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

[2018] AATA 411

Kucalovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 411 (5 March 2018)

Division:General Division  

File Number(s):2017/2092      

Re:Advija Kucalovic  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Administrative Appeals Tribunal

Date: 5 March 2018

Place: Sydney

The decision under review is affirmed.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment – whether disability is fully diagnosed, treated and fully stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables – spinal condition – sciatica/chronic pain – anxiety and depression – other conditions – decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Schedule 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

BACKGROUND

1. The applicant was originally granted a Disability Support Pension (DSP) on 2 May 2005. Under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) applicable at the time she was assessed as having 10 points under Table 5.2 for a spinal condition and 10 points under Table 6 for a mental health condition.

2. The applicant travelled overseas once in 2006, once in 2007, once in 2009, once in 2010 once in 2011, once in 2013 and once between December 2013 and January 2014. She also travelled overseas between 10 December 2014 and 29 January 2015 and between 13 July 2015 and 15 September 2015.

3. On 23 May 2016 the applicant contacted the respondent to enquire about going overseas for a period longer than the maximum period of portability. The applicant was informed in writing that she would have to undertake a medical review of her qualification for a DSP.

4. On 31 May 2016 Dr Pukanic, GP listed the conditions as cervical, thoracic and lumbar spine, sciatica, anxiety, depression and vaginal prolapse.

5. On 14 June 2016 the applicant listed her conditions as back injury, chronic depression and spinal injury.

6. On 5 July 2016 a CT scan of the lumbar spine revealed minor disc bulges with degenerative changes.

7. A Job Capacity Assessment (JCA) on 15 July 2016 assessed none of the applicant’s conditions as being fully diagnosed treated stabilised and on 12 August 2016 the DSP was cancelled.

8. The applicant was overseas from 12 July 2016 and returned on 16 October 2016.

9. Subsequently an Authorised Review Officer (ARO) affirmed the cancellation decision and the applicant then appealed to the Social Services and Child Support Division at the Administrative Appeals Tribunal (AAT1) unsuccessfully. On 23 March 2017 the AAT1 affirmed the cancellation decision and assigned an impairment rating of five points under Table 4 for the spinal condition  but decided that no other condition was fully diagnosed treated and stabilised. and therefore did not assign a rating.

10. On 12 April 2017 the applicant appealed to this tribunal.

11. Since lodging her application the applicant has provided a report of Dr Maniam dated 25 May 2017.

12. The appeal was heard on 6 October 2017 and the parties were invited to submit further documentation specifically in relation to any programs of support. The respondent subsequently indicated the applicant had not participated in a program of support as at October 2017.

    RELEVANT LEGISLATION AND ISSUES

13. Section 94(1) of the Act provides that a person qualifies for a DSP if:

    (a)   the person has a physical intellectual or psychiatric impairment and

    (b)  the person’s impairments is 20 points or more under the impairment tables; and

    (c)   the person as a continuing inability to work as defined in section 94(2) of the Act.

14. In accordance with the requirements of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) to qualify for the DSP the applicant must satisfy the requirements of section 94 of the Act as at the date of cancellation namely 12 August 2016.

15. The applicant and respondent provided various medical reports and statements commencing with medical reports from 2004 until the latest report dated 25 May 2017 from Dr Maniam.

16. The respondent conceded that the applicant had physical intellectual or psychiatric impairments as at the cancellation date. These arose from the applicant’s:

    (a)cervical thoracic and lumbar spine;

    (b)sciatica and chronic pain;

    (c)anxiety and depression; and

    (d)vaginal prolapse.

17. The respondent contended that as at the date of cancellation the medical evidence did not support a finding that the applicant’s impairments rated 20 points or more under the impairment tables. The respondent agreed with the AAT1’s assessment.

18. This tribunal understands the bewilderment and frustration of the applicant who for 11 years was receiving a DSP until she had to undertake a new medical assessment because she sought portability.

19. Unfortunately for the applicant the rules were changed and a new regime was enacted with affect from 1 January 2012. New impairment tables were introduced and new provisions were inserted into the Act to make it a lot harder for people to get a DSP.

20. The tribunal in its own assessment of the applicant observed that she has some significant issues. The tribunal also observed that in its view it would be very hard for the applicant to be employed anywhere in any job in Australia.

