Karen Krivsky and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 372
[2013] AATA 372
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4284
Re
Karen Krivsky
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 13 March 2013 Date of written reasons 4 June 2013 Place Melbourne For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
[sgd].............................................................
Member
SOCIAL SECURITY disability support pension - whether 20 impairment points – whether condition stabilised and treated – decision affirmed
Social Security Act 1991 s 94(1), s 94(2), Schedule 1B
Social Security (Administration) Act 1999 cl 4(1) of Schedule 2
REASONS FOR DECISION
Regina Perton, Member
4 June 2013
The Tribunal provided oral reasons for its decision at a hearing of this application on 13 March 2013. The applicant, Ms Karen Krivsky, subsequently requested written reasons for decision. The reasons for the Tribunal's decision are set out below.
Ms Krivsky, who was then 50 years old, lodged a claim for disability support pension (DSP) on 1 September 2011 with Centrelink, which administers social security benefits for the respondent. On 20 September 2011 Centrelink decided that Ms Krivsky did not qualify for DSP. On 16 April 2012 an authorised review officer (ARO) reviewed the decision and confirmed that Ms Krivsky was not eligible for DSP.
On 28 April 2012 Ms Krivsky lodged an application for review with the Social Security Appeals Tribunal (SSAT). On 2 July 2012 the SSAT affirmed the decision to refuse DSP on the basis that Ms Krivsky's impairments did not rate 20 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1 B of the Social Security Act 1999 (the Act) during the appropriate period. Ms Krivsky lodged an application for review of the SSAT decision with this Tribunal on 29 September 2012.
The issue before the Tribunal is whether Ms Krivsky satisfied the requirements for DSP as at 1 September 2011 or within 13 weeks of that date.
MS KRIVSKY'S MEDICAL CONDITION AND EMPLOYMENT
In her application for DSP lodged on 1 September 2011, Ms Krivsky stated that she suffered from generalised anxiety, panic attacks, mental illness and depression. She stated that she had been educated to year 9 level and had last worked as a merchandiser for Tip Top Bakeries from June 1999 to December 2001. She stated that in the previous three years, she had not participated in any employment related programs.
Dr Tamson Walpole, Ms Krivsky’s general practitioner, completed a Centrelink questionnaire for treating doctors on 31 August 2011 which is part of the application form for DSP. Dr Walpole stated that generalised anxiety, with an onset date of 2008, was the condition with the most impact on Ms Krivsky. Asked to provide a history of the clinical features of the condition, Dr Walpole stated:
Agitation, irritability, difficulty sleeping, reluctance to leave the house; gradual onset over past 3 yrs.
Dr Walpole described Ms Krivsky’s current symptoms as at 31 August as those listed above and an element of agoraphobia. The current treatment for the condition was counselling. Dr Walpole stated that Ms Krivsky’s past treatment was failed trial antidepressant. Ms Krivsky was noted as being usually compliant with recommended treatment but faced difficulty leaving house to attend appointments. The future/planned treatment was described as re trial antidepressant. Dr Walpole was asked to select a time period in relation to the prompt comment, The current impact of this condition on the patient’s ability to function is expected to persist for: and chose the box 3-24 months as the estimate. Dr Walpole expected that within the next two years the effect of Ms Krivsky’s generalized anxiety condition would significantly improve.
The second condition Dr Walpole noted in the form was depression, which she described as having a confirmed diagnosis. It had been some two years since its identification. The current treatment was counselling although there had been a failed attempt at utilising antidepressants. In response to a prompt question as to the current impact of the condition on Ms Krivsky’s ability to function, Dr Walpole stated at times cognitive impairment & extreme distress, sadness, hopelessness. Dr Walpole believed that the condition would impact on Ms Krivsky’s ability to function for more than 24 months.
Dr Walpole hoped that within the following two years, Ms Krivsky’s condition would significantly improve. However, she noted that there had been no significant signs of improvement in the previous two years; so she was hopeful but not optimistic of an improvement. Dr Walpole indicated no hospital admissions but that Ms Krivsky had visited the emergency department briefly in the previous 12 months.
