SALEH, Hanadi and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 610

[2013] AATA 610  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5325
Re	SALEH, Hanadi
APPLICANT
And	Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey
Date	29 August 2013
Place	Sydney

Decision Summary

Decision under review affirmed.

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Senior Member J Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – back pain – depression and bipolar disorder – thyroid condition – dental problems – whether impairment rate 20 or more points – decision under review affirmed.

LEGISLATION

Social Security Act 1991 ss 94, 42

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REASONS FOR DECISION

Senior Member J Toohey

29 August 2013

BACKGROUND

1. Ms Hanadi Saleh suffers from chronic back pain, depression and bipolar disorder, a thyroid condition and dental problems.  On 9 March 2012, she applied for a disability support pension (DSP).  Centrelink decided she did not qualify for DSP and the Social Security Appeals Tribunal (SSAT) affirmed that decision.  Ms Saleh disputes that decision.

2. To qualify for DSP, Ms Saleh must satisfy the criteria in s 94 of the Social Security Act1991 (the Act).  In particular, she must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and,

   (ii)a “continuing inability to work” as defined in the Act.

3. Centrelink accepts, and I agree, that each of Ms Saleh’s conditions is an impairment. Centrelink says, however, that they do not rate 20 or more points and, further, that Ms Saleh does not have a continuing inability to work. 

4. For her application to succeed, Ms Saleh had to qualify for the pension on 9 March 2012, when she applied for DSP, or within the following 13 weeks: s 42 and Sch 2 of the Social Security (Administration) Act 1999. That makes 9 March 2012 to 8 June 2012 the relevant period in her case.

5. Ms Saleh gave evidence before the Tribunal by telephone.

   THE ISSUE

6. I have to decide whether Ms Saleh qualified for DSP during the relevant period.  I have to decide in relation to each of her conditions:

   (i)whether it could be assigned a rating on the Impairment Tables;

   (ii)if so, what rating it should be assigned.

7. If I am satisfied that Ms Saleh’s impairments rated 20 points or more, I then have to determine whether she also had a continuing inability to work.

   THE IMPAIRMENT TABLES

8. The Impairment Tables (the Tables) are used to assess the effect of an impairment on a person’s ability to work.  In relation to rating an impairment, the Introduction to the Tables states:

   4A 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.

   …

   5The condition must be considered to be permanent.  Once the 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.

   6In order to assess whether it 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.

   7In this context reasonable treatment is taken to be:

   treatment is feasible and accessible ie, available locally at a reasonable cost;

   where a substantial improvement can reliably be expected and whether treatment or procedure is of the type regularly undertaken or performed, with a high success rate and low risk to the patient.

   It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects that are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

   MEDICAL REPORTS AND JOB CAPACITY ASSESSMENT REPORTS

9. Ms Saleh has provided the following medical reports:

   ·   a report dated 2 March 2012 from her general practitioner, Dr Athour;

   ·   a letter dated 27 June 2012 from Dr Daniel Pellen, Staff Specialist Psychiatrist at Bankstown Mental Health Service;

   ·   a Care Plan Review dated 5 July 2012 Dr Rafik Dimitri, general practitioner;

   ·   Reports dated 18 July 2012 and 13 May 2013 from Dr Dimitri;

   ·   various reports of ultrasounds, a bone scan, a CT scan, and x-rays;

   ·   a Medical and Healthcare Leave certificate dated 22 September 2011 from Satyan Rajamani, clinical counsellor at Horizon Healthcare Solutions Pty Ltd; a Kessler psychological distress scale dated 29 August 2011.

10. Centrelink have submitted Job Capacity Assessment reports dated 25 May 2012 and 23 August 2012 by Louise Graham, a rehabilitation counsellor, and a report dated 27 June 2013 by “Adriana” which was compiled following the SSAT hearing in November 2012.  Ms Graham’s first report was based on an interview with Ms Saleh.  The second and third reports were based on additional medical reports submitted by Ms Saleh and what she told the SSAT hearing.

