Teymouri and Secretary, Department of Social Services (Social services second review)

[2020] AATA 784

Teymouri and Secretary, Department of Social Services (Social services second review) [2020] AATA 784 (20 March 2020)

Division:GENERAL DIVISION

File Number(s):               2019/3844

Re:Vida Teymouri  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date of oral decision:           20 March 2020

Date of written reason:          9 April 2020

Place:Adelaide

The Tribunal affirms the decision under review to reject the claim for Disability Support Pension

..............................[sgnd].............................

I THOMPSON
(Member)

Catchwords

SOCIAL SECURITY – Disability Support Pension – eligibility – whether conditions fully diagnosed, treated and stabilised – where spinal condition aggravated and applicant undergoing medical assessment and treatment during assessment period – where treatment for mental health condition commenced following assessment period – decision  under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)

REASONS FOR DECISION

Member I Thompson

9 April 2020

1. On 20 March 2020, the Tribunal delivered oral reasons for affirming the decision under review. After the giving of the oral reasons, the applicant, Vida Teymouri pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to provide a statement in writing of the reasons of the Tribunal for its decision.

2. The written reasons are set out below.

   INTRODUCTION

3. The applicant, Vida Teymouri, lodged a claim for disability support pension (DSP) on 25 October 2018. Centrelink rejected the claim in the first instance and Ms Teymouri requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Ms Teymouri requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Ms Teymouri applied to the General Division of the Tribunal for a second review.

4. The hearing took place on 6 March 2020. Ms Teymouri attended the hearing and was self‑represented. Ms Odgers represented the respondent, the Secretary, Department of Social Services.

5. Ms Teymouri gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

6. Ms Teymouri was 63 years old when she lodged the DSP claim. She was suffering from lumbar disc disease and depression.

7. Correspondence from Centrelink (25 January 2019, T3) indicates that Ms Teymouri was in receipt of the DSP from 2003. In 2018 she travelled overseas, departing in April and returning in September 2018. In her absence, the DSP was suspended and subsequently cancelled. After her return to Australia she applied for and, in effect, reclaimed the DSP.

   LEGISLATION AND ISSUES

8. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act).

9. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The assessment period in this case is 25 October 2018 to 23 January 2019.

10. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

    (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

    (b)They have actively participated in a “program of support”.

11. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

12. Accordingly, Ms Teymouri will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the impairment tables and, finally, that she has a continuing inability to work.

13. Ms Teymouri’s claim for DSP listed her disabilities, illnesses and injuries as follows:[1]

    ‘I have been on DSP for 15 years, because I went to visit my children and grandchildren and my ill mother who has Alzheimer’s and stay there more than three months Centrelink has stopped my disability and told me to reapply, I am not getting younger nor has my health gotten any better in fact worse’

    [1]  T10/131.

14. The Secretary accepted that Ms Teymouri suffers from an impairment and therefore satisfied s 94(1)(a) of the Act.

15. The Secretary contended that the conditions of lumbar disc disease and depression were not fully diagnosed treated and stabilised in the qualification period. And therefore any impairments arising from either of those conditions could not be assigned an impairment rating.

16. Accordingly the Secretary contended that Ms Teymouri did not have a continuing inability to work and was not qualified for the DSP during the assessment period.

17. The main issue for determination is whether Ms Teymouri’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether she had a continuing inability to work.

18. It is important to note that the Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms will and limitations. The impairment tables, including the rules for applying them, are contained in the T documents at T5

19. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

    EVIDENCE OF MS TEYMOURI

20. Ms Teymouri gave evidence on oath which was consistent and clear. She did not attempt to exaggerate her symptoms and difficulties. She has her daily routines which include community service as a volunteer assistant with the Salvation Army at their shops, two mornings per week, and fostering dogs for the RSPCA. She meets with friends for a weekly book club. She cooks meals for herself and attends to the cleaning of her home and other housework, sometimes getting help when needed. She drives a car to and from suburbs nearby.

21. She has a long term problem with her back and it was aggravated in 2018 when she was overseas, also at that time she had trouble with her knee. The aggravation worsened the back condition and it is still worse. She has tried physiotherapy in the past without success and various medications as well, but mostly they don't help. Panadeine Forte is the best help that she can get.

22. Following her DSP claim, she was interviewed by an assessor and a Job Capacity Assessment Report was prepared during the qualification period on 17 December 2018. That report included the following description of her daily activities:[2]

    Ms. Teymouri reports that she lives in stable accommodation with her ex-husband and is generally able to rise from bed and attend to all elements of self-care, including all personal hygiene requirements. She informs that she is generally able to undertake a number of the household chores (prepare a meal, do the dishes, clean spills from the floor, clean the bathroom and toilet, wash clothes and hang out). Ms. Teymouri reports that she fills her days with cooking (every few days) and tidying the house. She reports that she does not have any hobbies, and does not belong to any interest groups or clubs. Ms. Teymouri reports that she is generally able to sit for 1 – 2 hours, stand for 05 minutes only, walk for 10 minutes, drive for 20 minutes, and lift on an occasional basis up to 2 – 3 kilograms. She reports that she last went overseas to the United States of America in August/September 2018, by herself, and that she stayed for 05 months…

    [2]  T11/149.

