Aktas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 379 (23 April 2010)

Last Updated: 21 May 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 379

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0333

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KAMILE AKTAS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Miss E A Shanahan, Member

Date 23 April 2010

Place Melbourne

Decision

For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) E A Shanahan
Member

SOCIAL SECURITY - disability support pension (DSP) – cancellation of DSP – failure to meet s 94(b) and (c) of the Act – decision affirmed. Applicant requires further medical investigation and opinion.

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 80

REASONS FOR DECISION

23 April 2010

Miss E A Shanahan, Member

1. Mrs Aktas qualified for the disability support pension (DSP) on 29 December 2005. She agreed to undergo a DSP medical review on 22 April 2008. As a result of that review, a Centrelink delegate made a decision to cancel Mrs Aktas DSP on 4 September 2008. Centrelink is the service provider for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs). An authorised review officer (ARO) of Centrelink affirmed this decision on 24 October 2008. Mrs Aktas sought a review of the ARO decision by the Social Security Appeals Tribunal (SSAT). Her application was unsuccessful. The SSAT affirmed the decision on 19 December 2008. Mrs Aktas applied to the Administrative Appeals Tribunal (AAT) on 27 January 2009 for a review of the SSAT decision.
2. The Tribunal was provided with the following documents: Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T documents):
   • the report and opinion of Mr Peter Kudelka, orthopaedic surgeon dated 6 July 2009;
   • a report from the psychologist, Sirma Ozkaraoglu, dated 4 May 2009;
   • a report from Associate Professor Sonia Grover, gynaecologist dated 29 September 2009;
   • assessment by Dr Therese Paulson of Health Services Australia dated 8 October 2009; and
   • a job capacity assessment (JCA) performed by Ms Mardi Brennan a psychologist on 21 October 2009.
   • The Tribunal also received a copy of an MRI examination of Mrs Aktas spine which appears to have been ordered by Mr Kudelka. This MRI was performed on 11 February 2010.
3. Mrs Aktas was self-represented and was assisted by her son and an interpreter in the Turkish language, Ms Gocer. The Respondent was represented by Ms A Bramley, an advocate from the Legal Services Section of Centrelink. Mrs Aktas gave evidence before the Tribunal.
4. The issue before the Tribunal was whether the Applicant continued to qualify for DSP as at 4 September 2008.

BACKGROUND TO THE APPLICATION

5. Centrelink’s initial acceptance of Mrs Aktas claim for DSP effective from 29 December 2005 seems to have been based entirely on the assessment of her treating general practitioner, Dr Munir (T12, p63) and a work capacity assessment conducted by Mr A Scott, a rehabilitation consultant and qualified psychologist. Mr Scott relied heavily on Dr Munir’s reports. The medical conditions from which Mrs Aktas suffered were identified as lumbar back pain, bilateral carpal tunnel syndrome and uterine fibroids. Mr Scott allotted each of these conditions an impairment rating of 10 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991(the Act).-He also stated that these conditions prevented her from doing any form of work.
6. As part of the DSP review, Dr Munir provided two further treating doctor reports (TDRs), dated 14 April 2008 (T4) and 20 September 2008 (T8) respectively. These reports stated that the conditions disabling Mrs Aktas were lumbar pain and disc prolapse and uterine fibroids causing abdominal pain. An investigation by EMG excluded the bilateral carpal tunnel syndrome that had been reported in 2005.
7. Mr D Parker, a psychologist, conducted a JCA on 11 August 2008.He assessed Mr Aktas’ spinal disorder as diagnosed, treated and stabilised. He said it attracted an impairment rating of 5 points under the Impairment Tables (T6). . He found the uterine fibroid condition had not been fully diagnosed, treated and stabilised and therefore it did not attract an impairment rating. He noted that Mrs Aktas was to see a psychologist for treatment of anxiety and depression.

