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

[2020] AATA 666

Greeg and Secretary, Department of Social Services (Social services second review) [2020] AATA 666 (25 March 2020)

Division:GENERAL DIVISION

File Number:2019/2484          

Re:Adiba Greeg  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West 

Date:25 March 2020  

Place:Melbourne

The decision under review is affirmed.

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

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – spinal condition – diabetes – urinary incontinence – cataracts – depression – whether conditions fully treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under impairment tables – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

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 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

25 March 2020

BACKGROUND

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 8 April 2019 affirming the decision of the Respondent to refuse the Applicant’s claim for the Disability Support Pension (DSP) (Second Tier Review).

2. The relevant history of the matter is as follows:

   ·The Applicant made her original application for DSP on 22 May 2018.

   ·Centrelink refused the application on 18 June 2018 (Initial Decision).

   ·

   A Departmental authorised review officer (ARO) affirmed this decision on

   
   

   8 January 2019.

   ·A review of the Initial Decision was conducted by the Administrative Appeals Tribunal (Social Services and Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 8 April 2019.

   ·

   The Applicant applied for a Second Tier Review of the Initial Decision on

   
   

   3 May 2019.

3. A hearing in relation to the Second Tier Review was held on 6 February 2020.               The Applicant was represented by her son, Jobran Shahla. The Applicant and her son were each assisted by an interpreter in the Arabic language. The Respondent was represented by Ms Maleah Underhill, a solicitor with the Department of Human Services.

   LEGISLATION

4. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) : a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·Administrative Appeals Tribunal Act 1975 (AAT Act).

   QUALIFICATION PERIOD

5. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

6. In this case the qualification period commenced on 22 May 2018 and ended on

   
   

   21 August 2018.

7. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of deterioration in the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

8. To qualify for DSP, an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed during the qualification period.

9. In essence s 94(1) of the Act requires that:

   ·the Applicant have a physical, intellectual or psychiatric impairment; and

   ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

   ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table) or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

   ·the Applicant has a continuing inability to work or the Secretary is satisfied that the Applicant is participating in the supported wage system.

10. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment, or has actively participated in a program of support, and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

11. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

12. In conducting the Second Tier Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 of the AAT Act (T Documents) and the oral evidence of the Applicant.

13. The Applicant confirmed at the hearing that her claim on review related to the following conditions:[3]

    a.a spinal condition;

    b.type 2 diabetes;

    c.urinary incontinence;

    d.cataracts; and

    e.depression.

    [3] The Respondent’s Statement of Facts, Issues and Contentions addressed three additional conditions, namely angina, bilateral knee osteoarthritis and carpel tunnel syndrome.  The Applicant confirmed at the outset of the hearing that her claim did not relate to these conditions.

    Spinal Condition

14. The Applicant’s spinal condition comprised both cervical (C4-5 and C5-6 disc protrusion) and lumbar (L4-5 and L5-S1 disc protrusion) conditions. 

15. The Applicant gave evidence that she had injured her lower back and neck in Syria prior to migrating to Australia.  She had surgery for her lumbar condition in Syria in 1982 and had received further treatment at the Broadmeadows Hospital since arriving in Australia.  She said she had commenced physiotherapy and hydrotherapy approximately eight or nine months earlier as recommended by the Hospital. She stated that she had worn a cervical collar to support her neck for more than five years and only takes it off when she exercises.  She stated that, on the advice of Dr Basim Francis, her general practitioner (GP), she only takes paracetamol because other medications affect her stomach.

16. The Respondent conceded that the Applicant’s spinal condition was fully diagnosed and fully treated, but asserted that it was not fully stabilised during the qualification period.

17. The Tribunal is satisfied that the Applicant’s spinal condition was fully diagnosed during the qualification period.  An MRI taken on 23 February 2018 noted a right paracentral disc protrusion at L4-5 displacing the right L5 nerve; and a small central disc protrusion at    L5-S1 abutting the left S1 nerve[4].  Dr V I Karlov, consultant physician, noted this in his report of 9 May 2018[5].  It was also confirmed in the Verification of Medical Condition form prepared by Dr Toma Mikhael on 19 July 2018[6].   

