Atmar and Secretary, Department of Social Services (Social services second review)
[2016] AATA 232
•12 April 2016
Atmar and Secretary, Department of Social Services (Social services second review) [2016] AATA 232 (12 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2042
Re
Summa Atmar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 12 April 2016 Place Sydney The decision under review is affirmed.
..............................[sgd]..........................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – multiple conditions – whether medical conditions were fully diagnosed, treated and stabilised – impairment rating of less than 20 points – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
12 April 2016
On 10 June 2014 Ms Atmar, who is 51 years old, lodged a claim for Disability Support Pension (DSP) on the basis that she suffered several medical conditions which were having an impact on her ability to function.
The claim was rejected by Centrelink, both initially and on internal review, on the basis that Ms Atmar did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, she did not satisfy s 94(1)(b) of the Act as her impairments were not 20 points or more under the Impairment Tables.
In a decision dated 24 March 2015, the former Social Security Appeals Tribunal (“SSAT”) found that Ms Atmar had a total impairment rating of 15 points, with 10 points under Impairment Table 3 and 5 points under Impairment Table 2 so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings Ms Atmar seeks review of the SSAT’s decision.
Ms Atmar who attended the hearing by telephone was self-represented and able to give oral evidence.
ISSUES
In order to qualify for DSP Ms Atmar must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999 (Cth). The relevant period is between 10 June 2014 and 9 September 2014 (“the claim period”).
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Ms Atmar suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
In her claim form Ms Atmar lists the following disabilities:
Arthritis (osteo), depression, shoulder (right torn tendons) glaucoma, high blood press high cholesterol, diabetes both knees require recons.
In a Centrelink Medical Report dated 10 June 2014 Dr Mirranay, GP, lists “Bilateral knee severe osteoarthritis which requires knee replacement” and “R side severe osteoarthritis of the shoulder and rotator cuff tear” as medical conditions with significant functional impact.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a));
·fully treated (paragraph 6(4)(b));
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
The Respondent contends that, during the claim period Ms Atmar had a rating of nil points under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act.
Therefore, the determinative issue in this review is whether, during the claim period, Ms Atmar’s impairment was 20 points or more under the Impairment Tables and, if so, whether she had a “continuing inability to work”.
MENTAL HEALTH CONDITION
Ms Atmar told the Tribunal that she has had difficulty with her mental health since 1990 but was not seen by a psychiatrist until 2004 when she was diagnosed as suffering from depression and started on antidepressant medication, Effexor. She continued on Effexor until early 2015 when her medication was changed because of concerns about her liver function tests. During this time she was intermittently seen by different psychologists and her medication was apparently monitored by various GPs.
Ms Atmar claims that her depression deteriorated during 2014 after she suffered an injury to her right shoulder which added to the physical difficulties she was having with her left knee, while on the waiting list for a left knee replacement. She said that she returned to Sydney with her husband in July 2014 because she felt needed the support of her family. Soon after returning to Sydney she and her husband separated and she is now living with her adult children.
Ms Atmar told the Tribunal that before returning to Sydney she was working on a casual basis as an interpreter for 15 to 20 hours and was being paid very well. She was working with asylum seekers and said that she “was enjoying it” but was starting to have problems with driving because of her shoulder and knee conditions. She explained that when she came to Sydney she wanted to continue working as an interpreter but because she was not formally accredited she was not able to find regular work.
In a brief note dated 4 August 2010 Dr Kosaraju notes medications as EFFEXOR-XR capsule 37.5 mg 1 tab daily…”.
In a Job Capacity Assessment (JCA) Report submitted on the 24 January 2011 the assessor notes that Ms Atmar “consulted psychologist in the past for few months… and currently attending psychiatrist on fortnightly basis.”
In an Employment Services Assessment Report submitted on the 17 May 2013 the assessor notes that Mrs Atmar is “currently working as an on call interpreter for two agencies however the work is casual and therefore her hours vary”.
In a Centrelink Medical Report dated 10 June 2014 Dr Mirranay, GP, states that Ms Atmar has been his patient since the 17 April 2014 and that she has suffered “depression for 15 years, worse lately due to chronic pain, on Effexor 150mg”. He notes the “depression” as a condition that is generally well managed that causes minimal or limited impact but provides no other details.
In a letter to Centrelink dated 17 0ctober 2014 Dr Malouf refers to condition involving the left knee, right hand and right shoulder but makes no reference to depression.
On 24 March 2015 the SSAT notes inter alia the following:
Mrs Atmar lives with her husband. They get along well together. Mrs Atmar goes to the gym on most days to engage in physical exercise. She otherwise stays at home and watches television but does go out to visit her sisters fairly often. Mrs Atmar sees her three adult children frequently. She enjoys reading novels, history books and books about her home country Afghanistan. Mrs Atmar does some cooking and is able to follow a recipe.
