Atie and Secretary, Department of Social Services (Social services second review)

Atie and Secretary, Department of Social Services (Social services second review) [2018] AATA 484 (15 March 2018)
Division:GENERAL DIVISION
File Number: 2016/5544
Re:Badia Atie
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:15 March 2018
Place:Sydney

The Tribunal affirms the decision made by the Social Services and Child Support Division of this Tribunal dated 6 September 2016.
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Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – application for disability support pension – whether conditions fully diagnosed, treated and stabilised – whether conditions 20 points or more under the Impairment Tables – whether continuing inability to work – kidney condition – mental health condition – incontinence – other conditions – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
15 March 2018
The reviewable decision

Mrs Atie was receiving Disability Support Pension (DSP) from December 2003 until 2 August 2015 when it was cancelled because she was overseas longer than was allowed for a person receiving the DSP.
She reapplied for DSP on 26 November 2015 after contacting the department on 17 November 2015. Her application was refused in a letter dated 27 January 2016. She has followed the review process and now seeks the review of the decision made on 6 September 2016 by the Social Services and Child Support Division of this Tribunal (AAT1) which affirmed the internal review decision to refuse her application.
The issues in this case
The qualification criteria for DSP in 2015 were different from those that applied when Mrs Atie was granted DSP in 2003.
The issue to be decided in this matter is whether Mrs Atie was qualified for DSP at the date she first made contact with the department in relation to her claim for DSP on 17 November 2015, or within 13 weeks thereafter, that is until 16 February 2016 (the qualification period).
Mrs Atie had to satisfy the requirements set out in s 94 of the Social Security Act 1991 (the Act) during the qualification period. They are that she:
(a)had a physical, intellectual or psychiatric impairment(s); and
(b)the condition(s) were fully diagnosed, treated and stabilised and
(c)attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)and she had a continuing inability to work (CITW).
The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014 (the PoS guideline) is relevant to considering CITW.
The evidence before the Tribunal
The Secretary, Department of Social Services (the Secretary) provided two bundles of documents comprising 367 pages, pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents and the Supplementary T documents). They included various medical, investigation, and test reports, dating from February 2000 to June 2017.
Mrs Atie provided various medical reports, test, and investigation requests, and appointment details. The medical reports included reports from a nephrologist and an orthopaedic specialist whom she consulted while overseas in August/September 2015.
The Secretary provided a further Job Capacity Assessment Report (JCA) dated 19 April 2017.
Mrs Atie and her son gave evidence. Mrs Atie was assisted by an interpreter in the Arabic language. The evidence shows that she has had little, if any, education, has never worked outside the home, and has a limited grasp of spoken language. She can sign her name when required.
The Tribunal has taken into account Mrs Atie’s evidence and that of her son, however, the issues require that findings be made on the basis of medical evidence.
Consideration
The Secretary accepted that Mrs Atie had an impairment as required by s 94(1)(a) of the Act. The questions for the Tribunal to decide are whether the conditions were fully diagnosed, treated and stabilised, and if so, whether they attracted a rating of at least 20 points under the Impairment Tables, and if so, if she had a CITW.
Evidence about each of the conditions affecting Mrs Atie is relevant to the extent that it casts light on whether the requirements set out in s 94 of the Act were satisfied during the qualification period.
Following is the Tribunal’s consideration of the evidence about each of the conditions. Where various terms have been used in the evidence to refer to the same condition, the Tribunal has chosen the term that is easiest to understand.
Mrs Atie was born in 1958. Dr Heise has been her general practitioner since 1998. It is of significance in this case that in his report dated 20 May 2015, Dr Heise did not specify any condition other than her kidney condition, as having a significant impact on her ability to function. He wrote that anxiety and migraines were generally well managed and cause minimal or limited impact on ability to function.
For reasons given later in this decision, the Tribunal finds that Dr Heise filled out pages 28 and 29 of the DSP application. In the DSP Application, Dr Heise listed only the kidney condition in response to the question “List any disabilities, illnesses or injuries that you have”.
Kidney condition
The medical evidence shows that clinical onset of nephrotic syndrome/glomerulosclerosis (the kidney condition) was in 2006. Dr Jardine, nephrologist, provided a diagnosis in 2006. The Tribunal accepts that the condition has been fully diagnosed.
In his report to the department in support of portability dated 20 May 2015, Dr Heise stated that the kidney condition was the condition with the most impact on Mrs Atie, causing fatigue and resulting in poor endurance. She was taking two medications for the condition. He stated: “unknown prognosis as condition is chronic”.
In the Work capacity document dated 20 May 2015 “Nephrotic Syndrome” was one of three conditions listed in response to the request to list “any disabilities/ illnesses or injuries” that Mrs Atie had. It was the only condition listed in her DSP application in November 2015.
The Tribunal has concluded that Dr Heise completed the parts of the Work capacity document dated 20 May 2015 relating to Mrs Atie’s medical conditions, treatment, and medical practitioners, and completed pages 28 and 29 of the DSP application because:
·the writing in those parts of the documents appears to be the same;
