Abdul-Wahed and Secretary, Department of Social Services (Social services second review)

[2017] AATA 181

Abdul-Wahed and Secretary, Department of Social Services (Social services second review) [2017] AATA 181 (15 February 2017)

Division:GENERAL DIVISION

File Number:           2016/1803

Re:Mohamad Abdul-Wahed  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Nikolic AM CSC

Date:15 February 2017

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd].................................................................

Senior Member

SOCIAL SECURITY - Disability support pension – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – 10 impairment points assigned – certain conditions diagnosed but not fully treated or stabilised in relevant period – decision under review affirmed 

Legislation

Social Security Act 1991 – s 94 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Administration) Act 1999 – Schedule 2 Cl 4 (Cth)

REASONS FOR DECISION

Senior Member A Nikolic AM CSC

15 February 2017

INTRODUCTION

1. Mr Mohamad Abdul-Wahed’s application for a Disability Support Pension (DSP) was refused by Centrelink on 10 September 2015. Centrelink is the service provider for the Department of Social Services (the Department). This decision was affirmed by a Centrelink Authorised Review Officer (ARO) on 11 November 2015.  Mr Abdul-Wahed has now sought a review of the ARO’s decision by the Administrative Appeals Tribunal.

2. Mr Abdul-Wahed’s application for review was first considered by the Social Services and Child Support Division of the Tribunal, which affirmed the Department’s decision on 8 March 2016.  On 6 April 2016 Mr Abdul-Wahed applied for a second-tier review in the Tribunal’s General Division.

3. The hearing was held on 9 February 2017 with assistance from an interpreter in the Arabic language. Mr Abdul-Wahed was self-represented. The Department was represented by Ms Belinda Lewis.

4. The matter was decided on the material contained in the T-documents, the oral submissions of the parties, and the respondent’s Statement of Facts and Contentions.

   LEGISLATIVE FRAMEWORK

5. Qualifying requirements for the DSP are set out at section 94 of the Social Security Act 1991 (Cth) (the Act). It must be established that a DSP applicant has:

   a)     a physical, intellectual or psychiatric impairment; and

   b)     the person’s impairment is of 20 points or more under the Impairment Tables; and

   c)     one of the following applies:

   i.the person has a continuing inability to work;

   ii.the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.

6. The Impairment Tables referred to in section 94(1)(b) of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Impairment Tables assign ratings to determine the level of functional impact that a condition has on an applicant.

7. Only medical conditions that are permanent, have been fully diagnosed, treated and stabilised, and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

8. For a condition to be fully stabilised, the Tribunal must give due regard to Part 2 - Rules for Applying the Impairment Tables, which require:

   (6)  For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   a)    either 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 2 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 2 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.

   Note:    For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7)  For the purposes of subsection 6(6), reasonable treatment is treatment that:

   a)    is available at a location reasonably accessible to the person; and

   b)    is at a reasonable cost; and

   c)    can reliably be expected to result in a substantial improvement in functional capacity; and

   d)    is regularly undertaken or performed; and

   e)    has a high success rate; and

   f)     carries a low risk to the person.

   …

   ISSUES FOR THE TRIBUNAL

9. The key issues for determination by the Tribunal are:

   ·What is the relevant period for Mr Abdul-Wahed’s claim?

   ·Did Mr Abdul-Wahed have a physical, intellectual or psychiatric impairment as defined under the Act during the relevant period?

   ·If yes, were his conditions permanent, fully diagnosed, treated and stabilised, and likely to persist for two years during the relevant period? And if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables?

   ·If Mr Abdul-Wahed’s impairments attract a rating of 20 or more points under the Impairment Tables, does he have a continuing inability to work and has he participated in a Program of Support?

   What is the relevant period for Mr Abdul-Wahed’s claim?

10. In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), Mr Abdul‑Wahed had to satisfy the DSP criteria on 25 June 2015 (the date he lodged his claim) - or within the following 13 week period ending on 24 September 2015 (the relevant period).

    Did Mr Abdul-Wahed have a physical, intellectual or psychiatric impairment during the relevant period?

11. It is clear from the material before the Tribunal that Mr Abdul-Wahed suffers from a number of medical conditions. His General Practitioner, Dr David Burgin, notes in the DSP Medical Report dated 26 June 2015, that the condition with most impact is Soft Tissue Injury of the Lumbar and Cervical Spine.  Dr Burgin lists a number of other conditions that Mr Abdul-Wahed suffers from: Reflux Oesophagitis with Recurrent Anaemia, Diabetes, Sleep Apnoea, Subacromial Bursitis, Recurrent Cellulitis of Leg, and Osteoarthritis of Knees.

