Manolas and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1077

Administrative

Appeals

Tribunal

 

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1077

ADMINISTRATIVE APPEALS TRIBUNAL  )    Nº W2005/397

)  

GENERAL ADMINISTRATIVE DIVISION     )

Re:         ALICIA EDITH MANOLAS

Applicant

And:SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent     

DECISION

Tribunal:      Mr G.D. Friedman, Senior Member

Date:             13 December 2006

Place:           Perth
Decision:     The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY - disability support pension - leg, back and joint pain - psychological state - impairment tables - whether conditions diagnosed, investigated, treated and stabilised

Social Security Act 1991 s 94(1)(b) and (c), Schedule 1B

Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

DECISION AND REASONS FOR DECISION

13 December 2006  G.D. Friedman, Senior Member

1.        Alicia Manolas lodged a claim for disability support pension (DSP) on 23 June 2005 on the basis of severe pain in her knees, legs, lower back and joints.  Centrelink has determined that she is not eligible because the condition, or any psychological condition, could not be assigned the required impairment points.

ISSUE

2.        The issue before the Tribunal is whether the pain experienced by Ms Manolas, and any resultant psychological condition, were fully documented and diagnosed conditions that have been investigated, treated and stabilised at the time of the claim or within 13 weeks of the claim (the relevant date).

EVIDENCE

3.        Ms Manolas gave evidence that she was born in Perth on 1 November 1982 and attended university in Scotland, where she studied bagpipes and worked as an instructor of bagpipes.  She said that in 2003 she developed sudden pain in her right leg and knee associated with lower back pain, and over the next 12 to 18 months the pain spread to her arms and most of her body.  Ms Manolas told the Tribunal that she was prescribed a variety of analgesics, but the pain remained undiagnosed.

4.        Ms Manolas stated that her symptoms persisted on her return to Australia.  She said that a lack of proper diagnosis and dealings with Centrelink, together with difficulties in controlling the pain, have led to depression and anxiety, poor concentration and sleeping problems.            

5.        With regard to the nature of the pain condition, Ms Manolas stated that fibromyalgia is the most likely diagnosis.  She said that the condition was fully treated when she was in the United Kingdom and that Centrelink has unjustly withheld DSP.  Ms Manolas was critical of Centrelink, and she said that she has already attended numerous medical practitioners, including psychiatrists, and that further attendance would not be helpful or necessary.  She told the Tribunal that she is on a high level of medication, and that she meets the criteria for DSP.

6.        In a report dated 10 January 2005 (T33) Dr D. Batalin, general practitioner, described Ms Manolas’ condition as lower back and knee pain, and said that the impact on of the condition on her was expected to persist for Less than 3 months, and that the effect of the condition on her was Uncertain.    

7.         In a report dated 16 June 2005 (T7) Dr M. Lyon, general practitioner, stated:

This lady complains of back pain and loss of mobility in her leg which she attributes to pain in her knee.  No diagnosis has ever been made, despite various extensive investigations in Edinburgh, Scotland and here in Western Australia.  It is possible that no definitive specific diagnosis attributing to her symptoms will ever be made.  Retraining might become appropriate.     

8.        On 24 June 2005 Dr Lyon provided a further report (T11) in which he confirmed a diagnosis of pain and stated that the impact of the condition on Ms Manolas’ ability to function was expected to last More than 24 months.  He said that within the next two years the effect of the condition on her ability to function was expected to be Uncertain.

9.      In a report dated 14 October 2005 (Exhibit R1) Dr J. Roddy, specialist physician in rheumatology, noted that neurological examination revealed an unusual pattern of muscle weakness.  She concluded:

The working diagnosis is that of fibromyalgia and she certainly meets the criteria for this diagnosis.

Dr Roddy recommended referral to a pain management physician for assistance with medication, and encouraged Ms Manolas to undertake physical activity as much as possible.

ARE THE CONDITIONS FULLY DOCUMENTED AND DIAGNOSED AND HAVE THEY BEEN INVESTIGATED, TREATED AND STABILISED?

10. Section 94 of the Social Security Act 1991 (the Act) provides:

94(1)       A person is qualified for disability support pension if:

…

(b)the person's impairment is of 20 points or more under the Impairment Tables; and

…

11.      Schedule 1B of the Act provides that, in relation to the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables): 

…

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……

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.  

12.      In re Tlonan and Secretary Department of Social Security (1997) 24 AAR 467 the Tribunal considered the meaning of treated as used in the introductory words to the Tables, and said at page 476:

What is meant by the requirement that the condition be treated?  The word “treatment” means, among other things, “...the application of medical care or attention to a patient, ailment etc ..." (The New Shorter Oxford English Dictionary, 1993) …

These meanings must be considered in the light of the context in which the word “treated” is used in Schedule 1B of the Act.  Taken in that context, it seems to me that it should not be given a restrictive meaning.  That is to say, it should not be limited to medical treatment in the sense of surgery or the prescription of medication.  In its context, the word “treatment” refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling.  What amounts to the treatment in any particular case will depend on the individual circumstances of that case.

13.      The Tribunal takes into account the medical evidence and the evidence from Ms Manolas.  Although Dr Roddy made a working diagnosis of fibromyalgia, she did not indicate whether all investigations were undertaken or whether the condition was likely to continue for the next two years.

14. The medical reports show that as at the relevant date, or 13 weeks after that date, Ms Manolas did not receive optimal medical treatment of her pain and her psychological state because an adequate diagnosis could not be made, and appropriate treatment could not be undertaken at that stage. Therefore the Tribunal concludes that the conditions were not fully documented, diagnosed conditions which have been investigated, treated and stabilised, and they could not be assigned an impairment rating under the Impairment Tables, so Ms Manolas does not satisfy the requirements of s 94(1)(b) of the Act. Consequently she cannot satisfy s 94(1) of the Act, and the Tribunal does not need to consider whether she had a continuing inability to work under s 94(1)(c) of the Act.

DECISION

15.      The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of: Mr G.D. Friedman, Senior Member

Signed: …………(Sgd.) Ms R Riberi……..          

Date of hearing:  8 December 2006

Date of decision:  13 December 2006
Advocate for the applicant:       Self-represented
Advocate for the respondent:   Mr A. Holt, Centrelink