Alavi Moghaddam and Secretary, Department of Social Services (Social services second review)
[2015] AATA 686
•9 September 2015
Alavi Moghaddam and Secretary, Department of Social Services (Social services second review) [2015] AATA 686 (9 September 2015)
Division
GENERAL DIVISION
File Number
2014/5952
Re
Elham Alavi Moghaddam
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 9 September 2015 Place Brisbane The Tribunal affirms the decision under review.
...............................[Sgd].......................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – value of medical evidence – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth), s 63, 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)SECONDARY MATERIAL
Guidelines to the Tables for the Assessment of Work-related Impairment for DSP
REASONS FOR DECISION
Senior Member A C Cotter
9 September 2015
INTRODUCTION
Ms Elham Alavi Moghaddam lodged a claim for Disability Support Pension (“DSP”) on 1 October 2013.[1] Although the claim form did not list her disabilities, illnesses or injuries, it was accompanied by a medical report completed by her general practitioner, Dr Alireza Irannezhad, which did.[2] That report identified two conditions, Autoimmune Hepatitis and Depression/Anxiety, as having a significant impact on Ms Alavi Moghaddam’s functional ability. It also listed several other conditions from which she was also suffering, but which were well managed and caused minimal or limited impact on her ability to function.
[1] T Documents, T 58, pages 171-195.
[2] T Documents, T 57, pages 160-170.
Ms Alavi Moghaddam subsequently attended an assessment with a Job Capacity Assessor (“JCA”).[3]
[3] T Documents, T 60, pages 198-204.
On 4 December 2013, Ms Alavi Moghaddam’s claim was rejected on the ground that her impairments did not attract a rating of 20 points or more.[4] She sought a review, first by an Authorised Review Officer,[5] and then by the Social Security Appeals Tribunal (“SSAT”),[6] neither was successful in overturning the original decision.
[4] T Documents, T 61, page 205.
[5] T Documents, T 66, pages 225-232.
[6] T Documents, T 2, pages 4-8.
Still dissatisfied with the outcome, Ms Alavi Moghaddam sought a review of the SSAT decision by this Tribunal. Both Ms Alavi Moghaddam and the Secretary provided written consent for the Tribunal to review the decision on the papers provided to it, without holding a hearing.
Before considering the issues raised on the material before me, it is convenient to reflect on some of the key legislative provisions relevant to this claim.
THE LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 1 October 2013). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the relevant period for considering whether Ms Alavi Moghaddam qualified for DSP is between 1 October 2013 and 31 December 2013.
[7] See ss 41 and 42, and Schedule 2, cll 3 and s 4(1) of the Social Security (Administration) Act 1999 (Cth).
The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[8] The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.
[8] See s 26(1) of the Act.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[9] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[10]
[9] See s 6(3) of the Determination.
[10] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[11]
[11] See s 6(5) of the Determination.
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[12]
[12] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[13]
[13] See s 6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Table. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. In deciding what functional impact an impairment has, the relative descriptors for each impairment rating in a Table should be compared to determine which rating is to be applied.[14]
[14] See s 11(1) of the Determination.
In the case of episodic or fluctuating conditions, a rating is to be assigned that takes into account the severity, duration and frequency of the episodes or fluctuations.[15]
[15] See s 11(4) of the Determination.
As regards the requirement that the applicant has a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:
a) have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and
b) be unable to work for at least 15 hours per week independently of a program of support; and
c) be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.
ISSUES FOR THE TRIBUNAL
In support of her claim, Ms Alavi Moghaddam provided a large volume of medical and other evidence. Based on that material, there is no dispute that she had impairments arising from Autoimmune Hepatitis and Depression and Anxiety, as well as from a number of other conditions identified by Dr Irannezhad in his report, namely Kienbock’s Disease, Fibromyalgia and hearing loss. The Secretary, quite rightly, accepted that Ms Alavi Moghaddam had impairments arising from those conditions and that she therefore satisfied the first of the criteria in s 94(1)(a) of the Act.[16]
17.Consequently, the issues which remain to be determined by me are:
a) whether the impairments attracted a total impairment rating of 20 points or more under the Impairment Tables; and
b) if so, whether Ms Alavi Moghaddam had a continuing inability to work, during the relevant period.
[16] See Secretary’s Statement of Facts and Contentions dated 15 June 2015, paragraph [22].
Before I consider what ratings should be assigned under the Tables, there are some threshold issues that I need to address, such as whether the particular conditions were considered to be permanent at the relevant time.
I deal with those issues below, by reference to the various identified conditions.
CONSIDERATION
Do the impairments attract a total rating of 20 points or more under the Tables?
Autoimmune Hepatitis
It is not disputed that this condition was fully diagnosed, treated and stabilised at the relevant time. The Secretary, again quite rightly, accepted that to be the case.[17]
[17] See Secretary’s Statement of Facts and Contentions dated 15 June 2015, paragraph [31].
The appropriate Table to consider in this instance is Table 10 (Digestive and Reproductive Function), which, according to its Introduction, is to be used where the person has a permanent condition resulting in functional impairment related to digestive system functions. Digestive conditions are said to include diseases that affect the liver.
In his report of 30 September 2013, Dr Irannezhad described the symptoms as: “abdominal pain, recurrent nausea/vomiting, dizziness, very nervous, lack of appetite”.[18] Similar observations were contained in his further report of 23 December 2013.[19] In her interview with the JCA in November 2013, Ms Alavi Moghaddam reported that she only had intermittent nausea/vomiting and continued to experience episodic exacerbations if she consumed food with a high fat content.[20]
[18] T Documents, T 57, page 164.
[19] T Documents, T 62, page 211.
[20] T Documents, T 60, page 199.
In light of that concession, I do not think that the impairment meets the descriptors for moderate functional impact under Table 10, they being cast in terms of far greater regularity and frequency than the episodic experiences reported by Ms Alavi Moghaddam. Rather, I think her self-report better reflects the descriptors for mild functional impact, namely that the person’s attention and concentration are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive system condition. I therefore consider that this impairment properly attracts five impairment points; there is nothing to suggest that it would regularly reach the situation required for moderate impact.
Depression and anxiety
It is not disputed that Ms Alavi Moghaddam’s Depression and Anxiety were fully diagnosed, treated and stabilised.[21]
[21] See Secretary’s Statement of Facts and Contentions dated15 June 2015, paragraph [40].
Dr Irannezhad noted the date of onset as 2005, with diagnosis in 2012; he described current treatment as medication, psychotherapy and psychiatric review.[22] Ms Alavi Moghaddam’s symptoms were summarised as low mood, lack of concentration, loss of interest in the things she used to enjoy, sleeping difficulty and recurrent panic attacks.[23] She was said to get frustrated very quickly and would lose her confidence with minimal stress; she was not able to function normally if exposed to public or stressful events.[24]
[22] T Documents, T 57, page 166.
[23] T Documents, T 62, page 214.
[24] T Documents, T 62, page 215.
Ms Alavi Moghaddam was treated for a relapse of her Depression and Anxiety by a psychiatrist, Dr Susan Roberts, who saw her at the Gold Coast Hospital on several occasions in 2012.[25] Later that year, she attended six sessions of psychotherapy with a clinical psychologist, Mr Pejman Hoviatdoost.[26]
[25] See T Documents, T 35 (page 125), T 36 (page 126), T 37 (page 127) and T 41 (page 132).
[26] See T Documents, T 55, page 157.
Table 5 (Mental Health Function) is the appropriate Table to consider. The descriptors for mild functional impact speak of the person having difficulties with “most” of the following: selfcare and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision making; work/training capacity. In contrast, the descriptors for no functional impact talk of the person having no difficulties with most of those matters. While, according to Dr Irannezhad, Ms Alavi Moghaddam experienced difficulties with some of those matters, it was not with the majority of them. I therefore consider that Ms Alavi Moghaddam suffered no functional impact in respect of her mental health function and that zero points should be assigned accordingly.
Hearing loss
Ms Alavi Moghaddam has a long standing hearing loss in her right ear. According to Ms Sigrid Ferguson, the audiologist she consulted, her specialist informed her that further operations or medical treatment would not improve her hearing in that ear. After discussing test results with Ms Ferguson in August 2013, Ms Alavi Moghaddam elected to go ahead with a hearing aid. An impression of her right ear canal was taken.[27] However, by the time Ms Alavi Moghaddam saw the JCA in November of that year, she had decided against getting a hearing aid as she could not afford the cost (about $2,000 to $3,000).[28]
[27] See T Documents, T 52, page 148.
[28] See T Documents, T 60, page 200.
While there is no doubt that the condition was fully diagnosed, the question is whether it was fully treated and stabilised, given the decision not to have a hearing aid. As mentioned earlier, “reasonable treatment” is treatment that is, amongst other things, available at reasonable cost. In the absence of evidence that she could have obtained some subsidy or assistance for the hearing aid, I believe that the figure she quoted to the JCA would have been prohibitive in the circumstances, such that it was not unreasonable for her to decline that treatment.
It is therefore necessary to consider the terms of Table 11 (Hearing and other Functions of the Ear) to determine what impairment rating should be assigned.
Ms Ferguson described Ms Alavi Moghaddam as having a “mixed “ hearing loss, with the left hearing thresholds within normal limits and the right within moderate limits, rising to mild in high frequencies.[29] Before the SSAT, Ms Alavi Moghaddam reported that she experienced difficulties in crowded situations when there is background noise and with a person on her right side; if she sleeps on her left side, she does not hear her baby.[30] Dr Irannezhad listed the hearing impairment as generally well managed with minimal or limited impact on ability to function,[31] but provided no further details.
[29] See T Documents, T 52, page 148.
[30] T Documents, T 2, page 7, paragraph [19].
[31] See T Documents, T 57, page 169 and T 62, page 216.
Having regard to Ms Ferguson’s observations and Ms Alavi Moghaddam’s evidence to the SSAT, I consider that Ms Alavi Moghaddam would satisfy the descriptor for mild functional impact. I therefore assign five points to this impairment.
Fibromyalgia
The Rheumatologist, Dr Andrew Gough, recommended in September 2013 that Ms Alavi Moghaddam commence Amitriptyline to improve her sleep and then commence a water based exercise program. He thought that with improved fitness and muscle tone, her pain would improve or resolve, such that he hoped it would “lead to her full recovery over the next 6-12 months.”[32]
[32] T Documents, T 53, page 151.
In view of those comments, I do not believe that this condition could be considered to be fully treated and stabilised during the relevant period. No impairment rating can therefore be assigned in respect of it.
In any event, I note that Dr Irannezhad described this condition as generally well managed and causing minimal or limited impact on ability to function.[33]
[33] See T Documents, T 57, page 169 and T 62, page 216.
Kienbock’s Disease
There is no dispute that this condition is fully diagnosed, treated and stabilised.[34]
[34] See Secretary’s Statement of Facts and Contentions dated15 June 2015, paragraph [51].
Table 2 (Upper Limb Function) is the appropriate table to consult. The descriptor for no functional impact is:
The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
An Occupational Therapist, Mr Gordon Siebel, in his report dated 3 March 2010, described the following restrictions attributable to Ms Alavi Moghaddam’s right wrist condition:
a) diminished capacity to bilaterally handle loads greater than 6 kg;
b) lessened tolerances for tasks requiring repetitive forceful grasping with the right hand;
c) unable to weight bear fully through right hand and wrist to adopt crawling or pushing positions;
d) unable to safely climb ladders.[35]
[35] T Documents, T 26, page 67.
To the JCA, Ms Alavi Moghaddam reported that she had to avoid lifting more than 5 kg with her right hand and that she finds carrying her 15 kg child exacerbates her pain levels.[36]
[36] T Documents, T 60, page 200.
Dr Irannezhad described this condition as generally well managed and having minimal or limited impact on Ms Alavi Moghaddam’s ability to function.[37]
[37] See T Documents, T 57, page169 and T62, page 216.
In light of those opinions and reports, I consider that the appropriate rating under Table 2 is zero points. While Ms Alavi Moghaddam had some difficulties with lifting heavy weights and repetitive movements, there was no suggestion that, at the relevant time, she was unable to handle, manipulate and use most objects encountered on a daily basis without any difficulty.
Total impairment rating
It follows from what I have said that Ms Alavi Moghaddam’s overall impairment rating is 10 points, being five points for her Autoimmune Hepatitis and five points for her hearing loss.
As Ms Alavi Moghaddam does not have an overall impairment rating of 20 points or more, she does not satisfy the second criterion under s 94 of the Act and therefore, did not qualify for DSP at the relevant time
Continuing Inability to Work
In light of my conclusion that Ms Alavi Moghaddam did not have an overall impairment rating of 20 points or more and did not qualify for DSP at the relevant time, it is unnecessary for me to consider the issue of whether she had a continuing inability to work at the relevant time.
However, for completeness, I make the following comments:
(a)Because Ms Alavi Moghaddam did not have a “severe impairment” as that term is understood under the Act (namely, having 20 impairment points or more under a single Table), she was required to have actively participated in a program of support for 18 months in the 36 months preceding the date of claim. Based on the material before me,[38] it does not appear that that requirement was satisfied; Ms Alavi Moghaddam had approximately six months’ active participation in a program of support between October 2010 and April 2011 and several months’ participation between January 2012 and April 2012. There is no evidence to suggest that any of the exceptions to this requirement apply.
(b)In his reports of September 2013[39] and December 2013,[40] Dr Irannezhad states that Ms Alavi Moghaddam had the capacity to work up to 16 hours per week. Consistent with that, the JCA concluded that she had a capacity to work with intervention from 15 to 22 hours per week.[41] Ms Alavi Moghaddam also noted in her claim form that, before making the claim, she had been working part-time for 20 hours per week at the Wesley Hospital and was then on maternity leave.[42] In June 2014, it appears that she was completing a Diploma in Beauty Therapy which took 21 hours per week.[43] In light of those matters, I do not believe that Ms Alavi Moghaddam would be able to satisfy the requirement that she was unable to work at least 15 hours per week independently of a program of support.
(c)There does not appear to be any evidence to suggest that Ms Alavi Moghaddam’s impairments prevented her from undertaking a training activity that would enable her to work within two years of the relevant period. In fact, her participation in the Beauty Therapy course suggests otherwise.
[38] See T Documents, T 80, page 312.
[39] See T Documents, T 57, page 169.
[40] See T Documents, T 62, page 216.
[41] See T Documents, T 60, page 203.
[42] See T Documents, T 58, page 189.
[43] See T Documents, T 64, page 222.
In light of those matters, I have considerable doubts that Ms Alavi Moghaddam would have been able to satisfy the requirement that she had a continuing inability to work at the relevant time.
CONCLUSION
I do not consider that, during the relevant period, Ms Alavi Moghaddam qualified for DSP, in that she did not have an impairment rating of 20 points or more. Even if that were not the case, I do not think that she would have been able to satisfy the continuing inability to work requirement under the Act, and therefore, would have failed to qualify on that ground.
As a result, the decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter ............................[Sgd]............................................
Associate
Dated: 9 September 2015
Date(s) of hearing Hearing on the Papers Applicant In person Solicitors for the Respondent Michelle Brazier, Solicitor
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