Post by seth on Oct 10, 2014 19:12:58 GMT 7
Mihri and Secretary, Department of Social Services [2014] AATA 720 (2 October 2014)
Last Updated: 3 October 2014
[2014] AATA 720
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/1256
Re
Asmer Mihri
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Mr Dean Letcher QC, Senior Member
Date
2 October 2014
Place
Sydney
The decision under review is affirmed.
................................[sgd]........................................
Mr Dean Letcher QC, Senior Member
Catchwords
SOCIAL SECURITY – pensions – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment is rated 20 points or more under the Impairment Tables – whether Applicant had a continuing inability to work – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2 Clause 4(1)
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922
Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Dean Letcher QC, Senior Member
The Applicant, Mrs Mihri, applied for Disability Support Pension (“DSP”) in March 2012. Centrelink refused her application as did the Social Security Appeals Tribunal (“SSAT”) from which decision the Applicant now seeks review.
The issue for the Tribunal is whether the Applicant met the DSP qualification requirements within the period 6 March 2012 to 4 June 2012 (“the relevant period”)
LEGAL BACKGROUND
The Applicant’s condition was assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act 1991 (“the Act”) and the Impairment Tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). Under this criteria the Applicant must establish an impairment rating of 20 points or more, as well as a continuing inability to work (“CITW”), as a result of health conditions existing during the relevant period.
Unlike many other reviews undertaken by the Administrative Appeals Tribunal (“the AAT”), this Tribunal is not able to undertake a hearing based upon the state of the Applicant’s health as at the hearing date. The Applicant’s state of disability at the time of the hearing is not the issue. Under the Social Security (Administration) Act 1999 the role of the AAT is to decide whether the Applicant establishes a case for a pension only as at the time of the claim or in the 13 week period thereafter: Social Security Administration Act 1999 (Cth) Sch 2 cl 4(1); Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997) and Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922. That is, the Applicant’s health conditions as assessed after 4 June 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal except in so far as they throw light on the conditions during the relevant period.
For an impairment rating to be assigned, the condition causing the impairment must be considered “permanent” as defined in the Impairment Tables, 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 reasonable treatment which might be of some effect;
(c) unlikely to improve within the next two years (“stabilised”); and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years
Unless a health condition satisfies each of the criteria (a), (b), (c) and (d), it cannot be given an impairment rating under the Impairment Tables.
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a) whether there is authoritative diagnosis and corroborating evidence of the condition;
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next two years.
In deciding whether a condition is stabilised, the Tribunal must consider whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years that would enable the person to undertake work in the next two years.
In order to establish a CITW where the person’s impairment is not a severe impairment, the Tribunal must be satisfied that the Applicant has actively participated in a “Program of Support”, and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years.
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.
FACTUAL BACKGROUND
The Applicant is a 58 year old woman born in the northern Iraqi town of Zakho close to the Turkish border. Her mother died when she was 5 years old and so she went to live with an older sister. She performed housework whilst living with her sister until she was 15 when she married her present husband. The Applicant had scant education, has never been employed, cannot read, write or speak English and does not know her present street address. She was represented at the Tribunal hearing by her daughter.
The DSP claim relied upon health conditions of atrial fibrillation (“AF”), obstructive sleep apnoea (“OSA”) and osteoarthritis of both knees. The accompanying medical report of general practitioner Dr Hua supported those conditions. A Job Capacity Assessment (“JCA”) on 3 April 2012 referred to those conditions and also asthma and hypertension. After the negative SSAT decision, and following the receipt of further medical reports, a second JCA on 29 November 2013 referred to all those conditions (using differing descriptions for some) and also to myocardial infarct (“MI”) and lung mass. The second JCA was some 17 months after the end of the relevant period.
The Applicant and her daughter gave oral evidence and the Tribunal reviewed all the medical reports including those obtained after the relevant period.
The Respondent accepts that the Applicant suffered from AF, ASO and osteoarthritis during the relevant period and thus section 94(1)(a) of the Act is satisfied in that there was some physical impairment.
As to section 94(1)(b), each of the conditions relied upon will be considered in turn:
ATRIAL FIBRILLATION (“AF”)
Dr Hua nominated AF as the condition with most impact. It produced breathlessness and palpitation, was treated with medication, was likely to persist for more than 24 months and made the Applicant’s ability to function “uncertain” in the future. The Applicant said that she could walk only 12 metres without stopping, was breathless on effort, she needed blood tests every fortnight ”to avoid a heart attack” and she was entirely unable to work as a result of her disability. Nevertheless she was able to carry out housework including some cooking and shopping. She said that the main barrier to travelling and work was her lack of English.
