Tenaye Workneh and Secretary, Department of Social Services

[2014] AATA 64

[2014] AATA 64

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1755
Re	Tenaye Workneh
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey

Date of decision

Date of reasons

10 February 2014

11 February 2014

Place

Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple impairments – whether conditions fully diagnosed treated and stabilised – decision under review affirmed

LEGISLATION

Social Security Act 1991 s 94

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

SECONDARY MATERIAL

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member J F Toohey

BACKGROUND

1. Mrs Tenaye Workneh suffers from a number of medical conditions.  In May 2012, she applied for a Disability Support Pension (DSP).  She seeks review of a decision by the Social Security Appeals Tribunal (SSAT) that she did not qualify for the DSP.

2. These written reasons reflect reasons given orally at a hearing on 10 February 2014.  Mrs Workneh attended the hearing with her husband and spoke through an interpreter.

3. To qualify for DSP, Mrs Workneh 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.

4. A person must satisfy the criteria for DSP at the date of applying, or within 13 weeks of that date: s 42 and Sch 2 of the Social Security (Administration) Act 1999.  Mrs Workneh applied for the DSP on 14 May 2012, meaning the relevant period in her case is from 14 May 2012 to 13 August 2012.

5. For the following reasons, I am not satisfied that Mrs Workneh qualified for the DSP during the relevant period.

   THE IMPAIRMENT TABLES

6. The Impairment Tables are used to assess the impact of impairment on a person’s functional capacity.  For applications for DSP made after 1 January 2012, the Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Clause 6 of the Determination sets out how the Tables are to be applied.

7. An impairment rating can only be assigned if:

   (a)the condition causing that impairment is permanent; and

   (b)the impairment is more likely than not to persist for more than 2 years.

8. A condition is permanent for the purposes of the Impairment Tables if it has been fully diagnosed by an appropriately qualified medical practitioner; and it has been fully treated and fully stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years: cl 6(4).

9. In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

10. A condition is fully stabilised if:

    (a)either 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

    (b)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.

    MRS WORKNEH’S MEDICAL CONDITIONS

11. Mrs Workneh suffers from lumbar back pain, pain in her neck and shoulders, chest pain, a peptic ulcer, anaemia, painful knees, and depression and anxiety.  I am satisfied that each of her conditions is an impairment for the purposes of DSP.  I will deal with them in turn.    

    Lumbar back pain

12. Reports from Dr Vijay Maniam, orthopaedic surgeon, in November 2009 show that Mrs Workneh had been suffering from lumbar spine pain for 16 months since the birth of her third child; investigative tests showed she had “chronic muscular ligamentous strain of the lumbar spine with precipitation of degenerative disease”.  He had recommended attending a physiotherapist, continuing analgesics and anti-inflammatory medication.

13. On 13 May 2012, Mrs Workneh’s general practitioner, Dr Suri, provided a medical report in support of her claim for DSP.  She wrote that Mrs Workneh had “disc prolapse – lumbar spine” with left sciatica.  She wrote that current treatment comprised “precautions, medications and physiotherapy”, and future or planned treatment was a referral to a specialist.  The condition was likely to persist for more than 24 months and its effect on Mrs Workneh’s ability to function was uncertain.

14. In a further report on 24 January 2013, Dr Suri wrote that Mrs Workneh had “chronic low back pain (degenerative changes with disc prolapse multi levels); she was seeing a physiotherapist; planned or future treatment was a referral to a neurosurgeon; the condition was expected to last more than 24 months; the effect on her ability to function within the next two years was “uncertain”.

15. It is clear from Dr Maniam’s report, that Mrs Workneh has been suffering from pain in her lumbar spine for some years as a result of her degenerative condition.  However, it is also clear that her condition was not fully treated and stabilised during the relevant period because she was still to see a specialist.

16. At the hearing, Mrs Workneh said Dr Suri had recommended using hot water and ointment but, when her back became worse, on 21 November 2013 Dr Suri referred her to Dr Renata Albrasko, neurosurgeon.  Mrs Workneh said she had an appointment to see Dr Albrasko on 29 January 2014 but, when she arrived at the doctor’s room, she was told she had to pay $180 which she did not have on her.  She has a further appointment on 9 April 2014.

17. As Mrs Workneh’s lumbar spine condition was not fully treated and stabilised during the relevant period, it cannot be given an impairment rating.

    Shoulder and upper arm pain

18. On 30 November 2009, Dr Maniam reported that Mrs Workneh had “impingement in the left shoulder resulting in moderate bursitis”; there might be a need for subacromial bursal cortisone injection.  At the hearing, Mrs Workneh said she has regular injections and ultrasound treatments.

19. Mrs Workneh has had problems with her right shoulder for some time but, since a car accident in May 2013, she has had pain in both shoulders, worse in the left.  She has difficulty raising her right arm in particular.

20. Dr Suri did not mention shoulder problems or arm problems in her first report but, in her report in January 2013, she wrote that Mrs Workneh has left shoulder sub-deltoid bursitis.  She did not refer to any recommended or planned treatment.

21. At the hearing, Mrs Workneh said her doctor has told her she has nerve damage; it is worse since the car accident.  She said that, after she finishes her “other treatments” she might see a specialist.   

22. It is not clear from the information before me how Mrs Workneh’s bursitis affected her before and during the relevant period.  It does not appear that her upper arm pain has been fully diagnosed.  It is not clear whether it relates to her bursitis or is the result of the car accident.

23. I am not satisfied, on the information before me, that Mrs Workneh’s shoulder condition was fully treated and stabilised during the relevant period.  I am not satisfied, on the information before me, that Mrs Workneh’s upper arm condition was fully diagnosed, treated and stabilised during the relevant period.  This means they cannot be given an impairment rating.

