Mrs Biljana POPOSKA and Secretary, Department of Social Services

[2016] AATA 347

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/0715
General Division  )

Re: Biljana Poposka
Applicant

And: Secretary, Department of Social Services
Respondent

CORRIGENDUM TO DECISION

TRIBUNAL:   Conrad Ermert

DATE:            30 May 2016

PLACE:         Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

Delete the words Mr Cameron Munro, a departmental lawyer, represented the Respondent at paragraph 5 of the decision and replace them with Mr Cameron Munro, a departmental advocate, represented the Respondent.
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Member

Poposka and Secretary, Department of Social Services (Social services second review) [2016] AATA 347 (27 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/0715
Re	Mrs Biljana POPOSKA
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Mr Conrad Ermert, Member
Date	27 May 2016
Place	Melbourne

The Tribunal affirms the reviewable decision.

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Mr Conrad Ermert, Member

SOCIAL SERVICES - Disability Support Pension - qualifying period - physical, intellectual or psychiatric impairment - Impairment Tables - whether 20 or more points - decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr Conrad Ermert, Member

introduction

1. On 16 January 2014 Mrs Biljana Poposka, the Applicant, lodged with Centrelink a claim for Disability Support Pension (DSP).  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.  In her claim Mrs Poposka listed as her disorders: Post-Traumatic Stress Disorder (PTSD), Depression, Lumbosacral disc disease, neck disc disease and joint pains.

2. On 3 March 2014 an officer of Centrelink rejected the claim as Mrs Poposka’s impairments did not attract a rating of 20 points or more and she did not have a continuing inability to work.  Mrs Poposka sought a review of that decision.  On 5 September 2014 an Authorised Review Officer (ARO) of Centrelink affirmed the decision. 

3. Mrs Poposka sought a review of the ARO decision.  On 6 January 2015 the Social Security Appeals Tribunal (SSAT) affirmed the decision to reject the claim. 

4. This matter is a review of the SSAT decision.

   hearing

5. At the hearing Mrs Poposka represented herself and gave evidence under oath with the assistance of an interpreter in the Macedonian language.  Mr Cameron Munro, a departmental lawyer, represented the Respondent. 

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  I also took in the following supplementary T-Documents:

   ·ST1 – Report of Dr Lionel Schachna dated 17 December 2014;

   ·ST2 – Report of Dr Joseph Philip dated 23 December 2014;

   ·ST3 – Centrelink Medical Certificate by Dr Philip dated 28 January 2015;

   ·ST4 – Centrelink Medical Certificate by Dr Philip dated 24 February 2015;

   ·ST5 – Report of Kaming Ng dated 18 March 2015;

   ·ST6 – Reports of Dr Philip dated 30 June 2015;

   ·ST7 – Centrelink Medical Certificate by Dr Philip dated 8 July 2015;

   ·ST8 – GP Mental Health Treatment Plan Review by Dr Philip dated 8 December 2015;

   ·ST9 – Job Capacity Assessment (JCA) report dated 16 September 2015;

   ·ST10 – Referral by Dr Philip dated 8 December 2015;

   ·ST11 – JCA report dated 7 January 2016; and

   ·ST12 – Search Results, Australian Health Practitioner Regulation Agency Register of Practitioners.

7. The documents previously provided to the Tribunal by Mrs Poposka are included in the Supplementary T-Documents.  At the hearing Mrs Poposka handed up the following documents which I took into evidence:

   ·Exhibit A1 – Letter by Mr Paul Steedman dated 3 May 2016; and

   ·Exhibit A2 – Report by Mr Paul Steedman dated 16 February 2016.

8. For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions dated 22 April 2016.

   legislation

9. The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the Act).

10. Section 94 of the Act  relevantly prescribes qualification for DSP:

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

    (a)the person has a physical, intellectual or psychiatric impairment; and

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

    (c)one of the following applies:

    …

    (i)the person has a continuing inability to work;

11. A person’s impairment is assessed by reference to the Social Security (Tables for the Assessment of Work-related Impairments for Disability Support Pension) Determination 2011 (the Impairment Tables).

    qualification period

12. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

13. In this case the qualification period runs from 16 January 2014, the day on which the claim was lodged, to 17 April 2014. 

