Radana Prerad and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 859

[2012] AATA 859  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1667
Re	Radana Prerad
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	6 December 2012
Place	Sydney

The Tribunal affirms the decision under review.

.............[sgd]...........................................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – back and shoulder conditions – psychiatric condition – whether conditions treated and stabilised – impairment ratings – continuing inability to work – whether applicant had actively participated in a program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42 and Sch 2

REASONS FOR DECISION

Senior Member J F Toohey

6 December 2012

BACKGROUND

1. Ms Radana Prerad suffers from back, shoulder and neck pain, and Adjustment Disorder as a result of motor vehicle accidents in May 2009 and November 2009.  She was working as a cleaner at the time of her first accident, and had returned to work on light duties when she had the second accident.  She has not worked since.

2. In September 2011, Ms Prerad applied for a disability support pension (DSP).  Centrelink decided she did not qualify for the payment and, in March 2012, the Social Security Appeals Tribunal (SSAT) affirmed that decision.

3. To qualify for DSP, a person must have an impairment rating of TWENTY or more points and a continuing inability to work: s 94 of the Social Security Act1991 (the Act).  The respondent says Ms Prerad does not satisfy either test.

4. For Ms Prerad’s application to succeed, she had to qualify for DSP within 13 weeks of lodging her application, that is between 15 September and 14 December 2011: s 42 and Sch 2 of the Social Security (Administration) Act 1999. 

   THE ISSUE

5. I have to decide whether, during the claim period, Ms Prerad qualified for DSP. 

6. The respondent says Ms Prerad’s impairments do not attract the necessary TWENTY points.  As set out below, I have some difficulty with the medical evidence on which the respondent relies.  However, because I find that Ms Prerad did not have a continuing inability to work during the claim period, her claim cannot succeed and it is not necessary to determine her impairment rating.

7. These written reasons reflect reasons given orally at a hearing on 30 November 2012.

   DID MS PRERAD HAVE A CONTINUING INABILITY TO WORK?

8. Section 94(2) provides that a person has a continuing inability to work because of an impairment if it is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years, and either:

   (i)it is of itself sufficient to prevent the person from undertaking a training activity during the next two years; or

   (ii)if it does not prevent the person from undertaking a training activity, such activity is unlikely, because of the impairment, to enable the person to do any work independently of a program of support within the next two years.

9. In addition, a person whose impairment is not severe must have actively participated in a program of support: s 94(2)(aa). An impairment is severe if it is rated TWENTY points or more under a single Impairment Table: s 94(3B).

10. For the reasons discussed below, I have difficulty with the contention that Ms Prerad’s rateable impairments each attract a rating of NIL points.  However, I am satisfied that none rates TWENTY points or more on a single Impairment Table.  It follows that Ms Prerad does not have a severe impairment and so must have actively participated in a program of support for her claim to succeed.

11. A person has “actively participated in a program of support” if, in the three years immediately before the relevant period, she or he:

    (i)has participated in the program for at least 18 months; or

    (ii)has completed a program that was less than 18 months duration; or

    (iii)participated in a program that was terminated because of their inability, due to the impairment, to improve their capacity to find, gain or remain in employment even with continued participation in the program; or

    (iv)is participating in a program at the date of claim but prevented, by the impairment, from improving their capacity to find, gain or remain in employment.

12. A program of support is one that is designed to assist persons to prepare for, find or maintain work and is either wholly or partly funded by the Commonwealth, or is similar to such a program: s 94(5)

13. Centrelink records show that, except for two periods totalling three weeks, Ms Prerad has participated in a program of support since 30 August 2011.  She cannot recall the exact dates herself but does not dispute the Centrelink record. 

14. Ms Prerad gave evidence that she is still participating in the program.  She is not sure when she will complete it.   There is nothing to suggest that she cannot continue the program, or that her impairment prevents her from improving her capacity for employment.  It follows that she must have been actively participating in the program for at least 18 months for her claim to succeed.

