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

Abdulrahim and Secretary, Department of Social Services (Social services second review) [2020] AATA 1160 (7 May 2020)
Division:GENERAL DIVISION
File Number: 2019/1432
Re:Ali Abdulrahim
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:7 May 2020
Place:Sydney

The reviewable decision dated 27 February 2019, rejecting the applicant’s claim for the disability support pension, is affirmed.
..........[sgd]..............................................................
Dr I Alexander, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant satisfies residency requirements – whether applicant was an Australian permanent resident during the qualification period – motor vehicle accidents – cervical and lumbar disc condition – mental health condition – bilateral shoulder condition – knee and hip condition – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security Guide released 1 May 2020
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr I Alexander, Senior Member
7 May 2020
BACKGROUND

On 24 January 2013, Mr Abdulrahim, at the age of 43 years, lodged a visa application[1] .
[1] Section 37 Documents, page 176.
He first entered Australia on 24 June 2013 under a temporary visa [Partner (Provisional) (class UF) (subclass 309)].
On 29 January 2016, Mr Abdulrahim was granted a Partner (Migrant) (class BC) Partner (subclass 100) visa[2].
[2] Ibid.
On 24 March 2015, Mr Abdulrahim was involved in a motor vehicle accident (MVA1).
On 13 January 2017, Mr Abdulrahim was involved in a second motor vehicle accident (MVA2).
On 24 January 2017, Mr Abdulrahim contacted Centrelink about his intention to submit a claim for the disability support pension (DSP).
On 30 January 2017, Mr Abdulrahim lodged a claim for the DSP.
In a decision dated 16 November 2017, the claim for DSP was rejected by Centrelink on the basis that Mr Abdulrahim did not meet the ‘Australian residence requirements’ for the payment of the DSP.
In a decision dated 17 December 2018, an Authorised Review Officer (ARO) affirmed the initial decision to reject Mr Abdulrahim’s claim, on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act). In particular, he did not satisfy paragraph 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.
The ARO also stated as follows:
Please note that your immigration movement record shows that you were granted an Australian permanent residency visa subclass 100 on 29 January 2016. According to the social security law, holders of this visa qualify for Disability Support Pension only if they have 10 years qualifying residence, or the event causing their incapacity to work occurred while an Australian resident. For this purpose, you became an Australian resident on 26 January 2016.
In a decision dated 27 February 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Mr Abdulrahim did not qualify for the DSP because he did not satisfy the residency requirement as set out in paragraph 94(1)(e) of the Act.
Mr Abdulrahim seeks review of the decision of the AAT1.
In view of the temporary changes with regard to face-to-face Tribunal hearings during the COVID-19 crisis, and in order to progress Mr Abdulrahim’s application without further delay, the parties agreed for the matter to be decided on the papers alone.
ISSUES
In order to qualify for the DSP, a person must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (Administration Act). That is, Mr Abdulrahim must satisfy the requirements between 30 January 2017 and 1 May 2017 (the qualification period).
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)…
(i)     the person has a continuing inability to work;
(ii)    …
(d)the person has turned 16; and
…
(e)the person either:
(i)    is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)    has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or…
There is no dispute that Mr Abdulrahim suffers medical conditions that cause functional impairment.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is ‘permanent’ (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).
The introduction to each relevant Table requires that ‘there must be corroborating evidence of the person’s impairment’ and that ‘self-report of symptoms alone is insufficient’.
Also, the ‘Introduction to Table 5’ of the Impairment Determination, which is to be used ‘where the person has a permanent condition resulting in functional impairment due to a mental health condition’, states that the diagnosis of the condition ‘must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’.
The Respondent accepts that, during the qualification period, Mr Abdulrahim had the following impairments for the purposes of section 94(1)(a) of the Act:
·Cervical and lumbar disc condition
·Mental health condition
·Bilateral shoulder condition
·Knee and hip condition
The Respondent contends that, during the qualification period, Mr Abdulrahim had a rating of 10 points under the Impairment Tables and, therefore did not satisfy paragraph 94(1)(b) of the Act.
