MAUREEN KASSULKE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 623

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 623

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0920

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAUREEN KASSULKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date20 August 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd].............................

Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether impairment can be given a rating of at least 20 points – If so, whether there was a continuing inability to work – Applicant does suffer impairment – Chronic pain syndrome, menstrual disorder and weakness in right arm are not fully investigated and treated and therefore cannot be given a rating – Without attributing any rating, not necessary to consider applicant’s continuing inability to work – Decision under review affirmed. 

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) s 13, Sch 2

REASONS FOR DECISION

20 August 2010 Dr M Denovan, Member    

INTRODUCTION

1.      Ms Kassulke, the applicant, suffers from pelvic pain, lower back pain, and menstrual difficulties.  She also had a tumour removed from her right breast.  She contacted Centrelink on 22 May 2009, and on 5 June 2009 lodged a claim for disability support pension (“DSP”).

2.      On 2 July 2009 Centrelink made a decision to reject her claim.

3.      On 8 September 2009 an authorised review officer (“ARO”) affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 4 February 2010.

4.      The application for review of the decision by the Administrative Appeals Tribunal (“AAT”) was lodged on 5 March 2010.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

5. Under Schedule 2, item 4(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) an applicant must qualify for DSP on the day on which she/he made the claim, or within 13 weeks. In this case the claim period is from 22 May 2009 to 21 August 2009[1].

[1] In accordance with section 13(1) of the Administration Act, the claim is taken to have been lodged on 22 May 2009

6. The criteria for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). To qualify:

·the applicant must have a physical, intellectual or psychiatric impairment; and,

·the applicant’s impairment must have been of 20 points or more under the Impairment Tables; and,

·the applicant must have a continuing inability to work.

7. The Introduction to the Impairment Tables contained in the Act states that before an impairment rating can be assigned it must be a fully documented diagnosed condition which has been investigated, treated and stabilised.

8. It is not in dispute that during the claim period, Ms Kassulke suffered from a physical, intellectual or psychiatric impairment. The issues that I must decide are whether Ms Kassulke had an impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act and, if so, whether she had a continuing inability to work during the claim period.

Does Ms Kassulke have an impairment rating of at least 20 points?

9.      At the time when Ms Kassulke claimed DSP, her general practitioner was Dr Ackermann.  He has provided two medical reports, dated 10 June 2009 and 8 September 2009.  He noted in the first of those reports that Ms Kassulke has low back pains, menstrual disorders, wisdom teeth impaction and gallstones.  Dr Ackermann stated that the condition diagnosed as ‘low back pains’, was associated with a history of low back and hip pains.

10.      In his second report, Dr Ackermann provided diagnoses of chronic pain syndrome and anxiety disorder, premenstrual dysphasia disorder.  Dr Ackermann stated the current symptoms of chronic pain syndrome included lower back and pelvic pain.

11.     Ms Kassulke has subsequently lost confidence in Dr Ackermann, and he is no longer her treating doctor.  At the hearing she told me that she disagrees with the diagnosis of anxiety disorder.  She does not believe that she has any psychiatric impairment and does not wish to claim DSP for anxiety.

12.     Ms Kassulke said her conditions of impacted wisdom teeth and gallstones do not cause significant functional problems.  She does not want these conditions to be included in her claim for DSP.

13.     Ms Kassulke provided details of an additional condition, right breast tumour, when she was assessed by Ms K Eady, Job Capacity Assessor (“JCA”), on 10 June 2009.  Medical evidence confirming the excision and diagnosis of a right breast tumour is included in the T Documents.

14.     Having considered all of the above, I find that Ms Kassulke has impairment due to chronic pain syndrome (also referred to as low back and hip pain), menstrual disorder (including premenstrual dysphasia disorder) and breast tumour during the claim period.

Chronic pain syndrome

15.     Ms Kassulke told me that she suffers from severe pain in her lower back, left pelvis and tail bone.  It is constant pain and has been present for many years.  She takes panadeine forte when necessary.  She has tried therapeutic massage, without relief.  Ms Kassulke regards her lower back pains and her hip pains as separate problems.  All of the medical evidence before me indicates that these problems are interconnected and for that reason I have dealt with the hip and back pain together.

16.     Ms Forsyth submitted that this condition was not diagnosed and treated and therefore could not be allocated a rating.  Reference was made to the JCA report prepared by Ms K Eady, a registered nurse[2], on 10 June 2009.

[2] Exhibit 1, T6/37-44

17.     In his first medical report, Dr Ackermann provided a diagnosis of “low back pains”, and indicated that the history was of “low back and hip pains”.  Dr Ackermann stated that this diagnosis was presumptive, and that the condition needs full evaluation.

18.     Dr Ackermann’s clinical notes show that on 14 July 2009 he asked Ms Kassulke to complete a pain survey.  On 21 July 2009 Dr Ackermann noted that the results of the pain survey are “indicative of abnormal illness behaviour and symptom exaggeration”.  Dr Ackermann advised Ms Kassulke that most of her pain was neuropathic.

19.     Dr Ackermann revised his diagnosis of ‘low back pains’ presumably after reviewing Ms Kassulke’s pain survey.  In his second report dated 8 September 2009 Dr Ackermann refers to the symptoms of persistent pain/dysfunction due to lower back/pelvic pain (congenital malformation) under the diagnosis ‘chronic pain syndrome’.  He states that the diagnosis of this condition is confirmed, and notes in the history that the “chronic pain (L) pelvic rim [was] not previously fully investigated”. In regards to future treatment, Dr Ackermann states that the condition will require further investigation and management.

