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

[2022] AATA 2381

Al Sultan and Secretary, Department of Social Services (Social services second review) [2022] AATA 2381 (27 July 2022)

Division:GENERAL DIVISION

File Number:          2021/4235

Re:Mohammed Jiaab Al Sultan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:27 July 2022

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of pension – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables at date of cancellation – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 27, 94

Social Security (Administration) Act 1999 (Cth) ss 80, 118

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

REASONS FOR DECISION

Dr L Bygrave, Member

27 July 2022

INTRODUCTION

1. Mr Mohammed Jiaab Al Sultan was granted disability support pension from 26 June 2009.

2. Services Australia commenced a review of Mr Al Sultan’s disability support pension and, on 19 February 2021, decided to cancel his disability support pension on the basis that he ceased to satisfy the requirements in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act). This decision was affirmed by an authorised review officer of Services Australia on 1 March 2021.

3. Mr Al Sultan subsequently applied for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 28 May 2021, the AAT1 affirmed the decision of Services Australia.

4. On 22 June 2021, Mr Al Sultan made an application for review to the General Division of the Tribunal.

5. The application was heard by the Tribunal in Sydney on 7 July 2022. Mr Al Sultan attended the hearing in person and gave oral evidence with the assistance of an interpreter of the Arabic language.

   RELEVANT LEGISLATION

6. The power for the Secretary to cancel Mr Al Sultan’s disability support pension is set out in subsection 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Pursuant to subsection 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, which in this matter is 19 February 2021 (the date of cancellation).

7. Subsection 94(1) of the Act stipulates the qualification criteria for disability support pension, which include the requirement for Mr Al Sultan to show he has:

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

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

   (c)a continuing inability to work.

8. Mr Al Sultan must satisfy these criteria at the date of cancellation.

9. Pursuant to subsections 27(3) and (4) of the Act, in reviewing Mr Al Sultan’s qualification for disability support pension, I am required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

10. 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.

11. The Introduction to each Table in the Impairment Tables Determination states that the self-reporting of ‘symptoms alone is insufficient’ and there ‘must be corroborating evidence of the person’s impairment’ such as a report from the person’s treating doctor, supporting letters or reports or assessments relating to the person’s mental health, and/or interviews with the person and those providing care or support to them.

12. 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.

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

14. Relevant to this matter, the Introduction to Table 5 of the Impairment Tables Determination, which is used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states:

    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).

15. 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.

16. 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

17. The Secretary concedes that Mr Al Sultan has medical conditions that cause impairment and so he satisfied paragraph 94(1)(a) of the Act at the date of cancellation. I agree with this finding. It follows that the determinative issues in this matter are whether, at the date of cancellation, Mr Al Sultan had:

    ·an impairment rating of 20 points or more under the Impairment Tables as required by paragraph 94(1)(b) of the Act; and

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

    Does Mr Al Sultan have medical conditions that can be rated at 20 points or more under the Impairment Tables?

18. The medical conditions of Mr Al Sultan listed in the disability support pension medical report completed by Dr Mahmoud Abdalla (general practitioner) on 19 November 2020 are:

    ·‘back neck pains discs lesions OA [osteoarthritis]’ – spinal condition;

    ·‘anxiety depression’ – mental health condition; and

    ·‘recurrent dizziness hypertension’.[1]

    [1] Exhibit T-T13.

19. I now consider each of these medical conditions in accordance with the provisions outlined in the Impairment Tables.

    Spinal condition

20. In a medical report dated 25 June 2009, Dr Abdalla set out that Mr Al Sultan was diagnosed with ‘back pain neck pain headaches’ that were ‘recurrent’ and ‘chronic’, and caused ‘difficulty in walking’ and ‘in moving’.[2] Dr Abdalla wrote that this condition was treated with ‘analgesics/NSAIDS [non-steroidal anti-inflammatory drugs]’.[3]

    [2] Exhibit T-T9, page 113.

    [3] Exhibit T-T9, page 113.

21. Dr Abdalla provided further medical reports dated 19 November 2020, 28 January 2021, 10 September 2021, 11 October 2021 and 20 January 2022, and spoke with an assessor at Services Australia who completed a Job Capacity Assessment (JCA) report on 18 February 2021.

22. Dr Abdalla certified on 28 January 2021, three weeks prior to the date of cancellation, that Mr Al Sultan suffered:

    Severe chronic back pain due to disc lesions and osteoarthritis with pain in his lumbosacral spine that is referred to his legs due to sciatica with difficulty in moving his back and in walking.

