Norman and Secretary, Department of Social Services
[2013] AATA 797
•12 November 2013
[2013] AATA 797
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1199
Re
Deidre Norman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 12 November 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Ms Norman claimed disability support pension on 26 July 2012. A Centrelink officer rejected Ms Norman’s claim on the basis that she had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. The decision was affirmed on further internal review and by an authorised review officer and the Social Security Appeals Tribunal.
Ms Norman currently suffers from:
(a)depression, anxiety and stress;
(b)a neck condition; and
(c)effects of facial fractures.
ISSUES
Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s combined impairment is of 20 points or more under the impairment tables; and
(c)the person has a continuing inability to work; and
(d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Ms Norman during the period from the date of her claim and for the following 13 weeks may be considered for assessment of her qualification for disability support pension. Those conditions must be assessed against the impairment tables as they were during that 13 week period, that is, from 26 July 2012 to 25 October 2012. Similarly, her satisfaction of other eligibility requirements must also be assessed for that limited period.
It is not in dispute that Ms Norman has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in her application.
DOES MS NORMAN HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 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 two years.
Paragraph 6 of the Introduction provides that when considering 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 two years.
This means that, regardless of the range and progression of Ms Norman’s conditions now, I must restrict my consideration to those conditions that were fully diagnosed, treated and stabilised during the period 26 July 2012 to 25 October 2012.
I will deal with each of Ms Norman’s conditions in turn.
Depression, Anxiety and Stress
Ms Norman said she was diagnosed with post-traumatic stress disorder and anxiety in 1999. She said she was treated with anti-psychotic medication, anti-depressants and psychological and psychiatric counselling and treatment.
Ms Norman said her neck was injured in a motor vehicle accident in 2006 and she was treated with physiotherapy. She said the physiotherapy she received was also directed to her anxiety and stress. She seemed to regard her stress and her neck condition as related and considered that the physiotherapy she received for her neck as being also beneficial for her stress.
Ms Norman said she received no counselling or other therapy from a psychologist or psychiatrist from 2007 until 2012 when she began to experience her current bout of stress which, she said, came on about three weeks before her claim for disability support pension. She said she commenced to see someone she thought was a clinical psychologist but turned out to be a mental health nurse. She saw this mental health nurse from September to December 2012. She then commenced to see a clinical psychologist, Peter Kalogiannis, in January 2013 until April 2013. Ms Norman said she has been referred by Victim Services to commence trauma counselling at the Women’s Cottage in November 2013.
There is no dispute that Ms Norman had anxiety and stress for which she was treated from 1999 to 2007, following a diagnosis by Chris Probets, clinical psychologist, in 1999 of post-traumatic stress disorder and reactive depression. I note that in 2002, her then psychiatrist, Dr Steve Robinson, was considering her withdrawal from anti-psychotic medication with optimism. However, according to Ms Norman’s own evidence, she received no further treatment from a psychologist or psychiatrist after 2007. She also reported on 10 August 2012 to a Centrelink Job Capacity Assessor, a registered psychologist, that she was stable on medication until three weeks earlier when she suffered an exacerbation of symptoms. Ms Norman told the Tribunal that at the time of the exacerbation in July 2012 she was working for Bosch Security, testing security sensors. She said the main reason for ceasing her job was the exacerbation of her stress.
Given the length of time for which Ms Norman’s previously diagnosed stress and anxiety condition had been stable, and given that at the time of her claim she had not yet received treatment from a psychologist or psychiatrist, I cannot conclude that, in the relevant period, Ms Norman’s stress, anxiety and depression condition was fully treated and stabilised. It follows that her condition cannot be assessed under the Impairment Tables.
Neck condition
Ms Norman said that after her motor vehicle accident in 2006 she now has arthritis in her neck. She said she experiences constant pain in her neck and takes Prestiq for that. However, I note that Prestiq is an anti-depressant medication. Ms Norman said her pain extends beyond her neck to her ribcage and shoulder blade – and sometimes through her whole body.
Ms Norman said she saw a neurosurgeon, Dr Kam, in 2008. I note his report of that year which found, on clinical examination, that she was not in much discomfort, had a good range of motion and her reflexes were unremarkable. He concluded that she was suffering from mechanical neck pain potentially due to annular tears and suggested that she obtain a cervical discogram.
Ms Norman said she has had no further specialist treatment since seeing Dr Kam in 2008 and continues to have physiotherapy when she can. When I asked whether her general practitioner had ever suggested pain therapy from a pain clinic, she said he had not. She obtained CT scans of her cervical spine in June 2013 which indicated mild degenerative arthritis. This further investigation and the absence of any further specialist treatment indicates that the condition has not been fully treated and stabilised. It follows that it cannot be assessed under the Impairment Tables.
Effects of facial fractures
Ms Norman complained of the effects of facial fractures she sustained a long time ago. She mentioned sinus problems, infection, headaches, swelling and difficulties with her ears. However, there was no medical information to support her claim. Consequently, these problems cannot be rated under the Impairment Tables.
On the basis of the above conclusions, Ms Norman does not meet the requirement for 20 points under the Impairment Tables. It follows that she does not qualify to be paid disability support pension. There is no need to consider the issue of continuing ability to work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .......[Sgd].................................................................
Associate
Dated 12 November 2013
Date of hearing 30 October 2013 Applicant In person Solicitors for the Respondent K Martini, DHS Program Review Litigation Branch
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