Alternatively, the Respondent contends that, during the qualification period, Mr Abdulrahim did not satisfy paragraph 94(1)(e) of the Act as he did not have 10 years qualifying residence for DSP.
Section 7(2) of the Act defines an Australian resident as a person who:
(a)resides in Australia; and
(b)is one of the following:
(i)     an Australian citizen;
(ii)    the holder of a permanent visa;
(iii)   a special category visa holder who is a protected SCV holder.
Section 7(5) of the Act provides that a person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Section 7(6) of the Act provides that a person has a qualifying residence exemption for a social security pension (other than carer payment) or a social security benefit (other than youth allowance, austudy payment, jobseeker payment, sickness allowance, special benefit or partner allowance) if, and only if, the person:
(a)resides in Australia; and
(b)is either:
(i) a refugee; or
(ii) a former refugee.
Section 739A of the Act provides that:
1Subject to this section, a person who, on or after the commencement of this subsection:
(a)enters Australia; or
(b)becomes the holder of a permanent visa; or
(c)…
is subject to a newly arrived resident’s waiting period.
Mr Abdulrahim received his permanent visa on the 29 January 2016; therefore his Australian residency for the purposes of the Act began on that date.
At the end of the qualification period on 1 May 2017, Mr Abdulrahim had been an Australian resident for only 15 months and, therefore, prima facie, he was not qualified for DSP.
The Social Security Guide[3] provides for the residence qualification criteria for DSP, inter alia, as follows[4]:
To satisfy the residence criteria when claiming DSP, the person must have:
· been an Australian resident at the time when the CITW[5] or permanent blindness occurred (a person’s CITW arises at the time of the incapacitating accident regardless of the age of the person…OR
· 10 years of qualifying residence; OR …
[3] Version 1.266, Released 1 May 2020.
[4] Ibid 3.6.1.12.
[5] Continuing inability to work.
Mr Abdulrahim submits that ‘he became unable to work because of injuries and disabilities he sustained in a second motor accident[6] on 13 January 2017’ when he was a permanent Australian resident.[7]
[6] MVA2.
[7] Section 37 Documents, page 1.
Therefore, the definitive issue in this matter is whether Mr Abdulrahim’s claimed inability to work during the qualification period arose at the time of the MVA2.
EVIDENCE
MVA1 – 24 March 2015
On 7 April 2015, Dr Rahman, general practitioner, referred Mr Abdulrahim to Dr Gupta, orthopaedic surgeon, and noted that ‘post mva bilat shoulder pains u/s revealed bilat full thickness supraspinatus tears’.
In a letter dated 29 April 2015, Dr Gupta stated, inter alia, as follows:
Many thanks for referring your patient, a 45 year old right hand dominant man for management of his bilateral painful shoulders…From history he tells me that he had no problems with either shoulder until he was involved in a car accident approximately a month ago where he tells me he was stationary at a traffic light and was rear ended by a car at reasonable speed. He was wearing a seat belt but he felt immediate pain at the time at the base of his neck and radiating across both shoulders as well as lower down in his back. Over the course of the month, he tells me he has aching in both shoulders with a feeling of heaviness in both arms and an inability to lift his arms up…He states both shoulders are as bad as each other and prior to the accident he had no difficulty with either shoulder....[8]
[8] I note that there was no reference to spinal or knee injury.
Following a clinical examination and review of ultrasound imaging, Dr Gupta noted ‘full thickness ruptures of both supraspinatus tendons’ and recommended ‘arthroscopic repair of the rotator cuff’.
On 18 May 2015, Dr McKechnie, neurosurgeon, reviewed Mr Abdulrahim and noted that following the MVA1, he was ‘reviewed at Bankstown hospital with neck, bilateral shoulder pain, headache and lower back pain. His symptoms have continued despite Lyrica, Indocid and Endone.’