·Dr Heise assisted Mrs Atie to complete the Work capacity document. His name is written in response to the question “Who helped you”;
·he has completed numerous reports provided to the department since March 2000, and his writing is distinctive and recognisable.
·his writing is different from the handwriting of Mrs Atie’s daughter who completed the DSP application form and from other handwriting in the Work capacity document;
·the introductory section on page 28 of the DSP application advises that an applicant needs medical evidence to support their claim, and
·of the subject matter and the language used.
In the DSP application, Dr Heise provided the following information:
·The diagnosis was glomerulonephritis (focal segmental);
·Due to renal failure Mrs Atie is totally unable to work;
·Her medications for the condition were Crestor, Irbesartin, Lasix, Temormine, intermittent Prednisone;
·He did not believe that she required nursing home level of care, frequent support or supervision from a carer, or palliative care;
·Her life expectancy may be significantly reduced; and
·She was not expecting to have an operation in the future.
Dr Nutt, nephrologist, saw Mrs Atie on 14 May 2015 and prepared a report dated 20 May 2015. He had not seen Mrs Atie for “about 4½ years”. He changed Mrs Atie’s medication and wished to review her in three months’ time, “with some more electrolytes and another 24 hour urine for protein and creatinine clearance”, which the Tribunal understands to be biochemistry tests. In response to Mrs Atie’s worry that he might prescribe Prednisolone “again”, Dr Nutt stated that he “would be very reluctant to treat her with immunomodulating drugs of any kind” “unless she developed true nephrotic syndrome”. There is no evidence to suggest that Ms Atie returned to Dr Nutt.
On 7 August 2015, while she was overseas, Mrs Atie consulted Dr Atich, nephrologist, “complaining of severe lower limbs edema”. In a report dated 8 September 2015, Dr Atich stated that she “received appropriate treatment”, “with good improvement. She is stable and needs to continue her same treatement (sic)”.
The Health Professional Advisory Unit Opinion (the HPAUO) dated 4 April 2016 concluded that the kidney condition had not been adequately treated because there were large gaps in the medical information including the four and a half year break between consultations with Dr Nutt and no follow up to the May 2015 consultation, which he had recommended, to assess her response to the change in treatment. There was also Dr Atich’s report which clearly related to the period in 2015 when Mrs Atie was overseas. On the evidence, Mrs Atie apparently did not return to see Dr Nutt or any other nephrologist after her return to Australia in 2015 and before she applied for DSP.
There were numerous medical reports and medical certificates written by Dr Heise after the DSP application was refused. The Tribunal has taken all that material into account but refers only to information relevant to its consideration of Mrs Atie’s conditions during the qualification period.
Dr Heise wrote a report dated 5 February 2016 in which he stated that nephrotic syndrome “has a poor prognosis and may progress to dialysis – transplant”.
In a medical certificate dated 7 April 2016, Dr Heise referred only to the kidney condition, which was permanent, with symptoms of chronic fatigue. There were spaces for two other conditions.
In his letter to the department dated 14 July 2016, Dr Heise stated that “the combination of poor renal function and generalised osteoarthritis and (sic) resulted in significant functional limitations”, which he described.
In his report dated 14 February 2017, Dr Heise described Mrs Aties’ kidney condition as stable, based on biochemistry reports dated 16 March 2015 and 15 January 2016.
Dr Jardine filled out a imaging request dated 23 May 2017 for “General Ultrasound + Xray” “period pre + post void”, and bone density. There was also an undated referral from Dr Jardine for blood tests, including “urinary alb/cr ratio”. Mrs Atie had a card showing that she had an appointment with Dr Jardine on 15 August 2017. She told the Tribunal that she had seen Dr Jardine “last month” on 27 or 28 May, but she could not remember because of the medication she was on. The Tribunal accepts that Mrs Atie saw Dr Jardine in May 2017. There are no reports from Dr Jardine and no evidence to suggest that Mrs Atie has acted on the request and referral.
There is a pattern on the evidence. Dr Heise has referred Mrs Atie to Dr Nutt and Dr Jardine, nephrologists, Mrs Atie sees the nephrologist but does not comply with their recommendations. The Tribunal has taken into account her evidence that she rang Dr Nutt twice and that on the first occasion he was on holidays and on the second occasion they could not give her an appointment. However, she was not referred to another nephrologist for a further two years and has not followed up with that nephrologist either.
In those circumstances, the Tribunal accepts that the kidney condition has been fully diagnosed but does not accept that it has been fully treated and stabilised.
Mental health condition
Dr Heise listed Anxiety as one of three “disabilities/ illnesses or injuries” from which Mrs suffered, in her Work capacity form dated 20 May 2015
In his report to the department dated 20 May 2015, Dr Heise listed anxiety as a condition that was generally well managed and that caused minimal or limited impact on Mrs Atie’s ability to function.
He did not refer to the condition in the DSP application form.
In his report dated 14 July 2016, Dr Heise did not refer to Anxiety or any other mental health condition.
After the DSP application had been refused, Dr Heise referred Mrs Atie to “Mental Health out patients at Hornsby Hospital” for “review and management” in a letter dated 26 May 2016.
The report from Dr Benjamin, Consultant Psychiatrist, dated 28 July 2016, includes the following:
Mental State Examination: … Her affect was reactive and appropriate. She however, felt irritable and angry with Centrelink and Job Network. There was a strong overlay in her presentation, both physical and psychological. She did not appear to be in any physical pain or discomfort. Her history was frequently inconsistent. There was no suggestion of psychotic or obsessive phenomena. Her cognitive functions were clinically unremarkable. She denied thoughts of self-harm.
