LENA SABA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 461
•20 July 2012
[2012] AATA 461
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5066
Re
LENA SABA
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 20 July 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms G Ettinger, Senior Member
Catchwords
Disability Support Pension – Applicant has conditions which have not yet been treated fully and stabilised – does not meet impairment threshold for DSP – decision under review affirmed.
Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
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REASONS FOR DECISION
Ms G Ettinger, Senior Member
20 July 2012
BACKGROUND
Ms Lena Saba is a 48 year old Lebanese woman who has two adult children. She was in receipt of Disability Support Pension (DSP) from January 2008 until September 2010, when her DSP was first suspended. It was then cancelled in December 2010. This was due to the fact that Ms Saba travelled to Lebanon, and because her stay exceeded the 13 weeks during which she would remain eligible for DSP while absent from Australia.
In 2008 Ms Saba had been held to be eligible for DSP as a result of her conditions of depression (20 impairment points), spinal disorder (10 impairment points), post traumatic stress disorder (held to be permanent, but rated at 0 points), and thyroid cancer (disorder held to be permanent, but rated at 0 points). Those conditions were held to have been diagnosed, treated and stabilised, and permanent.
On her return to Australia, Ms Saba reapplied for DSP, which was refused on the basis that during the relevant period, her cervical radiculopathy and back condition had been diagnosed, and treated, but was not considered permanent within the meaning of the Social Security Act 1991, (the Act).
Both the Authorised Review Officer, and then the Social Security Appeals Tribunal (the SSAT), held that Ms Saba did not satisfy the tests for disability support pension in section 94 of the Act. She has exercised her rights to appeal to this Tribunal from the decision of the SSAT dated 7 October 2011.
The period which applies in consideration of Ms Saba’s claim before this Tribunal is the date on which she re-applied for the DSP, being 4 July 2011, and within thirteen weeks of that date, being 3 October 2011.
I found that Ms Saba did not meet the threshold 20 impairment points pursuant to the ‘Tables for the assessment of work-related impairment for disability support pension’. I have affirmed the decision of the SSAT. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
As of 4 July 2011 or within 13 weeks of that date (3 October 2011):
a. Whether Ms Saba has a physical, intellectual or psychiatric impairment; and, if so
b. Whether Ms Saba’s impairment attracts an impairment rating of 20 points or more under the Impairment Tables under Schedule 1B of the Social Security Act 1991; and, if so
c. Whether Ms Saba has a continuing inability to work for 15 or more hours a week.
LEGISLATIVE ENVIRONMENT
The relevant legislation in this matter is the Social Security Act 1991, and the Social Security (Administration) Act 1999 (Administration Act).
The Administration Act provides that the start day for a qualified pension claimant is the date of claim (ss 41, 42, Sch 2 cl 3). This means that qualification and impairment ratings must be determined as at the date of claim. A relevant exception is where the person is not qualified on the date of claim but will ... become qualified and becomes qualified within 13 weeks of lodging a claim, in which case his/her start day is the day he or she become qualified (Sch 2 cl 4(1)).
Pursuant to sections 36 and 37 of the Administration Act, DSP can only be granted to a person if the decision-maker is satisfied that the person is qualified, and that the pension is payable to the person.
Section 94 of the Act details the qualification for DSP, and states, as far as relevant:
“94(1) A person is qualified for 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) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
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…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
. . .
BACKGROUND
At the commencement of the hearing Ms Saba asked that her name and address be suppressed because she said she felt that her conditions and her application to the Tribunal were private, and she did not want to share that information. Ms Forrester, advocate for the Respondent, opposed the application. After hearing both parties, I explained the situation regarding the availability of suppression orders to Ms Saba, and informed her that in the interests of transparency and justice, the great majority of matters in the Tribunal are heard publicly, and the decisions published on the internet. I told her that I was not satisfied that the reasons she provided gave rise to a decision that her matter should be heard in private, and the decision not published. I assured her that her address would not be published. I then gave her the opportunity of not proceeding with her application if she so wished. Ms Saba told me she wanted her matter heard, and wanted to proceed. I explained how we would be conducting the hearing, and heard her evidence. I also took into evidence documents tendered by both parties, heard the submissions of both parties, and took into account the tests in the legislation.