In a letter dated 28 October 2015 Mr Cipriani Clinical Psychologist states that Ms Atmar was referred on the 28 April 2015 by her GP, Dr Malouf with a long history of depression and general anxiety and notes inter alia the following:
Mrs Atmar had been diagnosed with anxiety neurosis in 1990 and depression in 2004. She had been on Effexor for 15 years when she presented to this practice on 29.04.15. Effexor was discontinued due to abnormal liver functions.
…
Mrs Atmar reported that she moved from Melbourne 2 months previously with her husband and three children…Mrs Atmar was taking Mirtazapine. She reported sleep disturbance and physical restrictions due to osteoarthritis, left knee pain…right rotator cuff tear…she was distressed about having to depend on her family. She reported irritability over pain and restrictions, loss of pleasure and interest, fatigue, distancing from her husband and siblings, feeling worthless and memory problems. Mrs Atmar was diagnosed with Major Depressive Disorder for which she takes Mirtazapine.
In a letter dated 24 March 2016 Dr Malouf states the following:
Mrs Atmar suffers with chronic depression and has done so for over fifteen years. It is now over 12 months since she suffered a significant deterioration in her mental health and despite consulting a clinical psychologist over this whole period, she has not shown any evidence of lightening of her depression. Her medications have been increased and new medication added but with very little benefit.
Consideration
The medical evidence with respect to Ms Atmar’s “depression” can best be described as incomplete and somewhat limited.
The limited evidence that is available suggests that prior to the date of claim and during the claim period Ms Atmar’s psychological symptoms were generally well controlled with medication and that there was no functional impact on activities involving mental health function. She was capable of working as an interpreter and in her own evidence indicated that she was enjoying that work. When she came to Sydney she was interested in getting work as an interpreter but was not sufficiently qualified to meet local accreditation requirements.
It would appear that that in about April 2015 her mental health had deteriorated and she was referred to a clinical psychologist for further assessment and treatment.
On consideration of the available evidence I am satisfied that during the claim period Ms Atmar suffered a mental health condition that was permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables can be applied.
However, I am not satisfied there is sufficient corroborative evidence to support a conclusion that, during the claim period, there was any functional impact as a result of this condition on activities involving mental health function. This means that a rating of nil points under Impairment Table 5 should be applied.
LEFT KNEE CONDITION
Ms Atmar claims that she suffers “arthritis” in both knees with the left knee being much more severe.
An x-ray of the left knee performed on the 23 April 2013 is reported as showing “evidence of osteoarthritis involving the knee joint…”.
In a letter dated 30 April 2013 Dr Dirk van Bavel, Orthopaedic Surgeon, notes that Ms Atmar presents with the clinical problem of “left knee pain” and states inter alia the following:
Thank you for referring Summa who has been having trouble for some 18 years. She describes progressive pain which is worse when cold and after exercise.
…Summa’s x-ray shows severe medial compartment osteoarthritis with mild to moderate patellofemoral and lateral osteoarthritis as well.
I have discussed the diagnosis and treatment options with her. Although she is till only 49 Summa is going to need a knee replacement. I have discussed the risks and benefits of surgery with her and she would like to be referred to a public hospital for this.
In a medical certificate dated 3 May 2013 Dr Kosaraj states that Ms Atmar suffers “severe osteoarthritis of the left knee” and notes that the condition is temporary and that she is “under specialist care, waiting for knee replacement surgery at St V hospital”.
In a letter dated 20 February 2014 Ms Atmar was informed that that an appointment had been scheduled at ESAS ORTHOPAEDICS Outpatients at St Vincent’s Health for 25 June 2014.
In his report of 10 June 2014 Dr Mirranay lists “Bilateral knee severe osteoarthritis which requires knee replacement” as a condition with most impact” but provides no details with respect to functional impact.
As noted above Ms Atmar told the Tribunal that in about July 2014 she and her husband moved to Sydney.
In a letter dated 11 August 2014 Ms Atmar was informed that an appointment at CRGH-Ortho 6W had been scheduled for 19 May 2015.
In his letter of 17 October 2014 Dr Malouf notes that Ms Atmar is on the waiting list at Concord Hospital for consultation and treatment.
In a letter date 14 January 2015 Ms Atmar was informed that as of 12 January 2015 she was placed on the Hornsby Hospital elective surgery waiting list under Dr Nagamori.
In an email dated 17 March 2016 Ms Atmar’s confirms that she had a total left knee replacement at Hornsby hospital on 4 December 2015.
