Eisapourpouri and Secretary, Department of Social Services (Social services second review)
[2016] AATA 934
•23 November 2016
Eisapourpouri and Secretary, Department of Social Services (Social services second review) [2016] AATA 934 (23 November 2016)
Division
GENERAL DIVISION
File Number
2016/1098
Re
Mahin Eisapourpouri
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 23 November 2016 Place Sydney The decision under review, being the decision of the Social Security and Child Support Division of this Administrative Appeals Tribunal made 4 February 2016, is affirmed.
.................[sgd].......................................................
Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – disability support pension – eligibility – relevant period – physical intellectual or psychiatric impairments – whether impairments rate 20 points under Impairment Tables – whether conditions fully diagnosed, treated and stabilised – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42
CASES
Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922
SECONDARY MATERIALS
Royal Australian and New Zealand College of Psychiatrists Guidelines
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member A Poljak
23 November 2016
INTRODUCTION
Mrs Eisapourpouri seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 4 February 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) refusing Mrs Eisapourpouri’s claim for the disability support pension (“DSP”) which was made on 1 June 2015.
Mrs Eisapourpouri’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.
For Mrs Eisapourpouri to qualify for DSP, she had to satisfy these criteria on 1 June 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 31 August 2015 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).
The Secretary contends that the medical evidence does not support a finding that Mrs Eisapourpouri was qualified for DSP during the relevant period.
The Secretary accepts that Mrs Eisapourpouri suffered from a number of conditions including autoimmune liver disease, diabetes, osteoarthritis, major depression and anxiety, hypertension, vertigo, bursitis, capsulitis and tendinitis during the relevant period. She therefore satisfies section 94(1)(a) of the Act.
The issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
IMPAIRMENT TABLES
The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.
In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through.
Reasonable treatment is defined in subsection 6(7) as 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.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)
Mental Health Condition (major depression and anxiety)
Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.
The Introduction to table 5 of the Impairment Tables provides (inter alia):
The diagnosis of a 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). (emphasis added)
However before functional impact is to be assessed I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised. The Secretary accepts that Mrs Eisapourpouri’s mental health condition was fully diagnosed but contends that it was not fully treated and fully stabilised during the relevant period. I agree for the following reasons.
In the report of Dr Pishyar, clinical psychologist, dated 21 May 2015, he states that the future/planned treatment was for Mrs Eisapourpouri to continue to see her psychologist and he noted that her insight was improving.
In his further report dated 3 November 2015, Dr Pishyar opines that Mrs Eisapourpouri was fully diagnosed with depression and PTSD, and that her current ongoing psychological treatment was helping her to stabilise her mental health condition and prevented further relapses. At hearing Mrs Eisapourpouri provided two additional reports from Dr Pishyar dated 12 May 2016 and 1 September 2016. Both reports again confirm that Mrs Eisapourpouri’s mental health conditions were fully diagnosed during the relevant period and that she was receiving ongoing cognitive behavioural therapy (CBT). In the report dated 12 May 2016, Dr Pishyar advised that:
Mrs Eisapourpouri is fully diagnosed with depression and anxiety disorder, fully treated and her current on-going CBT is helping her to keep her current mental stabilization and maintaining her productive coping for preventing further deterioration and relapses.
This may very well be the case as of 12 May 2016; however, a person’s qualification for DSP can only be assessed as it is at the date of claim and in the subsequent 13 weeks. If circumstances change, then it is appropriate for the claimant to lodge a fresh claim.
In Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922 (24 December 2012) the Tribunal said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
There is evidence before me that prior to and during the relevant period, Mrs Eisapourpouri was in the process of undertaking CBT with Dr Pishyar. The Medicare Patient History Report shows that she completed five sessions before and during the relevant period, and underwent six more sessions after the relevant period. The secretary contends that this evidence confirms that at the relevant period Mrs Eisapourpouri was only halfway through her treatment plan and as such a condition cannot be regarded as fully treated and fully stabilised.
Further, the Secretary contends that Mrs Eisapourpouri had not undertaken pharmacological treatment for her mental health condition and that there is no evidence to indicate that she had ever been prescribed medication. The Secretary relies on the Royal Australian and New Zealand College of Psychiatrists Guidelines (RANZCP Guidelines) which states:
“patients with moderate-severe depression should be offered combined pharmacotherapy and psychotherapy as first line treatment.” (emphasis added)
Mrs Eisapourpouri gave evidence at hearing that she could not take any pharmacotherapy for her mental health condition because she was already taking numerous medications for her other conditions. There is no medical evidence before me to support this.
For the reasons already given, I am not satisfied that Mrs Eisapourpouri’s mental health conditions were fully treated and stabilised during the relevant period.
Visual Impairment (Diabetes)
The Secretary accepts that Mrs Eisapourpouri’s visual impairment, resulting from her diabetes, was fully diagnosed but contends that it was not fully treated and fully stabilised during the relevant period. In particular, the Secretary contends that Mrs Eisapourpouri had not had reasonable treatment at the relevant period. I agree for the following reasons.
