Spasa Petrovska and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 503
•2 August 2012
[2012] AATA 503
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1135
Re
Spasa Petrovska
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 2 August 2012 Place Sydney The decision under review is affirmed.
............[sgd]............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – multiple medical conditions – whether applicant qualified for disability support pension – whether conditions treated and stabilised – if treated and stabilised, what impairment rating – only one condition treated and stabilised – rating of ten points- other conditions not treated and stabilised at relevant time – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94 and Schedule 1B
Social Security (Administration) Act 1999 ss 41 and 42; Schedule 2, cl 4 (1)
REASONS FOR DECISION
Senior Member J F Toohey
2 August 2012
BACKGROUND
Ms Spasa Petrovska was born in Macedonia and came to Australia in 2006 to live with her daughters following the death of her husband. She suffers from multiple medical conditions. She has dysplasia of her left hip, lower back pain from a disc prolapse, diabetes, tendonitis of the left shoulder, degenerative changes in her cervical spine, asthma and kidney stones. She also suffers from depression and related psychological conditions. She seeks review of a decision that she does not qualify for a disability support pension (DSP).
To qualify for DSP, Ms Petrovska must satisfy the criteria in s 94 of the Social Security Act 1991 (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 Schedule 1B the Act; and
(ii)a “continuing inability to work” as defined in the Act.
The respondent does not dispute that Ms Petrovska suffers from impairments but says they do not attract the necessary rating and, further, that she does not have a continuing inability to work.
Ms Petrovska applied for DSP on 1 July 2011. If she satisfied s 94 of the Act at the date of her application or within the following 13 weeks, she will qualify for the pension: Social Security (Administration) Act 1999, ss 41, 42; sch 2 cl 4 (1).
THE ISSUE
I have to decide whether Ms Petrovska qualified for a DSP at the relevant time.
THE IMPAIRMENT TABLES
The Impairment Tables are used to assess the effects of a person’s impairments on his or her ability to perform work-related tasks. The Introduction to Impairment Tables sets out the following principles:
·To be assigned a rating on the Impairment Tables, a condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”. It must be permanent, meaning that it will more likely than not persist for the foreseeable future which is taken to mean for more than two years. To be stabilised means it is unlikely there will be significant functional improvement, with or without reasonable treatment, within the next two years.
·In order to assess whether a condition is fully diagnosed, treated and stabilised, it is necessary to consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and 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 that is feasible and accessible, that can reliably be expected to lead to substantial improvement, and that is of the type regularly undertaken or performed, with a high success rate and low risk to the patient.
MS PETROVSKA’S IMPAIRMENTS
Left hip dysplasia
Reports from Ms Petrovska’s general practitioner, Dr Mohan, show that she has had this condition since she was a child. It causes her to walk with a limp and she cannot walk any distance. She underwent three operations as a child in an attempt to improve the condition which is now managed with painkilling medication. It is permanent and is expected to deteriorate.
The respondent accepts this condition is permanent and contends that it is appropriately rated TEN points on Impairment Table 4 which requires:
Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
Ms Petrovska gave evidence that she has trouble standing for any length of time. She can go shopping with her daughters but cannot be on her feet for more than 15 to 30 minutes without sitting down. She can catch public transport with her daughters. She has monthly injections to relieve her pain.
A rating of 20 points requires major interference with walking and one or more of the other activities described. I agree that this condition should be rated TEN points on the basis that it cause moderate interference with the activities described.
Lower back pain
Dr Mohan confirms that Ms Petrovska has a disc protrusion at the L5-S1 level with impingement of the nerve root on the left side. Onset was in October 2009 and the diagnosis was confirmed in March 2010. It causes Ms Petrovska continuous pain and she is unable to “sit/stand/move” or “lift or push or pull [objects]”. Treatment at the date of his report on 29 June 2011 was anti-inflammatory medication, specifically Panadeine Forte and Endone. He noted that she may need an operation and her condition is likely to deteriorate.
Ms Petrovska gave evidence that she has had physiotherapy several times for her back but she has stopped after advice from an orthopaedic specialist, whom she saw in June 2012. She agreed that Dr Mohan has suggested she may need surgery in future but does not know if or when this might be.
Ms Petrovska’s back condition clearly causes her a great deal of pain but, given Dr Mohan’s advice that she may require surgery, and that she has only recently seen a specialist, I find it was not treated and stabilised at the relevant time and so cannot be assigned an impairment rating.