The Tribunal was provided with medical certificates issued in relation to Ms Krivsky’s ability to work as a recipient of newstart allowance. At the time her application for DSP was under consideration, Ms Krivsky was receiving newstart allowance. Her general practitioners had provided several medical certificates to Centrelink indicating Ms Krivsky was unable to work at that time, some of which are referred to below.
In July 2007 Dr Yona Josefsberg indicated that Ms Krivsky suffered from anxiety & depression as well as alcoholism and binge drinking and would be unfit for work from 3 August 2007 to 3 November 2007. The treatment was to be medication and she was waiting to see psychologist. Ms Krivsky’s prognosis was described as uncertain.
In October 2010 Dr Walpole provided a medical certificate stating that Ms Krivsky was unfit for work because of an anxiety disorder – generalised and depression. The symptoms were anxiety about leaving house, fear and lowered mood & appetite. Dr Walpole selected the following alternative out of several choices concerning Ms Krivsky’s symptoms: likely to show considerable improvement within 2 years.
In January 2011 Dr Walpole indicated that Ms Krivsky suffered from generalised anxiety which resulted in the symptoms of agitation, anxiety, worry in excess and agoraphobia. She also suffered from depression. The prognoses in relation to the symptoms were described as uncertain. Dr Walpole stated that her patient was unfit for work from 18 January 2011 until 16 April 2011. Describing Ms Krivsky’s treatment, Dr Walpole noted: different treatment trialled.
In a medical certificate covering 17 April 2011 to 15 July 2011, Dr Walpole described Ms Krivsky’s symptoms as likely to persist. In the next medical certificate covering the period 16 July 2011 to 14 October 2011, Ms Krivsky’s conditions were described as generalised anxiety & agoraphobia and depression. Her treatment was described as starting antidepressant. The symptoms were described as likely to persist.
A copy of a letter from Dr Walpole to the Victoria Police dated 28 July 2011 was provided to the Tribunal. Dr Walpole states:
Karen is a patient of mine. She suffers from anxiety and depression. At times, when in a state of despair, she can drink too much. She has presented suicidal to the Alfred. She has been prescribed antidepressant medication and anti-anxiety medication. It is entirely possible that when in a state of despair, having taken a benzodiazepine and alcohol, she may have been extremely fearful and believed that she was being threatened, or hallucinated and believed that there was someone with a gun. In such a state, it is possible that that she has called emergency services, fearing for her life. Despite that fact that the threat was not materially real, it probably felt very real to her. This is a medical problem which we are attempting to deal with. I do not believe that it is appropriate that she be penalized for her response and for calling emergency services…
There is nothing in my examination that suggests that Karen has a formal thought disorder, schizophrenia or unwarranted paranoia.
Centrelink arranged for a Job Capacity Assessment (JCA) on 15 September 2011 by a JCA assessor who is a psychologist. Ms Krivsky did not attend. The assessor provided a report, which stated:
Remarks:Ms Krivsky suffers from a history of generalised anxiety since 2008 as well as depression. Current treatment includes counselling. Ms Krivsky has previously had a failed trial of antidepressant medication. The medical report indicates that medication will be trialled again in the future….Ms Krivsky’s condition is expected to significantly improve and is therefore not assessed to be stabilised. Her condition is also assessed not to be fully treated as she will be placed on medication in the future.
…
Based on the level of support required the client requires specialist disability employment interventions
…
Temporary Work Capacity: 0-7 Hours per week
End Date: 16/09/12
Rationale:Ms Krivsky’s work capacity is impacted upon by her anxiety and depression. She suffers from agitation, irritability, a sleep disturbance, difficulty leaving her home to attend appointments, low mood and intermittent suicidality. She also suffers from sadness, hopelessness and cognitive impairment resulting from her condition. It is believed that Ms Krivsky will require time to adhere to appropriate interventions to address her condition before her work capacity is increased in the future.
Baseline Work Capacity: 15-22 hours per week
(Excludes any temporary impacts noted above)
… It is believed that Ms Krivsky’s condition is likely to impact upon her ability to sustain full time employment over the next 24 months.
