Sanna Sleiman and Secretary, Department of Social Services
[2014] AATA 286
•12 May 2014
[2014] AATA 286
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2892
Re
Sanna Sleiman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 12 May 2014 Place Sydney The decision under review is affirmed.
.........................[SGD]...............................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – physical impairment – permanent conditions – whether the Applicant had an impairment rating of 20 points or more under the impairment tables –– decision under review affirmed
LEGISLATION
Social Security Act 1991; ss 26, 94
Social Security (Administration) Act 1999; ss 80, 118
CASES
Re Bobera and Respondent, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Choroszynski and Respondent, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 830
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
12 May 2014
On 1 June 2012, the Applicant, Saana Seiman, lodged a claim for Disability Support Pension (‘DSP’). Her application was refused. That decision was affirmed on internal review and upon review by the Social Security Appeals Tribunal (‘SSAT’). The Applicant seeks review of that decision
ISSUES
The issue before the Tribunal is whether the Applicant was qualified or became qualified to receive DSP within the period I June 2102 (the date of claim) to 31 August 2012 (13 weeks of that date) (‘the relevant period’). This depends on whether the Applicant satisfied s 94 of the Social Security Act 1991, in particular:
(a)Whether some or all of the Applicant’s impairments were permanent; and, if so,
(b)Whether her impairments attracted an impairment rating of at least 20 points; and, if so,
(c)Whether she had a continuing inability to work (‘CITW’).
LEGISLATION AND POLICY
The legislation relevant to this decision is contained in the Social Security Act 1991 (‘the Act’) and the Social Security (Administration) Act 1999 (‘the Administration Act’). Policy advice contained in the Guide to Social Security Law (‘the Guide’) is also relevant.
Disability Support Pension Criteria
The entitlement to the DSP is conferred by s 94 of the Act, which relevantly provides:
94 Qualification for disability support pension
(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…
Impairment Tables
The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) is made under s 26(1) of the Act and took effect from 1 January 2012. The Determination contains the Impairment Tables (‘the Tables’) and the rules for their application. The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. “Impairment” is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination.
Section 6 of the Determination sets out rules for assessing the level of functional capacity and assigning impairment ratings, including an assessment of the functional impact of pain.
Subsection 6(1) clarifies that a person’s impairment must be assessed taking into account the person’s abilities and not what they choose to do or not to do or what they are accustomed to having another person do for them in spite of their potential capability to do those things.
Subsection 6(3) is a rule stating that an impairment rating can only be assigned to an impairment, if the person’s condition causing that impairment is permanent (in line with subsection 6(4) of the Determination) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for longer than two years.
Therefore, if the Applicant’s condition causing impairment is not “permanent”, the impairment resulting from this condition cannot be assigned an impairment rating. This rule also means that even if the Applicant’s condition causing the relevant impairment is “permanent” but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Tables.
Subsection 6(4) defines the meaning of “permanent” for the purposes of subsection 6(3). A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised and the condition, is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5), in determining whether a condition is fully diagnosed and fully treated, it is to be considered: 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.
Subsection 6(6) defines “fully stabilised” for the purposes of the Determination. A condition is fully stabilised when a person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
Section 8 of the Determination sets out information that is not to be taken into account. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Section 9 of the Determination is a rule which clarifies how to assess a person where they usually use certain aids, equipment or “assistive technology” to assist with their impairment. The rule states that a person’s functional abilities are to be assessed when using or wearing any aids, equipment or “assistive technology” that the person has (in their possession) and usually uses.
CONSIDERATION
Does the Applicant suffer a physical, intellectual or psychiatric impairment?
The Respondent accepted that during the relevant period the Applicant suffered from a number of conditions including neck and back pain, asthma and depression/anxiety. The Applicant therefore, satisfies s 94(1)(a) of the Act.
Do those conditions attract a rating of 20 points or more under the Tables?
