Fawzie KERDI and Secretary, Department of Social Services
[2014] AATA 427
•1 July 2014
[2014] AATA 427
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5816
Re
Fawzie KERDI
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 1 July 2014 Place Sydney The decision under review is affirmed.
...............[sgd].........................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 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 Ion Alexander, Member
1 July 2014
BACKGROUND
On 15 May 2013 Mrs Kerdi lodged a claim for Disability Support Pension (DSP) on the basis that her various medical conditions were having an impact on her ability to function. The conditions as described in the claim form included “bilateral feet pain with paraesthesia and left Achilles insertional tendinopathy, back and buttock pain with radiculopathy and depression”.
Mrs Kerdi’s claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that she did not have an impairment rating of at least 20 points under the Impairment Tables.
In this proceeding Mrs Kerdi seeks review of the decision of the SSAT.
At the hearing Mrs Kerdi was self-represented and assisted by her son and an Arabic language interpreter.
ISSUES
In order to be qualify for DSP Mrs Kerdi had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 15 May 2013 and 14 August 2013.
It is agreed that Mrs Kerdi satisfied s 94(1)(a) of the Act.
It is also agreed that Mrs Kerdi suffers three medical conditions that are relevant to the present application, a degenerative spine condition (cervical and lumbar spondylosis), a mental health condition (depression) and a lower limb condition (bilateral insertional Achilles tendinopathy).
The respondent contends that during the claim period Mrs Kerdi’s degenerative spine condition was permanent but warranted a rating of only 5 points under Impairment Table 4 (Spinal Function).
In respect of Mrs Kerdi’s mental health and lower limb conditions the respondent contends that, during the claim period, these conditions were not permanent within the meaning of the Act.
The respondent also contends that if the Tribunal finds that Mrs Kerdi’s impairment rating under the Impairment Tables was 20 points or more she did not have a continuing inability to work as required by s 94(1)(c).
Therefore the issues to be decided are: whether during the claim period Mrs Kerdi’s impairment had a rating of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
IMPAIRMENT RATING
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner.
Also, in the assessment of a person’s impairment there must be corroborating evidence. Self-report of symptoms alone is insufficient.
Mrs Kerdi’s Spinal Condition
As noted above, the respondent accepts that during the claim period Mrs Kerdi’s spinal condition was permanent.
The respondent submits that the condition warrants a rating of 5 points under Impairment Table 4 on the basis that there is no medical evidence to corroborate a rating of 10 points or greater.
On having reviewed the evidence before the Tribunal I believe there is some evidence to suggest that, during the claim period, Mrs Kerdi’s spinal condition did have moderate functional impact which could attract an impairment rating of 10 points.
I am satisfied, however, that there is insufficient evidence to support a rating of greater than 10 points.
Mrs Kerdi’s lower limb condition
The respondent contends that, during the claim period, Mrs Kerdi’s lower limb condition was not fully diagnosed, treated and stabilised on the basis that there was a lack of certainty as to the cause of her symptoms and that treatment was ongoing.
On 8 December 2010, following an ultrasound examination, a diagnosis of left “Achilles tendinosis with mild retrocalcaneal bursitis” was made. Treatment with “ultrasound-guided cortisone injection” was suggested if there was little improvement with conservative measures.
In July 2011 ultrasound-guided steroid injections were performed on Mrs Kerdi’s right and left Achilles tendons with immediate improvement in her pain symptoms.
At the hearing Mrs Kerdi confirmed that she has had no further injections.
In a letter dated 17 January 2013 Dr Hassan, neurologist, noted that Mrs Kerdi’s presenting symptoms of bilateral foot pain and numbness were not due to neuropathic pain but due to musculoskeletal pain and suggested that a podiatrist may be helpful in addressing the symptoms.
On 12 February 2013 an ultrasound examination of the left heel confirmed a diagnosis of “left Achilles insertional tendinopathy” with no retrocalcaneal or retro-Achilles bursitis and no evidence of plantar fasciitis.
Therapeutic cortisone injection was again suggested if there was suboptimal improvement with conservative treatment.
Relevantly, ultrasound examination of the right Achilles tendon revealed normal morphology with no evidence of tendinopathy.
In a letter dated 12 August 2013 Associate Professor Youssef, consultant rheumatologist, noted a three year history of pain over the back of both heels and treatment with “a couple of steroid injections on each side without relief”.
Associate Professor Youssef concluded that Mrs Kerdi suffered significant insertional tendinopathy in both Achilles tendons and recommended further investigations including an MRI scan and suggested wearing shoes with a heel raise until he had the results of the investigations.
An MRI scan of the left ankle performed on 12 August 2013 is reported as showing “mild distal Achilles tendinosis”, “mild inflammatory change of the Achilles peritenon” and “mild plantar fasciitis”.