21. The tribunal also observed and made mention to the applicant and respondent that a person in the applicant’s position is entitled to apply at any stage for a DSP or indeed any other kind of pension and if he or she satisfies the criteria in force at the time can be granted that pension.

22. The tribunal made mention of the fact that it is often the case that applicants will have made one, two or even three further  attempts to get a DSP after the date of cancellation to the date they finally appear before this tribunal and in some instances they may well be successful because their condition/conditions have deteriorated.

23. The tribunal  noted that the applicant and her husband told the tribunal her conditions had worsened since 12 August 2016.

24. In other words, there is nothing to stop an applicant having another go and providing they have the relevant medical evidence to back up their condition/s and providing that medical evidence assesses them in accordance with the relevant tables, then they may well qualify.

25. However this tribunal is limited to assessing the applicant’s condition as at 12 August 2016.

    DOES THE APPLICANT HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

26. The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    (a)has been fully diagnosed by an appropriately qualified medical practitioner, and

    (b)has been fully treated; and

    (c)has been fully stabilised; and

    (d)is more likely than not to persist for more than two years.

27. The impairment tables describe functional activities, abilities, symptoms and limitations, and are designed to assign ratings to determine the level of functional impact of impairment.

28. The introduction to each relevant table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”

29. Relying on the evidence before me, I consider that the applicant’s medical conditions for the purposes of her claim for the  DSP are:

    ·spinal condition involving the cervical thoracic and lumbar spine

    ·sciatica chronic pain

    ·anxiety and depression

    ·vaginal prolapse

    ·skin condition

    ·and difficulty with sleeping.

30. I will now consider each of these medical conditions and their relevant rating under the impairment tables.

    Spinal Condition

31. The tribunal agrees with the AAT1 that this condition has been fully diagnosed, treated and stabilized and is likely to persist for at least 2 years. In fact it is this tribunal’s view on the evidence that it will persist for the rest of her life and that as at the relevant time (12 August 2016) any treatment (physiotherapy and counselling - see page 185-6 Tribunal Documents) was in the nature of assisting with management of the condition.

32. The tribunal was assisted by the various medical reports tendered and by the evidence of the applicant and her husband, who described what the applicant could and could not do. Her doctor, Dr Pukanic (who had been her doctor since July 2005), in his report of 31 May 2016 stated that her back condition had a “severe impact on her daily activities” (see Page 187 Tribunal Documents). He stated that her back problems stemmed from a work place injury in 2004. It had further degenerated over time (see Tribunal Documents Page 205).  

33. The tribunal then had regard to the tables, and in particular Table 4 which covers this condition.

34. The evidence of the applicant as told to the tribunal and also to the JCA on 15 July 2016 was that she could not sustain overhead activities like putting washing on the line and reaching up to the top shelf to get a cup. She can, on occasion, wash her hair.

35. I am satisfied she can’t sustain over-head activities. She can to a degree sustain activities at head/shoulder height.

36. The tribunal is satisfied on the evidence before it that as the applicant is able to sit in a car for at least 30 minutes and is unable to sustain overhead activities (e.g. accessing items over head-height) she would qualify for 10 points.

    Sciatica/chronic pain

37. Much of the applicant’s issues with pain see to be tied up with her gynaecological issues and issues to do with her back problems.

38. Dr Tomic, in his report dated 21 November  2016 (see page 219 Tribunal Documents) felt that “although her pain seems to be of sufficient severity to warrant clinical attention, I judge that psychological factors significantly contribute to the onset, severity, exacerbation and maintenance of her pain.”

39. In evidence before the tribunal the applicant and her husband also indicated that as a result of her vaginal prolapse and Gynaecological issues as well as the ongoing problems with her back she was often in great pain.

40. The only evidence that pain had ever been diagnosed as a condition in its own right and not as a corollary to another condition was by Dr Patapanian in 2005 (and even then he was somewhat equivocal, and he also wanted to review the matter at a later time).

41. Accordingly, as at 12 August 2016, and indeed even at the time of the hearing, there was no evidence to indicate that the applicant’s chronic pain can be assessed as a separate impairment (under the applicable table which would be Table 1).

    Anxiety and Depression

42. The tribunal does not accept the respondent’s contention that this impairment was diagnosed after the relevant period (12 August 2016).