On 18 June 2015, Dr McKechnie reviewed Mr Abdulrahim following recent MRI imaging and noted that surgical intervention was not recommended, and that treatment with physiotherapy and oral pain medication should continue.
In a letter dated 19 August 2015, Dr Kirsh, orthopaedic surgeon, noted that Mr Abdulrahim ‘is having problems with his right knee’ and that following the MVA1 he gradually developed more pain in the knee. He also noted that Mr Abdulrahim’s original problem was with ‘his back and shoulder but his knee progressively got worse’.
Dr Kirsh noted that an MRI demonstrated ‘a healed fracture and an extensive medial meniscal tear consistent with a traumatic origin’ and recommended arthroscopy.
In a report dated 20 October 2015, Dr K A Qidwai[9] noted that following the MVA1 in March 2015, Mr Abdulrahim complained of ‘pain and stiffness in the neck and back, pain in both shoulders, pain in right knee and locking from time to time, high blood pressure, insomnia, depression’ and ‘denied having any similar symptoms prior to the accident’ [emphasis added].
[9] Dr Qidwai is currently not registered with the Australian Health Practitioners Regulation Agency (AHPRA) and his particular scope of practice is unclear.
Dr Qidwai concluded that Mr Abdulrahim had 29 per cent whole body impairment.
On 18 September 2015, Dr McKechnie noted that Mr Abdulrahim was ‘clinically unchanged with neck and back pain’ and that there ‘has been no improvement with medication and physiotherapy.’
Dr Selim, general practitioner, provided three Centrelink Medical Certificates dated 16 June 2016, 23 August 2016 and 9 November 2016, which stated that Mr Abdulrahim was unfit for work/study and listed his symptoms as ‘neck pain stiffness, low back pain stiffness, chronic pain, sleep disturbance, depression.’ Dr Selim also listed Mr Abdulrahim’s medical conditions as ‘cervical spine disease, lumbar disc disease and posttraumatic stress disorder’.
In a brief note dated 24 November 2016, Ms Nikro, psychologist, stated that Mr Abdulrahim had been attending for ‘psychotherapeutic counselling’ and was initially referred following his involvement in a motor vehicle accident.
Imaging
A CT scan of the lumbar spine performed on 1 April 2015, is reported as showing ‘mild circumferential disc bulges at each level’ and ‘multifactorial narrowing of the exit foramina from L2 to S1’.
A right shoulder ultrasound performed on 1 April 2015, is reported as showing ‘subscapularis tendinopathy, full thickness supraspinatus tear, background supraspinatus tendinopathy, partial tear of infraspinatus tendon at articular surface…subdeltoid subacromial bursitis.’
A left shoulder ultrasound performed on 1 April 2015, is reported as showing ‘full thickness supraspinatus tear with background supraspinatus tendinopathy, partial tear of the infraspinatus involving its articular surface. Subdeltoid bursitis.’
An MRI of the cervical spine performed on 21 May 2015, is reported as showing ‘no evidence of vertebral or soft tissue injury is seen. Mild multilevel disc disease with mild bilateral C5/6 foraminal narrowing’.
An MRI of the lumbar spine performed on 21 May 2015, is reported as showing ‘no features to suggest acute injury. L5/S1mild to moderate disc disease …L4/5 mild disc disease…mild facet joint disease...’
An MRI of the right knee performed on 7 July 2015, is reported as showing an ‘extensive tear of the medial meniscus’ and ‘grade III chondromalacia patellae’.
A lumbar spine MRI performed on 9 June 2016 is reported as showing ‘no vertebral body compression fracture or vertebral body marrow oedema. No spondylolisthesis. Mild disc protrusions L4/l5 and L5/S1. Minor canal stenosis L4/5. No nerve root compression evident.’
State Insurance Regulatory Authority
On 26 April 2016, Assessor Jones issued a Motor Accident Medical Assessment Certificate in respect of a claim for a psychiatric injury caused by the MVA on 25 March 2015.[10]
[10] Section 37 Documents, page 185.
