Radojka Jovicic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 82
[2013] AATA 82
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2181
Re
Radojka Jovicic
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 20 February 2013 Place Sydney The Tribunal affirms the decision under review.
............[sgd]............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – epilepsy, osteoarthritis of the cervical and lumbar spine, chronic fatigue syndrome, ulcer – whether conditions treated and stabilised – whether applicant had continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94 and Sch 1B
Social Security (Administration) Act 1999 s 42 and Sch 2
REASONS FOR DECISION
Senior Member J F Toohey
20 February 2013
BACKGROUND
Ms Radojka Jovicic suffers from major epilepsy, osteoarthritis of the cervical and lumbar spine, chronic fatigue syndrome and an ulcer. She has also been diagnosed with anxiety and depression, and there are references in medical reports to her suffering from post traumatic stress disorder (PTSD). Ms Jovicic seeks review of a decision to refuse her application for a disability support pension (DSP).
To qualify for DSP, Ms Jovicic must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, she must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a “continuing inability to work” as defined in the Act.
The respondent accepts that Ms Jovicic suffers from impairments within the meaning of the Act but says they do not attract the necessary rating and, further, that Ms Jovicic does not have a continuing inability to work.
Ms Jovicic applied for DSP on 7 July 2011. For her application to succeed, she had to qualify for the pension on, or within 13 weeks of, that date: s 42 and Sch 2 of the Social Security (Administration) Act 1999.
THE ISSUE
I have to decide whether, during the relevant period, being from 7 July 2011 to 6 October 2011, Ms Jovicic qualified for DSP. That requires me to determine in relation to each of her conditions:
(i)whether it could be assigned a rating on the Impairment Tables during the relevant period; and
(ii)if so, what rating it should be assigned.
If I am satisfied that Ms Jovicic’s impairments rated 20 points or more, I then have to determine whether she also had a continuing inability to work.
THE IMPAIRMENT TABLES
The Impairment Tables (the Tables) is a legislative instrument determined by the Minister under s 26 of the Act. They are used to assess the effect of an impairment on a person’s ability to work.
In relation to rating an impairment, the Introduction to the Tables states:
4A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented diagnosed condition which has been investigated, treated and stabilised …
5The condition must be considered to be permanent. Once the 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.
6In order to assess whether it 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.
In this context reasonable treatment is taken to be:
treatment is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and whether treatment or procedure is of the type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects that are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
CAN RATINGS BE ASSIGNED TO MS JOVICIC’S IMPAIRMENTS?
Ms Jovicic was born in Croatia. She and her husband and son came to Australia as refugees in 2000. She and her husband are separated, but live under the same roof with their son. The stress that her husband’s drinking and abuse cause her is documented in letters and reports from her doctors supporting her urgent need for her own accommodation. Until suitable accommodation becomes available, she continues to live in circumstances that make recovery very difficult indeed.
Evidence about Ms Jovicic’s conditions is found in:
(i)reports from her treating doctors and allied health professionals;
(ii)radiological scans and reports;
(iii)a Job Capacity Assessment Report undertaken by a Job Capacity Assessor for Centrelink on 14 July 2011; and
(iv)extensive written submissions, and oral evidence, from Ms Jovicic.
In her claim for DSP, Ms Jovicic listed her disabilities as follows: ulcer (anemia); chronic fatigue syndrome (iron deficiency with vitamin B deficiency); epilepsy; depression; chronic neck and back pain; tension; stress; difficulty in sleeping; osteoarthritis. She stated she was not capable of lifting or carrying heavy things and sometimes needed help; she could not concentrate well; she was depressed and under stress and pressure every day; and she was tired because of her “state and unsafe life and uncertain future”.
According to a report on 28 November 2006 from Ms Jovicic’s then general practitioner, Dr Ibrahim, she was suffering from major depressive illness, chronic neck and low back pain, grand mal epilepsy, and chronic fatigue syndrome due to iron deficiency and vitamin B12 deficiency.