    MS SALEH’S IMPAIRMENTS

    Back pain

11. Dr Athour reported on 2 March 2012 that Ms Saleh had a long standing history of lumbar back pain lumbar which was being treated with analgesics and [indecipherable].  He did not suggest any different treatment was planned.  He noted her condition affected her ability to sit and stand, that it was likely to persist for more than 24 months, and its effect on her ability to function was expected to fluctuate and remain uncertain.

12. Ms Graham interviewed Ms Saleh on 21 May 2012.  She reported that Ms Saleh said she had first experienced lumbar back pain approximately 18 months earlier, and she had episodic pain radiating into both legs causing a numb and tingling sensation.  Ms Graham noted that Ms Saleh said she had variable tolerance to walking, sitting and standing, that her daughter helped her with household tasks, that she had some difficulty motivating herself but she was “able to self-care”.  She noted that Ms Saleh had been seeing a physiotherapist twice a week for four or five weeks but she did not feel it was helping; she had been given exercises to do at home but was not doing them; she had also had some massage therapy.

13. After Ms Graham's first assessment, Ms Saleh sent reports of radiological scans to Centrelink which, other than mild curvature of the lower thoracic spine, reported findings “within normal limits”.  Ms Graham concluded that Ms Saleh’s back condition was not fully diagnosed, treated and stabilised.

14. According to the SSAT’s decision, Ms Saleh told that tribunal that she had “recently been referred to an orthopaedic specialist” and was waiting on an appointment.The SSAT concluded that Ms Saleh’s back condition was not fully diagnosed, treated and stabilised, and the third Job Capacity Assessment came to the same conclusion. 

15. At the hearing on 21 August 2013, Ms Saleh said it was not until she saw Dr Dimitri “about a year ago” that she got any pain relief.  She told him that physiotherapy and the painkillers she had been taking were not working and he prescribed Panadeine Forte.  She gave evidence that she did not do the exercises she had been told to do because they hurt her and she “could not be bothered”.  She maintained that, when Dr Athour saw her x-trays, he said it was not possible to operate on her back.  It is not clear what happened to the appointment with the orthopaedic specialist but there is no evidence that Ms Saleh kept any appointment.

16. Ms Saleh agreed at the hearing that, during the relevant period, treatment for her back condition was “in progress”.

17. I am not satisfied that Ms Saleh’s back condition was fully diagnosed during the relevant period.  Given their generally normal findings, the x-rays and CT scans do not appear to explain her continuing back pain.  Other than describing continuing lower back pain, her general practitioners have not diagnosed her condition.  Nor am I satisfied that Ms Saleh’s back condition was fully treated and stabilised.  Painkillers and physiotherapy had proven ineffective but that was the extent of her treatment, and she was not doing the prescribed exercises. 

18. In all the circumstances, I am not satisfied this condition was fully diagnosed, treated and stabilised during the relevant period.  It follows that it cannot be given a rating on the Tables.

    Depression and bipolar disorder

19. Dr Athour reported that Ms Saleh had a “confirmed” diagnosis of bipolar affective disorder, and she had a long standing history of mood swings which were worse since her husband had passed away; her current symptoms were irritability, decreased concentration and sleep disturbance, and her current treatment was counselling and antidepressant.  He did not suggest any different treatment was planned.  He noted her condition affected her “endurance”, that it was likely to persist for more than 24 months and its effect on her ability to function was expected to fluctuate and be uncertain.

20. According to Ms Graham's first report, Ms Saleh told her she had been diagnosed with bipolar disorder after her husband passed away 18 months before; she had been seeing a psychologist for approximately six months, initially twice a week but more recently once a week, and she had been referred to another psychologist whom she was yet to see.  Ms Graham reported that Ms Saleh was currently prescribed Zoloft, and was taking Arapax without her doctor’s knowledge, as well as Xanax and Valium, and she was “self-adjusting dosages of the medications”.

21. In a report to Centrelink dated 27 June 2012, Dr Pellen, psychiatrist, wrote that he had seen Ms Saleh for the first time that day on a referral from her psychologist.  He wrote that she was suffering from depression and anxiety for which she had been receiving treatment from her general practitioner for about five years.  He said he had discussed treatment options with her and would continue to review her. 

