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

[2016] AATA 986

Al Khudairy and Secretary, Department of Social Services (Social services second review) [2016] AATA 986 (2 December 2016)

Division	GENERAL DIVISION
File Number	2016/1171
Re	Abbas Al KHUDAIRY
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	2 December 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – awaiting surgery – not qualified for DSP – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 s 94

Social Security (Administration) Act 1999, cl 4 of Schedule 2

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

REASONS FOR DECISION

D. J. Morris, Member

2 December 2016

BACKGROUND DATES AND EVENTS

1. Mr Abbas Al Khudairy (the Applicant) applied for Disability Support Pension (DSP) on 6 July 2015.

2. The Department of Social Services (the Department) rejected his claim on 17 August 2015.

3. He sought a review of that decision by an Authorised Review Officer (ARO), an officer in the Department not involved in the original decision.  On 4 October 2015 the ARO affirmed the original decision, on the grounds that the Applicant was not medically qualified for DSP.

4. Mr Al Khudairy made an application to the Social Services and Child Support Division of the Tribunal.  That hearing took place on 12 February 2016 (AAT1) and the Tribunal affirmed the original decision.

5. The Applicant then lodged an application for a second-tier review in the General Division.

6. The hearing was held on 17 October 2016 with the Applicant appearing by telephone.  Mr Al Khudairy represented himself, gave affirmed evidence and was cross-examined by the advocate for the Respondent, Mr Tim Noonan. 

7. The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence.

8. The Applicant submitted the following documents which were admitted into evidence:

   ·Medical report dated 17 May 2016 from Dr Dheyaa Ali of Danaher Drive Medical Centre (Exhibit A1).

   ·Medical report dated 5 June 2016 also from Dr Dheyaa Ali (Exhibit A2).

   ·Letter from Western Health dated 1 June 2016 confirming receipt for out-patient services (Exhibit A3).

   ·Document from Western Health dated 22 July 2016 rescheduling an appointment (Exhibit A4).

   ·Western Health Elective Surgery Waiting List placement, dated 14 October 2016.

9. The Respondent submitted a document titled Western Hospital – Total knee replacement – Quarterly Data 01 July 2015 – 30 September 2016 (Exhibit R1).

10. After the hearing, in compliance with a Direction, the Respondent submitted a letter to the Applicant dated 2 May 2016 from Mr Noonan attached to which was an unsigned letter for the Applicant’s doctor of the same date posing eight questions, to which Exhibit A1 is the response.

    THE LAW

    Qualification for DSP under the Act

11. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

12. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person applying has –

    (a)a physical, psychiatric or intellectual impairment and

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)a continuing inability to work.

13. The Impairment Tables referred to in section 94(1) (b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

14. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.

15. So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act.  Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables.  Thirdly, the person must have a continuing inability to work.

16. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, which means the impairment is assessed to be a ‘severe’ impairment under section 94(3B).  If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

17. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

18. So the ‘window’ for assessing qualification for DSP in the case of Mr Al Khudairy is the period starting on 6 July 2015 when he applied for DSP and ending thirteen weeks after that day on 5 October 2015.  In these reasons, this is described as the ‘relevant period’.

    QUESTION AT ISSUE

19. Was the Applicant eligible for DSP on the date he lodged his claim (6 July 2015) or, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, if he was not eligible on that date did Mr Al Khudairy become eligible on a date in the thirteen week period after the day of lodging the claim, which ended on 5 October 2015?

    APPLYING THE LAW

    Does the Applicant have a physical, intellectual or psychiatric impairment?

20. Dr Dheyaa Ali, general practitioner, stated in a medical report dated 14 June 2015 that the Applicant was diagnosed in March 2014 with “major depression, post-traumatic stress disorder and phobia” and that the diagnosis was confirmed by Dr Raid Al Humrany, psychiatrist.  Dr Ali also stated Mr Al Khudairy has “knee injury, arthroscopy done waiting for operation for knee reconstruction (cruciate ligament tear)”, and that this condition was diagnosed in 2008 and confirmed by Dr Talib Tahir, rheumatologist, and an unnamed orthopaedic surgeon at Western Health.  Dr Ali also listed three other medical conditions which he said the Applicant has but which are generally well managed and cause him minimal or limited impact on his ability to function, namely: 1. Chronic back pain (disc disease)…; 2. Fibromyalgia – chronic musculoskeletal pain with tiredness; 3. Sacroiliac joint pain, L3 disc prolaps [sic] (2013).

21. In his submission, the Respondent accepted that the Applicant has the following medical conditions: Right anterior cruciate ligament (ACL) rupture; Lumbar disc degeneration; Hypercholesterolemia; Anxiety, depression, PTSD and phobia.

