Sumitra Balsara and Secretary, Department of Social Services
[2014] AATA 562
[2014] AATA 562
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5476
Re
Sumitra Balsara
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 13 August 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – disability support pension – no impairment rating possible – multiple medical conditions none of which are fully treated and stabilised – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Secondary Materials
Social Security (Tables for the assessment of work related impairment for disability support pension) determination 2011
Social Security – requirements and guidelines – active participation of disability support pension) Determination 2011 (POS Determination)
Guide for Social Security
Impairment Tables
REASONS FOR DECISION
Miss E A Shanahan, Member
13 August 2014
Mrs Balsara lodged a claim for the disability support pension (DSP) on 19 April 2013. The claim was rejected on the grounds that Mrs Balsara did not have an impairment rating of 20 points and was therefore not eligible for DSP. This decision was affirmed on internal review by an authorised review officer (ARO). Mrs Balsara sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 1 October 2013 the SSAT affirmed the ARO’s decision. In the SSAT decision an impairment rating of 10 points was made under the Social Security (Tables for the assessment of work related impairment for disability support pension) determination 2011 (the Impairment Tables). Mrs Balsara then lodged an application for a review of the SSAT decision by the Administrative Appeals Tribunal on 25 October 2013.
The hearing was conducted by telephone as Mrs Balsara was said to be too unwell to attend in person. Mrs Balsara was self-represented and Mr Tim de Uray, a solicitor, appeared on behalf of the Secretary, Department of Social Security (the Secretary). The respondent lodged documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) and various supplementary documents with the Tribunal.
BACKGROUND TO THE APPLICATION
Mrs Balsara, who is now 61 years old, worked until March 2012. She was employed as a laundry assistant in an aged care facility. There appears to have been some dispute between her and her employers and this matter was settled confidentially, subject to Mrs Balsara’s resignation. The latter occurred on 16 March 2012. Mrs Balsara lodged a DSP claim on 20 September 2012 but this did not proceed as she undertook a program of support in accordance with the requirements of the Social Security – requirements and guidelines – active participation of disability support pension) Determination 2011 (POS Determination).
The medical conditions founding her application were polymyalgia rheumatica, blindness in the left eye, cataract in the right eye and lower back pain due to degenerative changes. In addition, she suffers from insulin dependent diabetes mellitus (IDDM), hypertension and an anxiety disorder. These three conditions are said to be well controlled and have zero impact on her function according to her general practitioner Dr Kong Lim (T43). A report from Dr Lim dated 6 May 2013 included the diagnoses of osteoarthritis of the knees and a frozen shoulder as contributing to Mrs Balsara’s incapacity. The conditions were regarded as being permanent.
Mrs Balsara has undergone three job capacity assessments (JCA) and a very recent review of these JCAs based on the documentation. The dates of the JCAs were 7 May 2012, 11 June 2013 and 29 April 2014. None of the assessments considered her conditions to be fully diagnosed, treated and stabilised and therefore could not be assigned an impairment rating.
It was not until January 2013 that Mrs Balsara’s diffuse aches and pains of four years duration were assessed by Dr Tony Kostos, a rheumatologist. Dr Kostos made a diagnosis of polymyalgia rheumatica and noted the absence of any evidence of inflammatory arthritis. He diagnosed adhesive capsulitis in Mrs Balsara’s right shoulder, leading to what he termed a frozen shoulder. Dr Kostos attributed the right shoulder capsulitis as being secondary to Mrs Balsara’s insulin dependent diabetes. (Tribunal Note: This type of arthritis is common in patients with IDDM).
Dr Kostos prescribed prednisolone commencing at 5 milligrams per day, gradually increasing in dosage, depending on her tolerance. He expressed concern that the prednisolone might result in more variable blood sugars and impact on the control of her diabetes. He arranged to review Mrs Balsara in two months’ time. Dr Lim, Mrs Balsara’s general practitioner, arranged for her to undergo CT guided hydrodilatation of the right shoulder and an intra-articular injection of Celestone Chronodose, the latter being a form of cortisone used in the treatment of joint pathology. Once more Mrs Balsara was warned of the risk of her diabetes becoming unstable, although the Tribunal notes that Celestone Chronodose consists of two different forms of betamethasone one of which is soluble and the other barely soluble and therefore not absorbed into the circulation.
The radiologist who performed the procedure, Dr van der Merwe, reported that Mrs Balsara experienced virtually immediate relief of her shoulder symptoms as well as an improvement in the range of movement. A course of physiotherapy to the right shoulder joint was commenced in April 2013.
Mrs Balsara has attended the Eye and Ear Hospital for many years in relation to her eyes. She is almost blind in the left eye as a result of an injury to her eye in 1998. She suffers from glaucoma which is well controlled and has developed a cataract the right eye. She also attends the Ptosis clinic. Mrs Balsara was offered surgery for the cataract in her right eye once her blood sugars were better controlled. On 18 December 2013 Dr Elaine Choong requested that Dr Lim maintain her HbA1cc at 7 percent. HbA1cc is a blood test indicating diabetic control.
