Yildiz Karli and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 416
[2013] AATA 416
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1274
Re
Yildiz Karli
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 20 June 2013 Place Melbourne The Tribunal affirms the decision under review.
...........[sgd].............................................................
Regina Perton, Member
SOCIAL SECURITY - disability support pension - whether 20 impairment points - whether condition stabilised and treated – decision affirmed
Social Security Act 1991 s 94(1) s 94(2), Schedule 1B
Social Security (Administration) Act 1999 cl 4(1) of Schedule 2
REASONS FOR DECISION
Regina Perton, Member
20 June 2013
Yildiz Karli, who was then 49 years old, lodged a claim for disability support pension (DSP) on 3 May 2011 with Centrelink, which administers social security benefits for the respondent. On 4 June 2011 Centrelink decided that Ms Karli did not qualify for DSP. On 17 November 2011 a Centrelink authorised review officer (ARO) reviewed the decision and confirmed that Ms Karli was not eligible for DSP.
On 14 December 2011 Ms Karli lodged an application for review with the Social Security Appeals Tribunal (SSAT). On 16 March 2012, the SSAT affirmed the ARO’s decision to refuse DSP on the basis that Ms Karli's impairments did not rate 20 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1 B of the Social Security Act1999 (the Act) during the relevant period. With the assistance of Victoria Legal Aid, Ms Karli lodged an application for review of the SSAT decision with this Tribunal on 2 April 2012.
The issue before the Tribunal is whether Ms Karli satisfied the requirements for DSP as at 3 May 2011 or within 13 weeks of that date (the relevant period).
MS KARLI'S MEDICAL CONDITIONS AND EMPLOYMENT
In her application for DSP lodged on 3 May 2011, Ms Karli stated that she suffered from Low back pain, Hypertension, Depression and Pain in both arms. She stated that the impact of her conditions was that she was Not able to stand or sit, walk long period[s], can’t concentrate. Ms Karli stated that she has no qualifications or work experience.
Dr R M B Chan, Ms Karli's general practitioner, completed a prescribed Centrelink questionnaire for treating doctors on 2 May 2011 as part of her application for DSP. Ms Karli has been a patient at his clinic since April 1986. Dr Chan stated that Major depression, with a date of diagnosis of 30 May 2005, was the condition with the most impact on Ms Karli. Asked to provide a history of the clinical features of the condition, Dr Chan described chronic depression, lethargy, lack of drive. Dr Chan described Ms Karli's current symptoms as at 2 May 2011 as above. The current treatment for the condition was Zoloft (antidepressant medication) and psychological counselling. No further treatment was planned. Dr Chan predicted that the condition was likely to persist for more than 24 months. The impact on Ms Karli’s ability to function due to the condition over the next two years was described as uncertain.
The second condition Dr Chan noted in the form was L4/5 disc prolapse which he stated had been diagnosed on 28 July 2003. The history of the condition was described as chronic low back pain radiating to L leg – proven with C.T. scan due to disc prolapse. The current symptoms were Intermittent low back pain radiating to L leg - unable to sit, stand & walk for long period[s].The current treatment was an analgesic and other pain killers with past treatment including a consultation with an orthopaedic surgeon. Future planned treatment was stated as may need further orthopaedic treatment. In response to a prompt question as to the current impact of the condition on Ms Karli's ability to function, Dr Chan stated that Ms Karli was unable to lift weight, unable to sit, stand or walk for long period[s]. Dr Chan believed that the condition would impact on Ms Karli's ability to function for more than 24 months, with the impact on her ability to function Remaining unchanged.
Dr Chan stated that his patient also suffered from hypertension which was treated by medication and that she was asymptomatic.
Centrelink arranged for a Job Capacity Assessment (JCA) of Ms Karli by a JCA assessor who is a registered nurse. Ms Karli attended an interview with the assessor on 10 May 2011. A Turkish interpreter facilitated communication. The assessor provided a report dated 20 May 2011 in which she described Ms Karli’s condition of Major Depression as Permanent, Fully Diagnosed and Fully Treated but stated:
…
Previous JCA conducted on the 15/2/2011 indicated future treatment investigation including: blood test and CT of the brain, client did not report any results. This condition is not considered stabilised as she is awaiting psychologist consultations.
In relation to Ms Karli’s Spinal Disorder – other, the assessor commented that the Disc Prolapse L4/L5 was fully diagnosed:
Treatment: CT scan used for diagnostic purposes, Mrs Karli is currently taking analgesics ….Mrs Karli was advised by her treating doctor to perform light exercise such as pool exercises.