15. By the end of the claim period, Ms Prerad had been participating in a program of support for just on four months.  It follows that she did not have a continuing inability to work within the meaning of the Act and did not qualify for DSP.

    THE IMPAIRMENT TABLES

16. As her claim must fail, it is not strictly necessary to consider what, if any, rating should be assigned to Ms Prerad’s impairments.  However, because she has indicated she may make a further claim for DSP, it may assist to set out the difficulties I see with the evidence as it stands.

17. The Impairment Tables (the Tables) is a legislative instrument determined by the Minister, used to assess the effect of an impairment on a person’s ability to work.  They provide, in summary, that a rating can only be assigned to a fully documented and diagnosed condition which has been investigated, treated and stabilised.  It must be permanent, meaning it will more likely than not persist for more than two years.  It 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.

18. The respondent accepts that Ms Prerad’s back and shoulder conditions were fully diagnosed, treated and stabilised during the claim period.  Taking into account the evidence of her general practitioner, Dr Velibor Todorovic, and a Job Capacity Assessment (JCA) report of September 2011, I am satisfied that is correct.

19. As set out at [35] below, I find that Ms Prerad’s Adjustment Disorder was not treated and stabilised during the claim period.

    What ratings should be assigned to Ms Prerad’s back and shoulder conditions?

20. Evidence about Ms Prerad’s back and shoulder conditions is found in:

    (i)reports from her general practitioner, Dr Todorovic, and Dr Medhat Guirgis, orthopaedic surgeon;

    (ii)a report of an ultrasound of her right shoulder in February 2010

    (iii)a report of an MRI scan of her back and shoulder in May 2010;

    (iv)a report from a JCA by Ms Natalie Jacob on 29 September 2009; and

    (v)a report of a Functional Capacity Evaluation Assessment in October 2011.

    Cervical and lumbar spine

21. Dr Todorovic reported in September 2011 that Ms Prerad had “post-traumatic mechanical derangement of the cervical and lumbar spine with MRI evidence of a central disc protrusion at L4/5” dating from the accident in May 2009.  He reported that past treatment was physiotherapy and analgesics, current treatment was analgesics and home exercise, and future treatment was “as above”.  He noted that she had difficulty with any strenuous activities involving her neck and lower back; that this was likely to persist for more than 24 months, and was likely to fluctuate.

22. In her JCA report, Ms Jacob noted that Ms Prerad had undergone various radiological investigations, that physiotherapy had recently ceased, that she had taken Panadeine Forte and Panadol Osteo daily, and that her current treatment comprised Panadeine Forte, Panadol Osteo daily and exercise.  She concluded that Ms Prerad’s spine was fully diagnosed, treated and stabilised.  She assigned a rating of TEN points on Table 5.2 for the thoraco-lumbar spine condition, and FIVE points on Table 5.1 for the cervical spine condition.

23. On 11 October 2011, Ms Linda Tran, a physiotherapist, undertook a Functional Capacity Evaluation Assessment to assess Ms Prerad’s “current functional abilities and limitations with regards to her neck, lower back and right shoulder conditions”.   She assessed a one-quarter loss of range of movement in the cervical and lumbar spines, and moderate restriction of the right shoulder.  She thought Ms Prerad could undertake occasional, sedentary employment that would allow for frequent changes in posture; she was not suitable for work that involves prolonged overhead reaching, sitting, standing and walking.

24. Dr Guirgis saw Ms Prerad in December 2011.  He diagnosed:

    Post-traumatic mechanical derangement of the cervical area of the spine caused by muscular ligamentous sprain/strain with possible intervertebral disc involvement.  There was MRI evidence of a central posterior discophytic protrusion extending backwards to indent into the ventral surface of the thecal sac at the C 5/6 level.  There was also the MRI evidence of the central disc bulging extending backwards to touch but not indent the ventral surface of the thecal sac at the C4/5 level.

