Posuniak and Secretary, Department of Social Services (Social services second review)
[2016] AATA 85
•18 February 2016
Posuniak and Secretary, Department of Social Services (Social services second review) [2016] AATA 85 (18 February 2016)
Division
GENERAL DIVISION
File Number
2015/2106
Re
Ann Marie Posuniak
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 18 February 2016 Place Sydney The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension –– whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
18 February 2016
On the 17 October 2014 Ms Posuniak, who is currently 58 years old, lodged a claim for DSP on the basis that she suffered several medical conditions which were having an impact on her ability to function.
Ms Posuniak’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, as her impairments were not 20 points or more under the Impairment Tables.
In a decision dated 24 March 2015 the former Social Security Appeals Tribunal (SSAT) found that Ms Posuniak had a total impairment rating of nil points under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act.
In these proceedings Ms Posuniak, who was self–represented, seeks review of the SSAT’s decision.
ISSUES
In order to qualify for DSP, Ms Posuniak must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 17 October 2014 and 9 January 2015 (the claim period).
Section 94(1) of the Act provides that a person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Ms Posuniak suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a));fully treated (paragraph 6(4)(b));
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Ms Posuniak contends that she suffers a number of medical conditions which are associated with a broad spectrum of symptoms and have a significant functional impact involving several activities including the following:
·physical exertion and stamina (Table 1);
·use of hands or arms (Table 2);
·use of legs and feet (Table 3);
·brain function(Table 7);
·intellectual function (Table 9);
·hearing (Table 11); and
·altered consciousness (Table 15).
The Respondent contends that, during the claim period, Ms Posuniak had a total rating of nil points under the Impairment Tables so that, she did not satisfy s 94 (1)(b) of the Act.
Therefore, the definitive issue for the Tribunal to consider is whether, during the claim period, Ms Posuniak had an impairment of 20 points or more under the Impairment Tables and, if so, whether she had a “continuing inability to work”.
CONDITIONS
Physical exertion and stamina
In a letter dated 3 February 2014 Dr Bigg, consultant physician, notes that Ms Posuniak had “some recent troublesome chest pain” and “strong irregular palpitations”. On physical examination he noted that Ms Posuniak looked well, described no abnormalities and recommended a stress echo and various blood tests.
In a letter dated 8 April 2014 Dr Bigg notes, the following:
She has been having recent episodes of palpitations which would fit with ectopy, and complex ectopy was observed on the recent holter monitor. She has also had one episode of significant chest discomfort, and she experiences breathlessness during daily activity
…[on examination] she looks well but remains chronically distressed by her family situation. BP 130/80…no clinical CHF.
Dr Bigg reports the results of a Treadmill Stress Echocardiography as follows:
At rest, the 12 lead ECG reveals sinus rhythm. The resting echo shows top normal LV thickness and size with normal LA size There was no significant stenotic or regurgitant valvular lesion. … The wall motion appearance raises the possibility of TakTsubo cardiomyopathy (catecholamine myopathy).
With exercise she achieved 7 mets. At end exercise she was breathless. There was no chest pain. There was no diagnostic ECG change.
Dr Bigg recommends the following:
…at 7 mets one wouldn’t organise an angiogram looking for CHD… management should be three fold – regular exercise…management of risk factors and medication...she currently is on Metoprolol and aspirin…stress is obviously a major issue here, and she must do something about it. She is resistant to psychiatric or psychological counselling at this stage. …Tako Tsubo cardiomyopathy is a stress related phenomenon.
Dr Bigg does not describe any significant clinical abnormality and does not provide a definitive diagnosis. In particular there is no evidence of cardiomyopathy.
The relevance of Dr Bigg’s echocardiographic observation and the possibility of Takotsubo cardiomyopathy is unclear. Harvard Health Publications, Harvard Medical School describes Takotsubo cardiomyopathy as a “weakening of the left ventricle” usually as a result of severe emotional or physical stress. The abnormalities of cardiac function usually clear up in one to four weeks and most patients fully recover within two months.
In a Centrelink Medical report dated 5 November 2014 Dr Sheary, GP, notes that Ms Posuniak had been seen by Dr Bigg but makes no reference to any medical condition that results in functional impairment when performing activities physical exertion or stamina.
The report of a CT coronary angiogram performed on 10 February 2015 notes “Few minor calcific plaque as described, proximal LAD and mid RCA without any soft plaques or stenosis”.
On the evidence before the Tribunal I am not persuaded that, during the claim period, Ms Posuniak suffered a medical condition that would warrant a rating under Impairment Table 1.
Use of hands or arms
In 2003 Ms Posuniak suffered a fracture of her left wrist and claims that since that time she has persisting functional impairment. She also claims that she suffers impairment in the right arm as a result of a “stroke” in 2008.
At the hearing Ms Posuniak described the “stroke” as occurring one evening at about 11pm after a long car journey to visit her children. She was dancing by herself, for relaxation, when she was suddenly unable to continue because of a right sided “sensation” which included her right upper and lower limb. She was unable to move and felt that she “was not breathing”. After about five minutes the sensation subsided and she went to bed. The following morning she got up and rang her sister in the United States of America (USA) to discuss the previous night’s episode. Later that day she attended her GP who told her she probably had a “mini- stroke” and started anticoagulant treatment with Coumadin (warfarin). Her GP did send her to hospital or arrange any investigations or specialist assessment.
I note that there is no contemporaneous medical evidence before the Tribunal to support Ms Posuniak’s claim that in 2008 she in fact had a “stroke”.
Dr Bigg in his letter of 8 April 2014 refers to a past medical problem as “Probable stroke (historical diagnosis) – Grade V Stroke causing proximal atheroma” [sic] but provides no evidence to support this diagnosis.
In a letter dated 1 July 2014 Dr Powell notes inter alia the following:
In 2003 she suffered a fracture of the distal radius managed in a long-arm cast followed by a short-arm cast and exercise.
She managed to regain quite good function and movement.
She is right handed. Her left hand side was affected by a stroke in 2005 and although the direct cause was not isolated it would seem that it is more likely to be embolic rather than haemorrhagic…
Her trouble at the moment is that she gets dorsal and ulnar pain in the wrist extending up other side of the forearm when she takes heavy load. She has noticed this particularly in recent exercise that she does for fitness where she takes her body weight through a dorsiflexed wrist.
The pain lasts for as long as the activity lasts…
On occasion she drops things, this is about once a month…
She has excellent movement at the shoulder, elbow and forearm.
At the wrist she is not particularly tender to palpation. Range of motion is excellent…
She can make a full fist with normal flexion extension, has a strong grip and well sustained grip…sensation is intact.
She has regained excellent movement and function in her left upper limb both following her fracture and her stroke..
In her report of 5 November 2014 Dr Sheary lists ”stroke” as a medical condition with significant impact and describes the functional impact as “some difficulties gripping (L) hand … no longer able to play piano” but provides no other details.
The evidence with respect to Ms Posuniak’s upper limb function is clearly inconsistent and incomplete. In my view, the diagnosis of “stroke” is uncertain and Dr Powell’s letter clearly indicates that she has no functional impairment in the left upper limb and there is no evidence that she has any functional impairment in the dominant right upper limb.
Accordingly I am satisfied that a rating under Impairment Table 2 is not warranted.
Use of legs and feet
Ms Posuniak claims that she fractured her left ankle in November 2010 and since that time she has suffered from intermittent pain which is made worse by walking. She said that her exercise tolerance has been reduced, she can no longer jog or jump but can walk for at least one hour before she notices the pain. She also described residual left lower limb difficulties which she attributes to the left sided “stroke” she suffered in 2008.
In a letter dated 5 July 2013 Dr Powell notes inter alia the following;
Thank you for referring this lady for assessment of left ankle and hindfoot pain.
In November 2011 she was helping her son move a mattress and was walking across the bed frame and as she stepped down onto the ground she landed heavily and awkwardly on her left hindfoot and heel, topped backwards and she thinks she inverted the foot.
She had pain about the dorso-lateral and medial aspect of the heel and hindfoot.
It was painful for several days and in about a week the things had improved. It did not become particularly swollen or bruised.
She had no investigations or treatment at the time time but over the years has found that she has had intermittent pains about the foot medially and laterally that come and go sometimes causing her to limp.
She is worried about developing arthritis.
In 2008 she suffered a CVA affecting her left side, upper and lower limbs with weakness, speech and reading
…
With rehabilitation and self-directed exercise including swimming walking bike riding and so on she has greatly improved he weakness (she had needed to drag her foot around for some time)…
Dr Powell reported a comprehensive physical examination which did not reveal any significant abnormalities. Plain x-rays of the left hind foot showed “some Achilles insertional tendinopathy and an enlarged navicular”.
Dr Powell concluded that Ms Posuniak “does not have any major difficulties in the hindfoot” and that she “is starting to get some age related change in her musculoskeletal system and this is on a background of her previous stroke from which she has made quite a good recovery”.
Dr Powell also noted that Ms Posuniak indicated that “when she walks long distances she starts to feel tired and have less coordination on the left side”
The evidence with respect to Ms Posuniak’s lower limb impairment is, in my view, is somewhat problematic. I have already referred to the uncertainty about the diagnosis of “left sided stroke” and the fact that Dr Powell makes no reference to a “fractured left ankle” raising concerns about the reliability of Ms Posuniak’s self-reported evidence.
I note also at the x-ray of the left foot apparently did not demonstrate evidence of a healed ankle fracture.
In my view the the evidence does not provide a satisfactory diagnosis for Ms Posuniak’s claimed lower limb condition so that a rating under Impairment Table 3 cannot be applied.
Brain / intellectual function
Ms Posuniak claims that she suffers cognitive and intellectual impairment and attributes the impairment to previous her head injury and “stroke”. She told the Tribunal that in 2005 when living in Seoul she fell over and injured her head. She was seen in a hospital emergency department but sent home.
In 2005 she was admitted to Bowral Hospital on two occasions for alcohol related problems.
A CT scan of the head performed on 28 July 2005 was reported as a normal examination.
In a letter dated 15 November 2013 Ms Lucas, clinical neuropsychologist, states inter alia the following;
…Ms Posuniak actually demonstrates quite good performance on most of the cognitive tests. However, she appeared to have a number of lapses in focus which affected her ability to take in some new information, and initial encoding of verbal material in particular was reduced. Repetition of the material helped and most of her memory scores were still within normal limits. There was no evidence of focal deficits to suggest the clinical effects of an isolated stroke, although some of the difficulties with attention/ initial verbal memory may be related to mild vascular changes. I consider the main source of her cognitive difficulties to be heightened stress and psychological disturbance related to life events, which is making it difficult for her to focus reliably (her mind is too full of worry). It is most likely that the long term memory problems she reports are a product of her blocking out tragic events from her past.
There is no other corroborative evidence with respect to brain or intellectual function.
There is no evidence that Ms Posuniak has permanent condition resulting in low intellectual function so a rating under Impairment Table 9 cannot be applied.
There is also no evidence that Ms Posuniak has a permanent condition resulting in functional impairment related neurological function so a rating under Impairment Table 7 cannot be applied.
Hearing Condition
Ms Posuniak told the Tribunal that in the past she has suffered from intermittent tinnitus but recently it has become persistent.
A Prince of Wales Hospital Emergency Department discharge referral dated 8 April 2015 states inter alia the following:
57 year old woman presents with tinnitus and ear ache. Was at yoga today around 1100 and bent forwards. Developed sharp left earache which did not alleviate with changes in positioning…heard ring noises…ringing noises had been present for 1 month high pitched and mainly in the right ear…
An audiogram performed on 27 October 2015 revealed bilateral mild to moderate high frequency hearing loss.
An audiology assessment performed on the 4 January 2016 confirmed symmetrical mild to severe hearing loss at 2-8 kHz bilaterally. Binaural hearing aid fitting was recommended as a first step in tinnitus management
In a letter dated 21 January 2016 Dr Gibson, ENT surgeon, notes inter alia the following:
She recommenced yoga in March 2015 but this has caused further dizziness and she dislikes fast motion. In the past few months she feels her hearing has deteriorated and she is experiencing difficult hearing in noisy situations and when using the telephone
…
The pure tone audiogram shows a bilateral severe high frequency loss. The tinnitus was matched at 500Hz and masked at 60db wide band noise
…
I tried to explain the mechanism of the tinnitus to her and that she should be helped by hearing aids which would improve her the hearing and provide low level masking of the tinnitus.
Clearly Ms Posuniak’s hearing condition was fully diagnosed, treated and stabilised before or during the claim period so that a rating under the Impairment Tables cannot be applied.
Altered Consciousness
In a letter dated 15 October 2014 Professor Colebatch, neurologist, states the following:
I saw Ms Posuniak early in light of her EEG findings. … At her last appointment she complained to me of episodes of déjà vu and although her previous EEG was normal, a sleep deprived EEG…has been reported as showing right anterior temporal epileptiform activity. This coupled with and episodic memory loss, I think makes a strong case for focal epilepsy. She, of course refers all her symptoms to the “stroke” in July 2008, which sounds very atypical. She did have a head injury in in 2005, in which she had an occipital haematoma and she complained of episodic poor memory in 2007…
…she remains discursive and difficult to get a clear history from.
I recommend she start lamotrigine in a slowly increasing dose… to be done over a fortnight. …I have told her I am hopeful that her episodes of déjà vu and also her episodic memory loss may improve with treatment ….
In a Centrelink Medical Report dated 5 November 2014 Professor Colebatch lists “focal epilepsy” as a medical condition with most impact with a date of onset of “2005 (not definite)”.
Current symptoms are described as “episodes of ‘déjà vu’, episodic memory loss, emotionally labile – not clear if this is related” and impact on ability to function is noted as “may have episodes of altered consciousness or loss of memory”. The effect of the condition on Ms Posuniak’s ability to function is noted as expected to significantly improve Professor Colebatch states that “I would hope her symptoms will be controlled with anticonvulsants”.
Ms Posuniak’s lodged her claim for DSP a few days after the diagnosis of ‘focal epilepsy’ was confirmed and the evidence clearly indicates that this condition was not fully treated and fully stabilised during the claim period so that a rating under the impairment Tables cannot be applied.
CONCLUSION
For reasons set out above I am satisfied that, during the claim period, Ms Posuniak did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP. It is therefore not necessary to consider whether Ms Posuniak had a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member .............................[sgd]...........................................
Associate
Dated 18 February 2016
Date(s) of hearing Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – disability support pension
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Impairment Ratings
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Continuing Inability to Work
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