    …

    He is on continuous analgesics, physiotherapy… and was seen by a specialist… He is waiting to be seen by an orthopaedic surgeon.[4]

    [4] Exhibit T-T18.

23. Dr Abdalla told the JCA assessor on 18 February 2021 that Mr Al Sultan had undertaken physiotherapy, which is also confirmed by Mr Al Sultan’s Medicare Patient History Report, and he had referred him to an orthopaedic surgeon.

24. Mr John Zhuang (physiotherapist) provided written reports dated 25 February 2021 and 11 October 2021. On 25 February 2021, Mr Zhuang wrote that he had seen Mr Al Sultan for the last four years and noted that his ongoing symptoms included back pain, ‘reduced sitting tolerance 10 minutes’, ‘reduced standing tolerance 10 minutes’, a ‘carrying capacity’ of 0.5 kilograms, inability to squat and ‘difficult [sic] with stairs, one level at a time’.[5] He stated that physiotherapy treatment had ‘concentrated on soft tissue release, pain management strategies, postural control for back, and home stretches and exercise’.[6]

    [5] Exhibit T-T28.

    [6] Exhibit T-T28.

25. Dr Vijay Maniam (orthopaedic surgeon) wrote medical reports dated 17 February 2021 and 15 June 2022. Most relevant to Mr Al Sultan’s spinal condition at the date of cancellation is the report of Dr Maniam on 17 February 2021 that stated he saw Mr Al Sultan on 1 February 2021 and reported:

    The pains have been recurring for more than thirty years and it radiates into the right lower limb to the level of the toes. He has undergone treatment with medication and physical therapy with minimal improvement. As a consequence of the disabilities, he stays home most days.

    About ten years ago, he was involved in a motor vehicle accident suffering injuries to the same region and the pains have been compounded. Multiple x-rays were obtained, but these were not available at the time of examination. He uses paracetamol for the pain.

    …

    At today’s examination his stance and gait were normal. He was not using any appliances. The lumbar spine alignment was satisfactory and there was no listing or scoliosis and the pelvis was symmetrical. There were no tender areas and the sacroiliac joints and trochanteric bursae were unremarkable. Lumbar spine movements were moderately restricted and straight leg raising was painful and managed to 40^o. There was no evidence of any sensory loss and reflexes were equal bilaterally.

    …

    MRI lumbar spine 4/2/2021

    L3/4: posterior disc bulge and disc desiccation without any neurological compromise.

    L4/5: disc height loss and disc desiccation with broad based posterior disc bulge. Mild bilateral foraminal stenosis without any impingement of the exiting L4 nerve roots. Moderate central canal stenosis with effacement of the right lateral recess and impingement of the right descending L5 nerve root.

    L5/S1: broad based circumferential disc bulge with loss of height and disc desiccation and bilateral foraminal stenosis.

    At L4/5 there is a moderate grade canal stenosis and impingement of the right descending L5 nerve root.[7]

    [7] Exhibit T-T22.

26. Dr Maniam further opined the following treatments were available to Mr Al Sultan:

    Right L5 perineural injection under CT guidance.

    If it fails, then a decompression for L4/5 could be considered.[8] 

    [8] Exhibit T-T22, page 181.

27. On 15 June 2022, Dr Maniam confirmed he saw Mr Al Sultan ‘initially’ on 1 February 2021 for ‘treatment of a chronic lower back pain of more than thirty years duration’.[9] Dr Maniam further stated that he ‘recommended that he [Mr Al Sultan] trialed [sic] an epidural injection for the L4/5 level for the canal stenosis and impingement of the right L5 nerve root’.[10]

    [9] Exhibit A9.

    [10] Exhibit A9.

28. At the Tribunal hearing, Mr Al Sultan said he has suffered severe back pain since he was detained and tortured during the Gulf War in 1991. He said treatment for his back pain includes taking medication, accessing five physiotherapy sessions per year under Medicare and paying privately for monthly massages. He said he purchased a chair that emits heat and uses a heated wheat pack, which eases his pain for several hours. He was unable to describe any other pain management strategies, stretches or exercises recommended by the physiotherapist, Mr Zhuang. Mr Al Sultan said he has declined the treatment options recommended by Dr Maniam because he is fearful that if the operation is not successful then he could suffer further disability (which happened to ‘a friend’) and he is scared of the doctor administering the injection. He has neither been referred to nor seen a pain specialist.

