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

[2015] AATA 680

Kramar and Secretary, Department of Social Services (Social services second review) [2015] AATA 680 (8 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1448
Re	Vera Kramar
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	8 September 2015
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

8 September 2015

INTRODUCTION

1. Mrs Vera Kramar, the Applicant, emigrated from Croatia to Australia in 1974. Since coming to Australia, she has suffered many tragedies. Her first husband died in a motor vehicle accident in 1982, and her 12 year old daughter also died in a car accident in 1986. One of her two adult sons passed away in a house fire in 2005. Later, Mrs Kramar remarried.

2. When she was a school girl in Croatia, Mrs Kramar completed the equivalent to the Australian year 10. After arriving in Australia, Mrs Kramar was employed in several occupations, and was last employed as a cleaner in 2010.

3. On 27 July 2009, Mrs Kramar was injured in a car accident and later she settled her claim for a lump sum payment of compensation.

4. Mrs Kramar lodged a claim for Disability Support Pension (DSP) on 11 September 2014. She also lodged a medical report from Dr Escio-Musson, who is her general practitioner, which was dated 10 September 2014. In this report, Dr Escio-Musson stated that Mrs Kramar suffered from the following conditions. Anxiety, depression, likely adjustment disorder, alcohol and gambling, chronic pain/complex pain disorder, hip, back, right shoulder pain, lumbar spondylosis, multilevel disc bulge, lumbosacral O.A, left AC joint, tendinosis, left shoulder and left hip reconstruction 2010.

5. A Job Capacity Assessment was carried out on 7 November 2014. The assessor held that Mrs Kramar's psychological condition was found not to be fully treated and stabilised and was therefore not assessed under Table 5 of the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). Her conditions of alcohol dependency and her shoulder and upper arm impairment were both found not to be fully diagnosed, treated or stabilised.

6. Mrs Kramar's spinal condition was assessed at five points under Table 4 of the Impairment Tables, her hypertension was assessed as nil points under Table 1 of the Impairment Tables, her lower limb deficiencies were assessed at five points under Table 3 of the Impairment Tables and her diabetes was assessed at nil points under Table 1 of the Impairment Tables. The assessor stated that Mrs Kramar had a baseline work capacity of 8 - 14 hours per week, increasing to 15 - 22 hours per week within two years with intervention.

7. Centrelink rejected Mrs Kramar's application for DSP. She sought review from an Authorised Review Officer and then from the Social Security Appeals Tribunal (SSAT), but to no avail.

8. The SSAT held that Mrs Kramar's hypertension, diabetes, and alcohol dependency were permanent conditions, and were assessed at nil points under Table 1 of the Impairment Tables. The SSAT further held that Mrs Kramar's depression was not fully treated and stabilised. However, the SSAT stated that Mrs Kramar's spinal condition attracted five points under Table 4, and that her condition affecting her lower limbs attracted five points under Table 3 of the Impairment Tables. Finally, the SSAT decided that Mrs Kramar's condition affecting her upper limbs was permanent but it had no functional impact and attracted nil points under Table 2 of the Impairment Tables.

9. Mrs Kramar now appeals to this Tribunal.

   THE LEGISLATION

10. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

11. The criteria for DSP are set forth in section 94 of the SS Act. In Mrs Kramar's circumstances subsection 94(1) relevantly provides:

    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;

    ...

12. Put simply, I must be satisfied, first, that Mrs Kramar has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mrs Kramar has a continuing inability to work.

    The 13 week qualifying period

13. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mrs Kramar's eligibility for DSP in the 13 week period commencing on the day on which Mrs Kramar applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mrs Kramar qualified for DSP between 11 September 2014 and 11 December 2014.

14. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at 34:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

    This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

15. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.

16. Therefore, in determining the eligibility of Mrs Kramar to receive DSP I am confined to examining Mrs Kramar's impairments during the thirteen week qualifying period.

    THE CONCESSIONS OF THE RESPONDENT

17. In paragraph 24 of the Respondent's statement of facts and contentions it is stated that

    [t]he Respondent accepts that, at the relevant period, the Applicant suffered from alcohol dependency, diabetes, hypertension, anxiety and depression, back, hip and shoulder pain and satisfied paragraph 94(1)(a) of the Act.

