Alammedine and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 592
•12 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 592
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3158
GENERAL ADMINISTRATIVE DIVISION )
ReHANAN ALAMMEDINE
Applicant
AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date12 August 2009
PlaceSydney
DecisionThe decision under review is affirmed.
....................[sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – claim for – rejected - whether the Applicant had an impairment rating of 20 points or more under the impairment tables – held certain conditions not fully diagnosed or treated and stabilised – nil impairment points - decision affirmed
Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, s 94, Sch 1B
Social Security (Administration) Act 1999, Sh 2, cll 4, 5 and 6
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 22
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428
REASONS FOR DECISION
| 12 August 2009 | Ms N Isenberg, Senior Member |
| decision under review |
Mrs Hanan Alemeddine’s claim for disability support pension (DSP), made on 10 January 2008, was rejected by Centrelink. She unsuccessfully sought review by an Authorised Review Officer and the Social Security Appeals Tribunal (SSAT), which affirmed the decision on 23 June 2008. She now seeks review in this Tribunal.
Centrelink, on behalf of the Secretary of the Department of Family and Community Services (the Secretary), did not consider that Mrs Alameddine’s various conditions attract the required 20 point impairment rating under the Impairment Tables in the Social Security Act 1991 (the Act). Nor did Centrelink consider that Mrs Alameddine meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work.
These requirements are set out in section 94 of the Act and are, relevantly, as follows:
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;
…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
…
Clauses 4, 5 and 6 of the Introduction to the Impairment Tables in Schedule 1B of the Act provide:
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.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
issue before the tribunal
Was Mrs Alameddine qualified to receive DSP as at the date of her claim, 10 January 2008, and 13 weeks from that date?
This depends upon whether:
(a)Mrs Alameddine had a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables; and, if so,
(b)whether she has a continuing inability to work because of the impairment.
consideration period for entitlement to DSP
Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mrs Alameddine was entitled to the DSP by 10 April 2008.
In Harris v Secretary, Department of Employment and Workplace Relations(2007) 158 FCR 252 at 253, Gyles J confirmed the strict window of time that the decision-maker is looking at in such cases:
[1] ... It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, ... and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time. ...
evidence
In evidence were the documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), as well as the following documents tendered by Mrs Alameddine:
- a Statutory Declaration by Mrs Alameddine dated 17 April 2009;
- medical reports from Mrs Alameddine’s general practitioner (GP), Dr Selim; dated 25 October 2008, 16 April 2009 and 25 June 2009, and a “medication summary” (as at 13/9/08)
- medical reports from Dr Kokkinos, neurologist, dated 19 August 2008 and 24 October 2008;
- a medical certificate from, Dr Daniel, GP dated 19 November 2008;
- reports from two psychologists, Mr Girgis (dated 1 April and 24 June 2009) and Mr Metry (dated 30 August and 25 October 2008); and
- a CT scan of the lumbar sacral spine and report by Dr Parker, radiologist.
Mrs Alameddine gave oral evidence that her conditions generally are now much worse than during the relevant period. I asked her to specifically comment on her conditions as at the date of her application and in the 13 weeks thereafter.
consideration of the evidence and findings
Did Mrs Alameddine, by 10 April 2008, have a physical, intellectual or psychiatric impairment of 20 points or more?
Mrs Alameddine’s application was supported by a treating doctor’s report (TDR) by her GP, Dr Selim, who identified Mrs Alameddine as suffering epilepsy and varicose veins, depression, hypertension and reflux oesophagitis.
On 13 February 2008, Mrs Alameddine gave Centrelink a letter from Dr Abdulla dated 12 February 2008 stating that Mrs Alameddine also experiences multiple joint pain in her elbow, knee and wrist due to arthritis. Because that information related to the relevant period that condition also was considered in considering Mrs Alameddine’s entitlement to DSP.
Each claimed condition was considered in turn.
Epilepsy
In the TDR of 8 January 2008, Dr Selim diagnosed Mrs Alameddine with epilepsy and stated that she is medicated with Epilem. The condition causes an inability to concentrate and dizziness.
Mrs Alameddine gave evidence of having suffered epilepsy since the age of three and that she has been medicated since that time. She said she has palpitations, she vomits and collapses and has to be helped to a chair. Her hearing is affected and she becomes “unconscious”. She said the condition varies from day-to-day and sometimes occurs when she is sleeping and she will vomit on her pillow. She suffers attacks if she is very tired, receives bad news or is shocked. When the condition is “very strong” she may feel like she has no energy and this feeling might continue for 5-6 days, and she needs to be fed drops of water. Although she said she “can’t hear anything” she also said she was extremely sensitive to noise. She noted by way of example of how she is affected that the heat of the shower makes her dizzy.
