Tamara Levchenko and Secretary, Department of Social Services
[2015] AATA 20
•16 January 2015
[2015] AATA 20
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0950
Re
Tamara Levchenko
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date 16 January 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS – social security – disability support pension – osteoarthritis – hypertension – cerebrovascular disease – obesity – psychological condition – whether conditions fully diagnosed, treated and stabilised – whether conditions rated 20 or more points – decision under review affirmed
Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
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 for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J Toohey
Background
Ms Tamara Levchenko suffers from disabilities including back pain due to an osteoporotic fracture of her back, osteoarthritis in her knees and ankles, hypertension and obesity. She also has weakness in her right side of her face and her right arm and hand as the result of a stroke in 2007, and she suffers from depression and anxiety.
On 13 June 2013, Ms Levchenko applied for a Disability Support Pension (DSP). Centrelink decided she did not qualify for DSP. In February 2014, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.
Relevant legislation
To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, these are:
(a)a physical, intellectual or psychiatric impairment, or impairments, which is rated at 20 or more points according to the Impairment Tables in the Act; and
(b)a continuing inability to work as defined in the Act.
Ms Levchenko had to satisfy these criteria on 13 June 2013 when she applied for DSP, or within 13 weeks, that is by 12 September 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.
THE IMPAIRMENT TABLES
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. They comprise 15 Tables by which the functional impact of impairment is rated as nil, mild, moderate, severe or extreme, corresponding to nil, five, ten, twenty and thirty points. Ratings are given according to descriptors, some or all of which must be satisfied, depending on the Table.
A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a). Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and is fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).
Fully stabilised means either:
(i) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(ii) the person has not undertaken reasonable treatment for the condition and:
i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Continuing inability to work
Unless a person has a single impairment that rates 20 points or more (meaning it is severe), he or she must have actively participated in a program of support for 18 months in the three years immediately before making their claim for DSP: s 94 of the Act and the Social Security (Requirements and guidelines -Active Participation for Disability Support Pension) Determination 2011.
When she applied for DSP in June 2013, Ms Levchenko had completed approximately 12 months of a program of support. As set out below, I am not satisfied that any one of her conditions had a rating of 20 points or more during the claim period. This means that she did not have a continuing inability to work and her claim cannot succeed.
Did Ms Levchenko’s impairments rate 20 or more points during the claim period?
Ms Levchenko has provided medical reports from her general practitioners, Dr Michael Knapik and Dr Allan Laughlin, and reports of imaging studies. She has also provided a brief handwritten report dated 21 February 2014 from orthopaedic surgeon, Dr Kai Lee, which refers to a rating of “about 10% [whole person impairment]” for her “orthopaedic problem” and a rating of 20% for her combined conditions. Because the report was prepared for the purposes of a workers compensation claim and provides no further information, it does not assist me.
Centrelink has provided documents including a copy of Ms Levchenko’s claim for DSP and reports of Job Capacity Assessments on 25 July 2013 and 6 August 2014.
Osteoarthritis of back and legs
Centrelink accepts, and I am satisfied, that the degenerative osteoarthritis in Ms Levchenko’s legs and back was fully diagnosed, treated and stabilised during the claim period. Her condition has been confirmed by x-rays and a bone scan, and Dr Knapik has confirmed that, given its degenerative nature, it is unlikely to improve significantly. He has advised that, while surgery and cortisone injections might help to manage some pain symptoms, Ms Levchenko is likely to have ongoing symptoms in the joints of her lower limbs.
Ms Levchenko has had back pain for many years. X-rays in 2013, when she had an episode of acute back pain, showed degenerative changes consistent with “developmental or old insufficiency type fractures”. She was treated with cortisone injections, exercises and hydrotherapy, and she continues to take Panadeine Forte and Voltaren for the pain.
Ms Levchenko has difficulty getting up from a seated position and standing for more than about 20 minutes. She can bend forward to pick up a light object in front of her but needs to hold on to something in order to pick up an object from the floor. She uses the shopping trolley to lean on in the supermarket. She can walk 200 metres to the local shops and back again but often needs a walking stick; she can sometimes walk further to the local train station, and tries to walk one to two kilometres for exercise. She can climb only three or four steps before she needs to rest. She can drive but no more than five to ten kilometres. She manages dressing with some difficulty. She has difficulty with over head actions such as hanging out washing and putting groceries into a cupboard. She can turn her head from side to side but experiences pain.
Table 4 (Spinal Function) is used to assess impairments of the back. Centrelink says Ms Levchenko’s impairment is mild and should be rated five points, and I agree. Table 4 provides there is mild functional impact on activities involving spinal function if a person has some difficulty in:
(a)activities over head height (e.g. activities requiring the person to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
I am not satisfied that Ms Levchenko’s back condition rates ten points (or moderate functional impact). A rating of ten points applies if a person is able to sit in or drive a car for at least 30 minutes and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Ms Levchenko does not claim, and the evidence does not claim, that her back condition meets the criteria in Table 4 for severe functional impact (20 points).
Table 3 (Lower Limb Function) is used to assess impairments of the lower limbs. Centrelink says Ms Levchenko’s impairment was mild during the claim period and should be rated five points, and I agree. I am satisfied that Ms Levchenko has some difficulty walking to local facilities, some difficulty walking around a supermarket without arrest, and some difficulty climbing stairs. I am also satisfied that she can mobilise effectively but often needs to use a walking stick.
