Bayodh and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 1061

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2010] AATA 1061

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2261

GENERAL ADMINISTRATIVE DIVISION		)
Re		Amal Bayodh

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date26 November 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY — pensions — disability support pension — whether condition diagnosed, treated and stabilised — 13-week claim period.

Social Security Act 1991 (Cth) — s 94

Social Security (Administration) Act 1999 (Cth) — s 42, Schedule 2

REASONS FOR DECISION

27 November 2010 Senior Member A K Britton           

1.      Mrs Bayodh seeks review by the AAT of the decision to refuse her claim for disability support pension. Her claim was made in respect of back pain, depression, visual loss, osteoarthritis and lower limb deficiencies.

2. Section 94 of the Social Security Act 1991 (the Act) provides that a person is qualified for a disability support pension if, among other things, they have a physical or psychiatric impairment and a minimum impairment rating of 20 points. An impairment rating cannot be given unless the claimed condition is a “fully documented, diagnosed condition which has been investigated, treated and stabilised”. In addition, the person must have a continuing inability to work.

3. In this matter, I am required to decide in relation to each of the claimed conditions whether it is a fully documented, diagnosed condition which has been investigated, treated and stabilised. If so, it is also necessary for me to determine the impairment rating to be given to it, and — if 20 points or more — whether Mrs Bayodh has a continuing inability to work, as that term is defined in the Act. In looking at these questions, the relevant period is the 13 weeks after Mrs Bayodh lodged her claim — namely, from 18 January 2010 to 24 April 2010. That is a consequence of s 42 and Schedule 2 of the Social Security (Administration) Act 1999.

4.      In looking at that period, any change after that time in Mrs Bayodh’s health is irrelevant except insofar as it may cast light on the position at the claim period: Harris v Secretary Department of Education and Workplace Relations [2007] FCA 404 at [1] per Gyles J.

5.      Mrs Bayodh’s application has already been the subject of a decision by an authorised review officer of Centrelink and the Social Security Appeals Tribunal. They reached the same decision — that is, that Mrs Bayodh’s claim for DSP should be refused, but for different reasons. Both found that Mrs Bayodh’s depression, visual loss, osteoarthritis and lower limb deficiencies, were not fully diagnosed, treated and stabilised.

6.      However, the authorised review officer accepted the opinion of the job capacity assessor, Ms Alison Brown, who found that Mrs Bayodh’s back condition was fully diagnosed, treated and stabilised and went on to award an impairment rating of 20 points. The authorised review officer found, however, that Mrs Bayodh could work at least 15 hours per week and for that reason, refused her claim. The SSAT, however, found that Mrs Bayodh’s back condition had not been fully diagnosed, treated and stabilised and for that reason, refused her claim. In reaching my decision, I am to approach it afresh, and do not presume that the other decisions were correct.

7.      I will now look at each of the five conditions.. As I understand it, it is agreed between the parties that of Mrs Bayodh’s conditions, her back and depression are the most serious. So turning to the back condition, it is agreed that Mrs Bayodh suffers from a serious back problem, and did so throughout the claim period — that is, 18 January 2010 to 24 April 2010. It is also agreed  that during that period, the condition had been fully diagnosed:— an MRI of the lumbar spine performed in late 2009 revealed a L4/5 disc bulge and L5 root compression. Therefore the issue that must be determined is whether the condition was fully treated during the claim period.

8.      By the end of the claim period, Mrs Bayodh had received some treatment for her back. She had received physiotherapy which did not resolve the problem. She went on to have three painkilling injections, and was prescribed painkillers and anti-inflammatory medication. –These measures however, did not resolve the condition. In late 2009, she was seen by surgeon Dr Van Gelder, who flagged that surgery might be necessary, and in a report dated 9 November 2009 recommended that Mrs Bayodh undertake conservative treatment and wait and see how the condition progressed. It is not clear when Mrs Bayodh again saw Dr Van Gelder, but her evidence is that she saw him again once  again before he signed off on an admission form for surgery to be undertaken on 20 April 2010.

9.      That surgery, which was in the nature of decompression surgery, was undertaken in August of this year. That Mrs Bayodh underwent surgery for her back after the relevant period does not of itself mean that the condition was not fully treated at that time. The requirement that the condition be fully treated does not require that the claimant undergo all known treatment  And  depends, to some extent, on the progress of the condition. Paragraph 6 of the Impairment Tables set out in Schedule 1B of the Act sets out the factors that must be taken into account in determining whether a condition could be considered to have been fully treated and stabilised, and makes apparent that an overall assessment of the reasonableness of any proposed treatment, needs to be taken into account.

