Luja Budisa and Secretary, Department of Social Services
[2014] AATA 79
•20 February 2014
[2014] AATA 79
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1745
Re
Luja Budisa
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 20 February 2014 Place Sydney The Tribunal affirms the decision under review
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – multiple impairments – whether conditions fully diagnosed treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Mrs Luja Budisa suffers from osteoarthritis, anxiety and depression, Crohn’s disease and dyslipidaemia. In July 2012, she applied for a Disability Support Pension (DSP). She seeks review of a decision by the Social Security Appeals Tribunal (SSAT) that she did not qualify for the DSP.
To qualify for DSP during the relevant period, Mrs Budisa must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, she must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
Mrs Budisa applied for DSP on 17 July 2012. For her application to succeed, she had to qualify for DSP on 17 July 2012 or within 13 weeks of this date, that is by 16 October 2012: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will refer to this period as the relevant period.
I am satisfied that each of Mrs Budisa’s conditions is an impairment for the purposes of DSP. The first question therefore is whether they rated 20 or more points on the Impairment Tables during the relevant period.
For the following reasons, I am not satisfied that Mrs Budisa qualified for the DSP during the relevant period.
THE IMPAIRMENT TABLES
The Impairment Tables are used to assess the impact of impairment on a person’s functional capacity. For applications for DSP made after 1 January 2012, the Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Clause 6 of the Determination sets out how the Tables are to be applied.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than 2 years.
A condition is permanent for the purposes of the Impairment Tables if it has been fully diagnosed by an appropriately qualified medical practitioner; and it has been fully treated and fully stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years: cl 6(4).
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is fully stabilised if:
(a)either 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 2 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 2 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.
Reasonable treatment means 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.
EVIDENCE ABOUT MS BUDISA’S MEDICAL CONDITIONS
Mrs Budisa has provided the following reports about her medical conditions:
(a)Dr Milorad Sokolovic, consultant and forensic psychiatrist, reports dated 25 April 1995, 19 August 2012, 12 August 2013;
(b)Dr Paniani Sui Patu, general practitioner, reports dated 17 July 2012, 14 August 2012, 22 October 2012, 13 August 2013, 31 December 2013;
(c)Dr Mona Morabani, rheumatologist, report dated 23 July 2013;
(d)Dr Gieger, surgeon, report dated 18 February 1993;
(e)Dr Ajith De Silva, radiologist, reports dated 3 September 2012, 17 September 2012;
(f)Dr Thien Huynh, two reports dated 16 January 2013; and
(g)Dr Tariq Khalil, report dated 16 January 2013.
Centrelink has also provided a Job Capacity Assessor report dated 27 July 2012.
MRS BUDISA’S MEDICAL CONDITIONS
Anxiety and depression – was it fully diagnosed, treated and stabilised?
In 1992, Mrs Budisa fled the outbreak of civil war in Bosnia to Germany as a refugee. In 1994 she migrated to Australia. In a letter of support to the Department of Housing dated 25 April 1995, Dr Milorad Sokolovic, consultant and forensic psychiatrist, wrote:
“[r]egarding [Mrs Budisa’s] mental history, she grew up under extreme psycho-social stressors with an alcoholic and mentally ill mother… [o]n her first presentation she was profoundly dysphoric and tense with prevailing pessimism and depressive overtones… [i]t was obvious that [Mrs Budisa] is suffering from reactive anxiety and depression, both caused by her chronic somatic illness and psycho-socially stressful circumstances…”
Dr Sokolovic further noted Mrs Budisa’s dependence on Diazepines due to her anxiety and a “prolonged need for… medication and supportive psychotherapy.” He wrote that he had reviewed her medication to reduce her dose of Diazepam and prescribed Clomipramine.
In his report dated 19 August 2012, Dr Sokolovic noted Mrs Budisa and her husband had received regular home visits and she was treated with antidepressant and anxiolytic medication according to her fluctuating needs. He referred to “Supportive and Cognitive Behavioural Therapy” however it is not clear whether this was past therapy or proposed therapy. He advised her to make psychiatric appointments according to her needs. A diagnosis of anxiety and depression by Dr Sokolovic in August 2012 may be inferred from the fact that he prescribed the anti-depressant Zoloft.