Depression
Dr Mohan did not refer to any psychological condition in the reports he provided to Centrelink in support of Ms Petrovska’s application for DSP. However, there is evidence that she has suffered from severe depression since her husband’s death in 2005.
Ms Petrovska gave evidence that she first saw a psychologist in 2010 or 2011 but stopped seeing her after she recommended she see someone in Parramatta. In February 2012, she started seeing a psychologist who reported on 7 February 2012 that Ms Petrovska was unable to work due to her chronic pain, panic disorder with agoraphobia, depression, stress and grief and loss. She wrote that Ms Petrovska “has not acculturated to Australia and originally moved to Australia to be with her relatives due to her husband dying from lung cancer.”
More recently, Ms Petrovska has been seeing another psychologist who speaks Macedonian. She sees him weekly. In reports dated 11 April 2012, 7 May 2012 and 16 July 2102, he says Ms Petrovska’s “initial symptoms of bereavement evolved into Major Depressive Disorder, Chronic, Severe, Without Psychotic Features”. She would not be “mentally capable of accepting responsibility for any kind of formal employment, including voluntary work, for at least two years”. By July 2012, she had had ten sessions. She had shown “mild to moderate improvements, unstable”. The treatment plan was to have a break for two months during which time Ms Petrovska would “implement self-coping skills”; a review was planned for September 2012.
In evidence before the Tribunal, Ms Petrovska said she has recently been seeing a psychiatrist whom she saw for the first time in April 2012; she has seen him twice, and is to see him every six months.
Ms Petrovska clearly found the Tribunal hearing distressing and I have no doubt that she suffers from severe depression. It is not clear whether she was seeing a psychologist during the relevant period but, if she was, she stopped seeing that person and only resumed treatment in February 2012. She did not see a psychiatrist for treatment until very recently and is to continue seeing that person. I find that her condition was not treated and stabilised at the relevant time and cannot be assigned an impairment rating.
Right shoulder pain
Ms Petrovska injured her right shoulder at work in 2009. An ultrasound in November 2009 showed an appearance consistent with bicipital tenosynovitis. Ms Petrovska gave evidence that she has seen a physiotherapist for her shoulder and been given exercises to do. She does them as much as she can but the pain is always there. She also takes medication.
In his report in 2010, Dr Mohan noted she had tenosynovitis in the right shoulder; it had a moderate impact on her ability to function; significant improvement was expected. In June 2011, he noted that treatment was with analgesia; it still had a moderate impact on her ability to function but significant improvement was still expected.
The Centrelink job capacity assessor noted in July 2011 that Ms Petrovska reported restricted use of her right shoulder and difficulty doing tasks such as washing her hair and carrying objects. The assessor noted Dr Mohan’s statement that significant improvement was expected and assessed this condition as temporary and therefore not rateable on the Impairment Tables.
In April 2012, Ms Petrovska saw Dr T Mastroianni, a consultant occupational physician, for assessment in connection with her workers compensation claim. In a report dated 20 April 2012 to her solicitors, Dr Mastroianni reported that her right shoulder movements were “very restricted”. He noted she had had conservative treatment and that no further treatment was planned other than medication and physiotherapy. He considered her condition stabilised. He assessed her as having an impairment of her upper extremity of 16% which equated to 10% whole person impairment for workers compensation purposes. He assessed her as having 5% whole person impairment of her cervical spine.
Although Dr Mastroianni’s report indicates that Ms Petrovska’s shoulder condition has stabilised, it does not address this condition during the period in question and it uses a different method of assessment. In the absence of evidence other than Dr Mohan’s report, which Ms Petrovska does not dispute, I am not satisfied that her shoulder condition was treated and stabilised at the relevant time. It therefore cannot be assigned an impairment rating.
Neck pain
An x-ray of Ms Petrovska’s cervical spine in February 2010 showed mild degenerative changes. For reasons which are not clear, Dr Mohan did not refer to her neck condition in either of his reports. It is possible he considered her right shoulder and neck conditions as one and the same. In any event, the only evidence about it is the x-ray report.
Dr Mastroianni reported to Ms Petrovska’s solicitors in April 2012 that she had cervical spondylosis; she complained of neck pain which is “not constant but is brought on by movements generally”. He assessed her whole person impairment for workers compensation purposes as 5%.