At the hearing the Applicant said her concern was that no impairment points had been allocated in respect of her psychological condition. She said she had no issue with the impairment ratings allocated by the SSAT in respect of her other conditions. The Respondent also accepted the impairment ratings allocated by the SSAT in respect of those conditions.
Back and neck pain
I reviewed the evidence in relation to the Applicant’s long standing back and neck pain which is a due to disc protrusion: per Dr Maniam, orthopaedic surgeon, at T35. The Applicant’s GP, Dr Abdalla, also noted a long history of scans and physiotherapy: at T24. There was no evidence to indicate that further treatment is likely to lead to a significant functional improvement.
In his medical report of 31 May 2012, Dr Abdalla described the Applicant’s back and neck pain as affecting her “ability to sit/stand/more reduced”: at T24. In a further medical report dated 26 November 2012, Dr Abdalla made similar remarks about the impact of this condition on the Applicant’s ability to work, noting “low endurance, difficulty mobilising walking/bending/sitting”: at T41.
On 13 July 2012, Dr Maniam observed that the Applicant’s thoracic spine was tender. There were no abnormalities in the lumbar spine although movement in all directions was restricted. Straight leg raising was satisfactory and the neurological signs were intact.
On 13 June 2012, a Job Capacity Assessment (‘JCA’) was undertaken in respect of the Applicant: at T27. The Applicant reported having difficulty squatting, standing or walking for more than 10 minutes and climbing stairs. She stated that she drove locally and was able to bring home light groceries. She reported being sometimes able to do the vacuuming by sitting on the floor. She was observed by the assessor to be seated for 45 minutes and then have no difficulties getting up out of a chair. On 18 January 2013, a subsequent JCA was performed in which similar observations were made regarding the Applicant’s condition : at T49:
Based on the evidence above I consider that during the relevant period the Applicant’s back and neck condition only had a mild impact on her ability to function. While back and neck pain made some activities uncomfortable for the Applicant and restricted her mobility to a degree, the evidence also suggests that the Applicant was still able to perform most household chores (including some vacuuming), drive, sit and stand for extended periods.
Table 4 assigns a 5 point rating for persons who meet the following descriptor:
The person has some difficulty in:
(a)activities overhead height (e.g. activities requiring the person to look upward);
(b) bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
I have reviewed the descriptors for a 10 point rating and find such a rating is not appropriate. I therefore am satisfied that the impairment arising from this condition is most appropriately considered as attracting a rating of 5 impairment points under Table 4.
Asthma
In his medical report dated 31 May 2012, Dr Abdalla listed the Applicant’s asthma as causing minimal or limited impact on her ability to function. The symptoms reported by the Applicant appear to only impact on her occasionally, particularly when she performs physically demanding activities. The Applicant’s asthma does not appear to impact her ability to perform most tasks day to day. She appears able to perform most work-related tasks, aside from those that involve heavy manual labour: at T24.
At the JCA of 13 June 2012, the Applicant reported experiencing shortness of breath when performing physically demanding activities and in the presence of strong smells. Most of her physical tasks are limited by her neck and back pain but she was able to do vacuuming with difficulty and carry light groceries but she was unable to mow the lawn: at T27.
In a subsequent medical report dated 26 November 2012, Dr Abdalla did not mention the Applicant’s asthma at all.
The evidence does not suggest that the Applicant’s asthma impacts on her ability to perform day to day activities. Therefore, a rating of 10 points under Table 1 is not warranted. I consider that a rating of 5 points under Table 1 is appropriate, based on the symptoms reported by the Applicant.
Digestive system issues - bloating, burping and pain
Dr Borody, gastroenterologist, provided a report dated 19 January 2012, in which he detailed the Applicant’s issues with her digestive system: at T19. Dr Borody conducted several tests and recommended a combination of drugs and variations to diet, although he provided no actual diagnosis of the Applicant’s condition.
The Applicant did not refer to any digestive issues in her application for DSP, nor did Dr Abdalla in his medical report that was provided with the application.
There is insufficient evidence for me to find that this condition is fully diagnosed, treated and stabilised such that it may be assigned a rating under the Tables. In any event, it appears the condition has minimal impact on the Applicant and a rating of zero points would be warranted if the condition were to be rated.
