which requires her to show she has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mrs Kalik must satisfy these criteria on 22 March 2017 when she applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (the claim period).

   Rules for assigning impairment ratings 

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevant to this matter, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the 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).

14. The Secretary concedes, and the Tribunal agrees, that Mrs Kalik suffers medical conditions that cause impairment and therefore she satisfied paragraph 94(1)(a) of the Act during the claim period.

15. It follows that the determinative issues in this matter are whether Mrs Kalik had during the claim period:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue 1 – Do the impairments rate at least 20 points under the Impairment Tables?

16. The evidence before the Tribunal shows Mrs Kalik has spinal and neck pain, shoulder pain, hearing loss and depression. I have considered each of these medical conditions and their relevant rating in accordance with the Impairment Tables Determination.

    Neck and back pain

17. Mrs Kalik suffers from long-standing spinal and neck pain following work-related injuries. This was verified in reports by Dr Medhat Guirgis (orthopaedic surgeon) dated 19 January 2003, 7 February 2003 and 2 August 2004; and reports by Dr Drew Dixon (consultant orthopaedic surgeon) on 24 April 2013 and 7 November 2016.

18. Medical imaging of Mrs Kalik’s lumber and cervical spine included:

    ·An X-ray of the lumbar spine on 27 January 2011 showed ‘scoliosis convex to the left in the upper lumbar region and convex to the right in the lower lumbar region’.[1]

    ·A CT of the cervical spine on 26 April 2013 revealed a ‘calcified posterior disc protrusion which has produced spinal canal stenosis’[2].

    ·A CT of the lumbar spine on 29 April 2013 showed ‘moderately severe right sided facet joint osteoarthritis with associated minor spondylolisthesis’ at L2/3 and a disc bulge at L3/4 and L4/5.[3]

    ·An X-ray of the cervical and thoracic spine on 1 February 2016 revealed ‘intervertebral disc spaces are reduced in the mid cervical spine and uncovertebral joint spaces are also reduced at C4/5, C5/6 and C6/7’ and ‘facet joint arthropathy in the lower lumbar spine’.[4]

    [1] Exhibit T-T29, p 202.

    [2] Exhibit T-T48.

    [3] Exhibit T-T49.

    [4] Exhibit T-T60.

19. Dr Monica Merey (general practitioner) provided medical certificates and reports that set out Mrs Kalik’s medical conditions, including a letter dated 7 February 2016, which stated Mrs Kalik has had ‘lower back pain and neck pain for years’ and is unable to sit or stand for a long time or lift, and is unable to do repetitive bending, pushing or pulling.[5]

    [5] Exhibit T-T62.

20. A medical form completed by Dr Jennifer Vines (general practitioner) on 15 February 2017 stated that Mrs Kalik has participated in treatment including physiotherapy, hydrotherapy, exercises and pain medication. Dr Vines stated that Mrs Kalik has restricted movement in her right shoulder, neck pain and pain in her lower back; she cannot lift more than five kg and cannot stand or sit for long periods.[6]

    [6] Exhibit T-T73.

21. After the claim period, Mrs Kalik was referred to Professor David Kandiah (rheumatologist) who provided reports dated 22 November 2017, 1 February 2018 and 3 May 2018.

22. In a report dated 22 November 2017, more than five months after the claim period, Professor Kandiah diagnosed Mrs Kalik with chronic spinal pain with referral to the peripheries, scoliosis in the lower spine with focus at L2/3 and clinical and radiological degeneration of the mid to lower cervical spine. Professor Kandiah also made the following statements regarding treatment:

    She [Mrs Kalik] needs treatment and as far as I can see has really only seen orthopaedic surgeons for assessment and one rheumatologist. My recommendation is that we start her on a muscle relaxant initially… I have asked her to come and see you [general practitioner] on a regular basis every 2-3 weeks to help us with this stepwise phase…

    I believe the Centrelink assessment is fair [in] that while she has all these medical problems, she has not had evidence of active treatment. Her response to active treatment will then delineate the component that is permanent… It is a matter of supporting her with the appropriate medication depending on response and tolerance.[7]

    [7] Exhibit T-T86, p 420.