Ms Saba tendered:
·the report of an ultrasound of her left elbow dated 2 May 2012 (Exhibit A1);
·a report of an MRI of her lumbosacral spine (Exhibit A2);
·the report of a CT guided bilateral L5/S1 facet joint injection dated 6 June 2012 (Exhibit A3);
·the report of a physiotherapist Mr P Hekeik dated 18 June 2012 (Exhibit A4);
·a report of a whole body bone scan dated 24 October 2011 (Exhibit A5); and
·an unsigned, undated note from Ms Salma Borg, a meditation provider whom Ms Saba has consulted twice (Exhibit A6).
The Respondent tendered the T-documents, (Exhibit R1), a Job Capacity Assessment dated 22 May 2012 (Exhibit R2), and a Centrelink online record relating to the grant of the 2008 DSP (Exhibit R3).
CONSIDERATION OF SECTION 94 OF THE ACT
Section 94(1)(a) - Whether Ms Saba has a physical, intellectual or psychiatric impairment
Ms Saba suffers anxiety and depressive disorders as diagnosed by Dr Karima Attia-Soliman in her report of 5 July 2011. She has also suffered thyroid cancer which was treated surgically in 1999, and for which she takes ongoing medication. Ms Saba also suffers gastro-oesophageal reflux disorder (GORD) for which she takes medication. Ms Saba also reported back and shoulder pain for which she takes analgesics.
On that basis, I am satisfied that Ms Saba has a physical and psychiatric impairment pursuant to section 94(1)(a) of the Act.
Section 94(1)(b): Whether Ms Saba has rateable conditions
Anxiety and depressive disorders
Ms Saba told me that her depression and other psychiatric problems have their origin in her youth, when at 16 years, she was coerced by her family to marry an unsuitable man. She said that she attempted suicide on two occasions, and has been under the care of doctors, and taking medication for her psychiatric conditions since. She said that her condition affects her whole life, makes her scared and tired, she hates crowds, suffers panic attacks, and suffers sleep problems. She said that she saw two people fighting in a shopping centre, and although it had nothing to do with her, collapsed at the sight of it.
Ms Saba said that she has tried spiritual healing and yoga. She tendered an unsigned undated letter from ‘Salma Borg Meditations’ stating that she had attended for relaxation, pain management and holistic healing a few weeks previously (Exhibit A6). Whilst it is commendable that Ms Saba is making efforts to relax and deal with pain management issues, I am mindful that the letter of Ms Borg is of limited value in regard to the decision I have to make. Primarily, the reason for that is, that the period to which I am restricted in considering evidence to make my decision, is July to October 2011. The treatment from Ms Borg, which has been quite minimal to date in any case, and being in 2012, falls outside that period.
Ms Saba said that when she is in Lebanon with her family, and her sister, who is a medical practitioner, she is looked after and can rest, whereas in Australia she has few friends, and drinks alcohol to excess.
Dr Adel Soliman completed a report in July 2011. He indicated that Ms Saba’s psychiatric conditions were long standing, and ongoing, and that she required ongoing medication.
There were reports of Dr Karima Attia-Soliman, a psychiatrist, dated 2007 and 2008, in the T-documents. In the 2008 report, Dr Attia-Soliman records Ms Saba as suffering permanent and continuous disability. It is likely that Ms Saba was granted DSP on the basis of those opinions.
In a third report, dated 6 July 2011, Dr Karima Attia-Soliman diagnosed chronic recurrent depression and anxiety. She recorded Ms Saba as being pre-occupied with trauma, suffering nightmares, and frequent panic attacks. She opined that the condition of the Applicant would deteriorate, and mentioned the antidepressant and anxiolytic medication she was taking. Significantly however, and I emphasise the page of the T-documents, being T18/177, Dr Karima Attia-Soliman stated that she had not seen the Applicant for the past two years. Further, it is not clear what documents, if any, Dr Attia-Soliman relied upon to prepare her report. I therefore give this report little weight in coming to my decision.
The Job Capacity Assessment (JCA) dated 12 July 2011 conducted face to face by a registered psychologist, confirmed a diagnosis of recurrent depression and anxiety, and noted that Ms Saba was taking antidepressant and anxiolytic medication. The assessor concluded that the conditions were fully diagnosed, treated and stabilised, and assigned 10 impairment points pursuant to Table 6.
The JCA dated 22 May 2012 was conducted on the papers. The medical reports before the assessors led to the decision that Ms Saba’s chronic depression and severe anxiety had been present since a young age, and that she was being treated with antidepressant and anxiolytic medication. The assessors concluded that the conditions were fully diagnosed, treated and stabilised, and assigned 10 impairment points pursuant to Table 6.
