Zuzanna Pelka and Secretary, Department of Social Services
[2014] AATA 81
•21 February 2014
[2014] AATA 81
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3734
Re
Zuzanna Pelka
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member Date 21 February 2014 Place Sydney The Tribunal affirms the decision under review.
..................[sgd]......................................................
Ms G Ettinger, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – Disability Support Pension – whether Applicant has conditions which have been diagnosed, treated and stabilised within the requisite period – whether Applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms G Ettinger, Senior Member
21 February 2014
SUMMARY
Ms Pelka, aged 32, has applied to this Tribunal for a review of the decision of the Social Security Appeals Tribunal (the SSAT) dated 19 June 2013 which refused her claim for Disability Support Pension (DSP).
Ms Pelka suffers various conditions, including panic attacks, supraventricular tachycardia (SVT), which is a heart condition, and scoliosis. Unfortunately, not all were fully diagnosed, treated and stabilised during the relevant period, that is, at the time of her application for DSP on 11 September 2012, and in the 13 weeks which followed, such that impairment ratings could be assigned. As I have found that Ms Pelka’s conditions did not provide the 20 impairment points needed in order to consider whether she has a continuing inability to work, I have affirmed the decision under review. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must determine whether the applicant was qualified to receive DSP on the date of her claim, being 11 September 2012, or within 13 weeks of that date. (Schedule 2 subclause 4(1) of the Social Security (Administration) Act 1999) (the Administration Act).)
The decision involves a consideration of whether, between 11 September 2012 and 11 December 2012, the Applicant had, pursuant to section 94(1) of the Social Security Act 1991 (the Act):
·an impairment rating of at least 20 points under the Impairment Tables; and
·a continuing inability to work.
RELEVANT LEGISLATION
The relevant legislation in this matter is section 94 of the Act. Ms Pelka applied for the DSP on 11 September 2012 which effectively means that the period under which I can consider whether she is eligible for DSP is calculated from that date, and for the 13 weeks which follow, ending on 11 December 2012 (schedule 2 clause 4(1) of the Administration Act).
Section 94 follows as relevant:
94 Qualification for disability support pension
(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;
…
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 contains the Impairment Tables. The Tables describe the functional activities, abilities, symptoms and limitations a person experiences, and assign ratings to determine the level of functional impact of impairments. An impairment rating cannot be made if a condition is not permanent. In the present context, a permanent impairment is one which has been fully diagnosed, treated and stabilised.
MS PELKA’S EVIDENCE AND CONSIDERATION OF HER CONDITIONS
I agreed to Ms Pelka’s request to appear at the hearing by telephone because she told the Tribunal in advance that she suffers panic attacks, and often cannot leave her house. I am satisfied that she had all the documents before her, which, both Mr Davidson who appeared for the Respondent, the Secretary, Department of Social Services, and I had. Ms Pelka experienced one episode of what she described as a panic attack during the hearing, and hung up. Ms Pelka asked for a pause in the proceedings, after which we telephoned her again. She was, notwithstanding her distress, able to participate to the end of the hearing.
Ms Pelka gave evidence of the medical conditions upon which she relied in her application for DSP, and as a result of which she claims she cannot work. She says she wants to work, but cannot. She said that she would like to go for walks, walk her dog, go on holidays with her children, and enjoy life, but cannot because of her conditions. She said that her children 15, 13 and 8 years old, live with her. She considers that she is eligible to receive DSP.
Ms Pelka told me that she suffers severe anxiety, SVT, and scoliosis. These were confirmed by Dr King Chen, her general practitioner, in his reports and certificates which are discussed in the paragraphs below.
Anxiety
Ms Pelka said that her anxiety controls everything, how she behaves, and what she does. She said that the anxiety in her head is stronger than anything else, and that sometimes she cannot even leave the house to go outside to collect the mail. She gets dizzy, and thinks she may faint or die. She reported that attacks of anxiety occurred without warning, sometimes daily, sometimes a few times a week, and said that she had learned to live with it. She said that the side effects make her tired, but that she will not give up trying to deal with the anxiety. Ms Pelka said that Dr Chen, prescribed medication for the anxiety some time ago, but that she did not tolerate that well, and ceased taking it after a very short time.