20.     Ms Eady concluded in the JCA report that "the condition has not been diagnosed or treated optimally”.  In her report she notes Ms Kassulke has not been referred to either an orthopaedic surgeon or a pain specialist. 

21.     The legislation anticipates a person will pursue reasonable treatment, not optimal treatment.  That Ms Kassulke had not consulted an orthopaedic surgeon during or prior to the claim period is of no relevance.  There was no suggestion that she should in the medical evidence before Ms Eady.  The investigation and treatment identified as necessary by Dr Ackermann, in his second report, relates to her chronic pain syndrome.  Dr Ackermann’s clinical notes of April 2010 make it clear that he did not consider that an orthopaedic specialist opinion was required.  I note Ms Kassulke was referred to the Royal Brisbane Hospital pain clinic by Dr A Hughes, Senior Medical Officer, Warwick Hospital.[3]

[3] Exhibit 3, letter of Dr Hughes dated 1 June 2010

22.     On the basis of the reports and clinical notes of Dr Ackermann, I find that Ms Kassulke’s pain in her left hip and lower back, is fully documented and diagnosed  as ‘chronic pain syndrome’.  Because the condition requires further investigation, it can not be given a rating.

Menstrual disorder (including premenstrual dysphasia disorder)

23.     Ms Kassulke told me that every month when she has her period she is severely incapacitated by pain, and experiences heavy bleeding.  Prior to the commencement of her period, she experiences an inability to cope both physically and emotionally.  At these times her pelvic pain is worsened.  Ms Kassulke has had these period problems for years.  She has been treated by a gynaecologist some years ago.  He treated her by performing a curette, which gave her no lasting benefit.  She does not want a hysterectomy, a treatment recommended; as she wants to keep open the possibility of having more children.  Ms Kassulke does not believe that she can tolerate any hormonal therapy such as the pill or a mirena[4] because of her previous breast cancer.

[4] Intrauterine contraceptive device that has slow release of hormones

24.     It is contended by the Secretary that this condition is not permanent.

25. The Introduction to the Impairment Tables included in the Act states that a condition must be permanent before it can be assigned a rating. It states:

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.

26.     On 15 April 2009 general practitioner, Dr H Shi recommended Ms Kassulke see a specialist for more treatment options[5].  In response to questions about why she has not followed Dr Shi’s advice, Ms Kassulke told me that there were no options that a gynaecologist could suggest that she had not considered and that a referral to a specialist is something doctors do when they know there is nothing that can be done to treat the patient.

[5] Exhibit 5

27.     I accept that to date, many of the treatment options suggested for this condition have been rejected by Ms Kassulke because she finds the risks unacceptable.  Medical treatments are continually improving and evolving.  Ms Kassulke has not been reviewed by a gynaecologist for many years.  Dr Shi has suggested referral to a gynaecologist for treatment.  This indicates that all available treatment options have not yet been considered.  I do not accept that Dr Shi would refer Ms Kassulke to a gynaecologist for the reasons stated by Ms Kassulke.

28.     I appreciate that commuting to either Toowoomba or Brisbane is very difficult for Ms Kassulke; however I note that she has done so on occasions during the past twelve months.  It is reasonable to expect a person to consult a specialist and give consideration to current treatment options, if advised to do so by a doctor.

29.     For these reasons I find that Ms Kassulke’s menstrual disorder has not been fully diagnosed treated and stabilised.  It cannot therefore  be given a rating.

Breast tumour

30.     In 1996 Ms Kassulke had a biphasic breast neoplasm (Phylloides tumour) removed from her right breast.  She requires no ongoing treatment for this condition.  She has since had bilateral implants.  She provided photographic evidence which she contends indicates that she has had a considerable amount of mass removed from her breast.  Ms Kassulke said that because of this excision, she has loss of power and weakness in her right arm.

31.     The Secretary accepts that this condition is fully diagnosed, treated and stabilised and can be considered permanent.  The secretary relies on the report of Ms Eady in which it was noted the condition has minimal impact on Ms Kassulke’s capacity to function.

32.     The condition has been assessed using Table 20. 

TABLE 20.MISCELLANEOUS ‑ MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system‑specific Tables, Table 20 can be used. Double‑counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating           Criteria

NILControlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end‑organ damage

Potentially life‑threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants ‑ well controlled (well functioning) with only mild systemic symptoms.

FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self‑care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work. Full‑time work would still be possible.

Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.

THIRTYVery severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self‑care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants ‑ poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension ‑ severe, uncontrolled

Inoperable, symptomatic and life‑threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTYMajor restrictions in many everyday activities. Capacity for self‑care is restricted, leading to dependence on others. No residual work capacity.

33.     Ms Kassulke accepts this to be the correct Table for assessment, and contends that she should be allocated 10 or 20 points.

34.     Without any medical evidence which supports Ms Kassulke’s claim that she has impairment in her right arm, I cannot give consideration to that impairment.  I conclude that a rating of nil from Table 20 is appropriate.

CONCLUSION

35.     Ms Kassulke has a total of nil from the Impairment Tables.  It is therefore unnecessary for me to consider whether she has a continuing inability to work.  She does not qualify for DSP during the claim period.

FINDINGS OF THE TRIBUNAL

36.The decision under review is affirmed.

I certify that preceding 36 paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ...................[Sgd]..........................................................

Kate Slack, Research Associate

Date/s of Hearing  6 July 2010
Date of Decision  20 August 2010
The Applicant was self represented
For the Respondent                  Ms Jasmine Forsyth, departmental advocate