There is limited information in Dr Sokolovic’s reports but I accept Mrs Budisa’s oral evidence that she has seen him approximately every six weeks from 1995, except for a period of about two years approximately two years ago when he moved surgery and she did not see him. I am satisfied that she has taken medication for her anxiety and depression since 1995.
In her report dated 22 October 2012 Dr Patu noted Mrs Budisa’s history of depression and Post Traumatic Stress Disorder (PTSD) diagnosed in 2000 and 1990 respectively. It is not clear who originally made these diagnoses. In his report dated 12 August 2013, Dr Sokolovic first noted Mrs Budisa suffered from PTSD as a result of the traumas she experienced in the civil war which left her vulnerable to stressors. The evidence about the diagnosis of PTSD is not clear but nothing turns on this because it is clear that Mrs Budisa suffers a long standing psychological impairment of anxiety and depression.
Mrs Budisa’s condition appears to have fluctuated over the years and has been treated with different medications at different times. There is no suggestion in the reports that her condition will improve significantly. In his report dated 12 August 2013, Dr Sokolovic noted Mrs Budisa still suffers from chronic anxiety and depression and that she was “unfit for gainful employment certainly for some years to come”.
Given Mrs Budisa’s history and her long involvement with Dr Sokolovic going back to 1995, I am satisfied that this condition can be considered fully diagnosed, treated and stabilised during the relevant period.
Functional impact of psychiatric impairment
Mrs Budisa gave evidence that her anxiety and depression causes her to feel “nervous”, “agitated” and “everything bothers [her]”. She said when she is able to she does the housework, cooking and laundry, and sometimes her daughter visits to help her. Mrs Budisa said she can get to the shops by herself and usually goes shopping once a week; she regularly goes to church with her neighbour who drives her there in her car. Mrs Budisa gave evidence that she can only read for a short period of time because she cannot concentrate. She lives alone and sometimes her daughters visit her and sometimes they take her to their homes to visit. She has one close neighbour and they are often together and go to each other’s homes. Mrs Budisa came to the hearing by herself on the train however she gave evidence that she had travelled the journey from her home to the Tribunal three times with her daughter prior to making the journey herself.
I have no reason to doubt Mrs Budisa’s evidence about the effect of her anxiety and depression. I am satisfied that her condition has a moderate functional impact and rates 10 points on the impairment table, Table 5 – Mental Health Function, taking into consideration the criteria for that rating.
Osteoarthritis
On 3 September 2012 Dr De Silva, radiologist, reported “small osteophytes arising from the shoulder joint… minor osteoarthritic changes at the AC joint… rotator cuff degeneration… calcification at the insertion of the supraspinatus tendon”. In his report dated 17 September 2012 Dr De Silva noted “minor osteoarthritic changes at the hip joint on the right”.
On 16 January 2013 Mrs Budisa had a bone scan. In his report dated 16 January 2013, Dr Thien Huynh wrote the “overall scan pattern is suggestive of low grade synovitis/arthopathy involving the hips (most marked in the right hip superiorly), and likely also the right TMT region.” An x-ray of both Mrs Budisa’s feet taken on 16 January 2013 was recorded by Dr Tariq Khalil to reveal “mild degenerative osteoarthritis within the feet.”
On 17 July 2012 and 14 August 2012, Dr Patu noted Mrs Budisa’s continued treatment of massage, exercise and analgesia for her condition. She also noted the condition caused Mrs Budisa difficulty with prolonged sitting and walking. In her report dated 22 October 2012, Dr Patu noted “[s]evere osteoarthritis – shoulders – back – hips and upper limbs”. This is at odds with Dr De Silva’s reports and the x-ray by Dr Khalil but, in the end, nothing turns on this.
In July 2013, Mrs Budisa saw Dr Mona Marabani, rheumatologist for the first time. In her report dated 23 July 2013, Dr Marabani noted Mrs Budisa was symptomatic with “left trochanteric bursita and possible underlying hip osteoarthritis… and osteoarthritis of the left first CMC joint”. Dr Marabani wrote she had commenced treatment in the form of an injection and changes to her anti-inflammatory therapy in the hope of controlling her symptoms. Mrs Budisa gave evidence that she has continued to receive injections every three to four months when she can get an appointment with Dr Marabani. She said the treatment helps temporarily.