A cardiologist’s report of 29 August 2011 supported the diagnosis and recommended medication with a review shortly thereafter. This does not seem to have occurred judging by the same doctor’s report of 30 May 2013 when he altered the medication and indicated that the condition had not improved. Despite this, the Applicant was undergoing some regular treatment, including blood tests, throughout the relevant period. The reports before the Tribunal indicate that treatment was unlikely to result in significant improvement over the following two years. The condition was thus fully diagnosed, treated and stabilised
OBSTRUCTIVE SLEEP APNOEA (“OSA”)
Dr Hua and a consultant physician supported the diagnosis of OSA. The Applicant said she was very fatigued and fell asleep during English lessons. Her family obtained a CPAP machine which helped her to sleep, but she used the machine only intermittently. As with AF, the medical reports indicate that the Applicant’s OSA is not likely to improve significantly. As noted in the JCA dated 27 November 2013, she obtained reasonable treatment during the relevant period, and the condition should be regarded as fully diagnosed, treated and stabilised.
OSTEOARTHRITIS
The Applicant’s evidence was that she had a deformed right hip following a motor vehicle accident and that this combined with problems in both knees to restrict her walking. Radiology and examination confirmed osteoarthritis of both knees.
The Applicant said that she had been advised to have hydrotherapy and to lose weight but she did neither. She received advice from a dietician but “ I can’t do their program because I would have to stop eating bread and foods affecting my blood. Walking every day is very hard”. She said she had asked the doctor for a tablet to fix the problem but was told that the side effects would not make that possible. Her daughter confirmed that the Applicant had been advised that a surgeon could not operate to correct the hip injury unless she reduced her weight, but she was unable to do so.
The only treatment accepted by the Applicant for the knee problem was pain medication. As such, this condition was not fully treated or stabilised.
ASTHMA
The Applicant said that she had been given a puffer in 2012 but now used just her machine which dispensed vapour to breathe. The machine dispensed water vapour only and there was no chemical used. It was not clear whether this was the CPAP or a nebulizer but in any event it was not a treatment advised by a doctor. There has been no diagnosis of asthma by a specialist and Dr Hua does not mention it in his reports in 2011 or 2013. This condition is therefore not fully diagnosed, treated or stabilised.
HYPERTENSION
The Applicant had been prescribed blood pressure tablets but she had stopped taking them regularly. She said that if she had a headache then she might take them. This condition was not fully treated nor stabilised.
MYOCARDIAL INFARCT AND LUNG MASS
These conditions were described outside the relevant period (and in any event did not add to the impact of AF and OSA). There is no evidence of a diagnosis or treatment pertaining to the relevant period. Neither was fully treated and stabilised.
ASSESSMENT OF THE APPLICATION
After a JCA, Centrelink assessed all claimed conditions as not being fully treated and stabilised. This meant that none attracted any Impairment rating Points. The SSAT had additional medical material but accepted only AF as a permanent condition attracting 5 Points under Table 1.
Further medical reports were obtained and a second JCA accepted both AF and OSA as permanent conditions but assessed them as having a combined impairment effect. Paragraph 10(5) of the Rules for applying the Tables requires that a single Impairment Rating under a single Table should be used where there is a combined effect. It was decided that a 10 point rating under Table 1 was appropriate because the combined effect was a moderate functional impact on activities requiring physical exertion or stamina.
FINDING
The medical and lay evidence before the Tribunal did not advance the Applicant’s case beyond the finding of the second JCA. A combined rating and a finding of only moderate impairment is appropriate given the household and other activities the Applicant was able to perform. I find that Atrial Fibrillation and Obstructive Sleep Apnoea were at the relevant time permanent conditions attracting only 10 points for their combined effect under Table 1.
The above finding means that the application is not successful and it is not strictly necessary to consider whether the Applicant has a continuing inability to work (“CITW”) as required under section 94(1)(c) of the Act. This requires that the Applicant have actively participated in a program of support. The evidence was that the Applicant had attended such programs at MTC Work Solutions and Break Thru People Solutions at Liverpool for no more than 5.5 months during the preceding 3 years. While the Applicant said that the program provider had told her to cease attending, her daughter said that “it was too much for us to take her” and that was why the Applicant had not continued in the program for the 18 months required to satisfy the Act. If the Applicant did not continue for that time then a CITW is not established and section 94(1)(c) is not satisfied.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher QC, Senior Member
...........................[sgd].............................................