…
Dr Walpole completed a fresh medical report in relation to Ms Krivsky’s DSP application on 24 October 2011. This report indicated that the date of diagnosis of generalised anxiety was 10 February 2010. Dr Walpole indicated that she hoped the condition would improve somewhat in the following three to 24 months pending response to medication. In relation to depression, Dr Walpole stated that Ms Krivsky had just commence[d] antidepressants. Future treatment was to include counselling in a community health setting. The expectation was that the condition would somewhat improve over the next two years.
On 29 June 2012 a few weeks after Ms Krivsky had lodged her application with the SSAT, Dr Walpole provided a report addressed to the Department of Human Services in which she stated:
Thank you for re-considering Karen Krivsky’s application for a pension. I have re-done a Treating Drs report for her yesterday but I would like to take this opportunity to explain the reasons behind my alterations. In the past-last report was done in 2011 almost 6 months ago. I was cautiously optimistic that Karen’s medical condition would improve within 2 years. I am no longer so optimistic. In the 2 years that she has been seeing me for mood related issues and anxiety she has been unable to work: she has not improved and in reality, her symptomatology has become apparent and more intrusive in her life.
Her issues are:-
Generalized Anxiety with Phobic elements, Agoraphobia
-is unable to leave the house without assistance of family due to crippling anxiety: constant fear and hypervigilance: difficulty in attending appointments as a consequence including to this clinic: Palpitations, weight loss, insomnia, irritability, impaired concentration.
Binge Drinking/Alcohol mis use
-as part of her anxiety issues Karen abuses alcohol: this just happens on a weekly basis at the moment: she can drink excessively for days at a time. In the past this has lead her to present to the Alfred in a suicidal state: it has also lead her to have paranoid thoughts and has resulted in arguments/conflicts with neighbours/family and police.
Depression
-consequent to the above listed issues Karen also has depressed mood and hopelessness. She is not positive towards the future. She struggles to be motivated to do anything - in part due to anxiety and in part due to lowered mood
Again these issues have been present for at least 2 years and possibly longer. She has struggled to follow through on suggestions/referrals, partly due to her significant agoraphobic symptomatology. She is thus no better and in fact worse than she was last year. I can no longer assert that I believe that her conditions are likely to improve within 2 years: whilst I am hopeful that we can make some gains it is highly unlikely that it will be sufficient to return to either part time or full time work. I foresee this being a long slow process and a supporter application for an invalid pension.
Dr Walpole provided a fresh medical report on the relevant Centrelink form dated 28 June 2012, in which she described the condition with the most impact on Ms Krivsky’s ability to function as alcohol misuse, the diagnosis having been made in 2010. The other conditions of generalized anxiety & agoraphobia were also listed with future planned treatment to include an attempt at seeing a psychologist. Dr Walpole now considered the condition of alcohol misuse to be a permanent one as Ms Krivsky had failed to respond to interventions.
On 11 December 2012 Dr Walpole provided a further report in which she stated:
This letter pertains to Ms Krivsky’s assessment re ability to work as to September 1st 2011.
Ms Krivsky has attended this clinic since 2005 and seen predominantly myself since 2008. As with many psychiatric diagnoses, the exact nature of Ms Krivsky’s issues has been a gradual evolution of understanding.
…
Regarding the Application for a Disability Pension at 24.10.2011 I believe that I erred in stating that I expected her condition to somewhat improve (anxiety) & to persist for 3-24 months and similarly for depression. I believe that the reason for this was during the consultation of 24.10.12 when the form was completed, Ms Krivsky was feeling more positive towards the future. She was taking the prescribed antidepressant. On that day I clearly was hopeful that things would improve however, looking now at my notes of the 13 weeks from 1.9.2011 and the Centrelink certificates supplied at this time and just prior it is clear that her application forms should have read.
-Depression : Impact likely to persist >24 months
:Effect on ability to function should have been either uncertain or remain unchanged
-Anxiety : Impact likely to persist 24/12
:Effects on ability to function should have been either uncertain or remain unchanged
-Alcohol dependence should have been listed as a separate condition again with
: Impact likely to persist >24/12
: Future ability to function would have been uncertain.
At this time Ms Krivsky was compliant with prescribed medication and her symptoms persisted despite this. She was unable to stop drinking completely.
