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

[2017] AATA 2280

Karaali and Secretary, Department of Social Services (Social services second review) [2017] AATA 2280 (20 November 2017)

Division:GENERAL DIVISION

File Number:2016/6028           

Re:Zubeida Karaali  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:20 November 2017

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – Impairment Tables – whether the applicant’s condition  is fully diagnosed, treated and stabilised – whether the applicant had an impairment rating of 20 points or more under the Impairment Tables – mental health function – spinal condition – epilepsy, migraines and blackouts – other conditions – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), ss 80, 118

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

20 November 2017

INTRODUCTION

1. The applicant, Miss Zubeida Karaali, was in receipt of the disability support pension.

2. On 5 June 2015, the Department of Human Services (Centrelink) decided to cancel Miss Karaali’s disability support pension on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 5 September 2015.

3. Miss Karaali applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review. On 18 December 2015, the SSCSD affirmed Centrelink’s decision to cancel Miss Karaali’s disability support pension.

4. On 20 January 2016, Miss Karaali applied to the General Division of the Tribunal for a review of the SSCSD decision. The Tribunal dismissed Miss Karaali’s application pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) on 28 September 2016 because she failed to appear at a conference. Miss Karaali then filed a further application to the Tribunal on 8 November 2016, seeking an extension of time to apply for review, which was subsequently granted.

5. The matter was heard in Sydney on 10 November 2017. Miss Karaali attended the hearing and gave oral evidence by telephone. The Secretary, Department of Social Services (the Secretary) was represented by Ms Kirby Dunlop, who appeared in person and made submissions.

   RELEVANT LEGISLATION AND ISSUES

6. The power for the Secretary to cancel Miss Karaali’s disability support pension is contained in subsection 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Pursuant to subsection 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case on 5 June 2015 (the date of cancellation).

7. In assessing whether Miss Karaali qualified for the disability support pension in 2015, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination), pursuant to subsections 27(3) and (4) of the Act.

8. Subsection 94(1) of the Act provides that a person qualifies for the disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)the person has a continuing inability to work as defined by the Act.

9. Miss Karaali had to satisfy these criteria at the date of cancellation.

10. The Secretary concedes, and the Tribunal agrees, that Miss Karaali suffers medical conditions that cause impairment and therefore, satisfied paragraph 94(1)(a) of the Act at the date of cancellation.

11. It follows that the determinative issues in this matter are whether, at the date of cancellation, Miss Karaali had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    Does Miss Karaali have medical conditions that can be rated at 20 points or more under the Impairment Tables?

12. The Impairment Tables Determination requires that an impairment rating can only be assigned if the condition causing impairment is ‘permanent’. As set out in subsection 6(4) of the Impairment Tables Determination, a medical condition is permanent if it:

    ·has been fully diagnosed; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

13. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified medical practitioner; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

14. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment. An impairment can be rated between nil and 30 points, depending on how it affects a person’s ability to function.

15. The introduction to each Impairment Table states that a person’s self-report of symptoms alone ‘is insufficient’ and there ‘must be corroborating evidence of the person’s impairment’.

16. Relevant to this matter, the introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the 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).

17. The evidence before the Tribunal shows that Miss Karaali has the following medical conditions:

    ·mental health condition – depression and anxiety;

    ·spinal condition – upper back and neck;

    ·epilepsy / migraines / blackouts; and

    ·other conditions including asthma, gastro-oesophageal reflux disorder (GORD) and urinary incontinence.

18. I now consider each of Miss Karaali’s medical conditions and the relevant rating in accordance with the Impairment Tables.

    Mental health condition

19. In Miss Karaali’s medical review for disability support pension completed on 23 April 2015, Dr Wael Ghannoum (general practitioner) reported Miss Karaali has been diagnosed with depression and anxiety disorder. Dr Ghannoum described Miss Karaali’s symptoms as ‘depressed mood, poor concentration, poor memory, anxious, irritability, insomnia/sleep disturbance, panic attacks’, which affect her ability to function.[1]

    [1] Exhibit T, T12.

20. A report by Ms Annie Clark (psychologist) dated 12 June 2015 confirmed a predominant diagnosis of generalised anxiety disorder with the following symptoms:

    ·Excessive anxiety and worry, that she finds it difficult to control

    ·Being easily fatigued

    ·Difficulty concentrating and mind going blank

    ·Irritability, especially with her children

    ·Muscle tension

    ·Sleep disturbance (difficulty falling asleep and restless sleep)

    ·The anxiety, worry and physical symptoms cause clinically significant distress and impairment in social, occupational and other areas of functioning.[2]

    [2] Exhibit T, T17.

21. Dr Mukesh Kumar (consultant psychiatrist) provided a report dated 12 August 2015 which described her family history, including her three children.[3] Dr Kumar noted Miss Karaali ‘does appear to have depression, though since she is taking care of her children, she appears to be functioning well’. He further observed that Miss Karaali:

    …presents as a young woman of average build. She is dressed neatly and her overall grooming and hygiene was fair. She is easy to engage in conversation and is able to articulate her thoughts rationally and logically. She reports her mod [sic] as low and her affect is congruent to her mood, though it is reactive. Though she reports a history of psychotic symptoms, these are not elicited in the assessment her insight and judgement are fair.

    [3] Exhibit T, T19.

22. A report by Mr Medhat Metry (psychologist) on 2 September 2015 described Miss Karaali as suffering from generalised anxiety disorder and depression.[4] Mr Metry noted Miss Karaali was alert and oriented in time, place and current information and gave no indication of thought disorder. He also observed Miss Karaali appeared irritable, worried and depressed, and appeared had difficulties with concentration.

    [4] Exhibit T, T20.

23. The medical evidence shows that Miss Karaali was receiving counselling support and taking medication for her mental health condition.

24. Miss Karaali answered questions at the Tribunal hearing in a coherent manner for about one hour. While she currently receives support from a carer, she told the Tribunal she was able to care for her three children at the date her disability support pension was cancelled; her children were then aged 15 years old, three years old and two years old. Miss Karaali confirmed she was able to feed, bathe (sometimes) and play or watch television with her children; however, she also noted that she received support from her parents, siblings and extended family.

25. At the Tribunal hearing, the Secretary’s legal representative asked Miss Karaali about a Centrelink form that indicated Miss Karaali was receiving carer allowance for her eldest child in 2012. Miss Karaali acknowledged her eldest child had conditions of severe asthma, behavioural difficulties and urinary incontinence. Miss Karaali further confirmed she provided two hours a day administering her child’s medications, which required her child to stay on a machine for her asthma, during this period and this continued into 2015.

26. Based on the evidence before the Tribunal, I am satisfied that Miss Karaali’s mental health condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. Having regard to the information at Table 5 – Mental Health Function, I am satisfied that Miss Karaali’s mental health condition had a moderate functional impact on activities involving her mental health function and I assign an impairment rating of 10 points. In making this assessment, I have regard to subsection 11(4) of the Impairment Tables Determination, which states that episodic and fluctuating conditions should reflect ‘the overall functional impact of those impairments’.

    Spinal condition

27. Dr Ghannoum reported on 23 April 2015 that Miss Karaali was diagnosed with neck pain / cervical spine discopathy C4/5 disc bulges from 2010. He noted she had neck pain, tenderness and stiffness, which radiated to her right shoulder.[5]

    [5] Exhibit T, T12.

28. Mr Tamer Kahil (consultant orthopaedic surgeon) provided reports dated 8 July 2014 and 19 August 2014. On 19 August 2014, Mr Kahil stated:

    [Miss Karaali] had her total body Bone Scan that showed uptake over the C4/5 junction consistent with the discogenic changes noted on CT scan. Otherwise there is only very subtle uptake in the facet joints of the cervical spine. There is also mild to moderate focal uptake in the right L4/5 facet joint.

    The cervical spinal MRI showed focal moderate posterior disc and osteophyte complex at C4/5 with mild to moderate central canal stenosis. There is no evidence of neural impingement at any level.[6]

    [6] Exhibit T, T9.

29. Mr Kahil recommended Miss Karaali undertake physiotherapy and analgesics.

30. On 29 January 2015, Dr Renata Abraszko (neurosurgeon) recommended Miss Karaali undertake a facet joint injection at the C4/5 level.[7]

    [7] Exhibit T, T10.

31. Miss Karaali told the Tribunal she had to facet joint injections, either this year or late last year. She did not have these injections earlier because she ‘was scared’.

32. Based on the evidence, I am satisfied this condition was fully diagnosed, but not fully treated and fully stabilised at date of cancellation. For this reason, I am unable to assign any points for this condition in accordance with the Impairment Tables Determination.

    Epilepsy

33. The report by Dr Ghannoum on 23 April 2015 notes that Miss Karaali suffers from migraine headaches, fits and blackouts.[8] Further medical certificates by Dr Ghannoum on 20 May 2016 and 16 November 2016 stated she has dizziness, history of fits / epilepsy, episodes of blackouts / fainting.[9]

    [8] Exhibit T, T12.

    [9] Exhibits A1 and A2.

34. Dr Hany Abdalla (general practitioner) reported on 22 June 2015 that Miss Karaali faints, has blackouts and epilepsy.[10]

    [10] Exhibit T, T18.

35. Miss Karaali told the Tribunal she has seen a neurologist; however, there are no specialist reports or evidence to support this. As there is minimal medical evidence before the Tribunal, I am not satisfied that this condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. For this reason, I am unable to assign any points for this condition in accordance with the Impairment Tables Determination.

    Other conditions

36. Reports by Dr Ghannoum and Dr Abdalla listed Miss Karaali as having urinary incontinence, asthma and GORD. However, the reports provide no detail about diagnosis, treatment or functional impairment. Due to the minimal evidence before the Tribunal, I am unable to assign any points for these conditions in accordance with the Impairment Tables Determination.

    CONCLUSION

37. For the reasons set out above, I am satisfied that Miss Karaali did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period as her impairments were not rated at 20 points or more under the Impairment Tables.

38. As I find that Miss Karaali did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether she had a continuing inability to work.

39. If Miss Karaali’s circumstances change, she is entitled to submit a new application for the disability support pension.

    DECISION

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 20 November 2017

Date of hearing:	10 November 2017
Applicant:	By telephone
Solicitors for the Respondent:	Ms K Dunlop, Department of Human Services