Plan: Mrs Karli is due to see a physiotherapist for management and awaiting a referral to see orthopaedic surgeon as per medical report.
Symptoms: Mrs Karli reported that she experiences difficulties when bending and pain, she also indicated that she is unable to lift and carry moderate to heavy objects.
This condition cannot be considered fully diagnosed, treated and stabilised as specialist assessment is pending.
The assessor’s general summary, findings and recommendations were:
Mrs Karli is a 48 year old female applying for a Disability Support Pension.
Mrs Karli resides in a rental property with her four children (24, 19, 9 and 8 years old). Mrs Karli was born in Turkey and arrived in Australia in 1995.
She has a current driver's licence and owns a vehicle….
Education/Employment
Mrs Karli completed Year 10 in Turkey and no further studies. She reported completing her English classes and sewing training.
Mrs Karli reported to have worked in a seatbelt factory, as a sewing machinist, but had difficulties remembering when she worked there and for how long.
Based on the permanent medical conditions, depression and lumbar disc prolapse, it is evident that the symptoms Mrs Karli experiences have some impact on her ability to work full time. Mrs Karli was teary during the interview and had difficulties answering certain questions due to memory problems.
Due to current exacerbation of existing condition (depression) a temporary reduced work capacity of 0 -7 hours per week is appropriate for 10/5/2011 to 10/8/2011 this will allow Mrs Karli to take care of her health and seek assistance from health professionals.
Based on the medical report on the findings of the assessor it is apparent that Mrs Karli's medical condition (lumbar disc prolapse) has some impact on her ability to perform physical demanding jobs. She also experiences produced endurance and inability to carry moderate to heavy objects.
Mrs Karli is suitable for a DES-DMS [Disability Employment Service - Disability Management Service] referral and may benefit from their assistance with training, job seeking and post placement support. However Mrs Karli was unhappy with the DES-DMS referral.
Following the rejection of her claim for DSP, Ms Karli provided Centrelink with further medical evidence including a copy of a radiologist's report dated 7 June 2011 following an ultrasound of her right shoulder. The report prepared by Dr Kenny Wong stated that she was suffering from a partial surface tear of the supraspinatus tendon with enthesopathy.
On 17 October 2011 Dr Chan prepared a further medical report in relation to another application for DSP. Dr Chan’s comments regarding Ms Karli’s medical condition were similar to his report of 2 May 2011. Ms Karli lodged a fresh application for DSP on 21 October 2011.
A fresh JCA report dated 10 January 2012 was prepared by a different assessor to the person who undertook the JCA assessment in May 2011. The reason given for the report by the assessor, who is a qualified social worker, was Change of Circumstances. The assessor pointed out that :
Ms Karli has submitted a medical certificate for the period between 13/12/11 to 13/3/12 indicating that she is not able to work 8 hours or more per week. As such, work capacity is assessed as 0-7 hours over this time. Ms Karli has recently commenced psychological counselling (Dec 2011) and has initial appointment with orthopaedic surgeon scheduled for Feb 2012.
The assessor recommended:
Deferred DES-DMS [Disability Employment Service - Disability Management Service] referral is recommended to assist clients with training, job seeking and post placement support. Ms Karli indicated that she did not wish to engage in an immediate referral.
On 20 March 2012 Dr Chan provided a medical certificate in which he stated that Ms Karli would be unfit for work from 14 March 2012 to 14 June 2012. Added to the previously identified conditions of major depression and L/S disc prolapse was cervical spondylosis.
On 16 March 2012 the Northern Hospital Radiology Department provided a report on the result of an MRI of Ms Karli’s spine. In relation to her cervical spine the conclusion was:
Small midline disc protrusion at C5/6 abutting the cord but not causing nerve root compression.
The conclusion concerning Ms Karli's lumbar spine was:
Multilevel degenerative disc changes in the lumbar spine without major disc protrusion, neural compression or spinal stenosis.
On 28 May 2012 Dr V I Karlov, consultant physician, provided a report to Dr Chan concerning Ms Karli, stating:
Mrs Karli underwent MRI examinations of her cervical and lumbar spines. The MRI of her cervical spine showed a midline disc protrusion at C5/6 abutting the court but not causing nerve root compression.
The MRI of her lumbar spine showed multilevel disk degeneration which were non neural compressive. The situation of course fluctuates and she does get symptoms from time to time.
Nevertheless I feel that her main problem currently is depression and the migraines but the musculo-skeletal conditions are contributing.
