Bashrah Abeed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 128
•22 February 2012
[2012] AATA 128
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1431
Re
Bashrah Abeed
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member C Walsh and Dr J Chaney, Member
Date 22 February 2012 Place Perth Decision Summary
The Tribunal affirms the decision under review.
....(sgd) C Walsh............
Senior Member C Walsh
Catchwords
Social Security – Disability Support Pension - physical impairment - back condition fully diagnosed but not fully treated and stabilised - knee condition not fully diagnosed, treated and stabilised - foot condition not fully diagnosed, treated and stabilised - diabetes requires no treatment and has minimal functional impact - uterine fibroids requires no treatment and has minimal functional impact - depression not relevant to period under review - eye condition not fully diagnosed, treated and stabilised - impairments do not attract 20 or more points on the impairment tables - applicant not qualified for disability support pension - decision under review affirmed
Legislation
Social Security Act 1991 – section 94(1)(a) – section 94(1)(b) – section 94(1)(c) - section 94(2) Schedule 1B
Social Security (Administration) Act 1999 – section 41 – section 42 – Schedule 2, Clause 3Secondary Materials
Guide to the Social Security Law
REASONS FOR DECISION
Senior Member C Walsh and Member Dr J Chaney
22 February 2012
INTRODUCTION
Mrs Abeed seeks a review of the decision of the Social Security Appeals Tribunal (SSAT), dated 8 April 2011, which affirmed the decision of a Centrelink authorised review officer (ARO), dated 31 January 2011, to reject Mrs Abeed’s claim for disability support pension (DSP).
BACKGROUND
On 18 October 2010 Mrs Abeed lodged a claim for DSP with Centrelink. In support of her claim for DSP Mrs Abeed lodged a “Medical Report” which was completed by Dr Salihee on 15 October 2010. That report indicated that Mrs Abeed suffered from two medical conditions that had a significant impact on her ability to function, being: (i) L5/S1, spondylolisthesis and disc prolapse; and (ii) Bilateral knee pain/chronic mild degenerative knee joint changes. The report also noted that Mrs Abeed suffered gestational diabetes and uterine fibroids that caused minimal impact on her ability to function:
On 18 October 2010 following a Job Capacity Assessment (JCA), the assessor determined that Mrs Abeed’s:
(i)spinal disorder had been fully diagnosed but was not fully treated and fully stabilised
(ii)lower limb had been fully diagnosed but was not fully treated and stabilised;
(iii)non-insulin dependent diabetes had been fully diagnosed but was not fully treated and fully stabilised; and
(iv)gynaecological disorder of uterine fibroids had been fully diagnosed but was not fully treated and stabilised.
On 8 November 2010 Centrelink wrote to Mrs Abeed advising that her claim for DSP had been rejected.
On 15 November 2010 Centrelink wrote to Mrs Abeed advising her that its decision to reject her application for DSP had been reconsidered and confirmed.
On 31 January 2011 an Authorised Review Officer (ARO) affirmed the decision to reject Mrs Abeed’s application for DSP.
Mrs Abeed subsequently applied to the SSAT for a review of the ARO’s decision of 31 January 2011.
On 8 April 2011 the SSAT affirmed the ARO’s decision to reject Mrs Abeed’s claim for DSP. In reaching that decision, the SSAT found on the evidence before it that Mrs Abeed suffered from the following five impairments as at the date of her claim for DSP (i.e. 18 October 2010):
A low back condition;
A knee condition;
A foot condition;
Diabetes; and
Uterine fibroids.
Mrs Abeed now seeks a review of the SSAT’s decision of 8 April 2011 by this Tribunal.
ISSUES
The issues for consideration by the Tribunal are whether:
Mrs Abeed has a physical, intellectual or psychiatric impairment;
Mrs Abeed’s impairments rate at least 20 points on the impairment tables; and, if so
Mrs Abeed has a continuing inability to work.
Each of these issues is considered, in turn below.
QUALIFICATION FOR DSP
Section 94 of the Social Security Act 1991 (SSA) provides the qualifications for DSP. Specifically, to be qualified for DSP a person must have:
(i)a physical, intellectual or psychiatric impairment: section 94(1)(a) of the SSA;
(ii)which attracts an impairment rating of at least 20 points: section 94(1)(b) of the SSA; and
(iii)a “continuing inability to work”: section 94(1)(c)(i) of the SSA.
