ROUKAYA BALTAGI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 653

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 653

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3548

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROUKAYA BALTAGI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date31 August 2009

PlaceSydney

Decision The decision under review is affirmed and varied to reduce the total impairment rating for Miss Baltagi’s impairments from ten points to five points pursuant to section 94(1)(b) of the Social Security Act 1991.

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

Dr D J Campbell

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – practice and procedure of assessment – complex physical and psychiatric impairments – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether Applicant’s impairments were fully diagnosed, treated and stabilised at the date of claim or within thirteen weeks thereof ­ – the decision under review is affirmed and varied. 

Social Security Act 1991 – section 94(1)(b), schedule 1B

Social Security (Administration) Act 1999 – schedule 2

REASONS FOR DECISION

31 August 2009  Dr J D Campbell, Member

BACKGROUND

1.      Miss Baltagi lodged an application for disability support pension (DSP) on 4 March 2008.  In her application Miss Baltagi listed that she was suffering from the following illnesses – asthma, hay fever, eczema, palpitations, anxiety, allergies, and thyroid, with some or all of the conditions commencing in 1993 and continuing.  Miss Baltagi was 15 years old at the date of lodgement.

2.      Dr Khalil, a general practitioner, provided a treating doctor’s report dated 6 March 2008.  In this report Dr Khalil noted that the condition with most impact was:

·Asthma commencing in 1995, with thereafter a long history of cough and shortness of breath, with such symptoms remaining.  Current treatment was nominated to include Seretide and Ventolin inhalant medication.  Dr Khalil detailed that Miss Baltagi needed support in areas of her ability for self care and in activities of daily living.  Dr Khalil considered that the condition would fluctuate, but would persist for more than two years.

3.      In his report, Dr Khalil noted that Miss Baltagi had suffered from hay fever, allergic rhinitis and eczema since 2003.  The conditions had been treated with antihistamines and steroid nasal sprays, and that such conditions were expected to impact on her ability to function for more than two years.

4.      Further, Dr Khalil noted that Miss Baltagi had two other conditions which were generally well managed and caused minimal or limited impact on her ability to function, and that significant improvement was expected with appropriate treatment.  The conditions nominated were:

·Paroxysmal tachycardia

·Anxiety and depression

5.      On 28 March 2008 Mr Perez, a registered psychologist, assessed Miss Baltagi during a face to face interview.  In his job capacity assessment report summary, Mr Perez noted that it was necessary to contact Dr Khalil on 3 April 2008 to discuss two further conditions, namely hyperthyroidism and a stomach condition (vomiting), which had not been included in his treating doctor’s report.  Mr Perez notes that Dr Khalil advised that further investigations and treatment of Miss Baltagi’s various medical conditions should occur, and that he strongly recommended that Miss Baltagi receive psychological counselling as he believed she would benefit from such.

6. On 9 April 2008 a Centrelink officer determined that Miss Baltagi’s claim be rejected, as her impairment rating pursuant to an assessment under the Impairment Tables in Schedule 1B of the Social Security Act 1991 was zero points.

7.      On 17 May 2008 Mr Jolan, an educational and developmental psychologist, completed an assessment of Miss Baltagi.  Mr Jolan concluded that Miss Baltagi was of average intellectual functioning, and that she could be experiencing some difficulties carrying out daily activities, in particular, carrying out home duties (T12).

8.      On 5 June 2008 the Authorised Review Officer (ARO) completed her review and affirmed the decision of the Centrelink officer of 9 April 2008.  In making such a decision the ARO considered the report of Dr Patel, a consultant cardiologist, dated 6 May 2008, in which he stated “that Miss Baltagi suffers from palpitations ... she is awaiting electrophysiological investigations ... may take up to three months.” (T9).  Further, the ARO also considered a further report from Mr Jolan dated 26 April 2008, in which he states:

“Roukaya is experiencing severe levels of anxiety, stress, sleep and anger problem (sic), she also has a very low self esteem and confidence (sic).  In addition, Roukaya is experiencing problems with memory and concentration .... In view of the result, history and clinical evaluation, it is recommended that a cognitive and behaviour assessment [be] conducted to ensure Roukaya is receiving necessary support.  It is also important that Roukaya continues the psychological session (sic) to further assist her deal effectively with the anxiety, panic attack (sic), anger and the abuse.” (T8).