On 12 June 2012 Dr Chan provided another medical report relating to an application for DSP. This time the condition with the most impact was multilevel disc degeneration lumbrosacral… [indecipherable word] …prolapsed L4/L5 disc with a date of diagnosis of 16 March 2012. He pointed out that Ms Karli had a long standing history of chronic back pain and leg pains. However, the fresh diagnosis had been made following the MRI scan of Ms Karli’s spine. Future planned treatment was a review by a specialist. Major depression remained a condition affecting Ms Karli.
On 24 July 2012, Dr Chan provided a medical report to Victoria Legal Aid at its request. Dr Chan indicated that Ms Karli had been a patient of his clinic since 14 April 1986 and that she has had three major health concerns while under the clinic’s care, namely:
1. Chronic lower back pain and recently neck pain as well.
2. Major depression
3. Hypertension
Mrs Karli first complained of lower back pain on 24th of July 2003. She was treated with analgesics and anti inflammatory tablets and her back pain was intermittent in nature until 10th May 2011 when the back pain seemed to have worsened and radiated to her left leg. Examination then showed tenderness to palpating the lumbar sacral spine with restricted spinal extension and flexion. She was treated initially with analgesics tablets Panamax anti inflammatory tablets Celebrex. Then she went on holiday to Turkey and returned back and was seen on 10th of October 2010 complaining of persistent back pain and additional neck pain as well. She was again treated with anti inflammatory tablets however her back pain becomes persistent and radiated to her left leg not responding to analgesics tablets. She was further referred to Dr Victor Karlov rheumatologist for further assessment and for MRI scan. The MRI scan of her neck show cervical spondylosis and the lumbar sacral spine show multi level degenerative disc changes and prolapsed L4/5 disc…
She had a history of major depression since 2005 on antidepressant tablet Zoloft. But the depression seemed to have worsened probably due to her chronic pain requiring further referral to a psychologist for further counselling
Since then she has been reviewed regularly with persistent lower back pain relying on treatment with analgesics tablets.She was last seen on the 12 June 2012 with persistent back pain radiating to her left leg and still suffering from depression…
…
In my opinion Mrs Karli is suffering from chronic back pain and neck pain due to lumbar sacral spondylosis and prolapsed lumbar sacral disc. She also suffers from the pain due to cervical spondylosis. Both condition require her to take strong analgesics for pain relief as stated above. She also developed worsening depression requiring psychological counselling and anti depressant tablets. She will probably require further treatment by an orthopaedic surgeon and I doubt that any surgical treatment can be offered. Her conditions are unlikely to improve significantly in the next two years in fact with the passage of time as she grows older her condition will probably deteriorated and she may suffer worsening pain.
I am not in a position to give impairment rating as you suggested but my opinion is that her condition would prevent her from engaging in any gainful occupation in the future. She would be in my opinion unable to work for 15 hours or more a week within the next two years and she will be unable to undertake training activities within the next two years because of her persistent pain and depression.
On 27 July 2012 Dr Chan provided a supplementary report to Victoria Legal Aid. Dr Chan stated:
After considering the spinal impairments table Mrs Karli has lost one quarter of spinal flexion but three quarters of spinal extension with persistent back pain radiating down to her left leg affecting most of her physical activities and standing for about 15 minutes and sitting for about 30 minutes plus the impairment to her back total to 20 points.
Her psychiatric impairments after consulting the table total 10 points.
During the hearing, Ms Karli told the Tribunal about the impact of her medical conditions on her life. She could not recall when she first experienced back pain but said it had been a long time ago and had gradually worsened over time. Asked to describe her symptoms, she indicated that she has pain in her left arm, the left side of her back and the left leg down to her toenails. She was rubbing her arm frequently while giving evidence. Ms Karli said she could not be on her feet for long and cannot bend. Ms Karli said her daughter showers her and washes her hair. Ms Karli also stated that her sleep is interrupted by the pain and she takes medication to assist her to sleep. She said she sleeps even during the day. She is sensitive to light and prefers to be in a dark room.
Ms Karli said her household comprises five people, three of whom are her children. She said her daughter does the housework. Ms Karli helps with the cooking by chopping items with her right hand while seated. Her daughter does most of the actual cooking. Her son is married and his wife also assists Ms Karli.
Ms Karli was asked about her treatment for her back and said that she has been taking different tablets over time. Dr Chan provides the prescriptions. She said that she does not think Dr Chan has suggested she undertake physiotherapy or hydrotherapy.
Ms Karli could not recall when she first started suffering from depression. Ms Karli said that she sees herself as being useless. She is sad that she cannot take care of her children. She said she no longer even looks in the mirror. Ms Karli said she has a very poor memory.
