Lourin Tuma and Secretary, Department of Social Services
[2014] AATA 888
•1 December 2014
[2014] AATA 888
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2626
Re
Lourin Tuma
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 1 December 2014 Place Sydney The decision under review is affirmed.
...................[sgd].....................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether conditions causing impairment are permanent – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – decision affirmed
LEGISLATION
Social Security Act 1991 ss 26, 94
Social Security (Administration) Act 1999 ss 13, 41, 42, Sch 2 cll 3, 4
CASES
Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
1 December 2014
DECISION UNDER REVIEW
On 1 March 2013, the Applicant, Lourin Tuma, lodged a claim for disability support pension (DSP). Her application was refused. That decision was affirmed on internal review and upon review by the Social Security Appeals Tribunal (SSAT). The Applicant seeks review of that decision.
ISSUES
The issue before the Tribunal is whether the Applicant was qualified or became qualified to receive DSP within the period 1 March 2013 (the date of claim) to 31 May 2013 (13 weeks after that date). This depends on whether the Applicant satisfied s 94 of the Social Security Act 1991, in particular:
·whether some or all of the Applicant’s conditions causing impairment were permanent, and, if so;
·whether her impairments attracted a rating of at least 20 points, and, if so;
·whether she has a continuing inability to work.
THE LEGISLATION
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Policy advice contained in the Guide to Social Security Law (the Guide) is also relevant.
Section 94 of the Act provides the qualification criteria for DSP. Relevantly, the person must have a physical, intellectual or psychiatric impairment (s 94(1)(a)) which attracts an impairment rating of at least 20 points (s 94(1)(b)) and the person must have a continuing inability to work (s 94(1)(c)). A continuing inability to work (CITW) is defined in s 94(2) of the Act.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) took effect from 1 January 2012. The Determination is made under s 26(1) of the Act and contains the Impairment Tables (the Tables) and the rules for their application. 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 impact of 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.
The Tables may only be applied after the person’s medical history has been considered. An impairment rating can only be allocated if a condition causing the impairment is permanent, that is, fully diagnosed, treated and stabilised, and likely to persist for more than two years and the impairment that results from the condition is more likely than not to persist for more than two years: s 6(2)-6(4) of the Determination.
THE RELEVANT PERIOD
The Administration Act provides that ordinarily the start day for DSP is the date of claim (ss 13, 41, 42, Schedule 2 clause 3). This means that qualification and impairment ratings must be determined at the date of claim. The only exception is where the person is not qualified on the day of claim but “will ... become qualified” and “becomes so qualified” within thirteen weeks of lodging a claim, in which case the start day is the day they became qualified: Schedule 2 clause 4(1).
The Applicant lodged a claim for DSP on 1 March 2013. By virtue of ss 13, 41, 42, Schedule 2 clauses 3 and 4 of the Administration Act, the issue is whether the Applicant was qualified to receive DSP at the date of claim or became so qualified within 13 weeks of the date of her claim, that is, 1 March 2013 to 31 May 2013.
DOES THE APPLICANT SUFFER A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Respondent conceded that the Applicant suffered physical, intellectual or psychiatric impairment during the relevant period caused by polymyalgia rheumatica, depression and anxiety, and a gastroenterological condition (chronic portal hypertension secondary to biliary atresia). There is no dispute therefore that the Applicant satisfies s 94(1)(a) of the Act.
THE TABLES
As stated above, an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (in accordance with s 6(4) of the Determination) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not “permanent”, the impairment resulting from this condition cannot be assigned an impairment rating. Also if the Applicant’s condition causing the relevant impairment is “permanent” but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Tables.
Subsection 6(4) provides the meaning of “permanent” for the purposes of s 6(3). A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; has been fully treated; has been fully stabilised; and is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of s 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
Subsection 6(6) defines “fully stabilised” for the purposes of s 6(4)(c) and s 11(4) of the Determination. It provides that a condition is fully stabilised if either:
(a)the 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; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Subsection 6(7) provides that, for the purposes of s 6(6) of the Determination, reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 8 of the Determination sets out information that is not to be taken into account in applying the Tables, in particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
WERE, AT THE RELEVANT DATE, THE APPLICANT’S CONDITIONS PERMANENT, AS DEFINED?