Provisional Diagnosis/Differential Diagnosis: Badia appear[s] to be experiencing mild anxiety symptoms as a result of the cancellation of her pension and having to attend Centrelink and Job Network. These symptoms however, do not amount to a diagnosable psychiatric disorder.
Dr Benjamin counselled Mrs Atie, but did not prescribe psychotropic medication or make further arrangements to see her in the future.
“Agitated depression” is listed in a number of Dr Heise’s reports under the heading “Inactive” and a date of 2000.
Mrs Atie’s evidence about her “nervousness” and treatments was confusing. She seemed to say that she “used to have nervousness” and talked about medications, including injections for when she was really nervous. Her evidence did not assist the Tribunal to understand how it affected her during the qualification period.
The Tribunal does not accept that any mental health condition was diagnosed during the qualification period.
Incontinence
After the rejection of the DSP application, Dr Heise wrote a report dated 5 February 2016. He mentioned for the first time that Mrs Atie suffered from “poor control – continence”.
The HPAUO dated 4 April 2016 considered the question of incontinence based on the information provided. It stated that “repeated attempts were made to contact Dr Heise to clarify the comments made within his report but unfortunately did not respond to requests”. The opinion was that too many questions remained unanswered for the condition to be assessed as diagnosed, fully treated and stabilised and therefore no impairment rating was required.
During the hearing, Mrs Atie complained that she suffered from incontinence.
The evidence does not show that there was a diagnosis of this condition during the qualification period.
Gastritis, Peptic ulcer and Helicobacter Pylori infection
Relevant to the present application, Dr Heise first referred to Gastritis in his report dated 5 February 2016, that is, after the refusal of the DSP. He wrote that Mrs Atie had had frequent abdominal pain despite PPI therapy and multiple attendances at Hornsby Hospital for investigations of treatment. In the same report Gastritis was listed under the heading “Inactive” and the date of 2010. He provided a gastroscopy report dated 26 January 2014 which recorded stomach “moderate modular gastritis involving the (illegible) was found”, and page two of a five-page report from the hospital where she had been admitted to the Emergency Department on 24 February 2013 when the appointment for the gastroscopy had been made.
There are also references to “H Pylori” in 2000, and Helicobacter Pylori Infection in 2009, which the Tribunal finds could be related to either gastritis or peptic ulcer.[1]
[1]MSD Manual, Consumer Version, Introduction to Gastritis and peptic ulcer disease; >
The HPUAO had made attempts to contact Dr Heise unsuccessfully for clarification. It recommended that the gastritis condition not be considered fully diagnosed, treated and stabilised at that time.
Mrs Atie told the Tribunal that she had had an endoscopy recently and the doctor had the results.
The Tribunal does not accept on the evidence that gastritis, peptic ulcer or Helicobacter Pylori infection was diagnosed during the qualification period.
Knee condition/osteoarthritis
As set out above, in his letter to the department dated 14 July 2016, Dr Heise stated that “the combination of poor renal function and generalised osteoarthritis and (sic) resulted in significant functional limitations”, which he described.
Mrs Atie told the Tribunal that she has injections in her knees and that Dr Jardine was going to send her to a specialist for her knees. The Tribunal does not accept that the “left intra-articular injections left” listed under the heading “Active” and dated 1999 and 2002 in various reports from Dr Heise from 5 February 2016, refers to injections into her knees. It is clear on the evidence that they related to treatment following a fall on 7 October 1999 when she suffered lower back pain and imaging results showed a lumbar disc bulge at L5-S1. There is no other evidence supporting Mrs Atie’s claims.
The Tribunal does not accept that a knee condition/osteoarthritis was diagnosed during the qualification period.
Migraines
The first report of Mrs Atie suffering migraines is Dr Heise’s report dated 13 March 2000. References to Mrs Atie suffering migraines appear thereafter.
In the Work capacity form dated 20 May 2015, Dr Heise listed “migraines” as one of three “disabilities/ illnesses or injuries” that Mrs Atie suffered.
In his report to the Department dated 20 May 2015, Dr Heise listed “migraines” as a condition that was generally well managed and caused minimal or limited impact on Mrs Atie’s ability to function. However, it was not listed in the DSP application form. Further, Dr Heise did not refer to migraine specifically in his report dated 5 February 2015. “Migraine – TIA” is listed under the heading “Inactive” in that report.
On the evidence, the Tribunal does not accept that Migraine was a condition that was diagnosed during the qualification period.
Tendonitis
While she was overseas in 2015, Mrs Atie consulted Dr Zraika, an orthopaedic specialist, who wrote a report dated 26 September 2015. She was complaining of “severe disabling tendinitis of the right ankle. She “received treatment by cast” and required “strict rest for 3 weeks, from 15 October to 5 November and then she needs rest at home for 1 month (after removing the cast to receive physiotherapy” (sic).
That is the only evidence about Tendonitis. Dr Heise does not refer to it in any of his reports or records.
The Tribunal does not accept that this condition was diagnosed during the qualification period.
Carpal tunnel
The Tribunal accepts that Mrs Atie suffered from and was treated for carpal tunnel in 2001. There is no evidence to suggest that she was diagnosed with this condition during the qualification period.
Fatty liver
The condition “Fatty liver” appears in Dr Heise’s report dated 5 February 2016 under the heading “Active” dated 2016, and in reports thereafter. There is no other evidence about that condition.
The Tribunal does not accept that it was diagnosed during the qualification period.
Chronic low back pain (lumbar disc bulge L5-S1); chronic neck pain; vertebral fracture

