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

[2022] AATA 438

Al Hassnawy and Secretary, Department of Social Services (Social services second review) [2022] AATA 438 (15 March 2022)

Division:GENERAL DIVISION

File Number(s):      2021/4925

Re:Maytham Al Hassnawy

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:15 March 2022

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the qualification period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2, s 42

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

REASONS FOR DECISION

Dr L Bygrave, Member

15 March 2022

INTRODUCTION

1. The applicant, Mr Maytham Al Hassnawy, lodged a claim for disability support pension on 23 November 2020.

2. Services Australia, both initially and on review, rejected Mr Al Hassnawy’s claim for disability support pension on the basis that he did not meet the requirements set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).

3. Mr Al Hassnawy applied to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 7 July 2021, the AAT1 affirmed the decision of Services Australia.

4. On 20 July 2021, Mr Al Hassnawy made an application for review to the General Division of the Tribunal.

5. The application was heard by the Tribunal in Sydney on 9 February 2022. Mr Al Hassnawy attended the hearing by video conference and provided oral evidence with the assistance of an interpreter of the Arabic language.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. The qualification criteria for disability support pension are set out in section 94 of the Act and include the requirement for Mr Al Hassnawy to show he has:

   ·a physical, intellectual or psychiatric impairment: paragraph 94(1)(a) of the Act; and

   ·an impairment rating of 20 or more points according to the Impairment Tables: paragraph 94(1)(b) of the Act; and

   ·a continuing inability to work: paragraph 94(1)(c) of the Act.

7. Further, Mr Al Hassnawy must satisfy these criteria on the date he applied for disability support pension on 23 November 2020 or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the qualification period).

   Rules for assigning impairment ratings

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

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it 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) of the Impairment Tables Determination.

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; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.

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) of the Impairment Tables Determination.

13. Reasonable treatment is described as treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person: subsection 6(7) of the Impairment Tables Determination.

    CONSIDERATION

    Issue: Does Mr Al Hassnawy have a physical, intellectual or psychiatric impairment as required by paragraph 94(1)(a) of the Act?

14. The medical evidence before the Tribunal shows Mr Al Hassnawy has the following medical conditions that cause impairment: spinal disorder / chronic back pain; inflammatory arthritis / greater trochanteric pain syndrome; and depression and anxiety.

15. Therefore, I am satisfied that Mr Al Hassnawy met the requirement in paragraph 94(1)(a) of the Act during the qualification period.

    Issue: Does Mr Al Hassnawy have an impairment rating of 20 or more points under the Impairment Tables as required by paragraph 94(1)(b) of the Act?

    Spinal disorder / chronic back pain

16. Mr Al Hassnawy has a long history of back pain. This is supported by medical certificates and written reports from Dr Maha Mikhail (general practitioner) dated 25 November 2019, 1 April 2020, 12 November 2020, 23 December 2020 and 16 September 2021.

17. On 29 October 2019, Dr Mikhail referred Mr Al Hassnawy to Dr Ian Gotis-Graham (rheumatologist) for review of ‘severe pain going both legs’ and forwarded a bone scan dated 25 October 2019.[1]

    [1] Exhibit T-T8, pages 123-124.

18. Dr Gotis-Graham reported the following on 10 December 2019:

    Lumbar spine movements reproduced pain in both legs. The hips, knees and feet were normal. The power and reflexes in the legs were normal.

    It is highly likely that the bilateral leg pain is due to bilateral L5 nerve root irritation. It is likely that this is occurring at the L4/5 disc level. As there has been significant increase in his pain since July, I have organised a repeat MRI scan of the lumbar spine and have asked him to return to Dr Van Gelder. He will increase Lyrica by 75 mg each week until he reaches 150 mg twice a day.

    The pain is not due to peripheral vascular disease. The peripheral pulses in both feet are normal. There is no evidence of significant hip, knee or ankle pathology. The bone scan revealed minor degenerative uptake at several sites which is not relevant.[2]

    [2] Exhibit ST-ST3, pages 302-303.

19. On 23 December 2020, during the qualification period, Dr Mikhail reported:

    He has been having severe back pain since 2008.