12. The Department accepts that Mr Abdul-Wahed had physical impairments during the relevant period that satisfy section 94(1)(a) of the Act.  The Tribunal finds accordingly.

    Are Mr Abdul-Wahed’s conditions permanent, fully diagnosed, treated and stabilised, and likely to persist for at least two years? If so, what rating may be assigned for functional impairment in accordance with the Impairment Tables?

    Soft Tissue Injury of Lumbar and Cervical Spine 

13. Mr Abdul-Wahed claims in his DSP application that as a result of his back condition, he cannot bend, squat, kneel, lift...  At the hearing Mr Abdul-Wahed described a range of severe symptoms, stating that this condition originated from a workplace accident in 2002 when he was a bus driver.  He agrees with Dr Burgin that this condition has the most impact on his capacity to work and enjoy life.  Mr Abdul-Wahed said he received weekly compensation payments for the last 14 years, but payments ceased when the insurer discovered his voluntary work as a bus driver, leading them to conclude he was able to do some work each week. This is corroborated by a letter in the T-documents from QBE Workers Compensation (VIC) Limited dated 26 May 2015, citing medical evidence and a surveillance report to conclude that Mr Abdul-Wahed was not incapacitated for work and had a capacity for pre-injury employment. The letter confirms Mr Abdul-Wahed’s weekly compensation payments were ceased on 28 June 2015.  At the hearing Mr Abdul-Wahed said he was legally contesting the QBE decision.

14. In the DSP Medical Report dated 26 June 2015, Dr Burgin assesses Mr Abdul‑Wahed’s back condition as having a moderate functional impact and that it is fully diagnosed, treated, and stabilised. He refers to specialist confirmation by Mr Keng in 2003, but ticks ‘No’ in response to the question: Are the relevant specialist reports available?  Even if Mr Keng’s report was available, it is 14 years old and the Tribunal considers it would be of limited utility for a contemporaneous assessment of impairment during the relevant period. 

15. Dr Burgin states that Mr Abdul-Wahed experiences back pain and neck pain as a result of this condition, with three impacts on his functional ability: Impaired Balance; Impaired Mobility; and Impaired Exercise Tolerance. Dr Burgin expects the condition will persist for more than two years and deteriorate over time. The current or planned treatment is analgesics and physical therapy. Dr Burgin notes that Mr Abdul-Wahed was usually (rather than very) compliant with the prescribed treatment.

16. Centrelink provided a Job Capacity Assessment (JCA) report of Mr Abdul-Wahed.  The report dated 8 September 2015 found that his back/neck condition was fully diagnosed, treated and stabilised, and had a moderate functional impact.  The JCA assessor did note, however, that Mr Abdul-Wahed’s claimed inability to sit for longer than 15 minutes before having to stand or change position to relieve pain, was inconsistent with the fact that Mr Abdul-Wahed sat for 25 minutes during the assessment.  At the hearing Mr Abdul‑Wahed claimed to be unable to sit for longer than 10 minutes, but subsequently stated he was able to drive his car for up to an hour. When asked to clarify whether that meant he was able to sit for an hour while driving his car, Mr Abdul-Wahed said he adjusted his position frequently while driving.

17. The JCA report identified a number of support requirements for this condition within a 12‑month timeframe, which could assist Mr Abdul-Wahed in returning to work for 8-14 hours a week, increasing to 15-22 hours per week, within two years.  At the hearing Mr Abdul-Wahed contested this assessment, stating that he was unable to work at all.  

18. The JCA report recommended a 10 point rating under Impairment Table 4 (Spinal Function), which was subsequently accepted by the Department and confirmed by letter to Mr Abdul-Wahed. In the Department’s Statement of Facts and Contentions dated 19 October 2016, however, the Secretary no longer accepts Mr Abdul-Wahed’s back condition was fully diagnosed, treated and stabilised, citing a lack of objective evidence – particularly specialist reports. At the hearing, Mr Abdul-Wahed stated that he hadn’t provided specialist reports because of the expense, claiming that a specialist consultation would cost $350 with an additional $1000-$2000 required for a written report.

19. The Department also submitted in its Statement of Facts and Contentions that Mr Abdul‑Wahed was not fully complying with the directions of his treating doctor regarding physical therapy, raising the question whether reasonable treatment had been undertaken as defined by the Act. When asked why he was only usually compliant with Dr Burgin’s prescribed treatment, Mr Abdul-Wahed responded that he could not afford the $6 required for hydrotherapy sessions, but did hydrotherapy whenever possible.

