Al-Saad and Secretary, Department of Social Services (Social services second review)
[2016] AATA 969
•30 November 2016
Al-Saad and Secretary, Department of Social Services (Social services second review) [2016] AATA 969 (30 November 2016)
Division
GENERAL DIVISION
File Number
2016/1282
Re
Raad Al-Saad
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 30 November 2016 Place Sydney The decision of the Social Services and Child Support Division dated 19 February 2016 not to grant the disability support pension is affirmed.
..........................[sgd]..............................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – multiple conditions – whether applicant’s conditions are permanent – rating under the Impairment Tables – whether ratings add to a total of 20 points under the Impairment Tables – mental health – spinal condition – lower limb condition – multiple sclerosis – other conditions – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999
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
30 November 2016
INTRODUCTION
On 17 April 2015, Mr Raad Al-Saad lodged a claim for the disability support pension.
The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Al-Saad did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).
In a decision dated 19 February 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Al-Saad did not satisfy s 94(1)(b) of the Act and so he did not qualify for the disability support pension.
On 15 March 2016, Mr Al-Saad applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 14 November 2016. Mr Al-Saad attended the hearing in person and was self-represented.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person qualifies for the disability support pension 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)the person has a continuing inability to work as defined in s 94(2) of the Act.
In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Al-Saad must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 17 April 2015 and 17 July 2015 (the claim period).
The Respondent concedes and the Tribunal agrees that Mr Al-Saad suffers medical conditions that cause impairment and therefore, he satisfied s 94(1)(a) of the Act at the time of his claim for the disability support pension.
It follows that the determinative issues in this matter are whether, during the claim period, Mr Al-Saad had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and
(b)a continuing inability to work as defined in s 94(2) of the Act.
Does Mr Al-Saad have medical conditions that can be rated at 20 points or more under the Impairment Tables?
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.
Relevantly, the Introduction to Table 5 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)’.
Relying on the evidence before me, I consider that Mr Al-Saad’s medical conditions for the purposes of his claim for the disability support pension are:
·mental health condition – obsessive compulsive disorder (OCD), post-traumatic stress disorder (PTSD), and anxiety and depression;
·spinal condition – back pain, neck pain, left shoulder pain;
·lower limb condition – left knee;
·multiple sclerosis; and
·other conditions including allergies and MNG (multinodal goiter).
I now consider each of these medical conditions and their relevant rating under the Impairment Tables.
Mental health condition
In a medical report for the disability support pension dated 10 March 2015, Dr Alaadin Emin (General Practitioner) stated Mr Al-Saad has had ‘OCD / PTSD, depression / anxiety’ since 1991. He described the medication Mr Al-Saad takes to treat his condition and described the condition having the following functional impact on Mr Al-Saad: ‘poor memory, poor concentration, blocked thoughts, not responsive, very slow in activities, suicidal thoughts’.[1]
[1] Exhibit T1-T31, p 173.
Dr Samir Benjamin (Consultant Psychiatrist) provided reports about Mr Al-Saad on 1 August 2003, 2 December 2014 and 23 February 2015.[2] Dr Benjamin described Mr Al-Saad’s history as an army officer in the Iraq/Iran and Iraq/Kuwait wars, and noted he has suffered symptoms of OCD since 1991. Mr Al-Saad’s symptoms included ‘frequent obsessive ruminations, preoccupations with details and marked indecisiveness.’
[2] Exhibits T1-T4, T1-T29 and T1-T30.
On 2 December 2014, Dr Benjamin reported that Mr Al-Saad’s ‘psychiatric condition has been complicated by musculoskeletal pain, which restricted his mobility and impacted on his level of activity’ and his symptoms have ‘persisted in spite of psychiatric treatment he has received over the years’. Dr Benjamin further stated in a report on 23 February 2015 that:
Over the past eighteen months or so, Raad continued to report low mood, poor motivation, lack of energy and lack of enjoyment. He isolated himself at home and he avoided social activities.
His psychiatric condition appears to have stabilised and [it] is unlikely that a significant improvement would occur in the foreseeable future. He remained unfit for any work duties on grounds of psychiatric and physical health conditions.
The medical opinion of Dr Benjamin is confirmed in reports by Dr Frances Wilson (Psychiatrist) on 3 September 2003, Dr Juliette Drobny (Clinical Psychologist) on 23 December 2003, Ms Jessamine Chen (Clinical Psychologist) on 6 September 2013 and Ms Jessica Hajj-Bejjani (Psychologist) on 26 September 2013.[3]
[3] Exhibits T1-T5, T1-T6, T1-T13 and T1-T15.