In her claim, the Applicant identified her conditions as chronic abdominal pain, depression, portal hypertension, oesophageal varices and polymyalgia rheumatica. The Applicant’s application for DSP was accompanied by a medical report completed by her GP, Dr Al-Horani, dated 7 March 2013. The doctor wrote that the Applicant had been diagnosed with “chronic portal hypertension secondary to biliary atresia” and “major depression and severe anxiety”.
The Applicant provided numerous medical reports and these are referred to, as relevant. Much of the medical evidence provided by the Applicant centres on the diagnosis or description of her conditions but does not deal with the functional impact of the conditions on the Applicant.
Polymyalgia rheumatica
There was no dispute that the Applicant’s polymyalgia rheumatica is fully treated, diagnosed and stabilised. The Applicant’s evidence was that the condition causes joint pain, especially in her hands, feet and lower back. She has no energy; she does no exercise although she has been advised to do so.
The Applicant said she has consulted Dr Lim, consultant rheumatologist, for a couple of years. In his treating doctor’s report dated 17 May 2013, Dr Lim wrote of the Applicant’s widespread pain and fatigue. Since March 2013 he has prescribed Plaquenil 200 mg daily as well as Panadol Osteo which the Applicant has taken for years for the condition; she said she takes six Panadol Osteo daily. She said the doctor had wanted to prescribe Cortisone but she is unable to tolerate it because of her stomach problems (discussed below). Overall symptoms are well controlled with medications as prescribed by Dr Lim.
That the Applicant suffers joint and muscle pain was confirmed by both Dr Lim and her GP, Dr Al-Horani.
The Determination does not contain a table that deals specifically with pain. Subsection 6(9) of the Determination notes a number of matters for consideration when assessing pain and states relevantly that consideration must be given to whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised. As noted above, this is not in contention. The Determination requires where a single condition causes multiple impairments, each assessment must be assessed under the relevant table: s 10(3). Accordingly, I will proceed by considering the functional impact of this condition on the Applicant’s upper limbs, lower limbs and spine below.
Polymyalgia rheumatic – upper limbs
As early as June 2011 Dr Lim wrote of the pain and swelling in the Applicant’s left wrist in particular. She also had pain in the left elbow and right wrist and in her fingers.
In his report of 21 February 2014 Dr Lim wrote that as a result of her medication the Applicant has reduced arthralgia in her hands. He was unable to detect any synovitis or joint restriction in her hands.
The Applicant’s evidence was that although she has no restrictions to her range of movement, she has increased pain if she uses her hands too much, such as by doing too much cleaning. She said that her hands go numb daily when she sleeps. She feels when she holds a cup of coffee that she might drop it. She is able to undertake all her personal grooming tasks, including dressing herself, although she has difficulty with buttons. She said she cooks dinner for her family including the preparation of vegetables.
The relevant table is Table 2, in relation to upper limb function. Relevantly, it provides:
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
In my view the evidence does not support a finding of 5 impairment points. The appropriate rating is therefore 0.
Polymyalgia rheumatic – lower limbs
The Applicant gave evidence that she experiences pain in her ankles when walking or standing, although not when sitting, and numbness in her right leg. When the pain is too bad, she sits down. She said if the pain is bad she does not go out but she did not know how often that occurs. She said she is able to walk around the house and is able to manage the few stairs at her home if she goes slowly. She tries to limit the number of times she has to go up and down the stairs and leaves things downstairs for the family to take upstairs. She was unable to say what, if anything exacerbated the pain. She said she could not walk to the shops or train although she has not tried to. She can only walk for a total of about 15 minutes on flat ground. She was able to walk to the Tribunal from Town Hall station. She is usually able to walk around the shops.