Ovarian and kidney cysts
In his medical report of 31 May 2012, Dr Abdalla reported that the Applicant suffered from kidney and ovarian cysts. Dr Abdalla noted that these conditions caused some pain, but that they caused minimal or limited impact on the Applicant’s ability to function: at T24. Dr Morris noted in an ultrasound report that there appeared to be lesion on the right kidney, consistent with a “benign angiomyolipoma” (a benign tumour): at T11.
The Applicant gave evidence that she is shortly to undergo an operation, apparently for a hysterectomy.
I do not consider that the condition can be said, at the relevant period, to have been fully treated and stabilised: Re Bobera and Respondent, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. As such, no rating can be assigned to these conditions.
Arthritis in shoulder and wrists
The Applicant recorded “arthritis” in her application for DSP, but did not specify to which area of her body she referred: at T23. A CT scan report noted evidence of arthritic change in the Applicant’s shoulder and right wrist: at T16.
There is insufficient evidence to say whether the Applicant’s arthritis is fully diagnosed, treated and stabilised. Even if it were able to be given a rating, the functional impact of this condition is likely to have been factored into the impairment associated with the Applicant’s “back and neck pain”. There is no evidence to suggest the Applicant had any functional impairment specific to her wrist during the relevant period. As such, no further impairment rating is assigned for this condition.
Other conditions
There is some evidence to suggest that the Applicant may suffer from hepatic steatosis (fatty liver) (T11), lumps in her breast (T12) and thyroiditis (T10). None of these conditions were mentioned in the Applicant’s application for DSP or by Dr Abdalla in his medical reports.
There is insufficient information to determine whether these conditions are fully diagnosed, treated and stabilised or whether they have any functional impact on the Applicant. No rating is assigned for these conditions.
Psychiatric condition
The Applicant’s attention was invited to Dr Abdalla’s report of 31 May 2012 which she had provided in support of her application for DSP, where the doctor had noted that her “depression and anxiety” was the condition most affecting her ability to work. The Applicant agreed that this was the case.
The Applicant gave evidence that she had first sought psychiatric support in 2007. She said this was because she was involved in a motor vehicle accident and she and her children were taken to separate hospitals. She said that her mother had died before the motor vehicle accident, although this was in 2002 or 2004. She said she started having nightmares and was unable to concentrate or remember things. She said her family doctor, Dr Abdalla, referred her to Dr Karima Attai-Soliman (‘Dr Karima’) because of her poor mental health and the nightmares. She said Dr Karima gave her some medication to help her sleep. She saw her approximately every 2 weeks and sometimes once a month until 2009-10. She said that Dr Karima told her that her condition was due to “stress” and her “problems”. She said that at that time the children were her sole responsibility, as she had separated and then divorced, although this was not until 2009, and after she said she first started needing psychiatric intervention. The children’s father had substance abuse problems and there was an Apprehended Violence Order made against him on her behalf. Nonetheless, the Applicant was the carer for her ex-husband and received carer payment until just before her application for DSP.
The Applicant said she thought that at about the same time or in 2009 she was referred to Dr Medhat Metry. She continued seeing him after she stopped seeing Dr Karima. He would talk to her but prescribed no medication. She ceased seeing him in 2013 when “Centrelink said he was not good for [her]”.
From the beginning of 2013 until the end of that year, she consulted Dr Allam, psychiatrist, fortnightly. He gave her medication to “calm her down and sleep”, which she said, was the same medication Dr Karima had prescribed. He would talk to her about her life and what was happening to her and enquire about her sleep. He has now referred her onto another doctor with whom she has an appointment in June.
When asked to describe how her psychiatric condition (as distinct from other conditions) impacted on her ability to work, the Applicant said that sometimes she “can’t do anything”, and her body, bones and arms ache and she is unable to walk. She feels tired because her body is bruised. She said she could not work because she “doesn’t feel good”. Sometimes she sleeps the whole day. She might get dizzy and fall over. She takes iron tablets and her GP has prescribed Endone. Her current medication is Nurofen and a hormone treatment for her current gynecological problems.