    THE ISSUES BEFORE THE TRIBUNAL

18. The first issue which I am required to decide is whether any of Mrs Kramar's impairments were during the relevant 13 week period, fully diagnosed treated and stabilised. If any of the impairments fall into this category, I must assess them under the relevant Impairment Tables.

19. The second issue which I am required to decide is whether Mrs Kramar has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mrs Kramar's impairments do not attain an assessment of 20 points under the assessment tables.

    The Impairment Tables

20. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mrs Kramar are worth twenty points under the impairment tables. This requires a few words of explanation.

21. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

22. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

23. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

24. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table.” However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.”

25. Finally, in examining Mrs Kramar's depression, it is necessary to appreciate that the introduction to table 5 states in part 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).”

    The Documentary Evidence

26. The Tribunal has before it the following documentary evidence. The Respondent's Statement of Facts and Contentions dated 31 July 2015; the documents compiled by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents; and also supplementary documents from Mrs Kramar which were received in June and July 2015. Most of the documents are medical reports and medical certificates. I have read all of the medical reports which describe Mrs Kramar's impairments in some detail.

    THE EVIDENCE AT THE HEARING

27. Mrs Kramar gave sworn evidence through an interpreter in the Croatian language. I found her to be a truthful Witness.

28. After recounting a little about her early life, Mrs Kramar gave evidence about her impairments.

29. In relation to her depression, Mrs Kramar said that she was tired, had difficulty in sleeping and that everything upsets her.

30. Mrs Kramar said that she first saw a psychiatrist some twenty years ago. She was supposed to see a psychiatrist on 29 July 2015, but she said that she didn't have the money to pay for the consultation. Mrs Kramar stated that she was admitted to the Nepean Hospital this year owing to her alcohol dependence. The notes from the Nepean Hospital state that Mrs Kramar was admitted on 16 June 2015. Mrs Kramar stated that she has been going to weekly counsel sessions with a counsellor named Ron.

31. In relation to her spinal condition, Mrs Kramar said that she caught the train and then walked to the hearing. Mrs Kramar also said that she can do the shopping, and that she can pick up objects from chair level. Mrs Kramar said that she could turn her head but that there was some tenderness. Mrs Kramar stated that she can get up from a chair unaided, but that it takes a little time. Mrs Kramar said that she can shower and dress herself, although it takes a little time to put on underwear and socks.

32. In relation to her right upper arm impairment, Mrs Kramar said that she can hang washing on the washing line, but she has to use her left hand.

33. Mrs Kramar said that she had surgery on her right shoulder at the end of last year. It got better initially, but after two to three months it has become worse.

34. Mrs Kramar said that her hip gave her pain when she was sitting down. After about 18 minutes of the hearing, she stood up to stretch and to lessen the pain. Mrs Kramar stated that she can walk, but only for 10 to 15 minutes. Mrs Kramar said that she had some difficulty in climbing stairs and she had to hold onto the rail and take it slowly.

35. Finally, Mrs Kramar said that she is unable to work, and this is why she has not undertaken a program of support.

    CONSIDERATION

36. The first issue which I am required to decide is whether any of Mrs Kramar's impairments were, during the relevant 13 week period, fully diagnosed treated and stabilised. If any of the impairments fall into this category, I must assess them under the relevant impairment tables.

    Hypertension and Diabetes

37. Having regard to the medical evidence, and I especially note the report dated 10 September 2014 and the subsequent letter dated 14 July  2015 which are both from Dr Escio-Musson, I find as follows. I find that Mrs Kramar's hypertension (high blood pressure) is fully diagnosed, treated and stabilised. It is well managed and warrants a nil assessment under Table 1 of the Impairment Tables. Similarly, I find that Mrs Kramar's diabetes is fully diagnosed, treated and stabilised. It is well managed and warrants a nil assessment under table 1 of the Impairment tables.

    Anxiety depression

38. It is clear from the documents that Mrs Kramar’s anxiety depression had been previously diagnosed in 2009 by Dr Nguyen who is a psychiatrist.

    Was Mrs Kramar's anxiety depression fully treated and stabilised during the claim period?