Dr Lim wrote in June 2011 of her pain in both knees and ankles.
The relevant table is Table 3, in relation to lower limb function. Relevantly , it provides:
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
In my view the evidence does not support a finding of 5 impairment points. The appropriate rating is therefore 0.
Polymyalgia rheumatic – spine
The Applicant said she experiences back pain and numbness in her right leg. Sometimes when she walks her leg gets numb and heavy and she will have to sit down. The numbness occurs 3-4 times a week and may last from 10 minutes to half an hour.
She went to a chiropractor a couple of years ago and again last year. The chiropractor manipulated her back, neck and jaw.
She said she is unable to hold heavy items as this increases the pain in her back. She can manage reaching for items overhead so long as they are not very high up.
The Applicant said that her sleep is disturbed because of her neck and back pain. When her neck pain is bad she experiences headaches that can last for several hours.
Sometimes she is able to do all the cleaning and vacuuming around the home, but sometimes she requires her husband and daughters’ assistance, especially for heavier tasks. Chores are done in stages. She can pick up a light object from the floor if she has support to get up.
The Applicant was found to have only “mild restricted lumbar spinal movements” in Dr Lim’s report of 21 February 2014. Dr Brian Tran, chiropractor, provided a report dated 8 November 2013 in which he stated that with regards to the Applicant’s lower back, she can stand and sit for up to one hour and lift up to 5 kg. No restriction of movement was reported for the neck.
The relevant table is Table 4, in relation to spinal function. Relevantly, it provides:
Points
Descriptors
0
…
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).
Overall, the Applicant’s neck and back condition attracts an impairment rating of 5 points under Table 4 as her symptoms best fall within the descriptor for “mild functional impact”. The medical evidence supports the SSAT’s finding that the impairment only attracts an impairment rating of 5 points under Table 4.
Depression and anxiety
The Applicant said she first saw Mirna Moussa, psychologist, in January or February 2013, on referral from her GP. She had not wanted to go when he first referred her a couple of years ago because she did not think she needed assistance. She changed her mind when her condition worsened and she became more anxious and confused and had no ability to concentrate at all. She was not communicating with her family and was not interested in anything at all. She has been seeing Ms Moussa monthly since October 2013.
The Respondent submitted that the Applicant’s depression and anxiety condition was not fully treated, diagnosed and stabilised during the relevant period. It noted the diagnosis of the Applicant’s psychological condition by Ms Moussa, in her report dated 22 May 2013. Ms Moussa is not a clinical psychologist. Any mental health condition which is to be assigned an impairment rating under Table 5 of the Tables must be diagnosed “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)”: Introduction to Table 5.
However, the fact that there is no contemporaneous evidence from a psychiatrist or clinical psychologist at the time of lodgement of the claim does not prevent assessment of the condition, particularly when the diagnosis has been confirmed by a psychiatrist subsequently: Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558.
In his treating doctor’s report her GP recorded the clinical features of depression and anxiety as low mood, lack of concentration and drowsiness. Ms Moussa noted the Applicant’s poor sleep, decreased appetite, lack of motivation, shortness of breath, inability to concentrate or focus, forgetfulness, constant worry and stress, headaches and emotional withdrawal from friends and family.
The Applicant said she likes listening to music, but for the last couple of years has preferred “sad” music because she finds it comforting. She finds it hard to wake up in the morning to take her daughter to school, but Dr Malik thought this may be because of the time she administers her medication. Her daughters help with the shopping and paying the bills, although she told the SSAT that she does her own banking. She can arrange and attend her frequent medical appointments.
The Applicant said that she socialises mainly with family. Her sister-in-law visits almost daily and sometimes they will go for a coffee. Her nieces and nephews visit almost daily. She talks with her mother overseas on the phone daily. She is very close to her eldest daughter. She said she has few friends.
She said she has no interest in going out and even when the family goes out she may prefer to stay at home. She does not like unfamiliar places or people.
