Shams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 335
•12 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 335
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2008/4603
GENERAL ADMINISTRATIVE DIVISION )
ReParvin SHAMS
Applicant
AndSecretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date12 May 2009
PlaceSydney
Decision The decision under review is set aside and Mrs Shams is entitled to the
disability support pension with effect from 7 May 2008.
.
....................[sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – the decision under review is set aside
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Social Security Act 1991 – section 94, Schedule 1B
Social Security (Administration) Act 1999 – Schedule 2
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Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358
Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502
Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
…
REASONS FOR DECISION
12 May 2009
Ms N Isenberg, Senior Member
decision under review
1. Mrs Shams’ claim for the disability support pension (DSP), made on 7 May 2008, was rejected by Centrelink. While Centrelink, on behalf of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs agreed that she suffers from a lower back condition, hyperthyroidism and a stress-related psychiatric condition, Centrelink did not agree that Mrs Shams’ various impairments attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (the Act).
2. Centrelink agreed though that Mrs Shams does meet the other requirement of eligibility for disability support pension, that is, a continuing inability to work.
background
3. Mrs Shams was granted the DSP in 2004 on the basis of her back condition and an anxiety condition, but it was cancelled soon after because of her husband’s earnings.
4. When Mrs Shams separated from her husband she renewed her claim, although the eligibility test has changed since Mrs Shams’ previous application.
5. In support of her claim, Mrs Shams submitted a treating doctor’s report by orthopaedic surgeon, Clinical Associate Professor Michael Ryan, dated 29 April 2007. Professor Ryan indicated that Mrs Shams suffered from L4/5 spinal canal stenosis and hyperthyroidism. Later, on 19 May 2008, Mrs Shams’ GP Dr Ebrahimi completed a medical certificate diagnosing post traumatic stress syndrome as well.
issue before the tribunal
6. Does Mrs Shams have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”)?
consideration period for entitlement to dsp
7. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mrs Shams was entitled to the DSP by 6 August 2008.
evidence
8. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered:
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R1 Letter dated 12 August 2008 from the Emergency Department at Royal North Shore Hospital to Dr Ebrahimi;
R2Jobseeker Medical Information report completed by Dr Michael D Ryan, dated 23 September 2008, marked Annexure A;
R3Jobseeker Medical Information report completed by Dr Ali Sahebi (Ph.D), dated 26 September 2008, marked Annexure B;
R4Jobseeker Medical Information report completed by Dr Minoo Ebrahimi, dated 1 October 2008, marked Annexure C;
R5Medical Report of Dr Michael D. Ryan, dated 8 October 2008, marked Annexure D;
R6VRS Exit Notification Letter from Roland McGready dated 22 October 2008, marked Annexure E;
R7Psychological Assessment completed by Dr Ali Sahebi (Ph.D) dated 27 January 2009, marked Annexure F.
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consideration of the evidence and findings
9. In addition to the three conditions referred to above Mrs Shams gave evidence that she also suffers kidney problems and cysts in her breasts. There was, however, little medical evidence about these conditions and the impact, if any, on Mrs Shams’ ability to work.
lower back disorder
10. Centrelink accepted that Mrs Shams has a permanent lower back condition. Centrelink assessed Mrs Shams’ back condition at 10 points pursuant to Table 5.2. The relevant part of that Table provides:
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TABLE 5.2Thoraco—lumbar‑sacral spine
RatingCriteria
TEN Loss of one‑quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three‑quarters of normal range of movement.
…
11. Mrs Shams told me that her back pain limits her activities and that she has difficulty sitting, walking and standing for prolonged periods. She did say that she can sit for an hour or so before having to walk around. She felt she was able to do a combination of walking, sitting and standing for about 1½ hours but the rest of the day would be spent lying down. She said she had a disabled parking permit and had walked to the Tribunal from the other side of Hyde Park – a walk of about 10 minutes duration. At her JCA interview in May 2008, Mrs Sham reported that she could walk for approximately 20 minutes, and sit for an hour before her pain interferes. In her evidence she said she could drive a car for an hour, and this is consistent with what she had told the ARO. She sat at the Tribunal for about an hour or so before standing for a while. She said she could sit for 2 hours but would be affected later.
12. She takes panadol tablets 2-3 times in a 24 hour period. She previously took voltaren but it upset her stomach. She had been to a chiropractor for about a year in 2006-7 but ultimately that did not assist, and she abandoned that on the advice of her doctor.
13. Professor Ryan has treated Mrs Shams since 2002. In 2004 he recommended surgery for her back but noted the associated risks. In 2007, when Professor Ryan saw her she was no better. At that time she had a full range of back movement but had claudicant leg pain. In June 2008 Professor Ryan described her condition as ‘moderate’ and no longer recommended surgery, however he did consider her to be unable to work because of claudicant leg pain. On Professor Ryan’s advice she does stomach strengthening exercise daily. Mrs Shams said that sometimes though, the pain is so bad she does contemplate the surgery.