The assessor stated that ‘there was insufficient evidence to justify a diagnosis of active psychiatric disorder’ but did note that ‘pain and pain behaviour were the primary foci of the presentation.’[11] He concluded that the claimed psychiatric injuries were ‘not caused by the subject accident’.
[11] Ibid 188.
The medical assessment by assessor Jones was referred to a Review Panel who issued a new Certificate on 14 October 2016.
The Review Panel noted extracts of assessor Jones’ report, inter alia, as follows:
In regard to history of the motor accident Assessor jones noted that the accident occurred on 24 March 2015. Mr Abdulrahim said his wife was giving birth and he was leaving the hospital to get some things. He was sitting at a traffic light and ‘Felt some from behind’ and ‘his neck and body wen forward’. He said the ambulance and police came and he was taken to Bankstown hospital. He was there for two or three days had a neck and back scans,[12] was given painkillers and a brace.
I regard to symptoms and treatment following the accident, Mr Abdulrahim, said he had no surgery but did see a GP and a specialist for his neck, shoulder, back and knees…
In regard to psychosocial history, he denied previous mental health problems, denied physical health problems and denied drug and alcohol problems…
[12] I note there are no reports before the Tribunal of scans performed in March 2015.
The Review Panel also referred to a Motor Accident Medical Assessment Service Certificate as issued by assessor Cameron on 15 May 2016[13], who noted the diagnoses of ‘soft tissue injuries involving cervical spine, lumbar spine, right shoulder, left shoulder and right knee’ but did find that these ‘injuries’ did not give rise to a whole person impairment greater than 10%.
[13] Section 37 Documents, page 188.
With the assistance of an interpreter, the Review Panel interviewed Mr Abdulrahim and provided a comprehensive report which stated, inter alia, as follows:[14]
The panel was of the view that as a consequence of the accident of 24 March 2015 Mr Abdulrahim has developed serious psychiatric and psychological sequelae. The panel could find no clear evidence that he had any pre-existing psychiatric or medical health problems. Given his background in Syria the panel certainly wondered about exposure to traumatic events but Mr Abdulrahim strongly denied this. The panel is well aware that this was a minor accident and caused virtually no damage to the vehicle[15] but Mr Abdulrahim’s self-report is of an ‘explosion’ and his body being thrown backwards and forwards. The panel note that he did sustain some soft tissue injuries in the accident but there is some disagreement amongst the physical assessors in relation to the origin of some of the physical injuries…
The Panel formed the view that Mr Abdulrahim certainly perceived the accident as being very serious in nature and since that time has developed prominent somatic and depressive symptoms which may have led to some amplification of his pain problems.
The panel felt that his depressive symptoms were severe enough to warrant, in DSM-V terms of diagnosis, Major Depressive Disorder with Anxious Distress…
The panel did give consideration to Post Traumatic Stress Disorder ….but felt he did not meet criteria for this condition.
The Panel also found Mr Abdulrahim to meet DSM-V criteria for Alcohol Use Disorder.
Final % whole person impairment was due to subject MVA …22%.
[emphasis added]
[14] Ibid 194.
[15] Ibid 192 - “It was pointed out to him that according to the photographs the Panel have seen there was only damage to a number plate….He said he did not take it for repairs”.
MVA – 13 January 2017
The medical certificate submitted as part of the Motor Accident Personal Injury Claim form dated 30 January 2017 described the injuries as ‘neck, back, left knee R ankle pain’.[16]
[16] There is no reference to increased psychological symptoms.
In a report dated 2 March 2018, Dr Ali, psychiatrist, noted that he saw Mr Abdulrahim on 20 February 2018 and stated, inter alia, as follows:
Mr Rahim had a motor vehicle accident on 2 January 2017 [sic]…Mr Rahim told me after the accident he started having pain and went to his general practitioner who gave him some medication for pain. Later he started feeling very depressed and anxious. He further told me the depression gradually became worse and he started sleeping poorly... On further questioning, he did admit he had dreams about the accident and I was also able to elicit flashbacks. He has also developed a fear of driving.