On 2 February 2010, Dr Peter Konc, Ms Jovicic’s chiropractor, completed a medical assessment form in connection with her application for housing assistance. He identified her medical conditions as headaches, right brachial neuralgia, lower back pain and right sciatica, and depression and anxiety, the overall impact of which was “severe”.
Dr Al-Shelh, Ms Jovicic’s general practitioner since February 2010, provided a medical report in support of her application. He identified her conditions as epilepsy major; osteoarthritis, cervical and lumbar; and chronic fatigue syndrome. In a medical certificate on 13 January 2012, he listed the same conditions as affecting her capacity for work or study. In a certificate dated 30 July 2012, he identified her conditions as epilepsy, peptic ulcer, osteoarthritis, depression, chronic fatigue syndrome and PTSD. (This is the first reference in his reports to PTSD).
There appears to be considerable overlap in the symptoms and effects of Ms Jovicic’s conditions, and she describes them as largely interrelated, and stemming from a fall she had in about 2006 brought on by her blood disorder. She attributes her PTSD to her experiences during the war in the former Yugoslavia, and her psychological condition generally to her present living conditions. I will deal with her conditions in turn although, as I say, there is some overlap between them.
Grand mal epilepsy
Dr Al-Shelh reported in July 2011 that Ms Jovicic had had major epilepsy since 1975; it had a “high risk of recurrence”; she suffered from headaches and “the effects of the medication” (which he did not specify); her epilepsy affected her cognition and led to poor concentration. He reported it was likely to persist for more than 24 months and no improvement was expected; she had seen a neurologist; her epilepsy was treated with Tegretol and Phenobarbitone, and no change in treatment was planned.
Ms Jovicic says Dr Al-Shelh’s report is incorrect inasmuch as she has suffered from epilepsy since 1966, when she was four years old, and has taken medication for it since then. I accept what she says.
Ms Jovicic has seen Dr Suzanne Hodgkinson, a neurologist at Liverpool Hospital, for her epilepsy since she arrived in Australia. A brief report from Dr Hodgkinson confirms Ms Jovicic has “a history of seizures”. In a report dated 7 February 2013, Dr Hodgkinson stated that Ms Jovicic was feeling very stressed on account of her housing situation which was causing “great feelings of despair”. Partly because of this, Dr Hodgkinson said, Ms Jovicic “is having some seizures and generally feels unable to work”. She concluded that, with the diagnoses of “seizures, post traumatic stress disorders [sic] and extreme amount of concern”, it was very difficult to see how her health would improve until her situation was resolved.
The respondent accepts that Ms Jovicic’s major epilepsy has been diagnosed, treated and is stabilised, and can be assigned a rating. Given its long history, including consistent treatment with appropriate medication and supervision by a specialist, I agree with that assessment.
Rating
There is no Impairment Table specifically dealing with epilepsy. It is dealt with under Table 21: impairments that are “intermittent but continuing that remain asymptomatic between discrete episodes of impairment”. If symptoms are continuous, Table 20 (Miscellaneous conditions) should be used. Ms Jovicic does not claim, and there is no evidence to suggest, that her seizures are continuous. I am satisfied that Table 21 is appropriate in her case.
Ratings under Table 21 are assigned by reference to the severity, duration and frequency of attacks. It has not been easy to gather information about each of these from Ms Jovicic.
The Job Capacity Assessor reported she had spent “much time” trying to ascertain from Ms Jovicic how many seizures she had had in the previous six months but Ms Jovicic said she could not remember. The assessor asked if anyone else at home could help but Ms Jovicic said the seizures occur when she is asleep, and her son could not help.
Giving evidence before the Tribunal, Ms Jovicic confirmed her seizures mostly occur while she is asleep. She said she knows she has had one when she wakes with a headache and cramps, although occasionally she will wake during a seizure. They rarely occur while she is awake, and rarely during the day unless she has fallen asleep. They occur on average once a week. Her son, who accompanied her to the hearing, said he has observed them last from five to ten minutes while she is asleep.
