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

[2020] AATA 424

Eid and Secretary, Department of Social Services (Social services second review) [2020] AATA 424 (7 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2499

Re:Romonda Eid

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member 

Date:7 February 2020

Date of written reasons:        6 March 2020

Place:Sydney

For the reasons given orally at the conclusion of the hearing held on 7 February 2020, the Tribunal affirms the decision under review, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 7 May 2019 to reject the Applicant’s claim for Disability Support Pension made on 12 October 2018.

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

Mr S Evans, Member 

CATCHWORDS

SOCIAL SECURITY – disability support pension – rejection – qualification – medical – whether impairments fully diagnosed, treated and stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – bladder condition – chronic pain syndrome – gastrointestinal condition – mental health condition – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2)

Social Security Act 1991 (Cth) s 94

CASES

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

WRITTEN REASONS FOR DECISION

Mr S Evans, Member 

6 March 2020

INTRODUCTION

1. Romonda Eid (“the Applicant”) is 34 years old. She applied for disability support pension (“DSP”) on 12 October 2018. At the time she made the claim she listed a number of conditions including chronic vomiting, nausea and reflux, depression, anxiety, obsessive compulsive disorder, adrenal fatigue, osteopenia, ovarian failure, neurogenic bladder, asthma, vestibular migraines, Scheuermann’s disease, insomnia, vitamin and mineral deficiency, chronic dental pain and chronic constipation.

2. Upon application the evidence suggested that the Applicant was waiting for treatment for a number of her medical conditions. Consequently it was determined by the Secretary of the Department of Social Services (“the Respondent” or “Centrelink”) that the Applicant was ineligible for DSP because she had a number of medical interventions pending which, it could be anticipated, may reduce the functional impacts of her medical conditions.

3. The Applicant’s claim for DSP was rejected on 28 October 2018.

4. At the Applicant’s request, the decision was reviewed on 15 February 2019 by an Authorised Review Officer (“ARO”) who affirmed the decision to reject her application. On 25 February 2019 the Applicant sought review of the ARO’s decision before the Social Services and Child Support Division of this Tribunal (“AAT1”). On 7 May 2019 the AAT1 affirmed the ARO’s decision to reject the Applicant’s claim for DSP. On 18 May 2019 the Applicant sought review of the AAT1’s decision before the General Division of the Administrative Appeals Tribunal.

   HEARING

5. The matter was heard on 7 February 2020. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave oral reasons for its decision as permitted under section 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Ms Eid sought a statement in writing of the reasons for the decision under section 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which these findings were based.

6. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services[2016] FCA 879, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided to affirm the original decision to refuse Ms Eid’s application for DSP.

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

7. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   94(1) A person is qualified for 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) one of the following applies:

   (i) the person has a continuing inability to work;…

8. Simply put, in order to qualify for DSP, it must first be established that an applicant has one or more physical, intellectual or psychiatric impairments. Second, these impairments must warrant a rating of 20 points or more under the Impairment Tables contained in the Social Security(Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Impairment Tables”). Third, the Applicant must have a ‘continuing inability to work’ as stated under the Act.

9. Noting that the complexity of the eligibility criteria means that any summary risks a degree of oversimplification, in essence to be eligible for DSP, at the time of qualification (being the date of application or within 13 weeks after) the following factors apply:

   (i)An applicant must have had conditions which are “permanent”. Permanent in this context means the conditions were fully diagnosed by an appropriate medical practitioner, fully treated, fully stabilised and likely to persist for more than two years.

   (ii)For a condition to be “fully stabilised”, generally the applicant must have undertaken reasonable treatment for the condition and significant improvement to a level enabling the person to undertake work in the next 2 years is not expected.

   (iii)If a condition meets these requirements, (meaning it is deemed permanent as it has been diagnosed, treated and stabilised), the medical conditions can be assigned a rating against the Impairment Tables which determine the level of functional impact of an impairment.