EVIDENCE BEFORE THE TRIBUNAL

MRS AKTAS EVIDENCE

8. Mrs Aktas said she had difficulty understanding the variation in her impairment rating points assigned over the years, from 20 in 2005, 5 points in the JCA of August 2008 and 10 points as assessed by Mr Kudelka. She said she had had many spinal x-rays over the past four years, sufficient in number to cause her to worry about radiation effects. She had not been referred for an MRI as this was too costly. However, she told the Tribunal she had recently undergone an MRI of the spine but did not know the result. All she had been told by Dr Munir was that she needed an operation on her back and her uterus.
9. Mrs Aktas told the Tribunal she had always suffered from dysmenorrhoea (painful menstruation). A laparoscopy had been performed 20 years ago and no abnormality was found. She said she had not acted on Associate Professor Grover’s treatment recommendations, as she had not guaranteed that this treatment would cure her pain. Mrs Aktas understood that the pain would cease with menopause and she had decided to wait until that time. She is now 46 (nearly 47). She told the Tribunal her mother became menopausal at age 50 to 55, having had her last child at age 45.
10. Mrs Aktas said she becomes anxious and worries before each menstrual period, in dread of the pain; and continues to worry in anticipation of the next menstruation. She had seen a psychologist for therapy but this had been placed in abeyance awaiting clarification as to whether her symptoms were organic or psychological in origin. Mrs Aktas said her GP, Dr Munir, has told her all her pains are psychological in origin. She has sought advice from other general practitioners but without benefit and has not seen any specialists other than those arranged by Centrelink.
11. Mrs Aktas told the Tribunal she has recently developed a rash on her face. She described the rash as dry, red, flaky and itchy. She had seen a dermatologist who provided her with a cream and the rash was now improving.
12. Her current symptoms were low back pain, aches and pains in the arms and legs, muscle weakness, the facial rash and long-standing dysmenorrhoea, which incapacitated her for two days per month. She said she was not upset by the cancellation of the DSP nor did she challenge the decision to cancel it. She was worried about her health.

DOCUMENTARY EVIDENCE

DR MUNIR

13. Over the years Dr Munir provided numerous TDRs, all to the same effect. The only significant change was that he deleted the bilateral carpal tunnel syndrome from his reports following an EMG study. He does not think Mrs Aktas will be capable of working at any time because her conditions are permanent and disabling and her English is poor.

MR PETER KUDELKA

14. Mr Kudelka is an orthopaedic surgeon who examined Mrs Aktas at the request of Centrelink. Mr Kudelka obtained a history from Mrs Aktas that she was well until she was involved in a motor vehicle accident in 1986. She was a passenger in a stationary car struck from behind. She immediately developed neck and back pain. At the time she was working in a factory as a machinist. As a result of the accident she was off work for two years, after which time she returned to work until the factory closed in 1994. She had then undertaken a hairdressing course but was unable to continue because of numbness in her hands, some back pain and weakness in her hips and legs. In 1998 she had worked part time operating a cash register in a restaurant, clearing tables and performing some food handling. She ceased work in 2000 when she returned to Turkey for a period of five years.
15. Mrs Aktas told Mr Kudelka that the symptoms of neck and back pain have persisted and her legs continue to ache. The ache is particularly severe in the right leg and she notices muscle weakness in this limb at times. Mr Kudelka was aware of the presence of the uterine fibroid.
16. Mr Kudelka’s physical examination revealed normal cervical spine range of movement, tenderness of the lower lumbar spine and restriction of thoracolumbar movement to approximately half the normal range. He found no abnormality in Mrs Aktas’ hands or wrists and detected no sensory deficit in any limb.
17. Mr Kudelka was provided with multiple x-rays. An ultrasound confirmed the presence of a fibroid in the uterus. Several x-rays have been performed of the lumbosacral spine and the cervical spine, all of which showed no abnormality. A CT scan of the lumbosacral spine performed on 10 July 2006 showed minimal bulging of the L4/5 disc. An ultrasound of the shoulders in 2009 was normal.
18. Mr Kudelka made a diagnosis of age related degenerative changes in the cervical and lumber spine. From the orthopaedic point of view, he considered the condition permanent and that it would not change in the subsequent two years. Mr Kudelka assessed Mrs Aktas’ impairment rating at 10 points under the Impairment Tables, for the loss of half the normal range of movement of the thoracolumbar spine. He assessed the upper limb function and cervical spine function at nil points. Mr Kudelka believed that this assessment would have been the same at 4 September 2008. He considered that Mrs Aktas did not have a continuing inability to work and could perform duties such as hairdressing and restaurant work, provided she avoided sitting and standing for long periods and avoided lifting weights in excess of 10 kilograms.

SIRMA OZKARAOGLU, PSYCHOLOGIST

19. Ms Ozkaraoglu assessed Mrs Aktas’ anxiety and depression in accordance with Beck’s Anxiety Inventory and Beck’s Depression Inventory. Her assessment was that Mrs Aktas was severely anxious and severely depressed. Ms Ozkaraoglu listed Mrs Aktas symptoms as:

... low mood, high anxiety and panic, lethargy, feelings of helplessness and hopelessness, sleep disturbance, poor concentration and memory.

She advised Mrs Aktas to obtain counselling.. It would appear that Mrs Aktas is not seeing the psychologist until her symptomology is further elucidated.

