Javed and Secretary, Department of Social Services [2014]
Oct 10, 2014 19:11:17 GMT 7
Denise likes this
Post by seth on Oct 10, 2014 19:11:17 GMT 7
Javed and Secretary, Department of Social Services [2014] AATA 732 (9 October 2014)
Last Updated: 9 October 2014
[2014] AATA 732
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/3703
Re
Chaudy Javed
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member J F Toohey
Date
9 October 2014
Place
Sydney
The Tribunal affirms the decision under review.
.....................................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – anxiety and depression – osteoarthritis in both knees – gastric reflux – morbid obesity – hyperlipidaemia – spinal stenosis – whether conditions fully diagnosed treated and stabilised – impairment ratings – program of support – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security Act 1991 s 94
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
In May 2012, Mr Chaudy Javed applied for a Disability Support Pension (DSP). Centrelink decided he did not qualify for the DSP. In June 2013, the Social Security Appeals Tribunal (SSAT) agreed with Centrelink’s decision. In July 2013, Mr Javed asked this Tribunal to review the decision.
It has taken over 12 months for Mr Javed’s application for review to come to a hearing. In the meantime, in April 2014, he made a new application to Centrelink for DSP. On 6 August 2014, Centrelink wrote to him advising that his new application had been rejected.
On 14 August 2014, the Tribunal wrote to Mr Javed to advise that his application had been listed for hearing on 7 October 2014. Not surprisingly, Mr Javed has become quite confused about these proceedings. When he came to the hearing on 7 October 2014, he thought the Tribunal would be reviewing the decision to refuse his second application for DSP. However, that decision has not yet been reviewed internally by Centrelink or by the SSAT, and the Tribunal has no power to review it.
The decision that I am reviewing concerns Mr Javed’s first application only. For his application to succeed, I must be satisfied that he qualified for DSP on 14 May 2012 when he made his first application, or within 13 weeks, that is by 13 August 2012: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this period the relevant period.
To qualify for DSP during the relevant period, Mr Javed had to satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, he had to have:
(i) a physical, intellectual or psychiatric impairment, or impairments, which was rated at 20 or more points according to the Impairment Tables in the Act; and
(ii) a continuing inability to work as defined in the Act.
At the time of his first application, Mr Javed suffered from anxiety and depression, osteoarthritis in both knees, gastric reflux, morbid obesity, hyperlipidaemia and spinal stenosis. He still suffers from those conditions.
Mr Javed has provided the following reports about his medical conditions:
(a) reports from general practitioner, Dr Ali Sarfraz, dated 9 May 2012, 4 January 2013, 29 June 2013;
(b) a report dated 29 July 2014 from Dr Nilofur Ali, who has been Mr Javed’s general practitioner since 2013, and a number of medical certificates from Dr Ali;
(c) reports from consultant psychiatrist, Dr Ishrat Ali, dated 6 May 2012, 4 January 2013, 18 June 2013, 3 June 2014, 1 October 2014;
(d) a report from radiologist, Dr Nimali Silva, dated 17 June 2013;
(e) a gastroscopy report from Dr Watson Ng dated 11 October 2011;
(f) the report dated 20 May 2014 of an x-ray of his shoulders, and CT scans of his brain and cervical spine;
(g) a report from orthopaedic surgeon, Dr Shahid Qurashi, dated 18 September 2014.
Centrelink has provided a report dated 19 October 2012 of a Job Capacity Assessment by a social worker and rehabilitation counsellor on 10 September 2012.
THE IMPAIRMENT TABLES
The Tables that apply to Mr Javed are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be given to an impairment if the condition causing it is permanent, and the impairment is more likely than not to persist for more than two years.
A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a) whether there is corroborating evidence of the condition;
(b) what treatment or rehabilitation the person has had for the condition; and
(c) whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:
(a) the person has undertaken reasonable treatment for the condition and 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; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that:
(a) is available at a location reasonably accessible to the person;
(b) is at a reasonable cost;
(c) can reliably be expected to result in a substantial improvement in functional capacity;
(d) is regularly undertaken or performed;
(e) has a high success rate; and
(f) carries a low risk to the person.
DID MR JAVED HAVE AN IMPAIRMENT RATING OF 20 POINTS OF MORE WHEN HE MADE HIS FIRST APPLICATION?
Anxiety and depression
Dr Ishrat Ali has treated Mr Javed since 2004 for recurrent major depression which had its onset following the death of his son in 2003. On 6 May 2012, he reported that Mr Javed’s symptoms were depressed mood and difficulty sleeping, tiredness, poor concentration and difficulty relaxing; he had tried various antidepressants over the years; he had been on Effexor for over a year and would need medication indefinitely. Dr Ali said Mr Javed’s condition had been treated, including with counselling, and had stabilised but some of the symptoms persisted. He thought it would continue to affect Mr Javed’s cognitive functioning and make it very difficult for him to work, and no improvement was expected within the next two years.
