Saker and Secretary, Department of Family and Community Services

[2005] AATA 275

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 275

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1193

GENERAL ADMINISTRATIVE  DIVISION

Re:         LAILA SAKER

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             31 March 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G. D. Friedman

Member

SOCIAL SECURITY ‑ disability support pension ‑ back pain ‑ depression and anxiety impairment tables ‑ whether conditions fully treated and stabilised

Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), Schedule 1B

REASONS FOR DECISION

31 March 2005  G.D. Friedman, Member

1.      This is an application by Laila Saker (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 29 September 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 22 June 2004 to refuse an application for disability support pension (DSP).    

2.      At the hearing on 18 March 2005 the applicant represented herself, with the assistance of an interpreter in the Arabic language. Mr W. Zita, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T20).

BACKGROUND

4.      The applicant was born on 2 December 1963 in Lebanon and came to Australia in 1986. 

5.      On 15 April 2004 the applicant lodged a claim for DSP due to back pain, migraines, left side sciatica and depression.  After a medical assessment Centrelink refused the claim on 13 May 2004 because her medical conditions were not considered to have been fully treated and stabilised under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  On 22 June 2004 an authorised review officer affirmed the decision.

6.      On 9 September 2004 the applicant sought review of the Centrelink decision by the SSAT.  On 29 September 2004 the SSAT affirmed the decision on the basis that the applicant’s conditions were not fully treated and stabilised, and therefore she did not have an impairment rating of at least 20 points.  On 18 October 2004 the applicant lodged an application with the Tribunal for review of the decision.

7.      The issue before the Tribunal is whether the applicant’s medical conditions satisfy the criteria for payment of DSP.

EVIDENCE

8.      The applicant gave oral evidence that she was eight months pregnant when she was examined in relation to her claim for DSP.  She said that she has been depressed since the breakdown of her marriage in 1997 in which she was left with 6 children and no financial or other support.  She told the Tribunal that her husband returned briefly, and in 1999 she became pregnant with her seventh child.  The applicant explained that during this pregnancy she developed back pain which has continued.

9.      The applicant stated that she is unable to stand or sit for long periods, and cannot perform basic household tasks because of pain in her back.  She said that she finds difficulty in concentrating and her medication for back pain makes her drowsy.  She stated that she is reluctant to undergo back surgery because of the risks and the likelihood of continuing pain, and that physiotherapy or other treatment options have not assisted because the pain is in her bones.

10.     She stated that in 2003 she met her second husband, and they have a child together.  The applicant said that her husband looks after the children and helps with day-to-day matters such as cooking and shopping, although he also has medical problems and can offer only limited assistance.  She said that she becomes frustrated because she cannot provide the necessary care for her children.  She would like a family member to assist her, but has been unable to arrange for her sister to migrate to Australia.

11.     The applicant told the Tribunal that her back pain and marriage breakdown caused psychological problems and has led to depression and anxiety, for which she is taking medication prescribed by her general practitioner.  She said that she consulted a psychiatrist while in hospital during her latest pregnancy, but feels that her general practitioner is able to prescribe the same medication as a psychiatrist, so she does not believe that further psychiatric treatment is necessary.  

12.     In a report dated 7 April 2004 (T4) Dr V. Salib, the applicant’s treating doctor, stated that the applicant suffers from spondylolisthesis (disc degeneration of the lower spine) and depression which will have an impact on her ability to function, and are expected to persist for more than 24 months.  He said that within the next 2 years the effect of the back condition on the applicant’s ability to function is uncertain and the effect of the depression will fluctuate.

13.     In a report dated 17 September 2003 (T7) Mr B. Dooley, orthopaedic surgeon, recommended a magnetic resonance imaging (MRI) of the applicant’s lumbo-sacral spine, but deferred the test because the applicant was pregnant.  The MRI was conducted on 30 July 2004.  In a report dated 17 August 2004 (T18) Mr Dooley, after reviewing the MRI, stated:

She may well benefit from surgical fusion.  This would require relatively major surgery with two-level fusion and internal fixation with bone-grafting etc., which I would suspect in having a large family of eight children she will elect not to have any surgery performed.

14.     In a report dated 12 May 2004 (T9), Dr L. Liew of Health Services Australia noted that the applicant was eight months pregnant with her eighth child.  He stated:

After the birth of her child she will need further investigation and possibly back surgery.  She will also require referral to a psychiatrist for her depression.  On the basis of my assessment, my opinion is that due to the above medical conditions which are unstable and not fully treated, she is unfit for any work for the next nine months.

15.     In a report dated 23 July 2003 (T20) Dr D. Cheung of Health Services Australia assigned an impairment rating of 10 points under Table 5.2 Thoraco Lumbo-sacral Spine of the Impairment Tables in respect of the applicant’s lower back pain.  He did not assign an impairment rating for depression and anxiety, which he described as a temporary condition that had not been optimally stabilised or treated.

16.     In a report dated 3 July 2003 (T20) Dr M. Georgy, general practitioner, stated that the applicant’s back condition was likely to deteriorate within the next 2 years.  He raised the possibility of decompression surgery.  Dr Georgy said that her depression and anxiety were likely to fluctuate within the next 2 years.

CONSIDERATION OF THE ISSUES

17.     Section 94 of the Act provides:

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;

…

94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

…

94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

. . .

94(5)…

"work" means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

Schedule 1B of the Act provides:

. . .

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

18.     Mr Zita submitted that, at the date of the claim for DSP or within 13 weeks of that date (the relevant period), the applicant’s conditions could not be assigned an impairment rating because they had not been fully investigated, treated and stabilised.  Therefore, the applicant did not have a rating of 20 points or more under the Impairment Tables.  He said that, in any event, on the medical evidence a rating of less than 20 points was appropriate.

19.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

20.     The Tribunal accepts the applicant’s evidence that she suffers from lower back pain that restricts her ability to stand or sit for extended periods or to perform basic tasks.  The Tribunal also accepts the evidence from the medical practitioners that the applicant may benefit from compression surgery for treatment of her back pain, and that her condition may improve significantly, although there are risks associated with such surgery.  The Tribunal accepts the medical evidence that the applicant’s depression and anxiety have not stabilised and have not been treated by a specialist, and they might improve in time.

21. Consequently, the Tribunal accepts the submission from Mr Zita that during the relevant period the applicant’s medical conditions could not be assigned an impairment rating because they were not fully documented, diagnosed conditions which had been investigated, treated and stabilised. Therefore, the applicant could not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act, and cannot satisfy s 94(1). The Tribunal does not need to consider whether the applicant had a continuing inability to work under s 94(1)(c) of the Act.

DECISION

22.     The Tribunal affirms the decision under review.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

signed:     Catherine Lake

Clerk

Date of hearing:  18 March 2005

Date of decision:  31 March 2005
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr W. Zita, Centrelink