Kocak and Secretary, Department of Family and Community Services

[2005] AATA 677

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 677

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2004/997

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		LALE KOCAK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor John Maynard, Member

Date15 July 2005

PlaceMelbourne

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 3 August 2004.

..............................................

Member

CATCHWORDS – SOCIAL SECURITY – disability support pension – qualification – whether condition diagnosed, treated and stablisied – whether continuing inability to work – consideration limited to 13 week period from date of decision – decision affirmed

Social Security Act 1991 s. 94

REASONS FOR DECISION

15 July 2005 Associate Professor John Maynard, Member

1.               The applicant, Mrs Lale Kocak, applied for review all the decision of the Social Security Appeals Tribunal (“SSAT”) on 3 August 2004.  The SSAT affirmed a decision previously made by an Authorised Review Officer (“ARO”) of Centrelink on 21 April 2004 to reject the claim made by her for disability support pension (“DSP”).

2.               The hearing of the application was convened in Melbourne on 8 July 2005.  Mrs Kocak represented herself through a Turkish language interpreter, Ms Isil Yucesaz, and Ms King appeared on behalf of the respondent.

3. Documents received in addition to the T documents were lodged under s. 37 of the Administrative Appeals Tribunal Act 1975:

R1      medical report, 15 December 2004 from Dr Sutcliffe, occupational physician;

R2      report from Aliye Akarsu-Atakan, clinical psychologist, Coburg Clinical Psychology Centre 17 March 2005;

R3      report from Dr Hakan Baglar Anatolia, Medical Enterprises, 11 April 2005;

R4      Centrelink Work capacity Anticipation Assessment Report, 12 April 2005;

R5      letter from Centrelink senior advocate Ms King, to Mrs Kocak 18 May 2005; and

A1      additional medical report from Dr Sutcliffe, occupational physician, dated 22 June 2005.

BACKGROUND

6.  Mrs Kocak injured her neck and shoulder at work in 2002.  On 23 September 2003 she lodged a claim for DSP (T7 p19-43).

7.  The claim was rejected on the basis that she did not obtain a combined rating of at least 20 points for her conditions. (T10 p62-8)

8.        Upon consideration of a further medical report provided by Mrs Kocak the decision was again affirmed (T13 p76-6).

9.               On further review the decision was set aside by the ARO on the basis that the new medical report had not been assessed by Health Services Australia (“HSA”) (T15 p79-84).  Following a further report by HSA (T18 p88-91) the ARO affirmed the decision to reject DSP (T19 p92-9).  This decision was subsequently affirmed by the SSAT (T2 p 3-13).  The SSAT found that Mrs Kocak did not have an impairment of 20 points or more under the impairment tables.  It considered whether Mrs Kocak had a continuing inability to work, and noted that, whilst not fit to resume her previous work duties would not be precluded from undertaking light or office duties.

10.              A work capacity assessment of 12 April 2005 (R4) indicated that Mrs Kocak might be qualified for DSP.  It was suggested in a letter of 18 May 2005 (R5) that Mrs Kocak contact Centrelink to have her eligibility assessed.  Mrs Kocak and her interpreter both appeared unaware of this on the day of the hearing.  As a consequence, I adjourned the hearing for a short time so that she could discuss the matter with Ms King.  Tribunal was adjourned so that Mrs Kocak could be appraised of this fact.

11. Following this adjournment Ms King submitted that I have to consider whether Ms Kocak is qualified for DSP at the date she claimed it or at any time within the 13 week period following that date. This is the affect of cl. 4 of Schedule 2 of the Social Security (Administration) Act 1999.

Lale Kocak

12.              Mrs Kocak stated that she suffers from back, neck and shoulder pain with pain also in her right arm.  She stated that she suffered from depression as well as gastric pain.  She is taking medication for all of these conditions.

13.              She stated she has not been working since March 2002.  The right arm is not like a normal arm.  She cannot do daily work, or hang out clothes, has trouble washing dishes, cannot vacuum the floor and has trouble with dressing herself.  Her elder son lives away from home in Queensland and is studying pharmacy.  Her younger son is aged 13.  She takes him to school and then goes home, sits on the couch and does not feel like doing anything.  All her family still live in Turkey but her husband’s family is in Melbourne.

14.              Mrs Kocak said that she has a major depressed mood.  She has been thinking that she is useless, she is unable to have company and does not feel that she belongs in any community.  She said she is at home doing the same thing and does not do anything.  She is being treated for depression and her physician prescribed medication in about August 2004.  She said she has stayed the same.  There is only one Turkish speaking psychiatrist who is fully booked and she is unable to see him.  Mrs Kocak said that she cannot express all her feelings with a doctor who is non Turkish speaking.  She has been seeing a psychologist since September 2003 every second week and she is still seeing her now (R2).

15.              She states that she could not do any work, particularly involving any use of the right hand at all and she says this is not changed from the first day to the last day.

16.              Beginning this year, she has had massive hair loss.  She was treated with cortisone but reacted to this and, although her hair loss improved, the cortisone did not help the other conditions.

17.              It was difficult for Mrs Kocak to rate the severity of the neck and right shoulder pain, and the degree of impairment as at the period between the application for DSP and the current date.  However, she stated that pain was the main problem and it was made worse by movement.  The pain never goes away.

18.              In cross-examination, Mrs Kocak repeated that the pain was always there, but worse when she moved the arm.  With regard to her working in an office, Mrs Kocak said she could not because her training was inadequate.  She did an English course in 1994, but didn’t finish this because of family problems.  With regard to gastric pain, this is controlled by medication.