    issues

14. The issues are whether, during the qualification period, Mrs Poposka:

    ·Had any physical, intellectual or psychiatric impairments; and, if so,

    ·Had impairments attracting a rating of 20 points or more under the Impairment Tables; and, if so,

    ·Had a continuing inability to work

    evidence

15. Mrs Poposka chose to lead no evidence but to respond to questions from Mr Munro and the Tribunal.

    Mental Health Condition

16. Mrs Poposka said that she had been seen by a psychiatrist about five years ago.  She assumed a report by the psychiatrist would have been sent to her GP.  She confirmed that she had seen a psychologist during 2011 and 2012 and had then stopped.  She said that she recommenced seeing a psychologist in May 2013.  Mrs Poposka said her condition had not improved.  Her treatment consists of medication and sessions with the psychologist.  She said her medication had been changed to Cymbalta in December 2014.  She has not been referred to another psychiatrist.

17. Responding to questions about the Job Capacity Assessment report dated 25 June 2014 Mr Poposka agreed she:

    ·is not always able to focus on complex tasks for more than an hour;

    ·manages to run a household with three children; and

    ·can shop for groceries with the help of the children.

    Mrs Poposka said she spends most of her time at home and cannot stay in a group of many people.  Asked whether her inability to be with groups of people was reported in any medical reports, Mrs Poposka said her psychologist knows about it.

    Back and Spinal Condition

18. Mrs Poposka agreed that her back condition had not been investigated by a specialist prior to an MRI scan in October 2014 followed by a review by Dr Schachna, a rheumatologist, in December 2014.  She explained that these investigations cost a lot of money that she does not have.  Mrs Poposka agreed with Dr Schachna’s report that she is able to do her house chores with only minimal limitation. 

19. In answer to questions about the effect of the condition on her daily living Mrs Poposka said:

    ·She is not able to look after the children but they are old enough to look after themselves;

    ·She is able to shower and dress herself with difficulty; and

    ·She is able to do the shopping and cooking with help from the children.

20. Responding to questions regarding the activity descriptors for 20 points in Impairment Table 4 – Spinal Function Mrs Poposka said she:

    ·could not do any overhead activities;

    ·could turn her head with difficulty;

    ·could bend forward with difficulty; and

    ·could remain seated for 10 minutes with difficulty.

    Mrs Poposka later clarified that she could sometimes reach overhead for items on shelves.

    Osteoarthritis Condition

21. Mrs Poposka agreed that she had not had any specialist investigations, X-rays or referrals in regard to her osteoarthritis conditions.  She said she suffers pain in her hands, knees, wrists and other joints. 

22. Mrs Poposka agreed with Dr Philip’s description that she cannot handle heavy objects. She told the Tribunal she:

    ·could pick up a two litre carton of milk but would experience pain, it was easier for her to pick up a one litre carton; 

    ·has difficulty handling coins because her hands shake; 

    ·does not have to deal with buttons on clothes however she does not have any sensitivity in her hands; 

    ·is able to write with a pencil; 

    ·sometimes needs help in tying shoelaces; and

    ·cannot unscrew the lid of a soft drink bottle.

23. Mrs Poposka said she had been put on a waiting list at the hospital to see a specialist about this condition.

24. In response to questions about her lower limb functions Mrs Poposka said she:

    ·is able to walk around a supermarket for a short time;

    ·can walk from a car park into a shopping centre;

    ·sometimes has a problem in standing up from a sitting position; and

    ·can use public transport when she has to.

    Other Conditions

25. In regard to her Post-concussion Syndrome Mrs Poposka did not know whether the specialist review in December 2014 was the first such review.

26. Mrs Poposka did not know if her reflux condition has an impact on her ability to work.  She said she takes tablets for this condition.

27. Mrs Poposka agreed that her chest pains were first investigated in 2014.  She said she takes some tablets for this condition.

28. In regard to her gynaecological problems Mrs Poposka said they started in 2013.  The problems had an impact on her ability to function and were under ongoing investigation.

    Program of Support

29. When asked about her program of support activities Mrs Poposka did not know how many days she had participated.  She said that she always attended when asked to do so.

    tribunal considerations

    Does Mrs Poposka have an Impairment? (section 94(1)(a) of the Act)

30. The Respondent concedes, correctly in my opinion, that during the qualifying period
    Mrs Poposka had impairments from the following conditions, which satisfy the requirements of section 94(1)(a) of the Act:

    ·PTSD and depression;

    ·Cervical and lumbar disc disease; and

    ·Bilateral osteoarthritis of the hands, knees and neck.