I noted that Dr Chen mentioned that Ms Pelka suffers not only anxiety but panic, phobias, OCD and severe depression. She is not being treated for any of the conditions of psychiatric or psychological origin by Dr Chen. In the application for DSP dated 3 July 2012, Dr Chen addressed the Applicant’s various conditions. In regard to the anxiety, he added: She is unable to do anything during an attack. … she can’t even leave the home. In the DSP application form dated 3 July 2012, Dr Chen indicated when asked to describe her current treatment: … learn to live with it, medication on request.
Dr Chen provided a medical certificate for Ms Pelka indicating she suffered anxiety and depression and was unfit for work from 4 May 2012 to 4 August 2012, and indicated that she attended at a cardiologist and clinical psychologist.
Ms Lisa-Maree Poynter, who is registered psychologist, noted in her letter of 19 December 2012, that Ms Pelka had attended three sessions of Cognitive Behaviour Therapy, but that due to the intensity and frequency of her symptoms, her recovery was likely to be a long process. Dr Jessica Swinbourne, a clinical psychologist, to whom Dr Chen had also referred Ms Pelka, stated in her report dated 10 September 2013 that she undertook an assessment of the Applicant on 23 July 2013, and, at the time of writing the report, was seeing her weekly for Cognitive Behavioural Treatment. She noted that Ms Pelka was, at times, unable to attend sessions due to the severity of her symptoms.
Dr Chen also provided a medical certificate for Ms Pelka, certifying her unfit for work from 27 August 2012 to 27 November 2012. He indicated she was suffering anxiety and depression and that the condition was temporary, but also ticked the box indicating the symptoms were likely to persist. In a medical certificate covering the period 15 October 2012 to 15 July 2013, Dr Chen indicated that Ms Pelka’s severe anxiety and depression was permanent and symptoms were likely to persist. Dr Chen certified the Applicant unfit for work from 15 October 2012 to 15 July 2013.
On 24 September 2012, Ms Pelka was assessed in a Job Capacity Assessment report (JCA). In regard to the psychological or psychiatric conditions, the assessor acknowledged that Ms Pelka’s conditions of anxiety, panic, phobia, and depression had their onset 10 years previously, but found that as Ms Pelka had no current treatment for the conditions, and had no corroborating evidence from a psychiatrist or clinical psychologist (as required under the relevant Impairment Table), the conditions could not be considered fully diagnosed, treated and stabilised. Accordingly, they could not be held to be permanent within the terms of the legislation, and no impairment points could be assigned.
I refer also to the report of Ms Poynter, (a registered psychologist), who described Ms Pelka’s psychological symptoms, in a report dated 19 December 2012. She indicated that she had conducted three sessions of Cognitive Behaviour Therapy with the Applicant. Unfortunately, however, Ms Poynter does not qualify in order to assess impairment points under Table 5 of the Impairment Tables, even though she is a registered psychologist with the Australian Health Practitioner Regulation Agency, as the requirement is that the assessment be made by an appropriately qualified medical practitioner, including a psychiatrist. The diagnosis of a clinical psychologist, corroborated with that of a medical practitioner is also acceptable. Ms Poynter’s evidence was not only outside the relevant period, but must be disregarded for purposes of this application because she does not qualify professionally to provide assessment points for Ms Pelka.