Mr Rahim gave me a past history of an accident in 2015. He slowly recovered from that and was asymptomatic at the time of the recent accident.
[emphasis added]
Dr Ali made a diagnosis of ‘post-traumatic stress disorder which appears to be the direct result of the motor vehicle accident.’

The difficulty with Dr Ali’s diagnosis is that it is based on a superficial and inaccurate history provided by Mr Abdulrahim and, in my opinion, is of limited value for present purposes.
In a report dated 14 May 2018, Dr Maniam, general surgeon, stated that Mr Abdulrahim was involved in a MVA on 13 January 2017 and ‘sustained injuries to multiple areas: cervical spine, lumbar spine, both shoulders, both hips and both knees’ which he described as musculo-ligamentous strain of pre-existing degenerative disease of the cervical and lumbar spine. He describes the rotator cuff tear of the left shoulder as an ‘aggravation of a pre-existing condition.’
Dr Maniam expresses the opinion that ‘the mechanism of injury seems to be reasonable and the dynamics of the history of the accident would suggest that the injuries were sustained in the manner described’ but, in my view, does not provide a satisfactory explanation to support this opinion.
The difficulty with Dr Maniam’s report is that it is largely based on Mr Abdulrahim’s self-report of symptoms and imaging findings which were present and have remained relatively unchanged since the MVA1 in 2015.
In my view, Dr Maniam’s report is based on questionable assumptions and, therefore, is of limited value for present purposes. However, he does confirm that Mr Abdulrahim did have ‘pre-existing degenerative disease’.
In a letter dated 2 March 2020, Dr Philips, psychiatrist, noted that Mr Abdulrahim had been under his care since June 2018 and that ‘this report was produced to Mr Abdulrahim upon his request and was based on four consultations.’
Dr Philips stated that Mr Abdulrahim’s symptoms started ‘following the first accident in 2015’ and that his current symptoms are consistent with a diagnosis of ‘major depressive episode with comorbid anxiety and PTSD symptoms.’ He goes on to say that ‘Mr Abdulrahim’s prognosis is guarded considering the chronic pain issues and limitation of function as a result of the accident.’
On 14 April 2020, the Tribunal received a copy of a brief letter dated 2 April 2020 from Dr Philips to St John of God Hospital stating: ‘thanks for admitting Mr Abdulrahim. He has been under my care since 6/2018. Mr Abdulrahim is presenting with severe depression since the MVA in 2015.’
It would appear that Dr Philips attributes Mr Abdulrahim’s current mental health condition to the MVA1 in 2015 with no reference to the MVA2 in 2017.
Imaging
MRI imaging of both shoulders and right knee performed on 23 March 2017 revealed similar findings to the ultrasound and MRI reports in 2015 and 2016.
MRI imaging of the cervical and lumbar spine performed on 13 April 2017 again revealed similar findings as had been previously reported. An MRI of the left knee performed on the same day is reported as showing a ‘medial meniscal tear’.[17]
[17] The relevance of the pathology in the left knee for present purposes is unclear.
An MRI of the right hip performed on 28 August 2017 is reported as showing minor changes ‘of doubtful clinical significance.’
An MRI of the brain performed on 26 May 2017, because of ‘persistent headache with suspected intracranial pathology’, is reported as ‘showing no cause for the patient’s symptoms.’
An MRI of the left shoulder performed on 9 November 2017 simply confirmed previously diagnosed rotator cuff pathology.
A CT scan of the lumbar spine performed on 5 April 2018 provided no new relevant information.
A whole body bone scan and SPECT/CT performed on 9 May 2018, is reported as follows:
There is scan evidence for mildly active degenerative arthritic change. There is evidence for active C5/C6 spondylosis together with facet joint arthritis in the right C7/T1 level. Minor lumbar degenerative spondylosis is noted. There is no evidence of recent osteochondral injury.