She enjoys listening to music which she can do for about 30 minutes before her train of thought is interrupted because of her distress about her many medical conditions. She is irritable because her sleep is poor. She has poor concentration.
The Applicant said she had first been referred to an (unnamed) psychiatrist about four years ago but there was no objective evidence to that effect. Further reports as to the Applicant’s mental health were provided by her treating psychiatrist, Dr Deepa Malik, whom she first consulted since about November 2013. Dr Malik’s “impression” of the Applicant’s mental health condition in his report dated 21 November 2013 were of “chronic depression secondary to multiple medical problems”. In his report of 19 December 2013 he diagnosed “obsessive-compulsive disorder with depressive symptoms”. In his report of 10 April 2014 he diagnosed “schizo-affective disorder”. Notwithstanding that the Applicant had only been a patient of Dr Malik since November 2013, he reported in October 2014 that the Applicant’s symptoms had been “severe” for four years. It was unclear on what basis he had come to that view.
The Respondent submitted that the shift in the diagnosis of the Applicant’s mental health condition subsequent to the relevant period suggests that the Applicant’s condition had not been diagnosed appropriately. The apparent on-going evolution of Dr Malik’s views does not indicate a firm diagnosis.
While the Applicant may have suffered from some unspecified psychological condition well prior to consulting Dr Malik, I agree with the Respondent’s submission that the Applicant’s condition had not, at the relevant date, stabilised. Anecdotally her condition has worsened, although on 8 May 2014, Dr Malik reported that her mood and psychotic symptoms appear to be in partial remission.
The Applicant’s GP wrote in his treating doctor’s report in March 2013 that the Applicant had had counselling and had been prescribed Lovan. Dr Malik has now prescribed Seroquel which has recently been increased from 300 to 400 mg. Various treatments had previously been trialled.
I therefore find that the Applicant’s mental health condition was has not been fully diagnosed, treated and stabilised. The condition is therefore not permanent, as defined. As such it does not attract an impairment rating.
Gastroenterological condition
The treating doctor’s report records that the Applicant suffers from chronic portal hypertension secondary to biliary atresia, a congenital condition. She is under the care of Dr Michael Bourke, gastroenterologist.
The treating doctor’s report states that the Applicant has pain on a daily basis and experiences frequent attacks of severe pain. The Applicant said that the daily attacks of pain lasted from 15 minutes to 2 hours. There is no predictability about the pain. She largely manages it by lying down until the pain passes. Once she had an attack at the shops and had to sit down for an hour.
She is prescribed analgesics, Nexium and Propranolol. The Applicant said she has taken three tablets a day for 17 years. The medication, she said is for stomach pain and reflux. She also takes Buscopan for stomach pain. The medication she takes for her other conditions has to be carefully prescribed because of the effect upon her stomach.
The Applicant said that she had had a splenectomy as a child. She had gallstones at 21. When she had her gallbladder operation she was a month in hospital. Her bile duct has been blocked and she had 11 days in hospital. All her children were born by caesarian section. Her most recent hospitalisation was in February this year.
The Applicant’s conditions are long standing and the Applicant has been under the management of Professor Bourke, gastroenterologist. In a report dated 11 March 2013 Professor Bourke notes the Applicant had been diagnosed with the medical conditions of portal hypertension with portal thrombosis and recurrent biliary sepsis/biliary stricturing disease requiring repeat endo-biliary intervention. He records the history of previous splenectomy and cholecystectomy. There have been extensive investigations.
Professor Bourke, in his report of 15 August 2012, also noted the Applicant’s right upper quadrant pain. He referred to her gastro-oesophageal reflux disease which causes intermittent dyspepsia. The Applicant said she has difficulty swallowing and needs water to help her swallow.
Her cardiologist, Dr Vijay Solanki, wrote in his report of 21 May 2013 that the Applicant’s gastroenterological condition causes fatigue and limited her exercise capacity.
The Applicant has had a number of stents inserted and removed but there is no evidence of how these endoscopy procedures have impacted her functional capacity.
