Amal Awad and Secretary, Department of Social Services

[2015] AATA 299

[2015] AATA  299

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4605
Re	Amal Awad
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	6 May 2015
Place	Sydney

The decision under review is affirmed

.............................[sgd]...........................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

CASES

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Professor R McCallum AO, Member

6 May 2015

INTRODUCTION

1. Mrs Amal Awad, the Applicant, was born in Lebanon. She immigrated to Australia in 1987, and in 1990 she married. The couple have three daughters and one son.

2. On 17 March 2014, Mrs Awad claimed disability support pension (DSP). In her claim, Mrs Awad stated that she suffers from "back pain, headaches, anxiety, memory loss, osteoarthritis and hypertension".

3. Centrelink rejected her claim. Mrs Awad sought review from an Authorised Review Officer and then by the Social Security Appeals Tribunal (SSAT), but the Centrelink decision was affirmed.

4. Mrs Awad now appeals to this Tribunal.

   THE LEGISLATION

5. The provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

6. The criteria for DSP are set forth in section 94 of the SS Act. In Mrs Awad's circumstances section 94(1) relevantly provides:

   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;

   ...

7. Put simply, I must be satisfied, first, that Mrs Awad has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mrs Awad has a continuing inability to work.

   The 13 week qualifying period

8. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Clause 4(1) provides:

   If:

   (a) a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b) the person is not, on the day on which the claim is made, qualified for the payment; and

   (c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d) the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

9. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mrs Awad's eligibility for DSP in the 13 week period commencing on the day on which Mrs Awad applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mrs Awad qualified for DSP between 17 March 2014 and 16 June 2014.

10. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “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”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

11. Therefore, in determining the eligibility of the Applicant to receive a DSP I am confined to examining the Applicant's impairments during the thirteen week qualifying period.

    THE CONCESSIONS OF THE RESPONDENT

12. Paragraph 33 of the Respondent's statement of facts and contentions states “the Secretary accepts that during the relevant period the Applicant suffered from a spinal injury and adjustment disorder with depression and anxiety, and satisfies section 94(1)(a) of the Act.”

    THE ISSUES BEFORE THE TRIBUNAL

13. The Respondent has conceded that Mrs Awad has impairments pursuant to section 94(1)(a) of the SS Act. Therefore, the primary issue before me is whether Mrs Awad's impairments have been fully diagnosed, stabilised and treated, and whether they are assessable for 20 points under the impairment tables pursuant to section 94(1)(b) of the SS Act.

14. If I find that Mrs Awad's impairments receive this rating, then I am required to determine whether Mrs Awad has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    THE IMPAIRMENT TABLES

15. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mrs Awad are worth twenty points under the impairment tables. This requires a few words of explanation.

16. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables and states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

17. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

18. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: 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. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

19. It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table.” However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.”

    THE EVIDENCE OF MRS AWAD

20. Mrs Awad gave sworn evidence.

21. Mrs Awad said that she has a slipped disc, and she said that she has a pain in her lower back which shoots down her left leg. Mrs Awad said that she cannot bend forward free of pain. She can lift something light when she is not in pain.

22. Mrs Awad said that her husband helps with her dressing and undressing, and he assists her with showering.

23. Mrs Awad said that her husband does the shopping but sometimes she goes with him for fresh air. Mrs Awad said that sometimes she walks around the supermarket. She said that she cannot walk for more than five to ten minutes.

24. Mrs Awad said that her husband hangs clothes on the line. She cannot carry the washing basket. She cannot raise her hands over her shoulder.

25. Mrs Awad said that she can sit for 10 to 15 minutes, and then she has to change her position by standing up.

26. In relation to her depression, Mrs Awad said that it started about five yrs ago when her brother passed away. She said that in the past couple of years her depression has escalated a lot.

27. When asked what she did on most days, Mrs Awad said that sometimes she watches televsion or she goes for a walk and comes back home. She said that she walks around the house or she walks outside the house.

28. When asked whether she visits friends, Mrs Awad said that she did not do so and that few people come to the house.

29. Mrs Awad says she takes medication for her high blood pressure.

30. In a report of Dr Vijay Maniam, dated 30 June 2014 which is before the Tribunal, the doctor stated, "The problems in the lumbar spine appears to be significant and i have asked her to obtain a MRI for a clearer evaluation." Mrs Awad was asked why she had not undergone an MRI test. Mrs Awad said that she could not do so because she would become stressed out in the MRI machine.

31. In a report from Dr Aiman Alsayed, dated 28 November 2014 which is before the Tribunal, the doctor said that "[Mrs Awad] was able to sit up to 20 minutes before changing her posture, standing up to 10 minutes with pain and walking up to 15 minutes."

