Violeta Bubanja and Secretary, Department of Social Services
[2014] AATA 397
[2014] AATA 397
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5232
Re
Violeta Bubanja
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 20 June 2014 Place Melbourne The decision under review, being the decision of the Social Security Appeals Tribunal made 18 September 2013, is affirmed.
.................[sgd].......................................
Deputy President J W Constance
CATCHWORDS
SOCIAL SECURITY – disability support pension – left eye blindness – gynaecological condition – depression – whether conditions fully diagnosed, treated and stabilised –– decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42 and Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 cl 6(4)
REASONS FOR DECISION
Deputy President J W Constance
Mrs Bubanja suffers from the following medical conditions:
·left eye blindness
·medical condition following the surgical removal of a gynaecological tumour;
·depression.
She seeks review of the Secretary’s decision to refuse her application for disability support pension under the Social Security Act 1991 (Cth), (“the Act”).
Mrs Bubanja applied for the pension on 7 February 2013. For her application to succeed, she had to qualify for the pension on, or within 13 weeks of that date, that is, by 9 May 2013: s.42 and Schedule 2 of the Social Security (Administration) Act 1999, (“the Administration Act”). I will refer to this period as “the relevant period”.
To qualify for the pension during the relevant period, Mrs Bubanja had to satisfy the following criteria in s 94 of the Act:
(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 first question, therefore, is whether Mrs Bubanja’s conditions rated 20 or more points on the Impairment Tables during the period 7 February 2013 to 9 May 2013. If not, then her application cannot succeed.
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.
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 two years.
A condition is considered “permanent” if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been “fully diagnosed” and “fully treated”, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
A condition is “fully stabilised” if either:
(a)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 two 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 two 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.
“Reasonable treatment” means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate, and
(f)carries a low risk to the person.
MRS BUBANJA’S MEDICAL CONDITIONS
The medical evidence concerning Mrs Bubanja’s medical conditions comprises:
(i)medical report dated 13 February 2013 by Dr Sulava,[1] her general practitioner at the time;
(ii)certificates dated 13 June 2013 and 20 August 2013 by Dr Sulava.[2]
[1] Exhibit R1, pp. 52-62.
[2] Exhibit R1, pp. 73 & 81.
Centrelink has provided a Job Capacity Assessment report dated 27 February 2013[3].
[3] Exhibit R1, pp.66-70
I will deal with Mrs Bubanja’s medical conditions in turn.
Left eye blindness
Mrs Bubanja lived in Macedonia for 8 years prior to making her application. When in Macedonia she was advised that her blindness was caused by herpetic scleritis.
In his report of February 2013 Dr Sulava stated that the cause of Mrs Bubanja’s blindness was unknown and that she was waiting to consult a specialist at the Royal Victorian Eye & Ear Hospital. Mrs Bubanja gave evidence to the Social Security Appeals Tribunal in September 2013 that she had been attending that Hospital for treatment since April 2013.
On the basis of this evidence I am not satisfied that the condition was fully treated and stabilised during the relevant period.
Gynaecological condition
Before the Social Security Appeals Tribunal Mrs Bubanja gave evidence that she has suffered pain in the pelvic area since having a hysterectomy in 2012. At the time she gave that evidence, which was in September 2013, she had had one consultation at Sunshine Hospital and was required to return to that Hospital in five to nine months.
The Job Capacity Assessment was carried out on 27 February 2013. As of that date Mrs Bubanja was awaiting specialist follow-up at Sunshine Hospital as she was experiencing intermittent pain and the wound from surgery had not healed.[4]
[4] Exhibit R1 p.67
At the hearing of this application on 11 April 2014 Mrs Bubanja told this Tribunal that she was on a hospital waiting list for a further operation related to this condition.
On the basis of this evidence I am not satisfied that the condition was fully treated and stabilised during the relevant period.
Depression
As of September 2013 Mrs Bubanja had not consulted a psychiatrist or a psychologist. In October 2013 Dr Sulava referred her to Western Mental Health Services for opinion and diagnosis.
On the basis of this evidence I am satisfied that this condition was not fully diagnosed, treated and stabilised during the relevant period.
As Mrs Bubanja’s impairments do not rate 20 or more points on the Impairment Tables, it is not necessary for me to consider whether she also had a continuing inability to work.
CONCLUSION
As I am not satisfied that any of the claimed medical conditions were fully treated and stabilised during the relevant period, at this stage Mrs Bubanja is not entitled to the pension she seeks. As was explained to Mrs Bubanja by Counsel for the Secretary at the hearing, she can re-apply for the pension at a later date based on the evidence then available.
The decision under review, being the decision of the Social Security Appeals Tribunal made 18 September 2013 will be affirmed.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of ............[sgd]...........................
Administrative Assistant
Dated 20 June 2014
Date(s) of hearing 11 April 2014 Applicant In person Advocate for the Respondent Mr T de Uray
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Pension Eligibility
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Medical Condition Assessment
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Re-application
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