9.      The decision was further reviewed by the Social Security Appeals Tribunal (SSAT) on 18 July 2008.  The Tribunal concluded that Miss Baltagi suffered from asthma (permanent), hay fever and allergic rhinitis (permanent), eczema (permanent), anxiety and depression (permanent), paroxysmal tachycardia (under investigation), vomiting (under investigation) and hyperthyroidism (under observation).  The Tribunal awarded 10 impairment points for the anxiety and depression condition pursuant to Table 6 of the Impairment Tables.

ISSUES BEFORE THE TRIBUNAL

10.The relevant issues in this matter are:

(a)From what impairments, be they physical, intellectual or psychiatric, did Miss Baltagi suffer at the time of lodgement of her claim for DSP or within a thirteen week period thereof?

(b)What is the assessment for each impairment pursuant to the relevant Schedule 1B Impairment Table?

(c)Does the combined assessment of the various impairments equal to or exceed 20 points?

(d)Does Miss Baltagi have a continuing inability to work?

PERIOD FOR ENTITLEMENT TO DSP

11.Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Miss Baltagi was entitled to the DSP by 3 June 2008.

FURTHER EVIDENCE

12.     In a report dated 10 July 2008 Associate Professor Kilborn, a consultant cardiologist at Royal Prince Alfred Hospital, noted that the onset of Miss Baltagi’s palpitations was when she was about 14. He stated that:

The onset often occurs at rest… she often feels light headed but has not had syncope.  She also describes left arm numbness during palpitations. 

Professor Kilborn concluded that Miss Baltagi was suffering from paroxysmal supraventricular tachycardia and query hypothyroidism.

13.     In a further report dated 21 April 2009, Professor Kilborn records that he has seen Miss Baltagi

…in July 2008 and April 2009 because of frequent symptomatic palpitations and pre-syncope, with these symptoms being quite debilitating.  It has required an invasive electrophysiological study as part of the diagnostic workup. The symptoms have not yet come under control… Roukaya is currently unable to work or study because of these symptoms.

Further, Professor Kilborn notes that he has changed her treatment and hopes that this will bring her symptoms under control.

14.     In evidence during the hearing conducted on 13 August 2009, the following information was detailed by Miss Baltagi, and in part by her mother:

·That the palpitations come on at any time of the day/night, sometimes two or three times.  They last for a few minutes, with a thumping in her chest, tightness across her chest, feels faint and dizzy with numbness and pain in her left arm.  The palpitations cease spontaneously and it takes her 30 minutes to be back to normal.  If occurring during school, goes to sick bay.  Is on medication and three monthly review by Professor Kilborn.  It was reported that she was to stay on various dosages of the current medication for the next three to four years.

·In relation to the vomiting, that it continues to occur one to three times a day and causes her much distress.  The endoscopy and panendoscopy undertaken in July 2008 was reported by Mrs Bahsa (mother) as demonstrating gastric swelling and redness.

·That the asthma had existed for a long time; that it is worse in the winter months, with four or five episodes a year during which she is confined to the house for four or five days.  Such episodes are associated with a cough.  She uses her asthma inhalant medication as directed.

·That the eczema, allergic rhinitis and hay fever are treated with cream and antihistamine tablets, respectively.

·That she has much difficulty with sleeping, which can be interrupted by palpitations or vomiting.

15.     During the hearing Miss Baltagi was observed to be of low mood, her responses indicative of such, and at times her emotions were labile.  I noted that she was much worried about her various medical conditions, and I saw little evidence of esteem or confidence.  She appeared stressed when talking about issues of personal concern.

CONSIDERATION AND FINDINGS

16.     There are many issues in this matter that are of concern.  Most of the these relate to the complexity and interactions of the various medical conditions from which Miss Baltagi suffers.  I am mindful that my task is to deal with the claim lodged in March 2008, which does involve consideration of events surrounding her conditions for a period of thirteen weeks after the lodgement date.

17.     In assessing the material available at the relevant period, I would comment that the treating doctor’s report fails to nominate all the conditions from which Miss Baltagi suffered at that time, nominated the condition with the most impact as asthma, and considered two conditions, namely paroxysmal tachycardia and anxiety and depression, well managed and causing limited or minimal impact on her ability to function.  Further, I would observe that the two reports of Mr Jolan and the report of Mr Perez, both psychologists, would suggest that the anxiety and depressive condition was not well managed and was causing much more than limited or minimal impact on her ablity to function,as had been nominated by the treating doctor.  Similarly in relation to the tachycardia, it is evident from the brief report of Dr Patel, and the longer report of Professor Kilborn, that that condition was not well managed and causing impact on Miss Baltagi’s ability to function.

