Altaf Taha and Secretary, Department of Social Services
[2013] AATA 833
[2013] AATA 833
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0519
Re
Altaf Taha
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Dean Letcher QC, Senior Member
Date 22 November 2013 Place Sydney The decision under review is affirmed.
......................[sgd]..................................................
Mr Dean Letcher QC, Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – physical and psychiatric impairment - whether condition “permanent” - whether condition fully diagnosed, treated and stabilised at relevant time - Impairment Tables - impairment rating less than 20 points - decision under review affirmed.
LEGISLATION
Social Security Act 1991; s 94
Security (Administration) Act 1999; s 42, Sch 2
CASES
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Dean Letcher QC, Senior Member
THE CASE
The Applicant seeks a review of the decision of the Social Security Appeals Tribunal (‘SSAT’) of 9 January 2013 which affirmed Centrelink’s decision to reject her claim for a Disability Support Pension lodged on 5 June 2012.
LEGAL BACKGROUND
The Applicant’s condition was assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act1991 (the ‘Act’) and the Impairment Tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(the ‘Impairment Tables’). Under this criteria the Applicant must establish an impairment rating of 20 points or more, as well a continuing inability to work (CITW), as a result of health conditions existing at the date of application, or during the following 13 week period through to 4 September 2012 (the ‘relevant period’): s 42 and Sch 2 of the Social Security (Administration) Act 1999.
Unlike many other reviews undertaken by the Administrative Appeals Tribunal (‘the AAT’), this Tribunal is not able to undertake a hearing de novo in this matter and is consequently unable to have regard to the Applicant’s situation at the time of hearing. The Applicant’s state of disability at the time of hearing is not the issue: Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560. Under the Social Security (Administration) Act1999 the role of the AAT is to decide whether the Applicant establishes a case for a pension as at the time of the DSP application or in the 13 week period thereafter i.e. during the relevant period. That is, the Applicant’s health conditions as assessed after 4 September 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal.
To form a basis for an impairment rating, a condition must be considered “permanent” as defined in the Impairment Tables, meaning each and every of the following:
(A)fully diagnosed by a health practitioner qualified to make such a diagnosis;
(B)fully treated – meaning given all treatment which might be of some effect; and
(C)unlikely to improve within the next two years (‘stabilised’).
Unless a health condition satisfies each of the criteria (A), (B) and (C), it cannot be given an impairment rating under the Impairment Tables.
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
In deciding whether a condition is stabilised, the Tribunal must consider whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
In order to establish a CITW where the person’s impairment is not a severe impairment, the Tribunal must be satisfied that the Applicant has actively participated in a program of support, and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years.
However, a CITW assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is ‘permanent’ (as defined above), it will not be taken into account when assessing CITW.
FACTUAL BACKGROUND
The Applicant is a 52 year old divorcee of Lebanese background who has never been in paid employment. She has a number of undoubted physical and psychological difficulties. Her application for DSP was based on the following health conditions:
Musculo-skeletal [neck and back pain]
In his report to Centrelink dated 25 May 2012, the Applicant’s general practitioner, Dr Maroun, listed “severe low back pain” as one of the “medical conditions that are generally well-managed and that cause minimal or limited impact on [the Applicant’s] ability to function” but added to the list “chronic disabling symptoms”. He attached no investigation or specialist reports. The Applicant’s neck was not mentioned in this report, however in a report dated 16 July 2012 he listed as worst conditions “neck pain low back degenerative c[cervical] spine”.
He noted that the diagnosis was ‘confirmed’ but gave no detail as to how it was confirmed.
The Tribunal is of the opinion that ‘Back pain’ is not a diagnosis. Further, it perhaps indicates that by referring the Applicant to Dr Marabani, Rheumatologist, Dr Maroun had not come to a definitive diagnosis or a full treatment plan.
Following x-rays and CT scans, Dr Marabani reported on 11 March 2013 (outside the relevant period) that there was no definite radiculopathy (impingement on nerves) but that the Applicant “needs to be assisted with weight loss and physiotherapy for her spinal degenerative disease”. Assuming that this is a full diagnosis, there is still no full treatment and no statement of stabilisation, event outside the relevant period. This is despite Dr Maroun’s statement that it was “thoroughly and completely investigated and treated. No help with treatments”. That opinion seems to be contradicted by the rheumatologist who is more appropriately qualified to diagnose.
The Applicant also provided the Tribunal with a physiotherapy report dated 29 July 2010 which states there was “no complaint of neck or back pain” and advised the patient to continue exercise. Mrs Taha did not continue weight loss physiotherapy or exercise.
Hence, there is no definitive diagnosis nor has a full array of treatments been attempted. The Tribunal finds that this is not a permanent condition within the meaning of the Act.
Sleep apnoea
In his report of 16 August 2012, Dr David Freiberg, respiratory physician, indicates the Applicant’s sleep apnoea was well-managed by use of a CPAP machine, but he raised a query as to whether there was a causal contribution from “obesity hypoventilation” i.e. whether fat was constricting the lungs and airways causing inadequate small intakes and outflows.
Dr Frieberg noted that the Applicant had gained 10kg in the two years since he had seen her last. In 2010 Dr Freiberg had said: “there is no doubt that if she could lose preferably 30 kg but at least 20kg this sleep study would probably normalise”. However on 16 August 2012 he wrote to Dr Maroun saying that the Applicant was not fully complying with directions on use of the CPAP machine, and saying that he could not tell on the present information whether there was “a component of obesity hypoventilation”.
On this basis I find that the Applicant’s sleep apnoea is thus not fully diagnosed and certainly not fully treated nor stabilised. This is not a permanent condition within the meaning of the Act.