23. Aside from the assessor’s comment about sitting for 1 - 2 hours – in evidence Ms Teymouri said she needs to sit, adjust her posture, stand, and walk for a few minutes. her evidence to the Tribunal was broadly consistent with that description of her routines.  As she said in evidence – “I’m not 100% disabled, but I can’t work more than 8 hours.”

    Spinal function

24. Medical reports dating back to 2002 were included in the documents. Among those documents were reports of specialist medical investigations of Ms Teymouri’s condition between 2002 and 2006.

25. A radiology report in December 2002 concluded there was advanced disc degeneration and some foraminal narrowing at L5/S1.[3] Similarly a radiology report in January 2003 found disc protrusion at L5/S1 and moderate lower lumbar facet joint degenerative change.[4]

    [3] T14/161.

    [4] T14/164.

26. In a report dated 29 January 2003[5] a neurosurgeon in Perth, Dr Miles, wrote of the possibility of facet joint injections and possible referral to a neurosurgeon in Adelaide where Ms Teymouri was moving to live. Having arrived here, she consulted her new GP, Dr Hyam and he reported in March 2003 that he had arranged for outpatient appointments for further treatment.[6]

    [5] T14/166.

    [6] T14/168.

27. This included a referral to a neurosurgeon, Dr McDonald, who provided two reports in September and October 2003. When he first saw Ms Teymouri she was complaining of back pain, right leg pain and also ongoing pain in the neck and left arm. Dr McDonald reviewed the MRI scan of the lumbar spine and agreed with Dr Miles conclusions about the degenerate L5 – S1 disc.

28. Dr McDonald suspected that the back pain related to her facet joints and he recommended facet joint injections. He noted In October 2003 that she did not want to proceed with them. Dr MacDonald concluded that he did not have any further ideas to manage her pain[7] and a lot of her pain may be discogenic in origin.

    [7]  T14/212.

29. In February 2006, Dr Hill, a specialist in rheumatology at the Flinders Medical Centre, reported  that Ms Teymouri’s problems and the treatment for them come back to pain management and self-management.[8] He could find no serious arthritic problem that will result in disability.

    [8]  T14/215.

30. Her GP Dr Hyam reported in March 2009[9] the diagnosis of L5 – S1 disc degeneration and right L5 nerve root compression. He wrote that Ms Teymouri had seen a neurosurgeon and a rheumatologist, no surgical treatment had been carried out, physiotherapy was of no benefit and treatment at that time was by way of analgesics and that was the planned treatment for the future.

    [9]  T14/198.

    Recent medical evidence

31. The GP, Dr Hyam , wrote a report on 16 November 2018 which is during the qualification period in which he noted[10]

    …she has been on a disability support payment for many years. I understand that her benefit was stopped because she was out of the country for more than three months.

    Her disability was related to lumbar disc disease that began many years ago when she was in Perth. She had an MRI that confirmed the disc disease. She saw specialists at that time and was told there were no treatment options other than long-term analgesics. She has not seen any specialist regarding her back since she has been in Adelaide. Her condition was unchanged for many years.

    Recently she has had an aggravation of her condition and CT scanning has shown an exacerbation of her condition. She currently has severe pain in her left lower back and left leg. She is intolerant of all strong analgesics. She is on a waiting list to be seen at the neurosurgery clinic at FMC.

    Her condition is permanent. She has a current exacerbation. She is unfit to do any work.

    [10] T14/159.

32. In evidence, Ms Teymouri confirmed that the exacerbation occurred in 2018 when she was overseas in the USA. She consulted doctors while she was overseas. When she returned home she consulted Dr Hyam

33. The principle is now well-established in a number of decisions of the Tribunal and the Federal Court that medical reports that come into being after the qualification period are only relevant to the extent that they provide evidence as to the applicant’s condition during the qualification period.

34. In medical certificates in March 2019 Dr Hyam noted that planned treatment included an assessment in the neurosurgery clinic at the Flinders medical Centre. Unfortunately the clinic has a waiting list which is longer than 12 months.

35. A referral was also made to an occupational physician Dr Thoo. He wrote reports, which are after the qualification period. The reports are dated 14, February 2019, 26 February 2019, 8 July 2019 and 25 September 2019. Points from those reports include:  

    (a)Dr Thoo first saw Ms Teymouri on 14 February 2019 which is after the qualification period, then saw her again in late February, in July and in September 2019

    (b)in February 2019, it was noted that she is on a waiting list to see a neurosurgeon at the Flinders medical Centre. Dr Thoo suspected that she has a left L5 radiculopathy  due to degenerative changes and requires an MRI scan to evaluate this further and she would almost certainly need to have the scan done before seeing the neurosurgeon