29. In terms of his functional impairment from his spinal condition, Mr Al Sultan told the Tribunal that he lives with his wife, two sons and their wives. He said his family members undertake household chores such as cooking, cleaning and washing, and assist him with showering when required. He spends his time lying on the bed, watching television with his family members and goes shopping with his carer if necessary. Mr Al Sultan said he is usually able to get out of a chair without the assistance of another person and he can drive a car for up to 20 minutes, such as to visit his doctor. He was able to travel by train to the city for his hearing accompanied by his carer. He also confirmed that he flew to Canada in 2019 for the funeral of his mother-in-law but said he was assisted by his wife and brother-in-law. I further note that Mr Al Sultan was able to sit and participate at the Tribunal hearing for more than one hour without any break. I find this evidence is not consistent with Mr Zhuang’s reporting of Mr Al Sultan’s functional impairment and, consequently, I place limited weight on his report.

30. Based on the medical evidence, I am satisfied that Mr Al Sultan’s spinal condition was fully diagnosed, but not fully treated and fully stabilised at the date of cancellation. In particular, I find reasonable treatment options were available for Mr Al Sultan at the date of cancellation that he has declined to access. As I find this condition was not permanent at the date of cancellation, I cannot assign points under the Impairment Tables Determination.

    Mental health condition

31. On 19 November 2020, Dr Abdalla reported that Mr Al Sultan was diagnosed with ‘anxiety depression’ for ‘years’, the diagnosis was confirmed by a ‘psychiatrist/clinical psychologist Dr K Soliman’, and ‘current treatment’ was ‘counselling’ and he had ‘stopped antidepressants’ due to ‘side effects’.[11]

    [11] Exhibit T-T13, page 140.

32. ‘Dr K Soliman’ appears to refer to Dr Karima Attia-Soliman (general practitioner), who completed a medical certificate on 14 November 2008. Dr Attia-Soliman stated Mr Al Sultan was diagnosed with ‘chronic depression’, described his symptoms as ‘severely depressed, irritable, forgetful’ and noted that he ‘can’t concentrate’.[12] She set out that he was treated with medications.

    [12] Exhibit T-T6.

33. Other historical reports filed with the Tribunal that refer to Mr Al Sultan’s mental health are:

    ·a medical certificate by Dr Mustapha Alameddin (general practitioner) dated 7 November 2005 that set out a diagnosis of ‘anxiety disorders’;[13]

    ·an assessment completed by an unnamed psychologist at Centrelink on 23 November 2005 that noted the condition is ‘temporary’;[14]

    ·a medical certificate by Dr Abdalla dated 30 April 2009 that noted a diagnosis of ‘anxiety depression’ that was ‘temporary’;[15] and

    ·a medical report completed by Dr Abdalla on 25 June 2009 that set out a diagnosis of chronic depression since 1992, a history of Mr Al Sultan becoming depressed after he was a ‘prisoner of war’ in the Gulf War, treatment of ‘antidepressants seeing psychiatrist’ and Mr Al Sultan’s ‘deteriorating’ function.[16] 

    [13] Exhibit T-T4.

    [14] Exhibit T-T5, page 97.

    [15] Exhibit T-T8.

    [16] Exhibit T-T9.

34. A JCA report completed on 14 July 2009 assessed Mr Al Sultan’s depression as ‘verified by medical evidence; fully diagnosed; fully treated; fully stabilised’ and remarked Mr Al Sultan had ‘psychiatrist supervision and consultation. Anti depressant medication. Psychologist intervention in the past’.[17] The JCA report outlined Mr Al Sultan’s functional impairment and recommended a rating of 20 points.

    [17] Exhibit T-T10.

35. On 28 January 2021, Dr Abdalla wrote a medical letter certifying that Mr Al Sultan suffers:

    Anaexiety [sic] and depression for many years with lack of sleep, tiredness, impaired memory and lack of concentration. His anxiety and depression has been affecting him since the war in Iraq as a prisoner of war.

    …

    He is on continuous… counselling, and was seen by…psychiatrist.[18] 

    [18] Exhibit T-T18.

36. In a telephone discussion with the JCA assessor on 18 February 2021, Dr Abdalla ‘advised that he has referred [Mr Al Sultan] to see another psyhciatrist [sic] or psychologist’ but the ‘specifics were unable to be clarified by Dr Abdalla’.[19]

    [19] Exhibit T-T23.