20. The available evidence does not support Mr Abdul-Wahed’s claims of severe impairment and an inability to work at all as a result of this condition. A severe rating (20 points) under Impairment Table 4 (Spinal Function) would need to show that Mr Abdul-Wahed was unable to: perform any overhead activities; or turn his head; or bend his neck without moving his trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.

21. Dr Burgin and the JCA found that Mr Abdul-Wahed experienced a moderate functional impact from his back condition, and that it was fully diagnosed, treated and stabilised during the relevant period. This assessment was previously agreed by the Department.  The Tribunal accepts Dr Burgin’s evidence, confirmed by the JCA. The Tribunal allocates 10 points for this condition under Impairment Table 4. 

    Reflux Oesophagitis with Recurrent Anaemia

22. Mr Abdul-Wahed claimed during his JCA on 8 September 2015 that as a result of this condition, he experiences daily heartburn and vomits once per week.

23. On the DSP Medical Report dated 26 June 2015, Dr Burgin lists a single symptom (indigestion) for this condition and notes Nexium is the only prescribed treatment.  Dr Burgin also notes that the effect on Mr Abdul-Wahed is expected to fluctuate and additional tests were planned to confirm the diagnosis.  There is no evidence before the Tribunal about the results of these additional tests or that would corroborate the daily heartburn / weekly vomiting symptoms claimed by Mr Abdul-Wahed. 

24. The Department submitted in its Statement of Facts and Contentions and at the hearing, that there was insufficient medical evidence to justify the allocation of any points for this condition under the Impairment Tables.  The Tribunal agrees.

25. In accordance with subsection 8 of Part 2 – Rules for applying the Impairment Tables, symptoms can only be taken into account where there is corroborating evidence. The Tribunal places little weight on Mr Abdul-Wahed’s self-reported symptoms, and places considerable weight on the evidence of Dr Burgin, who states the condition will fluctuate and that further tests are required to confirm the diagnosis. The Tribunal finds this condition was not fully diagnosed, treated, or stabilised.  It therefore attracts no points under the Impairment Tables.

    Other Conditions

26. Dr Burgin identifies five other conditions, which he notes are generally well-managed and cause minimal or limited impact on Mr Abdul-Wahed’s ability to function. These were: “Diabetes; Sleep Apnoea; Subacromial Bursitis; Recurrent Cellulitis of Leg; and Osteoarthritis of Knees.”  The JCA report noted Mr Abdul-Wahed’s confirmation that these conditions were well-managed and had minimal impact on function.  Therefore, the Tribunal allocates no points for these conditions under the Impairment Tables. 

27. In relation to Mr Abdul-Wahed’s claim in his DSP Application that he cannot hear, the Tribunal notes there is no mention of this condition in Dr Burgin’s medical report. Additionally, Mr Abdul-Wahed’s interactions with the Tribunal and the Department’s representative on 9 February 2017 show that his claim of being unable to hear is not credible.

28. The only available evidence within the T-documents is a report from National Hearing Care dated 15 May 2013, showing mild to severe sensori-neural hearing loss…[which]…may benefit from the fitting with (sic) hearing aids in both ears.  Despite the date of this report being more than two years before the relevant period, it is nevertheless referrable to Mr Abdul-Wahed’s claimed condition.

29. Mr Abdul-Wahed confirmed at the hearing that he was yet to follow up on treatment for this condition. It follows that the Tribunal cannot find the condition is fully diagnosed, stabilised and treated.  Therefore, the Tribunal assigns no points for this condition.   

    CONCLUSION

30. For the reasons detailed above, the Tribunal finds that Mr Abdul-Wahed should be allocated a total of 10 impairment points under the Impairment Tables (Table 4 – Spinal Function).

31. Given that Mr Abdul-Wahed’s impairments are not capable of being assigned 20 points or more under the Impairment Tables during the relevant period, his DSP claim fails under section 94(1)(b) of the Act.

32. Therefore, it is not necessary for the Tribunal to determine whether Mr Abdul-Wahed had a continuing inability to work or was participating in a Program of Support.

33. The Tribunal affirms the decision under review.

I certify that the preceding 33 (thirty‑three) paragraphs are a true copy of the reasons for the decision herein of Senior Member

[sgd]...........................................................
Associate

Dated:   15 February 2017

Date of hearing:	9 February 2017
Applicant:	By telephone
Solicitor for the Respondent:	Ms Belinda Lewis (by telephone)
Department of Human Services FOI and Litigation Branch