Associate
Dated 2 October 2014
Date(s) of hearing
26 May 2014
Applicant
In person
Solicitors for the Respondent
S Misrachi; Department of Human Services
Last Updated: 3 October 2014
[2014] AATA 720
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/1256
Re
Asmer Mihri
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Mr Dean Letcher QC, Senior Member
Date
2 October 2014
Place
Sydney
The decision under review is affirmed.
................................[sgd]........................................
Mr Dean Letcher QC, Senior Member
Catchwords
SOCIAL SECURITY – pensions – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment is rated 20 points or more under the Impairment Tables – whether Applicant had a continuing inability to work – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2 Clause 4(1)
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922
Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Dean Letcher QC, Senior Member
The Applicant, Mrs Mihri, applied for Disability Support Pension (“DSP”) in March 2012. Centrelink refused her application as did the Social Security Appeals Tribunal (“SSAT”) from which decision the Applicant now seeks review.
The issue for the Tribunal is whether the Applicant met the DSP qualification requirements within the period 6 March 2012 to 4 June 2012 (“the relevant period”)
LEGAL BACKGROUND
The Applicant’s condition was assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act 1991 (“the Act”) and the Impairment Tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). Under this criteria the Applicant must establish an impairment rating of 20 points or more, as well as a continuing inability to work (“CITW”), as a result of health conditions existing during the relevant period.
Unlike many other reviews undertaken by the Administrative Appeals Tribunal (“the AAT”), this Tribunal is not able to undertake a hearing based upon the state of the Applicant’s health as at the hearing date. The Applicant’s state of disability at the time of the hearing is not the issue. Under the Social Security (Administration) Act 1999 the role of the AAT is to decide whether the Applicant establishes a case for a pension only as at the time of the claim or in the 13 week period thereafter: Social Security Administration Act 1999 (Cth) Sch 2 cl 4(1); Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997) and Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922. That is, the Applicant’s health conditions as assessed after 4 June 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal except in so far as they throw light on the conditions during the relevant period.
For an impairment rating to be assigned, the condition causing the impairment must be considered “permanent” as defined in the Impairment Tables, 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 reasonable treatment which might be of some effect;
(c) unlikely to improve within the next two years (“stabilised”); and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years
Unless a health condition satisfies each of the criteria (a), (b), (c) and (d), it cannot be given an impairment rating under the Impairment Tables.
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a) whether there is authoritative diagnosis and corroborating evidence of the condition;
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next two years.
In deciding whether a condition is stabilised, the Tribunal must consider whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years that would enable the person to undertake work in the next two years.
In order to establish a CITW where the person’s impairment is not a severe impairment, the Tribunal must be satisfied that the Applicant has actively participated in a “Program of Support”, and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years.
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.
FACTUAL BACKGROUND
The Applicant is a 58 year old woman born in the northern Iraqi town of Zakho close to the Turkish border. Her mother died when she was 5 years old and so she went to live with an older sister. She performed housework whilst living with her sister until she was 15 when she married her present husband. The Applicant had scant education, has never been employed, cannot read, write or speak English and does not know her present street address. She was represented at the Tribunal hearing by her daughter.
The DSP claim relied upon health conditions of atrial fibrillation (“AF”), obstructive sleep apnoea (“OSA”) and osteoarthritis of both knees. The accompanying medical report of general practitioner Dr Hua supported those conditions. A Job Capacity Assessment (“JCA”) on 3 April 2012 referred to those conditions and also asthma and hypertension. After the negative SSAT decision, and following the receipt of further medical reports, a second JCA on 29 November 2013 referred to all those conditions (using differing descriptions for some) and also to myocardial infarct (“MI”) and lung mass. The second JCA was some 17 months after the end of the relevant period.
The Applicant and her daughter gave oral evidence and the Tribunal reviewed all the medical reports including those obtained after the relevant period.
The Respondent accepts that the Applicant suffered from AF, ASO and osteoarthritis during the relevant period and thus section 94(1)(a) of the Act is satisfied in that there was some physical impairment.
As to section 94(1)(b), each of the conditions relied upon will be considered in turn:
ATRIAL FIBRILLATION (“AF”)
Dr Hua nominated AF as the condition with most impact. It produced breathlessness and palpitation, was treated with medication, was likely to persist for more than 24 months and made the Applicant’s ability to function “uncertain” in the future. The Applicant said that she could walk only 12 metres without stopping, was breathless on effort, she needed blood tests every fortnight ”to avoid a heart attack” and she was entirely unable to work as a result of her disability. Nevertheless she was able to carry out housework including some cooking and shopping. She said that the main barrier to travelling and work was her lack of English.
