Janiat Adam and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 80
•10 February 2012
[2012] AATA 80
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1204
Re
Janiat Adam
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member JF Toohey
Date 10 February 2012 Date of written reasons 14 February 2012 Place Sydney For the reasons given orally at the conclusion of the hearing of this matter on 10 February 2012, the decision under review is affirmed.
........[sgd]................................................................
Senior Member JF Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – back and neck conditions – hypertension – anxiety and depression – back condition, and anxiety and depression, not fully treated – neck condition not fully diagnosed – hypertension fully treated and stabilised but rating insufficient points – decision under review affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security and Other Legislation Amendment Act 2011
CASES
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
REASONS FOR DECISION
Senior Member Toohey
14 February 2012
These written reasons reflect reasons given orally at the conclusion of the hearing on 10 February 2010.
BACKGROUND
Mrs Janiat Adam was born in Iraq. She came to Australia in 2006 after spending several years in Jordan with her children while waiting to join her husband in Australia. She suffers from a number of medical conditions.
On 28 April 2010, Mrs Adam applied for a disability support pension (DSP). Centrelink decided, and the Social Security Appeals Tribunal (SSAT) later agreed, that she did not qualify for the pension.
Put simply, to qualify for the DSP, Mrs Adam must have a physical, intellectual or psychiatric impairment; an impairment rating of 20 points or more according to the Impairment Tables in the Act; and a continuing inability to work: s 94 of the Social Security Act 1991 (the Act).
If Mrs Adam satisfied these criteria when she lodged her claim, or within 13 weeks, she will qualify for the DSP: see sch. 2, cl. 4(1) of the Social Security (Administration) Act 1999.
THE IMPAIRMENT TABLES
The Impairment Tables are used to assess the effects of a condition on a person’s ability to function. To be assigned a rating, a condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”: Introduction to Impairment Tables.
In assessing whether a condition has been treated, it is relevant to consider what treatment or rehabilitation has occurred, whether the treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. If a condition is unlikely to significantly improve, with or without reasonable treatment, within the next two years, or if there is a medical or other compelling reason for a person not to undertake further treatment, it may be reasonable to consider it stabilised: Introduction to Impairment Tables; and see Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938 and [21]-[22].
The Impairment Tables were amended on 1 January 2012. However, subject to one exception which does not apply here, the previous Impairment Tables continue to apply to claims made before that date: sub-item 5(3) of Schedule 3 to the Social Security and Other Legislation Amendment Act 2011.
THE ISSUES
It is not in dispute that Mrs Adam has an impairment within the meaning of the Act. I have to decide whether, between 28 April 2010 and 28 July 2010:
(i)she had an impairment rating of 20 or more points;
(ii)if so, whether she had a continuing inability to work.
For the reasons set out below, I find that Mrs Adam’s conditions did not attract the necessary 20 points on the Impairment Tables at the relevant time. It is therefore not necessary to consider whether she had a continuing inability to work.
THE EVIDENCE
Mrs Adam gave evidence before the Tribunal through an interpreter. Her daughters were present to support her.
The respondent has provided copies of documents (the “T-documents”) including Mrs Adam’s claim for DSP; medical reports from her general practitioner, Dr Dawood Haddad, and her treating psychiatrist, Dr Leo Tsang; reports of job capacity assessments conducted by Centrelink, and the decision of the SSAT.
Mrs Adam lodged a second application for a DSP in August 2011. Centrelink rejected the application. That matter is not presently before the Tribunal but documents concerning the second application have been taken into account insofar as they throw light on her first application.
I will deal with each of Mrs Adam’s medical conditions in turn.
Lower back pain
Mrs Adam has had lower back pain since living in Jordan. An x-ray and CT scan of her lumbar spine in April 2010, and an MRI in July 2010, showed disc bulges at L4/5 and L5/S1 levels with associated annular tears, possible irritation of the left L5 nerve root, and changes at L2/3 and L4/5 levels.
In a report dated 6 July 2010, Dr Haddad noted that Mrs Adam had sciatica which imposed “severe physical limitation including lifting, walking and standing”. It appears, from his clinical notes, that the condition was diagnosed in April 2008. He stated the condition was expected to deteriorate and persist for more than 24 months; current and past treatment comprised pain relieving medication. Dr Haddad also noted that any future treatment would depend on her progress “and may end with Sx [surgery]”.
Dr Haddad confirmed his diagnosis and treatment in a further report on 15 August 2011. He noted that Mrs Adam’s back condition imposed “severe limitation on all physical abilities of standing, sitting, bending, lifting”. He also confirmed that future treatment would depend on the progression of the illness and that Mrs Adam might need surgery.
In a report dated 9 December 2011, Dr Haddad wrote that surgery was not advisable “due to multi-level degenerative injuries”. He stated that, in his view, Mrs Adam’s back condition was appropriately rated at 10 points under the Impairment Tables.
In her report dated 18 May 2010, the job capacity assessor noted that Mrs Adam had started taking analgesics for pain relief, and approximately one month before the assessment was exercising at home.
In a second job capacity assessment, undertaken on 5 January 2012, a second job capacity assessor noted that Mrs Adam had been referred to a specialist, Dr Paul Teychenne, but that he had not provided a report. The assessor noted that “pain management, secondary rehabilitation and a work activity/conditioning programme” might help increase Mrs Adam’s function. An occupational therapist who was involved in the assessment agreed.
Dr Haddad's reports make clear that, at the relevant time, Mrs Adam’s back condition was not fully treated and stabilised. The fact that, by December 2011, he believed that surgery was not advisable might assist Mrs Adam in a later claim but does not assist her with the claim relevant to this review.
As Mrs Adam’s back condition was not treated and stabilised at the relevant time, it cannot be assigned a rating on the Impairment Tables.
Neck pain
Mrs Adam gave evidence that she suffers from pain that goes from her neck down into her elbows and wrists. The pain has become worse in time to the point where she now has difficulty lifting things. She has taken medication for her neck and upper limb pain since she was in Jordan. Around the time she arrived in Australia, Dr Haddad changed her medication but she says the pain is getting worse and she needs to see him about it again.
In his report on 6 May 2010, Dr Haddad makes no reference to Mrs Adam’s neck pain. However, his clinical notes for 9 August 2010 show “Cervical radiculopathy (August 2010) - Disc protrusion at C5/6 with neck and limb pains”. The reference to August 2010 appears to be a reference to the date of diagnosis.
On 17 August 2011, Dr Haddad wrote that Mrs Adam’s cervical radiculopathy had a severe impact on her ability to function and significant improvement was not expected. He made a similar comment about her left carpal tunnel syndrome, noting that it “may need surgery”. He gave her neck condition a rating of 10 points under Tables 3 and 5 of the Impairment Tables.
On 6 May 2010, the job capacity assessor noted that Mrs Adam reported “neck pain with recent onset”. This appears to be at odds with Mrs Adam’s oral evidence that she has suffered neck pain since before she came to Australia. In any event, Dr Haddad’s report of 6 May 2010, together with his clinical notes, suggests that Mrs Adam’s neck condition was not diagnosed until after the relevant period. Even allowing that it was diagnosed, I am not satisfied that it was treated and stabilised at that time. That is because it appears to be worsening generally and, in August 2011, Dr Haddad believed her carpal tunnel syndrome might still need surgery.
As Mrs Adam’s neck condition was not treated and stabilised at the relevant time, it cannot be assigned a rating on the Impairment Tables.
Hypertension
Mrs Adam gave evidence that for three years she has suffered from hypertension, for which she takes medication. Dr Haddad noted in his first report that she had experienced the condition since 2006 and that it caused her headaches. He reported that she was taking medication and that no further treatment was planned.
The job capacity assessor noted on 18 May 2010 that Mrs Adam had started taking medication two months before the assessment and that the dosage had been altered one month before the assessment. In light of Mrs Adam’s evidence at the hearing that she has been taking medication for three years, this may not be accurate and I take into account that the assessment was done early in the relevant period.
In January 2012, the job capacity assessor accepted that Mrs Adams hypertension had been treated and was stabilised but rated the condition NIL points on the basis that it was well controlled and had a minimal effect on her ability to function.
The respondent accepts, and I am satisfied, that Mrs Adam’s hypertension was fully diagnosed, and treated and stabilised, at the relevant time.
Dr Haddad did not state in his first report what effect Mrs Adam’s hypertension had on her ability to function but in his second report, dated 15 August 2011, he noted that it had a “mild” impact on her ability to function.
In evidence before the Tribunal, Mrs Adam said her hypertension causes her headaches, which are sometimes severe, and she disagrees with Dr Haddad’s assessment that her symptoms are “mild”. She says she is unable to do anything for herself and her daughters have to help her with all her activities. She acknowledged however, that this was due to the combined effects of all her conditions, and difficulties with her husband from whom she is now separated.
The Impairment Table for the assessment of hypertension is Table 20 (Miscellaneous conditions) which relevantly states:
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work
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 without and organ damage
Potentially life-threatening condition which is currently not interfering with daily activities e.g. malignancy in remission with a poor prognosis
FIFTEEN Moderate to severe symptoms…
It is not entirely clear how Table 20 should be read. The evidence is that Mrs Adam’s hypertension is controlled by medication. Accepting her evidence, which I do, that she gets headaches of some severity, then a rating of TEN points for “mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity” may be more appropriate. However, this is at odds with the description under that rating of “hypertension that is difficult to control”.
Read as a whole, it may be that the only relevant criterion in relation to hypertension is whether or not it is controlled. If that is wrong, and the severity of the symptoms is sufficient criterion, I would rate Mrs Adam’s hypertension at no more than TEN points.
Anxiety and depression
In her claim for the DSP on 6 May 2010, Mrs Adam referred to “palpitation due to stress”. There is no other reference to anxiety and depression in her application, in Dr Haddad’s first report or in the first job capacity assessment.
Mrs Adam gave evidence that Dr Haddad told her in 2010 that she did not seem herself, and he referred to a psychiatrist, Dr Leo Tsang. She could not get an appointment to see Dr Tsang until early 2011. She saw him once a month for the first three months, then every two months for a period, and now sees him approximately every three months.
In a report to Dr Haddad in February 2011, Dr Tsang diagnosed Mrs Adam as suffering from “Adjustment Order” with “Depressed Mood” and said he had started her on antidepressant medication. Mrs Adam gave evidence that Dr Tsang has recently increased the dosage of her medication.
In his reports in August 2011 and December 2011, Dr Haddad stated that Mrs Adam was suffering from depression.
In his report to Dr Haddad, Dr Tsang described many of her difficult experiences during the Iraq-Iran war, while waiting in Jordan to be resettled in Australia, and with her husband since she arrived in Australia. His report suggests that Mrs Adam may have suffered anxiety and depression for some years. However, it does not appear, from the evidence before the Tribunal, that her condition was diagnosed until February 2011, after the relevant period. At that time, Dr Tsang reported that he had started Mrs Adam on antidepressant medication and had arranged to see her for further review, meaning her condition had not been treated and stabilised during the relevant period.
As Mrs Adam’s anxiety and depression were not treated and stabilised at the relevant time, her condition cannot be assigned a rating on the Impairment Tables.
CONCLUSION
Mrs Adam’s back and neck conditions, and anxiety and depression, were not treated and stabilised in the period between 28 April 2010 and 28 July 2010 and cannot be assigned a rating on the Impairment Tables.
Mrs Adam’s hypertension was treated and stabilised at the relevant time but rates at most TEN points on the Impairment Tables.
As Mrs Adam’s impairment did not attract the necessary 20 points on the Impairment Tables, she did not qualify for the DSP at the relevant time. Given this conclusion, it is not necessary to consider whether she had a continuing inability to work.
As nearly two years have passed since Mrs Adam’s first application, it may be that medical evidence would show that some of her other conditions are now treated and stabilised, and it may be appropriate that she make a further claim for a DSP.
I affirm the decision under review.
I certify that the preceding 46 (forty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member JF Toohey.
.........[sgd]...............................................................
Associate
Dated 14 February 2012
Date(s) of hearing 10 February 2012 Applicant In person Counsel for the Respondent James Larcombe
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