I also had before me the report of Dr Jessica Swinbourne, a clinical psychologist, dated 10 September 2013 in which she diagnosed chronic PTSD, and Major Depressive Disorder. The Impairment Tables require the corroboration of a medical practitioner’s diagnosis with evidence by a clinical psychologist (where a psychiatrist has not been involved). Dr Swinbourne appears to be an appropriately qualified clinical psychologist. However, neither Dr Chen who is Ms Pelka’s general practitioner, nor any other medical practitioner, has diagnosed PTSD or Major Depressive Disorder. Dr Chen referred to Ms Pelka as suffering anxiety and depression, but not as suffering PTSD or Major Depressive Disorder. Accordingly, I am not satisfied that Dr Swinbourne’s opinion has been of assistance in regard to Ms Pelka’s application for DSP, because it does not corroborate Dr Chen’s diagnosis. The conclusion I must draw therefore, is that the condition cannot be considered to be fully diagnosed.
In addition, none of Ms Pelka’s psychological or psychiatric conditions appear to have been treated or stabilised. She has undergone certain sessions of Cognitive Behaviour Therapy, with two psychologists, as indicated above, but no outcome has been recorded. I have already noted above that Dr Chen attempted to treat Ms Pelka with medication for her anxiety and depression, but that she found she could not tolerate the medication and stopped taking it almost immediately after commencing. On 24 September 2012, in a JCA, the assessor acknowledged that Ms Pelka’s conditions of anxiety, panic, phobia, and depression had their onset 10 years previously. The assessor recommended assistance to Ms Pelka in addressing her barriers to employment, as the medical exemption under which the Applicant came, was due to end on 23 March 2013.
On the basis of the discussion of Ms Pelka’s psychological and psychiatric conditions, above, which included noting that she has only undergone very little treatment, and the varying diagnoses made, those conditions cannot be considered to be fully diagnosed, treated and stabilised. Accordingly, they cannot be found to be permanent within the terms of the legislation, and no impairment points can be assigned.
Heart Condition
Ms Pelka gave evidence about her heart condition, SVT, which manifested in her experiencing palpitations, light headedness, and pounding of her heart, as well as a feeling of suffering a heart attack. Ms Pelka said that after an episode such as she described, she is completely exhausted and cannot move. She said that she has undergone investigations which after 6 to 8 months resulted in the diagnosis of SVT, after initially being told her symptoms were a manifestation of her anxiety. She is now taking medication twice a day for the heart condition. Ms Pelka said that since taking the medication, the episodes she described were not as severe as previously, although she had experienced them on the day of the hearing. She told me she might experience an episode once a week, although it could be more frequent.
In a medical report submitted with her DSP claim Dr Chen indicated that Ms Pelka suffers dizziness, shortness of breath, chest pain, irregular heart rate, and stated that he prescribed medication. In a medical certificate Dr Chen indicated that Ms Pelka was unfit for work from 13 April 2012 to 13 May 2012, and that she suffers severe SVT and palpitations, and was being investigated by a cardiologist.
In the 24 September 2012 JCA, the assessor noted in regard to Ms Pelka’s SVT, that she was being referred to another cardiologist for a second opinion and further treatment options. Due to the latter, the assessor did not consider the condition fully treated and stabilised, and therefore assessed it as not permanent.
In a further JCA conducted on 6 March 2013, Ms Pelka’s heart condition was found to be under treatment by Dr Medi, of the Cardiology Department, Royal Prince Alfred Hospital, and fully diagnosed, treated and stabilised. Ms Pelka was held to meet the criteria for 1(a)(i) and (ii) and (b) relating to mild functional impact in Table 1, and an impairment rating of five points was recommended.
I was satisfied that Dr Medi was treating Ms Pelka. She wrote in her report dated 24 October 2012 that Ms Pelka suffers from a heart rhythm disorder for which she requires medical therapy. Whilst the condition is not life threatening, she requires regular treatment. I am satisfied that Ms Pelka’s heart condition is controlled by medication, and that since taking the medication, the episodes she described as occurring in regard to her SVT, were not as severe or as frequent as previously. I accepted that her heart condition has been fully diagnosed, treated and stabilised, and is permanent. I agreed that pursuant to Table 1, Ms Pelka’s heart condition attracts five impairment points because the evidence indicates that her level of difficulty in functioning does not attract a 10 point rating.
