HERMIZ and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 917
•18 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 917
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4419
GENERAL ADMINISTRATIVE DIVISION ) Re EKHLAS HERMIZ Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date18 November 2010
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Ms Hermiz had, at the date of application for DSP, an impairment rated at 20 points. Such impairment resulted in a continuing inability to undertake any work for at least 15 hours per week in the next two years. Ms Hermiz, therefore, is entitled to DSP as at the date of her application. ......................[sgd].....................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - Hypertension - Post Traumatic Stress Disorder - Whether functional impairments eligible for point rating under Impairment Tables - whether conditions "investigated, treated and stabilised" - whether conditions permanent - Applicant met requirements under section 94 of Social Security Act 1991 (Cth) - decision under review set aside and remitted to Respondent for reconsideration according to law
Social Security Act 1991(Cth) ss 94, sch 1B
Social Security (Administration) Act 1999 (Cth) sch 2 cl 4
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Harris v Department of Employment and Workplace Relations (1997) 158 FCR 252
Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507
Re Tlonan and Department of Social Security (1997) 24 AAR 467
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION
18 November 2010 Ms N Isenberg, Senior Member BACKGROUND
1. Ms Hermiz lodged a claim for Disability Support Pension (DSP) with Centrelink on 29 April 2009 but her claim was rejected. This decision was affirmed by an authorised review officer and also, on 31 August 2009, by the Social Security Appeals Tribunal (SSAT). Ms Hermiz now seeks review of that decision.
ISSUE
2. The issue for the Tribunal to determine is whether Ms Hermiz was qualified for DSP on the date of claim (29 April 2009) or within 13 weeks of the date of claim.
LEGISLATION
3. The qualification criteria for DSP are set out in section 94 of the Social Security Act 1991 (Cth) (the Act). To qualify for DSP, section 94 requires Ms Hermiz to:
·have a physical, intellectual or psychiatric impairment;
·an impairment rating of at least 20 points under the Impairment Tables; and
·a continuing inability to work because of the impairment.
RELEVANT PERIOD FOR CONSIDERATION OF ENTITLEMENT TO DSP
4. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (Cth) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I must consider whether Ms Hermiz was entitled to the DSP by 29 July 2009.
EVIDENCE
5. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-documents), further documents were tendered.
6. The medical evidence is contained in various reports as follows:
·Report of Dr Sharah, Consultant Psychiatrist, dated 15 January 2009;
·Report of Mr Melhem, Counsellor, dated 30 March 2009;
·Reports of Dr Werdi, General Practitioner, dated 7 March 2009, 18 July 2009, and 16 August 2010;
·Reports of Dr Sochan, Consultant Psychiatrist, dated 17 April 2009, 4 December 2009 and 19 August 2010;
·Job Capacity Assessment Report of Julian London, Registered Psychologist, dated 23 December 2009.
7. I asked Ms Hermiz to specifically comment on her conditions as at the date of her application for DSP, and not her current symptoms. This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 19 FCR 342.
CONSIDERATION OF THE EVIDENCE and FINDINGS
did ms hermiz, by 29 July 2009, have a physical, intellectual or psychiatric impairment of 20 points or more?
Hypertension: Is It Permanent?
8. Ms Hermiz gave evidence of suffering elevated blood pressure which is uncontrolled. She said she was first aware of having high blood pressure before she came to Australia in March 2007, when it was diagnosed while undergoing a routine check as part of her immigration process. She said her General Practitioner, Dr Werdi, had changed her medication five or six times and presently she takes four different types of medication for the condition. Recently she had bleeding from her nose and mouth while asleep and she was hospitalised. This was believed to be associated with the condition. She sees her GP every week and he takes her blood pressure. She said he is ‘astonished’ that she is his only patient whose blood pressure he has never been able to control.
9. In a treating doctor’s report dated 7 March 2009, Dr Werdi said that Ms Hermiz had suffered hypertension since 19 January 2008. At the time of the report the condition was still not well controlled. The condition, he wrote, caused her a persistent headache and fainting. At the date of the report she was taking four different types of medication for the condition. He recommended further investigation of the condition. He was uncertain as to prognosis, and thought it would persist for between three and twenty-four months.
