Lippiello; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2009] AATA 337
•13 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 337
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/3369
GENERAL ADMINISTRATIVE DIVISION )
ReSecretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Applicant
And Angela LIPPIELLO
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date13 May 2009
PlaceSydney
DecisionThe decision of the Social Security Appeals Tribunal is set aside and the Tribunal substitutes a decision that the Applicant’s Disability Support Pension is cancelled with effect from 28 November 2006.
..................[sgd]............................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether functional impairment is eligible for point rating under Impairment Tables – whether condition has been “fully treated” – whether condition has been “fully stabilised”
…
RELEVANT ACT
Social Security Act 1991- sections 94(1)(b), 117, 1065 and Schedule 1B
…
REASONS FOR DECISION
13 May 2009
Ms N Isenberg, Senior Member
decision under review
1. The decision of the Social Security Appeals Tribunal (SSAT) dated 14 June 2007, that set aside the decision of 28 November 2006, to cancel Ms Lippiello’s qualification to a disability support pension (DSP) and substituted a new decision that Ms Lippiello continued to meet the requirements of s94 of the Social Security Act 1991 (“the Act”).
2. The matter was listed for hearing on 5 May 2009, but despite a listing notice being sent to her last known address, Ms Lippiello did not appear. Being satisfied that Ms Lippiello had notice of the hearing, and had been provided with copies of all relevant documents, I decided to determine the matter on the papers before me, which are listed in the annexure to this decision.
background
3. Ms Lippiello’s claim for DSP was granted on 20 February 2003, based on degenerative neck and lower back pains with sciatica and cervical cephalgia (headaches).
4. In February 2004, Ms Lippiello was referred by Centrelink to the Commonwealth Rehabilitation Service (CRS) and for a 12-month rehabilitation program. In March 2006, she was again referred to a rehabilitation program at CRS, however CRS declined to proceed with the program as Ms Lippiello arrived one and a half hours late for her initial appointment and said that as she was in receipt of DSP, she “did not need to be pressed to look for work”.
5. On 5 October 2005 and on 5 March 2006, Ms Lippiello was involved in two bus accidents.
6. On or about 10 April 2006, Centrelink required Ms Lippiello to submit a Treating Doctor’s Report (TDR) as part of a review of her continuing entitlement to DSP. Dr Green who completed the TDR indicated that Ms Lippiello suffered from spinal spondylitis and muscle spasm of neck. Later, on 22 July 2006, Ms Lippiello submitted a medical certificate prepared by Dr Green, in which she indicated that Ms Lippiello also suffered from acute mental anxiety, “multiple arthritic diseases” (sic), and myxoedama/thyrotoxicosis. She considered Ms Lippiello to be unfit for work or study between 1 December 2006 to 1 June 2007 and would require support.
7. On 28 November 2006, on the basis of a report dated 14 November 2006 by Ms Sharon Phillips, a registered psychologist and job capacity assessor, Centrelink decided that Ms Lippiello was no longer qualified for DSP. Ms Phillips had considered that while Ms Lippiello’s spinal disorder and hypothyroidism were permanent, her neck, shoulder and upper arm disorders were only temporary. Her psychological stress was also considered to be temporary.
8. DSP was restored pending further review, but was cancelled from 22 February 2007. That decision was affirmed on internal review.
9. Ms Lippiello appealed to the Social Security Appeals Tribunal (SSAT), and provided additional medical evidence. On 14 June 2007, the SSAT set aside Centrelink’s decision and found that Ms Lippiello suffered from the following conditions:
(a)Permanent spinal disorder rated at 5 impairment points under Table 5.2;
(b)Permanent cervical spine impairment rated at 5 impairment points under Table 5.1;
(c)Permanent thyroid condition rated at nil impairment points under Table 19;
(d)Temporary left upper arm that could not be rated; and
(e)Permanent psychiatric impairment rated at 10 impairment points under Table 6.
10. The SSAT concluded that Ms Lippiello’s work capacity was limited to less than 30 hours per week and that she was unable to be re-trained.
