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

[2018] AATA 646

Krol and Secretary, Department of Social Services (Social services second review) [2018] AATA 646 (23 March 2018)

Division:GENERAL DIVISION

File Number:           2017/2431

Re:Melanie Krol

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:23 March 2018

Place:Melbourne

The decision under review is affirmed

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

Mr A. Maryniak QC, Member

SOCIAL SECURITY – claim for disability support pension – assessment of impairments – minimum threshold of 20 points not made out – 5 points assigned for impairment from cervical and lumbar spine condition – decision affirmed

Legislation

Social Security Act 1991; s 94

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

Cases

Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180

REASONS FOR DECISION

Mr A. Maryniak QC, Member

23 March 2018

INTRODUCTION

1. Melanie Krol is 57 years old and was involved in a motor vehicle accident on 2 November 2013.  On 17 December 2015, Ms Krol was paid compensation by the Transport Accident Commission (TAC) for 23% whole person impairment due to lumber pain, brain and mental health conditions. On 11 November 2015, she lodged a claim for a disability support pension (DSP).  A delegate of the Secretary of the Department of Social Services (the Secretary) rejected her claim on 26 March 2016.  This decision was affirmed on review by an authorised review officer (ARO) on 23 November 2016 and by the Social Services and Child Support Division of this Tribunal (AAT1) on 16 March 2017.  Ms Krol has applied for this further review within the Tribunal’s General Division.

2. At the telephone hearing, following swearing in, Ms Krol gave evidence in chief, was cross examined and made closing submissions over a period of just under four hours.

3. Despite the presence of an interpreter in Taggalog, Ms Krol had no difficulty in conversing in English and the interpreter was not called upon.  Once evidence had closed the interpreter was released by consent.

   LEGAL FRAMEWORK

4. Ms Krol’s DSP claim is to be determined under s 94 of the Social Security Act 1991 (the Social Security Act).

5. For her claim to succeed, all of the applicable qualification criteria must be satisfied on the day she lodged the claim, 11 November 2015, or within 13 weeks thereafter to 10 February 2016 (the qualification period).  The main DSP qualification criteria are:

   94       Qualification for disability support pension

   (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;

6. The reference to the ‘Impairment Tables’ within s 94 is a reference to the tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The Impairment Tables are designed to assess the level of functional impact of an applicant’s impairments.  Points are allocated for each impairment based on the descriptors within the relevant tables.

7. In order to consider the functional impact of an impairment under the Impairment Tables, the impairment must be permanent and likely to persist for more than two years (Impairment Tables, para 6(3)).  A condition will be permanent if it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years (Impairment Tables, para 6(4)).

   CONSIDERATION

   Impairment

8. The Secretary accepts, properly, that Ms Krol had physical and psychiatric impairments when she lodged her DSP claim.

9. On the evidence of Dr Tan (treating general practitioner), Ms Garcia (treating psychologist), Dr Singh (consulting psychiatrist), Dr Vowels (clinical neuropsychologist), Dr Benson (general practitioner) and Mr O’Brien (orthopaedic surgeon), as well as the other evidence brought before the Tribunal, including Ms Krol’s evidence, the Respondent accepts and I find that it is clear that Ms Krol had the following impairments:

   (a)Mental health condition;

   (b)Brain condition;

   (c)Eye condition;

   (d)Hip, pelvis and rib conditions;

   (e)Left shin condition;

   (f)Cervical and lumbar spine conditions;

   (g)Carpal tunnel syndrome;

   (h)Shoulder condition; and

   (i)Heart condition, hypertension and asthma.

10. Hence, the first essential qualification criterion for DSP under s 94(1)(a) is satisfied.

    Do Ms Krol’s impairments attract 20 points under the Impairment Tables?

11. Based upon the evidence referred to in paragraph 9 above I make the following observations and findings in respect of each impairment. 

    Mental Health Condition

12. The Impairment Tables provide that Table 5 – Mental Health Function should be used where the person has a permanent condition resulting in functional impairment due to a mental health condition.  The introduction to Table 5 states that 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).

13. On 20 October 2009 [T9/77] a Job Capacity Assessment (JCA) reported that Ms Krol had consulted a psychiatrist for her depression, as well as a psychologist for both depression and anxiety.  The report notes the Mr Krol did not wish to take anti-depressants as prescribed as she believed she had already taken too many medications.  Ms Krol informed the assessor that she was seeing a psychologist for regular counselling appointments at that time [T9/79].