I noted from Exhibit R3, a Centrelink record dated 22 January 2008, and tendered at the hearing, and which should have been included as part of the T-documents, that Ms Saba was given a 30 point impairment rating at that time. That rating was made up of 20 points for depression in Table 6, and 10 impairment points for spinal disorder and other conditions pursuant to Table 5.2. That record documented that Ms Saba was eligible for DSP.
Table 6 provides relevantly as follows:
TABLE 6. PSYCHIATRIC IMPAIRMENT
Rating Criteria
NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate 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).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
Ms Forrester argued that Ms Saba’s psychiatric condition should be rated at 10 impairment points pursuant to Table 6 because the condition was stabilised with medication. Ms Forrester emphasised that Ms Saba was not receiving counselling, or attending at a psychiatrist.
I am mindful that in order to qualify for 20 impairment points in Table 6, it is anticipated that Ms Saba would demonstrate:
Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
The medical reports and the JCA report Ms Saba’s depression and anxiety, and her reliance on antidepressant and anxiolytic medication. I have noted this and Ms Saba’s evidence that on the one hand that as a result of her conditions she is not motivated to work, and on the other that she enrolled for a $5,000 beautician’s course in order to open a salon. Additionally, there is the evidence of Dr Karima Attia-Soliman that Ms Saba has not consulted her for two years.
Having considered Table 6, I do not find that Ms Saba’s conditions meet the tests for 20 impairment points. I am satisfied from the evidence that she suffers moderate and regular symptoms and generally functioning with some difficulty; noticeable reduction in social contacts or recreational activities when in Australia, and that she may have received psychiatric treatment which has stabilised the condition. That is more akin to 10 impairment points as set out in Table 6.
I accordingly accept the submissions of the Respondent, and conclude that 10 impairment points in Table 6 is the correct rating for Ms Saba.
Thyroid cancer
Ms Saba told me that she had suffered thyroid cancer, and that the thyroid had been removed in surgery in 1999. She must now have blood tests periodically, and take medication for the rest of her life. Ms Saba said that she fears that the cancer may return, and is lethargic as a result of the condition.
The medical reports before me with regard to Ms Saba’s thyroid cancer were those of Drs Adel Soliman and Karima Attia-Soliman (who had not reviewed Ms Saba for two years). Dr Adel Soliman reported that Ms Saba experienced fatigue and mood swings as a result of the thyroid condition.
The assessor in the JCA report of July 2011 noted the medical reports and provided for a 0 rating utilising Table 20.
The assessors carrying out the JCA in May 2012 held from the medical evidence before them that the thyroid papillary carcinoma had been diagnosed in 1996, and removed in 1999. They noted that Ms Saba was permanently on medication, and that the condition was fully diagnosed, treated and stabilised. It was permanent. The assessors assigned a 0 rating pursuant to Table 20. As relevant, Table 20 follows:
TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN.
Rating Criteria
NILControlled 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 but without end organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosisHeart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
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There was no disagreement that Ms Saba’s thyroid had been removed in 1999, and that she is on medication. The condition has been diagnosed, treated and stabilised. It is permanent, and in remission. I am satisfied from the evidence to conclude that the functional impairment it causes, if any, warrants a nil rating pursuant to Table 20.
Gastro-oesophageal reflux disorder (GORD)
Ms Saba told me that she has suffered reflux and constipation as a result of stress, allergy, and taking too many tablets.
Dr Adel Soliman noted in July 2011, that Ms Saba would be on medication for life for her condition of GORD.
In the JCA of July 2011, the assessor did not mention the GORD separately.
In their report of May 2012, the JCA assessors considered Ms Saba’s GORD, and noted the medication she has been taking. They considered the condition to be fully diagnosed, treated and stabilised and assigned a nil rating pursuant to Table 11.1. As relevant Table 11.1 follows:
TABLE 11.1 GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT
Rating Criteria
NILPeptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.
TENNausea and vomiting: moderate symptoms despite optimal treatment
Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment
Past gastric surgery with moderate dyspepsia and dumping syndrome
Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
TWENTYConstant dysphagia requiring regular dilatation
Vomiting: severe, not controlled despite optimal medication, and causing significant weight loss
Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstructionEstablished chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.
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I am satisfied from the evidence that Ms Saba suffers GORD, and that she may experience some discomfort in managing the condition which is managed with medication. However, on the evidence, I am unable to assign a rating other than nil impairment points utilising Table 11.1.