18.     Further, by virtue of the material before me, I am still unable to state whether Miss Baltagi’s nominated thyroid condition is one of hypothyroidism or hyperthyroidism.  In so stating, it is initially nominated as hyperthyroidism, then later hypothyroidism – a diagnosis queried by Professor Kilborn in his two reports.

19.     While it is easy to be critical in hindsight, I express a concern that a person of young age, with a myriad of conditions, should experience such apparent difficulty in having the material, relating to her conditions, put forward in a manner that makes it difficult for the initial decision makers to understand the nature and conditions from which Miss Baltagi suffered at the time. 

20.     Further, I would note that were it not for the diligence of the Job Capacity Assessor, Mr Perez, in seeking to discuss Miss Baltagi’s conditions with the treating doctor, a fairer assessment of her conditions at the time would not have eventuated.

21.     In addressing the issue of impairments from which Miss Baltagi was suffering during the period in question, I conclude that she was suffering from the following impairments:

·Asthma

·Allergic rhinitis and hay fever

·Eczema

·Anxiety and depression

·Paroxysmal tachycardia

·Thyroid condition

·Vomiting

22. In addressing the assessment of each impairment pursuant to the relevant Schedule 1B Impairment Table at the relevant period, I am mindful that the Introduction to the Schedule 1B tables is particular that a rating for an impairment can only be given where the impairment is permanent. For the condition/impairment to be permanent, the condition and the associated impairment has to have been fully documented, investigated, treated and stabilised. As to what constitutes fully treated one needs to consider whether all reasonable treatment, involving consideration if feasible, of access and cost issues as well as the nature, risk and success rate of such treatment. As to what constitutes fully stabilised, one must consider the likelihood of sustained and significant functional improvement as unlikely to occur within a period of two years.

23.     In assessing each of the impairments arising from the conditions nominated in relation to the claim lodged in March 2008, I detail the following assessments:

(a)   Asthma

- Condition permanent, fully diagnosed, treated and stabilised.

- The relevant Table is Table 21.  It is documented that Miss Baltagi used daily asthma inhalant therapy, but on four or five occasions a year she is confined to home/bed with respiratory tract infection and more severe asthmatic episodes.

- In accordance with Table 21.1, I consider the severity of the intermittent episodes to be 3 points, the duration longer than four hours (21.2), the severity grade to be F (21.3) and the consequent rating to be 5 points (21.4) as the impairment occurs for 10 plus days a year.

- I note that the Job Capacity Assessor stated in oral evidence that the asthma condition may be contributed to by the condition of anxiety and depression which, in his view, was not fully treated.  I would note that chronic asthma is often associated with some anxiety and depressive symptoms, but in this matter it would appear more probably that Miss Baltagi’s more severe episodes were associated with respiratory tract infection.

(b)   Hay fever and rhinitis

- Both conditions are associated with allergy and have been fully diagnosed and treated with antihistamines.  I note that these two conditions, while irritating, cause no disturbance to Miss Baltagi’s normal daily activities.  Both conditions are assessed at zero points pursuant to either Table 20 or 21.

(c)   Eczema

- Condition intermittent, fully diagnosed, treated and stabilised with topical cream application as required.  Condition assessed as nil rating pursuant to Table 18 as there is no limitation in the performance of normal daily activities.

(d)   Thyroid disease

- I remain uncertain from the material in evidence as to whether Miss Baltagi suffers from a hypo or hyper thyroid condition.  No treatment has been instituted and it is important to distinguish between the two conditions, as hyperthyroidism can be associated with tachycardia.  In such circumstances, the condition is not fully documented, diagnosed, treated and stabilised, and a rating should not be assessed as the condition is considered not permanent.

(e)   Paroxysmal tachycardia

- Material in evidence suggests the condition commenced at age 14.  Investigation and treatment have evolved, with investigation and treatment being undertaken by Professor Kilborn, Senior Staff Cardiologist (Arrhythmia Service Director) at Royal Prince Alfred Hospital.  Such referral and treatment commenced in July 2008, and accordingly fall outside consideration under the claim in question.  I note there was an earlier referral in 2006, with Miss Baltagi failing to attend.  I note that from both the history given by Miss Baltagi and the assessment of Professor Kilborn, that current treatment is not causing significant, if any, improvement in the condition, with current oral medication said to continue for three or four years, before any intrusive treatment is considered.

- In such circumstances, it would not be appropriate to rate this condition under Table 20 or 21, as the condition was not fully treated and stabilised at the date of lodgement or within thirteen weeks thereof.