14. On 1 December 2010 [T12/95] a JCA reported that Ms Krol was seeing Ms Didah Garcia (a registered psychologist according to AHPRA) for six sessions in 2009 and 2010 under a mental health plan.  Ms Krol reported that she was not compliant with medication and did not take it regularly.

15. A report of Dr Tan dated 23 April 2014 [T19/137] states that Ms Krol was undertaking psychological treatment for anxiety and depression.

16. By report dated 2 May 2014 [T22/148], Ms Garcia stated that Ms Krol suffers from anxiety and depression and also reported symptoms associated with Post Traumatic Stress.  Ms Garcia opined that these mental health conditions seemed to be secondary to the physical injuries she sustained from the motor vehicle accident.

17. Dr Shan, psychiatrist, examined Ms Krol and his report is dated 19 May 2014 [T25/160].  Dr Shan stated that Ms Krol suffered from post-traumatic stress disorder (PTSD) and an adjustment disorder, both of which were related to the motor vehicle accident.  It was noted that Ms Krol had been seeing a psychologist since her discharge from hospital, but had not been prescribed any anti-depressant medications.  Dr Shan also noted that [a]nti-depressants are very likely to be prescribed in the future if ongoing symptoms persist or worsen.

18. Reports of Ms Garcia dated 15 September 2014 [T30/191], 16 February 2015 [T35/221] and 11 November 2015 [T42/274] all note that Ms Krol was receiving regular psychological counselling from her since the motor vehicle accident.

19. Ms Krol was referred by Dr Tan to Dr Singh, psychiatrist, who prepared a report dated 3 September 2014 [T33/208].  Dr Singh opined that Ms Krol suffered from adjustment disorder associated with anxiety and PTSD symptoms.  Dr Singh recommended Ms Krol commence taking anti-depressant Axit 15 mg daily and see a psychologist on a regular basis, whilst also seeing Dr Singh also on a regular basis.  The report noted that Ms Krol had denied ever being on any previous medications.

20. Under cross-examination, in respect of Dr Singh’s recommendation to take Axit for depression, Ms Krol could not recall specifically using a prescription to obtain such medication; simply saying that she remembered some doctor prescribing her some different pills.  She sees a psychologist but is not impressed with psychiatrists because they just prescribe pills and do nothing else.  She does not see any benefit in taking such pills.  She agreed that she takes Panadol Osteo, Panadeine Forte and the like.  She also takes valium on occasion.  At one point Ms Krol said that she recalled taking something but didn’t really know and could not clarify what she was taking or, specifically why.  She recalled seeing a specialist but all he did was prescribe pills.  She cannot recall seeing anyone other than Dr Singh, Ms Garcia and Dr Tan.

21. I find that Ms Krol’s mental health conditions, although fully diagnosed, were not fully treated and stabilised as at the qualification period.  There is no corroborated evidence that Ms Krol ever took Axit as prescribed by Dr Singh; even her own evidence at the hearing was equivocal on this point.  Whilst Ms Krol has been undertaking psychological counselling with Ms Garcia, there is no evidence to support systematic use of anti-depressant medication or psychiatric intervention.

    Brain Condition

22. An acquired brain injury unit discharge summary dated 29 November 2013 [T18/129-130] records that Ms Krol:

    (a)was admitted to the acquired brain injury rehabilitation unit at Epworth Hospital on 6 November 2013 for a multidisciplinary rehabilitation program.  This followed the motor vehicle accident on 3 November 2013; and

    (b)had a normal brain scan and skull vault imaging.

23. A report of Dr Tan dated 23 April 2014 [T19/137] stated that Ms Krol suffered from a head injury.  Dr Shan states in his report dated 19 May 2014 [T25/160] that Ms Krol could not recall the accident indicating amnesia of “significant proportions” for which she would need to be assessed by a neurologist.  Dr Shan said it seemed that Ms Krol had a closed head injury with concussion.

24. Dr Vowels, clinical neuropsychologist, in her report of 15 September 2014 [T32/198] states that, as at the date of her assessment of Ms Krol (19 August 2014), Ms Krol had cognitive injuries which had not stabilised as she had been coping with the impact of the cognitive injury, the impact of her orthopaedic injuries, pain and disturbances to mobility.  She states that further deterioration could not be excluded but her impression was that further improvement of the actual problems of cognitive dysfunction was “likely”.  She also indicated that better management would give Ms Krol the possibility of functional improvement.