11. Centrelink, as it is entitled to do, has brought the present application for review to this Tribunal.
eligibility for rating under impairment tables
12. The fundamental issue in determining this review application is whether Ms Lippiello has a functional impairment that is eligible for a rating under the “Tables for the assessment of work-related impairment for disability support pension” (“Impairment Tables”) in Schedule 1B of the Act. A functional impairment rating of at least 20 points is one of the threshold qualification requirements for receipt of a disability support pension: see s 94(1)(b) of the Act. Centrelink’s position is that no rating should be made in respect of Ms Lippiello’s upper arm and cervical condition, or her psychiatric condition because those conditions had not been fully diagnosed, treated and were not stable.
13. A DSP applicant’s functional impairment rating must be determined under the Impairment Tables: s 94(1)(b). The Introduction to the Impairment Tables governs the way the Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment and the stability of an applicant’s condition are particularly relevant considerations in the application of the Impairment Tables. Those paragraphs (with emphasis added) are in the following terms:
…
4.A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5.The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two 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, within the next 2 years.
6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
§what treatment or rehabilitation has occurred;
§whether treatment is still continuing or is planned in the near future;
§whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
§treatment that is feasible and accessible ie, available locally at a reasonable cost;
§where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
§evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
§indicate why this treatment is reasonable; and
§note the reasons why the person has chosen not to have treatment.
…
14. The Introduction requires that an applicant’s condition must be “fully diagnosed (and) treated” before the Impairment Tables can be applied to assign an impairment rating: (paragraphs 4 and 6). Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”: (paragraph 6).
15. The Introduction also requires that the applicant’s condition be “permanent” (in the sense of being more likely than not to persist for the foreseeable future) before it can be assigned a rating: (paragraph 5). Where a diagnosed condition involves irreversible bodily changes there is a sense in which the condition must be regarded as permanent. This is so in the present case where the imaging investigations referred to above conclusively confirm the existence of lumbar disc desiccation and bulges. But a diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned: (paragraphs 4 and 6). A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years: (paragraph 5). A consequence of this stability requirement is that a diagnosed condition may be permanent, in the sense that it is “more likely than not that it will persist”, and yet not be “stabilised”. This will be the case where the impairment related to the condition may be such that significant functional improvement within two years is not regarded as unlikely.
spinal disorder
16. Centrelink did not dispute that Ms Lippiello has a permanent spinal disorder. I accept that Ms Lippiello has a long-standing low back condition and that it is properly considered as permanent.
17. The spinal disorder was first reported in 2002 by Dr Carter in her TDR of 20 November 2002 and was said to have arisen in about 1998 after a bus accident. In that report it was noted that there was daily back pain which increased with activities and on lifting. It was considered to be of moderate impairment. Regular walking was encouraged and she was to avoid heavy lifting. Celebrex was prescribed.
18. Dr Richards, in his medical report of 2003 thought the condition dated from 1999. Dr Richards reported that Ms Lippiello had a quarter loss of range of movement of her thoracolumbar spine. Although he grouped her neck and low back conditions, he wrote of her difficulties in the following way: “lifting [<5kg], bending, twisting, sitting [30+ mins], work above chest height, pushing, pulling, standing [5 mins], walking [20+ mins], cycling, sport and manual chores such as gardening and heavier household chores.
19. Dr Green who prepared the TDR of 10 April 2006 (signed and submitted on 27 April 2006) noted that Ms Lippiello’s back condition arose in about 2000 and its functional impact included pain, difficulty in bending and lifting. Dr Green was unclear on whether the condition was anticipated to improve. When Ms Lippiello was reviewed by Ms Phillips, job capacity assessor, on 14 November 2006, Ms Phillips noted that Ms Lippiello had told her that the spinal condition was not causing pain and discomfort and was not an on-going problem as long as she did not strain her back.
20. Ms Josephine Knight, a job capacity assessor, who prepared a report dated 16 February 2007 considered the previous medical information on file in addition to the medical certificate dated 22 July 2006, an x-ray/scan report dated 9 August 2006, Dr Carter’s TDR of 29 November 2002, and a medical care plan dated 31 October 2006. Essentially Ms Knight confirmed the findings of the previous job capacity assessment report and considered that with appropriate treatment, Ms Lippiello would be fit for work within 24 months and would be able to work for 15-22 hours per week.