Functional impairment caused by a mental health condition is assessed under Table 5 of the impairment Tables. Part of the introduction to Table 5 states as follows:
The diagnosis of a condition [to be assessed under Table 5], must have been made by an appropriately qualified medical practitioner, with evidence from a clinical psychologist (if the diagnosis has not been obtained from a psychiatrist).
The requirement in Table 5 for a diagnosis to be verified by a psychiatrist or clinical psychologist is a mandatory requirement. In the absence of evidence from a psychiatrist or clinical psychologist confirming the diagnosis of a mental health condition, a rating cannot be assigned under Table 5.
On 31 May 2012, Dr Abdalla, the Applicant’s GP, referred to the Applicant as suffering from “depression and anxiety”: at T24. As there was no confirmatory evidence from a clinical psychologist, or another diagnosis from a psychiatrist, an impairment rating is not able to be given.
On 17 September 2012, which is outside the relevant period, Dr Karima provided a diagnosis of “chronic depression”: at T36. However, Dr Karima is not endorsed by the Australian Health Practitioners Regulation Agency (AHPRA) as a specialist psychiatrist; neither does she hold herself out to be: T67. In any event, this diagnosis was not made until after the relevant period. As such, it cannot be relied upon for the purposes of assigning a rating under Table 5.
On 28 November 2012, the Applicant saw Mr Metry, who is a psychologist: T42. In his report, Mr Metry states that “It appears that Ms Sleiman is suffering from Posttraumatic Stress Disorder and depression”, and he was treating the Applicant with cognitive behavioural therapy. However, Mr Metry is not endorsed as a clinical psychologist: at T68. Therefore, his evidence cannot be relied upon to support Dr Abdalla's diagnosis in order to assign a rating under Table 5.
On 8 June 2013, for the first time the Applicant consulted a psychiatrist, Dr Allam, who diagnosed the Applicant with “adjustment disorder with anxious mood”: at T63. While the respondent submitted that Dr Allam’s diagnosis of “adjustment disorder” is the first time such a diagnosis has been made in respect of the Applicant, I consider that the diagnostic label of the Applicant’s condition was evolving: Re Choroszynski and Respondent, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 830. However, Dr Allam’s diagnosis was made more than a year after the date of claim. Further, it does not make reference to the Applicant’s conditions or impairments during the relevant period. Therefore Dr Allam’s diagnosis cannot be relied upon to support the Applicant’s present application.
Even if Dr Allam’s diagnosis could be relied upon, the evidence does not suggest that the Applicant has been fully treated during the relevant period. Appropriate treatment for this condition, including at the advice of the psychiatrist, had not been considered or implemented during the relevant period. In addition, Dr Abdalla reported that the Applicant was obtaining ongoing cognitive behaviour therapy with Mr Metry: see T24 and also Mr Metry’s report at T42. It appears that treatment for the Applicant’s condition was ongoing during the relevant period. As such, the Applicants condition cannot be considered fully treated and stabilised.
I find that the Applicant’s psychiatric condition was not diagnosed by a psychiatrist, or by a medical practitioner with evidence from a clinical psychologist, during the relevant period. Further, the Applicant’s psychiatric condition was not fully treated and stabilised during the relevant period: Re Bobera and Respondent, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. Therefore, an impairment rating cannot be assigned for this condition.
Total impairment rating
The Applicant therefore has a total rating of 10 points under the Impairment Tables. The Applicant therefore does not satisfy s 94(1)(b) of the Act. Having come to that view, it was unnecessary for me to consider if the Applicant had, during the relevant period, a CITW.
DECISION
The decision under review is therefore affirmed.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ............................[SGD]............................................
Associate
Dated 12 May 2014
Date(s) of hearing 30 April 2014 Applicant In person Solicitors for the Respondent Dept. Human Services Legal Services
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