On 21 March 2013, a job capacity assessment report was completed in respect of the Applicant. That report assigned the Applicant’s gastroenterological condition an impairment rating of 10 points under Table 10.
The SSAT found that the Applicant was generally not interrupted at home or during domestic chores by her symptoms. The Applicant reported that she did not wear bladder protection daily, has no bowel problems or accidents, she is largely symptom free if she maintains a low fat diet and she takes antibiotics to control sepsis. The SSAT assigned no impairment points under Table 10 for the Applicant’s condition.
The Respondent submitted that there is little to no corroborating medical evidence before the Tribunal that the Applicant’s condition impacts on work related or daily activities or personal care needs to the extent that an impairment rating should be assigned and noted that pursuant to subsection 6(8) of the Determination “[t]he presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”.
The Applicant has undergone extensive investigations and there is no further treatment recommended apart from maintenance therapy. The Applicant provided photographs of her extensive abdominal scars from surgical procedures. She told the SSAT though that the scars are not problematic. Overall, the Applicant’s evidence both before me and the SSAT was that she is not generally interrupted at home or during her domestic chores by symptoms or personal care needs associated with her gastrointestinal system. She does not wear bladder protection. Her urine is dark. She has no problems with the bowel and has had no accidents. If she follows a low fat diet, she is largely symptom free. However she is frequently required to take antibiotics to control recurrent sepsis.
A rating under Table 10 is appropriate for a condition that results in impairment to digestive functions. That table provides, relevantly:
Points
Descriptors
0
There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) The person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.
5
There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least one of the following applies:
(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b) the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
10
There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a) the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b) the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;
(c) the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
Overall, the symptoms and functional impact described by the Applicant in my view attract an impairment rating of 5 points with reference to Table 10. The Applicant’s gastrointestinal condition causes only mild functional impact on any work related or daily activity due to any personal care needs associated with the condition.
Other conditions
The Applicant said she also suffers impairment arising from numerous other conditions including goitre, idiopathic left vocal cord palsy, hyperthyroidism, headaches and migraines, breast tenderness, and cardiac symptoms.
The treating doctor’s report mentions two other medical conditions that cause minimal or limited impact on the Applicant’s ability to function, namely chronic reflux disease and thyroid nodules. Chronic reflux disease has been considered above.
There is no evidence that any of these other conditions result in any impairment or that the conditions are fully diagnosed, fully treated and fully stabilised. For example, Dr Solanki does not diagnose any cardiac condition, although the Applicant is monitored regularly. She told the SSAT she has a family history of coronary artery disease and is concerned because sometimes (albeit rarely) she becomes breathless.
Similarly, her thyroid and goitre conditions do not appear to need treatment although the report of Dr Palme dated 15 December 2012 suggests that she may benefit from further tests. The Applicant said she has four nodules and has an annual biopsy to ensure they are not cancerous. She feels that she “chokes” in her sleep.
The Applicant told the SSAT she had regular breast screening because of a positive family history of cancer and this causes anxiety.
The Applicant said because of her anxiety she has jaw locking on awakening (tempero mandibular joint dysfunction) (TMJ) and experiences headaches which cease with simple analgesics. Although she wears a mouth guard symptoms persist. She cannot take anti-inflammatories because they affect her stomach.
The Applicant said she has experienced daily headaches for a couple of years. They may be related to her TMJ. When she has a headache she is unable to do anything. She has had only a couple of migraines, with vomiting and auras.
The Applicant’s told the SSAT that her other conditions were “irritating” but did not inhibit function. These conditions do not attract any impairment rating.
In summary, the Applicant’s total impairment rating is less than 20 points. The Applicant therefore does not meet s 94(1)(b). Her application therefore cannot succeed.
DECISION
The decision under review is affirmed.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ....................[sgd]..............................................
Associate
Dated 1 December 2014
Date of hearing 9 October 2014 Applicant In person Solicitors for the Respondent Ms G Thangasamy, Department of Human Services
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