Hypertension
Dr Maroun’s report dated 25 May 2012 (10 days before the DSP application was lodged) included hypertension in the one diagnosis of ‘Severe headaches, vertigo and hypertension’ saying it appeared to have been present for the preceding ten years and the treatment attempted was “anti-hypertensives [multiple] to little avail”. He noted “migraine prophylactic not tolerated and no subsidence of vertigo” and referred to a neurological review by neurologist Dr Hanna in 2010.
In July 2012 Dr Maroun noted in a report to Centrelink “Hypertension severe erratic BP (blood pressure) with dizzy spells, headaches”.
Although there is evidence before the Tribunal of the presence of symptoms of hypertension, opinions have differed as to impact and control of these symptoms. The SSAT found that the hypertension was controlled with medication, a finding at variance with a number of reports before this Tribunal. The Applicant told the Tribunal that every time her blood pressure was she got very severe headaches. There is no cardiologist’s report nor specialist physician’s opinion on specific diagnosis, but the general practitioner has obtained the view of Dr Hanna and tried a variety of medications without success.
I find that this condition is fully diagnosed and as fully treated as can be done in practice, but it has stabilised only in the sense that it continues without adequate control. The SSAT did not follow the Job Capacity Assessment which allotted 10 points to this condition, necessarily having accepted it as a permanent condition within the meaning of the Act. I disagree with the SSAT’s findings in this instance and instead find that the Applicant’s Hypertension is a permanent condition within the meaning of the Act and it should be allotted an impairment rating of 10 points.
Diabetes
The SSAT found that the Applicant had a history of diabetes but without significant functional impact. I noted that one of the Applicant’s medications was Metformin (a drug given for diabetes) and that Dr Maroun had listed diabetes as one of her conditions which “all cause severe impact” in his report of July 2012. However, there is no specialist report available, nor is there any description of other treatments attempted and the end result of such treatments. Consequently, I find that although the Applicant’s diabetes has been diagnosed, it has not been fully treated and stabilised. Hence this condition is not permanent with the meaning of the Act.
Bilateral hand numbness
Dr Marabani recommended referral to a hand surgeon for a carpal tunnel decompression. The Applicant did not recall following this up, but her son remembered his mother being advised to have the operation although she did not pursue it. During the hearing, the Applicant told the Tribunal ‘No, I’m not on a waiting list. I’m going to…’[presumably put herself on a waiting list in the future]. In these circumstances, while the condition is fully diagnosed, it was not fully treated or stabilised and thus it is not a permanent condition within the meaning of the Act.
Dizziness and Vertigo
The review by a neurologist Dr Hanna in 2010 (see above in relation to hypertension) was not followed up nor detailed by Dr Maroun, and no specific diagnosis, treatment or outcome is given in the material before me. Dizziness and vertigo are usually seen as signs and symptoms of underlying health conditions rather than a diagnosis in themselves. I cannot find that the condition is fully diagnosed, treated or stabilised, and hence it is not a permanent condition within the meaning of the Act.
Depression
The Applicant was referred to a psychiatrist, Dr Ishrat Ali, who requested that the Applicant provide a list of her medications in February 2013 when he first saw her. However Dr Ali reported in March 2013 (well after the 13 week window) that no list had been provided. The Applicant said that her son had in fact provided a list and the doctor had made no changes. She was booked to see Dr Ali again on 19 June 2013 (a few days after the first day of hearing) which would indicate that the condition was not fully diagnosed. Dr Ali’s report of 14 March 2013 says “her condition appears to be an anxiety disorder and with panic symptoms and her depressive symptoms are a part of this”.
At the second day of hearing before this Tribunal on 26 June 2013 the Applicant told the Tribunal that Dr Ali had now changed the medication and she was to see him again in six or seven weeks.
From this information I conclude that as at the date of application, and even in June 2013, there had been no definite diagnosis of a condition that was fully treated and stabilised. The diagnosis might have been concluded, but if various treatments were being trialled and a series of appointments were still being arranged, I am not able to find that the condition was fully treated nor stabilised. Hence it is not a permanent condition within the meaning of the Act.
Ringing in the ears
The Applicant has never seen an Ear Nose and Throat (ENT) specialist concerning the reported tinnitus. Dr Maroun prescribed “drops in her ears”. There has been no real diagnosis of what is causing the ringing and the type of treatment, its duration, its effectiveness and what is to be recommended in the future is entirely unknown. This is not a permanent condition within the meaning of the Act.
FINDINGS AND CONCLUSION
Of the health conditions claimed by the Applicant to form the basis of her application for DSP, the only one which falls within the definition of ‘permanent’ within the meaning of the Act is Hypertension. That condition imposes a moderate functional impact on the Applicant. She was still able to travel by public transport, move around a shopping centre and perform light household tasks, despite having frequent symptoms which restrict her activities. As at May 2012 the Applicant was in receipt of a carer’s payment for the care of her disabled son, and she continues to use the washing machine and go shopping with friends. She felt stress in crowded places but could cope at home with her personal daily activities. I assign to the condition of Hypertension an impairment rating of 10 points.
While it is accepted that Mrs Taha has a number of physical or psychological impairments, her impairment rating under the Impairment Tables is less than 20 points. I have not considered whether Mrs Taha had a CITW during the relevant period because, even if she had, her claim fails the points test. On the material before me the Applicant is not entitled to a DSP as claimed by her.
It is open to the Applicant to make a new claim for DSP on the basis of medical conditions which have been fully diagnosed, fully treated and stabilised. If such a claim were to be successful, then payments in relation to it would be calculated to commence only from the date of lodging the claim.
DECISION
The decision under review is affirmed.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher QC, Senior Member. .......................[sgd].................................................
Associate
Dated 22 November 2013
Date(s) of hearing 12 and 26 June 2013 Applicant In person Advocate for the Respondent Department of Human Services
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