Ms Sanaa Hussein and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 287

[2013] AATA  287

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4729
Re	Ms Sanaa Hussein
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member Dr I Alexander, Member
Date	10 May 2013
Place	Sydney

The Tribunal affirms the decision under review.

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Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr I Alexander, Member

1. Ms Hussein claimed disability support pension on 10 October 2011. A Centrelink officer rejected Ms Hussein’s claim on the basis that she had not participated in a program of support and did not have a continuing inability to work under the Social Security Act 1991. The decision was affirmed on further internal review by an authorised review officer. The Social Security Appeals Tribunal affirmed the decision not to grant Ms Hussein a disability support pension on the basis that she had insufficient points to qualify under the Impairment Tables under the Social Security Act 1991.

2. Ms Hussein currently suffers from:

   (a)neck pain (cervical spine);

   (b)back pain;

   (c)right knee osteoarthritis;

   (d)parathyroid disorder;

   (e)gastro-oesophageal reflux disease;

   (f)depression; and

   (g)other conditions including asthma and fractures.

3. Ms Hussein has also been diagnosed with schizoaffective disorder.  This diagnosis was first made in 2012.

   ISSUES

4. Section 94 of the Act provides for the following requirements for eligibility for disability support pension:

   (i)a physical, intellectual or psychiatric impairment; and

   (ii)an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and

   (iii)continuing inability to work.

5. The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security  (Administration) Act 1999 is that only the conditions suffered by Ms Hussein during the period from the date of her claim and for the following 13 weeks may be considered for assessment of her qualification for disability support pension.  Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 10 October 2011 to 9 January 2012.

6. It is not in dispute that Ms Hussein has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in her application.

   DOES MS HUSSEIN HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?

7. The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 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 two years.

8. Paragraph 6 of the Introduction provides that when considering 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 two years.

9. We will deal with each of Ms Hussein’s conditions in turn.

   Neck Pain (cervical spine)

10. There is no dispute that Ms Hussein has a cervical spine condition that is permanent. Bone scans from March 2010 reveal mild degenerative changes in the cervical spine caused by mild osteoarthrosis. In April 2010, Dr van Gelder, Neurosurgeon, reported “she complains of neck pain. She cannot extend her neck. Symptoms can radiate into her arms and fingers.” He found that “she is tender everywhere. Neck symptoms increase with extension and rotation.”

11. Linda Tran, Physiotherapist, provided a Range of Movement Assessment Report dated 2 November 2011 after she saw Ms Hussein for assessment in October and November 2011. She reported “when all planes of movement are averaged, an overall loss of one-quarter of normal range of movement most accurately describes the functional loss for the cervical spine.”

12. The Job Capacity Assessment report dated 11 November 2011 also assigned a loss of one-quarter of normal range of movement.

13. Table 5.1 concerns cervical spine function.

    TABLE 5.1 Cervical spine

    Rating Criteria

    NIL                Normal or nearly normal range of movement.
    FIVE              Loss of quarter of normal range of movement.
    TEN               Loss of half of normal range of movement and frequent/constant neck pain or                    loss of           three quarters of normal range of movement with infrequent neck pain.
    TWENTY       Loss of three‑quarters of normal range of movement and constant neck pain.
    THIRTY         Loss of almost all movement, or complete ankylosis in position of function.
    FORTY          Ankylosis in an unfavourable position, or unstable joint.

14. We consider that Ms Hussein’s neck condition attracts an impairment rating of five points.

    Back Pain

15. Table 5.2 concerns spinal function and measures functional loss largely by reference to range of movement.  The Table provides:

    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 or               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

16. Ms Hussein has a permanent back condition. In a medical report dated 11 October 2011 Ms Hussein’s general practitioner, Dr Selim, reported that she suffers from lumbar disc lesions, spondylosis and back pain. In Dr Selim’s health summary sheet dated 27 January 2012, lumbo-sacral disc disease was listed as diagnosed in 2010.

