Al-Hallaq and Secretary, Department of Social Services (Social services second review)

[2019] AATA 367

Al-Hallaq and Secretary, Department of Social Services (Social services second review) [2019] AATA 367 (11 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3905

Re:Anees Al-Hallaq

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:11 March 2019

Place:Sydney

The decision under review is affirmed.

........................[SGD]................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments fully diagnosed, treated and stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – gastro-oesophageal reflux disorder – irritable bowel syndrome – lower limb condition – mental health condition – hearing condition – back condition – sleep apnoea – diabetes – urinary incontinence – hyperlipidaemia – hypertension – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

11 March 2019

INTRODUCTION

1. Mr Anees Al-Hallaq lodged a claim for disability support pension on 20 January 2017.

2. The Department of Human Services (Centrelink) rejected Mr Al-Hallaq’s claim for disability support pension on 1 June 2017 because he did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 19 January 2018.

3. Mr Al-Hallaq then applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 15 June 2018, the SSCSD affirmed the decision of Centrelink.

4. On 8 July 2018, Mr Al-Hallaq applied to the General Division of the Tribunal for review.  

5. The matter was heard in Sydney on 22 February 2019. Mr Al-Hallaq attended the hearing in person and was assisted by an interpreter of the Arabic language; he did not have legal representation.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for the disability support pension, Mr Al-Hallaq must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mr Al-Hallaq must satisfy these criteria on 20 January 2017 when he applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (the claim period).

   Rules for assigning impairment ratings 

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevant to this matter, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also 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).

14. The Secretary concedes, and the Tribunal agrees, that Mr Al-Hallaq has medical conditions that cause impairment and during the claim period he satisfied paragraph 94(1)(a) of the Act.

15. It follows that the determinative issues in this matter are whether, during the claim period, Mr Al-Hallaq had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue – Does Mr Al-Hallaq have an impairment rating of 20 or more points under the Impairment Tables?

    Gastro-oesophageal reflux disorder (GORD) and irritable bowel syndrome (IBS)

16. Dr George Youssef (general practitioner) reported on 5 January 2017 that Mr Al-Hallaq has been diagnosed with GORD and IBS.

17. On 7 February 2017, a barium swallow test conducted by Dr Tariq Khalil (radiologist) to investigate Mr Al-Hallaq’s dysphagia concluded:

    Degenerative spondylosis of cervical spine with endplate osteophytes indenting the oesophagus within the neck. Early filling of the vallecula during the swallowing reflex but no aspiration was demonstrated.[1]

    [1] Exhibit T-T75, page 362.

18. On 18 September 2018, more than 18 months after the claim period, Dr Khalid El Skafi (general practitioner) reported that Mr Al-Hallaq suffered from chronic and recurrent episodes of epigastric pain and GORD, which is treated with Nexium to “keep symptoms under control”.[2]

    [2] Exhibit R2.

19. At the Tribunal hearing, Mr Al-Hallaq contended that his symptoms of GORD are getting worse and are not adequately treated with Nexium; however, this contention is not supported by the medical evidence before the Tribunal.

20. The medical evidence shows Mr Al-Hallaq’s conditions of GORD and IBS were continuing to be investigated during the claim period. I am therefore satisfied these conditions were fully diagnosed, but not fully treated and fully stabilised. In accordance with the Impairment Tables Determination, I am unable to assign points for these conditions.

    Lower limb condition

21. Reports by Dr Nick Vertzyas (orthopaedic surgeon) dated 15 June 2009 and 23 February 2010 described Mr Al-Hallaq having pain in his right knee, and undergoing a right knee arthroscopy and partial medial meniscectomy.

22. In a medical imaging report of Mr Al-Hallaq’s left knee on 24 September 2011, Dr Matthew Healy (radiologist) concluded Mr Al-Hallaq had “a tear of the medial meniscus which is now minimally complex…[and] mild to moderate degenerative changes…in the medial joint compartment”.[3]

    [3] Exhibit T-T39, page 236.

23. On 8 May 2018, Mr Tamer Kahil (consultant orthopaedic surgeon) reviewed Mr Al-Hallaq and reported he:

    had his bilateral knee MRI that showed degenerative meniscal tear mainly in the left knee (medial and lateral). Also the right knee had degenerative tears of the medial meniscus.

    As the problem is mechanical, he would benefit from arthroscopic debridement of both knees… I advise referring him to a public orthopaedic surgeon…[4]

    [4] Exhibit T-T92, page 423.

