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

[2017] AATA 917

Kucukakyuz and Secretary, Department of Social Services (Social services second review) [2017] AATA 917 (22 June 2017)

Division:GENERAL DIVISION

File Number:           2016/3832

Re:Songul Kucukakyuz

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:22 June 2017

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment tables – whether condition fully diagnosed, treated and stabilised – spinal condition – mental health condition – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth), sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

22 June 2017

INTRODUCTION

1. The applicant, Ms Songul Kucukakyuz, lodged a claim for disability support pension on 24 November 2015.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Ms Kucukakyuz did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 16 June 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Kucukakyuz did not satisfy subsection 94(1)(b) of the Act and so she did not qualify for the disability support pension.

4. On 18 July 2016, Ms Kucukakyuz applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 7 June 2017. Ms Kucukakyuz attended the hearing by telephone. She did not have legal representation.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements set out in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Ms Kucukakyuz must satisfy the requirements of section 94 of the Act as at the date of her claim or within 13 weeks of lodging the claim, that is between 24 November 2015 and 23 February 2016 (the claim period).

8. The Secretary concedes, and the Tribunal agrees, that Ms Kucukakyuz suffers medical conditions that cause impairment and therefore, she satisfied subsection 94(1)(a) of the Act at the time of her claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the relevant claim period, Ms Kucukakyuz had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

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

   Does Ms Kucukakyuz have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires 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:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. 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.

12. The Introduction to each relevant Table requires that the self-reporting of symptoms alone is not sufficient and there ‘must be corroborating evidence of the person’s impairment’.

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states 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).’

14. I now consider Ms Kucukakyuz’s medical conditions and their appropriate rating under the Impairment Tables.

    Spinal condition

15. In her claim for disability support pension, Ms Kucukakyuz listed her disabilities as ‘coccydynia, degenerative disease of thoracic and lumber spine’.[1] This is verified in reports by Dr Yusuf Bulbulia (general practitioner), Dr Karen Hunt (general practitioner), Dr David Manohar (orthopaedic surgeon) and Dr WGD Patrick (general surgeon and medico-legal specialist).

    [1] Exhibit T26, p 189.

16. In a report dated 25 February 2015, Dr Patrick stated that Ms Kucukakyuz suffered an injury while driving at work and described her symptoms as:

    …ongoing chronic back pain which is more widespread now with pain mainly at low lumbar region but with significant pain also lower down at coccygeal region and higher up at lower thoracic region.

    ... intermittent numbness going into the legs.

    …feel[ing] dizzy and … off balance...

    …continu[ing] on a lot of medication…[2]

    [2] Exhibit T23, pp 170-171.

17. Dr Patrick further opined:

    She has… sustained [a] significant spinal injury as a consequence of the work she was carrying out an early 2010… She has developed some significant coccydnia and I do believe that the apparently unilateral spondylosis at L5 is probably more likely to be a minimally displaced pars interarticularis stress fracture… She has not come to any radionuclide bone scan.

    She has gone on to develop more widespread pain at both low lumbar and sacralcoccygeal regions as well as mid/lower thoracic spine, and with just occasional neck symptoms.

    …

    She clearly has ongoing permanent partial working capacity in that she should avoid work...which involves heavy lifting/carrying, frequent bending, prolonged steeping or working in awkward situations, and particularly activities which might result in significant jolting/jarring in the spine. She needs to avoid sitting for long periods or being on her feet for long periods of time.[3]

    [3] Exhibit T23, p 172.

18. Dr Shane Connolly (radiologist) concluded from a CT of Ms Kucukakyuz’s lumbro-sacral spine on 7 July 2015 that she had:

    1Small broadbased L4-5 and L5-S1 disc bulges.

    2Anterior angulation of the coccyx noted appearances consistent with previous trauma.

    3Undisplaced left L5 pars defects noted.[4]

    [4] Exhibit T24, p 175.

19. On 1 February 2016, Dr Hunt reported that Ms Kucukakyuz has had extensive treatment for coccydynia and degenerative disease of the spine including physiotherapy, hydrotherapy, home-based exercises and steroid/local anaesthetic injections.