    Neck pain

24. Dr Suri did not mention neck pain in her first report.  A report from Dr Alan Sacks, radiologist, on 14 September 2012 shows “no evidence of significant cervical spondylosis”.  In her second report, in January 2013, Dr Suri wrote that Mrs Workneh has cervical spondylitis with “multilevel disc prolapse”; the condition was expected to last more than 24 months and the effect on Mrs Workneh’s ability to function within the next two years was “uncertain”.  As to future or planned treatment, Dr Suri’s report appears to state “?? Neurosurgeon referral”

25. The information about the diagnosis of Mrs Workneh’s neck condition is not clear.  At the hearing, she said she had had problems with her neck since the car accident in May 2013 but the medical reports suggest it pre-dates the accident.   In any event, Dr Suri’s reports indicated that, during the relevant period, she was still to see a specialist for this condition.

26. I am not satisfied, on the information before me, that Mrs Workneh’s neck condition was fully diagnosed, treated and stabilised during the relevant period.  This means it cannot be given an impairment rating.

    Chest pain

27. In her first report, Dr Suri wrote that Mrs Workneh had an episode of acute chest pain on her left side for which she was admitted to hospital on 17 April 2012.  Dr Suri provided no further information about this condition.  She did not refer to this condition in her second report and it does not appear to have been mentioned in any other reports.

28. At the hearing, Mrs Workneh said she gets shortness of breath but her condition has been investigated with a camera and has now improved.

29. It is not clear, on the limited information before me, whether this condition was fully treated and stabilised during the relevant period but, even if it were, Mrs Workneh’s evidence is that it has passed, meaning it was not a permanent condition during the relevant period and cannot be given a rating.

    Peptic ulcer

30. In her first report, Dr Suri wrote that Mrs Workneh was diagnosed with a peptic ulcer in 2011.  She was being treated with “medications and precautions”; a referral to a specialist was planned. She wrote that the condition was expected to persist for more than 24 months and its effect was uncertain.

31. A letter dated 28 March 2013 from Fairfield Hospital to Dr Suri shows that Mrs Workneh had been placed on the elective surgery waiting list under the care of Dr Sekharipurum Krishna for a gastroscopy.  A report from Dr Krishna to Dr Suri on 22 April 2013 shows that Mrs Workneh had undergone gastroscopy.  At the hearing, Mrs Workneh said she is to have surgery at some point but she does not know when.  

32. As Mrs Workneh did not have the gastroscopy until approximately nine months after the relevant period, and surgery is planned, I find her peptic ulcer was not fully treated and stabilised during the relevant period and so cannot be given an impairment rating.

    Anaemia

33. In her first report, Dr Suri wrote that Mrs Workneh had an iron deficiency that was being treated with medication; “significant improvement” was expected.

34. At the hearing, Mrs Workneh said she takes vitamins for her anaemia and she would like to see a specialist.  It is not clear what treatment a specialist might offer, and it does not appear from the medical reports that Mrs Workneh’s treating doctors consider a referral is necessary.  

35. Dr Suri did not say over what period significant improvement was expected but I am satisfied this condition was not full treated and stabilised during the relevant period, meaning it cannot be given an impairment rating.

    Knees

36. At the hearing, Mrs Workneh said she has had problems with her knees for some time but they are worse since the car accident.  She is waiting on Dr Suri to arrange further physiotherapy.

37. It is not clear from the information before me how bad Mrs Workneh’s knees were before the car accident and, in particular, during the relevant period.  They are not mentioned in either of Dr Suri’s reports.  An x-ray report on 24 February 2011 showed she had “six weeks of medial pain not improving”.  The x-ray and an ultrasound showed no significant abnormality but possible signs of early cartilage or meniscal disease in the left knee.  Her right knee did not appear to warrant investigation.

38. Mrs Workneh has had some physiotherapy for her knees but she is waiting for Dr Suri to arrange further physiotherapy.

39. I am not satisfied, on the information before me, that this condition was fully diagnosed, treated and stabilised during the relevant period.  It follows that it cannot be given an impairment rating.

    Psychological condition

40. On 24 January 2013, Dr Suri reported that Mrs Workneh had generalised anxiety disorder.  She provided no further details.

41. A report from Rafaela Luca, registered psychologist, dated 16 January 2013 shows that Mrs Workneh was referred to her for psychological therapy in December 2011 for assessment and treatment of generalised anxiety disorder; she attended four therapy sessions in all but “unfortunately due to the language barrier and the need for family therapy” Ms Luca had suggested Mrs Workneh seek family therapy through Macarthur Mental Health.

42. At the hearing, Mrs Workneh said she had seen Ms Luca for several sessions and had also attended the Macarthur service four or five times as she had suggested.

43. It is not clear when Mrs Workneh first started experiencing depression and anxiety but, at the time of Ms Luca’s letter in January 2013, she was still to pursue the recommended family therapy.

44. I find Mrs Workneh’s depression and anxiety were not fully treated and stabilised during the relevant period and so cannot be given an impairment rating.

    CONCLUSION

45. Because I find that Mrs Workneh impairments do not rate 20 or more points on the Impairment Tables, it is not necessary to consider whether she also has a continuing inability to work. However, I note that one of the requirements for a continuing inability to work is that a person has actively participated in a program of support for 18 months in the three years prior to her application for DSP: s 94(2)(aa)of the Act.

46. Mrs Workneh has participated in the past in programs designed to improve her chances of employment.  However, apart from two weeks in early 2011, she has not participated in such a program since 2008.

47. I affirm the decision under review.

48.       I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. 

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Associate

Dated 11 February 2014