32. It was suggested that the comments by Dr Aiman Alsayed on her ability to walk and sit were different from the evidence which Mrs Awad had given the Tribunal. Mrs Awad said that her spinal condition has deteriorated since the date of that report.

    THE DOCUMENTARY EVIDENCE

33. I have examined all of the documents before this Tribunal, including the recent medical reports which were submitted by Mrs Awad. The medical reports recount the impairments of Mrs Awad in some detail.

    CONSIDERATION

34. The primary issue before me is whether Mrs Awad's impairments have been fully diagnosed, stabilised and treated, and whether they are assessable for 20 points under the impairment tables.

35. In her evidence before me, Mrs Awad said that her spinal condition and her depression have deteriorated over the last few months. However, my task is to determine the nature and extent of these impairments during the claim period, that is between 17 March 2014 and 16 June 2014.

36. I shall now examine the impairments of Mrs Awad in turn.

    The cervical and lumber spine discopathy

37. In a report from Dr Aiman Alsayed, dated 21 March 2014, the doctor said that the current treatment for Mrs Awad's lumber spine discopathy and pain was physiotherapy and pain killer medication. At that time, Mrs Awad had not seen a specialist.

38. On 25 June 2014, Mrs Awad was examined by Dr Vijay Maniam who is a specialist. In his report dated 30 June 2014, Dr Maniam suggested that Mrs Awad undergo an MRI test for a clearer evaluation of the lumbar spine pain. It will be recalled from the evidence of Mrs Awad that she declined to undertake this test.

39. Accordingly, I find that Mrs Awad's  cervical and lumber spine discopathy was not fully diagnosed, stabilised and treated during the claim period.

    Adjustment disorder

40. In her evidence before me, Mrs Awad said that her depression commenced about five years ago after the death of her brother. Her adjustment disorder, that is depression, was diagnosed by Dr Isharat Ali (Psychiatrist) on 28 November 2013. He prescribed antidepressants. I note the latest report by Dr Ali dated 25 November 2014 I have also taken into account the reports from Mr Medhat Mety (registered psychologist) dated 24 December 2013 and 5 August 2014.

41. From this evidence I find that the depression of Mrs Awad was diagnosed by a Psychiatrist, that she has undergone treatment, and that this is sufficient for a finding that her adjustment disorder was fully diagnosed, treated and stabilised during the claim period.

42. The appropriate table for Mrs Awad's depression is table 5 of the impairment tables titled "Mental health function". The six descriptors in table 5 are:

    (a) self care and independent living;

    (b) social/recreational activities and travel;

    (c) interpersonal relationships;

    (d) concentration and task completion;

    (e) behaviour, planning and decision-making; and

    (f) work/training capacity.

43. From her evidence before me, from the summary of her evidence before the SSAT, and having regard to all of the relevant medical evidence, I find that the depression of Mrs Awad has at most a mild impact on her behavior. In making this finding, I examined the overall impact of the six descriptors. Mrs Awad gave clear answers to questions. I observed that she was able to concentrate throughout the hearing which lasted for one hour. In my view, she is able to self care with some family help. I accept that Mrs Awad has some difficulties with recreational activities and with interpersonal relationships, however, the evidence is not detailed. I find that the adjustment disorder of Mrs Awad is assessed at five points under table 5 of the impairment tables.

    Hypertension

44. From her evidence, I find that Mrs Awad's hypertension (that is high blood pressure) is well managed with medication. I find that it was fully diagnosed, treated and stabilised during the claim period. I assess the hypertension at nil points under table 1 of the impairment tables titled "Functions requiring Physical Exertion and Stamina".

    Migraines

45. From the evidence, Mrs Awad does suffer from migraines. The evidence, however, is very limited. Therefore, I am unable to find that the migraine headaches cause any functional impairment for Mrs Awad. I am prepared to find that the migraine headaches were fully diagnosed, stabilised and treated during the claim period. I further find that they rate nil points under table 1 of the impairment tables.

    Diabetes Mellitus and unspecified cardiac condition

46. There is no evidence about the nature and scope of any treatment of the impairments of diabetes Mellitus and the cardiac condition of Mrs Awad. I am unable to make findings that they were fully diagnosed, stabilised and treated during the claim period.

    CONCLUSION

47. I find that the impairments of Mrs Awad are assessed at 5 points under the impairment tables pursuant to section 94(1)(b) of the SS Act. This means that Mrs Awad does not qualify for DSP.

48. Therefore, it is not necessary for me to decide whether Mrs Awad has a continuing inability to work pursuant to section 94(1)(c)(i) and related provisions of the SS Act.

    DECISION

49. The decision under review is affirmed.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.............................[sgd]...........................................

Associate

Dated   6 May 2015

Date(s) of hearing	30 March 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services