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

[2016] AATA 144

Kapitula and Secretary, Department of Social Services (Social services second review) [2016] AATA 144 (11 March 2016)

Division	GENERAL DIVISION
File Number	2014/5757
Re	Connie Kapitula
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	11 March 2016
Place	Adelaide

The Tribunal affirms the decision under review

.....................[Sgd]...................................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant's medical conditions are fully diagnosed, fully treated and fully stabilised within 13 weeks of the claim - whether applicant's conditions warrant a rating of 20 points under the Impairment Tables - whether applicant's conditions warrant a rating of 20 points or more under a single impairment table - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

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

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

11 March 2016

INTRODUCTION

1. Ms Kapitula lodged a claim for disability support pension (DSP) on 20 September 2013.  Centrelink rejected the claim on 5 December 2013 and Ms Kapitula requested internal review of that decision.  It was affirmed by an authorised review officer (ARO) of Centrelink on 31 July 2014.  Ms Kapitula then applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision.  Her application did not succeed.  Ms Kapitula has now applied to the Administrative Appeals Tribunal for a review of the SSAT decision.

2. The hearing before the Tribunal took place on 13 January 2016.  Ms Kapitula was self‑represented and she gave evidence.  The Secretary was represented by Ms Odgers.  Various medical reports were received in evidence as exhibits together with reports from Centrelink.

   LEGISLATION AND ISSUES

3. The issue for the tribunal is whether Ms Kapitula satisfied the qualification criteria for the DSP which are set out in s 94 of the Social Security Act 1991 (the Act).  In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Ms Kapitula’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 20 September 2013 to 20 December 2013.

4. Section 94 of the Act provides that a person is qualified for DSP if :

   (a)The person has a physical, intellectual or psychiatric impairment;

   (b)The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)The person has a continuing inability to work.

5. In accordance with s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

   This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table

6. The main issues for determination are whether Ms Kapitula’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and if so, whether she had a continuing inability to work.

7. The Secretary conceded that Ms Kapitula suffered from a number of medical conditions including bipolar affective disorder, epilepsy, head injury, post-traumatic stress disorder, anxiety and asthma. Accordingly the Secretary conceded that the first requirement under s 94(1)(a) is satisfied.

8. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the Rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work. 

   CONSIDERATION

9. The applicable impairment rating for each of Ms Kapitula’s conditions will be considered in turn by reference to the Impairment Tables.  As indicated, consideration must be given to whether each condition was fully diagnosed, treated and stabilised during the assessment period before determining an impairment rating, as the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.

   Epilepsy

10. The Secretary conceded that the condition of epilepsy was fully diagnosed, treated and stabilised during the assessment period.  That concession was correct and is in accordance with the findings both of the ARO and the SSAT.  The ARO allocated 5 impairment points under Table 15 for a mild functional impact caused by the condition of epilepsy.  The SSAT allocated 10 impairment points for a moderate functional impact.

11. Impairment Table 15 relates to functions of consciousness and is used where the person has a permanent condition leading to functional impairment through involuntary loss or altered state of consciousness, such as epilepsy.  The diagnosis of the condition must be made by an appropriately qualified medical practitioner and corroborating evidence of the impairment is required.

12. In relation to mild functional impact, Table 15 states as follows:

Points

Descriptors

5

There is a mild functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)      The person:

(a)      either:

(i)       has rare episodes of involuntary loss of consciousness, which:

(A)      occur no more than twice per year; and

(B)      do not usually require hospitalisation; or

(ii)       has episodes of altered state of consciousness, which:

(A)      occur no more than twice per year; and

(B)      do not usually requiring [sic] hospitalisation; and

(b)      is able to perform most activities of daily living between episodes; and

(c)    may have restrictions on a driver’s licence due to the medical condition.

1. For moderate functional impact, Impairment Table 15 states as follows:

Points

Descriptors

10

There is a moderate functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)      The person:

(a)      either:

(i)       has episodes of involuntary loss of consciousness:

(A)      which occur more than twice each year but not every month; and

(B)      which require the person to receive first aid measures and occasionally emergency medication or hospitalisation; or

(ii)       has episodes of involuntary altered state of consciousness:

(A)      which occur at least once per month; and

(B)      which are less than 30 minutes in duration; and

(C)      during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and

(b)      is able to perform many activities of daily living between episodes; and

(c)      is unlikely to be granted a driver’s licence and may have other safety-related restrictions on activities; and

(d)      is not able to attend work, education or training activities on a full‑time basis and is restricted due to safety issues in the work‑related activities that they can undertake.