14. While I accept that Mrs Shams’ condition is permanent, the evidence before best fits the criteria for a rating of 10 impairment points, the criteria for an impairment rating of 20 were not met.
hypothyroidism
15. Centrelink accepted that Mrs Shams’ hypothyroidism is a permanent medical condition. It contended that an impairment rating of nil should be assigned using Table 19. The relevant parts of the Table are as follows:
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TABLE 19. ENDOCRINE DISORDERS
Rating Criteria
NIL Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget's disease, Osteoporosis, Addison's Disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.
TEN Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget's disease or Osteoporosis which is incompletely controlled or treated eg. symptomatic Paget's disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.
…
16. Mrs Shams said that the condition had caused her to put on a lot of weight and also had caused some hair loss, but there was no medical evidence to that effect. She regularly ‘checks’ her goitre and must go 6 monthly for blood tests and an ultrasound. This might cause her some stress.
17. In his report dated 29 April 2007, Professor Ryan noted that Mrs Shams’ hyperthyroidism was not likely to significantly improve but had “nil” impact on her ability to function. In the JCA Report dated 22 May 2008 Mrs Shams’ hyperthyroidism was said to be “optimally managed with medication, causing no functional impairment”.
18. Mrs Shams gave no evidence of any impact on her ability to function because of the condition. Her GP of several years, Dr Ebrahimi made little mention of the condition. It is therefore inappropriate to assign a higher impairment rating than nil for this condition.
stress/anxiety/depression/post traumatic stress disorder
19. There was much evidence directed at precisely defining Mrs Shams’ condition. I took the view however that the precise ‘label’ of her condition was immaterial, once the full extent of her symptoms was canvassed: see Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502. Centrelink accepted that Mrs Shams suffered from a psychiatric condition during the relevant period but contended that the condition cannot be considered to have been permanent as it was not fully treated and stabilised during that time and, as such, it would be inappropriate to assign an impairment rating with respect to this condition.
20. Mrs Shams gave evidence that she was very stressed from very soon after her arrival in Australia in 1995; she spoke no English and was without family support. She started having ‘panic attacks’ when she was having difficulty managing the children. Her husband was unsupportive. For about a year she had medication and was under the care of a psychiatrist. After she started to experience back pain in the late 1990s her relationship with her husband deteriorated.
21. She went to classes in yoga, meditation, relaxation and therapeutic walking to try to deal with her stress.
22. She asked for a referral to Dr Sahebi, a clinical psychologist she had heard on Iranian community radio, and she commenced seeing him about 5 years ago. Dr Sahebi wrote in his report of 16 June 2008 that she had been referred to him on 3 September 2005. In mid 2008, ie during the relevant period, she said she was seeing him every week or fortnight because of the high level of stress associated with the separation from her husband. In his report Dr Sahebi noted that in the three years he had been seeing Mrs Shams, she only visited on “an irregular basis”. Dr Sahebi recommended that Mrs Shams complete 12 sessions and continue maintenance therapy once every 2-3 months. Currently she sees him about once every 3 weeks. In his report of 27 January 2009 Dr Sahebi wrote that she sees him monthly or sometimes fortnightly.
23. Mrs Shams said that at first Dr Sahebi thought her problem was because of her deteriorating marriage. She and her husband had relationship counselling, without success. He referred her to a course for women contemplating separation.
24. In the report of 16 June 2008 Dr Sahebi noted Mrs Shams’ mood swings, chronic anxiety symptoms and low self esteem but considered that Mrs Shams’ “main issue is relationship problem”. Dr Sahebi opined that Mrs Shams’ levels of stress and anxiety affect her levels of pain and that “Whenever she has an argument with her husband or decides to leave the marriage, the level of pain increases and disables her”.
25. Mrs Shams said that Dr Sahebi trains her in breathing techniques, Cognitive Behavioural Therapy (CBT) and is someone for her to talk to about her problems. She said that sometimes she feels well, and sometimes she does not. Sometimes the CBT helps, and sometimes, not.
26. About a year ago she started to put on a lot of weight and sought a referral to Dr Russell, who she found on the internet, and who has rooms close to Mrs Shams’ home. In the letter of referral the GP, Dr Jeyaratnam referred to Mrs Shams’ “‘long history’ of anxiety with panic attacks, depression and significant issues with eating”. She said she has seen Dr Russell 3 or 4 times and the doctor’s advice was to continue seeing Dr Sahebi because of his long experience with her and because he could speak to her in Farsi. Mrs Shams could not recall when she first saw Dr Russell, but, it appears it was after the relevant period because she had told the SSAT that she had not yet seen a psychiatrist at the time of the appearance before that Tribunal. Also, in his report dated 8 October 2008, Professor Ryan noted that Mrs Shams “is yet to be seen or assessed by a psychiatrist”.