    He required recurrent microdiscectomy in 2008 & 2013.

    Over the past year he has had intolerable back pain going down both legs. MRI scan showed L4-L5 advanced degenerative changes with subtle canal stenosis impacting L5 nerve root on the right side.

    He required lumbar decompression operation at Concord Hospital by Dr Van Gelder in October 2020. He underwent an extension of his laminectomy at L4 level. The L5 nerve was decompressed.

    Since the surgery, he hasn’t been well. He is complaining of severe lower back pain down both legs with numbness burning all the time.[3]

    [3] Exhibit T-T31, page 198.

20. Dr Mikhail further reported on 16 September 2021, more than six months after the qualification period, that Mr Al Hassnawy had ‘recently’ been reviewed by Dr Michael Davies for pain management, had undergone perineural injections ‘with no good effect’ and had been referred to Dr Admad Iftikha (psychiatrist) for pain management.[4] Dr Mikhail stated:

    His pain level ranges between 8 to 10 out of 10. He can’t sit stand sleep comfortably. It interferes with his quality of life. I don’t believe his pain level will change or his quality of life…

    His condition has been fully treated & has reached maximum improvement. Which means he will never improve. He is disabled & not fit for work…

    He is not fit for any type of duties.[5] [replicated as in original]

    [4] Exhibit ST-ST5, page 305.

    [5] Exhibit ST-ST5, pages 305-306.

21. Dr James van Gelder (neurosurgeon and spine surgeon) wrote reports dated 3 July 2020, 26 August 2020, 12 October 2020, 2 November 2020, 17 February 2021 and 27 October 2021 in which he described Mr Al Hassnawy’s history of L4-5 right microdiscectomy in 2008, recurrent disc herniation in 2013 and subsequent revision surgery in 2020.

22. On 26 August 2020, Dr van Gelder stated that an MRI scan of Mr Al Hassnawy’s lumbar spine showed ‘mild residual disc bulging and lateral canal stenosis potentially impacting the L5 nerve’ and recommended surgical treatment.[6]

    [6] Exhibit T-T22, page 147.

23. On 12 October 2020 and 2 November 2020, Dr van Gelder reported that Mr Al Hassnawy was admitted to hospital on 8 October 2020 for a lumbar decompression operation at L4-5 on the right side. Dr van Gelder observed on 12 October 2020 that ‘[i]mmediately postoperatively, Mr Al Hassnawy is neurologically unchanged and reported some improvement in his pain’.[7] However, three weeks later on 2 November 2020, Dr van Gelder reported:

    Mr Al Hassnawy has residual symptoms after his third operation on the right at L4-5. This is understandable. He is hard to assess, but I do not think further investigation of neurosurgical treatment is warranted. Mr Al Hassnawy should be managed with first line medication and encouragement with being mobile and talking to a physiotherapist. I will be happy to review him if he is not making progress.

    Mr Al Hassnawy is concerned about his work capacity for Centrelink. Based on his history of surgery and his current complaints, he is not suitable for work that involves sustained standing, sitting or walking. He is not going to tolerate work. He has a mild functional impairment for activities involving the spine. I cannot see him improving in the next six months.[8]

    [7] Exhibit T-T25, page 153.

    [8] Exhibit T-T26, page 154.

24. On 17 February 2021, during the qualification period, Dr van Gelder reported that Mr Al Hassnawy was ‘complaining that his symptoms have recently become much worse’.[9] Dr van Gelder noted that Mr Al Hassnawy described ‘back pain radiating into his right knee and leg’ and there was ‘poorly localised numbness and pain in his legs’ and his ‘symptoms were exacerbated by walking and standing or sustained sitting.[10] Dr van Gelder further observed that Mr Al Hassnawy had ‘uninterpretable physical examination’.[11]

    [9] Exhibit ST-ST4, page 304.

    [10] Exhibit ST-ST4, page 304.

    [11] Exhibit ST-ST4, page 304.