Ms Jovicic gave evidence that the seizures cause headaches and cramps and, the following day, she cannot function as well as she normally can. She can only do lighter chores around the house and her son has to help her. On other days, she gets herself up, showers and dresses, makes her breakfast or goes out for breakfast, and walks for exercise. She can cook, shop and do washing, but does not do anything strenuous. She said she “is not disabled” by her condition but does not have the strength to do things thoroughly and often needs help from her son. I accept her evidence.
Table 21.1 measures the level of severity of intermittent attacks as follows:
Level Criteria NIL Minor symptoms which are easily tolerated. ONE Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in some activities. TWO More severe symptoms which are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self‑care is unaffected and independence is retained. THREE Loss of efficiency is discernible in many everyday activities. Some elements of self‑care are restricted but in most respects, independence is retained. Bed‑rest is often necessary during an attack. FOUR Major restrictions in many everyday activities. Capacity for self‑care is increasingly restricted, leading to partial dependence on others. FIVE Most everyday activities are prevented. Dependent on others for many kinds of self‑care. Able to be maintained at home only with considerable difficulty, or hospital admission is required. SIX Total incapacity. Unconscious or delirious. Self‑care is impossible.
On the basis of Ms Jovicic’s evidence, the severity of her seizures would appear to be most appropriately rated TWO or THREE. Given that they occur at night, it is difficult to say that bed-rest is often necessary during an attack, as required for a rating of THREE, but nor can it be excluded. However, as seen below, the final rating would be the same whether the degree of severity is rated TWO or THREE.
Table 21.2 measures the duration of intermittent attacks as follows:
Description
Duration
Transient
Lasting up to and including five minutes
Short
Lasting more than five minutes but less than 30 minutes.
Medium
Lasting from 30 minutes to four hours.
Prolonged
Lasting more than four hours.
On the basis of the evidence given by Ms Jovicic’s son, which I accept, her seizures are of Short duration.
Table 21.3 grades the severity of attacks as follows:
Description
Severity Level
0
1
2
3
4
5
6
Transient
A
A
A
B
C
C
F
Short
A
A
C
C
D
E
H
Medium
A
B
C
D
E
H
I
Prolonged
A
C
D
F
G
I
J
A rating is obtained using Table 21.3 and Table 21.4: determine the intermittent grading code appropriate to the estimated severity and duration from Table 21.3; and make the rating appropriate to the intermittent grading code and frequency from Table 21.4.
Applying Table 21.3, a grading of C is appropriate to a rating of TWO and THREE under Table 21.1.
Finally, Table 21.4 assigns a rating according to the frequency of attacks as follows:
Frequency (Affected days/year)
2+
5+
10+
20+
40+
100+
Intermittent Grading Code
Rating
A
-
-
-
-
-
-
B
-
-
-
-
-
5
C
-
-
-
-
5
10
D
-
-
-
5
10
10
E
-
-
-
5
10
30
F
‑
‑
5
5
10
30
G
‑
‑
5
10
20
30
H
‑
‑
5
10
30
40
I
‑
5
10
30
40
40
J
5
10
20
40
40
40
On the basis of Ms Jovicic’s evidence that her seizures occur on average once a week, which I accept, her impairment is rated 5 points.
The respondent contends that none of Ms Jovicic’s remaining conditions has been fully diagnosed, treated and stabilised and so none can be assigned a rating. For the reasons which follow, I agree.
Osteoarthritis of the cervical and lumbar spine
Dr Ibrahim reported in November 2006 that Ms Jovicic was suffering chronic neck and low back pain. A report of an ultrasound of her lumbar spine in July 2006 showed degenerative changes and disc bulges.
Reports from Dr Peter Konc, chiropractor, show he has treated Ms Jovicic since 2006. In a letter dated 19 December 2006, he stated he had been treating her for neck and back pain since August 2006. A letter dated 2 February 2010 refers to her chronic neck and lower back problem. Receipts for consultations show that she has attended on him, on average once a month, since 2006.
