Rachel Gallacher and Secretary, Department of Social Services

[2015] AATA 294

[2015] AATA 294

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4772
Re	Rachel Gallacher
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	5 May 2015
Place	Adelaide

1.          The Tribunal affirms the decision under review.

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Member I Thompson

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - whether applicant has severe impairment - no impairment attracting 20 point rating - decision under review affirmed.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

5 May 2015

INTRODUCTION

1. Ms Gallacher lodged a claim for the disability support pension (DSP) on 4 April 2013.  A report from Ms Gallacher’s general medical practitioner, Dr Sharma, indicated that she had a diagnosis of generalised epilepsy.[1] 

   [1] Exhibit 1, T 14 page 225.

2. Centrelink did not accept the DSP claim.  She applied to the Social Security Appeals Tribunal (SSAT) for a review of Centrelink’s decision.

3. The SSAT affirmed Centrelink’s decision.  The SSAT concluded that Ms Gallacher’s epilepsy was fully diagnosed, fully treated and fully stabilised and well controlled by medication.  The SSAT resolved that Ms Gallacher’s total impairment rating is 5 points under the criteria set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  Ms Gallacher applied to this tribunal for a review of the SSAT’s decision. 

   LEGISLATION AND ISSUES

4. Section 94 of the Social Security Act 1991 (the Act) states that a person is qualified for DSP 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.

5. Ms Gallacher has to satisfy those criteria on the date of her application or within 13 weeks following. The relevant assessment period in this case is 4 April 2013 to 4 July 2013 (ss 41 and 42, Schedule 2 Social Security (Administration) Act 1999).  A rating can only be given to an impairment if the condition which causes it is permanent.  A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner and has been fully treated and fully stabilised, and is more likely than not to persist for more than two years:  clause 6(3) and clause 6(4) of the Impairment Tables.

6. The Secretary did not challenge the findings of the SSAT. In particular the Secretary accepted that s 94(1)(a) of the Act is satisfied regarding Ms Gallacher’s impairment. The Secretary conceded that the epilepsy condition was fully diagnosed, treated and stabilised at the date of the DSP claim or within the assessment period and the condition is consistent with a rating of 5 points under the Impairment Tables.

7. The Tribunal must determine if Ms Gallacher’s impairment can be allocated an impairment rating under the Impairment Tables.  If there is a rating of 20 impairment points or more, the Tribunal must determine if there is a “continuing inability to work” as defined by the Act.

   EVIDENCE

   Medical evidence

   Dr Sharma

8. Two reports from Dr Sharma were received in evidence.  In a report dated 27 March 2013[2] Dr Sharma reported Ms Gallacher’s diagnosis of epilepsy with a date of onset in 1982.  The report noted that Ms Gallacher was admitted to the Queen Elizabeth Hospital on the 20 February 2013 where she was under the care of a neurologist.  Ms Gallacher continues to receive treatment for epilepsy which was managed by medication, Epilim, and also has problems with dizziness and tiredness which have an adverse impact on her ability to concentrate.

   [2] Exhibit 1, T14.

9. In a subsequent report dated 1 August 2013[3] Dr Sharma confirmed the observations and comments made in the first report about epilepsy.  The report also included comments attributed to Ms Gallacher to the effect that she feels dizzy, is not getting better, she feels stressed and suffers from insomnia and nausea. 

   [3] Exhibit 1, T15.

   Associate Professor Jannes

10. Associate Professor Jannes is a senior consultant neurologist at the Queen Elizabeth Hospital.  He wrote a report following a review of Ms Gallacher on 20 February 2013.[4] He confirmed the diagnosis of generalised epilepsy.  He noted the last reported seizure was in April 2008.  There were no reported side effects relating to the prescribed drug therapy.  He also reported that Ms Gallacher’s drivers licence was revoked by the relevant authority which suggested non-compliance with the medication regime.  The assessment and management of the epilepsy was not altered and a follow up was directed to take place in 12 months’ time.

    [4] Exhibit 1, T17 page 250.

    Dr Tibrewal

11. A report from a psychiatrist, Dr Tibrewal, dated 20 January 2015,[5] was received in evidence.  Dr Tibrewal reported Ms Gallacher’s medical history which included a diagnosis of epilepsy at five years of age, a frequency of seizures that was not subsequently high until a massive seizure in 2008.  Subsequently she consulted her general medical practitioner and she commenced treatment through medication.  At the present time she leads an isolated life and feels tired most of the time.  Her sleep pattern is poor and her appetite is reduced.  She was unable to concentrate and physical activity is minimal. 

    [5] Exhibit 4.