In a report dated 22 January 2015, Dr Hamid diagnosis Mrs Eisapourpouri with bilateral diabetic maculopathy with significant macular oedema. He notes that Mrs Eisapourpouri is on waiting list for cataract operation and states that the result of the cataract operation is uncertain. At hearing, Mrs Eisapourpouri said that she has undertaken four laser treatments on each eye and is still waiting to have cataract surgery.
For these reasons, I am not satisfied that visual impairment, resulting from her diabetes, was fully treated and stabilised during the relevant period.
Physical Exertion Impairment (Diabetes)
The Secretary accepts that Mrs Eisapourpouri’s physical exertion impairment, resulting from her diabetes, was fully diagnosed but contends that it was not fully treated and fully stabilised during the relevant period. I agree for the following reasons.
In a letter dated 3 March 2015, Dr Wong, endocrinologist, advised that Mrs Eisapourpouri’s medication was reviewed and monitored and that the next option was insulin therapy.
At the hearing before the SSCSD, Mrs Eisapourpouri said that she had commenced into therapy approximately three months prior to the hearing which was conducted on 4 February 2016. It follows, that I cannot be satisfied that she commenced insulin therapy during the relevant period.
For these reasons, I am not satisfied that physical exertion impairment, resulting from her diabetes, was fully treated and stabilised during the relevant period.
Lower Limb Disorder (osteoarthritis)
The Secretary contends that Mrs Eisapourpouri’s lower limb disorder was not fully diagnosed, treated and stabilised at the relevant period.
In a report dated 22 January 2015, Dr Hamid indicates that Mrs Eisapourpouri suffered from advanced osteoarthritis and reports that her symptoms included lower back and joint pain, especially in the knees, and difficulty walking. In a subsequent report dated 19 May 2015, Dr Hamid states that the condition is well-managed and has minimal impact on Mrs Eisapourpouri’s ability to function.
I do not have before me any radiological evidence or reports from specialist consultations. Accordingly I accept the Secretary’s contention that there is insufficient medical evidence to support that Mrs Eisapourpouri’s lower limb disorder was fully diagnosed, treated and stabilised during the relevant period.
Digestive Function (autoimmune hepatitis)
The Secretary accepts that Mrs Eisapourpouri’s digestive impairment, resulting from autoimmune hepatitis, was fully diagnosed during the relevant period. This is supported by the report of Dr Hamid dated 19 May 2015, as corroborated by Dr Lin’s report of 3 September 2015. However, the Secretary contends that there is insufficient evidence to support that this condition was fully treated and stabilised in the relevant period.
Dr Lin, a consultant gastroenterologist and hepatologist, first saw Mrs Eisapourpouri in April 2015. In a report dated 16 April 2015, Dr Lin describes numerous serology and an abdominal ultrasound undertaken by Mrs Eisapourpouri. Dr Lin requested a repeat of the serology and liver function tests and hoped to see Mrs Eisapourpouri again in two weeks with the result of the blood tests. It was also noted that a liver biopsy would be arranged at the next review if the liver test did not improve.
The report of Dr Lin dated 3 September 2015, states that Mrs Eisapourpouri was diagnosed with autoimmune hepatitis with bridging fibrosis in May 2015 and she is currently on medication, which will be a lifelong. As a result of her liver disease and her other co-morbidities, Mrs Eisapourpouri feels lethargic and not completely well.
As a result of this evidence, I am satisfied that Mrs Eisapourpouri’s condition of autoimmune hepatitis was fully diagnosed, fully treated and fully stabilised during the relevant period. This then raises the question of functional impact when looking at the Impairment Tables.
In the Job Capacity Assessment Report (JCA) undertaken on 27 July 2015, it is recorded that Mrs Eisapourpouri reported a ‘burning’ sensation sometimes.
Dr Hamid in his report dated 19 May 2015, recorded that Mrs Eisapourpouri’s reflux oesophageal (gastroenterological condition) was considered generally well managed and may cause minimal and/or limited functional impact.
It follows, that Mrs Eisapourpouri’s digestive function impairment would warrant a nil rating under table 10 of the Impairment Tables, which relates to whether issues with digestive function interrupts the person at work or during other activities.
Other Medical Condition
It is noted that Mrs Eisapourpouri has other medical conditions including vertigo, bursitis, capsulitis, tendinitis and hypertension. However there is limited medical evidence before me regarding the treatment and prognosis of these conditions and I therefore find that these other conditions are not fully diagnosed, fully treated and fully stabilised during the relevant period.
CONCLUSION
Since Mrs Eisapourpouri’s conditions are not considered permanent under the Act, it is therefore not necessary for me to consider whether she had a continuing inability to work during the relevant period. It follows that her claim for DSP cannot succeed.
I affirm the decision under review.
Mrs Eisapourpouri may apply for DSP again at any time.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms A Poljak, Senior Member.
....................[sgd]....................................................
Associate
Dated 23 November 2016
Date of hearing 7 November 2016 Applicant In person Solicitors for the Respondent Ms S Heithersay; Department of Human Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
0