Submissions

19.              Mrs Kocak stated that she should be entitled to DSP from 23 December 2003 on the basis of her disabilities.

20.              Ms King submitted that it was accepted that Mrs Kocak suffers from back neck and shoulder as well as arm pain.  She also suffers from depression and gastric pain the medical reports for the period 23 December 2003 all within 13 weeks of that, indicate an impairment rating of 15 points under Table 20.

21.              Ms King also submitted that Mrs Kocak’s depression had not been fully stabilised or treated at time of the claim in December 2003 and was unable to be rated under the impairment tables.

22.              The gastric pain is managed and controlled by medication and is not symptomatic of the underlying compensable condition and should be rated at nil points under Table 11.1

23. Ms King further submitted that Mrs Kocak does not have the continuing inability to work under s. 94(1)(c) of the Social Security Act 1991 (“Act”).  In his report of 23 December 2003. Dr Baglar her general practitioner, stated that while Mrs Kocak was unfit for her usual job, she could work in an office on clerical duties (T8 p 47).  Dr Rose of HSA was also of the opinion that Mrs Kocak could be retrained within two years in office work or as a sales assistant (T9 p55).  The work capacity assessment of 12 April 2005 is consistent with those doctors’ assessment of Mrs Kocak at the time of the claim.  Dr Sutcliffe, on 15 December 2004, stated that Mrs Kocak had no capacity for any employment one year after Mrs Kocak applied for DSP and did not share the view held by the other doctors regarding her capacity on the day the claim.  Dr Sutcliffe’s view has, however, now been supported by the recent work capacity assessment of Mrs Kocak’s current situation.  On the basis of that assessment, Mrs Kocak has now been granted DSP.

application of the law

24. Section 94(1) of the Act sets out the qualification 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 

(c)one of the following applies: 

(i)the person has a continuing inability to work; 

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and 

(d)the person has turned 16; and 

(e)the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or 

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or 

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

(A)is not an Australian resident; and 

(B)is a dependent child of an Australian resident; 

and the person becomes an Australian resident while a dependent child of an Australian resident.

25.              Section 94(2) provides:

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 within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

26. I find that Mrs Kocak suffers from chronic pain syndrome and depression. They are impairments within the meaning of s. 94(1)(a) of the Act.

27. The Impairment Tables referred to in s. 94(1)(b) are set out in Schedule 1B of the Act. They require that Mrs Kocak’s conditions must meet the following description before they are assessed.

·They must be fully diagnosed, investigated, treated and stabilised;

·They must be permanent;

·Once a condition is diagnosed, treated and stabilised it is accepted as being permanent if in light of available evidence, it is more likely than not that it will continue for the foreseeable future.  This will be taken as lasting for more than 2 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, in next 2 years.

Conclusion and reasons for decision

28.              I find that Mrs Kocak’s chronic pain permanent and has not altered since the original assessment impairment rating on Table 20 of 15 points.  I also find that pain is the predominant feature of Mrs Kocak’s condition.  Although moving her arm makes the pain worse, the pain remains present.  Mrs Kocak should be assessed under one only of Tables 20 or 5.1 or 3 for her chronic pain.  Because the pain is the predominant feature and as an assessment under Tables 3 or 5.1 would underestimate her disability.  I consider that Table 20 should be used.  Although Mrs Kocak feels that she was very limited in her activities, I have also had regard to the medical reports providing some objective assessment.  I also remind myself that I am limited to the 13 week period from 23 September 2003.  I am satisfied that, in that period, Mrs Kocak’s pain was distressing but prevented only a few everyday activities.  She should be rated with 15 impairment points with Table 20 being used.

29.              Mrs Kocak’s depression has serious symptomatology and impairment in her functioning and is considered now to be permanent requiring management by a psychologist.  She currently has significant interpersonal and disruption of ability to work from her psychiatric illness alone.  This rates currently as 10 points under Table 6.

30.              However at the date of the original claim, her depression was considered temporary.  Although diagnosed, she was not receiving all available treatment and it was thought at that time she could significantly improve within two years.  She had been receiving counselling for three months and was not at that time on any antidepressants.  I am not satisfied that her condition could be regarded as fully diagnosed treated and stabilised at any time in the 13 week period from 23 September 2003.  Her depression cannot, therefore, be given an impairment rating.  Her total remains at 15 points.

31.              At the time of the original claim Mrs Kocak’s chronic pain alone would not have prevented retraining and returning to work in a more suitable occupation.  At the time of the original claim Mrs Kocak was suffering from depression however, this depression had not been fully treated and although she was temporarily unable to work whilst undergoing psychological counselling, the Tribunal finds that she could have returned to work within two years.  This means that she did not meet the requirements of s. 94(2) and so did not have a continuing inability to work within the meaning of s. 94(1)(b) in the 13 week period beginning on 23 September 2003.

32.              Mrs Kocak’s condition has altered since this period but I do not have the power to consider that.  As I have already mentioned her eligibility might now be re-assessed in light of the most recent HSA assessment.

33.              I affirm the decision of the SSAT dated 3 August 2004 on the basis that Mrs Kocak did not have an impairment of 20 points or more under the Impairment Tables, and did not have a continuing inability to work in the 13 week period beginning on 23 September 2003.

I certify that the thirty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Associate Professor John Maynard, Member

Signed:         .........................................................................

D. De Andrade             Personal Assistant

Date of Hearing  8 July 2005

Date of Decision  15 July 2005
For the Applicant  self represented

Solicitor for the Respondent     Ms E. King,

Advocate

Centrelink Legal Services Branch