FADIA SAKR and SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 802

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 802

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4186

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FADIA SAKR

Applicant

And SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal MS N BELL, Senior Member
DR J CAMPBELL, Member

Date20 October 2009  

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Bell
  Presiding Member  

CATCHWORDS

Social Security – claim for disability support pension – whether applicant had a physical, intellectual or psychiatric impairment at the date of claim or within 13 weeks of claim – whether Applicant has an inability to work – impairment rating below 20 points – decision under review is affirmed.

Social Security Act 1999

Social Security (Administration) Act 1999

REASONS FOR DECISION

20 October 2009 MS N BELL, Senior Member
DR J CAMPBELL, Member           

1.      Ms Fadia Sakr is a young mother, 27 years old, who cares for her severely disabled five year old daughter.  Her daughter is immobile and must be carried by Ms Sakr whenever the use of her wheelchair is impossible.

2.       Ms Sakr claimed disability support pension (DSP) in April 2007 in respect of osteoporosis, hypothyroidism, iron and vitamin D deficiency and depression.

3. Centrelink rejected her claim on the basis that all of her conditions were “temporary” in that they had not yet been fully diagnosed, treated and stabilised and so could not be given an impairment rating under the Impairment Tables in Schedule 1B to the Social Security Act 1991 and consequently Ms Sakr did not meet the requirement for a rating of 20 points.  An Authorised Review Officer and the Social Security Appeals Tribunal in turn affirmed the decision, although the SSAT found Ms Sakr’s osteoporosis to be permanent and assessed a 10 point impairment rating.   The Secretary, after considering further medical information, subsequently found her osteoporosis and her hypothyroidism to be permanent and assessed 15 points for her osteoporosis and nil points for her hypothyroidism.

issues

4.      Section 94 of the Act provides for the following requirements for eligibility for disability support pension:

i)         a physical, intellectual or psychiatric impairment; and

ii) an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and

iii)       a continuing inability to work.

5.      It is not in dispute that Ms Sakr has impairments and so meets the first requirement.  The remaining requirements give rise to the issues in this application.

does ms sakr have an impairment rating of at least 20 points?

6.      The Introduction to the Impairment Tables provides that in order for a medical condition to be allocated points under the Tables, it 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.

7. In accordance with subclause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999, we must also restrict our attention to the 13 week period following the date on which Ms Sakr claimed disability support pension, that is, 16 April 2007 to 15 July 2007.

8.      We will deal with each of Ms Sakr’s conditions in turn, to assess whether an impairment rating may be allocated and, if so, the appropriate rating.

osteoporosis

9.      The Secretary had conceded, at the hearing of this application, that Ms Sakr’s osteoporosis was permanent.  This concession was made on the basis of a report from Dr Rozario, treating Rheumatologist, dated 29 February 2008 that stated the condition was permanent.  However, during the course of the hearing we became concerned that, as a very young woman to have this condition, Ms Sakr may not have had optimal investigation and treatment.  At the Tribunal’s request, the Secretary arranged for Ms Sakr to be examined by Dr Neil McGill, Consultant Rhuematologist.

10.     Dr McGill in his report of 30 April 2009 considered that, in the period between 16 April 2007 to 15 July 2007, Ms Sakr’s osteoporosis had been diagnosed and treatment had commenced, but the condition had not stabilised.  He said that since that time there has been an improvement in her bone density and therefore an improvement in the diagnosis of osteoporosis.  He based this view on a detailed review of x-rays and bone scan reports.  He also considered that the present management of Ms Sakr’s bone density is appropriate and has been optimal and expected that her bone density would continue to improve.

11.     Dr McGill also made a diagnosis of fibromyalgia (“a pain experience reflecting the stresses of her life”), giving rise to symptoms of pain in her feet, left leg, left knee and widespread tenderness and discomfort over her back.  There is no evidence of this diagnosis having been previously made.  Dr McGill considered that the majority of her current symptoms relate, understandably, to the stress of her severely disabled daughter’s situation.

12.     The instability of Ms Sakr’s osteoporosis during the relevant period means that it cannot be given an impairment rating.

hypothyroidism

13.     Dr McGill, after reviewing all documentation, found that Ms Sakr was diagnosed with hypothyroidism in late 2006 and commenced replacement therapy.  Dr McGill’s opinion was that, by the relevant period, the condition was diagnosed, treated and stabilised with no influence on symptoms by three months after the commencement of replacement therapy.

14.     On this basis, the condition attracts a rating of nil.

iron and vitamin D deficiency

15.     These deficiencies have been addressed with supplements.  At the time of Ms Sakr’s claim Dr Nashed, her treating doctor, in his report of 3 April 2007, was of the view that Ms Sakr’s iron deficiency would improve with treatment.  There is no further medical evidence in relation to this condition.

16.     Dr Rozario said, in her report of February 2008, that Ms Sakr’s vitamin D levels were, after supplementation, in the lower limits of normal.  The conditions, being unstable at the time of claim and 13 weeks following, and consequently having improved, cannot attract a rating under the Impairment Tables.

depression

17.     At the time of making her claim, Ms Sakr had just commenced medication for depression.  The condition was not then, or in the following 13 weeks, fully treated or stabilised.  It cannot be rated under the Impairment Tables.

conclusion

18.     On the basis of the above conclusions, Ms Sakr does not meet the requirement for 20 points under the Impairment Tables.  It follows that her claim for disability support pension cannot be granted.  We remain concerned about this young woman.

19.     We note the widespread pain experienced by Ms Sakr and the diagnosis of fibromyalgia by Dr McGill.  We note as well Dr McGill’s and Dr Rozario’s views that a large part of Ms Sakr’s problem stems from the stress and physical demands of caring for, including carrying, her severely disabled five year old daughter.  We note that she has little or no assistance with this.  We suspect that until these difficulties are addressed Ms Sakr will experience little improvement in her symptoms.

decision

20.     We affirm the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member and  DR J CAMPBELL, Member

Signed:         ...........................[sgd]....................................................

Associate: Felicia Daniele

Date/s of Hearing  20 January 2009 
Date of Decision  20 October 2009
Counsel for the Applicant           N/A
Solicitor for the Applicant            Self-Represented
Counsel for the Respondent       N/A
Solicitor for the Respondent       Ms R Harlock, Centrelink Legal Services and Procurement Branch