21. Mr Harrison, another job capacity assessor saw Ms Lippiello on 13 July 2007. He observed that Ms Lippiello did not report significant difficulties with her lower back, acknowledged that she was unable to undertake heavy lifting, could ride a bicycle and only experienced pain when she engaged in heavy lifting. He considered her spinal disorder to be permanent but that it was not fully diagnosed, treated and stabilised and therefore could not be rated under the Impairment Tables. Centrelink did not press Mr Harrison’s view.
22. Ms Lippiello was recorded as having told the SSAT at the hearing on 14 June 2007 that her back condition fluctuates, however said that she can stand for one to two hours, can sit, but must alter position after “a while”, is independent in personal care and while she does not drive, inferred that she can travel on public transport.
23. The SSAT did not have the benefit of the report of Dr Roberts dated 19 October 2007. There Ms Lippiello was recorded as having reported working a minimum of 5 hours per day, 7 days per week performing domestic chores, which included vacuuming, laundry, cleaning bathrooms, taking out garbage, folding clothes and washing the patio, which included carrying “twenty buckets of hot water”. In addition, Dr Roberts observed Ms Lippiello to sit for the duration of his examination without apparent discomfort.
24. I note the relevant part of Table 5.2 provides as follows:
…
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TEN Loss of one‑quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
…
25. The only available evidence as to range of movement (ROM) is that of Dr Richards in 2003: a quarter loss of ROM. I accept though that the totality of the evidence since that time, especially the report of what Ms Lippiello told Dr Roberts about her activities, might militate against a finding that the lumbar spine condition has no functional impact on her. However, because of the long-standing nature of the condition, and that it is properly considered as permanent, I am prepared to accept that Ms Lippiello has learned to “live” with the condition by avoiding heavy lifting where possible and undertakes the extensive household chores notwithstanding the loss of range of movement in her lower back.
26. An impairment rating of 5 is appropriate under Table 5.2 of the Impairment Tables.
thyroid condition
27. Centrelink accepted that this condition is permanent and may be rated. Table 19 provides:
…
Rating Criteria
NIL Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget's disease, Osteoporosis, Addison's Disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.
TEN Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget's disease or Osteoporosis which is incompletely controlled or treated eg. symptomatic Paget's disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.
…
28. Hypothyroidism was first reported in the TDR completed by Dr Carter in 2002. At that time, the condition was still undergoing treatment and was anticipated to improve significantly. Dr Richards noted on 4 February 2003 that the condition was still not satisfactorily controlled with oral medications.
29. It was considered by Ms Phillips, job capacity assessor, in November 2006. Ms Lippiello told Ms Phillips the condition was originally diagnosed as hyperthyroidism but had been changed to hypothyroidism, and her medication varied accordingly. She reported the impacts of her condition to be “lethargy, problems with concentrating, needing to sleep more and inability to get up early or go to bed late, memory problems, agitation and moodiness”. Ms Phillips noted that the condition was permanent, however that it was not completely controlled with medication and was monitored with quarterly blood tests.
30. “Myxoedama/thryrotoxicosis” was noted in the medical certificate of Dr Green in December 2007 and was being treated with medication and monitoring.
31. Ms Lippiello told the SSAT that she ceased thyroxine treatment in about October 2006, but resumed it in about November 2006 and since that time her symptoms have stabilised. She made no complaints as she had made to Ms Phillips.
32. I accept that the condition is permanent. It appears that once a correct diagnosis was made and medication adjusted, and she complied with the medication regime, there was no functional impairment. A nil impairment rating is warranted under Table 19, as the condition is appropriately controlled with medication.
upper arm, shoulder and neck disorder
33. Centrelink contended that, at the relevant date, the upper arm and shoulder condition had not been fully diagnosed treated and stabilised and could not therefore be rated.
34. From the history given by Ms Lippiello to the SSAT she hurt her neck and left shoulder when she became stuck in the door of a bus in 2005, although other information suggests it was in March 2006. More details were recorded in the history taken by Dr Drew Dixon, Consultant Orthopaedic Surgeon in his report dated 12 March 2008. Prior to that time, as early as 2002, Dr Carter had referred to her chronic neck pain. In 2003, Dr Richards had noted the neck condition as being degenerative in origin and recorded a loss of cervical range of movement of one quarter.