During the year prior to 1.9.2011 she was seen on the following dates 27.10.2010, 27.11.2010, 14.1.2011, 21.4.2011. All of the above consultations were around issues of anxiety and mood, and for completion of centrelink certificates. Various medications were trialled but unfortunately all resulted in unacceptable side effects or were ineffective.
In my opinion cognitive behavioural therapy may have been helpful but this avenue was not reasonably available to Ms Krivsky due to a) cost and b) extreme anxiety around leaving the house: the later reason was not stated to me at the time but Ms Krivsky now advises me that this was an issue at this time (2011) and certainly it was noted on Centrelink certificate of Jan 2011.
I am also doubtful that any treatment undertaken in 2011 would have lead to a significant improvement this at September 2011 within two years.
During the hearing, Ms Krivsky told the Tribunal about the impact of her conditions on her life. She is fearful of leaving home in the company of anyone but her daughter who takes her shopping and for medical appointments. She said that she had difficulty arranging to see a psychiatrist or psychologist because she was unable to get there. She did not wish to be a burden on her daughter who was already helping her to a considerable extent and so had not asked for her assistance. She said she was not prepared to travel to an appointment with a volunteer driver, which might be possible to arrange through the local health centre.
DID MS KRIVSKY QUALIFY FOR DSP?
Section 94 of the Act sets out the criteria for a person to qualify for DSP.
94(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
(cone of the following applies:
(i) the person has a continuing inability to work;
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years…
(ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
...
The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
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. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
…
When deciding whether a person qualifies for DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date. Therefore, the Tribunal must consider whether Ms Krivsky qualified for the DSP either on 1 September 2011 or at a date before 1 December 2011 (the relevant period).
The Tribunal accepts that Ms Krivsky suffered from a number of medical conditions during the relevant period and continues to do so. However, the difficulty the Tribunal faces is deciding whether points are able to be allocated in relation to Ms Krivsky’s DSP application made on 1 September 2011 given the requirements of paragraph 5 of Schedule 1B of the Act, which require conditions to be permanent. Dr Walpole identified two conditions at the time of Ms Krivsky’s DSP claim, namely generalised anxiety and depression. During the relevant period, Dr Walpole was optimistic about Ms Krivsky’s symptoms improving over the next three to 24 months. She also indicated she would re-try some medication and also suggested counselling for Ms Krivsky. Dr Walpole’s medical notes provided to Centrelink in December 2012 confirm that different types of medication were being trialled during the relevant period and that there was an investigation into the availability of bulk billing psychologists.
Dr Walpole has since changed her view about Ms Krivsky’s prognosis. Dr Walpole is now of the opinion that Ms Krivsky’s conditions are permanent. She has also highlighted the impact of alcohol misuse by her patient. Furthermore, Dr Walpole is no longer optimistic about Ms Krivsky’s prospects of improvement, and appears to have changed her view about whether counselling or further changes of medication might assist.
The Tribunal has sympathy for Ms Krivsky’s plight, particularly the impact of agoraphobia on her willingness to access counselling. Ms Krivsky told the Tribunal that she had not attempted counselling nor had she asked her daughter or anyone else for assistance in attending a psychologist. However, Dr Walpole had recommended she attend a psychologist and the clinic had found psychologists who would bulk bill in a community health setting. There were also changes to Ms Krivsky’s medication during the relevant period.
The respondent submitted that the medical evidence supports a contention that Ms Krivsky’s condition was not fully diagnosed, treated and stabilised during the relevant period. The Tribunal agrees with that view. Ms Krivsky is therefore unable to be allocated points under the Impairment Tables during the 13 weeks from 1 September 2011. As a result, she does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). Therefore, Ms Krivsky did not qualify for DSP during the relevant period.
The respondent also submitted that Ms Krivsky might have a capacity to work with support from appropriate sources. The Tribunal is doubtful that she could. However, in the circumstances, it is not necessary for the Tribunal to determine that issue.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member. [sgd]......................................................................
Administrative Assistant
Dated 4 June 2013
Date of hearing 13 March 2013 Applicant In person Solicitors for the Respondent Ms J Randall-Smith, Australian Government Solicitor
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