31. The concession is supported by the medical evidence, and I find accordingly.

    Do the Impairments attract an Impairment Rating of 20 points or more?
    (section 94(1(b))

32. I must now determine whether Mrs Poposka’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

33. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and if the impairment is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

34. Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:

    (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.

35. I will consider each of the conditions in turn.

    PTSD and Depression

36. The Introduction to Table 5 – Mental Health Function requires the diagnosis to be made by an appropriately qualified practitioner which includes a psychiatrist.  I note the reports of Dr Philip dated 14 January 2014 and 27 May 2014 which record that the diagnosis of PTSD and depression was supported by Dr Prasanna, a psychiatrist at Northern Hospital.  I have no report from Dr Prasanna however it would be a major professional transgression for Dr Philip to record Dr Prasanna’s support if that support had not in fact been given.  I have no evidence that Dr Philip’s reports may be incorrect on this point.  I accept Dr Philip’s statement that the diagnosis was supported by a psychiatrist and find that the condition was fully diagnosed at qualifying period. 

37. In his report dated 12 September 2012, Dr Philip listed the treatment as Psychologist, Medication.  The report from New View Psychology dated 10 May 2013 records that Mrs Poposka had attended a number of sessions with psychologists and ongoing sessions under a mental health plan had been arranged.  In his report dated 23 May 2013, Dr Philip records that Mrs Poposka’s anxiety symptoms were worsening.  In his report dated 14 January 2014 Dr Philip records as future/planned treatment Review with specialists Northern Hospital however it is not clear to which of the listed specialists he is referring.  In his report dated 27 May 2014 Dr Philip records future/planned treatment as continue medication / treatment. 

38. From the evidence I am satisfied that Mrs Poposka has undertaken the treatment as prescribed.  There is no medical evidence that further treatment can reliably be expected to result in a substantial improvement in functional capacity as required by section 6(7) of the Impairment Tables.  I am satisfied that Mrs Poposka’s condition of PTSD and depression is fully diagnosed, treated and stabilised in the terms of the Act.  As a result I am able to refer to the Impairment Tables to assess the functional impairment resulting from this condition.

39. In the Secretary’s Statement of Facts and Contentions the Respondent contends that, if the Tribunal finds the condition is fully diagnosed, treated and stabilised, the condition causes a mild impairment to functioning and attracts five points under Table 5.  In the JCA report dated 25 June 2014 the assessor recommends a rating of five points as there is a mild functional impact on activities involving the mental health function.  In the report the assessor usefully summarizes the opinions of Dr Philip as well as recording her own findings. 

40. The JCA report contains the following:

    Mrs Poposka experiences panic attacks especially when driving or attending a shopping centre.  She has difficulty with concentration and is not always able to focus for more than an hour on complex tasks or be in a room with many people without feeling confined and unable to breathe.  However, she reported to attend weekly church sessions for an hour without difficulty because she is familiar with the environment; attend to her personal grooming without assistance and is able to purchase household groceries.  The symptoms she reported of poor concentration, unclear mind, feelings of helplessness appear to be (sic) occur on a daily basis, and as confirmed by the medical report are likely to persist for more than 24 months but do not prevent her from undertaking most activities of daily living unaided and independently.

41. I note also the report of Dr Philip dated 30 June 2015, which records:

    Biljana Poposka has the following medical conditions dating back to before 2014

    Depression and Post traumatic Stress Disorder for which are (sic) condition is stable and are of a moderate in nature and she continues to receive Psychiatric help from a Psychologist and Psychiatrist.  She does suffer residual problems of mood and flash backs of the incident causing impairment in daily function of her every day activities.   She is in need of medication and regular counselling to help her in supporting her.  She is on a regular Mental Health Plan

42. I accept the evidence supports an assessment of a mild functional impact attracting a five point impairment rating.

43. In considering whether the impairment attracts a higher rating I note the descriptors in Table 5 for a rating of ten points are:

    The person has moderate difficulties with most of the following:

    (a)Self care and independent living;

    Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

    (b)Social/recreational activities and travel;

    Example 1:  The person goes out alone infrequently and is not actively involved in social events.