Cervical radiculopathy, shoulder pain, pain in the hip, and back condition
Ms Saba told me that she was involved in two motor vehicle accidents, one she dated some 18 years ago when her son was five years old. She said that she felt pain, burning sensations, has had physiotherapy treatment at various times dating right back, and did not have surgery at the time of the motor vehicle accidents. Ms Saba said that she did not have physiotherapy in the relevant period between July and October 2011. She said that her children bought her a massage chair a couple of years ago.
Ms Saba said that she also feels pain in her hip and left leg, and one night, two weeks before this hearing, was unable to move. She said that the specialist whom she consulted told her she had a pinched nerve, and suggested an injection of cortisone, and future surgery.
Dr Adel Soliman provided a report of 29 July 2011 in which he mentioned that the cervical radiculopathy was being treated with NSAIDs, noting that Ms Saba has pain in the shoulder and cannot tolerate painkillers.
Dr Adel Soliman provided a medical certificate dated 26 August 2011 which certified Ms Saba unfit for work due to neck pain radiating to her shoulder, and diagnosed cervical spine discopathy. He noted the prognosis was uncertain. I am mindful Ms Saba has not recently been assessed by a relevant specialist in regard to her cervical radiculopathy, shoulder pain, pain in the hip, and back condition.
The assessors dealt with Ms Saba’s neck disorder and spinal disorder separately. They concluded from the medical report of Dr Adel Soliman of 29 July 2011 that the cervical radiculopathy and cervical spine discopathy were temporary with uncertain prognosis. They did not therefore find that the conditions were fully treated and stabilised.
As to the lumbar spine discopathy; the assessors concluded that with further specialist intervention and secondary rehabilitation it is anticipated that this condition will show improvement. As such it is not considered to be fully treated and stabilised.
I noted that Ms Saba tendered two further reports (Exhibits A4 and A5), in connection with her spine.
The report of a bone study dated 24 October 2011 was also before the Tribunal (Exhibit A5). That concluded that there was: Mild arthritic uptake right sternoclavicular, AC joints and right mid foot medially. No increased vascularity to suggest an inflammatory arthritis.
Physiotherapist, Mr P Hekeik, reported on 18 June 2012 that Ms Saba was attending physiotherapy for treatment to her lumbar spine (Exhibit A4). He also mentioned golfers elbow and degenerative disc disease in her cervical and lumbar spine. Mr Hekeik’s report is outside the period in which I am permitted to consider evidence regarding Ms Saba’s conditions for this DSP application. However, this report, even if I could take it into account would not change my opinion in regard to the assessment I have made on the basis of all the evidence.
I am satisfied that Ms Saba’s cervical radiculopathy, shoulder pain, pain in the hip, and back condition cause her some pain and discomfort, but find that pursuant to Table 5.2, which is reproduced below, I cannot rate the conditions because pursuant to Dr Adel Soliman, they have not been fully treated and stabilised.
TABLE 5.2 Thoraco—lumbar‑sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TEN Loss of one‑quarter of normal range of movement as well as back pain o referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
Or
Loss of three‑quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint.
Section 94(1)(b): Whether Ms Saba’s impairments attract impairment ratings of 20 points or more
Accordingly, taking into account all the evidence, I can only rate Ms Saba’s impairments at 10 impairment points for her depression and anxiety. I am mindful that Ms Saba was assessed at 30 impairment points in 2008 (Exhibit R3). However, the medical evidence leads me to conclude that for the relevant period 4 July 2011 to 3 October 2011, Ms Saba can only be rated at 10 impairment points.
I have, on the basis of the evidence before me, and as discussed above, not been able to rate Ms Saba other than nil on the other relevant Tables.
She therefore does not meet the threshold 20 points for consideration of section 94(1)(c).
Section 94(1)(c): Whether Ms Saba has a continuing inability to work for 15 hours or more per week
In summary, whilst Ms Saba suffers various conditions, I find that she does not have an impairment rating of 20 points or more, and hence that she does not satisfy the tests in section 94(1)(b) of the Act.
Accordingly Ms Saba is held to be able to work, and I do not have to consider whether she has a continuing inability to work for 15 hours or more a week. She is not qualified for disability support pension. However, there is no impediment to her reapplying if her conditions change at a later date.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 57 (fifty seven) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Date of hearing 19 June 2012 Applicant In person Solicitors for the Respondent Ms Sarah Forrester, DHS Legal Services Division
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