At the Tribunal hearing, Mr Al-Saad said that he was currently struggling with the personal circumstances of his family; particularly his seven years old son, who has been diagnosed with ADHD, and his wife, who is severely depressed. Mr Al-Saad described his mental health condition as an ‘invisible injury’ that he attributed to his experiences as a Captain in the Iraq Army and fighting in the Iraq/Iran and Iraq/Kuwait wars, and later being in a refugee camp in Saudi Arabia.
During the claim period from 17 April to 17 July 2015, Mr Al-Saad said that he would take his son to school and attempted to attend a TAFE course, which he was unable to complete due to an inability to concentrate and feeling anxious in closed spaces. He was also unable to cope with the pain in his knee from sitting. Mr Al-Saad acknowledged that he had completed a Certificate II TAFE course in Business Administration in 2014, but this had taken him over 15 years to complete. Mr Al-Saad repeatedly told the Tribunal that he wanted to study and work but his attempts were interrupted by symptoms of his mental health conditions. While he had periodic social engagement with acquaintances outside his immediate family, his view was that he has no friends.
Dr Emin provided a further medical report on 13 July 2016, more than one year after the claim period, which opined that Mr Al-Saad should get 20 points or more under the Impairment Tables for his mental health condition. Dr Emin’s view was based on his observations that Mr Al-Saad requires constant supervision by his wife and has limited social contacts, poor concentration and disturbed thoughts. I accept that Dr Emin has been Mr Al-Saad’s general practitioner for more than 15 years and note that his evidence explains the functional impact of Mr Al-Saad’s mental health conditions. However, this report reflects Mr Al-Saad’s situation at July 2016 rather than the functional impact of his mental health condition during the claim period from April to July 2015.
Based on the evidence before me, I am satisfied that Mr Al-Saad’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have regard to the information at Table 5 – Mental Health Function and am satisfied that Mr Al-Saad’s mental health condition has a moderate functional impact on activities involving his mental health function and I assign an impairment rating of 10 points.
Spinal condition
Dr Emin, in a medical report for disability support pension dated 10 March 2015, stated that Mr Al-Saad has had ‘back pain, neck pain, left upper limb…’ since 2006 and ‘cannot (1) lift or carry > 3 kg, (2) bend or twist frequently, (3) sit or stand > 20 mins, poor sleep + poor mobility, gaining weight’. Mr Al-Saad takes medication and had injections in his neck and back to treat the pain in 2014.
In a report dated 10 November 2010, Dr Ali Khudair (Consultant Orthopaedic Surgeon, Basrah General Hospital) certified that Mr Al-Saad had a ‘chronic problem in his lumbar spine in [the] form of disc prolapse involving L5-S1 vertebrae for which a left L5/S1 discectomy was done at [sic] 28/07/2009.’[4]
[4] Exhibit T1-T9.
Dr Noel Dan (Neurosurgeon) stated on 20 July 2011 that Mr Al-Saad had a ‘significant left lumbosacral disc lesion together with a lesser L3/4 disc lesion which came to surgery in 2009’.[5] On 2 September 2014, Dr Dan reported that Mr Al-Saad continued to experience pain in lumber spine, shoulder and neck, and recommended further periradicular blocks (injections) to assist with the pain.[6]
[5] Exhibit T1-T11.
[6] Exhibit T1-T24.
Dr Alasdair Robertson (Radiologist) reported on 25 October 2013 that an MRI of Mr Al-Saad’s cervical spine showed ‘[m]ultilevel degenerative disc change most prominent C6/C7 intervertebral disc level’ and an MRI of his lumber spine revealed:
…no real interval change in the left paracentral disc extrusion at L5/S1. There has been an increase in size of the left foraminal component L3/L4 disc protrusion.[7]
[7] Exhibit T1-T17.
Mr Al-Saad told the Tribunal that he experiences constant pain in his back, neck and shoulder. He does not assist with any tasks around the house such as hanging out the washing, cooking or cleaning. He drives his wife to the local shopping centre which is about 300 metres from their home to do grocery shopping several times each week but cannot lift grocery bags. He said that his back, neck and knee conditions have significantly worsened since he was involved in a car accident in August 2015. However, I note that August 2015 is after the relevant claim period.
Based on the medical evidence before me, I am satisfied that Mr Al-Saad’s spinal condition was fully diagnosed, treated and stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Mr Al-Saad’s condition during the claim period had a moderate functional impact on activities involving spinal function and I assign an impairment rating of 5 points.
Lower limb condition
The medical report for disability support pension completed by Dr Emin on 10 March 2015 noted that Mr Al-Saad had ‘…(L) lower limb pain’.
On 2 September 2014, Dr Dan reported that Mr Al-Saad ‘has a new pain in the left knee as well as in the calf and foot. The pain had become very strong… He had pain with straining the lateral and medial ligaments but particularly with patella movement.’