10. Dr Sharah, in the report of 15 January 2009, noted that Ms Hermiz had been “extensively investigated” by a number of people involved in her care, including a Neurologist, Dr Ibraham Hannah. In the report of 16 August 2010, Dr Werdi wrote of Ms Hermiz’ uncontrolled hypertension, despite using high doses of multiple blood pressure medications.
11. Dr Sharah in his report of 15 January 2009 wrote that she was “not responding well” to medication for her hypertension.
12. Ms Hermiz was also referred in July 2009 to Dr Cleland, a Renal Physician, who investigated the condition but found no cause for her hypertension. Ms Hermiz, who has a family history of serious renal problems, has had stents inserted in her renal arteries, which evidenced stenosis. Despite this procedure, which was apparently undertaken in an effort to manage her hypertension, her blood pressure remains uncontrolled.
13. The Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables), contained in Sch 1B of the Act, governs the way the Impairment Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment and the stability of an applicant’s condition are particularly relevant considerations in the application of the Impairment Tables. Those paragraphs (with emphasis added) are in the following terms:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
…
14. The Full Federal Court approved the decision of Gyles J in Harris v Department of Employment and Workplace Relations (2007) 158 FCR 252 concerning entitlement to DSP. One of the issues in that matter was whether the applicant’s chronic pain had been treated and stabilised. Gyles J made the following comments at 257 [17]:
It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis…………. I remain of that view.
15. Since at least the beginning of 2008 Ms Hermiz has had serious blood pressure problems. Dr Werdi, her General Practitioner, immediately prescribed medication, but there was no improvement. Since that time he has adjusted her medication several times but has been unable to control her hypertension.
16. In his report of 19 August 2010 Dr Sochan wrote that Ms Hermiz had a cerebral MRI on 24 October 2008 and the MRI changes relate to stroke. He believed this might explain her difficulty in achieving control of her blood pressure.
17. The test for whether a condition is treated and stabilised depends primarily on whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. “Likely” means a “reliable expectation” of significant functional improvement: Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507 at 513 to 515). As it transpires, despite treatment since the beginning of 2008, Ms Hermiz has shown no improvement. There was no suggestion whatever that she has been non-compliant in her recommended treatment. In my view the evidence is clear: Ms Hermiz has hypertension which has been diagnosed, and despite ongoing treatment and medication remains uncontrolled - it was uncontrolled in July 2009, and remains so. That medical practitioners continue to struggle to find a cause of the condition, and to prescribe optimal treatment, does not take away from the fact that Ms Hermiz has had the condition and it has not improved. I find that her condition has in fact been extensively treated: Re Tlonan and Department of Social Security (1997) 24 AAR 467.
18. I find that the condition should be considered permanent by 29 July 2009. It has been widely investigated and treated but to no avail.
Hypertension: Impairment Rating
19. The evidence is clear that the condition is uncontrolled. The appropriate descriptor is as follows:
TABLE 20
…
TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end‑organ damage
Potentially life‑threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants ‑ well controlled (well functioning) with only mild systemic symptoms.
20. On balance, I consider that it is appropriate to allocate 10 Impairment Points in respect of hypertension under Table 20.
Post Traumatic Stress Disorder: Is It Permanent?
21. In her claim form Ms Hermiz wrote that:
“…my shrt (sic) breath and the chocking (sic) at night that iexperience (sic) is caused by the vived (sic) and scary nightmare that I dream of every night as if I am reexperiencing my trauma every constantly that also causes me insomnia, fatigue and very painful headach…” (sic)
22. At the hearing she said that she is never able to be home alone. She likes walking but is unable to go unaccompanied. She used to like gardening but is now unable to do it. She sleeps poorly and does nothing during the day except watch television. Her son does the cooking and her sisters or a friend come to visit. She does not socialize because she loses her temper. She is unable to undertake former interests because she becomes frustrated and loses her temper.
23. In the treating doctor’s report Dr Werdi diagnosed the condition as anxiety with nervous break down. Having diagnosed the condition in January 2008, Dr Werdi was uncertain of the prognosis of the condition, but indicated that he expected it to persist for 3 to 24 months. Counseling and medical treatment were listed as future planned treatments, along with daily medication.