In July 2011, Dr Al-Shelh reported that Ms Jovicic’s osteoarthritis had its onset in 2010 and was diagnosed in 2010. It is not clear why he assigned that date, and it may be that it reflects when he started seeing Ms Jovicic. The evidence from Dr Konc makes clear, and I am satisfied, that Ms Jovicic’s osteoarthritis was diagnosed in 2006, if not earlier.
Dr Al-Shelh reported in July 2011 that Ms Jovicic had neck and back pain daily, even at night; past and current treatment was Panadol Osteo, and no change in treatment was planned; it was likely to persist for more than 24 months and would remain unchanged.
Ms Jovicic gave evidence that she takes Panadol Osteo daily. In February 2010, Dr Konc reported that she needed to manage her chronic neck and back pain through regular exercises based on active resistance, which entailed “a multi-purpose gym apparatus/equipment that she can access on daily bases and that she can use [a] number of times throughout the day and not be exposed to excessive climatic conditions”. He wrote that she had been advised to set up a “separate room totally dedicate and suited for her exercise program”.
Ms Jovicic gave evidence that she walks to help her back pain, but that her doctor had prohibited exercising for her back. Perhaps she misunderstood what she was told, because Dr Konc’s advice is clear that exercise is recommended. However, I accept that Ms Jovivic’s current living arrangements and financial circumstances make such a set up impracticable. As it is not feasible and accessible, it is not reasonable treatment for the purposes of the Impairment Tables.
Ms Jovicic gave evidence that Dr Renata Abraszko, a spinal surgeon to whom she was referred approximately 12 months ago, has referred her to the Department of Pain Medicine at Liverpool Hospital, and she is to attend there in March 2013. A letter from the Hospital confirms her referral and describes its service as “a multidisciplinary approach to pain management, which may include medical, physiotherapy, occupational therapy, psychology and nursing inputs [which] has proved to be effective in assisting those with persistent pain”.
Ms Jovicic told the Tribunal that treatment at the Hospital might ease her pain but it would not mean her spine would be “returned to her”.
Given that Ms Jovicic was not referred to Dr Abraszko until some time after the relevant period (7 July to 6 October 2011), and that she is still to have treatment for her neck and back, her osteoarthritis was not treated and fully stabilised for the purposes of the Impairment Tables at the relevant time. It follows that it cannot be assigned a rating.
Post traumatic stress disorder; anxiety and depression
Ms Jovicic’s psychological or psychiatric condition is described in different ways in medical reports.
The first recorded reference is by Dr Ibrahim in 2006 who stated Ms Jovicic was suffering from Major Depressive Disorder. In her application for DSP, Ms Jovicic stated she was suffering from depression. She also states that she has PTSD as a result of her experiences in the war in Yugoslavia.
I have no reason to doubt the devastating effects the war could have had on Ms Jovicic, but it is not clear that she has in fact been diagnosed with PTSD. There are two references in the medical reports to PTSD. One is in Dr Al-Shelh’s certificate dated 13 January 2012 (referred to at paragraph 14 above). The other is in Dr Hodgkinson’s letter dated 7 February 2013 (referred to at paragraph 18 above) in which she refers to “the diagnosis of seizures, post traumatic stress disorders [sic] and extreme amount of concern”.
Ms Jovicic maintains that Dr Hodgkinson, whom she has seen for many years, knows about her PTSD and “is following the situation”. It is clear from her letters that Dr Hodgkinson is well aware of the very difficult circumstances in which Ms Jovicic lives, and the continuing stress and anxiety they cause. The diagnosis of PTSD is less clear. In her letter dated 7 February 2013, Dr Hodgkinson writes that “with the diagnosis of seizures, post traumatic stress disorders [sic] and extreme amount of concern” she is living under, it is difficult to see how Ms Jovicic’s health can improve. Dr Hodgkinson is a neurologist. It is not clear whether she has made the diagnosis of PTSD herself, or has relied on another specialist, or if Ms Jovicic has reported the diagnosis to her.