(f)    Anxiety and depression

- Material before me clearly indicates that this condition is present.  Treatment has included antidepressant medication, but no referral for either psychiatric assessment or psychiatric or psychological counselling.  While Miss Baltagi has anxiety and depressive symptoms and has been treated with intermittent antidepressant medication, the assessment of her psychiatric condition has not been thorough, and diagnosis as to nature of illness (eg. Adjustment disorder and identification of stressors) not established.  Treatment has been limited.  In such circumstances, I conclude that the condition relating to anxiety and depression has not been fully documented, diagnosed, treated and stabilised.  Accordingly, no assessment pursuant to Table 6 is undertaken, as the condition is not considered permanent at the time of lodgement of the claim under review.

(g)   Gastroenterological condition

- Miss Baltagi has outlined her vomiting symptomology.  Her mother detailed orally the findings at endoscopy in July/August 2008 as redness and swelling of the gastric wall.  I remain unsure as to the nature of this condition, with the continuance of unabated symptoms indicative of a need for either further investigation or treatment.  In the circumstances I have outlined, the condition in question was not fully documented, diagnosed, treated and stabilised at the time of lodgement of the claim in March 2008.  No assessment is made pursuant to the Assessment Tables as the condition is considered not permanent at the date of claim in March 2008.

24.     I conclude by finding that while Miss Baltagi has many impairments arising from many conditions, at the time of lodgement of her claim in March 2008, the total assessment rating is 5 points, as most conditions and associated impairments were considered not to be permanent conditions in March 2008, as they had not been fully documented, diagnosed, treated and stabilised.

25. In view of my conclusion in relation to the assessment rating of Miss Baltagi’s impairments at 5 points, I see no need to consider the issue of whether Miss Baltagi has a continuing inability to work. In the circumstances I have outlined, the decision under review is affirmed, with a variation in the impairment rating as outlined earlier in this decision. The reason for such a finding rests with Miss Baltagi failing to satisfy section 94(1)(b) of the Social Security Act 1991, in that the rating of her various impairments was not 20 or more points.

26.     While I have made the findings that I have done, this particular matter highlights significant issues in the current practice and procedures in relation to assessment of individuals applying for DSP.  I nominate the issues as:

·       The nature of the client

– a young person still at school who has a significant and complex array of medical and psychiatric issues.

·       The environment

– access to investigation and treatment is limited, with cultural barriers superimposed.

·       Initial assessment

– documentation and the treating doctor’s report are often inadequate to allow proper assessment.

·       Job capacity assessor

– faced with undertaking an assessment with inadequate material and in complex matters outside their sphere of expertise.

– they do not appear to have access to particular specialist medical expertise to help in their assessment, nor do they appear to be able to refer clients for assessment to appropriate medical practitioners, when clearly the treating doctor’s report is inadequate, as either a consequence of their misunderstanding of what is required in the form completion or, alternatively, a failure to effectively particularise a condition.

·       The process

– once the initial documentation is either misleading or inadequate for whatever reason, the process continues with minimal ability for the inadequacies to be corrected.

27.     In this matter to hand, it is evident that Miss Baltagi has a number of complex medical conditions, not necessarily responding to expert intervention where it has been taken.  The interaction between the various conditions has not necessarily been assessed in the light of the complexity of the conditions, A competent assessment conducted with the necessary material relating to her current circumstances may well result in a different outcome. In such circumstances,  Miss Baltagi is facing an extended period as a disability support recipient, unless her conditions can be investigated, assessed, treated and stabilised.  In this matter, the Job Capacity Assessor is to be commended for his effort and endeavour, but in turn needs an ability, in selected cases, to turn for advice in an assessment process.  In this matter, as in other complex cases, referral to an appropriate specialist may be of assistance in allowing a case to properly progress.

28.     Finally, in this matter, assessment of Miss Baltagi’s current complex array of conditions would perhaps be best undertaken by a competent specialist physician, as it would seem, if a new claim was lodged, that the heart condition, currently treated with oral medication for the next three to four years, could be under current legislation, considered permanent.

29.     I have been particular in detailing issues that arise from this matter.  I express a concern that with young applicants every endeavour should be undertaken to ensure that such a person should enjoy a life commensurate with their impairments.  In so stating, I consider a system must allow for a complex and difficult case to be assessed and dealt with in a manner consistent with its complexity.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed:  ....................[sgd].........................................................
  Associate

Dates of Hearing  28 July 2009
  13 August 2009
Date of Decision  31 August 2009
Appearance the Applicant             Self-represented

Solicitor for the Respondent          Mr M Nicoletti
  Centrelink Legal Services and Procurement
  Branch