20. At the Tribunal hearing, Ms Kucukakyuz stated her spinal condition has not changed since the claim period. During the claim period, Ms Kucukakyuz was living alone; since 13 July 2016 she has been receiving carer’s payment to care for her mother who is living with her. Ms Kucukakyuz said she assists her mother to move around the house and bath, ensures she takes her medications, and undertakes grocery shopping and food preparation for both her and her mother. Ms Kucukakyuz noted that while she undertakes household tasks such as food preparation, shopping and clothes washing, she does these tasks one item at a time, slowly and with difficulty. She said her mobility improves when she takes medications, but these are ‘heavy duty’. Ms Kucukakyuz confirmed that she is able to drive a car to the local shops, ‘a couple of minutes away’ from her home, and can turn her head to check the traffic while driving. Ms Kucukakyuz said she is only able to sit or stand for 10 to 20 minutes and remain seated in a car for 25 minutes. However, Ms Kucukakyuz confirmed she was able to fly between Australia and Turkey in September and November 2015, just prior to her claim for the disability support pension. These flights would have required Ms Kucukakyuz to remain sitting for more than 30 minutes, although I accept her evidence that she was only able to undertake this journey by heavily medicating herself.

21. Based on the medical evidence before the Tribunal, I am satisfied that Ms Kucukakyuz’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Ms Kucukakyuz’s condition during the claim period had a moderate functional impact on activities involving spinal function and I assign an impairment rating of 10 points. In making this assessment, I have regard to paragraph 11(4) of the Impairment Tables Determination, which states that episodic and fluctuating conditions should reflect ‘the overall functional impact of those impairments’.

    Mental health condition

22. In a report dated 2 March 2016, Dr Hunt noted Ms Kucukakyuz ‘suffers from depression and post-traumatic stress disorder [which] cause significant disability’.[5]

    [5] Exhibit T33, p 220.

23. Dr Ann Stephenson (psychiatrist) provided a report dated 22 March 2012. This report set out the history of Ms Kucukakyuz’s work injury and provided a diagnosis of exacerbation of major depression and chronic pain disorder. Dr Stephenson proposed that:

    Ms Kucukakyuz may benefit from and integrated psychotherapy involving:

    ·Support

    ·Cognitive behavioural techniques

    ·Pain management strategies.[6]

    [6] Exhibit T39, p 250.

24. Ms Kucukakyuz told the Tribunal she visited Dr Stephenson on one occasion, when she produced the report. She has not seen a clinical psychologist or psychiatrist since 2012 and her medications are currently prescribed by Dr Hunt, her treating general practitioner.

25. Based on the evidence before the Tribunal, I am not satisfied that Ms Kucukakyuz’s mental health condition was fully diagnosed, fully treated and fully stabilised during the relevant claim period. The diagnosis of depression by a psychiatrist was made almost four years prior to her claim for disability support pension and in the context of her work injury. Ms Kucukakyuz has not undertaken any further treatment apart from medication. As the condition cannot be considered permanent in accordance with the Impairment Tables Determination, I am unable to assign any points for this condition.

    Knee condition

26. A medical certificate completed by Dr Hunt on 23 February 2016 noted Ms Kucukakyuz had a ‘degenerative disease…[of the] knees’.[7] At the Tribunal hearing, Ms Kucukakyuz stated this condition had currently resolved itself and had no functional impact.

    [7] Exhibit T32, p 219.

    CONCLUSION

27. For the reasons set out above, I am satisfied that Ms Kucukakyuz did not meet the requirements of subsection 94(1)(b) of the Act during the claim period as her impairments were not rated at 20 points or more under the Impairment Tables.

28. As I find that Ms Kucukakyuz did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether she had a continuing inability to work.

29. If Ms Kucukakyuz’s circumstances change, she is entitled to submit a new application for the disability support pension.

    DECISION

30. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 22 June 2017

Date of hearing:	7 June 2017
Applicant:	By telephone
Solicitors for the Respondent:	Liam Dennis, Department of Human Services