A cardiologist’s report of 29 August 2011 supported the diagnosis and recommended medication with a review shortly thereafter. This does not seem to have occurred judging by the same doctor’s report of 30 May 2013 when he altered the medication and indicated that the condition had not improved. Despite this, the Applicant was undergoing some regular treatment, including blood tests, throughout the relevant period. The reports before the Tribunal indicate that treatment was unlikely to result in significant improvement over the following two years. The condition was thus fully diagnosed, treated and stabilised
OBSTRUCTIVE SLEEP APNOEA (“OSA”)
Dr Hua and a consultant physician supported the diagnosis of OSA. The Applicant said she was very fatigued and fell asleep during English lessons. Her family obtained a CPAP machine which helped her to sleep, but she used the machine only intermittently. As with AF, the medical reports indicate that the Applicant’s OSA is not likely to improve significantly. As noted in the JCA dated 27 November 2013, she obtained reasonable treatment during the relevant period, and the condition should be regarded as fully diagnosed, treated and stabilised.
OSTEOARTHRITIS
The Applicant’s evidence was that she had a deformed right hip following a motor vehicle accident and that this combined with problems in both knees to restrict her walking. Radiology and examination confirmed osteoarthritis of both knees.
The Applicant said that she had been advised to have hydrotherapy and to lose weight but she did neither. She received advice from a dietician but “ I can’t do their program because I would have to stop eating bread and foods affecting my blood. Walking every day is very hard”. She said she had asked the doctor for a tablet to fix the problem but was told that the side effects would not make that possible. Her daughter confirmed that the Applicant had been advised that a surgeon could not operate to correct the hip injury unless she reduced her weight, but she was unable to do so.
The only treatment accepted by the Applicant for the knee problem was pain medication. As such, this condition was not fully treated or stabilised.
ASTHMA
The Applicant said that she had been given a puffer in 2012 but now used just her machine which dispensed vapour to breathe. The machine dispensed water vapour only and there was no chemical used. It was not clear whether this was the CPAP or a nebulizer but in any event it was not a treatment advised by a doctor. There has been no diagnosis of asthma by a specialist and Dr Hua does not mention it in his reports in 2011 or 2013. This condition is therefore not fully diagnosed, treated or stabilised.
HYPERTENSION
The Applicant had been prescribed blood pressure tablets but she had stopped taking them regularly. She said that if she had a headache then she might take them. This condition was not fully treated nor stabilised.
MYOCARDIAL INFARCT AND LUNG MASS
These conditions were described outside the relevant period (and in any event did not add to the impact of AF and OSA). There is no evidence of a diagnosis or treatment pertaining to the relevant period. Neither was fully treated and stabilised.
ASSESSMENT OF THE APPLICATION
After a JCA, Centrelink assessed all claimed conditions as not being fully treated and stabilised. This meant that none attracted any Impairment rating Points. The SSAT had additional medical material but accepted only AF as a permanent condition attracting 5 Points under Table 1.
Further medical reports were obtained and a second JCA accepted both AF and OSA as permanent conditions but assessed them as having a combined impairment effect. Paragraph 10(5) of the Rules for applying the Tables requires that a single Impairment Rating under a single Table should be used where there is a combined effect. It was decided that a 10 point rating under Table 1 was appropriate because the combined effect was a moderate functional impact on activities requiring physical exertion or stamina.
FINDING
The medical and lay evidence before the Tribunal did not advance the Applicant’s case beyond the finding of the second JCA. A combined rating and a finding of only moderate impairment is appropriate given the household and other activities the Applicant was able to perform. I find that Atrial Fibrillation and Obstructive Sleep Apnoea were at the relevant time permanent conditions attracting only 10 points for their combined effect under Table 1.
The above finding means that the application is not successful and it is not strictly necessary to consider whether the Applicant has a continuing inability to work (“CITW”) as required under section 94(1)(c) of the Act. This requires that the Applicant have actively participated in a program of support. The evidence was that the Applicant had attended such programs at MTC Work Solutions and Break Thru People Solutions at Liverpool for no more than 5.5 months during the preceding 3 years. While the Applicant said that the program provider had told her to cease attending, her daughter said that “it was too much for us to take her” and that was why the Applicant had not continued in the program for the 18 months required to satisfy the Act. If the Applicant did not continue for that time then a CITW is not established and section 94(1)(c) is not satisfied.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher QC, Senior Member
...........................[sgd].............................................
Associate
Dated 2 October 2014
Date(s) of hearing
26 May 2014
Applicant
In person
Solicitors for the Respondent
S Misrachi; Department of Human Services