Vivyan Iskandar and Secretary, Department of Social Services
[2013] AATA 748
[2013] AATA 748
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3318
Re
Vivyan Iskandar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Dean Letcher QC
Date 18 October 2013 Place Sydney The decision under review is affirmed.
.......................[sgd].................................................
Senior Member Dean Letcher QC
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – Pensions, benefits and allowances – physical and psychiatric impairment - whether condition “permanent” - whether condition fully diagnosed, treated and stabilised at relevant time - Impairment Tables - impairment rating less than 20 points - decision under review affirmed.
LEGISLATION
Social Security Act 1991; s 94, Sch 1B
Social Security (Administration) Act 1999
CASES
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560
SECONDARY MATERIALS
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REASONS FOR DECISION
Senior Member Dean Letcher QC
On 5 August 2011 the Applicant claimed Disability Support Pension (‘DSP’) in respect of five health conditions. The application was refused on the basis that the Applicant did not have the required 20 impairment rating points outlined in the Schedule 1B Tables of the Social Security Act 1991 (‘the Act’) and did not have a continuing inability to work under s 94 of the Act. An internal review affirmed the decision and the Social Security Appeals Tribunal agreed. The Applicant now seeks review of this decision by this Tribunal.
LEGAL BACKGROUND
The Applicant’s condition was assessed in accordance with the Departmental criteria, which required a calculation of Impairment Points for individual health conditions existing at the date of application, or during the next 13 week period through to 4 November 2011.
To form a basis for Impairment Points, a condition must be “permanent” as defined in the Act meaning each and every of the following :
(A)fully diagnosed by a health practitioner qualified to make such a diagnosis;
(B)fully treated – meaning given all treatment which might be of some effect; and
(C)unlikely to improve within the next two years (‘stabilised’).
Unless a health condition satisfies each of the criteria (A), (B) and (C), it cannot be given an Impairment Points rating under the Impairment Tables of the Act.
A DSP may only be granted if there are more than 20 Impairment Points and a Continuing Inability To Work (‘CITW’).
However, a CITW assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is ‘permanent’ (as defined above), it will not be taken into account when assessing CITW.
Unlike many other reviews of the Administrative Appeals Tribunal (‘the AAT’), the Tribunal is not able to undertake a hearing de novo in this matter and is consequently unable to have regard to the situation at the time of hearing. Under the Social Security (Administration) Act1999 the only role of the AAT is to decide whether the Applicant establishes a case for a pension as at the time of the DSP application or in the 13 week period thereafter. That is, the Applicant’s health conditions as assessed after 4 November 2011 are irrelevant to these proceedings and cannot be considered by the Tribunal. The Applicant’s state of disability at the time of hearing is not the issue: Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560.
FACTUAL BACKGROUND
The original application notified a number of conditions. These are outlined below.
Chronic severe depressive disorder
This was supported by psychiatric evidence and accepted to result in 10 disability points.
Right shoulder pain and restriction
The Applicant underwent an ultrasound examination on 28 June 2011. The findings were “consistent with the presence of supraspinatus tendonitis. The patient may benefit from an ultrasound guided injection of corticosteroid and local anaesthetic into the subacromial bursa” [T11-93]. This is not really a definitive diagnosis, and the only treatment she received was a two month course of an anti-inflammatory medication (Voltaren).
Unfortunately for Mrs Iskandar, the condition was thus not fully diagnosed nor fully treated, and there was no medical opinion produced stating that the condition was likely to last at least two years. The fact that it has done so is, for these purposes, irrelevant. It was not ‘permanent’ as defined and does not attract impairment points.
Even more unfortunately, after August 2011, Mrs Iskandar has suffered similar pain in the left shoulder as well. She produced to the AAT hearing a local doctor’s certificate dated 11 April 2013 as to “Bilateral Supraspinatus Tendenitis with Bilateral Significant Shoulder Pain”, and described a current inability to lift, carry or move loads for house cleaning activities but, for the reasons stated above, these observations cannot be taken into account.
Lower back pain
An MRI report of 18 April 2011 notes disc-bulging at L3/44 to L4/5 but with no actual nerve root contact demonstrated [T7 – 82-83]. An orthopaedic surgeon’s report of 12 June 2011 [T9 – 85-86] recommends commencing physiotherapy “and if this fails may need neuro-surgical opinion. Hip does not require surgery when seen at ortho[paedic department] meeting”.
This report indicates that the condition was not at that time fully diagnosed, fully treated nor stabilised. The extent of loss of range of movement is not quantified. This all means that the condition was not within the definition of ‘permanent’, it attracts no points and cannot contribute to CITW.
A Centrelink specialist report [T14-127] refers to the ‘intervertebral disc disorder’ with disease at L3/4 , L4/5 and L5/S1 as fully diagnosed and lasting over 24 months but not fully treated or stabilised so the result is the same.
I note that on 23 November 2011 (outside the 13 week window) consultant neurologist Dr Hanna examined the Applicant and requested extensive tests leading to a conclusion in April 2012 that severe Vitamin D deficiency is highly likely to have been causing musculo-skeletal pain including back pain. I am not aware of results of the recommended treatment. In any event, the report shows that the condition was not fully treated at the relevant time.
Right leg
Mrs Iskandar’s left leg is one centimetre shorter than her right. She suffers right side back and hip pain radiating into the right leg. Dr Hanna’s report with regard to this issue (above) falls outside the relevant period which the Tribunal can consider for the Applicant’s claim. Centrelink’s report [T14-128] considers only the length difference and concludes that ‘orthotics’ (shoe inserts) may assist. However, there is no evidence that they were tried during the 13 week window period so the condition is not considered fully treated or stabilised.
Migraine
There is no doubt that the Applicant was diagnosed with recurrent migraine, likely to persist, but because active treatment with Sandomigran was commenced only outside the 13 week window period (on 27 June 2012 – Dr Hanna’s report), the condition does not meet the definition of ‘permanent’. Previously she had been prescribed analgesics (painkillers) which provided symptomatic relief but were not an attempted curative treatment.
FINDINGS AND CONCLUSIONS
For the reasons stated above in relation to each claimed condition, it is only the depressive disorder which results in impairment ratings points, and then only 10 points, whereas at least 20 points are required for the grant of a DSP. Consequently, during the window period 5 August 2011 to 4 November 2011, the Applicant has been unable to prove sufficient rating points and a CITW to entitle her to a DSP.
Mrs Iskander appeared without legal representation and I believe she neither understood nor accepted the actual requirements of the legislation, even though these were explained at some length before and during the hearing. In light of these circumstances it was suggested to the Applicant that if she lodges a fresh application for DSP with Centrelink and obtains medical reports directly addressing definitive diagnosis, likely continuance for over two years and failure of all feasible treatments for each claimed condition, then she may well bring herself within the criteria for a DSP.
The decision under review is affirmed.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dean Letcher QC.
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Associate
Dated 18 October 2013
Date(s) of hearing 31 July 2013 Applicant In person Solicitors for the Respondent Ms K Rose, of Sparke Helmore
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