25. In his report dated 27 October 2021, Dr van Gelder stated that he saw Mr Al Hassnawy who was ‘complaining of lower lumbar pain’ on 25 October 2021.[12] Dr van Gelder stated:

    I attempted a physical examination, but it was not meaningful. There were too many signs of inconsistency and embellishment.

    Mr Al Hassnawy consulted me in February and I have referred him for an MRI scan, which he had in March, but he did not return for review. The MRI scan shows the expected postoperative changes at L4-5 with no recurrent disc herniation. The disc is flattened and degenerate with type II Modic changes. There are no signs of deformity or instability or nerve compression or other red flag clinical conditions.

    I referred Mr Al Hassnawy for update MRI scan of his lumbar and thoracic spine, a bone scan and blood tests. I will be happy to review him to discuss the results, but in this stage he does not have indications for neurosurgical procedures or spinal interventions. Mr Al Hassnawy has had a sequence of injections with Dr Davies. He has had a recent functional lumbar x-ray, that did not show any instability or deformity.

    For Centrelink purposes, it is understandable that Mr Al Hassnawy would have some radicular residual symptoms, central sensitisation, and back pain after his history of multiple lumbar disc herniations and operations at L4-5. It is consistent with his history that he would have a mild permanent impairment for activities involving the spine.[13]

    [12] Exhibit ST-ST8, page 310.

    [13] Exhibit ST-ST8, page 310.

26. Dr Michael Davies (pain clinician) provided a report dated 5 October 2021, more than seven months after the claim period, in which he observed that Mr Al Hassnawy’s ‘ongoing treatment revolves around pain management’.[14]

    [14] Exhibit ST-ST6, page 307.

27. Services Australia filed Health Professional Advisory Unit (HPAU) reports dated 24 November 2021 and 5 January 2022. The HPAU reports reviewed all the medical evidence (including specialist medical reports and medical imaging) in relation to Mr Al Hassnawy’s spinal disorder / chronic back pain and considered the condition was fully diagnosed, fully treated and fully stabilised during the qualification period with an ‘assignable rating of 5 points under Table 4’.[15] On 5 January 2022, the HPAU report stated:

    There is no diagnostic imaging evidence of post-operative compressive radiculopathy to support an additional impairment rating under Table 3 – Lower Limb Function, and as the treating neurosurgeon [Dr van Gelder] noted in October 2021, on attempted clinical examination “too many signs of inconsistency and embellishment” were evident. It should be noted that diagnostic imaging evidence of pathological changes in the spine does not necessarily equate to the extent of symptoms or their reported severity, which are subject to expert clinical correlation.

    A/Prof van Gelder’s transparent and forthright clinical assessments are both highly authoritative and categorical, on the basis of his vast expert clinical insight and experience and capacity as the treating neurosurgeon, and are in accord with the opinion expressed in the original HPAU report and the supplementary report. In my opinion his assessment of a “mild permanent impairment for activities involving the spine” can and should be readily accepted.[16]

    [15] Exhibit ST-ST11, page 315.

    [16] Exhibit ST-ST12, pages 327-328.

28. At the Tribunal hearing, Mr Al Hassnawy said he has suffered from pain in his spine since about 2004. He confirmed his history of medical treatment including operations in 2008, 2013 and 2020. Mr Al Hassnawy said that he had recovered from his operations in 2008 and 2013 to the extent that he was able to provide care to his wife from 19 June 2007 to 7 November 2019 (he was in receipt of carer payment during this period). He also participated in paid employment, providing family day care for a ‘minimum’ of 37 hours per week in the period from 16 December 2013 to 26 June 2016.[17] Mr Al Hassnawy agreed that he was also able to travel overseas by aeroplane on five occasions from November 2009 to February 2019. However, Mr Al Hassnawy said that since his revision surgery in October 2020, he is in ‘a lot of pain and discomfort’ and his spinal condition is ‘way worse than it was’. He said he ‘cannot stand for more than two minutes’ and ‘stands with a bent back’. He attended the Tribunal hearing by videoconference sitting/lying on a bed in a half-reclined posture.

    [17] Exhibits ST-ST1 and ST-ST2, pages 291-301.