22. At the hearing on 21 August 2013, Ms Saleh said she is now taking Zyprexa as prescribed by Dr Pellen.  Before seeing him, she was “self-medicating”; she was taking various medications including her girlfriend’s Arapax; Dr Pellen told her not to “play around with medicines” and prescribed Zyprexa.  She still sees him “on and off”.

23. It is not clear what Dr Pellen thinks of the diagnosis of bipolar affective disorder and there may be a question about the diagnosis of Ms Saleh's psychological condition.  Whatever the diagnosis, it is clear that her condition was not fully treated and stabilised during the relevant period.  She did not start seeing Dr Pellen until after that period and, up until then, had been treating herself.

24. As I am not satisfied that Ms Saleh's psychological condition was fully diagnosed, treated and stabilised during the relevant period, it cannot be given a rating on the Tables.

    Thyroid condition

25. Dr Athour did not refer to Ms Saleh’s thyroid condition in his report.  She gave evidence that she has had this condition for a long time and had her thyroid removed about five years ago; she will have to take Oroxine for the rest of her life. 

26. When asked how her thyroid condition affected her, Ms Saleh’s response was not clear.  She said she could not be sure how much her problems were due to her thyroid condition and how much due to her bipolar disorder.  The SSAT in its decision noted that Ms Saleh said she had some symptoms of fatigue and lack of endurance but could not isolate whether this was due to her thyroid or her mental health condition.

27. In a Care Plan Review dated 5 July 2012, Dr Dimitri noted that Ms Saleh had a chronic thyroid condition; she was being given counselling and reassurance about the nature of the disease and was using “medications and lifestyle modification to control symptoms”.  He noted “Use of medical/surgical intervention to achieve and maintain euthyroidism.  Regular monitoring”.  The Care Plan Review suggests that Ms Saleh's thyroid condition is managed and controlled.

28. Assuming Ms Saleh's thyroid condition is fully diagnosed treated and stabilised, it would be assessed according to Table 1 – Functions requiring Physical Exertion and Stamina. In order to be rated 20 points on Table 1, Ms Saleh thyroid condition would house to have a severe functional impact on activities requiring physical exertion or stamina such that she is unable to perform functions such as walking around the shopping centre or supermarket without assistance, or walking from the car park into a shopping centre without assistance, using public transport without assistance, or performing light of day to day household activities.

29. On the evidence before me, I cannot be satisfied that Ms Saleh’s thyroid condition has more than a mild functional impact, meaning it would rate five points on Table 1.  Even if it had a moderate functional impact, it would rate only 10 points on Table 1.

    Dental problems

30. Dr Athour did not refer to dental problems in his report.  However, Ms Saleh gave evidence at the hearing that she has very bad gum disease and suffers from frequent infections. 

31. In the Care Plan Review, Dr Dimitri noted that Ms Saleh had chronic dental and gum disease and that she had been referred to a dentist “for evaluation and treatment of pathology/symptoms”.  Ms Saleh gave evidence that her dentist is considering taking out all her teeth and fitting her with dentures.  She said he is planning to do this “as soon as possible”. 

32. It is not clear exactly what is causing her dental problems but, even if they could be considered fully diagnosed, it is clear from her evidence that they are not fully treated and stabilised even now, let alone during the relevant period.  It follows that they cannot be given a rating on the Tables.

    CONCLUSION

33. For the reasons I have given, I am not satisfied that Ms Saleh’s impairments rated 20 points or more on the Impairment Tables during the relevant period.  As she did not satisfied that criterion, it is not necessary to consider whether she also had a continuing inability to work.

34. As Ms Saleh did not qualify for the DSP during the relevant period, I affirm the decision under review.

I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Toohey.

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

Associate

Dated 29 August 2013

Date of hearing	21 August 2013
Applicant	Via telephone
Solicitors for the Respondent	Department of Human Services, PROGRAM LITIGATION AND REVIEW BRANCH