23. Based on the evidence set out by Professor Kandiah in his report dated 22 November 2017, more than five months after the claim period, I am not satisfied that Mrs Kalik’s spinal and neck condition was fully diagnosed, fully treated and full stabilised during the claim period. This means that I am unable to assign points in accordance with the Impairment Tables Determination.

    Shoulder pain

24. Mrs Kalik stated that she experiences pain in her right shoulder that has become worse over the past 12 to 18 months.

25. A report by Dr Andrew Varnava (radiologist) on 30 September 2016 stated that an x-ray of Mrs Kalik’s right shoulder showed ‘degenerative changes of the AC joint’ and an ultrasound of her right shoulder revealed ‘small insertional tears of the supraspinatus tendon. Mild subacromial bursitis with bursal impingement’.[8]

    [8] Exhibit T-T69.

26. Dr Dixon, in a report dated 9 November 2016, diagnosed Mrs Kalik with right shoulder strain injury with post traumatic stiffness and stated that Mrs Kailk reported ‘increasing pain and stiffness in her right shoulder’ and ‘difficulty doing repetitive tasks’ and ‘sustained elevation of the right arm above shoulder height’.[9]

    [9] Exhibit T-T70, pp 337-338.

27. Professor Kandiah reported on 22 November 2017 that:

    Examination of [Mrs Kalik’s] shoulders showed good functional range of movement with no pain, but she reported that the pain only comes on if she keeps on moving her shoulders, which again I believe is referred from the spine.[10]

    [10] Exhibit T-T86, p 420.

28. A report by Dr Mathew Sherlock (orthopaedic surgeon) on 11 January 2018 stated that Mrs Kalik’s ‘plain x-rays were unremarkable. An ultrasound did not show evidence of bursitis or significant cuff pathology’.[11] Dr Sherlock assessed Mrs Kalik’s shoulder pain to be related to her cervical spine.

    [11] Exhibit A11.

29. Dr Merey reported on 1 February 2018 that Mrs Kalik’s right shoulder is ‘functionally severely impaired’ and she has been diagnosed with osteoarthritis in her right shoulder and frozen right shoulder.[12]

    [12] Exhibit A1.

30. Based on the medical evidence, I am satisfied that Mrs Kalik’s right shoulder condition was fully diagnosed during the claim period. However, I note the medical evidence in relation to Mrs Kalik’s right shoulder is not consistent. There also is minimal information in about the treatment undertaken by Mrs Kalik and whether her right shoulder condition was stabilised during the claim period. I am not satisfied this condition was permanent during the claim period and, therefore, I cannot assign any points for this condition in accordance with the Impairment Tables Determination.

    Hearing loss

31. Mrs Kalik has total hearing loss in her left ear. This was verified by Dr James Whelan (ear, nose and throat surgeon) on 15 March 1996. Dr Ibrahim Rabie (specialist) also provided reports dated 13 June 2012 and 4 July 2012, which confirmed she has total hearing loss in her left ear and some degree of hearing loss in the higher frequency affecting her right ear.

32. More recently, audiology tests conducted on 2 February 2016 showed Mrs Kalik had long-standing profound sensorineural hearing loss in her left ear and very good speech discrimination scores in her right ear at slightly elevated levels. Further audiology tests on 2 May 2017 noted a mild change in hearing since 2016, with significant asymmetry in the left ear.

33. Dr Allan Forrest (ear, nose and throat surgeon) examined Mrs Kalik and provided a report dated 4 December 2017 that set out the following information:

    Audiogram confirms a profound left sensori-neural hearing loss and a mild right sensori-neural hearing loss. A CROCS type hearing aid system may help…so I’ve given her details of our visiting audiologist…for him to offer an opinion about CROCS type aiding.[13]

    [13] Exhibit A12.

34. At the Tribunal hearing, Mrs Kalik said that she has previously tried to use a hearing aid but it did not assist her. She explained that her hearing loss affected her ability to work as she sometimes did not hear comments from colleagues or directions from managers. I observed that Mrs Kalik participated in the Tribunal hearing with the assistance of an interpreter of the Croatian language and the parties spoke at an average volume. Mrs Kalik said she is able to use her mobile phone with her right ear and does not use a T switch. She does not rely on sign language or lip-reading.

