Emany El Rashed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 484
[2013] AATA 484
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5063
Re
Emany El Rashed
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 11 July 2013 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – schizoaffective disorder – low back pain – dermatitis – whether conditions fully diagnosed, treated and stabilised –requirements in the Impairment Tables concerning diagnosis of a mental health condition – psychological condition not diagnosed by medical practitioner according to the Impairment Tables – back condition not fully diagnosed – dermatitis not fully stabilised during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Ms Emany El Rashed suffers from low back pain, dermatitis and a serious psychological condition. She seeks review of a decision by the Social Security Appeals Tribunal (SSAT) that she does not qualify for disability support pension (DSP).
To qualify for DSP, Ms El Rashed must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, she must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
A person must satisfy the criteria for DSP at the date of applying, or within 13 weeks of that date: s 42 and Sch 2 of the Social Security (Administration) Act 1999. Ms El Rashed lodged her application for DSP on 4 May 2012, meaning the relevant period in her case is from 4 May 2012 to 3 August 2012.
THE IMPAIRMENT TABLES
The Impairment Tables are used to assess the impact of impairment on a person’s functional capacity. For applications for DSP made after 1 January 2012, the Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Clause 6 of the Determination sets out how the Tables are to be applied.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than 2 years.
A condition is permanent for the purposes of the Impairment Tables if it has been fully diagnosed by an appropriately qualified medical practitioner; and it has been fully treated and fully stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years: cl 6(4).
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is fully stabilised if:
(a)either 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.
Reasonable treatment means 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.
CONTINUING INABILITY TO WORK
The meaning of continuing inability to work is set out in subs 94(2) and (5) of the Act. Because I find that Ms El Rashed’s impairments do not rate 20 or more points on the Impairment Tables, it is not necessary to consider whether she has a continuing inability to work.
EVIDENCE ABOUT MS EL RASHED’S MEDICAL CONDITIONS
Centrelink accepts that Ms El Rashed’s psychological condition, low back pain and dermatitis are impairments for the purposes of DSP. However, Centrelink says, none of these conditions can be assigned a rating on the Impairment Tables. The evidence about Ms El Rashed’s conditions follows.
Dr Akladious’ first report
On 26 March 2012, Dr Mervat Akladious, Ms El Rashed’s general practitioner since February 2000, completed a medical report in support of her claim for DSP. She listed Ms El Rashed’s medical conditions as schizoaffective disorder and low back pain.
Dr Akladious reported that Ms El Rashed’s schizoaffective disorder had its onset in April 2007 and was diagnosed in November 2010. She described it as a “major psychological problem”. She noted that Ms El Rashed had seen Dr Attia-Soliman, and described her symptoms as auditory and visual hallucinations, disturbed sleep and nightmares, loss of concentration, memory loss, crying for no good reason, and irritability and restlessness. She said it affected her endurance, communication and cognitive function, and Ms El Rashed needs support in activities of daily living. Her current treatment was Zyprexa, Aurorix and Epilim; her future treatment was “uncertain”. The effects of her condition were expected to persist for more than 24 months and to deteriorate within that time.
In relation to Ms El Rashed’s low back pain, Dr Akladious reported it had its onset in 2011 and her diagnosis was presumptive; further investigations and tests were planned to confirm the diagnosis. Current treatment was with pain killers; it was expected to persist for more than 24 months and to fluctuate within that time.
Job Capacity Assessment
On 4 May 2012, Ms El Rashed was interviewed by a Centrelink job capacity assessor The assessor noted that Ms El Rashed reported an admission to hospital for one day in 2007 because of her “low mood”.
The assessor determined that none of Ms El Rashed’s impairments was fully diagnosed, treated and stabilised and so none could be assigned a rating on the Impairment Tables. Further, that she was capable of working for 15 to 22 hours within the next 2 years with intervention.
Centrelink’s decision
On 17 May 2012, Centrelink determined that Ms El Rashed did not qualify for DSP. Ms El Rashed sought review of that decision by an authorised review officer (ARO). She provided a further report from Dr Akladious, a report dated 9 November 2010 from Dr Attia-Solomon, and a report Auburn Hospital in support of her claim.
Dr Akladious’ second report
In a further report on 15 June 2012, Dr Akladious provided almost identical information to that in her first report. She added that future treatment for Ms El Rashed’s low back pain was “uncertain”. She also added that Ms El Rashed suffers from dermatitis which is treated with Diprosone cream; significant improvement in her condition was expected.
Dr Attia-Soliman’s report
Dr Attia-Soliman’s report is addressed to Dr Akladious. It states that Ms El Rashed had been “feeling depressed for ten years”; she reported hearing voices and talking back to herself, and seeing images; and her family had a “strong history of schizophrenia” which affected her father, brother and nephew.
Dr Attia-Soliman diagnosed schizoaffective disorder and reported she had commenced Ms El Rashed on Zyprexa and Epilim, a mood stabiliser, and she was monitoring her progress during “supportive psychotherapy sessions”.
Report from Auburn Hospital
A report dated 2 April 2007 from Auburn Hospital to Dr Akladious shows Ms El Rashed was seen at the emergency department when she stopped speaking or eating after a fight with her brother. She was diagnosed with “hyperventilation not psychogenic”. Her husband reported a similar episode about five years earlier.
The ARO’s decision
On 11 July 2012, the ARO determined that Ms El Rashed had schizoaffective disorder, low back pain and dermatitis but that her schizoaffective disorder was not fully treated and stabilised; that her low back condition was not fully diagnosed treated and stabilised, and that her dermatitis was well-managed and had limited impact on her ability to function. It is not clear on what basis the ARO accepted that Ms El Rashed had schizoaffective disorder but nothing turns on this.