37. Dr Mahmoud Abu-Arab (clinical psychologist) provided reports dated 10 August 2021, 29 September 2021 and 29 January 2022. On 10 August 2021, more than five months after the date of cancellation, Dr Abu-Arab wrote that he had seen Mr Al Sultan for six consultations and outlined his history of ‘trauma’ in Iraq when he was ‘imprisoned for a period of six months and … tortured and physically abused’ before fleeing Iraq.[20] Dr Abu-Arab stated that he ‘was aware’ Mr Al Sultan ‘consulted a psychiatrist in the past and he didn’t take medication regularly out of fear that he may be “addicted to them”’.[21] Dr Abu-Arab diagnosed Mr Al Sultan with chronic post-traumatic stress disorder and major depressive disorder, and opined his condition was treated and has stabilised.

    [20] Exhibit A4.

    [21] Exhibit A4.

38. Relevantly, on 29 January 2022, Dr Abu-Arab stated that Mr Al Sultan was referred to him by Dr Abdalla on 25 February 2021, six days after the date of cancellation. Dr Abu-Arab wrote that he first became aware of Mr Al Sultan’s condition when he first saw him on 21 April 2021 and that he is ‘unable to attest to his condition before 19/2/2021’, but opined that:

    based on the information available to me, it is highly likely that this man had a significant disability and chronic mental illness way before I saw him. He received treatment for his mental condition by psychologists and psychiatrists.

    Therefore, it is possible to attest with great confidence that his condition is chronic and long lasting. His condition was treated and has stabilised. In my opinion it is unlikely for his condition to change with or without treatment.[22]

    [22] Exhibit A5.

39. In considering the evidence before the Tribunal at the date of cancellation, I find there were no reports completed by either a clinical psychologist or a psychiatrist that set out a diagnosis of Mr Al Sultan’s mental health condition. In particular, medical reports dated prior to 19 February 2021 were written by either a general practitioner or the unnamed Centrelink psychologist. Relevantly, the only evidence that Mr Al Sultan saw or was treated by a psychiatrist prior to the date of cancellation has been reported by Dr Abdalla and does not appear to have been verified with a written report from a psychiatrist (or clinical psychologist). Notably, Dr Attia-Soliman, who has been described by Mr Al Sultan and Dr Abdalla as a ‘psychiatrist’, is not endorsed by the Australian Health Practitioners Regulation Agency as a specialist psychiatrist but is a general practitioner with an interest in psychiatric medicine. Unfortunately for Mr Al Sultan, this means that Dr Attia-Soliman is not an appropriately qualified medical practitioner (a psychiatrist or clinical psychologist) to diagnose his mental health condition as required by the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination.

40. I have also considered the credible reports of Dr Abu-Arab dated 10 August 2021, 29 September 2021 and 29 January 2022. While I accept that Dr Abu-Arab is a clinical psychologist – and therefore, an appropriately qualified medical practitioner to diagnose Mr Al Sultan’s mental health condition in accordance with the requirements of the Impairment Tables Determination – I am satisfied that Dr Abu-Arab first saw and commenced treating Mr Al Sultan on 21 April 2021, more than two months after the date of cancellation. For this reason, I cannot be satisfied that Mr Al Sultan’s mental health condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. This means that I am not able to assign points for this condition under the Impairment Tables Determination.

    Hypertension

1. On 19 November 2020, Dr Abdalla reported that Mr Al Sultan has ‘recurrent dizziness hypertension’ in response to a question about whether he has ‘any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function’.[23] In a medical letter dated 28 January 2021, Dr Abdalla stated that Mr Al Sultan has ‘hypertension with general weakness and recurrent headaches’.[24]

   [23] Exhibit T-T13, page 143.

   [24] Exhibit T-T18.

2. Mr Al Sultan told the Tribunal that he takes medication for hypertension; he said he saw ‘a specialist’ several years ago where he underwent a ‘stress test’ and was told to continue taking medication. He was unable to provide a copy of any specialist report to the Tribunal.

3. As there are no other medical reports before the Tribunal, I find there is insufficient evidence to be satisfied this condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. For this reason, I cannot assign points under the Impairment Tables for this condition.

   CONCLUSION

4. For the reasons set out above, I am not satisfied that Mr Al Sultan met the requirement in paragraph 94(1)(b) of the Act at the date of cancellation because his impairments were not rated at 20 or more points under the Impairment Tables.

5. As I find Mr Al Sultan did not meet the qualification criteria to receive the disability support pension in paragraph 94(1)(b) of the Act, it is not necessary to consider whether he had a continuing inability to work at the date of cancellation as required by paragraph 94(1)(c) of the Act.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 27 July 2022

Date of hearing:	7 July 2022
Applicant:	In person
Solicitors for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers
Mr T Chang, Services Australia