35. The first indication that Ms Lippiello suffered from an upper arm disorder or shoulder complaint was in a medical certificate by Dr Green dated 24 March 2006 in which the condition was described as “spasm of trapezius” (Zurich Insurance file p99). In the TDR of Dr Green dated 10 April 2006 (signed and submitted 27 April 2006), Dr Green noted the condition as “muscle spasm of neck”. Dr Green noted that the condition only recently arose on 5 March 2006, which was the date of the bus accident, and anticipated that it would significantly improve with physiotherapy. She also anticipated that the condition would endure between three to 24 months only. In a letter to the insurers dated 17 March 2007 Dr Green wrote that Ms Lippiello had not visited her in relation to her neck and shoulder condition, only other matters. Another certificate by Dr Green dated 8 May 2007 in which Dr Green recorded damage to soft tissue R (sic) Shoulders (sic) and recommended physiotherapy.
36. On 8 June 2006, a GP, Dr Wong wrote that Ms Lippiello was suffering tendonitis as a result of the bus accident (Zurich Insurance file p34) . In another report he described her as having suffered a “whiplash” injury (Zurich Insurance file p36).
37. The condition was further considered by Ms Phillips, job capacity assessor, on 14 November 2006, who listed the condition variously as “neck disorder” and “shoulder and upper arm disorder.” Ms Phillips also noted the recent origin of the condition which was related to the accident on 5 March 2006. Ms Phillips considered the condition would improve with appropriate treatment and that treatment included physiotherapy, medication and involved specialist review which had yet to occur.
38. Dr Menogue, a specialist in musculo-skeletal medicine examined Ms Lippiello at the request of the bus company’s insurers. Dr Menogue noted that Ms Lippiello had low-grade ache on the left side of her neck which occurs only on palpation of the left scapula. He recorded a loss of range of movement only marginally less than normal. Her left shoulder pain was intermittent only and was relieved by rest, heat and the physiotherapy. Dr Menogue had viewed the video of the bus incident and formed the view that Ms Lippiello had sustained only a soft tissue bruise to the left upper arm and shoulder which he would have expected to resolve after four to six weeks. It was “inconceivable” that for a “trapezius spasm” reported by Dr Green that she would have required such extensive physiotherapy. He considered her condition to have stabilised. He considered her symptom to be somatic and did not relate to her cervical disorder. He was critical of the diagnosis of Dr Wong (Zurich Insurance file pp 66-73).
39. Ms Lippiello’s medical file was again assessed by Ms Knight, job capacity assessor on 16 February 2007. Consistent with Ms Phillips’ views, Ms Knight also considered that Ms Lippiello’s neck and upper arm disorder were of recent origin, and were being treated with fortnightly physiotherapy, medication and specialist referral, which was yet to take place. Ms Knight also assessed the condition as temporary.
40. On 3 April 2007, Ms Christine Cumming, a physiotherapist treating Ms Lippiello provided a medical certificate, and reviewed the neck and shoulder conditions, noting that the neck was “much improved”. She acknowledged that the shoulder continued to be painful, and was exacerbated with manual work. She recommended that manual work be avoided until her shoulder regains strength.
41. In contrast, a report by Dr Ellis, consultant surgeon, dated 28 May 2007 found a cervical loss of range of movement of 1/3. He considered that she had suffered a “musculo-ligamentous contusion, aggravation, degenerative change in her neck with secondary effects in the left upper limb, referred pain and neurological deficit”.
42. On 16 August 2007, Ms Lippiello underwent a CT scan on her left shoulder and subsequently supplied a copy of the report from Primary Diagnostics. The report indicated that Ms Lippiello had:
… mild pitting and sclerosis of the humeral cortex at the rotator cuff insertion, normal for age. There is also a small divot in the posterior articular cortex of the humerus and this may be due to a recent osteochondral fracture. This lesion measures 10 x 5 mm.
…
43. On 30 August 2007, Dr Wines provided Ms Lippiello with a referral to see Dr Macdougall, a shoulder specialist, and recommended continued physiotherapy.