An MRI scan of the right ankle performed on 14 August 2013 is reported as showing a relatively normal Achilles tendon but “oedema surrounding the distal Achilles tendon [with] mild enlargement of the retrocalcaneal bursa and bone marrow oedema” which may be secondary to peritendinitis.
In a letter dated 28 August 2013 Dr Maniam, surgeon, diagnosed “left Achilles enthesitis” and prescribed a cortisone injection into the retrocalcaneal bursa. He added that if the problems become “recalcitrant” debridement and reattachment of the Achilles tendon may have to be considered.
In a letter dated 5 September 2013 Associate Professor Youssef concludes that Mrs Kerdi’s main problem is retrocalcaneal bursitis, probably mechanical rather than inflammatory, and prescribed a short trial of oral Prednisolone.
In a letter dated 3 October 2013 Associate Professor Youssef notes that Mrs Kerdi did not obtain any relief from the Prednisolone and that she did not want to see a surgeon and he started treatment with a Norspan patch.
On 26 November 2013 Associate Professor Youssef referred Mrs Kerdi to Dr Gupta to obtain advice regarding surgical options.
In my view the preceding summary of the relevant medical evidence clearly demonstrates that during the claim period Mrs Kerdi’s condition in respect of her ankle and foot symptoms was not fully diagnosed, treated and stabilised so that a rating under the Impairment Tables could not be assigned.
Mrs Kerdi’s Mental Health Condition
Functional impairment caused by a mental health condition is assessed under Impairment Table 5.
The Introduction to Table 5 stipulates that 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)”.
The respondent contends that, during the claim period, Mrs Kerdi’s mental health condition (depression) was not permanent as defined by the Determination on the basis that the condition had not been fully diagnosed until she came under the care of Dr Philips, consultant psychiatrist, on 22 June 2013.
Mrs Kerdi claims that she had been diagnosed and treated by a psychiatrist for some time prior to the claim period and that she had been under the care of a psychologist, Mr Metry.
The progress notes which appear to have been supplied by A2Z Medical Centre indicate that on 26 October 2010 Mrs Kerdi was seen by Dr Alsayed for “depression”. Management was noted as counselling.
On 30 November 2010 Dr Alsayed saw Mrs Kerdi for depression again and referred her to Professor Maghazaji, psychiatrist.
The progress notes indicate that Mrs Kerdi saw Professor Maghazaji on 21 January 2011.
The entry in the notes by Professor Maghazji states “feels sleepy during the day, does not sleep at night although she works all day. Encouraged to take Pristiq at night with Diazepam to start with”. Dr Maghazaji provides no other information and relevantly makes no diagnosis.
In a very brief report dated 19 October 2011 Professor Maghazaji notes that because of her son’s illness Mrs Kerdi “is becoming increasingly stressed and anxious”. The report does not refer to any psychiatric diagnosis or ongoing treatment.
On 27 April 2013 Dr Alsayed makes a diagnosis of “depressive anxiety disorder” and prescribes Cipramil, an antidepressant.
In a report dated 14 May 2013 Mr Metry, psychologist, states that Mrs Kerdi is under his care for psychological assessment and treatment and that it appears that she is suffering from “Mixed Anxiety and Depression”.
Mr Metry notes that Mrs Kerdi is on antidepressant medication and is receiving cognitive behavioural therapy, but makes no reference to the length or frequency of the treatment.
In a report dated 27 August 2013 which appears to be an almost exact copy of his prior report Mr Metry indicates that Mrs Kerdi continues to receive cognitive behaviour therapy and antidepressant medication.
In a letter dated 22 June 2013 Dr Philips, psychiatrist, notes that Mrs Kerdi presents with a “long history of depressive symptoms” and makes a diagnosis of “major depressive episode”.
Dr Philips recommended continuation of Citalopram (Cipramil), the cessation of Tramadol because of medication interaction and review in four weeks.
In a letter dated 15 November 2013 Dr Philips notes that Mrs Kerdi continues to have “some depressive symptoms and insomnia which are likely to be caused by her constant pain issues” and indicates her medication has been changed to Mirtazapine.
In my view the documentary evidence before the Tribunal clearly leads to a conclusion that Mrs Kerdi’s mental health condition was not fully diagnosed, in accordance with the requirements of the Determination, until 22 June 2013 about four weeks after the date of her claim.
Also the evidence suggests that regular antidepressant medication was started by her GP only two weeks before the date of her claim and that psychological treatment was only started during the claim period.
This leads me to a conclusion Mrs Kerdi’s mental condition was not fully treated and stabilised during the claim period and that an impairment rating could not have been assigned.
DECISION
For the reasons set out above, I am satisfied that during the claim period Mrs Kerdi’s impairment rating under the Impairment Tables was not greater than 10 points.
This means that Mrs Kerdi did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ...................[sgd].....................................................
Associate
Dated 1 July 2014
Date of hearing 24 June 2014 Applicant In person Solicitor for the Respondent Mr S Davidson, Department of Human Services
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