43. Clinical Psychologist Dr Nikola Tomic clearly states in his report of  21 November 2016 to Centrelink  (see T doc page 217) “Following the Mental Health Care Plan provided by  Dr Pukanic, I re-assessed Mrs Kucalovic on 16^th of November 2016 and established that she continues to suffer from severe depression and anxiety, which I first diagnosed four years ago”.

44. However, taking into account all the evidence before the tribunal and looking at the descriptors in Table 5, the Tribunal concludes that  her mental health problems would at least cause her mild difficulties in line with the descriptors as follows.

    (a)Self-care and independent living: Her husband does many daily tasks for her; indeed one could say she has significant issues with independent living.

    (b)Social/recreational activities and travel: She does see some friends and goes to their place. She has travelled overseas to visit family  too.

    (c)Interpersonal relationships: Her relationship with her husband at times is clearly strained, with occasional tension.

    (d)Concentration and task completion: There is no evidence at all either before me or before the AAT1 of any issues here.

    (e)Behaviour, planning and decision making: The applicant does display unusual behaviour at times. She kicks her husband and was quite agitated at times during the hearing. It could even be said to a moderate degree.

    (f)Work/training capacity: This is not easily assessable as the applicant has not worked since 2004. I would anticipate difficulties however in a work environment due to the agitation and somewhat erratic behaviour she displayed during the hearing (some of which could be put down to the pain she was suffering from as a result of her back and vaginal prolapse conditions).

45. To obtain 5 points under Table 5 the applicant has to satisfy a majority of the descriptors. i.e. 4 out of 6.

46. This tribunal on balance is satisfied to find that she satisfies (a), (c), (e) and (f).

47. If one was looking at a moderate functional impact (10 points) she would satisfy (a), (e) and possibly (f). That is, only 3 out of the 6 descriptors. 

48. Accordingly the tribunal can only award her 5 points under Table 5.

    Vaginal Prolapse

49. On 10 May 2016, a pelvic ultrasound revealed a slightly thickened endometrium (see Tribunal documents page 180). On 31 May 2016 Dr Pukanic (page 185) and on 18 May 2016 Dr Papapetpos, Gynaecologist (page 186) diagnosed her with major prolapse recto-vaginal.

50. Planned treatment for the condition was “surgery and major plastic operation for repair of vaginal prolapse”.

51. The tribunal heard during the hearing that her GP, her husband and family all desperately want her to have this operation as she is in great pain from this condition and it is causing her significant urinary and other problems. The tribunal was impressed with their concern and hopes that since the hearing this has now occurred and the situation improved and stabilized.

52. As at 12 August 2016 and as at the time of the hearing this condition, whilst diagnosed had not been fully treated and stabilized. No points can therefore be allocated.

    Other conditions: Skin Condition and Difficulty with Sleeping

53. The tribunal noted the significant problems the applicant had with her skin condition, diagnosed as consistent with bullous lichen planus on 1 February 2017 (see page 228 Tribunal Documents). As this is after the relevant period (12 August 2016) it cannot be considered and at any rate may also not appear to be fully treated and stabilized yet.

54. Similarly, whilst both the applicant’s GP and Dr Tomic comment on the applicant’s sleep difficulties, there is no report that diagnoses a sleep disorder.

55. Accordingly the tribunal can only award 15 points under the tables (10 for Table 4 - back and 5 for Table 5 - mental health) and as a result she does not meet the qualification criteria under Section 94(1) (b) of the Act as at the cancellation date.

56. I would add that after the applicant has her operation for her vaginal prolapse issues, hopefully her conditions will stabilize to the extent that they are at least all fully treated and stabilized to allow an updated medical assessment to be made.

57. Finally, I conclude by saying that if the applicant’s circumstances do not improve and change or worsen in any way, she is entitled to submit a new application for a DSP at any time. Any fresh application should be supported by new reports by relevant health professionals (e.g. from her GP especially) addressing the relevant impairment tables, commenting on the descriptors therein, and assigning her points for each condition.

58. However I am restricted to the situation as at 12 August 2016 and for the reasons given above, the decision under review is affirmed

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated:  5 March 2018

Date(s) of hearing:	6 October 2017
Date final submissions received:	9 October 2017
Applicant:	In person
Advocate for the Respondent:	Glenda Huggen
Solicitors for the Respondent:	Department of Human Services