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

[2017] AATA 160

Chok and Secretary, Department of Social Services (Social services second review) [2017] AATA 160 (10 February 2017)

Division:GENERAL DIVISION

File Number:           2016/0877

Re:Fadwa Chok

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:10 February 2017

Place:Sydney

The decision under review is affirmed.

........................................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple conditions – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – thyroid condition – mental health – spinal condition – other conditions – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) section 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 L Bygrave, Member

10 February 2017

INTRODUCTION

1. On 19 January 2015, Ms Fadwa Chok lodged a claim for the disability support pension.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Ms Chok did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 28 August 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Chok did not satisfy subsection 94(1)(b) of the Act and so she did not qualify for the disability support pension.

4. On 14 February 2016, Ms Chok applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 25 January 2017. Ms Chok attended the hearing in person and was self-represented. She was assisted by an interpreter of the Arabic language.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Ms Chok must satisfy the requirements of section 94 of the Act as at the date of her claim or within 13 weeks of lodging the claim, that is between 19 January 2015 and 20 April 2015 (the claim period).

8. The Secretary concedes, and the Tribunal agrees, that Ms Chok suffers medical conditions that cause impairment and therefore, she satisfied subsection 94(1)(a) of the Act at the time of her claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Ms Chok had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in section 94(2) of the Act.

10. The Secretary, in the Secretary’s Statement of Facts, Issues and Contentions dated 13 December 2016, has also submitted that Ms Chok did not meet the residential qualifications for disability support pension as set out in subsection 94(1)(e) of the Act at the date of her claim. As set out in paragraph 43 of these reasons, I find it is not necessary for me to consider the Secretary’s submission in relation to whether Ms Chok meets subsection 94(1)(e) of the Act.

    Does Ms Chok have medical conditions that can be rated at 20 points or more under the Impairment Tables?

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

12. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

13. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

14. Relevantly, the Introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also 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 by a psychiatrist)’.

15. Relying on the evidence before me, I consider Ms Chok’s medical conditions for the purposes of her claim for the disability support pension are:

    ·thyroid condition;

    ·depression – mental health condition;

    ·neck and back pain – spinal condition;

    ·right shoulder and arm pain – upper limb condition;

    ·knee pain – lower limb condition; and

    ·urinary incontinence condition.

16. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Thyroid

17. The medical report for disability support pension completed by Dr Fariha Dib Kak (General Practitioner) on 7 January 2015 stated that Ms Chok was diagnosed with Graves’ Disease and has a ‘long history of thyroid problems’, which is treated with medication. Her symptoms include palpitations, tremors, fatigue and joint pain, and the condition affects her endurance and ability to move at times.[1]

    [1] Exhibit T1-T20, pp 147-149.

18. Dr Peter Rohl (Endocrinologist), in a medical report dated 5 November 2014, provided a management plan that stated Ms Chok should remain on medication and possible future treatments include either ‘radioactive iodine or possibly surgery’.[2] However, a further report by Dr Rohl dated 26 July 2016, which is after the claim period, clarified that:

    … she should consider remaining on anti-thyroid medication indefinitely, as a treatment of choice, she does not have significantly obstructive symptoms to recommend a total thyroidectomy, and the gland is possibly too large to be treated with the alternative, of radioactive iodine...[3]

    [2] Exhibit T1-T16.

    [3] Exhibit A4.

19. At the Tribunal hearing, Ms Chok said she continues to see Dr Rohl every three months and manages her condition by medication. Ms Chok said that, although she lives alone, her sister does ‘everything for her’ and her eight year old nephew stays with her to assist her during the night time if required.

20. Ms Chok also told the Tribunal that she is able to dress and undress herself (although with difficulty), is able to put on her hijab and a brooch, and have a shower. She can go shopping with her sister. Accompanied by her uncle, she was able to take a train to the city for the purposes of the Tribunal hearing. Although Ms Chok mentioned she felt dizzy several times during the course of the hearing and asked to place her head on the table, she sat through and engaged with a hearing process that went for more than 4 ½ hours.

21. Based on the medical evidence before me, I am satisfied that Ms Chok’s thyroid condition was fully diagnosed, treated and stabilised during the claim period. In accordance with the information at Table 1 – Functions requiring Physical Exertion and Stamina of the Impairment Tables Determination, I find that Ms Chok’s condition has a mild functional impact on activities requiring physical exertion and stamina and assign 5 points.