Consideration
In my view the available evidence clearly demonstrates that during the claim period Ms Atmar’s left knee condition was fully diagnosed but not fully treated and fully stabilised. It is clear that a total left knee replacement was planned and actually performed within two years of the date of claim.
Accordingly, I am satisfied that, during the claim period, Ms Atmar left knee condition was not permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.
I note that Ms Atmar’s claim that she suffers significant osteoarthritis in the right knee is not supported by the available evidence.
RIGHT SHOULDER CONDITION
An ultrasound of the right shoulder performed on the 28 April 2014 is reported as showing a “full thickness tear involving the anterior two-thirds of the supraspinatus tendon” with increased fluid in subacromial bursa.
An x-ray of the right shoulder performed on the same day is reported as showing “minimal spurring” at the inferior margin of the glenoid fossa but no other abnormalities.
In a brief letter dated 13 May 2014 Dr Nguyen, Orthopaedic Surgeon, states that Ms Atmar had a “6 to 8 month history of right shoulder pain which started after she picked up a heavy object” and that shoulder examination demonstrated “very strong impingement and subacromial bursitis”.
Dr Ngyuen notes that the ultrasound reported a full thickness tear of the supraspinatus tendon and states that after discussion with Ms Atmar he would place her on the waiting list to have a “right shoulder arthroscopic decompression with rotator cuff tendon repair.”
In his report 10 June 2014 Dr Mirranay lists “R side severe osteoarthritis of the shoulder and rotator cuff tear” as medical condition with severe functional impact and notes treatment as “Mobic 15 mg…Panadeine forte…waiting for surgery”. Impact on ability to function is described as “needs help ….her house work”.
In an unsigned GP Management Plan dated 15 January 2015 there is no mention of a right shoulder condition
In a document dated 17 November 2015 Dr Malouf lists “(R) rotator cuff tear as one of Ms Atmar’s medical conditions that causes a degree of functional impairment and that shoulder surgery is awaited but provides no other details.
In a GP Management Plan dated 4 February 2016 signed by Dr Malouf “Rotator Cuff Tear (Right) is list as past medical history in “2010”.
In his letter 24 March 2016 Dr Malouf makes no reference to a right shoulder condition
Consideration
The available evidence with respect to Ms Atmar’s right shoulder condition is somewhat limited and quite unhelpful.
It is clear that a few weeks prior to the date of claim a diagnosis a full thickness supraspinatus tear with bursitis is made with surgical treatment recommended.
The shoulder condition appears to have been a relatively recent acute injury and but there is no evidence of any treatment plan apart from “waiting for surgery”. Also there is no corroborative evidence with respect to the functional impact of this condition, either currently, or during the claim period.
I note also that there is no evidence before the Tribunal to support Dr Mirranay’s diagnosis of “severe osteoarthritis” of the right shoulder.
In view of the limited evidence I am not satisfied that, during the claim period, Ms Atmar’s right shoulder condition was fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
SPINAL FUNCTION
A CT scan of the cervical spine performed on the 12 August 2010 demonstrates multilevel degenerative change.
In his report 10 June 2014 Dr Mirranay lists “lumbar disc prolapse, cervical disc issue chronic pain” as a medical condition that is generally well managed and that causes minimal or limited impact but provides no other details.
Ms Atmar told the SSAT that she is “troubled by pain in her back caused by a slipped disc”, the pain moves to her left leg and she tries to avoid bending down to pick up things from the floor.
A CT scan of the lumbar spine performed on the 5 June 2015 demonstrates multilevel degenerative change and disc bulges.
In his letter of 24 March 2016 Dr Malouf states that Ms Atmar’s lumbar spine back pain has been chronic for over twenty years and that “she suffers exacerbations which may take several months to resolve”.
Based on the CT scan findings I am satisfied that, during the claim period, Ms Atmar’s spine conditions were permanent for the purposes of the Impairment Determination.
However, in my view, there is insufficient corroborative evidence before the Tribunal to allow for any reasonable assessment of the functional impact of these conditions on activities of spinal function during the claim period, so a rating under Impairment Table 5 cannot be applied.
OTHER MEDICAL CONDITIONS
Ms Atmar’s other current medical conditions include hypertension, non-insulin dependent diabetes mellitus, glaucoma and hypercholesterolemia.
There is no evidence before the Tribunal that, during the claim period, Ms Atmar suffered any functional impact as a result of any of these conditions.
DECISION
For reasons set out above I am satisfied that, during the claim period, Ms Atmar did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP
The decision under review is affirmed.
I certify that the preceding 73 (seventy - three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ..................................[sgd]......................................
Associate
Dated 12 April 2016
Date(s) of hearing 30 March 2016 Applicant By phone Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – disability support pension
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Impairment Rating
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Functional Impact
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