I am not satisfied that Ms Levchenko meets the criteria for moderate functional impact (10 points). For this rating to apply, she must be unable to walk far outside her home and has to drive or get other transport instead, be an able to use stairs or steps without assistance, or be unable to stand for more than five minutes.
I find that Ms Levchenko’s back and lower limb conditions each rates five points on the Impairment Tables.
Hypertension
Ms Levchenko has taken medication for high blood pressure for approximately seven years. She checks her blood pressure each day.She says she gets dizziness and headaches but her blood pressure is under control.
There is no medical evidence to suggest that Ms Levchenko’s blood pressure has any functional impact on her activities. I am satisfied that it should be assigned nil points
Stroke and cerebrovascular disease
Ms Levchenko suffered a stroke in 2007. It has left her with right sided weakness, particularly in her face and upper body. Centrelink accepts, and I am satisfied based on reports from her general practitioners, that this condition was fully diagnosed, treated and stabilised during the claim period. Centrelink says, however, that it should be assigned a rating of nil points.
Table 2 (Upper Limb Function) is used to assess impairments of the upper limbs. It provides that a rating of nil points should be assigned where there is no functional impact on activities using hands or arms, meaning that a person “can pick up, handle, manipulate and use most object encountered on a daily basis without difficulty”.
A rating of five points is assigned where there is mild functional impact, meaning that the person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects.
Ms Levchenko can manage most daily activities requiring the use of her hands and arms. She has some difficulty lifting heavy items such as bags of shopping, and requires some help. She says she is slow handling very small objects such as coins, and activities such as doing up buttons take her longer than they used to. She can reach up or out to pick up objects and can use a pen to write.
I accept that Ms Levchenko has some difficulty with some activities as a result of her stroke, but a rating of mild (five points) requires her to have some difficulty with most of the activities listed in the Table. Centrelink says, and I agree, that this condition has no functional impact according to Table 2, and rates nil points.
Obesity
Ms Levchenko was overweight during the claim period and still is. She says she has always been overweight. She saw a dietician in mid to late 2013 but has not been referred to an obesity clinic or undertaken any formal treatment. She has tried Weight Watchers but found it not particularly helpful. Centrelink says this condition cannot be considered fully diagnosed, treated and stabilised.
The fact that Ms Levchenko has been overweight for many years would probably make it difficult for her to reduce her weight now. Even though she has not undertaken any formal weight loss program, it is likely that her condition is treated, in the sense that she has tried a number of options for losing weight, and that it is stabilised.
It is difficult to assign a rating to Ms Levchenko’s obesity on its own. She is overweight but not to such an extent that it prevents her from performing most activities. It likely affects her capacity for physical exertion and her stamina but I accept the Secretary’s contention that it should not be rated separately under Table 1 (Functions requiring Physical Exertion and Stamina). To the extent that it may affect her back and legs, their function has been assessed already.
Depression and anxiety
Ms Levchenko has experienced a number of very traumatic events during her life. She first saw a psychiatrist in 1995 after a particularly traumatic incident. She saw the psychiatrist for two or three years then stopped when she felt it was no longer helping her.
At some point in 2014, Dr Knapik referred Ms Levchenko to a psychiatrist under a Mental Health Plan which provides for a number of free sessions. In a report dated 11 June 2014, he stated that Ms Levchenko suffered from depression and anxiety. Ms Levchenko saw the psychiatrist for approximately ten sessions.
Later, in September 2014, Ms Levchenko started seeing a clinical psychologist who has provided a report dated 8 January 2015 stating that Ms Levchenko suffers from depression, anxiety and stress. Ms Levchenko continues to see the psychologist.
The introduction to the Table 5 (Mental Health Function) states that, in order for a mental health condition to be considered fully diagnosed:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)
Although it is not clear from the psychologist’s report that she is a clinical psychologist, I accept that she is. There is no report from the psychiatrist whom Ms Levchenko saw earlier in 2014 but it is clear that, during the claim period, her condition had not been diagnosed, and nor had it been treated and stabilised. This means it cannot be given an impairment rating.
Other conditions
Ms Levchenko has a hernia for which she requires surgery that she says she cannot afford. It makes it difficult for her to lift heavy objects. It is not clear why she is not in a waiting list for surgery at a public hospital. From the information before me, I am not satisfied that this condition was fully treated and stabilised during the claim period.
In 2010, Ms Levchenko underwent an appendectomy. In 2011, she underwent a hysterectomy. She still suffers minor pain and discomfort from time to time which is relieved by Panadeine Forte. These conditions were fully treated and stabilised during the claim period but neither has any functional impact on her activities.
Conclusion
For these reasons, I find that Ms Levchenko’s conditions rated ten points during the claim period. As this means her claim must fail, it is not necessary also to consider whether she had a continuing inability to work during the claim period.
Ms Levchenko is entitled to apply for DSP again at any time that she believes she qualifies for the payment.
41. I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 16 January 2015
Date(s) of hearing
13 January 2015
Representatives for the Applicant
Self-represented
Representatives for the Respondent
Mr Steven Davidson, Government Lawyer
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