35. Based on the evidence, I am satisfied Mrs Kalik’s hearing condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with Table 11 – Hearing and other Functions of the Ear of the Impairment Tables Determination, I find Mrs Kalik has a mild functional impairment of activities involving hearing (communication). Accordingly, I assign Mrs Kalik five points.

    Depression

36. The following provides a summary of medical reports by practitioners who were consulted by Mrs Kalik in relation to her mental health:

    ·In a report dated 8 February 2003, Dr D Kecmanovic (consultant psychiatrist) diagnosed Mrs Kalik with mixed anxiety and depression disorder.

    ·Dr Margaret Pickles (psychiatrist) reported on 24 January 2005 and 1 April 2005 that Mrs Kalik suffered from severe depression and had been treated with anti-depressant medication from January 2005.

    ·A medical report completed by Dr Merey on 5 June 2014 stated that Mrs Kalik has depression, takes medication and plans to seek counselling.

    ·Ms Gordana Hol-Radicic provided reports dated 1 July 2014 and 19 March 2018 and gave evidence to Centrelink by telephone on 12 February 2016. In her report on 1 July 2014, Ms Hol-Radicic diagnosed Mrs Kalik with major depressive disorder, complex post-traumatic stress disorder and anxiety.

    ·A report by Ms Marcia Lucchese (psychologist) on 18 December 2017 stated that Mrs Kalik has extremely severe levels of depression, anxiety and stress.

    ·Mr Robert Pringle (clinical psychologist) reported the following diagnosis on 17 February 2018:

    …a DSMV diagnosis of “Other Specified trauma and Stressor related Disorder (persistent and complex war related trauma) may be applicable rather than a formal diagnosis of PTSD.

    The residual symptoms of PTSD [Mrs Kalik] reports, however, are nevertheless chronic and clinically significant.

    In association with these residual symptoms, [Mrs Kalik] also reports clinically significant depressive symptoms which I think would fall into a diagnosis of Dysthymia (rather than a Major Depressive Disorder). She also experiences symptoms of a chronic Anxiety Disorder.[14]

    ·Dr Nikola Tomic (clinical psychologist) provided a report dated 9 May 2018, which stated Mrs Kalik ‘suffers from a severe and chronic depressive disorder, which is complicated by prominent anxiety symptoms’.[15]

    [14] Exhibit A4.

    [15] Exhibit A5.

37. The Secretary contended that Mrs Kalik’s mental health condition was not diagnosed as required by the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination because she was not diagnosed by an ‘appropriately qualified practitioner’ – either a clinical psychologist or a psychiatrist – before or during the claim period. In particular, the Secretary advised that Ms Hol-Radicic is registered with the Australian Health Practitioner Regulation Agency (AHPRA) under the name ‘Ms Gordana Hol’ as a psychologist, not a clinical psychologist.

38. Based on the evidence before the Tribunal, I am not satisfied that Mrs Kalik’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period as required by the Impairment Tables Determination. In particular, I find the diagnoses made by Dr Kecmanovic and Dr Pickles in 2003 and 2005 to have limited clinical reliability because more than 12 years has passed from the diagnosis in 2005 to the claim period in 2017. Based on my review of the AHPRA Register, I also find that Ms Hol-Radicic is not a clinical psychologist. This means that Mrs Kalik’s mental health condition was not made by an appropriately qualified medical practitioner before or during the claim period. For these reasons, I am unable to assign any points for this condition in accordance with the Impairment Tables Determination.

    CONCLUSION

39. For the reasons set out above, I am satisfied that Mrs Kalik did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period as her impairments were not rated at 20 points or more under the Impairment Tables.

40. As I find that Mrs Kalik did not qualify for the disability support pension during the claim period, it is not necessary to consider whether she had a continuing inability to work.

41. If Mrs Kalik’s circumstances change, she is entitled to submit a new application for the disability support pension.

    DECISION

42. The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 9 October 2018

Date(s) of hearing:	13 September 2018
Applicant:	In person
Solicitors for the Respondent:	Dr Steve Thompson