Whitney Palmblad and Secretary, Department of Social Services
[2013] AATA 761
[2013] AATA 761
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0941
Re
Whitney Palmblad
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 24 October 2013 Place Brisbane The Tribunal affirms the decision under review.
..................[Sgd]......................................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 points or more under the Impairment Tables – Decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
24 October 2013
INTRODUCTION
The applicant, Ms Whitney Palmblad was recently granted disability support pension (“DSP”), with effect 16 April 2013. Ms Palmblad has a fractured spine and suffers from complex post-traumatic stress disorder (“complex PTSD”).
Although Ms Palmblad’s most recent claim for DSP was granted, she had made an earlier claim that was refused. For the earlier claim Ms Palmblad contacted Centrelink about her eligibility for DSP and lodged that claim on 4 October 2012.
A Job Capacity Assessor found that Ms Palmblad did not have any condition that could be assigned an impairment rating.[1] Centrelink made a decision to reject Ms Palmblad’s claim on 22 October 2012.
[1] Exhibit 1, T-Document 16, pp. 58-64.
On 12 December 2012, an Authorised Review Officer affirmed the decision, as did the Social Security Appeals Tribunal on 14 February 2013.
The application for review of the decision by the Administrative Appeals Tribunal was lodged on 1 March 2013.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act provides that the applicant must:
·have a physical, intellectual or psychiatric impairment;
·have an impairment of 20 points or more under the Impairment Tables;[2] and
·have a continuing inability to work.
[2] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
A person is regarded as having a continuing inability to work under s 94 of the Act if:
· they have an inability to work, due to their accepted impairments for 15 hours or more a week, and
· they have actively participated in a program of support. This second requirement is not necessary if a person has a severe impairment of 20 impairments or more under a single Impairment Table.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”). For the applicant’s claim for DSP, the relevant period is from 4 October 2012 to 3 January 2013.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”),[3] it is necessary to determine whether Ms Palmblad’s conditions can be regarded as being permanent and the impairment resulting from the conditions is likely to persist for more than two years.[4] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[5]
[3] Which was made by the Minister pursuant to s 26(1) of the Act.
[4] s 6(3) of the Determination.
[5] s 6(4) of the Determination.
Ms Forsyth for the respondent, contends that neither of Ms Palmblad’s conditions have been fully treated, and therefore cannot be assigned an impairment rating. Arguing that accordingly she does not satisfy all the requirements for DSP.
During the hearing Ms Palmblad indicated she had undergone considerable treatment for both of her conditions, however she was unable to provide evidence to support her case as she had recently relocated a considerable distance from her former medical providers. After the hearing, the Tribunal subpoenaed Ms Palmblad’s medical records. Those records are taken into evidence. The Respondent and Ms Palmblad were given the opportunity to make written submissions in relation to those records, and a Telephone Directions Hearing (“TDH”) was held after each party had received the others submissions, allowing each party the right of reply.
The issues that I must determine are:
·whether any of Ms Palmblad’s conditions can be allocated an impairment rating; and if so
· whether she has 20 impairment points or more; and if so,
· whether she has a continuing inability to work.
CONSIDERATION
Does Ms Palmblad have any conditions that can be allocated a rating from the Impairment Tables?
Back
Ms Palmblad has a failure of the posterior annular ligament at L5/S1 level with marked bulging of the disc. Orthopaedic surgeon Dr Wojciech Janus, who first reviewed the applicant on 25 January 2012, provided that diagnosis. Mr Palmblad was referred to
Dr Janus because she had pain in her back, ongoing since she was assaulted in July 2011. Dr Janus stated that there were no indications for surgical treatment, and that Ms Palmblad should be managed conservatively, with physiotherapy, back strengthening and balance exercises.[6]
[6] Exhibit 1, T-Document 8, p. 38.
Ms Palmblad told me that she commenced physiotherapy treatment shortly after her injury, and continues to have treatment approximately every two to four weeks. There have been some unavoidable interruptions in her treatment when she moved in June 2012. In addition to the Medicare funded visits to the physiotherapist Ms Palmblad has paid for private treatment.
Ms Palmblad was referred to a pain management clinic. She was also treated with a cortisone injection into the nerve root in her back. Unfortunately that treatment was not beneficial. The treatment at the pain management clinic and the cortisone injection treatment were both not completed until after the end of the relevant period.
The damaged annular ligament in Ms Palmblad’s back was therefore not fully treated and the condition cannot be allocated a rating from the Impairment Tables.
Mental health
Ms Palmblad was assessed by psychiatrist Dr Maya Menon in Rockhampton. In her report dated 8 August 2011, Dr Menon provided a diagnosis of: “Complex Post traumatic disorder with dissociative symptoms and past Obsessive Complex Symptoms of checking and ordering with co-morbid Panic Disorder with Agoraphobia.” On this basis I accept that at the beginning of the relevant period the condition had been fully diagnosed. Ms Palmblad told me that psychologist Ms Mandy Dexter had made the same diagnosis in February 2011, when she first commenced treatment.
Ms Forsyth argued that Ms Palmblad’s oral medication regime was not stabilised until after the relevant period. She referred to Ms Palmblad’s delay in commencing treatment with olanzapine, the oral medication recommended by Dr Menon, and to evidence indicating Ms Palmblad had changed her oral medication several times.
Pursuant to the introduction to the Determination, a condition is considered fully stabilised if 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.[7]
[7] s 6(6) of the Determination.
It is not expected that all possible types of treatment must be tried before a person can be said to have undertaken reasonable treatment. Reasonable treatment is, amongst other things, that which can reliably be expected to result in a substantial improvement in functional capacity and has a high success rate.[8]
[8] s 6(7) of the Determination.