An MRI of Mr Al-Saad’s left knee by Dr Simon Dimmick (Radiologist) on 16 September 2014 concluded (in part):
Full thickness chrondral hypertensity/softening within the medial facet of the patella and an underlying chondrobasal delamination, measuring 6 mm.
Mild and moderate grade chrondral fissuring and fibrilliation within the medial facet of the patella …
Chrondral softening peripherally within the lateral facet of the patella.[8]
[8] Exhibit T1-T26.
There is no further medical evidence before me that prescribes possible treatment for Mr Al-Saad’s knee condition apart from medication. A report by Dr Emin dated 23 April 2016, nine months after the claim period, stated that Mr Al-Saad ‘has left knee pain which is getting worse, he is waiting for further assessment by his specialists’.
Mr Al-Saad told the Tribunal that an operation on his knee was only available if he lost weight; he found this difficult as he was unable to exercise because of the constant pain in his back, neck, shoulder and knee. He used a walking stick and drove only short distances. He was able to use public transport (train) if travelling from his home to the city.
Based on the evidence before me, I am not satisfied that Mr Al-Saad’s lower limb condition was fully diagnosed, treated and stabilised during the claim period. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.
Multiple sclerosis
In the medical report for disability support pension dated 10 March 2015, Dr Emin stated Mr Al-Saad had ‘MS tired, headache, numb in limbs too slow’, in response to a question about medical conditions that are ‘generally well managed’ and cause ‘minimal or limited impact on [Mr Al-Saad’s] ability to function’.
A report by Associate Professor Jonathan Ell (Neurologist, Neuro-otologist, Neuro-ophthalmologist) on 25 June 2014 stated that Mr Al-Saad has ‘not had any clinical events suggestive of an exacerbation of multiple sclerosis’ since 2009. He further noted that ‘[a]t this stage there is no clinical evidence for ongoing activity of his multiple sclerosis’.[9]
[9] Exhibit T1-T20.
Dr J Raleigh (Radiologist) reported on 22 August 2014 that an MRI of Mr Al-Saad’s brain on 21 August 2014 showed: ‘Clinically inactive MS. Minimal disability. ?plaque accumulation’. The report concluded:
Since 15/12/05, the number or [sic] white matter lesions, presumed (demyelination plaques) has increased in number and the dominant lesion (left peritrigonal) has increased in size.
No lesions are visible outside the cerebral hemispheric white matter.[10]
[10] Exhibit T1-T22.
Based on the evidence before me, I am satisfied that Mr Al-Saad’s multiple sclerosis was clinically inactive and having minimal impact on Mr Al-Saad’s ability to function during the claim period. I therefore do not assign an impairment rating for this condition.
Other conditions
Dr Emin noted in the medical report for disability support pension dated 10 March 2015 that Mr Al-Saad had allergies and MNG, which were also conditions that were ‘generally well managed’ and cause ‘minimal or limited impact on ability to function’.
A report by Dr Ramon Bullock (Allergy Immunology Consultant) on 5 August 2014 stated that Mr Al-Saad has ‘longstanding marked allergic rhinitis with severe hypersensitivity to dust mite allergen’, which is treated with oral steroids and inhaled corticosteroids.[11] A report from Laverty Pathology from 28 November 2014 showed Mr Al-Saad has very high allergen specific IgE to house dust/mite mix.[12]
[11] Exhibit T1-T23.
[12] Exhibit T1-T28.
Based on the medical evidence, I am satisfied that Mr Al-Saad’s condition was fully diagnosed, treated and stabilised during the claim period. However, as there is no information before me about any functional impact of this condition on Mr Al-Saad, I cannot assign an impairment rating in accordance with the Impairment Tables.
An ultrasound of Mr Al-Saad’s thyroid by Dr John O’Rourke (Radiologist) on 21 July 2014 found ‘clearly identified multinodular goitre. There is a clear increase in size of the thyroid’.[13] Dr Emin noted on 10 March 2015 that Mr Al-Saad may need surgery for MNG.
[13] Exhibit T1-T21.
Based on the evidence before me, I am satisfied that Mr Al-Saad’s MNG condition was fully diagnosed, but not fully treated and stabilised during the claim period. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.
CONCLUSION
For the reasons set out above, I am satisfied that Mr Al-Saad did not meet the requirements of s 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.
As I find that Mr Al-Saad did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.
If Mr Al-Saad’s circumstances change, he is entitled to submit a new application for the disability support pension at any time.
DECISION
The decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of ............................[sgd]............................................
Associate
Dated 30 November 2016
Date(s) of hearing 14 November 2016 Applicant In person Solicitors for the Respondent Dr S Thompson, Department of Human Services
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