24. Dr El Skafi, in his report dated 18 September 2018, confirmed that Mr Al-Hallaq’s condition and past and present treatment as follows:

    …suffers [b]ilateral knee pain due to degenerative meniscal tear mainly affecting of the left me, he also have [sic] degenerative tears of the right medial meniscus.

    [H]e had to arthroscopic knee operations in the past (2008 and 2009)….

    [H]e is on regular Mobic and panadol for pain relief.[5]

    [5] Exhibit R2.

25. Mr Al-Hallaq told the Tribunal that he is not intending to have any further surgery on his knees, although he may consider external treatment to alleviate pain.

26. As surgery has been recommended for Mr Al-Hallaq that may result in improved functional capacity, I find this condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. In accordance with the Impairment Tables Determination, I am unable to assign points for this condition.

    Mental health condition

27. In a report dated 13 June 2012, Mr Emad Girgis (clinical psychologist) noted that Mr Al-Hallaq presented with symptoms of irritability, low mood, insomnia, lack of energy and motivation, and decreased self-confidence. Mr Girgis diagnosed Mr Al-Hallaq with major depressive disorder and anxiety disorder, and recommended treatment including cognitive behavioural therapy, relaxation techniques, thought challenging techniques and interpersonal therapy. Mr Girgis opined that Mr Al-Hallaq would “be fit to look for work in three months.”[6]

    [6] Exhibit T-T52, page 273.

28. Mr Al-Hallaq was referred to Dr Fayza Al Shamali (registered psychologist) on 8 March 2018, more than 12 months after the claim period, for assessment and appropriate intervention. Dr Al Shamali reported on 13 April 2018 that Mr Al-Hallaq has a long-standing history of chronic depression and anxiety with continuing psychological, psychiatric and pharmacological treatment.

29. At the Tribunal hearing, Mr Al-Hallaq said he had seen Mr Girgis on four or five occasions in 2012; however, he had not seen another specialist until Dr Al Shamali in 2018. I note that Dr Al Shamali is neither a clinical psychologist nor a psychiatrist.

30. The Tribunal is unable to assign points for this condition because there was no current diagnosis by either a clinical psychologist or a psychiatrist as required by the introduction to Table 5 – Mental Health Function of the Impairment Tables Determination.

    Hearing condition

31. Mr Al-Hallaq has tinnitus and mild hearing loss in both ears.

32. This condition is verified in reports by Ms Tania Audi (audiologist) on 28 June 2012 and 4 March 2014. Ms Audi also reported on 4 March 2014 that Mr Al-Hallaq has “a mild hearing loss in the high frequencies bilaterally”.[7] On 4 August 2017, Ms Audi recommended further review of Mr Al-Hallaq’s condition of tinnitus by a specialist; she noted further hearing loss in the left ear on 23 August 2018.

    [7] Exhibit T-T91, page 406.

33. Dr El Skafi reported on 18 September 2018, more than 18 months after the claim period, that Mr Al-Hallaq was waiting to be seen by an ear, nose and throat specialist. Dr Gil Kleiner (ear, nose and throat specialist) reported on 11 October 2018 that Mr Al-Hallaq “complains of bilateral ringing tinnitus” and examination of both his ears “was normal”.[8] Dr Kleiner noted there is “no magic treatment” for tinnitus and prescribed Endep to assist Mr Al-Hallaq.

    [8] Exhibit A1.

34. There is no evidence before the Tribunal that enables an appropriate rating in accordance with Table 11 – Hearing and other Functions of the Ear. I note that Mr Al-Hallaq was still seeking specialist review for this condition more than 18 months after the claim period, even though the outcome of this review noted “no magical treatment” was available. In accordance with the Impairment Tables Determination, the Tribunal is unable to assign points for this condition.

    Back condition

35. On 5 January 2017, Dr Youssef referred Mr Al-Hallaq to a neurosurgeon for review of pain in his back.

36. Reports by Dr Renata Abraszko (neurosurgeon and spinal surgeon) on 14 June 2018 and 16 August 2018, more than 15 months after the claim period, noted deterioration of Mr Al-Hallaq’s L4-L5 disc; neurological examination revealed normal power, tone, reflexes and sensation. Dr Abraszko recommended “radiofrequency lesioning would be…appropriate treatment for him, since there is very little, if any risk”.[9] Mr Al-Hallaq underwent this treatment on 31 August 2018 by Dr Himanshu Kaushik (radiologist) but reported experiencing “no significant change”.[10]

    [9] Exhibit A1.