A CT scan of the cervical spine and lumbar spine performed on 27 June 2018 confirmed previously described degenerative cervical spine changes.
An MRI of the cervical and lumbar spine performed on 18 October 2018 is reported as showing ‘mild to moderate degenerative change’ and unchanged when compared with previous MRI.
An MRI of the cervical spine performed on 30 August 2019 revealed ‘mild cervical spondylosis’ and ‘foraminal narrowing at C5-6 bilaterally’.
An MRI of the lumbar spine performed on 30 August 2019 revealed ‘discovertebral changes at the lower two lumbar levels with intravertebral disc herniations’.
State Insurance Regulatory Authority
On 4 December 2018, assessor Gorman issued a Motor Accident Medical Assessment Service Certificate in respect of the MVA on 13 January 2017. In his report, assessor Gorman stated, inter alia as follows:
When questioned at this assessment Mr Abdulrahim said that just before the subject accident in 2017 he stated that he complained of tiredness and some episodes of shoulder pain. He said that he did not have symptoms of the severe neck or back pain that he has now.
He said instead that he was he was living a normal life while he studied at the time of the 2017 accident, he said’ it changed everything’…
On 13 January a car came through a red light and struck the driver’s side of his car. He hit the left side of the other car. His car spun around.
He did not go into hospital but his wife was hospitalised for 1 week – she was pregnant at the time.
…he saw his local medical officer (17 days after the accident). At that time he had ‘pain all over his body’. He particularly had left knee, right hip, right ankle, neck and back pain.
…
He had scans but little specific treatment during 2017.
…when seen on 20 March 2018 by Assessor Fiona Condie he reported that, after the subject accident, his symptoms in the neck and back were more severe than before the accident…
At his review by Assessor Michael Ryan on 4 April 2018 he complained of pain in his neck, back shoulders and knees. He had pain on the left side of his face and head...
In September 2018 he saw Dr Hassem, a pain medicine specialist in Liverpool Hospital.
He went on to have multiple cervical spine injections…bilateral L4/5 and L5/S1 as well as C4/5 facet joint injections…bilateral L5 perineural injections…
He was started on new medications…
I note the Certificate from Assessor Michael Ryan dated 4 April 2018 …he noted that at that time widespread pain and as well noted ‘inconsistencies evident throughout the examination’. He made the observation that the injuries in the Medical Assessment Certificate…following the 2015 incident were almost the same as after this 2017 incident. He stated that the symptoms were virtually identical.
The assessor concluded, inter alia as follows;
Mr Abdulrahim has widespread symptoms following the motor vehicle accident on 13 January 2017. They are related to both physical injury as well as marked somatisation, kinesophobia, with fear avoidance behaviours, deconditioning and depressed mood…
I do not believe that one can assess him at this stage with regard permanent impairment; many of the symptoms and findings seen on examination are potentially reversible.
His current injuries occur on the background of a 2015 accident – he had ongoing symptoms from this accident…Many symptoms are similar to after that accident and they had not resolved by the time of the 2017 accident.
On 21 February 2019, medical assessor, Howe Synnott, issued a Motor Accident Medical Assessment Service Certificate in respect of a claim for injuries listed as ‘depression, anxiety, PTSD’ following the MVA on 13 January 2017. The assessor stated inter alia as follows:
He was an extremely poor historian; vague about dates and details; often said ‘don’t know’, ‘ask my wife’ or ‘I don’t understand it’. His history was of few words and imprecise; one could not be confident in the accuracy and veracity of this history…
When asked about medical or surgical problems prior to subject MVA he initially said no – and then said he could not remember…When asked about psychiatric difficulties prior to the subject MVA, he said no. When I said medical notes document significant psychiatric difficulties before the subject MVA, he said he could not remember…He was unable to describe physical or psychological symptoms arising from the earlier MVA (24 March 2015).