    (c)in July 2019 Dr Thoo assessed her as suffering from a chronic pain and adjustment disorder with depressed mood and suggested that she continue to see her psychologist and perhaps start on an antidepressant to see if this would help with her pain. He considered that the most likely diagnosis was arthritis of the hip and cervical spine and if symptoms persist, it would be worth referring her for x-rays and getting an orthopaedic opinion

    (d)in September 2019, Dr Thoo noted that an appointment for an epidural steroid injection at Flinders Medical Centre had been postponed until sometime this year with

    (e)she was occasionally taking Panadol Osteo and Panadeine Forte to help her with pain and sleeping

    (f)in the past she has been unable to tolerate Endep and Lyrica or anti-inflammatory medications, Panadol osteo has failed to help, physiotherapy was not beneficial

    (g)her best long-term solution is to concentrate on an exercise program to improve her core and back muscles

    (h)she should have an enhanced health care plan for her to see an exercise physiologist

    (i)alternative therapy and acupuncture may help

    (j)trials of medication (norgesic) could be attempted

    (k)she is continuing to seek treatment from the spinal unit at Flinders medical Centre

    CONSIDERATION

36. The Tribunal is satisfied that the condition affecting the spinal function was fully diagnosed at the time of the DSP claim. Clearly it has been a long-term condition and problem for Ms Teymouri over many years.

37. However, at the time of the current DSP claim and in the qualification period, that is between 25 October 2018 to 23 January 2019, treatment options were being considered with a view to specialist, medical referrals. The medical reports have been summarised and they demonstrate clearly that further, treatment options were under consideration, in particular in the aftermath of Ms Teymouri's overseas trip and the aggravation to her back condition at that time.

38. The assessments would include, as it transpired, referral to an occupational physician (now completed) and to a neurosurgeon (still pending). The referral to an occupational physician included consultations and reviews that were not completed until September 2019, some 9 months after the qualification period.

39. These specialist, medical assessments, reviews and tests may serve as a precursor to further consideration of options for treatment. In this case the particular type of treatment or rehabilitation was neither planned nor in place during the DSP qualification period.

40. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.

41. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

42. In accordance with the criteria set out in the Rules for applying the Impairment tables , the Tribunal is satisfied Ms Teymouri’s spinal condition was fully diagnosed, but not fully treated and fully stabilised during the qualification period. An impairment rating cannot be given in relation to the spinal condition.

    MENTAL HEALTH FUNCTION

43. The Tribunal acknowledges that Ms Teymouri did not seek to rely on impairment to mental health function as a primary factor in her DSP claim. Nonetheless, there was some evidence, limited primarily to a brief report by a clinical psychologist, which must be mentioned.

44. In early 2019 or late 2018, Ms Teymouri consulted a clinical psychologist, Mr Upsdell, who provided a report dated 13 August 2019. The consultations commenced, it would seem, towards the end of the qualification period or, indeed, shortly thereafter. Mr Upsdell wrote that she is experiencing major depression, resulting from her physical health and also from aspects of her family circumstances. Mr Upsdell wrote that she is unable to take anti-depressants because of side effects and that the complexity of her circumstances limited the effectiveness of support through cognitive behavioural therapy.

45. Ms Teymouri told the Tribunal that she found the sessions with the psychologist were useful. She felt that she was able to raise and discuss the problems which she has. She completed only one set of sessions and is presently waiting for a further referral to return for more sessions.

46. It is clear that treatment for a mental health condition had commenced after the DSP claim and during or shortly after the qualification period. It comprised a number of sessions, subsequent to the qualification period, with one clinical psychologist and he reported that effectiveness of the intervention was limited.

47. The Tribunal is satisfied that a mental health condition was not fully diagnosed, treated and stabilised during the qualification period and no rating under the Impairment Tables can be assigned in respect of it.

    SUMMARY

48. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

49. The Tribunal finds that Ms Teymouri does not have impairment or a combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period. This means that Ms Teymouri does not meet the requirements of s 94(1)(b) of the Act and is not qualified in the assessment period for the DSP.

50. In those circumstances it is not necessary to consider whether or not during the assessment period Ms Teymouri had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

51. As Ms Teymouri was not qualified for DSP at the time she lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

52. Ms Teymouri may be a little perplexed by the decision, given that she was in receipt of the DSP at an earlier time. However, that entitlement had come to an end. A new claim for DSP was lodged and it must be assessed in accordance with the legislation that applies at that time, and not in relation to law that applied in 2003 when Ms Teymouri was first granted the DSP.

1. As Centrelink pointed out in correspondence to Ms Teymouri in January 2019:

   your disability support pension was correctly suspended and then cancelled due to your overseas departure of more than 28 days. This required you to reclaim disability support pension and to test your eligibility under the impairment tables. The qualification criteria have changed from when you originally qualified for disability support pension.

   DECISION

2. The Tribunal affirms the decision under review to reject the claim for DSP.  

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

..........[sgnd]....................

Administrative Assistant

Dated 9 April 2020    

Date(s) of hearing:	6 March 2020
Applicant’s representatives:	In person
Respondent’s representatives:	Ms L Odgers, Services Australia