It is clear from the combined reports of Drs De Silva, Huynh, Khalil, Patu and Marabani that Mrs Budisa suffers from osteoarthritis in her shoulders, back, hips, upper limbs and feet. When Mrs Budisa made her application for DSP in July 2012 it was reported by Dr Patu that she was treating the condition with medication as needed and that analgesics and massage were planned future treatment. In July 2013 however Mrs Budisa received treatment from Dr Marabani which was intended to be “more effective in controlling her symptoms”. I am unable to accept therefore that at the time of making the application in July 2012 Mrs Budisa’s condition was fully treated and stabilised as she had available to her a treatment option subsequently administered by Dr Marabani after the relevant period.
Crohn’s Disease
On 18 February 1993, Dr Geiger diagnosed “Crohn’s disease with fistula formation”. Mrs Budisa underwent surgery on 25 January 1993 for these conditions. Dr Geiger did not advise of any specific therapeutic treatment upon discharge but recommended frequent follow-up examinations.
In her report dated 17 July 2012 and 14 August 2012, Dr Patu recorded that Mrs Budisa’s Crohn’s disease was “generally well managed and causes minimal impact” on her ability to function. Mrs Budisa told the Tribunal that she tries to take care of herself through her diet and doesn’t take any medication for the condition; she said that it doesn’t affect her often but can affect her a lot if she is under stress. When that happens she sometimes vomits and she can experience stomach pain, bloating and diarrhoea and can feel tired.
The respondent accepts and I am satisfied, that the condition was fully diagnosed, treated and stabilised during the relevant period. It is therefore a question of rating the condition under the relevant impairment table, being Table 10 – Digestive and Reproductive Function. I find that the impairment rates nil on Table 10, having no functional impact as there is no evidence that Mrs Budisa’s daily activities are usually interrupted by her symptoms or personal care needs.
Dyslipidaemia
In her reports dated 17 July 2012, 14 August 2012 and 13 August 2013 Dr Patu noted Mrs Budisa’s dyslipidaemia. It appears the condition was diagnosed from blood tests performed on 7 July 2012. Mrs Budisa gave evidence that she has been taking medication for the condition for approximately one year and had no form of treatment prior to that.
On the basis that Mrs Budisa didn’t start taking medication for the condition until July 2012, I find it was not fully treated and stabilised during the relevant period and therefore cannot be given a rating on the Impairment Tables.
Continuing inability to work
To qualify for a DSP Mrs Budisa will also need to satisfy the requirement that she has a continuing inability to work. To do this she must have actively participated in a program of support for 18 months in the three years prior to her application for DSP: s 94(2)(aa) of the Act, unless she has a severe impairment within the meaning of s 94(3B). Under Part 2 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011, a person has actively participated in a program of support if, in addition to the requirements of s 94(2)(aa):
-the person participated in a program of support for at least 18 months (cl 5(2)); or
-the person completed a program of support, the duration of which was less than 18 months (cl 5(3)); or
-the program was terminated before the date of claim because the person was unable to improve her or his capacity for employment through continued participation in the program due to her or his impairment (cl 5(4)); or
-at the date of claim, the person is participating in a program of support and is prevented from improving her or his capacity for employment through continued participation in the program due to her or his impairment (cl 5(5)).
Because none of her impairments rate 20 or more points on a single impairment table Mrs Budisa does not have a severe impairment for the purpose of a continuing inability to work, meaning that she must have completed 18 months of a program of support prior to her application. The evidence before me indicates that Mrs Budisa has actively participated in a program of support however she commenced the program after the relevant period and she has not completed 18 months of the program. As the program of support was started after Mrs Budisa’s claim for DSP, it is not necessary to consider whether any of the clauses 5(2) to 5(5) above apply.
CONCLUSION
Mrs Budisa was granted a temporary medical incapacity exemption in July 2012 and commenced a program of support with Jobfind in Campsie in October 2012. Other than four days’ medical exemption in October 2012, she has attended monthly since she commenced the program. It appears she will have completed 18 months active participation within the next few months. Depending on the medical evidence about the progress of each of her conditions in the meantime, it may be in Mrs Budisa’s best interests to test her eligibility for DSP when she has met the program of support requirement.
I affirm the decision under review.
36. I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 20 February 2014
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