When asked about his psychological state prior to subject MVA and if there were any difficulties participating in the activities of daily living, he said no. He said he was studying at TAFE and getting on with his life. When I said medical reports indicate he had significant psychiatric difficulties following an earlier MVA and these impacted on his capacity to participate in the activities of daily living, he said he could not remember.[18]
[18] The Review Panel in October 2016 noted mild to moderate impairment in categories 1 to 5 and total impairment in category 6 (adaptation).
In his report, the assessor referred to a report by Ms Condie, physiotherapist, dated 3 April 2018, which has not been provided to the Tribunal. In this report, Ms Condie had noted a medical report, dated 24 November 2015, in which Dr T. Ahmed, psychiatrist, opined that Mr Abdulrahim ‘was suffering from major depression related to the 2015 MVA.’ This report was also not provided to the Tribunal.
In his report, the assessor also listed extracts from the clinical records of the Medical and Dental Centre, the general practice attended by Mr Abdulrahim, as follows:
·6 June 2016: MVA on 25 March 2015…Neck pain, low back pain, stiffness, physiotherapy, tenderness neck and back stiffness. Right knee meniscal tear; bilateral shoulder pains.
·26 July 2016: Neck pain and stiffness, left hand numbness, low back pain and stiffness.
·29 September 2016: Low back pain and stiffness, left shoulder pain; depression; counselling.
·7 November 2016: Neck and back pain and stiffness; depression; counselling.
·9 November 2016: Neck and back pain and stiffness; depression.
·21 November 2016: GP mental health care plan:
·30 January 2017[19]: MVA on 13 January 2017…no mention was made of psychological symptoms.
·16 February 2017: Low back pain, stiffness, leg pain, depression, bilateral leg pains.
[19] Date of claim for DSP.
The assessor concluded that, in relation to the subject MVA, Mr Abdulrahim’s symptoms are consistent with the diagnoses of ‘exacerbation of pre-existing major depressive disorder (with psychotic features)’ and ‘post-traumatic stress disorder’.
CONSIDERATION
Mr Abdulrahim submits that, during the qualification period, he was unable to work because of ‘injuries’ and ‘disabilities’ he sustained in the MVA2 on 13 January 2017, when he was a permanent Australian resident.
Mr Abdulrahim claims that prior to this MVA2, he was relatively asymptomatic and, following the accident, he experienced a significant increase in physical and psychological symptoms, which have now persisted.
I note that, immediately after the MVA2, Mr Abdulrahim apparently did not require any medical attention.
On 24 January 2017, 11 days after the MVA2, Mr Abdulrahim contacted Centrelink about his intention to claim the DSP.
Mr Abdulrahim did not consult his GP until 30 January 2017, 17 days after the MVA2.[20] On the same day he lodged a claim for the DSP, which was dated 27 January 2017.[21]
[20] Section 37 Documents, page 11.
[21] Ibid 229.
In the Medical Assessment Service report dated 21 February 2019, the assessor noted that Mr Abdulrahim had consulted his GP on 16 February 2017, approximately one month after the MVA2, who had recorded symptoms of ‘low back pain, stiffness, leg pain, depression, bilateral leg pains.’ The assessor also noted that in 2016, in the seven months prior to the MVA, Mr Abdulrahim had consulted his GP on several occasions with similar symptoms.
Also, during that period Mr Abdulrahim was provided with 3 Centrelink medical certificates by his then GP, stating that he was unfit for work because of ‘neck pain stiffness, low back pain stiffness, chronic pain, sleep disturbance, depression’.
Clearly Mr Abdulrahim’s claim that he was ‘asymptomatic’ prior to the MVA2 is not supported by the available documentary evidence.
Apart from Mr Abdulrahim’s own self-report of symptoms, there is no contemporaneous corroborative evidence to support his claim that his symptoms had significantly increased during the qualification period. In fact, apart from various imaging reports and the above noted reference to two GP consultations in January and February 2017, no other clinical documentary evidence has been provided to the Tribunal pertaining to Mr Abdulrahim’s various medical conditions during 2017.