    [10] Exhibit A1.

37. Mr Al-Hallaq told the Tribunal he has a further appointment with Dr Abraszko on 21 March 2019. Based on the evidence before the Tribunal, I am satisfied this condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Sleep apnoea

38. Mr Al-Hallaq underwent a diagnostic sleep study with sleep specialist, Dr Andrew Dimitri in 2017. Dr Dimitri reported on 19 April 2017 that Mr Al-Hallaq’s severe sleep apnoea was well-controlled with CPAP and “download from machine showed excellent compliance and good control of his sleep apnoea”.[11] This was confirmed by Dr El Skafi on 18 September 2018.

    [11] Exhibit T-T79, page 378.

39. At the Tribunal hearing, Mr Al-Hallaq disputed the medical reports and said the CPAP machine does not help him. Unfortunately for Mr Al-Hallaq, this is not supported by the medical evidence.

40. Based on the evidence before the Tribunal, I am satisfied this condition was fully diagnosed, fully treated and fully stabilised during the claim period. As the medical evidence shows this condition is well-controlled and has no functional effect on Mr Al-Hallaq, I am unable to assign points for this condition.

    Diabetes

41. On 16 January 2018, Dr Marwan Obaid (consultant endocrinologist) reported that Mr Al-Hallaq was diagnosed with type II diabetes in 1999 and commenced insulin on 14 February 2013. Dr Obaid made recommendations about dietary changes for Mr Al-Hallaq, in particular eating smaller meals more regularly and reducing the amount of olive oil he consumes.

42. Dr El Skafi reported on 18 September 2018 that Mr Al-Hallaq has “unstable diabetes” and insulin dependent diabetes mellitus (IDDM). He set out a management plan in relation to Mr Al-Hallaq’s diet and exercise, and noted that despite taking insulin and oral antidiabetic medications, seeing an endocrinologist on a regular basis and being compliant with follow-up appointments, Mr Al-Hallaq has difficulty controlling and managing his diabetes. Dr El Skafi outlined that Mr Al-Hallaq has tiredness and low energy levels when his diabetes “play[s] around”.[12]

    [12] Exhibit R2.

43. Mr Al-Hallaq told the Tribunal he has been seeing an endocrinologist regularly (every six months) for the past five years. He observed that he takes medication but said diabetes “is only controlled if [he] eats nothing except one orange and one apple”.

44. Based on the medical evidence, I am satisfied this condition was fully treated during the claim period. However, the evidence shows that this condition may improve if Mr Al-Hallaq adheres to dietary and exercise recommendations. Therefore, I find this condition was not fully treated and fully stabilised during the claim period. In accordance with the Impairment Tables Determination, I am unable to assign points for this condition.

    Urinary incontinence

45. On 18 September 2018, Dr El Skafi reported that Mr Al-Hallaq has been referred to a specialist for urinary incontinence and prostatomegaly. Mr Al-Hallaq told the Tribunal he has not yet seen a specialist for this condition.

46. The Tribunal finds this condition was not fully diagnosed, fully treated and fully stabilised during the claim period. Therefore, points cannot be assigned for this condition in accordance with the Impairment Tables Determination.

    Hyperlipidaemia and hypertension

47. Dr Youssef reported on 14 December 2011 that Mr Al-Hallaq takes medication for high cholesterol. Dr Hamid Almafragy (cardiologist) reported on 7 October 2016 and 5 October 2017 that Mr Al-Hallaq’s cholesterol profile improved with a change of medication and his risk factors for hypertension “seem to be under good control now”.[13]

    [13] Exhibit T-T91, page 415.

48. The limited medical evidence suggests these conditions are fully diagnosed, fully treated and fully stabilised. There is no medical evidence before the Tribunal that shows either of these conditions have any functional impact on Mr Al-Hallaq. Therefore, I cannot assign points for these conditions under the Impairment Tables Determination.

    CONCLUSION

49. For the reasons set out above, I am satisfied that Mr Al-Hallaq did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.

50. As I find that Mr Al-Hallaq did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

51. The decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[SGD]..............................................

Associate

Dated: 11 March 2019

Date(s) of hearing:	22 February 2019
Applicant:	In person
Solicitors for the Respondent:	S Thompson, Department of Human Services