25. Ms Krol generally, to her credit, stated in the hearing that she has tried to get on with her life since her car accident, that she tries her best, but that sometimes her brain doesn’t work and that she is often in pain and spends time crying.

26. In 2016 she attended Too Cool for School (2C4S) and completed a 6 month Introduction to Adult Education course.  In 2017 she completed a Certificate 1 Adult Education course over a six month period.  Her studies with 2C4S consisted of teacher contact of 2-3 hours per week at the Sunshine Library and 3-4 hours of homework per day about five days per week.  Such homework involved research on the internet and completing assignments including the drafting of such assignments.

27. Ms Krol has difficulties talking and keeping her train of thought.  She said that sometimes her mind goes blank.  She said she will not attempt the Certificate 2 course because her teacher said it would be too hard and she would not be able to do it.  However, she did complete and pass, online, the tests to succeed in the Introductory Course and the Certificate 1.  She could not recall any specific examples of research topics of any specific examples of assignments she completed.

28. Regarding her brain injury and the report of Dr Vowels, she says that before the accident her brain was alright but since then she gets headaches, forgets things, can’t keep her train of thought and gets angry.  She did get a little angry at times during the hearing but that seemed more out of frustration with the questioning process.

29. Upon the evidence I find that, although fully diagnosed, Ms Krol’s brain condition was not fully treated and stabilised as at the qualification period.  Further, there is insufficient evidence of Ms Krol pursuing (or receiving) any ongoing treatment (as recommended by Dr Vowels) to manage her cognitive difficulties.

    Eye condition

30. On 13 March 2015 Ms Krol was referred by Dr Tan to the Vision Eye Institute for an opinion and management of blurry vision [T37/224].  A JCA report dated 18 March 2015 [T38/227] noted that Ms Krol had been referred to an eye specialist but there was no diagnosis at that stage.

31. No further evidence was submitted at the hearing regarding any eye condition.

32. Accordingly, there is insufficient medical evidence to conclude that Ms Krol’s eye condition was fully diagnosed, let alone fully treated or stabilised as at the qualification period.

    Hip, pelvis and rib condition

33. An acquired brain injury unit discharge summary dated 29 November 2013 [T18/129] records that Ms Krol suffered from right anterolateral 3rd and 4th rib fractures, left 7th and 9th to 12th rib fractures together with a fracture of the upper scapula and pelvic fracture, as well as a left ilium fracture extending to the sacro-iliac joint.

34. In a rehabilitation report dated 29 November 2013 [T18/131] Jane-Maree Paton, occupational therapist, stated that Ms Krol:

    (a)had decreased physical ability and weight bearing restrictions on left lower limb (due to pelvic fracture) and was seeing an external physiotherapist twice a week to increase mobility and physical functioning; and

    (b)was discharged from occupational therapy because she declined treatment.

35. A report of Dr Tan received by Centrelink on 27 February 2015 [T36/222] stated that:

    (a)Ms Krol’s conditions (right and left rib fractures, fracture of the upper scapula, pelvic fracture, and left ilium fracture) had not yet stabilised and she was still undergoing extensive rehabilitation and physiotherapy.  Dr Tan said Ms Krol needed to be referred to a pain management specialist for treatment;

    (b)was unable to perform household tasks and remained totally incapacitated for any type of employment due to the severity of her injuries.

36. A JCA report dated 18 March 2015 [T38/226] states that:

    (a)Ms Krol was undergoing fortnightly physiotherapy treatment but had not engaged in a pain management program; and

    (b)Dr Tan said that Ms Krol’s condition had not stabilised as she required further rehabilitation and physiotherapy treatment.

37. An ESA report dated 21 October 2016 [T50/295] recorded that Ms Krol had not engaged in a pain management program.

38. At the hearing Ms Krol said she can walk a little but not for any distance without a walking stick and I so find.  Her social life is not the same anymore and she has no personal life or partner.  She cannot do any heavy lifting, can cook a little, but cannot mop floors or vacuum.  She washes the floors by hand whilst sitting on the floor.

39. Since January 2018 Ms Krol has completed 15 hours of volunteer work per week at Helping Hands Mission in Sunshine.  Initially this work involved sorting clothes but has evolved into the packing of biscuits and other items into pre-made boxes.  She does no heavy lifting within this work.  She also has the ability to move around a little and alternates between sitting and standing when she can.