She was unable to give a clear account of the frequency or duration of the attacks. She could not remember exactly when she had last had an attack, noting though that once she collapsed and hurt her head and that in 1998 she had to be taken to hospital by ambulance. The day prioer to the hearing she was “not strong”. She spoke of being dizzy, having a poor memory and having difficulty concentrating. She said that in the relevant period she might have had a fit every 2 weeks to a month, or it may have been twice daily. Her description in her evidence did not suggest any loss of consciousness although, in a Job Capacity Assessment Report in November 2007, she was recorded as having said that the ictal phase lasted approx three minutes.
She presently sees a neurologist, Dr Kokkinos, who provided two brief reports dated 19 August 2008 and 24 October 2008. He wrote of treating Mrs Alameddine for migraines and opined that her “collapses sound emotional”. Dr Kokkinos was able to take a history that there were no “tonic clonic movements etc”, which refers to an absence of grand mal seizures. In a report dated 9 April 2008, Dr Benjamin, consultant psychiatrist, opined that Mrs Alameddine’s “fits” might be pseudo-seizures rather than true fits, although he thought she might be suffering both.
On 17 January 2008, Ms McMillan completed a job capacity assessment with Mrs Alameddine, with the assistance of Mr Titmuss, a registered psychologist. Ms McMillan apparently proceeded on the basis that Mrs Alameddine suffered gran mal seizures and assessed the epilepsy condition at 10 points under Table 21 for the ictal and post - ictal phases of Mrs Alameddine’s epilepsy.
The SSAT found that Mrs Alameddine’s epilepsy is not a fully documented, diagnosed condition which has been investigated, treated and stabilised. It also observed that further assessment and investigation might be required in light of Dr Benjamin’s observations about the psychogenic basis of her seizures. Dr Kokkinos’ reports have since come to hand.
In her application for review to this Tribunal Mrs Alameddine stated that her epilepsy is “more serious than they think”, but there was no medical evidence to indicate that this was the case.
A DSP applicant’s functional impairment rating must be determined under the Impairment Tables: s 94(1)(b). The Introduction to the Impairment Tables makes it clear that an applicant’s condition must be a “fully documented, diagnosed condition which has been investigated, treated and stabilised” before the Impairment Tables can be applied to assign an impairment rating. Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”. The applicant’s condition must be “permanent” before it can be assigned a rating. A diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned. A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years: see Secretary, Deapartment of Employment and Workplace Relations v Parry [2007] FCA 1606 at [9] – [11] (Finn J).
In the present case, despite Mrs Alameddine’s account of having suffered epilepsy since the age of three, I am not reasonably satisfied that the condition is as she describes. The available neurological evidence does not support a diagnosis of epilepsy. The psychiatric evidence is equivocal. I therefore find that the condition is has not been fully documented and diagnosed which has been investigated, treated and stabilised. As such, it is not eligible for a point rating under the Impairment Tables.
Varicose veins
Mrs Alameddine gave evidence of suffering varicose veins since 1991. She has had two operations but these had not been successful. Her varicose veins extend from her right groin down her leg to her ankle, and the pain is most severe at the shin. Her legs are hot and she is unable to wear closed shoes. She is unable to stand on her right leg and ‘can’t walk’ because of the numbness. She said she was unable to feel her right leg at all unless she was pressed against something hard.
In the TDR, Dr Selim said only that the varicose veins caused leg pain. In a report dated 12 February 2008 Dr Haddad, GP, stated that Mrs Alameddine had surgery twice for her varicose veins and suffers pain in the legs from standing and prolonged sitting. In another letter, dated 8 April 2008, Dr Haddad wrote that Mrs Alameddine has severe pain in the right leg that worsens with walking and standing.
A medical certificate, dated 24 April 2008, was provided by Dr Alkurdi GP in which he wrote that Mrs Alameddine suffers varicose veins and chronic bilateral leg pain that prevents her from sitting or standing continuously for more than 30 minutes.
Mrs Alameddine confirmed that she had travelled to Lebanon on 2 June 2009 for several weeks. She had managed the long flight by moving around the cabin and lying across vacant seats, if available.
The SSAT observed Mrs Alameddine walk around and sit at the hearing for more than one hour without difficulty. This conflicted with her evidence that “her right leg symptoms render her totally incapable of walking, climbing, kneeling, squatting and engaging in normal household activities”. The job capacity assessor determined Mrs Alameddine was able to walk without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres. In contrast, at the hearing, Mrs Alameddine gave her evidence mostly while sitting on the floor.
The job capacity asssesors, Centrelink and the SSAT assigned nil points for Mrs Alameddine’s varicose veins pursuant to Table 4. The relevant part of that Table provides:
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
…
On balance, I consider that it is appropriate to allocate nil points in respect of Mrs Alameddine’s varicose veins under Table 4, in respect of her condition at the reIevant date.
Depression
Mrs Alameddine said that she was depressed because she had to go to doctors so much. She said she feels tired and is sad because of her sickness. She said that she is also sad when she sees pregnant women because she ‘can only have babies once every 8 years’. I note she is presently 46 years old. Separately she said that she is nervous about the menopause. She said she is not taking any medication because she had made no improvement when taking it.
She said she just sits in her room and passes the day by watching television. She does not go out or socialise.
In his TDR, Dr Selim wrote that Mrs Alameddine’s depression is generally well managed and had minimal or limited impact on her ability to function. Dr Selim wrote on 14 February 2008 that Mrs Alameddine had been referred to a psychiatrist.
Mrs Alameddine said that Dr Benjamin was the first psychiatrist she had seen. In his report of 9 April 2008, Dr Benjamin states that Mrs Alameddine‘s presentation was consistent with Chronic Depressive Disorder. He wrote that Mrs Alameddine’s depression occurred following her giving birth to a deformed baby who died, and following eight miscarriages that occurred prior to her separation from her husband in 1998. Dr Benjamin noted that her previous poor compliance with medication for depression might have resulted in a limited response to treatment. Dr Benjamin recommended she resume Lexapro for depression and commence cognitive behavioural therapy. He did not think it necessary to see Mrs Alameddine again.
Mrs Alameddine said she did not resume taking the medication as advised, preferring to “talk” to a doctor. She also said she stopped because she was gaining weight.
Mrs Alameddine then saw Mr Metry, of MM Psychological Support Services, for 7 - 10 sessions commencing on 17 May 2008. In his report of 30 August 2008, he states that Dr Selim referred Mrs Alameddine for assessment and treatment and that Mrs Alameddine was receiving cognitive behavioural therapy. Mrs Alameddine did not think her condition improved by talking with Mr Metry. From June 2009 she has been seeing Mr Girgis, another psychogist, who provided reports dated 1 April 2009 and 24 June 2009. Mrs Alameddine thought she was possibly making slow improvement with Mr Girgis, who she claimed to have been seeing for about a year.
I do not consider that Mrs Alameddine’s depression was, by 10 April 2008, a fully documented, diagnosed condition that had been investigated, treated and stabilised, and it is therefore not rateable. Dr Benjamin noted, and Mrs Alameddine agreed, she had not seen a psychiatrist or psychologist before early April 2008. He noted her poor compliance with medication and Mrs Alameddine’s evidence was that she did not take the recommended medication. Mrs Alameddine did not commence cognitive behavioural therapy until May 2008.
Previous decisions of the Tribunal have held that an applicant's failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been “fully treated”: Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment).
I am not satisfied, on the material before me, that there is a medical or other compelling reason that precludes Mrs Alameddine from undertaking treatment for her condition: cl 6 of the Introduction to the Impairment Tables and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428 at 438 (Gyles, Stone and Buchanan JJ).
Hypertension
Mrs Alameddine said that sometimes her doctor checks her blood pressure and it is high. She feels like she is shaking and nervous and feels like she will have an epilepsy attack. The doctor told her to try to relax. She has been taking micardis for 3 - 4 years.
In his TDR, Dr Selim wrote that Mrs Alameddine’s hypertension was generally well managed and had minimal or limited impact on her ability to function.
The job capacity assessor rated Mrs Alameddine’s hypertension at nil points from Table 20, noting that the condition was currently controlled with medication and that the dosage has been reduced.
The relevant part of that Table provides:
TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
On balance, I consider that it is appropriate to allocate nil points in respect of Mrs Alameddine’s hypertension under Table 20.
Reflux Oesophagitis
Mrs Alameddine belched throughout the hearing and “vomited”.
She said that for the last 6 - 7 years, no matter what she eats, she feels like vomiting. She has tried changing her diet but it makes no difference. Her medication is continually changed. Despite frequent vomiting she has had no weight loss. She explained that her epilepsy medication makes her put on weight and also she is very sleepy and has no activities, meaning presumably, that she does little to expend energy and thereby burn off fat.
She is too scared to have the recommended endoscopy to investigate her condition because she understands it to be painful procedure. Notwithstanding that she has not undergone that procedure I find that the condition is in fact rateable in that, at the reIevant date, it appears, at least in the view of her GP, Dr Selim, that the reflux oesophagitis was generally well managed and had minimal or limited impact on her ability to function.
The job capacity assessor, on 17 January 2008, rated the condition at nil points from Table 11.1. The assessor noted that Mrs Alameddine was managing this condition with medication (Nexium) and diet. The SSAT noted that her symptoms were responding well to medication.
The reIevant Table provides:
TABLE 11.1 GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT
Rating Criteria
NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.
TEN Nausea and vomiting: moderate symptoms despite optimal treatment
Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment
Past gastric surgery with moderate dyspepsia and dumping syndrome
Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
On balance, I consider that it is appropriate to allocate nil points in respect of under Table 11.1.
Arthiritis
Dr Selim wrote, on 7 and 14 February 2008, that Mrs Alameddine has arthralgia. For reasons which are unclear he did not mention this is in his TDR. Dr Abdulla wrote on 12 February 2008 that Mrs Alameddine experiences multiple joint pain in her elbow, knee and wrist due to arthritis. A letter from Dr Abdulla, dated 10 April 2008, states that Mrs Alameddine has suffered multiple joint pain for four months and needs ongoing treatment and physiotherapy.
Mrs Alameddine said in her evidence that she has pain in her joints especially the elbow and knee. She said that if she is peeling a carrot she cannot continue because of pain in her joints. She said she was unable to do her hair, although she was observed at the hearing to re-do her (high) ponytail. She said she has no pain if she is not holding anything.
She said her knee condition makes it impossible for her to squat. Her preferred siting position is on the floor and she gave much of her evidence from this position. The pain in her knees though, is not as bad as the pain in her elbows.
Centrelink submitted that Mrs Alameddine’s multiple joint pain was not a fully documented, diagnosed condition that had been investigated, treated and stabilised within the relevant period.
There is insufficient evidence about the reIevant period as to what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. Indeed Dr Abdulla’s letter of 10 April 2008, though marginally outside the reIevant period, states that Mrs Alameddine had the condition for 4 months, continued to experience pain after an injection and needs ongoing treatment and physiotherapy. It cannot be said that Mrs Alameddine’s arthritis/arthralgia was, by the reIevant date, a fully documented, diagnosed condition that had been investigated, treated and stabilised, and it is therefore not rateable.
Other conditions
Mrs Alameddine complained of debilitating back pain and was concerned that she had been asked no questions about that condition. Several times during the hearing I reminded her that I was only able to consider her condition during the reIevant period.
A letter by Dr Haddad dated 6 June 2008 notes long-term back pain. I note though that Mrs Alameddine had not been referred for a CT scan in relation to her back until 5 June 2008, that is, well after the reIevant period. In a report of 5 June 2008 Dr Mansoor Parker noted mild facet joint degenerative change, mild posterior disc bulges and sitting intolerance. A report by Dr Parker dated 5 August 2008 refers to a nerve root block and the attached pain chart completed by Mrs. Alameddine. It could not be said that by the end of the reIevant period the condition was one which had been fully documented and diagnosed which has been investigated, treated and stabilised. As such, it is not eligible for a point rating under the Impairment Tables.
A letter from Dr Kokkinos to Dr Selim, on 19 August 2008, refers to migraines, but there was no detailed evidence about that condition, nor did Mrs Alameddine mention it. She said she had a “puffer” for sob, but did not elaborate, and there was no medical evidence about that condition. For the reasons discussed above, I do not consider that either of these conditions was rateable.
Combined Impairment Rating
Mrs Alameddine’s overall impairment rating is therefore nil points. This falls short of the 20 points or more required under section 94 of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether Mrs Alameddine has a continuing inability to work.
decision
The decision under review is affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...........[sgd]............
Steven Mulipola, Associate
Date of hearing: 24 July 2009
Date of decision: 12 August 2009
Representative for the Applicant: Self-representedRespresentative for the Respondent: Centrelink Legal Services and Procurement
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