24. Ms Hermiz said she telephoned the Department of Immigration help line. She asked to be assessed for assistance by the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (S.T.A.R.T.T.S.). There was a significant waiting list but, in the meantime an emergency worker was sent to her home. The emergency worker attended every fortnight for about 2 months until a vacancy became available in the S.T.A.R.T.T.S. program.
25. Ms Hermiz said that Dr Werdi had referred her to Dr Sharah, consultant psychiatrist, who she saw two or three times from January 2009. It was difficult to get to see him and she had to wait a month or so to get an appointment. Subsequent appointments were similarly difficult to arrange. Dr Sharah provided a report dated 15 January 2009, where, alluding to her psychiatric condition, he observed that a change in anti-depressant medication was prescribed with an increase in dosage if the medication was effective. He took a history that Ms Hermiz had been suicidal “before Christmas [2008]”.
26. Mr Melhem, Counsellor at S.T.A.R.T.T.S, in his report of 30 March 2009, noted that Ms Hermiz had, by that time, had 10 weekly counseling sessions with him and also 10 sessions with an intern Clinical Master student for her Post Traumatic Stress Disorder (PTSD) and major depressive disorder. He considered Ms Hermiz suffers from several psychological symptoms: hyper arousal, insomnia, nightmares, and suicidal ideation, social isolation and withdrawal, anxiety, depressive symptoms, lack of appetite, hallucination, post traumatic stress disorder and survivor guilt. He also observed that Ms Hermiz suffers from a number of physical symptoms: migraine headache, high blood pressure, constant lumbar spine pain and C5/6, C6/7 disc degeneration, while her headache, dizziness, shortness of breath, fatigue and heart palpitations were psychosomatic.
27. Ms Hermiz commenced seeing Dr Sochan through S.T.A.R.T.T.S. on 16 April 2009, after referral by Dr Werdi. She sees him every 3 weeks. She said that recently Dr Sochan has taken her off all her psychiatric medication because he has concerns that it may be conflicting with her other medication.
28. Dr Sochan prepared a report dated 17 April 2009 that made the following observations. Ms Hermiz was referred for psychiatric assessment and treatment and was seen on 16 April 2009. He reported that she suffers visual hallucinatory experiences as well as episodes of rage which are amnesic. She described her amnesic experiences of her rage episodes as being a split personality. Dr Sochan considered these experiences to be dissociative and need to be reintegrated possibly first by understanding her motivation to 'split'.
29. Dr Sochan in his report of 4 December 2009 observed that Ms Hermiz has Chronic Post Traumatic Stress Disorder and had had 5 sessions of psychiatric treatment since 17 April 2009. He considered that she suffers from survivor guilt, visual hallucinatory experiences, loss of control over her feelings, amnesic episodes and nightmares. Ms Hermiz has panic attacks in which she experiences palpitations, dizziness and difficulty breathing.
30. In his report of 19 August 2010 Dr Sochan wrote that Ms Hermiz takes escitalopram for her psychiatric disorder, but is reporting sedation and a worsening of the condition. She was advised to reduce the dose of medication and if the issue persists, the medication will be altered.
31. From the history given to the various medical practitioners Ms Hermiz had experienced severe personal trauma from 2003 and 2004. Soon after her arrival in Australia in March 2007 she sought assistance for her condition. It is clear to me that, by 29 July 2009, she had already received emergency intensive counselling, had been treated by her GP and referred to a psychiatrist. She was further referred for specialist psychiatric care which commenced in April 2009 which still continues, at least every 3 weeks. Since she first sought assistance her medication has been adjusted after liaison between specialists, with a view to better management. By December 2009 Dr Sochan wrote that her prognosis was poor. Despite a high level of care, her condition has not improved; if anything it has deteriorated.
32. In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, the Tribunal discussed the concept of permanence under the Act and said at [21]-[22]:
…That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.
It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
33. I consider that by 29 July 2009, Ms Hermiz condition was permanent in that it had been investigated, treated and stabilised. Although further management is being undertaken, her condition has not improved.
Post traumatic stress disorder: Impairment Rating
34. The evidence is clear that the condition is poorly controlled. The appropriate descriptor for is as follows:
Table 6
…
TENModerate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
35. On balance, I consider that it is appropriate to allocate 10 impairment points in respect of post traumatic stress disorder.
Other Conditions
36. Ms Hermiz said that she also suffers from asthma, kidney trouble and shoulder spasms. There was very limited medical information about those conditions and there was insufficient medical evidence for me to form a view about whether those conditions were permanent. Those conditions have therefore not been rated.
Does Ms Hermiz have a continuing inability to work?
37. Section 94 of the Act provides the test against which I must determine if Ms Hermiz has a continuing inability to work.
94 Qualification for disability support pension
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
(5) In this section:
…
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
38. A job capacity assessment was conducted on 23 December 2009 by Ms London, a registered psychologist. She noted a number of barriers to Ms Hermiz’ employment including:
·rage and dissociation which are likely to have a significant impact on her compliance, interpersonal relations and family relations, safety and memory;
·low mood and motivation symptoms such that Ms Hermiz would be likely to exhibit slowed cognitive processes, poor coping skills, impaired memory and concentration and low energy levels;
·anxiety symptoms including the avoidance behaviour, hyperarousal, sleep disturbance, appetite disturbance and poor stress tolerance; easily upset angry or distressed;
·fluctuating moods symptoms which affect her coping skills; and
·endurance limitations as a result of high blood pressure and mood disorder.
39. The assessor determined that Ms Hermiz had a temporary incapacity (0-7 hours) for work for 12 months until 30 December 2010. Apart from the impact of the identified barriers, she considered Ms Hermiz’ current capacity to work to be 8-14 hours per week.
40. She regarded Ms Hermiz’ future capacity to work (without intervention) as 8-14 hours per week, but 15-22 hours per week with vocational rehabilitation, presumably to address Ms Hermiz’ limited English skills and her lack of experience in the Australian workforce.
41. Ms Hermiz’ own evidence was of her inability to undertake even basic household tasks and her inability to be left alone. She gave evidence of her uncontrollable and, it seemed, irrational rages. She sleeps poorly and has nightmares.
42. Mr Melhem wrote of Ms Hermiz’ symptoms, described in paragraph 26 above, as impacting on her day to day functioning. He considered, at the time of his report in March 2009, that Ms Hermiz would not be able to cope in the workplace.
43. Dr Sochan wrote in his report of 4 December 2009 that he considered Ms Hermiz to be disabled in terms of work, taking care of her children and herself. In particular he expressed concern that Ms Hermiz had enlisted her children to manage her medication and to ‘keep watch’ that she does not go into a dissociative fugue state in which she may wonder off, be vulnerable to injury or attack someone. He considered her prognosis to be poor.
44. I was referred by the solicitor for the Respondent to Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 where the Tribunal recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant's capacity to work or undertake retraining.
45. I observe that the job capacity assessor has noted serious debilitating barriers to Ms Hermiz returning to work, particularly in relation to her psychiatric condition. She, optimistically in my view, expected those barriers to last only 12 months. As it transpires, as that 12 months now draws to an end, Ms Hermiz continues to exhibit those barriers. The most recent psychiatric evidence, that of Dr Sochan in his report of 19 August 2010, confirms that her psychiatric condition has in fact worsened. Her GP, Dr Werdi, also in August 2010, wrote that her panic attacks, nightmares and poor sleep leave her tired and exhausted and that this would impact upon her ability to work. In these circumstances, I prefer the evidence of Ms Hermiz’ treating psychiatrist and her GP. I consider that Ms Hermiz has a continuing inability to work in accordance with section 94.
CONCLUSION
46. I find that Ms Hermiz met the requirements of section 94 of the Act at the date of claim or 13 weeks thereafter.
DECISION
47. The decision under review is set aside and in substitution therefor the Tribunal decides that Ms Hermiz had, at the date of application for DSP, an impairment rated at 20 points. Such impairment resulted in a continuing inability to undertake any work for at least 15 hours per week in the next two years. Ms Hermiz, therefore, is entitled to DSP as at the date of her application.
I certify that the preceding 47 paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ……......[sgd]................
AssociateDate of Hearing 29 October 2010
Date of Decision 18 November 2010
Applicant in person
Solicitor for the Respondent Radhika Prasad, DHS Legal Services Division
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