THE RELEVANT PERIOD
The Social Security (Administration) Act 1999 (Administration Act) provides that the start-day for a qualified DSP claimant is the date of the claim: section 41, section 42 and clause 3 of Schedule 2 of the SSA. This means that qualification and impairment ratings must be determined as at the date of claim. The only exception is where the person is not qualified on the date of claim but “will … become qualified” and “becomes so qualified” within thirteen weeks of lodging a claim, in which case their start-day is the day they became qualified: clause 4(1) of Schedule 2 of the SSA.
Mrs Abeed lodged her claim for DSP on 18 October 2010. Accordingly, the relevant period for consideration in this application is 18 October 2010 or, if Mrs Abeed was not qualified at that date, whether she became so qualified within thirteen weeks of that date, namely by 17 January 2011.
DOES MRS ABEED HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT FOR THE PURPOSES OF SECTION 94(1)(A) OF THE SSA?
It is not in dispute that Mrs Abeed suffers from (i) L5/S1 spondylolethesis and disc prolapse; (ii) bilateral knee pain/chronic mild degenerative knee joint changes; (iii) gestational diabetes; and (iv) uterine fibroids.
It is common ground that Mrs Abeed has physical impairments and, consequently, that section 94(1)(a) of the SSA is satisfied in her case.
DO MRS ABEED’S PHYSICAL IMPAIRMENTS ATTRACT 20 POINTS OR MORE ON THE IMPAIRMENT TABLES FOR THE PURPOSES OF SECTION 94(1)(B) OF THE SSA?
The Introduction to the Impairment Tables contained in Schedule 1B of the SSA provides, in part:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
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 2 years.
6. In order to assess 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 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible i.e., available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.”
The Guide to the Impairment Tables for Schedule 1B of the SSA, contained in the “Guide to the Social Security Law” (Guide), provides further clarification as follows:
“3. Fully Treated - impact of “reasonable treatment” on stability:
In determining the permanence of a person's medical condition and its resulting impairment(s), one must consider whether the person has received optimal medical management and all reasonable treatment for the condition. This can be taken to include therapy (eg physiotherapy) involving the primary and secondary stages of rehabilitation aimed at restoring mental or physical functional stability but usually does not extend to tertiary rehabilitation involving specific vocational programs. The stability of a condition and the permanence of its impairment may depend on whether reasonable treatment has been undertaken.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible (i.e. available locally at a reasonable cost) - For example, it would not be appropriate to expect that a person undergo prohibitively expensive treatment, or treatment that is only available in another state or country in order to satisfy the permanence criteria.
·treatment or procedure that is of a type regularly undertaken or performed - For example, treatments that are experimental in nature or not yet widely accepted or performed by the general medical community would not be considered reasonable. Treatment is taken to refer to conventional western medical therapy and does not refer to alternative therapies.
·treatment that has a high success rate and where substantial improvement can be reliably expected - It would be inappropriate to consider an impairment as being temporary solely because the person has not undertaken a treatment that has a poor success rate or that is likely to result in only marginal functional improvement.
·treatment that is of a low risk nature - A person may decide against undertaking a certain treatment because it has serious associated risks (eg a major surgical procedure) or unavoidable and significant side effects (eg chemotherapy) even though their treating specialist has indicated that the treatment may have a good chance of a successful outcome. The risk assessment of whether to proceed with a treatment should be a fully informed decision that is medically appropriate.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate impairment. However, if the person has decided against proceeding with reasonable treatment that is likely to result in significant improvement, the impairment would not be considered stabilised unless there is a medical or other compelling reason for not undertaking treatment.
A permanent impairment rating is not assigned if compelling grounds do not exist but the following should be documented: what reasonable treatment is feasible that will result in significant improvement, the risks and side effects of the treatment, why the treatment is considered medically reasonable and the person's reasons for choosing not to undertake this treatment. Some reasons that may be considered compelling grounds for not proceeding with treatment are described below.
4. Fully Stabilised - no improvement over next two years:
For a condition's impairment to be fully stabilised, it must be considered that with or without treatment, significant functional improvement is unlikely to occur within the next two years. Medical evaluation is required to assess the prognosis for further improvement within the next two years and factors such as the natural history of the condition, response to treatment and expected rate of recovery will need to be considered. It should be noted that “stability” as used in this context has a more specific meaning than that in common usage. The following examples illustrate further the restricted meaning of “fully stabilised”.