Ms Karli said that Dr Chan had sent her to a psychologist some years ago. She said her visits to the psychologist had made her feel worse about herself. Dr Chan has now referred her to another psychologist and she is waiting for an appointment. She has Dr Chan’s referral letter.
Ms Karli said she had been to Turkey twice in recent years. When asked how she coped with the travel, Ms Karli said she was in pain while flying but had gone to Turkey to attend her sister's wedding. On some parts of the journey there were empty seats and she was able to lie down during the flight.
Ms Karli also cited a problem with her shoulder but cannot recall exactly when that started. She also could not remember when her neck pain commenced. She was surprised when told that she first mentioned neck pain to Dr Chan in October 2011.
Dr Chan gave oral evidence by telephone. The clinic’s records reveal that Ms Karli has experienced back problems since 2003. Dr Chan said that Ms Karli had been referred to Dr Dooley, an orthopaedic surgeon, in 2003 which resulted in the identification of the disc prolapse at L4/L5. In his 2003 report to the clinic, Dr Dooley indicated that Ms Karli’s back condition may recover naturally and so deferred consideration of an operation. There is no record of Ms Karli seeing Dr Dooley subsequently.
The MRI on 16 March 2012 confirmed the disc protrusion as well as multi-level disc degeneration. Dr Chan stated that general practitioners cannot refer patients for an MRI, so Ms Karli had had to see an appropriate specialist to access MRI imaging.
Dr Chan said that an operation to relieve Ms Karli’s back pain did not appear to be an option. He said that her symptoms have been getting worse although at an earlier stage, they did fluctuate from severe pain to milder pain from time to time. It was not until the MRI in May 2012 that the problem with her neck was confirmed. Dr Chan does not believe that Ms Karli is likely to be able to engage in employment.
DID MS KARLI QUALIFY FOR DSP?
Section 94 of the Act sets out the criteria for a person to qualify for DSP.
94(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;
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years…
(ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
...
The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
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When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of his/her application to do so within 13 weeks of that date. Therefore, the Tribunal must consider whether Ms Karli qualified for the DSP either on 3 May 2011 or at a date before 2 August 2011 (the relevant period). Ms Karli has lodged further claims for DSP but this review is only about the claim lodged on 3 May 2011.
The Tribunal accepts that Ms Karli suffered from a number of medical conditions during the relevant period and continues to do so. However, the difficulty the Tribunal faces is deciding whether sufficient points are able to be allocated in relation to Ms Karli's DSP application made on 3 May 2011 given the requirements of paragraphs 4 and 5 of Schedule 1B of the Act, which require conditions to be fully investigated, treated and stabilised to be considered permanent.
Dr Chan identified two major conditions at the time of Ms Karli's DSP claim, namely major depression and L4/5 disc prolapse. During the relevant period, Dr Chan was uncertain about the impact of the depression over the following 24 months. He also indicated he would re-try counselling for Ms Karli. Dr Chan also indicated that Ms Karli may need further orthopaedic treatment. He referred Ms Karli to Dr Victor Karlov, a rheumatologist, for further assessment and for MRI scan which resulted in an amended diagnosis of Ms Karli’s back and neck condition.
The respondent submitted that the medical evidence supports a contention that Ms Karli's condition was not fully diagnosed, treated and stabilised during the relevant period. The Tribunal agrees with that view. Ms Karli is therefore unable to be allocated points under the Impairment Tables during the 13 weeks from 3 May 2011. As a result, she does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). Therefore, Ms Karli did not qualify for DSP during the relevant period.
Dr Chan has pointed out that Ms Karli’s health is likely to continue to deteriorate. Since Ms Karli’s DSP application on 3 May 2011, there has also been the identification of the neck condition and its impact on Ms Karli’s ability to function. Ms Karli lodged claims for DSP after the claim that is the subject of this review. The Tribunal is unable to consider Ms Karli’s later DSP claims. The respondent also submitted that Ms Karli might have a capacity to work with support from appropriate sources. The Tribunal is doubtful that she could do so given her medical conditions and her background. However, in the circumstances, it is not necessary for the Tribunal to determine that issue.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 38 (thirty‑eight) paragraphs are a true copy of the reasons for the decision of herein of Regina Perton, Member. ..........[sgd]..............................................................
K. Randall, Associate
Dated 20 June 2013
Date of hearing 25 March 2013 Date final submissions received 16 April 2013 Counsel for the Applicant Mr C Horn Solicitors for the Applicant Victoria Legal Aid Solicitor for the Respondent Mr A Carson Legal Services Division, Department of Human Services
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