   (iv)If an applicant is assigned an impairment rating of 20 points or more against the relevant Impairment Tables, they may qualify for the DSP.

   (v)If the impairment rating includes at least 20 points under a single Impairment Table, the applicant has a “severe” impairment.

   (vi)If the impairment rating is of 20 points or more but from more than one Impairment Table, the applicant may also be required to have completed a program of support (“POS”) or have actively participated in such a program for at least 18 months in order to qualify for the DSP.

10. The question of reasonable treatment was of particular relevance to this application. Reasonable treatment is outlined in subsection 6(7) of the Impairment Tables which state that reasonable treatment is treatment that:

    (a)         is available at a location reasonably accessible to the person; and

    (b)         is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)         is regularly undertaken or performed; and

    (e)         has a high success rate; and

    (f)          carries a low risk to the person.

    The qualification period

11. As noted, the Applicant lodged her claim for DSP on 12 October 2018 and that triggers the assessment process to determine the eligibility of the Applicant. Ms Eid must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. to 11 January 2019). I will refer to this as the “qualification period”.

12. The practical implications for this matter are that the Tribunal can only consider the Applicant’s conditions and qualification for DSP during the qualification period.

13. Following this, the Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to the Applicant’s condition during the qualification period.

    EVIDENCE

14. The Applicant provided evidence as to her medical history and current medical conditions. The Tribunal also received evidence from Dr Ben Balzer (general practitioner) who provided oral testimony by telephone.

15. The Tribunal also has before it a significant amount of documentation relating to the Applicant’s medical conditions and history of interactions with Centrelink dating back to 2006, which was also when the Applicant first applied for DSP. The entirety of the evidence before the Tribunal was considered in the course of the Tribunal’s review.

16. Dr Balzer has been the Applicant’s general practitioner since 1989 when she was an infant. He provided testimony at the hearing and also completed a summary of the Applicant’s medical conditions to assist the Tribunal.

17. Dr Balzer has assessed the Applicant and assigned her 75 points under the impairment tables. Most notably in his letter of 16 August 2019 to the Tribunal he determined that the Applicant was eligible for 10 points under Table 5 mental health function and 30 points under Table 10 digestive and reproductive function. The remainder of the impairment points are attributed to Table 1 (5 points), Table 2 (5 points), Table 3 (5 points) and Table 13 (10 points).

18. Consistent with his allocation of 75 points to the Applicant’s impairments, Dr Balzer writes that the Applicant “has been an extremely ill person for many years and has a multitude of severe medical illnesses across several domains which make her profoundly disabled and permanently unfit for work”.[1]

    [1] Letter of Dr Balzer to the Tribunal dated 16 August 2019.

19. The Respondent accepts, and based on the evidence before it the Tribunal agrees, that the Applicant had a physical, intellectual or psychiatric impairment during the qualification period such that she satisfies section 94(1)(a) of the Act.

    Does the Applicant have an impairment rating of at least 20 points

20. The introduction to the Impairment Tables at Part 2 provides that in order for a medical condition to be allocated points under the tables, the condition must be diagnosed, treated and stabilised. The condition may then be accepted as permanent if it is more likely than not to persist for more than two years.

    Bladder condition

21. The Applicant’s bladder condition was considered fully diagnosed but not fully treated and stabilised by the Respondent because during the qualification period the Applicant was on the waitlist for sacral modulation. An InterStim device was inserted subsequent to the qualification period and the Applicant reports that this had failed to improve her condition and ultimately had to be reversed. The Tribunal accepts that the treatment was ultimately unsuccessful and the Applicant still has what Dr Balzer describes as “bladder weakness and atony”.[2]

    [2] Ibid.

22. As treatment was still underway during the qualification period, the Applicant’s bladder condition was diagnosed but not fully treated and consequently no impairment rating can be assigned to this condition.

    Chronic pain syndrome

23. The Applicant reports that she had chronic pain across multiple sites, most notably in her mouth and chronic neck and lower back pain, which Dr Balzer has diagnosed as spondylosis.