As indicated above, a medical condition and its resulting impairment is not considered fully stabilised if available treatment that may result in significant improvement within the next two years has not been undertaken. However, if the person has a medical or other compelling reason for not proceeding with such treatment, then it may be reasonable to consider the condition stabilised if no further improvement is expected. Such compelling reasons may include:
·The treatment is not considered “reasonable” as defined above (eg high-risk procedure, poor chance of significant improvement etc.)
·The person has religious or cultural beliefs prohibiting treatment (eg blood transfusions)
·The person lacks insight or the ability to make appropriate judgements due to their medical condition and are unlikely to comply with treatment (eg a person with a severe psychotic illness or dementia).
·The person has significant morbid fear of a treatment procedure (eg even minor surgery).
If a person has not had reasonable treatment due to factors that are not of a compelling nature, (eg lack of personal motivation that is not related to a medical basis), then their condition and impairment would not be considered fully treated and stabilised…”
L5/S1 SPONDYLOLISTHESIS AND DISC PROLAPSE (BACK CONDITION)
On 12 May 2010, Omparakash Damodaran, Senior Neurosurgical RMO at Sir Charles Gardiner Hospital, advised Mrs Abeed that the MRI was “very satisfactory” and, despite having previously been offered fusion surgery for her back pain, she was not a suitable candidate for an operative procedure “given that her MRI is actually quite good”.
On 29 September 2010, Dr Sara Foroughi, Chronic Pain Registrar in the Department of Pain Management, reported that Mrs Abeed described pain exacerbated on forward flexion with radiation down the lateral aspect of the thigh and ankle (R>L). Dr Foroughi reported that Mrs Abeed was quite fixated on surgical options and found no benefit from physiotherapy, but found pharmaceutical relief (Tramadol) effective for about 2 hours. Dr Foroughi outlined a management plan of continued use of Tramadol, the use of Gabapentin and Endep, with review in 3 months.
On 15 October 2010, Dr Nisreen Salihee reported Mrs Abeed had suffered the back condition since 2003, was currently taking the medications suggested by Dr Foroughi and to see the pain management physician in the future. Dr Salihee recorded the condition impacted on Mrs Abeed’s ability to sit/stand/move, was expected to last for more than 24 months and was uncertain if the condition would improve or deteriorate.
Based on the evidence before the Tribunal, on 18 October 2010, and within 13 weeks of that date (i.e. 17 January 2011), Mrs Abeed’s back condition whilst fully diagnosed, had not been optimally treated and so was not fully treated and stabilised and, consequently, cannot be allocated an impairment rating from the impairment tables.
BILATERAL KNEE PAIN/CHRONIC MILD DEGENERATIVE KNEE JOINT CHANGES (KNEE CONDITION)
On 15 October 2010, Dr Nisreen Salihee reported Mrs Abeed had suffered this knee condition since 2005 and that it was a presumptive diagnosis with no planned further investigation to confirm the diagnosis. Dr Salihee reported Mr Abeed was currently taking pain killers and that there was no past or future treatment planned. Dr Salihee noted that the condition was expected to last for more than 24 months and was uncertain if the condition would improve or deteriorate.
Mrs Abeed’s left and right knees were investigated by x-ray and ultrasound on 7 and 13 April 2010. The Doctor who performed those tests commented:
“There is early, mild degenerative change with the medical femoratibial compartments bilaterally and within the lateral aspect of the left patellofemoral compartment.”
Based on the evidence before the Tribunal, on 18 October 2010, and within 13 weeks of that date (i.e. 17 January 2011), Mrs Abeed’s knee condition was presumptively diagnosed so cannot be considered to have been fully diagnosed, treated and stabilised and cannot be allocated an impairment rating from the impairment tables.
FOOT CONDITION
The SSAT noted (at [23]) that Mrs Abeed had a foot problem which made walking difficult. The SSAT found (at [24]) that it was not possible to ascertain whether Mrs Abeed’s difficulty in walking was due to her knee condition or was a separate foot condition.