22. On the basis of the medical evidence before the Tribunal, I find that Mr Al Khudairy did satisfy section 94(1) (a) of the Act in the relevant period.  He did have impairment, namely a back condition, a knee condition, a mental health condition, and hypercholesterolemia.

    If so, what is the correct rating under the Impairment Tables?

23. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Determination.

24. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

25. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner (and the criteria are different for some assessments), the condition must be fully treated and fully stabilised, and the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Knee condition

26. The Tribunal had before it an MRI report of the Applicant’s knees, dated 12 December 2012.  In terms of the right knee, the MRI report states:

    “…Pain in knee after traumatic injury to right knee, more severe on the right.  Further evaluation of the area.  CT has confirmed moderate severity osteoarthritis.

    Findings: Anterior cruciate ligament is completely absent and there is anterior translocation of the tibia consistent with a chronic complete tear...” 

27. In a medical letter dated 3 January 2013, Dr Tahir stated that the Applicant had:

    “…anterior cruciate ligament with complete tear as well as tibia displacement.  Medial meniscus is causing moderate to severe pain with difficulty of weight bearing.  Your urgent consideration for Arthroscopy and tendon repair would be appreciated.”

28. Mr Al Khudairy gave evidence to the Job Capacity Assessor that he had an arthroscopy in early 2014, followed up by three sessions of physiotherapy that he ceased owing to pain.

29. He gave evidence to this hearing that he was on the waiting list for surgery and had been contacted a week before the hearing and advised that knee reconstruction surgery will be considered in December 2016.

30. Mr Al Khudairy gave evidence that the hospital had contacted him when he was abroad visiting his late mother, who was in terminal decline, and that he had been unaware of this contact.  Because he had not responded, Western Health took him off the waiting list.  He was restored to the waiting list on 14 October 2016.

31. It is clear to me that the Applicant has a significant injury to his right knee which causes him great discomfort and affects his functional ability.  However, it is also clear that he was awaiting further treatment in the relevant period.  Rule 6(5) requires that whether treatment is continuing or planned in the next 2 years must be taken into account when determining whether a condition has been fully treated.

32. Knee reconstruction of the type recommended for the Applicant will objectively have a significant medical impact.  It is not palliative treatment to prevent further deterioration; it is intended to lead to significant improvement in his general health.

33. I find, on the Applicant’s own evidence of impending remedial surgery relating to a condition in the relevant period, the condition is not fully treated nor fully stabilised and impairment points therefore cannot be assigned for his knee condition.

    Mental health condition

34. The Tribunal had before it evidence that the Applicant had consulted with Dr Raid Al Humrany, psychiatrist. In a medical letter dated 21 August 2014 to Mr Al Khudairy’s general practitioner, Dr Al Humrany described a number of characteristics noted in his examination of the Applicant including anxiety, multiple grief reaction and feelings of helplessness and worthlessness.  Although Dr Al Humrany did not cite a specific diagnosis, I note that the Respondent made submissions accepting that the Applicant had a mental health condition, and that it fulfilled the criteria mandatory for diagnosis under Table 5 – Mental Health Conditions, in the Determination.

35. The Secretary contended that the condition could not be regarded as fully treated or stabilised because the Applicant’s psychiatrist had recommended an increased dosage of the antidepressant Effexor from 150 mg to 225 mg  daily and AAT1 said the Applicant had reverted to 150 mg daily.

36. In his evidence to this hearing, Mr Al Khudairy said that AAT1 had misunderstood his evidence about medication changes.  He said his general practitioner, Dr Ali, had told him to change his medication and he now took two tablets daily but they have the same dosage as three tablets – 225 mg.  In his submissions, the Respondent said he believed the Applicant had explained this matter adequately.

37. With this evidence, I conclude that AAT1 did misunderstand the evidence relating to the Applicant’s antidepressant medication. 

38. In terms of whether it is possible to assign impairment points under Table 5 for this condition of the Applicant, the Tribunal must take into account not only whether the condition is fully diagnosed, but whether it was fully treated and fully stabilised in the relevant period.

39. In his letter of 21 August 2014, Dr Al Humrany stated that he had agreed with the Applicant that, apart from undergoing marital counselling and adjusting his medication, he should see Dr Juliette Hooper, an Arabic-speaking clinical psychologist for ongoing psychotherapy in order to modify his negative thoughts and attitude.

40. The Applicant gave evidence that he did not see Dr Hooper because his ex-wife did not wish to participate in counselling and that he told his psychiatrist that.  This seems a misunderstanding of what Dr Al Humrany had discussed with the Applicant and what he was recommending.  The recommended marital counselling was separate from the psychiatrist’s advice that Mr Al Khudairy should see Dr Hooper.