“Left intra-articular injection left” is listed under the heading “Active” and dated 1999 and 2002 in various reports from Dr Heise from 5 February 2016. The Tribunal finds that it related to a fall on 7 October 1999 and imaging results showed a lumbar disc bulge at L5-S1.
The evidence does not indicate that Mrs Atie had ever suffered a vertebral fracture. The medical evidence does not suggest that Mrs Atie suffered chronic neck pain during the qualification period.
The Tribunal does not accept that the evidence shows that any of the above conditions was diagnosed during the qualification period.
Hyperlipidaemia
The Tribunal finds that Hyperlipidaemia may be a term that has been used to refer to Hypercholesterolaemia.[2] It is listed in Dr Hiese’s reports under the heading “Inactive” and dated 2000. He did not list in the DSP application or in the Work capacity report dated 20 May 2015.
[2]Op cit; >
The Tribunal does not accept that this condition was diagnosed during the qualification period.
Dental health
At the hearing, Mrs Atie provided a referral for imaging to “examine dentition” dated 2 March 2017. She said that she got the referral when she fell in the shower and broke her bottom teeth. There was no report from the referring doctor.
That is the only evidence before the Tribunal about her dental health. The Tribunal does not accept that there was any diagnosis of this condition during the qualification period.
Conclusion
For the above reasons, the Tribunal cannot be satisfied that Ms Atie’s conditions are fully diagnosed, treated and stabilised in accordance with s 94(1)(b) of the Act and the Impairment Tables. It is not necessary for the Tribunal to consider whether Ms Atie had a continuing inability to work.
The Tribunal affirms the decision made by the Social Services and Child Support Division of this Tribunal dated 6 September 2016.

I certify that the preceding 73 (seventy three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate
Dated: 15 March 2018

Date of hearing: 5 and 21 July 2017

Applicant: In person

Solicitors for the Respondent: Mr L Dennis, Department of Human Services

[2018] AATA 484

15 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	5 and 21 July 2017
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Department of Human Services