On 4 January 2013, Dr Ali reported that Mr Javed’s condition had relapsed and he had advised him to go to “a cold place” and he had “visited Pakistan for a change”. On 18 June 2013, Dr Ali reported that he continued to treat Mr Javed and he would need treatment “for a long time”.
On 3 June 2014, Dr Ali reported that Mr Javed is “handicapped in certain areas”; his social relationships have been affected by his anxiety and depressive symptoms, his ability to relate has been affected, and his ability to concentrate has been affected. He continued to have occasional tiredness, concentration problems and occasional insomnia.
Mr Javed told me that, at the relevant time, he lived with a friend and was able to dress and shower himself. He spent most of his day sleeping. He could read and watch television but he could not concentrate well on either. His friend did all the cooking, housework and shopping. He occasionally went out for coffee but he had no visitors. He did not see his family. Once a year or so Mr Javed visited his family in Pakistan which makes him feel better. He visited Pakistan recently for 10 or 12 days and returned last week. He is able to travel by plane by himself and can catch buses by himself but he does not catch trains because he cannot walk the distance to the train station and he cannot walk up and down steps.
Centrelink and the SSAT decided that the effect of Mr Javed’s anxiety and depression was moderate according to Table 5. According to Table 5, an impairment has moderate functional impact if a person has moderate difficulties with most of the following: self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity. A moderate impairment rates 10 points. An impairment has severe functional impact on Table 5 if it causes a person severe difficulties with most of those activities
Examples of what is meant by moderate and severe functional impact in each of those areas are set out in Table 5. Given what Mr Javed has told me, which I accept, and given the reports from Dr Ishrat Ali, I find that his anxiety and depression rated somewhere between moderate and severe during the relevant period. He plainly had moderate difficulties with most of the activities listed but I am not satisfied that he had severe difficulties with most of them. For instance, he has been able to travel to Pakistan each year where he says his spirits improve in the company of his family, and he is able to catch buses and taxis when he needs to. Dr Ali says he is “handicapped” in some areas, including in his capacity for work, but I do not understand him to say that, during the relevant period, his capacity was severely affected in most areas.
The instructions in the Impairment Tables state:
if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Taking all of this information into account, and following the instructions in the table, I find that Mr Javed’s anxiety and depression were moderate impairments during the relevant period and so rated 10 points.
Osteoarthritis of both knees
In his report dated 9 May 2012, Dr Sarfraz stated that Mr Javed has had osteoarthritis in both knees and suffered knee pain since 2007; it hurts him to walk, bend, squat and carry weights. He had been treated in the past with anti-inflammatory medication and injections, and was currently being treated with anti-inflammatory medication; “future/planned treatment” was knee replacement surgery.
On 18 September 2014, Dr Qurashi reported that Mr Javed “needs an operation on his knees and is booked for an operation on 22 January 2015”.
Given that he is to undergo surgery which, it is to be hoped, will improve both his knees, this impairment is not fully treated and stabilised and cannot be given an impairment rating.
Mr Javed’s other conditions
In his report dated 9 May 2012, Dr Sarfraz stated that Mr Javed suffered from the following conditions that are “generally well-managed and ... cause minimal or limited impact on ability to function”:
(a) GORD (Gastro-oesophageal reflux disease), which is treated with Zantac, the impact of which on his ability to function was “bloating/dyspepsia”;
(b) morbid obesity, being treated with “weight loss” and causes “increase risk factor”;
(c) hyperlipidaemia, being treated with Lipitor; and
(d) spinal stenosis for which she was receiving no treatment but would cause problems in the future with pain and walking.
Dr Sarfraz stated that significant improvement was expected in Mr Javed’s hyperlipidaemia but not in any of the other conditions.
I am satisfied that each of these conditions was fully diagnosed during the relevant period. It is not clear that each was fully treated and stabilised but, even if they were, the impact of each was minimal, and insufficient to attract a mild rating of five points. Mr Javed does not agree that this is so but I prefer the opinion of his treating doctor as set out in his report. I accept that each of these conditions had, and still has, some effect on Mr Javed but I am not satisfied that any caused him difficulties with most of the activities set out in the relevant tables.
CONCLUSION
Because Mr Javed’s impairments did not rate 20 points on the Impairment Tables, it is not necessary to consider whether he also had a continuing inability to work.
For these reasons, I affirm the decision under review.
It is clear from Dr Ali’s reports that Mr Javed has suffered from chronic depression for ten years. Treatment does not seem to have improved his condition. From what his doctors say, the chance that he will be able to work in the future appears small. A fair assessment of his recent application for DSP might require more detailed information from Dr Ali about his functional capacity according to Table 5.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
.....................................................