27. In a medical certificate dated 19 May 2008 Dr Ebrahimi, who is a GP, diagnosed Mrs Shams with Post Traumatic Stress Syndrome but regarded the condition as temporary. Nonetheless though, Mrs Shams said that Dr Ebrahimi has prescribed some medication but she has not had the script filled. She would prefer to try to use Dr Sahebi’s techniques because she is concerned about side effects of medication. In this regard she noted that she had been hospitalised because of stomach problems – the report was available – and that she had had to cease voltaren pain medication because of the effects on her stomach. She said too that even if medication made her feel better it would only be temporary and her feelings would return when she stopped.
28. In a medical certificate dated 1 October 2008, Dr Ebrahimi diagnosed Mrs Shams with anxiety disorder and depression (Exhibit R4). Dr Ebrahimi noted, however, that the condition was not being optimally treated.
29. Mrs Shams said that currently a major source of stress is her financial situation: she receives newstart allowance, but to escape her husband has purchased a studio apartment with a loan from her mother and a mortgage. Her adult daughters are not in a position to financially assist. She continues to be stressed by issues associated with her (now ex) husband and children.
30. The JCA assessor, Ms Scaltrito, recorded in her report of 22 May 2008 that Mrs Shams’ depression as temporary, noting that Mrs Shams’ “current marriage breakdown is causing her to experience depressive symptoms and anxiety attacks”. In another JCA Report dated 10 October 2008, Ms Averkiou, a Registered Psychologist, recorded Mrs Shams’ anxiety and depression as permanent but not fully diagnosed, treated and stabilised. Ms Averkiou cited Dr Sahebi as having indicated that “with continued psychotherapy [the] client’s condition is likely to improve significantly in the next 24 months”.
31. In his Jobseeker medical information form dated 26 September 2008 Dr Sahebi wrote that Mrs Shams would benefit from CBT to manage her mood and be emotionally fit. He considered her unable to work more than 7 hours per week.
Is Mrs Shams’ psychiatric problem permanent?
32. An impairment rating can be only assigned to permanent medical conditions, that is , those which have been fully diagnosed, treated and stabilised.
33. In ReCoatesand Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at [22]):
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The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
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34. The test for whether a condition is treated and stabilised depends primarily on whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. “Likely” in this context means a “reliable expectation” of significant functional improvement (see Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507 at 513 to 515). In this regard I place little weight on the entry in Dr Sahebi’s Jobseeker medical information form dated 26 September 2008 that, if read in question and answer from, would be that his view was that Mrs Shams is likely to improve over the next 24 months. He accompanied this by noting that she is receiving psychotherapy. His entry, to me, is the treating doctor/psychologist’s hope that, under his care, his patient will improve. By the time of his report she had already been in his care for nearly 3 years. His recent report of 27 January 2009 shows no improvement. She has been having formal emotional support of one form or another, on her evidence, for at least 10 years.
35. Mrs Shams remains in psychological difficulties, and is seeking even more assistance, notwithstanding that she has now extricated herself from her marriage, which had, by all accounts, been a major factor in her stress for many years. She has sought further psychiatric intervention, which, of itself, tends to suggest the ongoing nature of her problem beyond her marriage breakup.
36. I note that she has not filled the script for medication for her stress. Previous decisions of the Tribunal have held that a claimant’s failure to follow treatment recommendations made by treating medical advisers can preclude a finding that their condition has been "fully treated": eg Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication). I accept though that, having regard to her sensitivities due to her thyroid problem and her history of stomach problems with some medication, that she is legitimately concerned about side effects. I accept too that she doubts the long term benefits of such medication: Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358.
37. I therefore find that Mrs Shams’ psychiatric condition, however described, is fully treated and stabilised. I find that the condition is permanent, and should be assigned a rating of 10 impairment points under Table 6, in meeting the descriptor:
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TABLE 6. PSYCHIATRIC IMPAIRMENT
RatingCriteria
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
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combined impairment
38. Mrs Shams’ overall impairment rating is therefore 20 points.
continuing inability to work
39. I note that Centrelink has conceded that Mrs Shams has a continuing inability to work because of her impairment, and I accept that Mrs Shams meets the criteria set out in section 94(2) of the Act.
conclusion
40. Mrs Shams has an impairment rated at 20 points and because of that impairment has a continuing inability to undertake any work for at least 15 hours per week in the next two years.
decision
41. The decision under review is set aside and Mrs Shams is entitled to the disability support pension with effect from 7 May 2008.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ...........[sgd].............
AssociateDate of Hearing: 4 May 2009
Date of Decision: 12 May 2009
Representative for the Applicant: Self-represented
Representative for the Respondent: Mr D Buchanan
Centrelink Legal Services Branch
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