17. Ms Tran’s range of movement assessment assigned Ms Hussein a rating of ten under Table 5.2. She reported a one-quarter loss of normal range of movement and said Ms Hussein’s reported reduced tolerances for walking and sitting up to 15 minutes and standing of up to five to six minutes. She also said Ms Hussein indicated she can carry up to five kilos. The Job Capacity Assessment also assigned an impairment rating of ten under Table 5.2.

18. We consider that Ms Hussein’s back condition attracts an impairment rating of ten points.

    Right Knee Osteoarthritis

19. Ms Hussein’s right knee osteoarthritis is more difficult to deal with.

20. A bone scan in March 2010 found that there was a “mildly increased uptake ….in the patellafemoral compartment of the knees…consistent with mild osteoarthrosis”. In Dr Selim’s health summary sheet of 27 January 2012, the condition of ‘Knee – meniscus tear – medical [sic]’ was said to have an onset date of 2006.

21. However, in medical certificates provided by Dr Selim, dated 13 June 2012 and 30 August 2012, Ms Hussein’s knee condition was described as bilateral knee pain producing symptoms of ‘severe knee pain’. An MRI scan of her right knee dated 14 October 2012 found moderate degeneration of the patellofemoral joint and degeneration of the medial meniscus.

22. There is little medical evidence of the functional effect of Ms Hussein’s right knee condition during the relevant period.  We note Ms Hussein’s evidence that she is now unable to walk without assistance.  However, as late as September 2012 Dr Hossain, Consultant Geriatrician and Physician, reported that she walks unaided.

23. We also note that in his Treating Doctor’s report at the time of claim, Dr Selim listed Ms Hussein’s knee together with her back and neck as part of a collection of associated conditions.

24. It appears that Ms Hussein’s knee condition has deteriorated since her claim for disability support pension. According to the medical evidence available to us and on Ms Hussein’s own evidence that her knee condition worsened after the time of her claim, it cannot be treated as permanent in the relevant period and therefore we cannot assign an impairment rating under Table 4.

25. We also note that Dr Hossain, on 4 October 2012, reported Ms Hussein’s attendance in which she reported severe pain in her right knee and low back radiating down her right leg.  He suggested an MRI which was later performed on 14 October 2012.  Continuing imaging investigations some nine months after the close of the relevant period suggest a condition that has not yet been fully treated and stabilised.  On this basis, Ms Hussein’s right knee condition cannot be assessed under the Impairment Tables.

26. We gave consideration to whether Ms Hussein’s knee, back and neck conditions could be assessed under Table 20, which concerns, among other things, chronic pain.  However, we have concluded that Ms Hussein’s knee condition is not yet fully treated and stabilised and so cannot be assessed, and her neck and back conditions may be adequately assessed under Tables 5.1 and 5.2 respectively.

    Parathyroid Disorder

27. There is no dispute that Ms Hussein’s parathyroid disorder is permanent. The only relevant material provided by the medical evidence in a report from Dr Selim gives little information on its functional effect on Ms Hussein. He records her symptoms as low calcium and severe weakness.  No symptoms were reported by Ms Hussein during the job capacity assessment and the Social Security Appeals Tribunal found she had “few” symptoms.  In this Tribunal’s hearing she did not report any symptoms of her parathyroid disorder.

28. Table 19 concerns endocrine disorders.

    TABLE 19. ENDOCRINE DISORDERS

    The effects of endocrine disorders eg. diabetes mellitus on other body systems eg. the vascular and visual systems should be assessed from the appropriate tables and added together with values from this table.

    Rating Criteria

    NIL Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget's disease, Osteoporosis, Addison's Disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.

    TEN Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget's disease or Osteoporosis which is incompletely controlled or treated eg. symptomatic Paget's disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.

    TWENTY Diabetes mellitus or Addison's Disease not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ damage.