Associate
Dated 9 October 2014
Date(s) of hearing
7 October 2014
Representative for the Applicant
Self represented
Representative for the Respondent
Ms Kate Martini, Government Lawyer
Last Updated: 9 October 2014
[2014] AATA 732
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/3703
Re
Chaudy Javed
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member J F Toohey
Date
9 October 2014
Place
Sydney
The Tribunal affirms the decision under review.
.....................................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – anxiety and depression – osteoarthritis in both knees – gastric reflux – morbid obesity – hyperlipidaemia – spinal stenosis – whether conditions fully diagnosed treated and stabilised – impairment ratings – program of support – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security Act 1991 s 94
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
In May 2012, Mr Chaudy Javed applied for a Disability Support Pension (DSP). Centrelink decided he did not qualify for the DSP. In June 2013, the Social Security Appeals Tribunal (SSAT) agreed with Centrelink’s decision. In July 2013, Mr Javed asked this Tribunal to review the decision.
It has taken over 12 months for Mr Javed’s application for review to come to a hearing. In the meantime, in April 2014, he made a new application to Centrelink for DSP. On 6 August 2014, Centrelink wrote to him advising that his new application had been rejected.
On 14 August 2014, the Tribunal wrote to Mr Javed to advise that his application had been listed for hearing on 7 October 2014. Not surprisingly, Mr Javed has become quite confused about these proceedings. When he came to the hearing on 7 October 2014, he thought the Tribunal would be reviewing the decision to refuse his second application for DSP. However, that decision has not yet been reviewed internally by Centrelink or by the SSAT, and the Tribunal has no power to review it.
The decision that I am reviewing concerns Mr Javed’s first application only. For his application to succeed, I must be satisfied that he qualified for DSP on 14 May 2012 when he made his first application, or within 13 weeks, that is by 13 August 2012: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this period the relevant period.
To qualify for DSP during the relevant period, Mr Javed had to satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, he had to have:
(i) a physical, intellectual or psychiatric impairment, or impairments, which was rated at 20 or more points according to the Impairment Tables in the Act; and
(ii) a continuing inability to work as defined in the Act.
At the time of his first application, Mr Javed suffered from anxiety and depression, osteoarthritis in both knees, gastric reflux, morbid obesity, hyperlipidaemia and spinal stenosis. He still suffers from those conditions.
Mr Javed has provided the following reports about his medical conditions:
(a) reports from general practitioner, Dr Ali Sarfraz, dated 9 May 2012, 4 January 2013, 29 June 2013;
(b) a report dated 29 July 2014 from Dr Nilofur Ali, who has been Mr Javed’s general practitioner since 2013, and a number of medical certificates from Dr Ali;
(c) reports from consultant psychiatrist, Dr Ishrat Ali, dated 6 May 2012, 4 January 2013, 18 June 2013, 3 June 2014, 1 October 2014;
(d) a report from radiologist, Dr Nimali Silva, dated 17 June 2013;
(e) a gastroscopy report from Dr Watson Ng dated 11 October 2011;
(f) the report dated 20 May 2014 of an x-ray of his shoulders, and CT scans of his brain and cervical spine;
(g) a report from orthopaedic surgeon, Dr Shahid Qurashi, dated 18 September 2014.
Centrelink has provided a report dated 19 October 2012 of a Job Capacity Assessment by a social worker and rehabilitation counsellor on 10 September 2012.
THE IMPAIRMENT TABLES
The Tables that apply to Mr Javed are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be given to an impairment if the condition causing it is permanent, and the impairment is more likely than not to persist for more than two years.
A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a) whether there is corroborating evidence of the condition;
(b) what treatment or rehabilitation the person has had for the condition; and
(c) whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:
(a) the person has undertaken reasonable treatment for the condition and 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; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that:
(a) is available at a location reasonably accessible to the person;
(b) is at a reasonable cost;
(c) can reliably be expected to result in a substantial improvement in functional capacity;
(d) is regularly undertaken or performed;
(e) has a high success rate; and
(f) carries a low risk to the person.
DID MR JAVED HAVE AN IMPAIRMENT RATING OF 20 POINTS OF MORE WHEN HE MADE HIS FIRST APPLICATION?
Anxiety and depression
Dr Ishrat Ali has treated Mr Javed since 2004 for recurrent major depression which had its onset following the death of his son in 2003. On 6 May 2012, he reported that Mr Javed’s symptoms were depressed mood and difficulty sleeping, tiredness, poor concentration and difficulty relaxing; he had tried various antidepressants over the years; he had been on Effexor for over a year and would need medication indefinitely. Dr Ali said Mr Javed’s condition had been treated, including with counselling, and had stabilised but some of the symptoms persisted. He thought it would continue to affect Mr Javed’s cognitive functioning and make it very difficult for him to work, and no improvement was expected within the next two years.