The remainder of the medical evidence is somewhat problematic in that it assumes that Mr Abdulrahim suffered significant ‘injuries’ as a result of the MVAs. The various assessments and reports are largely focussed on the percentage of permanent impairment for the purposes of compensation. There is little evidence with respect to the clinical management of Mr Abdulrahim’s symptoms, particularly treatment, and no meaningful assessment of his circumstances during the qualification period.
Furthermore, the available evidence indicates that Mr Abdulrahim was not always able to provide a reliable and accurate medical history. Whether this was intentional, in order to mislead; or whether it was genuine, is unclear. Therefore, in my view, the value of the various assessments and opinions provided by the medical practitioners have been diminished, some more than others.
With respect to Mr Abdulrahim’s claimed ‘injuries’, the numerous imaging reports confirm that in 2015, Mr Abdulrahim had significant degenerative changes in his cervical spine, lumbar spine, both shoulders and right knee. The subsequent reports demonstrate that there were no significant changes over the ensuing five years and the reason for repeating some of the imaging studies is unclear.
Furthermore, the causal relationship of the reported degenerative changes to either of the MVAs, in my view, is unclear.
MVA1 in 2015 was apparently a relatively minor accident and apart from a temporal relationship with Mr Abdulrahim’s post-accident pain symptoms, there is no convincing explanation to link the reported pathological changes with that accident. In my view there is no convincing evidence that Mr Abdulrahim suffered any significant musculo-skeletal injury apart from a temporary increase in pain.
Therefore, I am satisfied that the so called musculoskeletal ‘injuries’ were certainly present in 2015 prior to the MVA2 and probably prior to the MVA1.
The issue of Mr Abdulrahim’s mental health symptoms is also somewhat problematic, because I find the evidence before the Tribunal to be largely incomplete and unconvincing.
However, notwithstanding the difficulty with the evidence, I am satisfied that there is sufficient evidence to conclude that in 2015, Mr Abdulrahim suffered a significant mental health condition; although the precise diagnosis is unclear.
It would appear that in 2018, Mr Abdulrahim’s mental health condition deteriorated as evidenced by the fact that in June 2018, he sought treatment with a psychiatrist.
It is clear that Mr Abdulrahim believes that his current mental health condition was caused by the MVA2 in 2017 and claims his symptoms had increased immediately after the accident, that is, during the qualification period and when he was an Australian resident.
The difficulty for Mr Abdulrahim is, apart from his own self-report symptoms, which has not always been reliable; there is no convincing corroborative evidence to support his claim.
Furthermore, his treating psychiatrist appears to believe that Mr Abdulrahim’s mental health condition was caused by the MVA1 in 2015.
Conclusion
For reasons set out above, I am not persuaded that Mr Abdulrahim’s incapacity for work, during the qualification period, arose at the time of the MVA2 in January 2017.
I am also not persuaded that Mr Abdulrahim’s musculoskeletal conditions arose at the time of the MVA1 in March 2015.
On the available evidence I accept that the MVA1 in March 2015 was a contributing factor to Mr Abdulrahim’s mental health condition.
It follows that, as Mr Abdulrahim was not an Australian resident in March 2015, he did not satisfy the residence requirement for DSP during the qualification period in 2017.

DECISION

For reasons set out above, the Tribunal is satisfied that, during the qualification period, Mr Abdulrahim did not satisfy section 94(1)(e) of the Act and did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member.

.....[sgd]...................................................................
Associate
Dated: 7 May 2020

Type of listing Decision on the papers

Date of listing: 16 April 2020

Solicitor for the Respondent: Ms Glenda Heggen, Services Australia

[2020] AATA 1160

7 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Type of listing	Decision on the papers
Date of listing:	16 April 2020
Solicitor for the Respondent:	Ms Glenda Heggen, Services Australia