40. Ms Krol says she has no money and finds it difficult to pay bills including utility bills.  She is scared to go out and doesn’t like travelling far from home.  She can only walk a short distance using her walking stick.  When she does travel further away she uses taxis or friends to drive her.

41. Ms Krol is still traumatised by the accident and is reminded of it often.  She wants to get a job involving light work only.  She goes without pain killers when doing her volunteer work, despite being in some pain, because they make her sleepy and would undermine her ability to work properly.  She presses on regardless, often being in considerable pain.  She tries her best in life and is constantly conscious of meeting her numerous obligations to Centrelink.

42. Ms Krol still attends the Enjoy Church in Sunshine.  The services involve lots of standing and sitting and last for about an hour.  She sits and stands when she wants to during the service.  She used to attend Bible Studies but does not do so anymore because her friend that drove her has moved away.  When she did attend up to 2015, the classes would last for 1 to 2 hours.

43. When questioned about dancing, Ms Krol recalled that she used to love dancing but since the car accident all she can do is occasionally go to dances and watch [T25/160].  She went for her birthday once and then a couple more times.  She is very sad about no longer being able to dance.

44. Ms Krol copes with living on her own, essentially without any help with daily tasks except for taxi drivers to assist with the shopping bags and transport.  When shopping, she puts her stick in the trolley and uses a shallow shopping trolley for support whilst walking.  She gets intermittent pain and clicking in her pelvis and neck.  Her daughter doesn’t really help her and she does not trouble her son because he has his own life.  She can just manage to shower herself with difficulty but she cannot mow the lawn.  She had fortnightly home help for a time when she was in a wheelchair, directly after the accident.

45. She tries to help herself through self-education, movement and exercise.  She cries a lot and gets angry, yet she rejects (perhaps naively) follow up appointments regarding her brain injury saying “they cannot do anything”, “they cannot fix a brain injury” and “they cannot open and operate on your brain”.

46. Regarding a pain management program for her hip, pelvis and rib injury, as suggested by Dr Tan [T36/22], Ms Krol says she tried to make an appointment and then gave up.  She says “nobody can manage your pain”.  She believes only she can manage her own pain.  Through self-help she attempts to manage her own pain.

47. During her appointment with Mr O’Brien [T39/232] Ms Krol managed to walk a few steps without a walking stick and managed to stay seated through most of the appointment because “she had to”, despite being in some pain at times.  She needs a walking stick to walk any distance and I so find.  She doesn’t want another person assisting her to walk.  The nearest shopping centre to her house is some minutes’ drive away at Sunshine Market Place and Plaza.

48. When she had to go to specialist appointments in the city and in Yarraville, about 30 and 20 minutes’ drive away respectively, a friend would drive Ms Krol and she would manage to stay seated for such journeys because “she had to”.  She would put up with the pain.

49. It should be noted that throughout giving her evidence via telephone, Ms Krol said that she stood up and sat down at home whilst on the telephone, as required.

50. When she walks she puts more weight on her right side and her left leg is “sick” and “gets cold” [T39/233].

51. Despite her current volunteer work she disputes her work capacity assessment [T45/278] yet suggests she would like to get a light job “perhaps making cups of tea”; but for a limited number of hours.

52. In light of the evidence I find that the hip, pelvis and rib conditions, although fully diagnosed, were not fully treated and stabilised at the qualification period.

    Left shin condition

53. In a report dated 14 July 2016 [T48] Dr Tan said Ms Krol was suffering from a left shin fracture which required orthopaedic review.  No further evidence was put during the hearing about this injury.

54. The Secretary contends that this condition is not fully diagnosed, treated and stabilised as at the qualification period. In support of this, it was noted that the condition was first diagnosed some five months after the qualification period, with no evidence indicating that the injury was receiving treatment.  It is important to bear in mind that a diagnosis does not need to be made prior to or during the qualification period for a condition to be considered ‘fully diagnosed’.  A matter will be fully diagnosed [p]rovided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period (see Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180 at 206-207; Forgie DP). With that said, the report does not indicate how long the applicant has been suffering from the condition. Furthermore, as mentioned above, there was no other evidence before the Tribunal considering this condition.