1. Ms Kapitula’s general medical practitioner, Dr Islam, wrote in a report dated 31 January 2014,[1] that Ms Kapitula had suffered from epilepsy since childhood and the diagnosis had been confirmed by a neurologist, Dr Norton.  Dr Islam reported that the exact cause of the condition was not known.  The epilepsy had an impact on Ms Kapitula’s ability to function because it caused intermittent loss of consciousness, convulsions and impaired memory and concentration.  Dr Islam expected the impact of the condition to persist for more than 24 months.  Treatment was through medication.  Dr Islam reported the frequency of these seizures as “on and off”.[2]

   [1] Exhibit 1, T20 p 216-226.

   [2] Exhibit 1, T20 p 223.

2. Consistently with Dr Islam’s report, a report by Dr Mah from the Royal Adelaide Hospital[3] confirmed that Ms Kapitula suffers from tonic-clonic seizures, occurring episodically and lasting several minutes.  Dr Mah reported that the frequency of the seizures was variable and improved, though not eliminated, by anticonvulsant medication.  Dr Mah wrote that the epileptic seizures led to impaired concentration, memory and decision making.  Dr Mah confirmed Ms Kapitula’s inability to drive a motor vehicle because of epilepsy.

   [3] Exhibit 1, T31 p 255-265.

3. In mid 2015 Ms Kapitula consulted a psychologist, Mr Lukowicz.  In his report dated 4 January 2016[4] he confirmed that he conducted a behavioural analysis assessment to gain insight into possible life style stressors which might induce seizures.  Mr Lukowicz wrote that Ms Kapitula had not suffered seizures for the last two years.  He provided her with hypnosis to assist with relaxation and to enhance aspects of her social, self confidence.

   [4] Exhibit 6.

4. A Job Capacity Assessment report was conducted on 12 November 2013.[5]  The assessor was a physiotherapist and the contributing assessor was a registered psychologist.  The JCA report noted that Ms Kapitula had not suffered seizures in the twelve months prior to the assessment.  In relation to functional capacity the JCA report stated:

   “The client reports attending to her personal care, domestic duties (e.g. cooking, cleaning, shopping) and motherly duties for her twelve year old daughter …”[6]

   Following an earlier assessment on 20 February 2013,[7] an Employment Services Assessment Report confirmed that Ms Kapitula described experiencing 5-6 seizure episodes per year which typically involved loss of consciousness together with amnesia for events surrounding the seizures.  The report stated that a prolonged period of recovery was usually involved, while noting that Ms Kapitula was using prescribed anticonvulsant medication and was having ongoing review with the Neurology Department at the Modbury Hospital.

   [5] Exhibit 1, T24 p 244-248.

   [6] Exhibit 1, T24 p 245.

   [7] Exhibit 1, T23 p 238.

5. In her evidence to the Tribunal, Ms Kapitula said that her last seizure occurred in November 2013.  She gave evidence about the seizures and their impact.  She said the seizures did not always follow the same pattern.  Often they occurred after warning signs.  She said that she was hospitalised after seizures and recovery periods could be up to three weeks.  In between seizures she acknowledged that she can go about her daily routine and domestic activities. 

6. At the time of making her DSP claim, the evidence suggests that Ms Kapitula endured a moderate functional impact from the condition of epilepsy.  The pattern at that time was of seizures which occurred more than twice per year, though not every month, and at times needed hospitalisation.  The Tribunal considers that the appropriate rating is 10 impairment points under Table 15 regarding Ms Kapitula’s condition of epilepsy.

   Mental Health Function – Bipolar Affective Disorder

7. On 6 August 2013 Ms Kapitula was admitted to Glenside Hospital and subsequently she was transferred to the Royal Adelaide Hospital for psychiatric care. Ms Kapitula’s general medical practitioner, Dr Islam reported that she suffered from bipolar affective disorder and that the diagnosis was confirmed by a psychiatrist, Dr Kimber  In her report, Dr Mah confirmed that the diagnosis of bipolar disorder was based on consecutive clinical assessments and screening for organic causes.  Dr Mah noted long standing stressors which included emotional problems and post-traumatic stress disorder.  In relation to the impact on Ms Kapitula’s ability to function, Dr Mah reported:

   “When unwell,” Ms Kapitula “undertakes high risk behaviours and demonstrates thought disorganisation causing difficulties with planning and vocational tasks.  In addition, she may develop significant neurological/cognitive dysfunction.  Currently she requires acute supportive care for her activities of daily living and her future functioning will be determined by compliance and engagement with mental health services.”[8]

   [8] Exhibit 1, T31 p 260.