Scoliosis
Ms Pelka stated that scoliosis caused her to experience pain between the shoulder blades which flares up every couple of weeks. She described the pain as severe, and might result in her staying in bed for 5-7 days. She said that she takes analgesics and anti-inflammatory medication for her scoliosis. Ms Pelka said that she had not had further investigations done since a 2003 X-ray. She reported that her general practitioner told her they could do nothing more for her scoliosis than she was already doing, but that as she got older and the condition became worse, she may have to have corrective surgery. She reported that the last episode occurred two weeks prior to the hearing at the Tribunal.
In a JCA dated 6 March 2013 an assessor commented upon Ms Pelka’s scoliosis with the notation that the Applicant had minimal scoliosis with minimal degeneration. The condition was held to be permanent, but no impairment points were recommended.
I noted that the assessor was referring to the 2003 X-ray report. I have no further medical evidence other than the 2003 X-ray report and Ms Pelka’s account of Dr Chen telling her he could do nothing more for the scoliosis than she was doing. I have no indication of functional impairment as a result of the scoliosis, and I accordingly was not able to consider the condition fully diagnosed, treated or stabilised. No impairment points can be assigned.
Knee cap
Ms Pelka told me that in September 2013 she broke her knee cap and has had to undergo surgery, with further surgery scheduled. Surgery for the Applicant’s knee cap is no doubt inconvenient, and may be painful. I have mentioned it for the sake of completeness because Ms Pelka told me about it. However, it is not relevant to this DSP application as it is outside the relevant period.
Program of Support
A program of support is, in summary, defined in section 94(5) of the Act as a program designed to assist persons to prepare for, find, or maintain work. It is supported by the Federal Government. Persons who are not found to have a severe impairment, that is, an impairment of 20 or more points under a single Impairment Table, are required to actively participate in a program of support. Ms Pelka is one of those persons. There are certain exemptions available, and the document Exhibit A3, indicates Ms Pelka has had periods where she has been held to be exempt from the program of support. However, unless she has participated for the requisite time, she cannot be found to have a continuing inability to work. I am satisfied from the evidence that Ms Pelka has not participated for the requisite time, and that she does not have a severe impairment, within the terms of the legislation. She cannot therefore be found to have a continuing inability to work during the requisite time. She can therefore not qualify for DSP in relation to her application of 11 September 2012.
THE TRIBUNAL’S FINDINGS AND CONCLUSIONS
In order to come to a decision regarding whether Ms Pelka qualifies for DSP I am required to consider the period from her application on 11 September 2012, and for the 13 weeks which follow, ending on 12 December 2012. I have also had to take into account her evidence, the medical evidence, the legislation and relevant case law.
I am satisfied on the basis of the medical evidence of her general practitioner, Dr Chen, whose patient she has been since 2003, to conclude that Ms Pelka suffers SVT, anxiety, panic, depression and other disorders and thus satisfies the requirement in section 94(1)(a) of the Act that to qualify for DSP a person must have a physical and mental impairment. That is agreed by the Respondent.
In order to determine whether Ms Pelka’s impairments rate 20 points or more under the Impairment Tables, I have considered the relevant Tables, Ms Pelka’s evidence, and the medical evidence before me.
In his report in support of Ms Pelka’s application for DSP, Dr Chen described her heart condition and her psychiatric condition, and stated, on 3 July 2012, that: she can’t hold down any meaningful job as most days she can’t even leave the house. He also indicated that both conditions were expected to persist for more than 24 months, and that the effect of her psychiatric condition on her ability to function was expected to deteriorate within the next two years while the effect of her heart condition was uncertain.
Dr Chen also provided a letter dated 14 March 2013 (Exhibit A1) to the Tribunal detailing Ms Pelka’s conditions and those that her children suffer. He indicated there that Ms Pelka suffers anxiety disorder, depression, scoliosis, and SVT.