Dr Menon opined that pharmacological treatment would have a limited role in the treatment of the applicant. Dr Menon stated that the mainstay of Ms Palmblad’s treatment would be psychological management through trauma focussed cognitive behaviour therapy, and relaxation training with a clinical psychologist. I therefore find that it was not necessary for Ms Palmblad to have established stabilised pharmacological therapy prior to her condition being regarded as fully stabilised.
Ms Palmblad claims Ms Dexter provided psychological treatment specific to her condition in early 2011. Reports from Ms Dexter support this. In a report dated
29 April 2011, Ms Dexter said that the treatment she had provided
Ms Palmblad included psycho-education in relation to trauma, anger, anxiety and depression, and that strategies had been developed to cognitively deal with her life stressors. Although Dr Menon stated that Ms Palmblad had not received any therapy specific to her symptoms in his report, I conclude that she was uninformed about the treatment Ms Palmblad had received from Ms Dexter.
Reasonable treatment is that which is, amongst other things, available at a reasonable cost and at a location accessible to the person.[9]
[9] s 6(7) of the Determination.
After she sustained injury to her back Ms Palmblad was no longer able to make the long journey to continue treatment with Ms Dexter. Ms Palmblad was referred to psychologist Ms Jennifer Rennika in early 2012. Unfortunately Ms Palmblad was unable to develop a rapport with Ms Rennika, and after six sessions her treatment with this therapist was terminated.
Ms Palmblad relies on financial assistance from Medicare and a women’s health support group to access psychological counselling. That funding provides for a limited number of sessions each financial year.
It is unfortunate that Ms Palmblad was unable to forge a good relationship with her treating psychologist in 2012. It is certainly not her fault, from considering all of the evidence I conclude that Ms Palmblad has tried very hard to avail herself of the best possible treatment and to comply with that treatment. I suspect the difficulty Ms Palmblad experiences is a function of her psychiatric condition. Although Ms Palmblad’s psychological treatment was not ideal in 2012, she availed herself of the full number of psychological sessions that were available to her, and she continued to practice the techniques she learnt from Ms Dexter. Additionally her general practitioner supervised her mental health plan during that period. I conclude that
Ms Palmblad participated in all reasonable treatment that was available to her up to and during the relevant period. The treatment was the best Ms Palmblad could avail herself of at the time. Whilst the treatment was not ideal is not a reason to conclude that she had not undergone all reasonable treatment by the end of the relevant period.
Additional counselling was not possible for financial reasons, until 2013. Ms Palmblad was referred to psychologist Ms Rachel Goodwin in February 2013. Just as pharmacological treatment is often a long-term treatment for many people, so too is psychological treatment. Ms Palmblad has a most unfortunately history of abuse since a young child, and it is obvious from the medical reports before me that she has a severe psychiatric condition that will likely require psychological treatment for a very long time, perhaps many years. Her problems are complex, as the diagnostic label suggests, and are not going to abate in the short term.
Dr Menon noted Ms Palmblad’s symptoms worsen with interpersonal stress, and unfortunately Ms Palmblad has had more than her fair share of interpersonal stress in the last two years. She is a single mother, and has no real social or community support. As well has being assaulted, Ms Palmblad’s residence was burgled and she felt the need to relocate in 2012. Interpersonal stress is, however, part of life, which is full of ups and downs and stressful events. That Ms Palmblad’s symptoms are worsened by interpersonal stress is a consequence of the inherent nature of her condition. Improvement in Ms Palmblad’s psychiatric symptoms after her interpersonal stress remits would unlikely be sustained long enough and to such a degree that she enable her to undertake work anytime in the next two years.
I find that Ms Palmblad’s complex PTSD was fully diagnosed, treated and stabilised within the relevant period and can be allocated a rating from the impairment tables.
What rating can be assigned to Ms Palmblad’s complex PTSD?
Table 5 of the Determination is used to assess mental health function, it reads as follows:
Table 5 – Mental Health Function
Introduction to Table 5
· Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
· 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).
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
- interviews with the person and those providing care or support to the person.
· In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
· The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
· The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
30
There is an extreme functional impact on activities involving mental health function.
(1) The person has extreme difficulties with most of the following:
(a) self care and independent living;
Example 1: The person needs continual support with daily activities and self care.
Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.
(b) social/recreational activities and travel;
Example: The person is unable to travel away from own residence without a support person.
(c) interpersonal relationships;
Example: The person has extreme difficulty interacting with other people and is socially isolated.
(d) concentration and task completion;
Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.
Example 2: The person has extreme difficulty in completing tasks or following instructions.
(e) behaviour, planning and decision-making;
Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.
Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training sessions other than for short periods of time.
Ms Palmblad has demonstrated an ability to concentrate at both the hearing and a post hearing TDH for more than 10 minutes. I have no evidence before me relating to her work/training capacity. Although Dr Menon noted Ms Palmblad to be agoraphobic, she did not indicate Ms Palmblad has difficulty with interpersonal relationships to the degree required to satisfy an allocation of 20 points. The evidence does not support a finding that Ms Palmblad has difficulty with most of the activities listed under 20 points in
Table 5 of the Determination.
Ms Palmblad lives a very isolated existence with her daughter. She rarely goes out and although she needs social support, regrettably none is available to her. From the information provided in the reports of Dr Menon and Ms Dexter I find the appropriate rating is 10 impairment points.
As Ms Palmblad did not satisfy the requirements for 20 impairment points under the Determination during the relevant period, she does not satisfy s 94(1) of the Act.
As such, I do need to not consider whether she had a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ......................[Sgd]..................................................
Associate
Dated 24 October 2013
Dates of hearing 26 June 2013; 3 July 2013 and 11 September 2013 Applicant In person Solicitor for the Respondent Ms Jasmine Forsyth, Departmental Advocate
1
0
0