8. Both Dr Mah and Dr Islam confirmed that when Ms Kapitula was experiencing mental health problems she exhibited high risk behaviour which was associated with difficulties with sleeping, manic symptoms including impulsive behaviour, poor concentration together with paranoia and hallucinations.  When she was admitted as an inpatient to Glenside Hospital she received treatment for a fortnight, followed by two days of treatment as an inpatient at the Royal Adelaide Hospital.  Upon discharge, it was recommended that she consult a community psychiatrist at the Modbury Community Mental Health Service and the community psychiatrist at the Eastern Community Mental Health Service.  Medications were recommended together with regular contact with her general medical practitioner and community mental health teams on a long term basis.  Dr Mah made a referral for psychology and dialectical behavioural therapy. 

9. Progress notes from the mental health unit, SA Health were received in evidence. [9]  Broadly, they related to attendances with community mental health services in September 2013.  The progress notes included recommendations concerning compliance with a medication regime and lifestyle changes required to improve Ms Kapitula’s general health and social functioning.  From her evidence, it is clear that she was unwilling to persist with medication for mental health issues as it made her extremely lethargic and generally unwell.  She was also extremely concerned that the mental health medication would have an adverse effect on her epilepsy. 

   [9] Exhibit 2.

10. Prior to her admission to the Glenside Hospital, Ms Kapitula had been consulting a psychologist.  Subsequent to her discharge from hospital, she engaged with community mental health services in September 2013.  That engagement lasted for about one month.  Later, in June 2015 Ms Kapitula sought assistance again from a psychologist under the Commonwealth GP mental health care plan for psychological services.  The psychologist was Mr Lukowicz and in his report, already referred to, he identified that she exhibited symptoms of borderline/moderate depression and borderline anxiety symptoms.  The consultations with Mr Lukowicz commenced in June 2015 and Ms Kapitula attended an initial, six scheduled sessions. 

11. The JCA report[10] concluded that the mental health condition was not fully diagnosed, treated and stabilised at the time of the DSP claim and in the assessment period.  The Job Capacity Assessor noted that Ms Kapitula had not engaged in formal psychology or dialectical behavioural therapy and that she was not taking prescribed medication. 

    [10] Exhibit 1, T24 p 244.

12. The general medical practitioner, Dr Islam, reported that ongoing follow up and management would occur after Ms Kapitula’s discharge from hospital.  The evidence indicates that the follow up did not occur apart from the consultations with community mental health service therapists in September 2013.  It is clear from Ms Kapitula’s evidence that she held a strong conviction that the recommended, mental health treatment would be detrimental for her.  The last entry in the mental health unit progress notes confirms that Ms Kapitula was refusing to recommence medication after discussion of the risks.  The notes added –

    “Currently well supported by family.  Current risk to self or others low.  Aware of risk of seizure and relapse of psychosis with non-compliance with prescribed medication.” 

13. While acknowledging that Ms Kapitula had undergone an acute psychiatric crisis, the Secretary contended that the mental health condition was only diagnosed in the assessment period and that it was not treated and stabilised. 

14. In determining whether a condition has been fully diagnosed and whether it has been fully treated, the rules for applying the Impairment Tables state that the following must be considered [at s 6(5)]:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

15. A condition is fully stabilised if [at 6(6)]:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

16. The final case note entry in the Mental Health Unit progress notes dated 30 September 2013 notes that the treatment plan involved monitoring of Ms Kapitula’s mental state while also noting that she would not continue with medication for the time being.  The notes acknowledged that she refused to recommence medication after discussion of the risks.  The notes also recorded a discussion with Ms Kapitula on the importance of recognition of early warning signs of relapse and the necessity to adhere to healthy practices. [11]

    [11] Exhibit 2.