    Example 2: the person will often refuse to travel alone to unfamiliar environments.

    (c)Interpersonal relationships;

    Example: The person has difficulty making and keeping friends or sustaining relationships.

    (d)Concentration and task completion;

    Example 1:  The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

    Example 2:  The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

    (e)Behaviour, planning and decision-making;

    Example 1:  The person has difficulty coping with situations involving stress, pressure or performance demands.

    Example 2:  The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

    Example 3:  the person’s activity levels are noticeably increased or reduced.

    (f)Work/training capacity;

    Example:  The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

44. In considering the available evidence I note the Introduction to Table 5 provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence.  Examples of corroborating evidence includes reports from the person’s treating doctor, from assessments of the person’s mental health or interviews with carers and those providing support. 

45. There is corroborated evidence that Mrs Poposka has panic attacks when driving or going to the shopping centre which I accept as sufficient to meet the descriptor (1)(b). There is evidence that Mrs Poposka is independent in her daily living and as a result does not satisfy descriptor (1)(a).  There is evidence that Mrs Poposka has difficulty concentrating on tasks for longer than one hour.  However I consider that level of impairment to be insufficient to satisfy the descriptor (1)(d) which refers to tasks longer than 30 minutes. 

46. There is no evidence to support the descriptors regarding interpersonal relationships (1)(c), behaviour, planning and decision-making (1)(e) or work/training capacity (1)(f). 

47. Although Mrs Poposka’s impairments satisfy one of the descriptors for ten points, there is no evidence that she has difficulty with most of the listed descriptors.  I am not satisfied that Mrs Poposka’s functional impairment from her mental health condition meets the requirements for a rating of 10 points under Table 5.  Accordingly I find that the impairment rating for her mental health condition is five points.

    Cervical and Lumbar Disc Disease (Spinal Condition)

48. I note the following diagnoses by Dr Philip in regard to this condition:

    ·9 February 2011 – lower back pain;

    ·9 May 2011 – lumbosacral (sic) disc disease;

    ·12 September 2012 – lumbar spine degeneration; and

    ·14 January 2014 – lumbosacral disc disease, neck disc disease.

1. I am satisfied that the condition was fully diagnosed during the qualifying period.

2. In considering whether the condition was fully treated and stabilised I note the report of Dr Philip dated 23 May 2013. In this report Dr Philip recorded symptoms of neck and bilateral shoulder pains associated with the condition which included “Assault”.  He proposed treatment of physiotherapy, neurologist and analgesia.  In his report of 14 January 2014 Dr Philip recorded lumbrosacral disc disease, neck disc disease, joint pains after assault March 2013 as a separate condition.  His planned treatment was physiotherapy and analgesia.  However in his report of 27 May 2014, in relation to the same condition he recorded that he had referred Mrs Poposka to a specialist neurologist at Northern Hospital.

3. Mrs Poposka was not reviewed by a specialist until 17 December 2014 which was well outside the qualifying period.  At that review Dr Lionel Schachna, a rheumatologist, prescribed alternative medication, recommended attending the pool and performing regular aerobic activities.  He planned a further review in two months.  In her evidence Mrs Poposka confirmed that she had not seen a specialist in regard to this condition until the review by Dr Schachna in December 2014.  As she had not seen a specialist, as proposed by her GP, I am not satisfied that her condition was fully treated and stabilised.

4. I find that during the qualifying period Mrs Poposka’s spinal condition was not fully treated and not fully stabilised.  As a result I am unable to assign an impairment rating to the condition.

   Bilateral Osteoarthritis of the Hands, Knees and Neck

5. In considering this condition I note the following reports:

   ·Dr Philip dated 3 November 2010 which records bilateral OA of the fingers;

   ·Dr Philip dated 9 February 2011 which records a diagnosis of osteoarthritis of the small joints;

   ·Dr Philip dated 12 September 2012 which records a diagnosis of bilateral osteoarthritis of the knees and hands; and

   ·Dr Philip dated 27 May 2014 which records a diagnosis of polyarthralgia.

6. For the qualifying period there is no evidence of specialist investigation or involvement in the condition.  Mrs Poposka’s evidence was that she had not had any specialist investigations, X-rays or referrals in regard to her osteoarthritis conditions. 