24. Dr Soji Swaraj is a consultant endocrinologist and physician. He wrote in August 2019 that “Ms Eid has multiple diagnoses but the number one issue preventing work is severe and chronic pain in multiple locations.”

25. The Applicant was referred to a multidisciplinary pain management clinic and she was seen in November 2018. The clinic provided a program of recommendations which included changing medication, including reducing her pain medications, counselling, and further appointments. The Applicant did not undertake all reasonable treatment and there is no evidence that she resumed treatment of her chronic pain as indicated in the report from Dr Epino dated 4 April 2019 (based on the November 2018 consultation).

26. At the hearing the Applicant appeared dismissive of the recommended treatment regime but did not indicate or provide any evidence of an alternative treatment being undertaken. As the Applicant had not undertaken all reasonable treatment this condition cannot be assigned an impairment rating.

    Gastrointestinal conditions including constipation, nausea and vomiting

27. The Applicant indicated to the Tribunal that many of her health conditions have been exacerbated or caused by gastric sleeve surgery in 2008. She made it clear at the hearing that the consequences of the surgery are a cause of much discomfort and mental angst for her.

28. A report by Dr Govind Krishna (general and upper gastrointestinal surgeon) in February 2018 notes that the Applicant has “episodes of vomiting food”. A subsequent report by Dr Krishna in March indicates that further treatments are appropriate beginning with a gastroscopy followed by a “multi disciplinary team effort” which included an exercise physiologist.

29. With reasonable treatment options still being considered, the Tribunal finds that this condition did not qualify for an impairment rating during the qualification period.

    Mental health condition

30. Dr Balzer notes in his referral letter that the Applicant has had “chronic depression since early teenage years and refuses to try antidepressants as she had bad reactions about 18-19 years of age, despite my best explanations, that SSRI side effects get very different as one gets older, particularly over 25 years of age”.[3]

    [3] Letter of Dr Balzer dated 3 August 2018 at T69, p 303.

31. Psychologist James Warn writes that as of 27 February 2019 the Applicant had attended one session of psychological therapy following a referral from Dr Fong. Further correspondence from April 2019 indicates that treatment is ongoing and confirms a diagnosis of “moderate depression as well as anxiety”.

32. The Tribunal finds that the Applicant had an outstanding treatment in terms of an intervention from a therapist and that she did not see Dr Warn until February 2019 which is outside the qualification period. Consequently, her mental health condition was not fully treated and stabilised during the qualification period.

    Other conditions

33. In relation to the other conditions including ovarian failure, migraines, asthma and fatty liver, it is the Tribunal’s conclusion that these conditions are ineligible to be assigned an impairment rating because they cannot be considered fully treated or stabilised. Furthermore, there is insufficient referable evidence of the functional impacts of these conditions to warrant the assignment of any points.

    CONCLUSION

34. The Tribunal accepts that the Applicant suffers from a number of medical conditions and acknowledges the evidence of Dr Balzer that her health problems cause her both pain and discomfort. The Tribunal also accepts Dr Balzer’s evidence that the Applicant has attempted to manage her health proactively, noting she attended his surgery on twelve occasions during the qualification period.

35. It was emphasised to the Applicant during the hearing that in order to qualify for DSP, the Tribunal would require evidence consistent with the rules for the application of the Impairment Tables. Without this evidence, the rigid eligibility criteria would not be met.

36. Based on the evidence before it, the Tribunal finds that treatment was either outstanding or still in progress for the Applicant’s most severe impairments including her mental health condition, bladder and gastrointestinal conditions and chronic pain. Consequently, these conditions cannot be found to be fully diagnosed, treated and stabilised and were not able to be assigned an impairment rating during the qualification period.

37. Because the Applicant does not meet the threshold requirement of 20 points under the impairment tables, this claim for DSP cannot succeed.

    DECISION

38. For the reasons stated above I affirm the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 6 March 2020

Date(s) of hearing:	7 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms C. Campbell, Department of Human Services