25. In March 2012, an authorised review officer (ARO) affirmed Ms Jacob’s decision.

26. The SSAT took a different view.  It concluded that Ms Prerad had a “minor” accident and noted that a report of an MRI scan in May 2010 of her cervical spine showed “very mild spondylitic changes without nerve root compression”, and a scan of her lumbar spine showed “spondylitic changes at the L4/5 level with broad based disc bulges and a central annular tear but no evidence of nerve root compression”.  The SSAT concluded these were “relatively minor changes consistent with Ms Prerad’s age” and, further, that a report of the MRI by Dr Zita Gacs did not support Dr Guirgis’ opinion. 

27. The respondent contends that Dr Guirgis’ diagnosis is not supported by the MRI scan.  That may or may not be correct.  The MRI report refers to findings at the C5/6 level in terms different from those described by Dr Guirgis, raising questions about his diagnosis but, in the absence of evidence clarifying his diagnosis, it is not safe, in my view, to conclude that it is at odds with the MRI report.  Nor is it safe, in the absence of medical evidence, to conclude that Ms Prerad has minor degenerative changes consistent with her age that have minimal functional impact.

    Right upper limb (shoulder)

28. Dr Todorovic reported that Ms Prerad had:

    post-traumatic mechanical derangement of the right shoulder caused by contusion of the articular surfaces and [indecipherable] of the supporting capsular and ligamentary structures [indecipherable] tendonitis [indecipherable]

    dating from May 2009. 

29. Dr Todorovic reported that past treatment comprised three steroid injections into the right shoulder and physiotherapy, current treatment comprised Panadol Osteo, and future treatment was “as above”.  He noted she had “difficulties with any [indecipherable] overhead activities”; that this was likely to persist for more than 24 months, and was likely to fluctuate.

30. Ms Jacob concluded that, due to the nature and history of her condition, and the likelihood that she would not benefit from further intervention with reasonable treatment, Ms Prerad’s right shoulder condition was fully diagnosed treated and stabilised.  She assigned a rating of TEN points on Table 3.

31. Dr Guirgis referred to the ultrasound and reported that Ms Prerad had “Post-traumatic symptoms in the right shoulder joint caused by confusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures”.

32. A report by Dr Tom Ecker of the ultrasound of Ms Prerad’s right shoulder in February 2010 concluded: “There is minor insertional tendenosis of the anterior third of the supraspinatus with mild overlying subdeltoid bursitis”.

33. The SSAT concluded that Dr Guirgis’ conclusion was not supported by Dr Ecker’s report.  I would make the same comments here as above.

    Adjustment Disorder

34. Dr Todorovic reports that the onset of Ms Prerad’s Adjustment Disorder was in November 2009 (after the second motor vehicle accident).  He prescribed Endep but, according to Ms Prerad, it did not help.  In January 2012, she saw a psychiatrist, Dr Dusan Kecmanovic, for the first time.  Dr Kecmanovic changed her medication to Avanza which Ms Prerad says she finds helpful.  She continues to see Dr Kecmanovic every three months.   

35. Given that Ms Prerad did not see a psychiatrist until after the claim period and, when she did, that a change in her medication brought some improvement, I find that her Adjustment Disorder was not treated and stabilised during the claim period. 

    CONCLUSION

36. I am satisfied that Ms Prerad’s back and shoulder conditions were treated and stabilised during the claim period.  I find that her Adjustment Disorder was not fully diagnosed, treated and stabilised during the claim period.

37. For the reasons set out above, I do not think it possible to conclude what rating Ms Prerad’s back and shoulder conditions should be assigned on the relevant Tables. 

38. As Ms Prerad had not undertaken a program of support for 18 months in the three years immediately prior to her application for DSP, she did not have a continuing inability to work at that time and she did not qualify for DSP.

39. I affirm the decision under review.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

.........[sgd]...............................................................

Associate

Dated  6 December 2012

Date(s) of hearing	30 November 2012
Applicant	In person
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch