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

Kora and Secretary, Department of Social Services (Social services second review) [2019] AATA 2801 (22 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6578
Re:Wedad Kora
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:22 August 2019
Place:Sydney

The decision under review, being the decision made by the Respondent to reject Wedad Kora’s application for Disability Support Pension, is affirmed.
............................[sgd]........................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – eligibility for disability support pension – physical & psychological impairments – applicant unable to satisfy qualification criteria under s 94 of Social Security Act 1991 – impairments not fully diagnosed, treated or stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
22 August 2019

Ms Kora (“the Applicant”) seeks a review of a decision of the Social Services and Child Support Division (“SSCSD”) of the Administrative Appeals Tribunal (“AAT1”), which affirmed a decision of an Authorised Review Officer (“ARO”) of the Department of Human Services (“the Department”, also known as “Centrelink”) to reject Ms Kora’s claim for Disability Support Pension (“DSP”), which was lodged on 19 December 2017.
BACKGROUND TO THE PROCEEDINGS
Ms Kora was born in 1967. She migrated from Syria to Australia in 2015 on a Subclass 202 (Special Global Humanitarian) visa and she currently lives with her husband and two school aged sons.
In 2018 she was involved in an accident in which she was injured by her own vehicle. Ms Kora suffered numerous injuries as a result of the accident including fractures to her ribs, pelvis and spine. She attributes the accident to an overall worsening of her existing conditions.
The hearing
Ms Kora attended the hearing in person with a friend who kindly provided support to her and assistance with identifying documents. An interpreter translated for Ms Kora and the Tribunal is grateful for the interpreter’s service during the hearing.
Ms Kora became upset at times during the hearing, particularly at the start of the hearing. Ms Kora had mixed recall of detail during the hearing and whilst upset at times, she was generally able to answer questions and determined in arguing her case.
Ms Kora brought all the section 37 ‘T-documents’ with her but did not refer to them during the hearing.
The Respondent was helpfully represented by Mr Simon Agnello who assisted both the Tribunal and Applicant during the proceedings.
LEGISLATIVE FRAMEWORK
Qualification for disability support pension
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. In order to qualify for the DSP Ms Kora must first have one or more physical, intellectual or psychiatric impairments. Second, these impairments must be rated at least 20 points or more under the Impairment Tables contained in the Social Security(Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Impairment Tables”). Third, she must have a ‘continuing inability to work’.
In the interests of completeness I will detail the relevant sections of the Social Security Act 1991 (Cth) (“the Act”) below, but in these terms the eligibility criteria can be daunting and complicated. Noting that the complexity of the eligibility criteria means that any summary risks a degree of oversimplification, in essence to be eligible for DSP, at the time of qualification (being the date of application or within 13 weeks after) an applicant must:
(i)Have had conditions which are “permanent”. Permanent in this context means the conditions were fully diagnosed by an appropriate medical practitioner, fully treated, fully stabilised and likely to persist for more than two years.
(ii)For a condition to be “fully stabilised”, generally the person must have undertaken reasonable treatment for the condition and significant improvement to a level enabling the person to undertake work in the next 2 years is not expected.
(iii)If a condition meets these requirements, (meaning it is deemed permanent as it has been diagnosed, treated and stabilised), the medical conditions can be assigned a rating against the Impairment Tables which are designed to determine the level of functional impact of an impairment.
(iv)If an applicant is assigned an impairment rating of 20 points or more against the relevant Impairment Tables, they may qualify for the DSP.
(v)If the impairment rating includes at least 20 points under a single Impairment Table, the applicant has a “severe” impairment.
(vi)If the impairment rating is of 20 points or more but from more than one Impairment Table, the applicant may also be required to have completed a program of support (“POS”) or have actively participated in such a program for at least 18 months in order to qualify for the DSP.
Legislation
The qualifying requirements for the DSP are set out in section 94(1) of the Social Security Act 1991 (Cth) (“the Act”). It must be established that:
(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) one of the following applies:
(i) the person has a continuing inability to work;…
In relation to section 94(2) of the Act, a person has a ‘continuing inability to work’ if the impairment prevents the person from:
(a) …doing any work independently of a program of support within the next 2 years; and
(b) in all cases—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.
Under section 94(3B) of the Act, participation in a program of support (“POS”) is not required if the person has a severe impairment of 20 points or more under a single impairment table. The examples provided in this section encompass three scenarios:
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Where a person’s impairment is not a severe impairment, however, they must have actively participated in a POS. Active participation in a POS generally means participation for 18 months in the 36 months immediately before the applicant made the claim for DSP.
Impairment Tables
The Impairment Tables referred to in section 94 of the Act assign ratings reflecting the level of functional impact a condition has on an applicant. Only medical conditions that are permanent can be allocated points under the Impairment Tables.
A condition is “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years. An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.
The phrases “fully diagnosed” and “fully treated” are defined in subparagraph 6(5) of the Impairment Tables as follows:
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
The phrase “fully stabilised” is defined in subparagraph 6(6) of the Impairment Tables as follows:
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Relevantly, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborative evidence.
A diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned.
ISSUES FOR THE TRIBUNAL
The key issues for determination for the Tribunal are:
(a)What is the qualification period for Ms Kora’s claim for DSP?
(b)Did Ms Kora have a physical, intellectual or psychiatric impairment(s) as defined under the Act during the relevant period?
(c)If yes, were her impairment(s) capable of being assigned 20 or more points under the Impairment Tables during the relevant period?
(d)If Ms Kora’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (in which case she has a ‘severe’ impairment)?
(e)If Ms Kora did not have a severe impairment during the relevant period, but her impairment(s) attract a rating of 20 points or more, does she have a continuing inability to work or has she participated in a POS?
The qualification period
Ms Kora lodged her claim for DSP on 19 December 2017 and that triggers the assessment process to determine the eligibility of the Applicant. Ms Kora must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. to 20 March 2018). I will refer to this as the “qualification period”.
The concept of a qualification period was a cause of some confusion when explained at the hearing. The practical implications for this matter are that the Tribunal can only consider Ms Kora’s conditions and qualification for DSP during the dates stated above. If a medication condition has progressed since the time of the original application, which I note was lodged over 18 months ago, it is open to Ms Kora to submit a new application to reflect the changed circumstances.
Following this, the Tribunal notes that Medical reports that come into being after the relevant period are only pertinent to the extent that they refer to the claimant’s condition during the relevant period.
Ms Kora’s Medical Conditions
Ms Kora’s December 2017 DSP application lists her disabilities, illnesses and injuries as:
(i)lumbar disc prolapse
(ii)depression
(iii)Systemic lupus erythematosus
(iv)Fibromyalgia
(v)Cervical spondylosis
(vi)Urinary incontinence
(vii)Rt sided carpal tunnel syndrome
(viii)Torn muscles left calf
The Respondent accepts, and based on the evidence the Tribunal agrees, that Ms Kora had impairments during the qualification period and meets the requirements of section 94(1)(a) of the Act.
Lupus, fibromyalgia & arthritis
In a report from 26 November 2015 by consultant rheumatologist Dr Rozario the Applicant was advised to see her “…psychiatrist to review her medication in the light of her musculotsketal problems being due to fibromyalgia and consider pain modulating drugs like Endep along with Cymbalta”[1]. That same rheumatologist provided a report dated 28 September 2016 which states that Ms Kora suffers from fibromyalgia. Based on this and other evidence before the Tribunal it would appear that many of Ms Kora’s symptoms are related to her fibromyalgia and lupus.
[1] T-documents, p. 141
In February 2017 a Job Capacity Assessment Report (“JCA report”) notes that Ms Kora was referred to the pain management clinic at Fairfield Hospital. Ms Kora subsequently appears to have attended a pain management clinic at Liverpool Hospital from July 2017 through to September 2018.
Ms Kora’s referral to the pain clinic for her fibromyalgia indicates that her condition was fully diagnosed but not fully treated during the relevant period. I also note that Dr Singh recommended on 21 February 2018 that Ms Kora change her medication in order to assist with these conditions.
The Secretary contends, and the Tribunal agrees, that in light of this Ms Kora’s arthritis, lupus and fibromyalgia were fully diagnosed but not fully treated and stabilised during the qualification period. Consequently I am unable to apply an impairment rating under the Impairment Tables.
Spinal conditions (lumbar disc prolapse & cervical spondylosis)
In July 2017 Ms Kora had an MRI taken of her lumbar spine[2] and another MRI was performed a few days after of her cervical and thoracic spine[3]. A medical certificate by General Practitioner Dr Jirjis confirmed lumbar disc prolapse. A report by Dr Antoine Sanki[4] states that there was no improvement in Ms Kora’s condition despite seeing orthopaedic surgeon Dr Giblin.
[2] T-documents, p. 185
[3] T-documents, p. 186
[4] T-documents, p. 199
Dr Giblin’s report of 15 November 2017 is of particular note as he writes in relation to Ms Kora:
There does not seem to be any specific symptoms associated with radiculopathy and whilst ever she has some changes on the M.R.I’s of her lumbar, cervical and thoracic spine, I don’t feel that they are the cause of the majority of her symptoms. She has been diagnosed with lupus and fibromyalgia and I think that most of her symptoms relate to that.
The probability that Ms Kora’s symptoms were more likely associated with her lupus and fibromyalgia appears to have been accepted by Dr Sanki in his report to the Tribunal dated 3 March 2019. As mentioned above these conditions were fully diagnosed, but not fully treated and stabilised during the qualification period.
No further documents were provided to the Tribunal which detailed what functional impact Ms Kora’s spinal conditions might have. In the absence of any further evidence I am unable to assign an impairment rating to Ms Kora’s spinal conditions.
Psychiatric conditions
Ms Kora was diagnosed in 2016 with major depressive disorder and Post Traumatic Stress Disorder at Sydney Southwest Hospital.[5]
[5] A12
A medical certificate from Dr Karam Jirjis from 1 November 2017 notes that Ms Kora is suffering ‘major depression’ and is being treated with ‘antidepressants, councelling [sic], under psychiatrist care’.
During the hearing Ms Kora at times became upset and particularly in relation to her mental illness and the impact she says it has on her family. She said that her condition is permanent and ‘getting worse’. The Tribunal accepts this.
A letter from Consultant Psychiatrist Dr Singh dated 21 February 2018 states[6]:
Mrs Kora continues to remain plagued with her long-standing depressive and anxiety symptoms which seem to be on the background also of PTSD that she has developed being exposed to some significant emotionally and psychologically overwhelming incidents back in her home country Syria. She was exposed to frequent killings and kidnappings from the street as part of the civil war going on there and this may have also have included many of her close relatives who succumbed to those incidents. For the last many years Mrs Kora has developed some significant nightmares and flashbacks which often get triggered by various conditions like being in crowded situations or by sudden noises along with, as she has reported to me, hearing the television news referring to the ongoing civil war there.
[6] T-documents, p. 244
Dr Singh later notes that he “understands that Mrs Kora has no capacity to be able to perform any paid employment for the foreseeable future”. He then writes:
Since she has not responded to Endep so far as well as with the current limiting side effects of excessive sedation and giddiness that she gets, I have asked her to start cutting down on the dose of the Endep by 25 mg every five days and stop it. Once Endep has been stopped she could be started on capsule Duloxetine 30 mg mane to be increased to 60 mg in another five days. The dose could be further built up to 90-120 mg over the course of the next two months if needed.
As Ms Kora’s psychiatrist recommended further treatment during the qualification period this condition cannot be considered fully treated and stabilised during that period and no impairment rating can be assigned.
Urinary incontinence
Ms Kora’s DSP application lists “urinary incontinence” as a condition. In August 2015 Ms Kora was recommended “bladder training” by Dr David Knight who is a gynaecologist.[7] Dr Knight also recommended she consider bladder physiotherapy.
[7] T-documents, p. 125
The February 2017 JCA report[8] notes that “this condition is considered fully diagnosed but not fully treated and stabilised as the client would benefit from seeing a urologist for second opinion and treatment options i.e. surgical intervention to minimise urgency”. The T-documents contain a booking confirmation for a Urodymancis test[9] scheduled for 10 April 2018.
[8] T-documents, p. 174
[9] T-documents, p. 247
As the Secretary notes in the Statement of Facts, Issues and Contentions at [80] “urodynamics is an investigation that measures the pressure changes that occur in the bladder”. Given the test was scheduled after the qualification period, I find that the condition was not fully treated and stabilised during the qualification period and cannot be assigned an impairment rating.
Carpal tunnel syndrome
The T-documents include a report from Dr Bassel Hassan who is a neurologist. The report dated January 2018 notes “mild to moderate right median nerve dysfunction at the wrist”.
Dr Sanki reports on 3 March 2019 that “…Ms Kora’s condition deteriorated because of her development of bilateral carpal tunnel, which has reduced her ability to lift weights, do repetitive movements with her hands. She remains incapable of taking care of her family, as required at home; such as cleaning, cooking and laundry”.
Evidence before the Tribunal indicates that surgical options are available to improve Ms Kora’s carpal tunnel syndrome and it is indicated in his report that Dr Hassan wrote a referral to a surgeon in this regard. Subsequently Ms Kora has seen Dr Sanki who writes in March 2019 that he does “…not intend to perform any surgery for her [Ms Kora’s] carpal tunnel as the results of such surgery with SLE [Systemic Lupus Erythematosus] is not very impressive. Hence, she will continue with conservative treatments”.
The recommendation of further treatment by her doctors indicate that Ms Kora’s carpal tunnel syndrome is not fully treated and stabilised and therefore cannot be assigned a rating under the Impairment Tables.
Conclusion
The legislation is such that failure to satisfy the requirements as outlined earlier is essential in order for an application for DSP to be successful. It is the Tribunal’s role to take into account the particular circumstances and facts of each case, making sure that the rules are applied equally to each case.

Whilst I find that Ms Kora had a physical, intellectual or psychiatric impairment(s) as defined under the Act during the qualification period, I cannot find that her conditions were ‘fully treated and stabilised’. This being the case, they are ineligible to be assigned an impairment rating and without the requisite points, Ms Kora’s application for DSP cannot succeed.
As Ms Kora does not meet the threshold requirement of 20 points, it is not necessary for the Tribunal to proceed to the next step of considering the Applicant’s continuing ability to work.
DECISION
For the reasons above, I am satisfied that the Applicant does not qualify for DSP under section 94(1) of the Act.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..........................[sgd]..........................................
Associate
Dated: 22 August 2019

Date(s) of hearing: 24 July 2019

Applicant: In person

Solicitors for the Respondent: Mr S Agnello, Department of Human Services

[2019] AATA 2801

22 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date(s) of hearing:	24 July 2019
Applicant:	In person
Solicitors for the Respondent:	Mr S Agnello, Department of Human Services