44. The Respondent referred Ms Lippiello to Dr David Bornstein, Consultant Orthopaedic Surgeon, who examined her on 8 October 2007. He reviewed Ms Lippiello’s cervical spine and left shoulder. He conducted a range of movement study for both and found that Ms Lippiello had a full range of movement in the cervical spine as well as a full range of motion of her elbow and shoulder in all directions. Significantly, Dr Bornstein concluded that Ms Lippiello’s neck and shoulder injury was not fully diagnosed or treated at 5 October 2007 and was unable to diagnose specifically the current complaint. Dr Bornstein considered that with further investigations and treatment, improvement was likely.
45. On 12 March 2008, Dr Drew Dixon, Consultant Orthopaedic Surgeon provided a report to NSW Compensation Lawyers for the purpose of a personal injury claim that Ms Lippiello has on foot resulting from a motor vehicle accident that occurred, apparently on 5 March 2006. While the report refers to two accident dates (5 October 2005 and 5 March 2006) it is apparent that Dr Dixon was addressing injuries said to have occurred on the latter date. Dr Dixon diagnosed Ms Lippiello’s condition as:
… post traumatic stiffness of the left shoulder with residual subacramonial bursitis clinically with painful arc on abduction and neck strain injury with a C5/6 disc lesion in her neck with aggravation of C5/6 cervical spondylosis with left radicular complaint in left upper limb with sensory changes (p3).
…
46. Dr Dixon considered that Ms Lippiello had lost lateral rotation of the cervical spine to the right of one-half and to the left by one third. He opined that Ms Lippiello had lost significant use of her left arm on adduction, extension and rotation. Dr Dixon opined that her treatment consisted of pain relief and anti-inflammatories, and would require cortisone injections to her left shoulder with ultrasound guidance by a radiologist and a cervical facet block. While operative procedures were not indicated at present, Dr Dixon opined that she was a candidate for anterior cervical decompression and fusion. Dr Dixon also considered she had reached “maximum medical improvement”.
47. An x-ray dated 14 February 2008 showed disc protrusion at C5/6. Dr Wines, Ms Lippiello’s current GP described these degenerative changes as “mild”.
48. I accept that Ms Lippiello has a long history of neck problems dating, at least since 2002. The neck problem is supported by objective diagnostic material, which shows some degenerative change. There is also long-standing evidence of a loss of a quarter range of movement. More recently it was assessed by Dr Ellis at a third loss, where as Dr Menogue noted a near normal range of movement. Her condition may have been temporarily aggravated by the bus incident in 2006 but her neck remains symptomatic and I accept that it is properly rateable as permanent, being treated with the physiotherapy, heat and rest. A rating of 5 is appropriate as it meets the relevant descriptor from Table 5.1:
…
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement
…
49. As to the shoulder and upper arm problems, I accept the Centrelink contention that the condition arose as a result of the bus incident in March 2006. The preponderance of medical evidence though, is that the condition was muscular only and was likely to have resolved after a short course of the physiotherapy. This intervention, though, continued. At the relevant date, the condition had not, in my view, been fully treated and stabilised. As such, the shoulder and arm condition cannot be rated.
psychiatric condition
50. Centrelink submitted that the preponderance of the medical evidence indicates that Ms Lippiello does not have a diagnosed psychiatric condition that can be evaluated under Table 6 of the Impairment Tables.
51. In the medical certificate of 22 July 2006, Dr Green indicated that Ms Lippiello suffered from “acute mental anxiety”. The date of onset was not known. The symptoms were listed as “uncontrolled actions” and “uncontrolled behaviour”. She referred Ms Lippiello to Ms Gail Robertson, psychologist.
52. A report was provided by Ms Robertson dated 3 May 2007. Ms Robertson noted that she had reviewed Ms Lippiello for post-traumatic stress disorder (“PTSD”), anxiety, depression and chronic pain related to her neck and shoulder injuries. She noted that as at that date, Ms Lippiello had attended five therapy sessions and while she had made some progress with her mood disorder, recovery would continue to be slow. Ms Robertson opined that Ms Lippiello would remain unfit to return to the workforce or undertake training, though did not specify a limitation period. Ms Robertson referred Ms Lippiello to the Adult Services at the Queenscliff Community Health Services for additional support.