ASSOCIATE PROFESSOR SONIA GROVER, OBSTETRICIAN AND GYAECOLOGIST

20. Associate Professor Grover saw Mrs Aktas on 17 September 2009 at the request of Centrelink. Given the long-standing nature of Mrs Aktas’ dysmenorrhoea, Dr Grover did not think her symptomatology was related in any way to the presence of a uterine fibroid. On pelvic examination, Dr Grover noted that the uterus was not particularly large. She did not consider a fibroid measuring seven centimetres by six centimetres to be huge.
21. Associate Professor Grover did not believe the condition had been fully investigated and diagnosed. She recommended a more careful ultrasound and the consideration of other treatment options such as a levonorgestrel intrauterine system. She did not agree that a hysterectomy was the only treatment available. She said that while Mrs Aktas was totally disabled for two days per month to a degree that would attract a rating of 20 points under the Impairment Tables, these symptoms were not present for the rest of the month. Dr Grover opined that Mrs Aktas condition and rating would have been the same or similar as at 4 September 2008.

DR THERESE PAULSON, HEALTH SERVICES AUSTRALIA

22. Dr Paulson noted Associate Professor Grover’s report and determined that the gynaecological condition and symptoms were not permanent as defined in the relevant legislation and thus an impairment rating was not applicable.

JCA REPORT DATED 23/10/2009

23. Ms M Brennan, a registered psychologist, performed this assessment on 21 October 2009. Based on the reports referred to above, Ms Brennan determined that the only condition that was fully diagnosed, treated and stabilised was the spinal disorder. This condition attracted an impairment rating of 10 points under the Impairment Tables. She considered the anxiety, depression and gynaecological disorder to be temporary and not fully diagnosed, treated or stabilised; and therefore not rateable under the Impairment Tables. She assessed Mrs Aktas as being capable of working 15 to 22 hours per week, increasing to 23 to 29 hours per week within two years of the time of assessment.

MRI, EXAMINATION OF LUMBAR SPINE

24. This study was carried out on 11 February 2010 and showed very mild disc bulging at the L4/5 and L5/S1 levels with mild facet joint arthropathy at the same levels. There was no central canal or exit foraminal stenosis or neural compression.

RELEVANT LEGISLATION

25. The requirements for eligibility for DSP are contained in s 94 of the Act.

(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; ...

26. Section 80(1) of the Social Security (Administration) Act 1999 concerns cancellation or suspension of a determination.
    1. If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.

SUBMISSIONS

27. Ms Bramley submitted that, based on the evidence before it, the Tribunal should affirm the decision of the SSAT.

TRIBUNAL’S DELIBERATIONS

28. On the evidence before the Tribunal, the objective data, which consists primarily of radiological investigations, does not explain Mrs Aktas symptoms. The Tribunal found Mrs Aktas to be a truthful witness who did not exaggerate her symptoms but was anxious about her health and somewhat confused by conflicting opinions and advice she has received over the years.
29. The degenerative changes reported on the MRI were described as mild or very mild. While Mrs Aktas’ back pain can be attributed to these changes, the widespread aches and pains cannot.
30. The dysmenorrhoea she suffers has been present since her early teens and disables her for two days a month. However, she has previously worked full time despite this symptom. Associate Professor Grover considered that the uterine fibroid played no role in the dysmenorrhoea.
31. The Tribunal has not been provided with the results of any biochemical or haematological testing, presuming these have been done. The symptoms of generalised aches and pains, fatigue, muscle weakness and a facial rash as described by Mrs Aktas are part of several disease complexes. It is not the Tribunal’s role to make a medical diagnosis. However, an assessment and investigation by consultant physician or rheumatologist appears warranted.
32. The Tribunal agrees with the impairment rating of 10 points under the Impairment Tables for Mrs Aktas lumbar spinal disease, although it could be regarded as generous. All the other claimed conditions are not yet fully diagnosed, treated or stabilised. Mrs Aktas’ anxiety and depression appear to be secondary to her physical symptoms.
33. The Tribunal finds that Mrs Aktas meets the requirements of s 94(1)(a) of the Act , in that she has a physical and perhaps a psychiatric medical condition. However, she does not meet the requirements of s 94(1)(b), in that her impairment rating is 10 points under the Impairment Tables. On the evidence before the Tribunal, Mrs Aktas does not have a continuing inability to work.
34. The Tribunal affirms the decision of the SSAT dated 19 December 2008.
    

I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E A Shanahan, Member

Signed: Dianne Eva

Clerk

Date of Hearing 23 April 2010

Date of Decision 23 April 2010

Advocate for the Applicant Self Represented

Advocate for the Respondent Ms A Bramley, Centrelink Advocacy,

Legal Service Branch