    Mental health condition

22. Dr Dib Kak, in the medical report for disability support pension dated 7 January 2015, diagnosed Ms Chok with Generalised Anxiety Disorder / Dysthymia and stated she has ‘daily symptoms of insomnia, anhedonia, negative thoughts, restlessness, social phobia, lack of motivation’.[4]

    [4] Exhibit T1-T20, pp 150-152.

23. Medical reports from Mr Medhat Metry (Psychologist) dated 9 December 2014, 21 July 2015 and 1 November 2016 stated that ‘it appears that Ms Chok is suffering from Major Depressive Disorder’, and outlined counselling and psychological treatment.[5] In reports dated 21 July 2015 and 1 November 2016, Mr Metry noted that Ms Chok was appropriated dressed, alert and oriented in time, place and current information, and gave no indication of thought disorder, delusions or hallucination. He also reported that Ms Chok appeared irritable, worried and depressed, and was preoccupied with her physical pain and limitations.

    [5] Exhibits T1-T17, T1-T30, A7.

24. I note that Mr Metry is neither a consultant psychologist nor psychiatrist and so is not an appropriately qualified medical practitioner to provide a diagnosis of Ms Chok’s condition as required by Table 5 of the Impairment Tables Determination. I therefore am unable to rely on Mr Metry’s diagnosis of Ms Chok’s mental health condition.

25. Dr Ishrat Ali (Consultant Psychiatrist), in a medical report dated 18 December 2014, noted that Ms Chok ‘presented with symptoms of depression including depressed moods, insomnia, irritability, poor concentration and difficulty in relaxing’.[6] Unfortunately, only the first page of this report has been provided to the Tribunal; the Secretary also only has the first page of the report on file. Consequently, there is no diagnosis from Dr Ali, who is an appropriately qualified psychiatrist for the purposes of the Impairment Tables Determination, about Ms Chok’s mental health condition during the claim period. A further report by Dr Ali dated 23 March 2016 does not discuss Ms Chok’s mental health condition; it solely refers to her medication and her request for a letter to support her application for Housing Commission.[7]

    [6] Exhibit T1-T18.

    [7] Exhibit A6.

26. Based on the evidence before me, I am not satisfied that Ms Chok’s mental health condition was fully diagnosed, treated and stabilised by an appropriately qualified practitioner during the claim period. As I am not satisfied that her condition was permanent during the claim period, I cannot assign an impairment rating.

    Spinal condition

27. The medical report by Dr Dib Kak dated 7 January 2015 stated that Ms Chok experiences neck pain with radiculopathy and osteoarthritis in her neck.[8] Dr Dib Kak also noted in a medical certificate on 15 July 2014 that Ms Chok has neck pain with paraesthesia, severe back pain, numbness and is unable to sit or stand for more than 15 minutes.[9]

    [8] Exhibit T1-T20, p 153.

    [9] Exhibit T1-T13.

28. A report by Mr Tamer Kahil (Consultant Orthopaedic Surgeon) on 16 September 2014 referred to Ms Chok’s densitometry and bone scan results, diagnosed her with kyphosis and degenerative arthritis, and opined that she is at ‘high risk of facture as she is osteoporotic’.[10] 

    [10] Exhibit T1-T15.

29. A whole body bone scan of Ms Chok on 16 April 2015 was reported by Dr Judith Pohlen as:

    Mild uptake in the bilateral C3/4, C4/5 and C6/7 facet joints.

    Thoracic kyphosis with active uptake in the bilateral T3/4, bilateral T6/7 and left T7/8 facet joints.

    Active uptake in particularly the left T11 costovertebral junction. Mild to moderate uptake in the right L3/4 and L4/5 facet joints.[11]

    [11] Exhibit T1-T30, p 227.

30. Dr Vladimir Davydenko reported a CT lumber spine of Ms Chok on 16 April 2015 as:

    Mild multilevel broad based circumferential disc bulges throughout T12 to S1 levels … Moderate multifactorial narrowing of the left exit foramen at L4/L5… Bilateral multilevel degenerative change in the facet joints…[12]

    [12] Exhibit T1-T30, pp 237-8.

