Samiha Hallak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 700
•11 October 2012
[2012] AATA 700
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2639
Re
Samiha Hallak
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 11 October 2012 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
11 October 2012
Mrs Hallak, who migrated to Australia in 1976, claimed disability support pension on 3 December 2012. A Centrelink officer rejected Mrs Hallak’s claim on the basis that she had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. The officer also found that Mrs Hallak is able to work for 15 hours per week. The decision was affirmed on further internal review and by an authorised review officer and the Social Security Appeals Tribunal.
Mrs Hallak currently suffers from:
(a)Depression;
(b)Back condition;
(c)Knee pain;
(d)Migraine/headaches;
(e)Gastro-oesophageal reflux; and
(f)Other conditions including abdominal pain, asthma; and dental condition.
ISSUES
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.
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 Mrs Hallak 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 3 December 2010 to 3 March 2011.
It is not in dispute that Mrs Hallak has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in her application.
DOES MRS HALLAK HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
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.
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.
It was very difficult to obtain information from Mrs Hallak. She was easily distressed and often sat with her head on the table. She cried often. Her answers to questions were very often “I don’t know”. There was little up to date medical information available and the treating doctor’s report gave scant information.
I will deal with each of Mrs Hallak’s conditions in turn.
Depression
According to her treating psychologist, Mr Metry, Mrs Hallak suffers from Major Depressive Disorder. In his report of 9 March 2011, he states that Mrs Hallak has had six therapy sessions and that she would benefit from continuing psychological therapy.
Mrs Hallak says she has been taking medication, including Endep, three times a day and once at night, though she could not recall how long she had been taking that medication. She says she sees her psychologist when she needs him, the last time being about two to three weeks ago.
I cannot be satisfied that her condition has not yet been treated and stabilised. I note that Dr Ishmail described her compliance with medication as “very poor”. It follows that it cannot attract an impairment rating.
Mrs Hallak submitted a new claim for disability support pension on 17 April 2012. It may be that additional medical evidence, which falls outside of the relevant period in this application, can further assist her claim for depression.
Back condition
Mrs Hallak suffers from lumbar disc degeneration and protrusion. Her treating general practitioner, Dr Ismail, in a report of 2 December 2010 identifies symptoms of back pain, leg pain and an inability to walk long stances. At the hearing, Mrs Hallak complained of lower back and neck pain.
She said that she was receiving physiotherapy and produced five appointment confirmations with her local physiotherapist from 1 August to 5 September 2012. These all occur outside the relevant period.
She produced some imaging reports relating to scans of her cervical spine ordered by her “bone doctor” Dr Boksic. They also fall outside the relevant period.
Mrs Hallak’s back condition was reported by Dr Ishmail as treated with Voltarin, Naprosyn and analgesics. It is not fully treated and so cannot be assessed under the Impairment Tables.
Knee pain
Dr Ismail listed knee pain as a condition that is managed and that causes Mrs Hallak minimal or limited functional impairment.. She has not seen a specialist in relation to her knees and Dr Ismail appears not to be administering any treatment.
Her condition has not yet been treated and stabilised. It follows that it cannot attract an impairment rating. In any event, according to Dr Ismail, it has little effect on her.
Migraine/headaches
Dr Ismail listed migraine/headaches as a condition that is managed. Mrs Hallak said she takes only Panadeine Forte for her headaches.
Her psychologist, Medhat Metry, includes “severe headaches” as part of her depression. However, Mrs Hallak has not seen a specialist who can properly asses her condition. Mrs Hallak’s condition has not yet been treated and stabilised. It follows that it cannot attract an impairment rating.
Gastric Reflux
Mrs Hallak said she suffers from gastric reflux but now is able to control it with medication. It has no functional effect on her and so it cannot attract an impairment rating.
Abdominal pain, asthma and dental condition
Mrs Hallak’s general practitioner lists abdominal pain and asthma as conditions. However there is no medical information provided about treatment and Dr Ismail said in his treating doctor’s report that the conditions are well managed and cause minimal impact. Mrs Hallak told the ARO that she takes ventolin but still suffers from shortness of breath. She has not seen a specialist in relation to her asthma. Mrs Hallak said her abdominal pain was investigated but nothing was found. Even if Mrs Hallak’s abdominal pain and asthma had more than minimal functional effect on her, I could not rate these conditions because I cannot be satisfied that they have are fully treated and stabilised.
Mrs Hallak had dental treatment in 2011. According to a treatment plan by her dentist Dr El Saedy in June 2010, Mrs Hallak had numerous missing teeth and required replacements with denture casts and crowns. Mrs Hallak said she cannot eat chewy things and has aches from the dental surgery. No other information was available.
I cannot allocate an impairment rating on the basis of this information. The condition of Mrs Hallak’s teeth appears to have been treated. There is no medical assessment of the residual discomfort she now experiences. It remains undiagnosed and cannot be assessed.
DECISION
On the basis of the above conclusions, Mrs Hallak 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.
The Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of .....[Sgd]...................................................................
Associate
Dated 11 October 2012
Date of hearing 18 September 2012 Applicant In person Solicitors for the Respondent Ms J Maclean, Centrelink Program Litigation and Review Branch
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