The respondent contends that Ms Petrovska’s neck condition was not fully diagnosed at the relevant time, and I agree. There is no evidence about its diagnosis or prognosis at the relevant time. The first evidence of diagnosis is in Dr Petrovska’s report, well after the relevant period.
Diabetes
In his report dated 29 June 2011, Dr Mohan writes that Ms Petrovska has type 2 diabetes mellitus; treatment is with oral hypoglycaemics. He states it has a moderate impact on her ability to function, and significant improvement is expected.
Ms Petrovska told Centrelink’s job capacity assessor in July 2011 that her diabetes makes her feel sleepy and she needs to rest, she has low energy and feels weak and shaky in her legs and hands. At a hearing of the Social Security Appeals Tribunal in February 2012, she said she takes three types of medication and checks her blood sugar levels twice a day at home. She had recently been referred to a dietician. She has never seen a specialist.
Ms Petrovska gave evidence that her doctor has recently changed her medication; if it does not help, he might try other medication and, possibly, insulin injections.
On the basis that Ms Petrovska’s doctor is still trying different medication to treat her diabetes, and that he expects there to be significant improvement, I find it was not treated and stabilised at the relevant time and cannot be assigned an impairment rating.
Asthma
According to Dr Mohan’s report on 29 June 2011, Ms Petrovska’s asthma is treated with an inhaler; it has a mild to moderate impact on her ability to function, and significant improvement is expected.
Ms Petrovska started experiencing asthma in about 2010. It sometimes makes it difficult to breathe and to stand up. It can be triggered by smells.
On the basis that Dr Mohan expected Ms Petrovska’s asthma to improve significantly, I find it was not treated and stabilised at the relevant time and cannot be assigned an impairment rating.
Kidney stones
On 29 June 2011, Dr Mohan reported that Ms Petrovska’s kidney stones have a “mild” impact on her ability to function, and significant improvement is expected. He does not record any treatment. I note that, in a report dated 20 March 2010 in connection with an earlier claim for DSP, Dr Mohan wrote that no significant improvement was expected.
Ms Petrovska gave evidence that she takes medication to break up the kidney stones. After seeing a specialist, in July 2009 she underwent a procedure in hospital to break them up. They still cause her problems including severe pain when they move, and they sometimes make her vomit. She has severe pain intermittently, sometimes every few days, sometimes every few weeks. She does not know if any further treatment is planned.
As Dr Mohan expected in June 2011 that Ms Petrovska’s condition would improve significantly, it appears it was not treated and stabilised at the relevant time. However, he does not indicate any further planned treatment, and Ms Petrovska still has pain after having undergone surgery. Assuming it was treated and stabilised at the relevant time, her condition would be rated according to Table 21 in the Impairment Tables – Intermittent Conditions.
Table 21 involves a matrix comprising severity of symptoms, and frequency and duration of attacks. On the basis of Ms Petrovska’s evidence, her condition would rate, at its highest as TWO on Table 21.1 and Medium on Table 21.2, giving a severity level C (see Table 21.3). (I note this appears higher than Dr Mohan’s assessment of “mild” impact). Allowing that the attacks occur more than 20, but less than 40, times a year, her condition would be rated NIL points. Even if they occurred more than 40 times a year, they would attract at most FIVE points.
CONTINUING INABILITY TO WORK
A person has a continuing inability to work because of an impairment if it is, of itself, sufficient to prevent the person from working for a least 15 a week within the next two years even with support and training: s 94(2).
As Ms Petrovska’s impairments did not rate 20 or more points on the Impairment Tables, at the relevant time, she did not qualify for DSP. It is therefore not necessary to decide whether she had a continuing inability to work at that time.
CONCLUSION
Ms Petrovska clearly suffers from a number of medical conditions. Her psychological condition in particular appears to be quite debilitating. It is possible, going on Dr Mastroianni’s assessment, that her right shoulder condition might now be stabilised. However, on the evidence before me about her conditions during the period from 1 July 2011 to 30 July 2011, I am not satisfied that they attracted a rating of 20 points or more on the Impairment Tables. It follows that she did not qualify for DSP at that time.
I affirm the decision under review.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .......[sgd].................................................................
Associate
Dated 2 August 2012
Date(s) of hearing 31 July 2012 Applicant In person Solicitors for the Respondent Ms S Forrester, DHS Program Litigation & Review
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