17. Psychology treatment recommenced on 12 June 2015 when Ms Kapitula presented for psychology consultations which were conducted by Mr Lucowicz.  It was the first of six scheduled sessions all of which she attended.  Mr Lucowicz recommended that Ms Kapitula continue with psychology treatment in 2016.  He noted:

    “Ms Kapitula presented as a positive parent who was very proud of her daughter’s achievements and progress.  She is feeling more confident about herself and the fact that she has achieved control over her epilepsy.  She is also more socially confident and she is beginning to come out of her self imposed social shell. …”  [12]

    [12] Exhibit 6.

18. At the time of lodging the DSP claim and in the assessment period that followed, the process of identifying a mental health treatment plan was still underway.  As the SSAT observed “at the time of claim, Miss Kapitula was still going through the process of working out the right treatment for her, so the condition cannot be regarded, at the time of claim, as fully stabilised.”[13] 

    [13] Exhibit 1, T2 p 9.

19. The Tribunal finds that Ms Kapitula’s mental health condition was fully diagnosed during the assessment period.  As discussed, however, the medical evidence confirms that her mental health condition was not fully treated and not fully stabilised during the assessment period.  The reports from the Mental Health Unit, SA Health, Dr Islam, and Dr Mah indicate that future treatment was planned and it would include medication review and management over the long term through contact and monitoring by mental health services. 

1. Accordingly the Tribunal finds that Ms Kapitula’s mental health condition was not fully treated and not fully stabilised.  In those circumstances a rating from the Impairment Tables cannot be given in relation to the mental health problems.

   Other conditions

2. Dr Islam provided medical certificates (29/9/2011, 27/4/2012) which referred to neck and back pain which affected Ms Kapitula.  Dr Islam noted that medication and physiotherapy assisted to alleviate the back pain.  The Employment Services Assessment report submitted on 26 September 2011[14] discussed Ms Kapitula’s low back pain.  According to that report, Ms Kapitula told the assessor that she was a passenger injured in a motor vehicle accident in July 2011 and suffered an injury to her lower back.  She also told the assessor that she suffered constant low and middle back pain which was aggravated by activities and it affected her household work and prolonged walking.  In her evidence to the Tribunal Ms Kapitula confirmed that she still suffers from back pain which affects her with lifting, bending and activities over head height.  The evidence indicates that these functional impacts are not major, nonetheless they constitute a continuing and troublesome interference with her activities involving spinal function.

   [14] Exhibit 1, T21 p 227.

3. Table 4 of the Impairment Tables concerns spinal function.  A mild functional impact on activities involving spinal function attracts a rating of 5 points for difficulties such as activities over head height, or bending to knee level and straightening up again without difficulty, or turning the trunk or moving the head.  The Tribunal considers that Ms Kapitula’s back condition was fully diagnosed, treated and stabilised at the time of the DSP claim.  A rating of 5 impairment points is appropriate under the criteria set out in the Impairment Tables.

4. For completeness it is noted that other conditions included head injury, post-traumatic stress disorder and asthma.  They form part of Ms Kapitula’s long term, medical history.  However it was not contended by either party that they were significant in the context of Ms Kapitula’s entitlement for the DSP.  Even if it could be said that these conditions were fully diagnosed, treated and stabilised they do not attract a rating under the applicable Impairment Tables.

   SUMMARY

5. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

6. As outlined, the Tribunal finds that Ms Kapitula’s condition of epilepsy was fully diagnosed, treated and stabilised during the assessment period.  The Tribunal finds that the applicable rating for that condition is 10 points.

7. The Tribunal finds that Ms Kapitula’s condition of back pain was fully diagnosed, treated and stabilised at the time of the DSP claim.  The applicable rating for that condition is 5 points.

8. Ms Kapitula’s mental health condition was fully diagnosed during the assessment period.  However the mental health condition was not fully treated and not fully stabilised.  An impairment rating under the Impairment Tables cannot be given for any impairment from the mental health issues. 

9. With a total of 15 impairment points, the Tribunal finds that Ms Kapitula does not have an impairment or combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period. This means that Ms Kapitula does not meet the requirements of s 94(1)(b) of the Act and is not qualified in the assessment period for the DSP. It follows that it is not necessary to consider whether Ms Kapitula has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

   DECISION

10. The Tribunal affirms the decision under review.

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

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Administrative Assistant

Dated 11 March 2016

Date(s) of hearing	13 January 2016
Applicant	In person
Advocate for the Respondent	Ms L Odgers
Solicitors for the Respondent	Department of Human Services