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

[2020] AATA 5439

Sahin and Secretary, Department of Social Services (Social services second review) [2020] AATA 5439 (10 December 2020)

Division:GENERAL DIVISION

File Number:          2019/5293

Re:Edliban Sahin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date of decision:                   10 December 2020

Date of written reasons:        14 January 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Mr A Maryniak QC, Member

Catchwords

SOCIAL SECURITY – disability support pension – qualification – conditions of ulcerative colitis, right wrist and arm pain and a psychological condition – conditions not fully treated and stabilised – insufficient medical evidence – decision under review affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Mr A Maryniak QC, Member

14 January 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons therefore were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.
   

I certify that the following 12 (twelve) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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

Associate

Dated: 14 January 2021

Date of hearing:	10 December 2020
Advocate for the Applicant:	Cetin Sahin
Advocate for the Respondent:	Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: On 22 July 2019, this Tribunal affirmed the decision under review which rejected the applicant’s claim for the Disability Support Pension lodged on 25 May 2018.  On 23 August 2019, the applicant lodged the present application for review.  The relevant law is contained within the Social Security Act1991, Social Security (Administration) Act1999 and the relevant impairment tables. 

2. The issue for determination before this Tribunal today is whether or not the applicant had qualified for the Disability Support Pension at the date of her claim, namely 25 May 2018, or within 13 weeks of that date, being the period up to and inclusive of 28 August 2018, that being the relevant qualification period. The Tribunal is to consider, pursuant to section 94 of the Social Security Act1991 and section 16 and 41 and 42 of the Social Security (Administration) Act1999, any physical, intellectual or psychiatric impairments and whether those such conditions are fully diagnosed, treated and stabilised, causing impairments which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination2011.

3. The Tribunal is to consider an applicant’s qualification for the Disability Support Pension within the 13-week qualification period and only within that qualification period.  The Tribunal notes the observations of Breen M in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]. The respondent accepts and the Tribunal finds that the applicant had impairments during the qualification period, being ulcerative colitis, right wrist and arm pain and a psychological condition. Accordingly, section 94(1)(a) of the Social Security Act1991 was satisfied during the qualification period. 

4. The next and critical question for the Tribunal in this matter is whether the applicant’s impairments attracted 20 points or more under the impairment tables.  An impairment rating can only be assigned where the condition causing the impairment is permanent and the impairment is likely to persist for more than two years.  A condition is permanent when it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.  Relevantly, subsection 6(5) of the impairment tables provide that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following matters are to be considered: namely, whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years. 

5. Subsection 6(6) provides that a condition is fully stabilised if either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years;  or the person has not undertaken reasonable treatment for the condition and significant functional improvement to a level of enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or there is medical or other compelling reason for the person not to undertake reasonable treatment. 

6. As was discussed during the hearing, the qualification period is informed in part by what has happened to the applicant and her condition prior to the qualification period.  But at the end of the day, it is for the Tribunal to be convinced, or otherwise, as to the fully treated status and fully stabilised status of the conditions within the qualification period as noted by Handley DP in Fanning and Secretary, Department of Social Services [2014] AATA 447.

7. The Tribunal has considered the documentary evidence lodged before it, together with the oral evidence given by the applicant and her husband this morning. The Tribunal gives greater weight to the documentary evidence where there is an inconsistency, particularly where the applicant had difficulties in remembering various details in response to questions under cross-examination. The Tribunal has also considered the written and oral submissions of the parties. 

8. The applicant’s claim for right wrist injury and arm pain emanates from a work injury she sustained in October 2004.  In 2006, it was decided that surgical intervention could not be recommended.  Various treatments were attempted. 

9. Then, in July 2008, the applicant went to see a pain specialist, Dr Bruce Mitchell, who recommended radiofrequency neurotomy with respect to the cervical facet joints as treatment to treat and stabilise the right wrist and arm pain.  The clear evidence before the Tribunal is that this treatment never occurred.  In such circumstances, on the evidence before it, the Tribunal is unable to find that this condition was fully treated and stabilised as at the qualification period. 

10. The Tribunal accepts that the applicant has a fully diagnosed psychological condition, however, the evidence before the Tribunal does not enable it to find that such condition was fully stabilised and treated as at the qualification period.  Whilst there are psychiatric reports from 2009, 2010 and 2011, there are none since that date and that combined with the evidence before the Tribunal of inconsistent and erratic use of prescribed anti-depressants since that time, over a number of years prior to the qualification period, means there is insufficient evidence before the Tribunal to provide it with a well-informed snapshot of the requisite stabilisation and on the evidence, the psychological condition was not fully treated as at the qualification period. 

11. In respect of the ulcerative colitis, again, the Tribunal finds that the applicant’s use of prescribed medication for this condition has been erratic and inconsistent and no recent specialist review of this condition has occurred. There is a substantial history of use and non-use of the prescribed medication for this condition over many years prior to the qualification period.  Further, the Tribunal notes that in her report of July 2019, Dr Thys, the applicant’s general practitioner, makes no mention of the applicant taking medication for this condition.  Without more, the Tribunal is unable to find on the evidence that this condition was fully treated and stabilised as at the qualification period. 

12. In light of these findings, it is unnecessary for the Tribunal to consider any further issues in this application as no points can be allocated under the impairment tables.  The correct or preferable decision in this matter is that the decision under review be affirmed.