On 4 January 2013, Dr Ali reported that Mr Javed’s condition had relapsed and he had advised him to go to “a cold place” and he had “visited Pakistan for a change”. On 18 June 2013, Dr Ali reported that he continued to treat Mr Javed and he would need treatment “for a long time”.
On 3 June 2014, Dr Ali reported that Mr Javed is “handicapped in certain areas”; his social relationships have been affected by his anxiety and depressive symptoms, his ability to relate has been affected, and his ability to concentrate has been affected. He continued to have occasional tiredness, concentration problems and occasional insomnia.
Mr Javed told me that, at the relevant time, he lived with a friend and was able to dress and shower himself. He spent most of his day sleeping. He could read and watch television but he could not concentrate well on either. His friend did all the cooking, housework and shopping. He occasionally went out for coffee but he had no visitors. He did not see his family. Once a year or so Mr Javed visited his family in Pakistan which makes him feel better. He visited Pakistan recently for 10 or 12 days and returned last week. He is able to travel by plane by himself and can catch buses by himself but he does not catch trains because he cannot walk the distance to the train station and he cannot walk up and down steps.
Centrelink and the SSAT decided that the effect of Mr Javed’s anxiety and depression was moderate according to Table 5. According to Table 5, an impairment has moderate functional impact if a person has moderate difficulties with most of the following: self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity. A moderate impairment rates 10 points. An impairment has severe functional impact on Table 5 if it causes a person severe difficulties with most of those activities
Examples of what is meant by moderate and severe functional impact in each of those areas are set out in Table 5. Given what Mr Javed has told me, which I accept, and given the reports from Dr Ishrat Ali, I find that his anxiety and depression rated somewhere between moderate and severe during the relevant period. He plainly had moderate difficulties with most of the activities listed but I am not satisfied that he had severe difficulties with most of them. For instance, he has been able to travel to Pakistan each year where he says his spirits improve in the company of his family, and he is able to catch buses and taxis when he needs to. Dr Ali says he is “handicapped” in some areas, including in his capacity for work, but I do not understand him to say that, during the relevant period, his capacity was severely affected in most areas.
The instructions in the Impairment Tables state:
if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Taking all of this information into account, and following the instructions in the table, I find that Mr Javed’s anxiety and depression were moderate impairments during the relevant period and so rated 10 points.
Osteoarthritis of both knees
In his report dated 9 May 2012, Dr Sarfraz stated that Mr Javed has had osteoarthritis in both knees and suffered knee pain since 2007; it hurts him to walk, bend, squat and carry weights. He had been treated in the past with anti-inflammatory medication and injections, and was currently being treated with anti-inflammatory medication; “future/planned treatment” was knee replacement surgery.
On 18 September 2014, Dr Qurashi reported that Mr Javed “needs an operation on his knees and is booked for an operation on 22 January 2015”.
Given that he is to undergo surgery which, it is to be hoped, will improve both his knees, this impairment is not fully treated and stabilised and cannot be given an impairment rating.
Mr Javed’s other conditions
In his report dated 9 May 2012, Dr Sarfraz stated that Mr Javed suffered from the following conditions that are “generally well-managed and ... cause minimal or limited impact on ability to function”:
(a) GORD (Gastro-oesophageal reflux disease), which is treated with Zantac, the impact of which on his ability to function was “bloating/dyspepsia”;
(b) morbid obesity, being treated with “weight loss” and causes “increase risk factor”;
(c) hyperlipidaemia, being treated with Lipitor; and
(d) spinal stenosis for which she was receiving no treatment but would cause problems in the future with pain and walking.
Dr Sarfraz stated that significant improvement was expected in Mr Javed’s hyperlipidaemia but not in any of the other conditions.
I am satisfied that each of these conditions was fully diagnosed during the relevant period. It is not clear that each was fully treated and stabilised but, even if they were, the impact of each was minimal, and insufficient to attract a mild rating of five points. Mr Javed does not agree that this is so but I prefer the opinion of his treating doctor as set out in his report. I accept that each of these conditions had, and still has, some effect on Mr Javed but I am not satisfied that any caused him difficulties with most of the activities set out in the relevant tables.
CONCLUSION
Because Mr Javed’s impairments did not rate 20 points on the Impairment Tables, it is not necessary to consider whether he also had a continuing inability to work.
For these reasons, I affirm the decision under review.
It is clear from Dr Ali’s reports that Mr Javed has suffered from chronic depression for ten years. Treatment does not seem to have improved his condition. From what his doctors say, the chance that he will be able to work in the future appears small. A fair assessment of his recent application for DSP might require more detailed information from Dr Ali about his functional capacity according to Table 5.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
.....................................................
Associate
Dated 9 October 2014
Date(s) of hearing
7 October 2014
Representative for the Applicant
Self represented
Representative for the Respondent
Ms Kate Martini, Government Lawyer