The particular label for Ms Jovicic’s condition is not important here because, however it is described, Ms Jovicic gave evidence that the first time she saw anyone for treatment for her psychological condition was in May 2012 when she was referred to Lubica Vracar, a psychologist. A letter from Ms Vracar dated 1 July 2012 confirms this date, and confirms that Ms Jovicic had seen her twice and been diagnosed with anxiety and depression. Ms Jovicic gave evidence that, after a third session, Ms Vracar said she could not work with her because she had too many problems. She has not seen anyone else for treatment, and she does not take medication. She maintains that she sees Dr Hodgkinson for treatment for her PTSD but nothing in Dr Hodgkinson’s reports refers to treatment, which is not surprising given her field of expertise.
The Job Capacity Assessor recorded in July 2011 in relation to PTSD that Ms Jovicic said she had not seen a counsellor and had not taken any medication for her condition. I take it that includes the Major Depressive Disorder referred to by Dr Ibrahim in 2006.
Given that Ms Jovicic first sought treatment for her psychological condition in mid-2012, well after the relevant period, I find her condition was not treated and stabilised at the relevant time and cannot be assigned a rating.
Chronic fatigue syndrome
Dr Ibrahim reported on 28 November 2006 that Ms Jovicic was suffering from chronic fatigue syndrome due to iron and vitamin B12 deficiencies.
Dr Al-Shelh reported in July 2011 (under “any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”) that Ms Jovicic suffered from chronic fatigue syndrome; treatment consisted of Panadol Osteo; significant improvement was not expected; it affected her “endurance”. The reference to treatment with Panadol Osteo, which is for pain associated with osteoarthritis, cannot be correct.
There appears to be an overlap between the symptoms and treatment of Ms Jovicic’s chronic fatigue syndrome and ulcer. She describes her chronic fatigue syndrome as originating from her ulcer, from which she lost blood, leading to loss of muscle function. She gave evidence that its effect is that the muscles in her neck and throughout her body become cramped, and her limbs become twisted.
It is not clear what, if any, treatment Ms Jovicic has had for chronic fatigue syndrome. She gave evidence that she has not taken any medication specifically for the condition, and it is part of the reason she is going to Liverpool Hospital in March.
Ulcer
The Job Capacity Assessor noted in July 2011 that Ms Jovicic reported an ulcer which was “currently under investigation”; she reported having been hospitalised for this condition; she did not report any medications for it.
The Authorised Review Officer who reviewed the original decision to reject Ms Jovicic’s claim for DSP noted that Ms Jovicic told her that her ulcer this was currently under investigation and she was not talking any medication for it.
An Employment Service Assessment report conducted for Centrelink on 10 February 2012 recorded that Ms Jovicic reported she had attended Liverpool Hospital for this condition, and that she was required to have vitamin B injections and manage her diet.
Ms Jovicic gave evidence, which I accept, that both Dr Ibrahim and Dr Al-Shelh have given her vitamin B12 injections for her iron deficiency resulting from blood loss. In a letter to Centrelink commenting at length about the Job Capacity Assessor’s report, Ms Jovicic stated she has never refused to have treatment, but she did not have time to continue it because of “housing and Centrelink were taking [her] time”.
Given that investigation and treatment of Ms Jovicic’s chronic fatigue syndrome, blood loss, and iron and vitamin B12 deficiency are continuing, I find that neither condition was fully investigated, treated and stabilised at the relevant time. It follows that they cannot be assigned ratings on the Impairment Tables.
CONCLUSION
I find on the evidence before me, that Ms Jovicic’s impairment rating at the relevant time, being 7 July 2011 to 6 October 2011, was five points. As this is less than the necessary 20 points, her claim cannot succeed. It follows that it is not necessary to determine whether she also had a continuing inability to work.
I affirm the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ........[sgd]................................................................
Associate
Dated 20 February 2013
Date(s) of hearing 13 February 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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