12. Dr Tibrewal considered that Ms Gallacher suffers from major depression with current features of mild to moderate severity.  He wrote that her depression could be secondary to physical morbidities that arise out of her epilepsy.  He also referred to her social isolation and inadequate social support as contributing factors to the depression.  He suggested an increase in medication, Sodium Valproate, and he considered that a referral to a neurologist for a further opinion around the management of her epilepsy would be worthwhile.  He suggested a trial of an antidepressant and he also thought that Ms Gallacher might benefit from a referral to a psychologist for inter personal therapy.

    Evidence of Ms Gallacher

13. Ms Gallacher gave evidence to the Tribunal.  She understood that she had a diagnosis of grand mal epilepsy when she was five.  She is now 38.  Her epilepsy is reviewed by the Epilepsy Clinic at the Queen Elizabeth Hospital.  She takes Epilim to manage the condition. 

14. Ms Gallacher gave evidence that she lives alone.  She occasionally goes out to do the shopping and to get exercise.  However she suffers from dizziness and nausea which she attributes to the epilepsy and the medication.  Her sleep pattern is poor and she is frequently tired.  Although she generally keeps to herself, she does receive occasional visits from friends.  She has not worked since 2007.  She had worked in the retail sector.  She acknowledged that she is self-sufficient at home.  She prepares her meals.  She is able to leave home to go shopping.  Her driver’s licence has been withdrawn by the relevant authority because of the effects of her epilepsy.  She disagreed with the comment in Associate Professor Jannes’ report about medication non-compliance.  Her evidence is that she complied with the medication regime.  She takes Epilim twice per day, in accordance with the recommendation of her general medical practitioner, and under the continuing monitoring and guidance of the Queen Elizabeth Hospital Epilepsy Clinic. 

15. Ms Gallacher told the Tribunal that she had a seizure in 2008.  She said she had another seizure in June 2013, then a subsequent seizure in October 2014.

    CONSIDERATION

16. Impairment Table 15 is the relevant table for functions of consciousness.  For a mild functional impact, Table 15 provides:

Points

Description

0

…

5

There is mild functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)   The person:

(a)   either:

(i)      has rare episodes of involuntary loss of consciousness, which:

(A)   occur no more than twice per year; and

(B)   do not usually require hospitalisation; or

(ii)     has episodes of altered state of consciousness, which:

(A)   occur no more than twice per year; and

(B)   do not usually requiring hospitalisation; and

(b)     is able to perform most activities of daily living between episodes; and

(c)   may have restrictions on a driver’s licence due to medical condition.

10

…

1. The Tribunal notes the Secretary’s appropriate concession that Ms Gallacher’s epilepsy is fully diagnosed, treated and stabilised and controlled by medication.  The Secretary contended that five impairment points was the appropriate rating.  On the evidence before the Tribunal, it is clear that the frequency and nature of the epileptic episodes come within the descriptors of a mild functional impact, with a rating of five points.  Equally, the effect of the condition on Ms Gallacher’s activities of daily living and the restriction on her driver’s licence are consistent with a rating of five impairment points. 

2. The Tribunal accepts Ms Gallacher’s evidence that she has problems with dizziness, fatigue, insomnia and poor concentration.  Clearly these are difficulties for her on a continuing basis.  The SSAT concluded that dizziness and nausea are not symptoms of epilepsy.  It is also relevant that Associate Professor Jannes reported that the Queen Elizabeth Hospital Epilepsy Clinic records did not indicate any side effects and issues relating to the drug therapy.  If it were an issue requiring resolution, there is insufficient medical evidence that the dizziness and associated symptoms are caused by the epilepsy and medication.

3. The report from Dr Tibrewal followed a recent psychiatric assessment of Ms Gallacher.  She wanted the Tribunal to receive the report and take it into account.  It is a helpful report that sheds light on Ms Gallacher’s current circumstances and their origin.  Ms Gallacher represented herself at the hearing.  Dr Tibrewal’s report was also helpful in providing the Tribunal with a better understanding of the context of her evidence.  However the conclusion in the report about major depression cannot be taken into account in the assessment of her qualification for the DSP as at the 4 April 2013 and in the 13 week assessment claim period that followed.

   SUMMARY

4. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied. The Tribunal finds that Ms Gallacher’s epilepsy condition was fully diagnosed, treated and stabilised during the assessment period. The appropriate rating is five points.

5. Accordingly the Tribunal finds that Ms Gallacher does not have an impairment, or a combination of impairments, that attract a rating of at least 20 points under the Impairment Tables during the assessment period. It follows that it is not necessary to consider whether or not Ms Gallacher had a continuing inability to work within the meaning of s 94(1)(c) of the Act. Accordingly she does not qualify for the DSP.

   DECISION

6. The Tribunal affirms the decision under review.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

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Administrative Assistant

Dated 5 May 2015

Date(s) of hearing	10 April 2015
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services