    [4] T9 at p.29

    [5] T14 at p.42

    [6] T18 at p.50

18. In addition, the evidence supported a conclusion that the Applicant’s condition was fully treated.  The only treatments identified in the reports of Dr Karlov and Dr Mikhael was physiotherapy and analgesic medication.  Dr Mikhael reported that further surgery was not warranted and her condition was likely to persist for more than 2 years.  Dr Francis in his reports of 3 October 2019 and 9 December 2019 listed the Applicant’s current treatment at the time as Panadol, physiotherapy and specialist review.

19. In asserting that the Applicant’s condition was not fully stabilised during the qualification period, the Respondent relied on the observation of Dr Karlov that physio would help in the first instance, and the absence of any evidence from the Applicant’s physiotherapist to demonstrate the outcome of her physiotherapy treatment.  The Applicant gave evidence that she had undertaken physiotherapy but it had not been useful.  She stated that she was not sure when she first underwent physiotherapy, but it was after she saw Dr Karlov and likely to be in early 2019.  

20. On the basis of this evidence the Tribunal is satisfied that the Applicant did not undertake physiotherapy treatment as suggested by Dr Karlov during the qualification period.  However, the Applicant did undertake the treatment a few months after the qualification period but it was not effective.  On this basis the Tribunal concludes that physiotherapy during the qualification period would have been unlikely to have any significant effect on the Applicant’s condition and therefore the condition can be regarded as fully stabilised during that period.

21. The Respondent asserted in the alternative that the appropriate Impairment Table to rate the Applicant’s impairment is Table 4, which provides that the self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.  The Respondent asserted that there is no medical evidence of the functional impact of the Applicant’s spinal condition which would enable the Tribunal to ascribe a rating under Table 4.

22. The evidence of the Applicant was that she could not raise her arm above shoulder height.  She was unable to squat.  She experiences dizziness if she turns her head from side to side.  If she sits for more than 10 minutes she feels burning in her back and has to stand or lay flat.  She said that she is unable to drive a car or sit in a car for more than      15 minutes.  She said that she cannot bend over far enough to pick things up off a table and that she can only stand up from sitting in a chair with considerable difficulty.

23. Dr Karlov reported on 13 February 2018 that the Applicant complained to him of neck pain radiating down her left arm and of pain in her lower back radiating down her left leg.  However, he observed in relation to the neck pain that strength and reflexes were intact and in relation to the lower back that reflexes were unremarkable.  Upon review following an MRI scan and a metabolic bone screen, Dr Karlov reported on 9 May 2018 that there were no severe lesions; but he did observe that there were very low Vitamin D levels, indicative of secondary hyperparathyroidism, which could contribute to her pain.            The MRI scan conducted on 23 February 2018 showed normal vertebral alignment, no fractures or vertebral metastases with low grade disc and facet degeneration and minor disc bulges without neural contact at L2-3 and L3-4.

24. Dr Mikhael reported on 19 July 2018, noting the Applicant’s laminectomy surgery in 1985, that her current symptoms were permanent chronic lumbar ache and bilateral sciatica which were not suitable for further surgery[7].

    [7] T18 at p.50

25. The Applicant’s general practitioner, Dr Francis, reported on 3 October 2019 and               9 December 2019 that the Applicant suffered from, among other things: lower back pain for last few years worse recently, radiating to both legs affects her daily activities and functions and also neck pain for last 3-4 years, worse recently, radiating to both arms affects her functions and sleep, unable to lift arm, neck movement restrictions.   

26. On the basis of the limited available medical evidence, the Tribunal is satisfied that the Applicant’s self-reporting is corroborated to the extent that her spinal condition satisfies the criteria set out in Table 4 for a mild functional impact.  However, the evidence is not sufficiently specific to support a conclusion that her condition meets the criteria for either a moderate or severe functional impact. 

27. The Tribunal therefore assigns a rating of five points under Table 4 for the Applicant’s spinal condition.

    Diabetes

28. The Respondent conceded that the Applicant’s diabetes was fully diagnosed during the qualification period, but submits that the condition was not fully treated or stabilised at that time and could not be rated under the Impairment Tables.