31. Dr Loretta Reiter (Consultant Rheumatologist) reported on 6 May 2015 that Ms Chok’s bone scan showed evidence of mild degenerative disease in her cervical, thoracic and lumber spine.[13] Dr Reiter provided a further report on 16 August 2016, which stated a change in Ms Chok’s medication to alleviate her pain. This report also noted that Ms Chok was waiting for a bone scan to assess whether she has any facet joint or costovertebral joint arthritis affecting her lower thoracic spine.[14]

    [13] Exhibit T1-T30, p 236.

    [14] Exhibit A2.

32. At the Tribunal hearing, Ms Chok said she is in constant pain and wakes everyday crying from pain. I accept that Ms Chok experiences constant pain from her spine and neck condition. However, I also note that on the day of the Tribunal hearing, Ms Chok was able to take a train to the city and sit throughout the hearing (a period of more than 4 ½ hours) with only two breaks.

33. Based on the medical evidence before me, I am satisfied that Ms Chok’s condition was not fully diagnosed, treated and stabilised during the claim period as Dr Reiter’s report on 16 August 2016 indicated that assessment of her spinal condition was continuing. As this condition is not permanent for the purposes of the Impairment Tables Determination, I cannot assign an impairment rating.

    Upper limb condition

34. Dr Dib Kak, in the medical report dated 7 January 2015, stated that Ms Chok has ‘shoulder pain: tendinosis, causes restriction with movement and pain’.[15] There is no further medical evidence that specifically mentions Ms Chok’s upper limb condition.

    [15] Exhibit T1-T20, p 153.

35. Ms Chok told the Tribunal that if she raises her right arm, it feels as though her shoulder will dislodge, and her hands tremble and ache. As set out in paragraph 20, she is able to shower, put on her hijab and attach a brooch to her dress. At the Tribunal hearing, she was able to pick up and take items from her handbag.

36. As there is insufficient medical evidence before the Tribunal in relation to Ms Chok’s upper limb condition, I am not satisfied that the condition was fully diagnosed, treated and stabilised during the claim period. As the condition is not permanent, I cannot assign an impairment rating in accordance with the Impairment Tables Determination.

    Lower limb condition

37. Ms Chok told the Tribunal that she has pain in her knees, which began approximately eight months ago. I have seen no medical evidence in relation to a lower limb condition.

38. As the period of early-mid 2016 is almost one year after the claim period, I am satisfied that her lower limb condition was not fully diagnosed, treated and stabilised during the claim period. I therefore cannot assign an impairment rating as the condition is not permanent for the purposes of the Impairment Tables Determination.

    Urinary incontinence condition

39. Dr Dib Kak, in a medical report for disability support pension dated 7 January 2015, stated that Ms Chok has a urinary incontinence condition.

40. Dr Wafa Samen (Consultant Obstetrician, Gynaecologist and Infertility Specialist) provided reports on 28 November 2013, 2 April 2014, 10 July 2014, 23 March 2015, 24 July 2015 and 20 July 2016.[16] These reports advised that Ms Chok experiences vaginal dryness and urge incontinence. In the most recent report dated 20 July 2016, Dr Samen stated that the urge is not responding to medication and he proposed either changing medication or seeing a urogynecologist for botox injections.

    [16] Exhibits T1-T8, T1-T10, T1-T12, T1-T24, T1-T30 and A3.

41. Based on the medical evidence before me, I am satisfied that Ms Chok’s condition was fully diagnosed, but not fully treated and stabilised during the claim period. As the condition is not permanent, I cannot assign an impairment rating in accordance with the Impairment Tables Determination.

    CONCLUSION

42. For the reasons set out above, I am satisfied that Ms Chok did not meet the requirements of s 94(1)(b) of the Act during the claim period as her impairments were not rated at 20 points or more under the Impairment Tables.

43. As I find that Ms Chok did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether she had a continuing inability to work or whether she met the residency requirements in section 94(1)(e) of the Act.

44. If Ms Chok’s circumstances change, she is entitled to submit a new application for the disability support pension.

    DECISION

45. The decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

........................................................................

Associate

Dated: 10 February 2017

Date of hearing:	25 January 2017
Applicant:	In person
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services