Mrs Balsara was changed to a different form of insulin and now uses Lantus twice daily, as well as oral Diabex and Amaryl. She states that her fasting blood sugar is in the vicinity of 7.9 millimoles and generally remains between 7 and 10.
In January 2014 and again in mid-June 2014, Dr Lim, the treating general practitioner, wrote in support of Mrs Balsara’s application for DSP. He stated that her polymyalgia rheumatica remains uncontrolled as she was not able to tolerate the prednisolone prescribed by Dr Kostos because it rendered her diabetes unstable.
At the time of the application for the DSP, Mrs Balsara’s claimed incapacitating conditions of polymyalgia rheumatica, right cataract and frozen right shoulder were all in the early stages of treatment and as such could not be assigned impairment ratings. Mrs Balsara’s diabetes was reported as being unstable in this period. Given that surgery was pending, the right-sided cataract could not be considered to be fully treated and stabilised.
Dr Richard Simpson, who has been treating Mrs Balsara for her diabetes for some 18 years, provided a report dated 14 June 2013 stating that her diabetes control is average with an HbA1c then of 8.1 percent.
In her evidence before the Tribunal, Mrs Balsara confirmed she was now having insulin injections twice daily but her medications were otherwise unchanged. She said that her blood sugars were running between 7 and 10 millimoles on daily testing and the maximum it has reached since she was put on Lantus was 13 millimoles per litre. She believes she has deteriorated considerably in that her skeletal aches and pains are more severe and her left leg pain has increased. She now uses a walking stick at all times.
When questioned by the Tribunal she admitted that she had not returned to see Dr Kostos as planned. She said this was because his fees were beyond her budget. Following the hydrodilatation and injection of Celestone into her right shoulder joint, Mrs Balsara states her blood glucose went to 26 millimoles per litre. She was not able to given any more details as to when this occurred. As a result, Mrs Balsara decided that she would not take the prednisolone and did not have the prescription filled. She also gave evidence that she had not seen Dr Simpson, her endocrinologist, as frequently as recommended. She had not seen him since 2012, but was due to see him in the near future.
Mrs Balsara was reviewed at the Eye and Ear Hospital on 18 June 2014 and was told that she was now sufficiently stabilised, in terms of her diabetes, to proceed to cataract extraction. She has refused to proceed as she believes surgical intervention could make her eyesight worse.
The nature of Mrs Balsara’s back pain and left knee pain is not clear to the Tribunal. The x-rays she had reveal only minor degenerative osteoarthritis in her facet joints of the back and in the patella of her left knee.
RELEVANT LEGISLATION
Qualifications for DSP are set out in s 94 of the Social Security Act 1991 (the Act):
94Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and...
The Tribunal is limited to the period in which it can review the decision by subclause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administrative Act) which limits this period to 13 weeks from the date of claim, that is, to 19 July 2013.
The Secretary has accepted that Mrs Balsara has actively participated in a program of support for at least 18 months.
SUBMISSIONS
The parties did not make formal submissions. The Secretary relied on his Statements of Facts and Contentions, which stated that Mrs Balsara did not satisfy s 94(1)(b) of the Act as her impairment did not attract a rating of 20 points under the Impairment Tables. The Secretary also submitted that s 94(1)(c) was not satisfied.
Mrs Balsara argued that she does satisfy the requirements of the DSP, although she does not appear to understand the reasons for past decisions.
TRIBUNAL’S DELIBERATIONS
The medical evidence before the Tribunal is that Mrs Balsara has been diagnosed with polymyalgia rheumatica, insulin dependent diabetes, frozen shoulder on the right side, blindness in the left eye and a cataract in the right eye. Therefore, Mrs Balsara satisfies s 94(1)(a) of the Act.
At the time she lodged her claim and for the 13 weeks thereafter, all these medical conditions were in the process of being further investigated and treated and none could be considered stabilised. It appears that her treating doctors were under the impression that she had, at least, taken a trial course of prednisolone for her polymyalgia rheumatic. However, it was her evidence to the Tribunal that she had never taken prednisolone. Nor did she return to see Dr Kostos for further treatment, assessment or investigation.
Mrs Balsara’s frozen shoulder is said to have responded well to local treatment. However, she states that it has deteriorated again and while her diabetes is now under much better control and at a sufficient level to allow her to proceed to cataract surgery, she has refused the treatment.
As there is no evidence that any of Mrs Balsara’s medical conditions were fully treated and stabilised at the time she lodged her application for DSP and for the 13 weeks thereafter, an impairment rating cannot be assigned and she does not satisfy the requirements of s 94(1)(b) of the Act.
Mrs Balsara has been advised to lodge a further claim for DSP if she believes her condition has deteriorated and she is able to support her belief with further medical evidence.
The Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty ‑eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd]........................................................................
Administrative Assistant
Dated 13 August 2014
Date of hearing 14 July 2014 Applicant In person Advocate for the Respondent Time de Uray - Department of Human Services
0
0
0