7. Mrs Poposka has since been seen by a rheumatologist.  That consultation occurred in December 2014 which is well outside the qualifying period.  At that consultation the rheumatologist prescribed changes in medication and a revised physiotherapy regime and a further neurological review. 

8. In the absence of specialist involvement in the diagnosis and treatment of the condition during the qualifying period I am not satisfied that Mrs Poposka’s osteoarthritis condition was fully diagnosed, treated and stabilised and I find accordingly.  As a consequence I am unable to assign an impairment rating to this condition.

   Other Conditions

9. Other conditions considered by the Respondent are:

   ·Post-concussion syndrome;

   ·Soft-tissue injuries;

   ·Reflux disease;

   ·Chest pains; and

   ·Gynaecological problems with lower abdominal pain.

10. I will consider each in turn.

    Post Concussion Syndrome

11. In regard to this condition I note the following reports:

    ·Dr Philip dated 23 May 2013 which recorded:

    Assaulted by partner and was referred to Hospital … dizziness, Nausea, Headaches, unstable gait … referral to Neurologist … Neurologist review; and

    ·Dr Philip dated 27 May 2014 which recorded:

    Post Concussion Syndrome after assault.

12. Mrs Poposka did not see a rheumatologist until December 2014.  At that consultation the rheumatologist prescribed an alternative medication, a change to her activity regime and a further neurological review. 

13. In the absence of specialist involvement in the diagnosis and treatment I am not satisfied that, during the qualifying period, Mrs Poposka’s post-concussion syndrome condition was fully diagnosed, treated and stabilised and I find accordingly.  As a consequence I am unable to assign an impairment rating to this condition. 

    Soft Tissue Injuries

14. In the medical certificate dated 22 July 2014 Dr Philip recorded motor car accident (16/7/14) … soft tissue injuries on inv. 

15. As the condition was not present until after the qualifying period I am unable to consider it in relation to this application.

    Reflux Disease

16. In his report dated 14 January 2014 Dr Philip records reflux disease as a condition that is generally well managed and that causes minimal or limited impact on ability to function.

17. I accept the listing by Dr Philip as a diagnosis of the condition.  As the condition is reported as well managed I accept that it is fully treated and stabilised.

18. As there is no evidence of functional impairment caused by Mrs Poposka’s reflux disease I assign a rating of zero points to this condition.

    Chest Pains

19. In his report dated 14 January 2014 Dr Philip records chest pains as being investigated.

20. As the condition is still being investigated I find that it is not fully diagnosed, treated and stabilised.  Accordingly I am unable to assign an impairment rating to this condition.

    Gynaecological Problems

21. In his report dated 23 December 2014 Dr Philip records gynaecological problems with Lower Abdominal Pain.  There is no prior record of the condition.  In particular, there is no record of the condition during the qualifying period.

22. As the condition was not present until after the qualifying period I am unable to consider it in relation to this application.

    Total Impairment Rating

23. For Mrs Poposka’s conditions at the time of the qualifying period I have found the following:

    (a)PTSD and depression – assigned five impairment points under Table 5;

    (b)Cervical and lumbar disc disease – not fully treated and stabilised – unable to assign an impairment rating;

    (c)Osteoarthritis of hands, knees and neck – not fully diagnosed – unable to assign an impairment rating;

    (d)Post-concussion syndrome – not fully diagnosed – unable to assign an impairment rating;

    (e)Soft tissue injuries – not present within the qualifying period – unable to consider in this application;

    (f)Reflux disease – not fully treated and stabilised – unable to assign an impairment rating;

    (g)Chest pains – not fully diagnosed – unable to assign an impairment rating; and

    (h)Gynaecological problems – not present in qualifying period – unable to consider in this application.

24. The total impairment rating at the time of the qualifying period is five impairment points.

    conclusion

25. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all of the sub-sections must be satisfied.  Mrs Poposka does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.

26. The result is that during the qualifying period Mrs Poposka was not qualified for DSP and I find accordingly.

    decision

27. I affirm the reviewable decision.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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Associate

Dated   27 May 2016

Date(s) of hearing	13 May 2016
Applicant	In person
Advocate for the Respondent	Mr Cameron Munro