The ARO decided that Ms El Rashed’s impairments did not rate 20 points or more on the Impairment Tables. Further, that she did not have a continuing inability to work, although the evidence on which this finding was based is not clear.
The SSAT’s decision
On 23 October 2012, the SSAT decided that Ms El Rashed did not qualify for DSP. The Member noted that Ms El Rashed's psychiatric condition had not been diagnosed by a psychiatrist and she had not been seen by a clinical psychologist as required by Table 5 of the Impairment Tables.
The Member noted that Ms El Rashed’s husband said her condition was hereditary and most of her family have it. She observed that Ms El Rashed “displayed normal affect and contact with reality during her hearing, and her concentration and her memory appeared to be excellent”. Further, “the description of her symptoms provided by Mrs El Rashed is not consistent with schizophrenia or schizoaffective disorder” and “while schizophrenia can run in families, it does not usually affect all members of a family”. Nothing in the decision indicates any basis for these statements.
MS EL RASHED’S PSYCHOLOGICAL CONDITION
There is no question that Ms El Rashed suffers from a serious and debilitating psychological condition. Dr Akladious describes it as schizoaffective disorder and its date of onset as April 2007. This appears consistent with the timing of the report from Auburn Hospital on 2 April 2007, although that report offers a different diagnosis.
Ms El Rashed’s husband, Mr Zeidon Al-Bahily, gave evidence at the SSAT hearing that Ms El Rashed has been seeing Dr Attia-Soliman once or twice a month since 2007. He confirmed at the present hearing that was “about right”.
Dr Attia-Soliman’s report dated 9 November 2010 to Dr Akladious starts “Thank you for asking me to see Mrs El Rashed”. This suggests, but it is not clear, that she had just started seeing Ms El Rashed. At any rate, Ms El Rashed has been seeing Dr Attia-Soliman regularly since November 2010 and possibly earlier.
At the Tribunal hearing, Ms El Rashed handed up a second report from Dr Attia-Soliman to Dr Akladious, dated 3 September 2012. Dr Attia-Soliman reported that Ms El Rashed had continued to see her for treatment of “schizoaffective disorder (schizophrenia + depression)”; her condition had “improved to 30%” but deteriorated again; her hallucinations had increased and the dosage of Zyprexa had therefore been increased to triple the recommended dosage. Dr Attia-Soliman recommended she see a cardiologist to assess any adverse effects taking the dosage; in the meantime she was continuing to take Aurorix and Epilim, and her progress would be monitored “during supportive psychotherapy sessions”.
In a handwritten note on her report, Dr Attia-Solomon wrote
There is a strong family history of schizophrenia. Her condition is long term. Permanent fully diagnosed 2010. There is no cure for schizophrenia she needs to be on medication forever. Not expected to improve in 2 years i.e. has a permanent and continuous disability should [sic] be granted DSP.
Ms El Rashed gave evidence that, on advice from Centrelink that she needed to be assessed by an appropriately qualified medical practitioner, she recently saw Dr Alam, a psychiatrist. She has seen him once and is to see him again in September after which he has said he will provide a report on her condition.
The question arises whether Dr Attia-Soliman’s report can be relied on in finding that Ms El Rashed’s condition was fully diagnosed during the relevant period.
Dr Attia-Soliman is a general practitioner with a speciality in psychological medicine. She has been treating Ms El Rashed since at least November. She is almost certainly in a position accurately to diagnose Ms El Rashed’s condition. However, cl 7(1) of the Impairment Tables provides that, in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
The instructions which accompany Table 5 (Mental Health Function) state:
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 is not be made by a psychiatrist).
Ms El Rashed did not see a psychiatrist until recently when she saw Dr Alam. He is yet to provide a report but, even if he concurs with Dr Attia-Soliman’s diagnosis, it will not be a diagnosis made by an appropriately qualified medical practitioner at the relevant time.
It may be that the instructions are overly restrictive because they do not allow for a case like Ms El Rashed’s where there is evidence of a serious psychological or psychiatric condition with continuing treatment over several years by a specialist general practitioner, but they are part of the legislation and must be applied.
As Ms El Rashed’s condition was not fully diagnosed during the relevant period, it cannot be assigned a rating on the Impairment Tables.
LOW BACK PAIN
Dr Akladious reported in March 2012 that the diagnosis of Ms El Rashed’s lower back pain was presumptive, and further investigations and tests were planned to confirm the diagnosis.
Ms El Rashed gave evidence that she has an appointment with a specialist next month to investigate what Dr Akladious has said may be “a disc problem”.
As this condition was not fully diagnosed during the relevant period, it cannot be considered permanent during the relevant period and cannot be assigned a rating on the Impairment Tables.
DERMATITIS
In her report of 15 June 2012, Dr Akladious reported that Ms El Rashed’s dermatitis is treated with Diprosone cream and significant improvement in her condition was expected. Ms El Rashed told me that, as long as she uses the cream prescribed by Dr Akladious – which she does – her dermatitis causes her no problem.
It appears that Ms El Rashed’s condition was fully diagnosed and treated during the relevant period but may not have been fully stabilised. Even if it was fully stabilised, given Ms El Rashed’s evidence that it has no functional impact on her, it would rate NIL points on the relevant table (Table 14, Functions of the Skin).
CONCLUSION
It is plain from the medical reports that Ms El Rashed suffers from a serious psychological or psychiatric condition. Whether it will improve with further treatment, whether it would rate 20 points on the Impairment Tables, and whether she would satisfy the other criteria for DSP is not clear at this time. However, it may be in her interests to make a further claim for DSP once she has a report from Dr Alam.
I affirm the decision under review
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ...............[sgd].........................................................
Associate
Dated
Date(s) of hearing 9 July 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation & Review Branch
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