Dr Chen, provided a medical certificate in which he certified the Applicant unfit for work from 15 October 2012 to 15 July 2013 due to severe anxiety and depression which he characterised as likely to persist, or permanent.
Other certificates of Dr Chen in the T-documents indicate that amongst other symptoms, Ms Pelka suffers dizziness, panic, anxiety, phobias, shortness of breath and irregular heart rate. He prescribed medication for the heart condition. In regard to the anxiety he added: She is unable to do anything during an attack. In the medical report dated 3 July 2012 submitted in support of the DSP application, Dr Chen indicated when answering the field about current treatment for her psychological or psychiatric conditions, that Ms Pelka received: … learn to live with it, medication on request.
Dr Chen provided a medical certificate for Ms Pelka indicating she suffered SVT, anxiety and depression and was unfit for work from 4 May 2012 to 4 August 2012, and indicated that she attended at a cardiologist and psychologist. Dr Medi’s report confirmed the heart problem. Ms Pelka has been taking medication for the condition.
I am satisfied from the evidence that Ms Pelka’s heart condition is permanent, that is it has been fully diagnosed, treated and stabilised. I have assigned five impairment points from Table 1 for this condition.
5 There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
As to the psychiatric or psychological conditions; Dr Chen provided a medical certificate for Ms Pelka, certifying her unfit for work from 27 August 2012 to 27 November 2012. He indicated she was suffering anxiety and depression and that the condition was temporary, but also ticked the box indicating the symptoms were likely to persist. In a medical certificate covering the period 15 October 2012 to 15 July 2013, Dr Chen indicated that Ms Pelka’s severe anxiety and depression was permanent and symptoms were likely to persist.
Based on Dr Chen’s reports and the comments of Dr Swinbourne, I am satisfied that Ms Pelka has suffered anxiety, depression, panic and other psychiatric and psychological illness, as diagnosed for some years before she began consulting Dr Chen in 2003. However, Ms Pelka has refused to take medication for her psychiatric illness on the basis that she does not tolerate it well. Dr Swinbourne diagnosed PTSD and Major Depressive Disorder, diagnoses not corroborated by any medical practitioner. On the basis of the evidence before me, I am unable to conclude that Ms Pelka’s psychiatric illness, whilst perhaps disabling as she describes, is permanent under the legislation. Her psychological or psychiatric conditions have not been fully diagnosed, treated or stabilised. No impairment points can be assigned.
As to the scoliosis; I have noted from Ms Pelka’s evidence that her scoliosis causes her pain. However, the X-ray evidence before me dated 25 July 2003 indicates that she has minimal scoliosis with minimal degeneration. Ms Pelka told me that she had had no further investigations in regard to her scoliosis. She reported that her general practitioner told her they could do nothing more for her scoliosis than she was already doing, but that as she got older and the condition became worse, she may have to have corrective surgery. I cannot be satisfied from the evidence that Ms Pelka’s scoliosis has been fully diagnosed, treated or stabilised. Accordingly, I cannot find that it is a permanent condition and cannot assign impairment points for her scoliosis.
In conclusion, Ms Pelka is assigned five impairment points under the Impairment Tables for her SVT, and no points for the other conditions during the relevant period, 11 September 2012 to 11 December 2012. This means that she does not reach the threshold 20 points pursuant to section 94(1)(b) of the Act and it is not necessary for me to consider whether she has a continuing inability to work (section 94(1)(c)). I do note though that the JCA assessors found she had a capacity to work and have discussed it in their reports. Ms Pelka does not qualify as a person with a severe impairment in the relevant period, and the evidence shows she has not actively participated in a program of support which she must do. Accordingly, she cannot be qualified for DSP during the relevant period.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ..............[sgd]..........................................................
Associate
Dated 21 February 2014
Date of hearing 16 January 2014 Applicant In person Solicitor for the Respondent Mr S Davidson, Department of Human Services
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