53. On 14 November 2006 Ms Phillips, a registered psychologist and job capacity assessor, considered Ms Lippiello to be suffering psychological stress. Ms Lippiello reported that the condition followed a traumatic event some twelve months prior, but did not specify what this traumatic event was. She complained that the condition caused her “emotional instability and uncontrollable rage”. The anxiety was related to this condition and was exacerbating her physical conditions, though she conceded that she had not received any treatment for fear of being considered “mentally ill”.
54. The psychiatric condition was also considered by Dean Harrison, job capacity assessor in his report of 13 July 2007, wherein Mr Harrison noted that Ms Lippiello denied any mental illness and had failed to follow up on the referral provided by Ms Robertson.
55. Dr Samson Roberts, Forensic Psychiatrist, reviewed Ms Lippiello on 17 October 2007. Dr Roberts prepared a report dated 19 October 2007 in which he opined that Ms Lippiello did not suffer from anxiety and depression of a nature and severity as to permit a diagnosis to be made under the DSM-IV TR. Dr Roberts also opined that while features of Ms Lippiello’s presentation, namely her instability of mood, inability to sustain interpersonal relationships and manner were consistent with Borderline Personality Trait, they were not of a nature and severity as to permit a diagnosis under DSM-IV TR. Dr Roberts noted that Ms Lippiello had not received any psychiatric treatment, had only received limited psychological counselling, and suggested that further psychological counselling may assist her. He further noted that Ms Lippiello was, for about 35 hours per week, presently engaged in work (housekeeping) and had been providing those services for about six months prior to 17 October 2007 (ie, March-April 2007). Prior to that, she worked variously in a detoxification centre, as an enrolled nurse in Adelaide’s Modbury Hospital (1997-2004), for an author and, prior to 5 October 2005, in a supermarket.
56. In the absence of other psychiatric evidence in support of Ms Lippiello’s position, I am persuaded by the report of Dr Roberts who concluded that as at the relevant date, Ms Lippiello suffered from no psychiatric condition. I agree with his view that it is inappropriate for medical practitioners to have listed a psychiatric illness in circumstances where the diagnostic criteria are not addressed. Ms Lippiello had not had any psychiatric assessment. The SSAT relied on the various prior “diagnoses” and the fact that Ms Lippiello was said to have been “seeing a psychologist regularly”. At best, she had had five sessions, between July 2006 and May 2007.
57. I accept that Ms Lippiello may not want to consult a psychiatrist for fear of being labelled ‘mentally ill’. Such an approach is unreasonable in circumstances where she seeks to assert a mental illness in support of her position that she is entitled to DSP.
58. I therefore do not find her condition, at the relevant date, to be fully diagnosed, treated and stabilised. As such it cannot be rated.
overall impairment rating
59. Ms Lippiello’s overall impairment rating is therefore 10 points. This falls short of the 20 points or more required under s 94 of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether she has a continuing inability to work.
decision
60. The decision of the SSAT is set aside and the Tribunal substitutes a decision that the Applicant’s Disability Support Pension is cancelled with effect from 28 November 2006.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ...........................[sgd].................................................
AssociateDate/s of Hearing: Matter determined on the papers
Date of Decision: 13 May 2009
Solicitor for the Applicant: Self represented
Solicitor for the Respondent: Mark Nicoletti, Centrelink
ANNEXURE List of Documents before the Tribunal 1 Section 37 Documents 2 Zurich Insurance file with cover letter dated 14 January 2009 3 Letter to Applicant from Petrovich Accident Lawyers dated 5 June 2007 4 Primary Diagnostics report dated 16 August 2007 5 Letter of referral from Dr Wines to Dr Macdougal dated 30 August 2007 6 Letter of referral from Dr Wines addressed “To Whom it may concern” dated 30 August 2007 7 Report of Dr David Bornstein dated 11 October 2007 8 Report of Dr Samson Roberts dated 19 October 2007 9 Report of Dr Drew Dixon dated 12 March 2009
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