39. In the report of Dr Escio-Musson dated 10 September 2014, Dr Escio-Musson recommended future treatment as including psychological counselling and a referral to a psychiatrist. However, Mrs Kramar did not commence psychological counselling until 22 May 2015.  Mrs Kramar attended three sessions with Ms Sylvia Kocan who is a clinical psychologist. This was eight months after the claim period. In her report, received by the Respondent on 19 June 2015, Ms Sylvia Kocan writes that 

    [s]o far, treatment has focused in developing a suicide prevention plan (Including providing Ms. Kramar with numbers to Lifeline and Mental Health Access Team) and psycho-education about the Impact of thoughts and behaviour on mood was provided. Ms. Kramar requires ongoing treatment to address her past as well as her current symptoms.

40. In the letter by Dr Escio-Musson, dated 14 July 2015, it is noted that Mrs Kramar was scheduled for further treatment. As I have noted above, in her evidence Mrs Kramar said that she did not attend the psychiatrist on 29 July this year.

41. Given that the medical evidence indicates that Mrs Kramar requires more treatment, I find that her anxiety depression was not treated and stabilised during the claim period. Therefore, it cannot be assessed under Table 5 of the Impairment Tables.

    Alcohol Dependence

42. From the evidence, I find that Mrs Kramar does suffer from alcohol dependence.

    Was this alcohol dependence fully treated and stabilised during the claim period?  

43. As has been recounted above, Mrs Kramar gave evidence of her hospital admission for alcohol dependence in June 2015 and her subsequent counselling treatment. I find that Mrs Kramar's alcohol dependence was not treated and stabilised during the claim period. Therefore, it cannot be assessed under Table 6 of the Impairment Tables.

    Spinal Condition

44. I accept from all of the evidence that Mrs Kramar has a long-standing spinal condition which is fully diagnosed, treated and stabilised.

45. Mrs Kramar gave evidence that she does have some difficulty in turning her head which results in tenderness. However, she also gave evidence that she can walk, can pick up an object at chair level and can get herself out of a chair. Having regard to her evidence and also to the medical reports, I find that her spinal condition has, at the most, a mild effect upon Mrs Kramar. Accordingly, I assess her spinal condition at 5 points under Table 4 of the Impairment Tables which is titled "Spinal function".

    Upper limb function

46. I accept that Mrs Kramar's upper right arm and shoulder impairment was fully diagnosed during the claim period.

1. Mrs Kramar gave evidence that she had surgery on her right shoulder In December 2014. Although it seemed to improve, after two to three months it has become worse.

2. Having regard to her evidence and to the medical evidence, I find that this upper arm function was not treated and stabilised during the claim period. Therefore, it cannot be assessed under Table 2 of the Iimpairment Tables titled “upper limb function".

   Lower limb function

3. In her report dated 10 September 2014, Dr Escio-Musson described this lower limb condition as being chronic pain of the hip and back left trochanteric bursitis and left hip reconstruction in 2010. I accept that this lower limb condition was fully diagnosed, treated and stabilised during the claim period.

4. I note Mrs Kramar's evidence that she can walk for 10 to 15 minutes, can climb stairs slowly, but that her left hip is painful. Having regard to all of the evidence, I find that the lower limb function has a mild effect upon Mrs Kramar. Accordingly, I assess it at 5 points under Table 2 of the Impairment Tables titled "lower limb function".

   CONCLUSION

5. I find that Mrs Kramar's impairments are assessed at 10 points under the Impairment Tables. Therefore, Mrs Kramar does not qualify for DSP.

6. It is not necessary for me to determine whether Mrs Kramar has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act.

7. However, in her evidence, Mrs Kramar said that her upper arm impairment has deteriorated. She has also commenced counselling sessions for her anxiety depression and alcohol dependence. In my view, Mrs Kramar should consider enrolling in a program of support. If her impairments worsen, and if she applies in the future for DSP, she will have surmounted the hurdle of the program of support. Of course, for a future application for DSP to be successful, Mrs Kramar will have to satisfy the requirements set out in s 94 of the SS Act and its attendant provisions.

   DECISION

8. The decision of the Social Security Appeals Tribunal is affirmed because Mrs Kramar did not qualify for disability support pension during the claim period.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 8 September 2015

Date(s) of hearing	6 August 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services