29. Mr Al Hassnawy told the Tribunal that, during the qualification period, he was able to dress himself, get out of bed independently and walk up and down stairs holding onto a rail (although he preferred not to use the stairs). He said he showered (using a shower seat) with the assistance of his daughter. His daughter also drove him to medical appointments and to go shopping. However, he was still able to drive a car and turn his head to check for traffic when driving. He said he could walk with the aid of a walking stick or leaning on a shopping trolley and was able to sit at the table to eat meals.

30. Based on the evidence, I am satisfied that Mr Al Hassnawy’s spinal disorder / chronic back pain was fully diagnosed, fully treated and fully stabilised during the qualification period. Having regard to the medical evidence and the descriptors in Table 4 – Spinal Function, I am satisfied there is a mild functional impact for Mr Al Hassnawy on activities involving spinal function and assign 5 points under the Impairment Tables.  In assigning these points, I have had particular regard to the assessments and opinions set out in the reports of Dr van Gelder who stated on 2 November 2020 and 27 October 2021 that Mr Al Hassnawy ‘has a mild functional impairment for activities involving the spine’. I also note that I place limited weight on the oral evidence of Mr Al Hassnawy due to concerns about the credibility of his evidence and inconsistencies with his reported history.

    Inflammatory arthritis / greater trochanteric pain syndrome

31. A medical certificate by Dr Mikhail dated 8 November 2019 stated Mr Al Hassnawy has ‘inflammatory arthritis / greater trochanteric pain syndrome’ with symptoms of ‘severe pain both legs & feet’.[18] This condition was being treated with analgesia and Dr Mikhail planned to refer Mr Al Hassnawy to a rheumatologist. 

    [18] Exhibit T-T9, page 125.

32. Dr Mikhail referred Mr Al Hassnawy to the rheumatologist, Dr Gotis-Graham. I have had regard to the report of Dr Gotis-Graham dated 10 December 2019 and reproduced in part at paragraph 18 above. I particularly note Dr Gotis-Graham stated that Mr Al Hassnawy’s:

    …pain is not due to peripheral vascular disease. The peripheral pulses in both feet are normal. There is no evidence of significant hip, knee or ankle pathology. The bone scan revealed minor degenerative uptake at several sites which is not relevant.[19]

    [19] Exhibit ST-ST3, page 303.

33. The HPAU report dated 24 November 2021 stated:

    On specialist assessment the lower limb diagnoses proposed by Dr Mikhail were virtually excluded and should not have been repeated on her subsequent medical certificates.[20]

    [20] Exhibit ST-ST11, page 323.

34. Based on the medical evidence, I cannot be satisfied that this condition was fully diagnosed, fully treated and fully stabilised during the qualification period. For this reason, I cannot assign points for this condition under the Impairment Tables Determination. 

    Depression and anxiety

35. Mr Al Hassnawy’s treating general practitioner, Dr Mikhail, reported on 23 December 2020 that he is suffering from ‘severe depression & anxiety due to his chronic unmanageable pain & the restriction for his function & inability to manage with his day to day activities’.[21]  There is no other or corroborating medical evidence regarding Mr Al Hassnawy’s mental health.

    [21] Exhibit T-T31, page 198.

36. 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, 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).

37. As Mr Al Hassnawy’s condition of depression and anxiety has not been diagnosed by either a clinical psychologist or a psychiatrist, I cannot be satisfied that his condition was fully diagnosed, fully treated and fully stabilised during the qualification period. I am therefore unable to assign points for this condition under the Impairment Tables Determination.

    CONCLUSION

38. I am not satisfied Mr Al Hassnawy met the requirements of paragraph 94(1)(b) of the Act during the qualification period because his impairments were not rated at 20 points or more under the Impairment Tables.

39. As I find that Mr Al Hassnawy did not qualify for the disability support pension during the qualification period, it is not necessary to consider whether he had a continuing inability to work as required by paragraph 94(1)(c) of the Act.

    DECISION

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 15 March 2022

Date(s) of hearing:	9 February 2022
Applicant:	In person
Advocate for the Respondent:	Mr Tim Chang, Services Australia