10.     As discussed what constitutes “reasonable treatment” depends greatly on the progression of the condition. At the early stages, it is not uncommon — as happened in this case — for practitioners to take a “wait and see” attitude and recommend conservative treatment before recommending surgical intervention and the inevitable risks.. This is the approach taken by Dr Gelder. Here, the evidence indicates that prior to the end of the claim period, Dr Gelder had considered that conservative treatment options had been unsuccessful and recommended that surgery be undertaken. While, understandably, Mrs Bayodh was nervous about the surgery, there is nothing to indicate that she considered that the risk of surgery was unacceptable and, as is apparent, went on to have that surgery.

11.     For these reasons, I could not be satisfied that throughout the claim period, the back condition was fully treated and stabilised.

12.     I turn now to the second claimed condition — depression. The medical evidence indicates that Mrs Bayodh suffers from a psychiatric condition. Different labels have been given to that condition — her GP has provided a diagnosis of depression and her treating psychologist, Mr Medhat Metry, considers it to be an adjustment disorder with anxiety and depressed mood. While different labels have been given, I am satisfied that the condition was fully diagnosed throughout the claim period.

13.     The evidence indicates that Mrs Bayodh had received some treatment for that condition, prior to and throughout the claim period. She apparently, commenced on anti-depressants and commenced seeing Mr Metry in late 2009, and saw him on a number of occasions throughout the period. While the evidence I could not however be satisfied that throughout the claim period, the condition was fully stabilised and treated. The treatment was at early stages, both in terms of the prescription of medication and the cognitive therapy provided by Mr Metry. It falls a long way short from the requirement that it be “fully” treated. So for that reason, I am not satisfied that that requirement is met.

14.     I turn now to the three less serious conditions. In relation to the third condition, which she has described as visual loss, Dr Sedrak provided a diagnosis of anterior uveitis in January of this year. He recommended eye drops be taken, and that Mrs Bayodh attend an eye specialist for further review. Mrs Bayodh gave evidence that she had some concerns about that treatment, because she was wishing to conceive. While in the assessment of reasonableness of treatment, that would be a factor to be taken into account, the fact that further specialist intervention was not undertaken at that stage leads me to conclude that the condition was not fully treated or stabilised throughout the claim period.

15.     Turning now to the fourth condition of osteoarthritis, a diagnosis of that condition was made by Mrs Bayodh’s GP in January of this year. She was prescribed Mobic ( an anti-inflammatory) and, more recently, her GP has given her a referral to see a specialist in relation to that condition.

16.     In relation to the fifth condition — which the job assessment assessor called a “lower limb deficiency” — a diagnosis was made of a left heel spur. A recommendation was made that Mrs Bayodh undertake acupuncture and steroid injections. While the evidence is somewhat unclear, it would appear that that treatment had not been – completed  by the end of the claim period. More recently, Mrs Bayodh’s GP has recommended that she see a specialist in relation to that condition.

17.     Like the fourth condition, I could not be satisfied that the lower limb condition was fully stabilised and treated at the claim period. Given these findings, I am unable to rate the impairments under the relevant impairment tables, and it follows that I must refuse Mrs Bayodh’s application and affirm the decision under review.

18.     In reaching that decision, I note that the evidence makes plain that Mrs Bayodh suffers from a collection of serious health problems. My reasons should not be read as expressing doubt as to the severity of her conditions, particularly the back and depression. However, it is not enough that I be satisfied that she suffers from serious health problems. I must also be satisfied that they were stabilised and fully treated throughout the claim period; I should also note that there is nothing to prevent Mrs Bayodh making a new application for a disability support pension, and that would be assessed in reference to the period from the date that claim is lodged to  13 weeks after that date. That she was unsuccessful in this application does not mean that she would be unsuccessful in the future.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ....................................[sgd]......................................
  Associate to Senior Member Britton

Date of Hearing:  26 November 2010
Date of Decision:  26 November 2010
Date Written Reasons Delivered:   23 December 2010
The Applicant appeared via telephone with assistance of an interpreter in the Arabic language.
Solicitor for the Respondent:          Centrelink Advocacy Branch