41. Mr Al Khudairy gave evidence in cross-examination that Dr Muslim Asadi, physician, who examined him on 4 June 2015, had the view that his back and knee problems contributed towards his depressive condition and, if the physical conditions he has could be improved, then that might, in consequence, improve Mr Al Khudairy’s mental state.  Dr Al Humrany also stated, in his letter to Dr Ali dated 1 June 2015:

    “For his last two visits which were [in] April and May 2015, Mr Al Khudairy described increasing anxiety and low depressive mood due to [a] variety of factors that included:

    1His previous problems in the past with his ex-wife and separation.

    2Alleged that his nephew who was very close to has been killed in Iraq few years back.

    3His chronic physical condition that including his right knee and lower back which has ongoing negative impact on his mood, behaviour and attitude and unable to fulfil his commitment in adequate way.”

42. It seems to me, while I do not doubt the evidence of a mental health condition, the fact that the Applicant’s psychiatrist and physician both apparently considered his knee and back conditions adversely contributed to his mental health, leads me to the conclusion that I cannot find that his mental health condition was fully treated and stabilised in the relevant period.  Once Mr Al Khudairy has had his knee reconstruction, it may have a positive outcome in terms of his mental state. 

43. I also note, as mentioned above, on the evidence before me that the Applicant had not followed up on marriage counselling or on separate personal psychological counselling with Dr Hooper. Both of these were recommended to help him with his low mood.  The Rule 6(7) of the Determination sets out that a person must undertake reasonable treatment in regard to a condition before it can be assigned impairment points.  I appreciate the Applicant’s advice that his wife would not co-operate in regard to the marriage counselling, but that does not explain why he decided not to see Dr Hooper.

44. The professional opinion of Dr Al Humrany is dated 1 June 2015, only a little more than a month before the Applicant lodged his claim for DSP, and recommends various treatment.  It is therefore not possible for Mr Al Khudairy’s anxiety and depression to be assessed as ‘permanent’, within the specific meaning required in the Determination, in the relevant period.

45. I therefore find that no impairment points can be assigned for the Applicant’s mental health condition.

    Other medical conditions

46. The Applicant gave evidence to the hearing that he had had back problems for ‘six or seven years’ before lodging his claim. He told the Tribunal about problems he had with standing or sitting for too long.  He said he could not bend and therefore had difficulty with daily tasks such as laundry.  Mr Al Khudairy said he could carry a light object and could get a cup out of an overhead cupboard and could turn his head without moving his trunk.

47. Dr Tahir in his report of 13 April 2015 referred to the Applicant’s “worsening back pain”.  The Applicant said that he had had an epidural injection in June 2015 and was taking pain medication in relation to his back condition.

48. Dr Tahir referred the Applicant back to his general practitioner in December 2015 to “optimise his pain management”. Given the proximity of this treatment and Dr Tahir’s professional view that the condition was ‘worsening’ in April 2015, three months before the claim for DSP, the Tribunal finds that his back condition cannot be considered to be fully treated or fully stabilised in the relevant period. 

49. In terms of Mr Al Khudairy’s hypercholesterolemia, the Applicant gave evidence that this condition did not affect his functional abilities except noting that he had to take medication for it.  Similarly, Dr Ali stated that the Applicant’s fibromyalgia condition did not affect his functional abilities.  I find that these two conditions must be assigned zero impairment points because, under Rule 11(5); although diagnosed, they cause Mr Al Khudairy no functional impairment.

50. I therefore find that, in the relevant period, the Applicant cannot be assigned any impairment points.  This situation may change in the future, when his back condition settles down and depending on the results of his knee surgery, which the Tribunal hopes lead to a significant improvement for Mr Al Khudairy.  But any such change only would be relevant to a new claim for DSP and a fresh and contemporary assessment as to his medical impairments at the time of any future claim and his inability to work.

    CONCLUSION

51. As Mr Al Khudairy failed to satisfy the requirements of section 94(1)(b) of the Act in the relevant period, it is not necessary for me to go on to consider whether he had a continuing inability to work in the relevant period.

52. Section 94(1) is a conjunctive subsection of the Act – each part of it must be satisfied for a person to be qualified for DSP.  The disappointing outcome for the Applicant is that his claim for DSP fails.  As he did not satisfy each part of the subsection in the relevant period, the original decision was correct.  Mr Al Khudairy was not qualified for DSP at the relevant period.

    DECISION

53. The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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

Associate

Dated 2 December 2016

Date of hearing	31 October 2016
Applicant	In person
Advocate for the Respondent	Mr Tim Noonan
Solicitors for the Respondent	Department of Human Services