29. The Applicant gave evidence that she was diagnosed with diabetes in 2007.  The Tribunal accepts that the diagnosis is confirmed in the report of Ms Anitha Ritchie, diabetes nurse consultant, of 9 March 2018[8].  Ms Ritchie noted at the time that the Applicant had poorly controlled Type 2 Diabetes and that her blood sugar levels (BGL) had improved since she was prescribed Jardiance.  In a further report dated 13 December 2018, Ms Ritchie reported on an appointment with the Applicant on 25 October 2018 (shortly after the qualification period).  Ms Ritchie noted that Jardiance had been stopped by the Applicant’s GP because it resulted in low blood pressure and that BGLs had reverted to high levels.       Ms Ritchie recommended lifestyle changes on current medication or commencement of insulin if unable to change lifestyle.

    [8] T10 at p. 30

30. The reports of Ms Ritchie indicate further treatment options were recommended. On the basis of this evidence the Tribunal is not satisfied that the Applicant’s diabetes condition was fully treated or stabilised during the qualification period and could not be rated under the Impairment Tables.

    Urinary Incontinence

31. The Respondent conceded that the Applicant’s urinary incontinence was fully diagnosed during the qualification period, but submits that the condition was not fully treated or stabilised at that time and could not be rated under the Impairment Tables.

32. The Tribunal agrees with the Respondent’s submission.  Dr Mikhael reported on              19 July 2018 that the Applicant has suffered from the condition since 2006 following a hysterectomy, and referred to planned treatment including pelvic floor exercises and possible surgery.  Dr Francis reported on 3 October 2019 and 9 December 2019 that the Applicant’s current treatment was physiotherapy and anticholinergic tablet. The Applicant indicated in her evidence that she had not been undertaking any treatment for her condition other than using pads and that it only affects her when she sneezes or coughs.

33. On the basis of this evidence, the Tribunal concludes that the Applicant’s urinary incontinence was not fully treated or stabilised during the qualification period, and could not be rated under the Impairment Tables.

    Cataracts

34. The Respondent conceded that the Applicant’s cataracts were fully diagnosed during the qualification period, but submits that the condition was not fully treated or stabilised at that time.

35. The Applicant gave evidence that she was first diagnosed with cataracts three years ago while in Syria when she was told by an Egyptian doctor that she needed surgery.          She confirmed that she takes eye drops to alleviate dry eyes and is on a waiting list at the Royal Eye and Ear Hospital for eye surgery to address cataracts in both eyes.               This evidence is consistent with the report of Dr Bryan Matthews, ophthalmologist, of              28 March 2018[9].  He indicated that the Applicant had bilateral cataracts affecting her vision, more so in the left eye, and recommended surgery.

    [9] T19 at p.51

36. On the basis of this evidence, the Tribunal is satisfied that the Applicant’s cataract condition was fully diagnosed during the qualification period, but was not fully treated or stabilised at that time and could not be rated under the Impairment Tables.

    Depression

37. The Applicant claimed that she suffers from depression and an unspecified mental health condition resulting from the trauma she experienced in Syria. She said that she had seen a “psychologist” about three times, who had recommended she address her disturbing thoughts by taking measures such as walking around the block and talking to her neighbours. The Applicant described to the Tribunal some of the horrific experiences she had endured in Syria during the long period of conflict in that country. The Tribunal has no doubt that these experiences have had a traumatic effect on the Applicant. However, the Tribunal was not provided with any evidence that the Applicant has ever been diagnosed with a mental health condition by a suitably qualified medical practitioner, specifically a psychiatrist or a clinical psychologist. The Introduction to Table 5 of the Impairment Tables makes it clear that the diagnosis of a mental health condition must be made by a suitably qualified medical practitioner before it can be assessed under the Table.

38. Accordingly the Tribunal is unable to assign a rating to the Applicant’s claimed mental health condition under the Impairment Tables.

    Conclusion

39. For the reasons discussed, the Tribunal is not satisfied that, during the qualification period, the Applicant met the requirements of s 94(1)(b) of the Act in that she was not a person with an impairment(s) that could be assigned 20 points or more under the Impairment Tables. Accordingly the Tribunal finds that the Applicant is not qualified for DSP.

40. As the Tribunal is not satisfied that the Applicant’s conditions can be assigned 20 points or more under the Impairment Tables, it is not necessary to consider whether the Applicant had a continuing inability to work.

    Decision

41. The decision under review is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 25 March 2020

Date of hearing:	6 February 2020
Advocate for the Applicant:	Jobran Shahla
Advocate for the Respondent:	Maleah Underhill
Solicitors for the Respondent:	Department of Human Services