In any event, the SSAT found that the foot condition was, based on the evidence before it, not fully treated and fully stabilised and, accordingly, no impairment points could be allocated for that condition from the impairment tables.
The evidence before the Tribunal in relation to Mrs Abeed’s foot condition is that her left foot has been injected with a “solution of Marcain and Celestone” under ultrasound guidance. However, there was no evidence that her foot condition had been fully diagnosed, treated and stabilised. Consequently, it cannot be allocated an impairment rating from the impairment tables.
DIABETES
Based on the Medical Report (dated 15 October 2010) which accompanied Mrs Abeed’s claim for DSP, Mrs Abeed suffers from diabetes that requires no treatment and has minimal functional impact.
Accordingly, Mrs Abeed’s diabetes condition does not attract any points from the impairment tables.
UTERINE FIBROIDS
Based on the Medical Report (dated 15 October 2010) which accompanied Mrs Abeed’s claim for DSP, Mrs Abeed suffers from uterine fibroids which require no treatment and have minimal functional impact.
Consequently, Mrs Abeed’s uterine fibroids do not attract any impairment points from the impairment tables.
CONCLUSION
Based on the evidence before the Tribunal, on 18 October 2010 and, within 13 weeks of that date (i.e. by 17 January 2011), Mrs Abeed’s various medical conditions did not attract 20 points on the impairment tables and, as a result, she was not qualified to receive DSP under the provisions of section 94(1)(b) of the SSA.
NEW CONDITIONS
With the assistance of an interpreter, Mrs Abeed informed the Tribunal that, in addition to the five medical conditions discussed above, she also: (i) suffers from depression; and (ii) has a growth in her eye which causes a black spot in her eye, when she is reading or when she cries.
Based on the evidence before the Tribunal, Mrs Abeed was first diagnosed with depression in June 2011. Accordingly, that condition is not relevant to this application which relates to the period from 18 October 2010 (the date of Mrs Abeed’s claim for DSP) to 17 January 2011 (being 13 weeks after the date of Mrs Abeed’s claim for DSP).
Having said that, it is clear from Mrs Abeed’s JCA report, which assessment was performed by a Registered Psychologist with the assistance of a Registered Nurse on 5 November 2010 (which is within the period relevant to this application), that Mrs Abeed has been suffering from depression for some years but that it has remained undiagnosed until June 2011. Specifically, the JCA report states that Mrs Abeed has “Undiagnosed and untreated mental health conditions due to past trauma.”
It is unfortunate for Mrs Abeed that it has taken until June 2011 for her depression to be diagnosed. However, Mrs Abeed’s condition of depression may assist her with a future claim for DSP with Centrelink.
As regards Mrs Abeed’s eye condition, Mrs Abeed told the Tribunal that she first saw a specialist doctor in 2004 and was told that she had an infection of the retina and that the Doctor had recommended that she use some eye drops for her complaint. According to Mrs Abeed, she has a further appointment for her eye on 20 February this year and is booked in for a “CT Scan” of her eye.
There is no clear medical evidence before the Tribunal showing that Mrs Abeed’s eye condition had been fully diagnosed in the period relevant to this application (i.e. 18 October 2010 to 17 January 2011). Further, it is unclear on the evidence before the Tribunal, whether the eye condition is fully diagnosed, treated and stabilised. Although, it would appear not, based on Mrs Abeed’s verbal evidence.
Accordingly, Mrs Abeed’s eye condition cannot attract any impairment points from the impairment tables.
DOES MRS ABEED HAVE A CONTINUING INABILITY TO WORK FOR THE PURPOSES OF SECTION 94(1)(C)(I) OF THE SSA?
Since the Tribunal finds that Mrs Abeed does not satisfy section 94(1)(b) of the Act, it is unnecessary for it to consider whether she has a “continuing inability to work” (as defined in section 94(2) of the SSA) for the purposes of section 94(1)(c)(i) of the SSA.
DECISION
For the above reasons, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 8 April 2011.
I certify that the preceding 41 paragraphs are a true copy of the reasons for the decision herein of Senior Member C Walsh and Dr J Chaney, Member .
...(sgd) T Freeman.............
Associate
Dated 22 February 2012
Date(s) of hearing 13 February 2012 Counsel for the Applicant Mr K Al Rabaca Representative for the Respondent Mr Paul Maishman
Centrelink Program Litigation and Review Branch
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