1. As a result, I find that this injury was not fully diagnosed, treated and stabilised as at the qualification period.

   Cervical and lumbar spine conditions

2. Various reports indicate Ms Krol suffered from upper back pain, neck pain and arthritis in the spine which was to be treated with pain management.  The Respondent accepts and I find that Ms Krol’s cervical and lumbar spine condition were fully diagnosed, treated and stabilised as at the qualification period.

3. As the condition is fully diagnosed, treated and stabilised, I must have regard to the functional impact of the condition with reference to the Impairment Tables.  The relevant table for assessing Ms Krol’s cervical and lumbar spine conditions is Table 4 – Spinal Function.  The Table relevantly provides the following descriptors for how to assign points under the Table:

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1) The person has some difficulty in:

(a) activities over head height (e.g. activities requiring the person to look upwards); or

(b) bending to knee level and straightening up again without difficulty; or

(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c) the person is unable to bend forward to pick up a light object placed at knee height; or

(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1) The person is unable to:

(a) perform any overhead activities; or

(b) turn their head, or bend their neck, without moving their trunk; or

(c) bend forward to pick up a light object from a desk or table; or

(d) remain seated for at least 10 minutes.

1. It is clear from the medical evidence before the Tribunal, Ms Krol’s evidence and the notes in the JCA reports that Ms Krol’s cervical and lumbar spine conditions have a mild functional impact.  It is clear, at the very least, that she has some difficulty in bending to knee level and straightening up again.  However, I find that there is insufficient corroborating medical evidence to support assessment finding that she meets the descriptors of a 10 point impairment rating under Table 4.  I also note that she is “able to sit in or drive a car for at least 30 minutes” on the basis of Dr Vowels’ finding that Ms Krol was able to remain seated for an appointment lasting over two hours, despite considerable discomfort.  Accordingly, I find that there is a ‘mild functional impact’ on activities involving spinal function and that 5 points should be assigned under Table 4.

   Carpal tunnel syndrome

2. Dr Tan records that Ms Krol suffered from carpal tunnel syndrome [T34/210].  Conversely, Mr O’Brien reported that there was no evidence of neurological deficit in the upper limbs [T28/184].  Similarly, Dr Cook reported that Ms Krol had normal and symmetric tone, power and reflexes in her upper limbs [T40/238].

3. I prefer the evidence of Dr Cook and Mr O’Brien, noting their relevant areas of speciality to this condition (neurologist and orthopaedic surgeon respectively).  I find that carpal tunnel syndrome was not fully diagnosed, treated or stabilised as at the qualification period.

   Shoulder condition

4. Ms Krol has a shoulder condition which has been fully diagnosed by Mr O’Brien and Dr Tan [T28/184 & T48/298].  However, due to a lack of corroborating evidence regarding treatment recommendations, I find that the condition was not fully treated and stabilised as at the qualification period.

   Heart condition, hypertension and asthma

5. Dr Tan reports that Ms Krol suffers from a heart condition, hypertension and asthma.

6. The most recent report regarding Ms Krol’s heart condition was about 8 years prior to the qualification period [T6/56].  There is insufficient evidence to find that Ms Krol’s heart condition and hypertension were fully diagnosed, treated and stabilised as at the qualification period.

7. A report of Dr Tan dated 14 July 2016 recorded that Ms Krol suffered from asthma [T48/287].  I have no further evidence before me that assists in determining whether it is fully treated or stabilised.  Accordingly, although the asthma is fully diagnosed, it is not fully treated or stabilised.

   Overall impairment rating

8. On any view, Ms Krol’s impairments during the qualification period do not attract sufficient points for the requisite rating under the Impairment Tables (5 points in total for her cervical and lumbar spine conditions).  This means her DSP claim must fail – she does not satisfy the second essential qualification set out in s 94(1)(b) of the Act, which requires a rating of 20 points or more.

   Continuing inability to work

9. It is unnecessary for me to make any finding on Ms Krol’s continuing inability to work in light of my findings above.

   CONCLUSION

10. Ms Krol has had a very difficult life since her car accident, but her current claim for DSP fails for the reasons set out above.  Obviously, it is open to Ms Krol to lodge another claim for DSP, perhaps with the further assistance of her GP Dr Tan and after consultation with a member of a community legal centre close to her home in Sunshine.

    DECISION

11. The decision under review is affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

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

Associate

Dated: 23 March 2018

Date of hearing:	7 February 2018
Applicant:	In person
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore