Almaz Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 88
•21 February 2013
[2013] AATA 88
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4772
Re
Almaz Younan
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 21 February 2013 Place Sydney The Tribunal affirms the decision under review.
........................................................................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Ms Younan claimed disability support pension on 18 March 2012. A Centrelink officer rejected Ms Younan’s claim on the basis that she had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension as her conditions were not fully diagnosed, treated and stabilised. The decision was affirmed, on further internal review, by an authorised review officer and then by the Social Security Appeals Tribunal.
Ms Younan currently suffers from:
(a)spinal disorder;
(b)haemorrhoids;
(c)anaemia;
(d)headaches; and
(e)reflux.
ISSUES
Section 94 of the Act provides for the following requirements for eligibility for disability support pension:
(i)a physical, intellectual or psychiatric impairment; and
(ii)an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and
(iii)continuing inability to work.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Ms Younan during the period from the date of her claim and for the following 13 weeks may be considered for assessment of her qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 18 March 2012 to 12 June 2012.
It is not in dispute that Ms Younan has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in her application.
DOES MS YOUNAN HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 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 two years.
Paragraph 6 of the Introduction provides that when considering 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 two years.
I will deal with each of Ms Younan’s conditions in turn.
Spinal disorder
Ms Younan’s spinal condition is permanent. Dr A Sanki, general surgeon, in a report dated 14 March 2012, said she has “C4/5/6 – Disc…. painful neck – radicular pain, shoulders…” and that her treatment includes Panadol Osteo. She reported the date of onset as 2011. Dr J Sanki, radiologist, in reports dated 18 November 2011 and again in 25 September 2012, said Ms Younan has mild to moderate spondyltic change.
Ms Younan said she suffers pain in her neck and back. She said she suffers “daily, weekly and monthly pain” and that it is much worse now than at the time she claimed disability support pension in March 2012. She said that sometimes she has sleepless nights due to the pain in her neck.
Ms Younan said she is now unable to handle an object weighing more than one kilogram, whereas in March 2012 she could do that. In March 2012 she could drive for about 20 minutes, but now she cannot. When she was doing household chores in March 2012 she was able to stand in the laundry and kitchen for twenty minutes and now she cannot even do that. Now she cannot hang the washing on the line at all. In and around March 2012 she was able to do this chore sometimes. She could turn her head sometimes in and around March last year, but now she cannot.
Ms Younan said that when she sits in her chair she wears a belt or a brace and when she goes to get up, she does it slowly. She said this has worsened since last year in March. Ms Younan said, unusually, that when she wakes up in the morning she drops herself slowly on to the floor in order to get up.
Ms Younan also described pain in her lower back and legs, especially her left leg and knee. She said she can walk for ten minutes but not longer than that. She said the hospital pain clinic has given her exercises to do.
Table 4 concerns Spinal Function and provides:
Points Descriptors 0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
The Secretary contends that Ms Younan’s spinal condition has minimal functional impact and should be assigned a rating of five according to Table 4 of the impairment tables. On the basis of Ms Younan’s description of her symptoms and limitations as of March 2012, I agree.
I am pleased to hear that Ms Younan now has been referred to a pain clinic.
Haemorrhoids
Ms Younan described haemorrhoid symptoms every two or three weeks. She said she began using relief cream only one month ago and that the pain is as painful as childbirth. Dr A Sanki stated in her report dated 21 May 2012 that Ms Younan suffers from this condition, experiencing bleeding, swelling and pain but gives no information about the functional impact of the condition.
Given her very recent commencement of use of a cream, Ms Younan’s condition has not yet been fully treated and stabilised. It follows that it cannot attract an impairment rating. However, even if it were to be found to be a permanent condition and assessable under the Tables, there is no evidence of its impact on her work related or daily activities as required by Table 10, concerning Digestive and Reproductive Function.
Anaemia
Ms Younan gave evidence of symptoms of occasional dizziness. There is no medical information about her condition, apart from a brief mention by Dr A Sanki in her report of 14 March 2012, noting an onset date of 2011. In a report dated 21 May 2012, Dr A Sanki stated that Ms Younan received Vitamin B12 injections for a Vitamin B12 deficiency.
This is insufficient information to allow assessment under the tables.
Wrists
According to Dr A Sanki, Ms Younan had bilateral carpel tunnel surgery on her wrists in 2006. Ms Younan said that she has pain in her wrists when she handles heavy objects and cannot squeeze properly. She said the pain sometimes feels like pins and needles. In her report of 21 May 2012 Dr Sanki stated she is unable to lift pots off the stove in her kitchen and is noted to have weakness in the grip of both hands.
Table 2 concerns Upper Limb Function and provides:
Points Descriptors 0 There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5 There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10 There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20 There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30 There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
Ms Younan’s condition should be assigned a rating of five according to this table.
Headaches
Ms Younan said she suffers from headaches from time to time. She said she takes pain relief and sleeps when she has headaches. She said her headaches are attributed to her neck pain and her menopause. Dr Sanki noted headache as a symptom of her cervical spine condition. Her headache symptoms cannot be assigned an independent and additional impairment rating.
Reflux
Ms Younan complained of stomach pain or gastric reflux and said it affects her by preventing her from taking her medication. This has no direct functional effect on her and none that it assessable under Table 10. It cannot attract an impairment rating under these tables.
DECISION
On the basis of the above conclusions, Ms Younan does not meet the requirement for 20 points under the Impairment Tables. It follows that she does not qualify to be paid disability support pension. There is no need to examine her continuing ability to work.
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ....[Sgd]....................................................................
Associate
Dated 21 February 2013
Date of hearing 15 January 2013 Applicant In person Solicitors for the Respondent Ms S Mahony, Centrelink Program Litigation Review Branch
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