29. We have insufficient medical evidence to assess Ms Hussein’s condition under Table 19 and cannot assign a rating.  In particular, there is no medical evidence to suggest that Ms Hussein’s condition is incompletely controlled or treated as required for a minimum positive assessment under Table 19.  Nor is there evidence of symptoms beyond the “weakness” reported by Dr Selim.

    Gastro-oesophageal Reflux Disease

30. There is no dispute that Ms Hussein’s gastro-oesophageal reflux disease is permanent. In his report of March 2012, Dr Selim includes the condition and its the impact on her ability to function he writes, “epigastric pain”. 

31. Ms Hussein did not report symptoms to this Tribunal, but she is reported as having told the Social Security Appeals Tribunal that she experiences nausea, acidity and stomach pain.  She takes Nexium which helps but does not completely rid her of symptoms.

32. Table 11.1 concerns gastrointestinal conditions.

    TABLE 11.1 GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT

    Rating Criteria

    NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.

    TEN Nausea 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.

    TWENTY Constant 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 obstruction

    Established 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.

    THIRTY Diet limited to liquid or to pureed food or long term total parenteral nutrition

    Gastrostomy

    Established chronic liver disease. Symptoms (eg, ascites, bleeding disorders, hepatic encephalopathy, more severe fatigue, nausea, vomiting) may cause substantial difficulty with most daily tasks.

33. On the basis of the few symptoms reported by Ms Hussein, we find that her condition attracts an impairment rating of nil.

    Depression

34. Dr Selim listed depression as a condition in his report of 11 October 2011. He said she is being treated with psychotherapy.  In a report dated 8 or 9 March 2012 he described her condition as “depression/anxiety”.  He stated that the year 2008 is the date of onset. He reported Ms Hussein experiences depressive mood, is being treated with anti-depressants and that future “psychological” treatment is scheduled.

35. Ms Hussein is now being treated by a psychiatrist, Dr Mohammed Allam. He has diagnosed her with schizoaffective disorder.  He describes symptoms of florid psychosis including seeing “devils” in frightening detail, spontaneously crying, screaming in fright and talking to herself.  He said, in a report dated 3 November 2012, that he had changed her diagnosis from depression with psychotic features to schizoaffective disorder.  He said he has increased her dose of anti-psychotics.

36. On this basis, Ms Hussein’s condition cannot be assessed as being fully diagnosed, treated and stabilised and therefore cannot be considered permanent within the meaning of the Act.

    Other (asthma and fractures)

37. There is insufficient information to allow assessment of Ms Hussein’s asthma under the impairment tables.

38. Ms Hussein sustained fractures of her right hip as the result of a fall which occurred on 30 January 2012. The injuries were sustained outside the relevant period and cannot be considered in relation to her claim for the disability support pension on 10 October 2011.

39. On the basis of the above conclusions, Ms Hussein does not meet the requirement for 20 points under the Impairment Tables.  It follows that she does not qualify to be paid disability support pension.  There is no need to examine her continuing ability to work.

40. We are concerned for Ms Hussein.  It appears that her various conditions have progressed markedly since the date of her claim for disability support pension in 2011.  In his report of March 2012, Dr Selim now describes her neck, back and knee conditions as “polyarticular osteoarthritis”. Dr Hossain, Consultant Geriatrician and Physician, confirmed that diagnosis and reported that he commenced to treat her in March 2012.  Dr Allam, Psychiatrist, appears to have commenced to treat her in 2012 as well.  It is not clear that Dr Hossain is aware of the serious psychiatric diagnosis made by Dr Allam.

41. We hope that the Respondent will be mindful of this lady’s complex and apparently deteriorating constellation of conditions when it considers the most appropriate form of income support for her.

    DECISION

42. The Tribunal affirms the decision under review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr I Alexander, Member.

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Associate

Dated  10 May 2013

Date of hearing	18 February 2013
Applicant	In person
Solicitors for the Respondent	Ms H Schuster, DHS Program Litigation Review Branch