Al-Taay and Secretary, Department of Social Services (Social services second review)
[2015] AATA 516
•16 July 2015
Al-Taay and Secretary, Department of Social Services (Social services second review) [2015] AATA 516 (16 July 2015)
Division GENERAL DIVISION File Number(s)
2014/4941
Re
Mohsin Al-Taay
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 16 July 2015 Place Sydney The decision under review is affirmed.
........................................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
16 July 2015
BACKGROUND
On 24 July 2013 Mr Al-Taay lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered several medical conditions which were having an impact on his ability to function.
Mr Al-Taay’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act), in particular, he did not satisfy s 94(1)(b) in that his rating under the Impairment Tables was less than 20 points.
In these proceedings Mr Al-Taay seeks review of the SSAT decision of 26 August 2014.
At the hearing Mr Al-Taay was self-represented and assisted by an Arabic language interpreter.
ISSUES
In order to qualify for DSP, Mr Al-Taay must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), that is, between 24 July 2013 and 23 October 2103 (the claim period).
Section 94(1) of the Act provides that a person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is 20 points or more under the Impairment Tables; and
(c)one of the following applies;
(i) the person has a continuing inability to work;
…
There is no dispute that, during the claim period, Mr Al-Taay satisfied s 94(1)(a) of the Act in that he suffers various medical conditions including osteoarthritis (left knee, cervical spine and lumbar spine), injury to left arm, asthma and a gastrointestinal condition.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a));
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)).
Also, the Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Therefore, the issues for consideration by the Tribunal are:
·Did Mr Al-Taay have a rating of 20 points or more under the Impairment Tables during the claim period?; and if so
·Did Mr Al-Taay have a continuing inability to work during the claim period?
DID MR AL-TAAY HAVE A RATING OF 20 POINTS OR MORE?
Left arm condition
Mr Al-Taay told the Tribunal that he was shot in the left arm during the Iraq/Iran war in 1980. He admitted he was right handed and described his impairment as reduced external rotation of the left forearm and an inability to carry anything with that arm.
In a Job Capacity Assessment (JCA) report performed on the 16 August 2013 the assessor noted the following:
He stated he experiences pain in his left arm which limits his lifting capacity….remains capable of driving. Self care is unaffected …he remains capable of lifting light objects, and generally would use his right arm whenever possible.
In a Centrelink medical report dated 16 July 2013 Dr Selim, GP, mentions osteoarthritis of the left arm but provides no other relevant information.
In a review of documents supplied by Centrelink dated 23 March 2015 Dr Minogue, occupational physician, states the following:
There is no evidence of osteoarthritis affecting any upper limb joints, although an old war wound has resulted in some restriction left forearm supination, hence this condition is reasonably deemable fully diagnosed, treated and stabilised. An impairment rating of 0 points is considered justifiable for this condition, as the required most descriptors for 5 points appear unlikely to apply.
On consideration of the evidence before the Tribunal I am satisfied that correct rating under Impairment Table 2 – Upper Limb Function is zero points.
Asthma
Mr Al-Taay told the Tribunal that he has suffered asthma for many years, requires treatment with three inhalers and has not been admitted to hospital for asthma.
The JCA report notes that Mr Al-Taay reported “occasional shortness of breath at night, which is well managed with medication”.
In a letter dated 18 July 2013 Dr Hossain, geriatrician, notes the following:
Mr Al-Taay also suffers from asthma for more than 10 years. He had recurrent respiratory infections in the past but never required hospital admission with an asthma attack. He used preventative inhaled steroids and needs to use Ventolin every night as he gets wheezy at night.
On consideration of the evidence before the Tribunal I am satisfied that the correct rating under the Impairment Table 1-Functions requiring Physical Exertion and Stamina is zero points.
Spine Conditions
Mr Al-Taay told the Tribunal that he suffers severe neck pain which disturbs his sleep. He also suffers pain when he moves his head from side to side but is still able to drive without any apparent difficulty. He did not mention any symptoms in respect of his lumbar spine.
The JCA report notes that Mr Al-Taay “reported occasional neck stiffness. Despite this, he remained capable of looking in all directions with near normal cervical spine range of movement”.
Dr Selim refers to osteoarthritis of the cervical spine and notes clinical features as “neck pain, severe limitation of movement” but provides no other relevant information and makes no mention of the lumbar spine.
In his letter of 18 July 2013 Dr Hossain makes no mention of any condition or symptoms related to either the cervical or lumbar spine.
In a letter dated 31 October 2013 Dr Hossain noted the following :
Mr Al-Taay today complained of pain in the neck radiating to both shoulders. He was also concerned about his ongoing left arm and left knee pain. Because of the pain he can’t walk for more than 100 metres and can’t keep siting for long time.
Dr Hossain refers to the results of the CT scans performed on 9 and 10 October 2013 but provides no assessment of functional impairment.
The CT scan of the cervical spine is reported by Dr Chew as showing “small posterocentral disc protrusion at C2/3 level without canal stenosis or foraminal compromise. Mild posterior disc bulges of C3/4-C6/7 levels without significant foraminal stenosis and without central canal stenosis. No visualised nerve root compression”.
Findings in the lumbar spine by Dr Nagra CT scan included multilevel degenerative osteophytes, disc space bulges at L4/5 and L5/S1 with some abutment to the origin of the S1 nerve and severe degenerative changes to the L4/5 facet joints. The report suggested consideration of an MRI scan and facet joint injections.
The evidence before the Tribunal indicates that Mr Al-Taay’s spine conditions were not diagnosed until 2 weeks before the end of the claim period and, in my view, could not be considered as fully treated and stabilised at that time. Therefore, a rating under the Impairment Tables cannot be applied.
The Left Knee
Mr Al-Taay told the Tribunal that he gets pain in both knees with the left knee being worse. The left knee was injured during the Iraq/Iran war and contains residual shrapnel. He complains of difficulty with walking uphill particularly and is limited to 50 metres on a flat surface.
The JCA report states as follows:
Client reported left knee pain which affects his endurance and walking tolerance. He stated that he can walk for 200 metres without needing to rest. He was observed to walk without assistance within the office and transferred from sit-to-stand independently. He reported reduced tolerances to standing and stair climbing. With stairs at home, he stated he is required to use hand railing and can only use his right leg in the power motion of climbing.
Dr Hossain in his report of 18 July 2013 notes that Mr Al-Taay complained of pain in his left knee since he received a shrapnel injury during the Iraq/Iran war and that due to ongoing pain “he can’t walk continuously for more than 150 metres and can’t keep standing for more than half an hour”.
In his report of 31 October 2013 Dr Hossain notes that, because of pain, Mr Al-Taay can’t walk for more 100 metres. It is not clear, however, whether he attributes the reduced walking tolerance to Mr Al-Taay’s left knee condition or his recently diagnosed lumbar spine condition.
In a letter dated 9 January 2014, Dr Machart, orthopaedic surgeon, notes that Mr Al-Taay is suffering from “pain predominantly anteromedially, in the metaphyseal region of the left leg, below the knee” which has been present for two months.
Dr Machart states that the MRI suggested medial meniscal tear but that the picture was corrupted by the presence of metal artefact, shrapnel from an injury in 1980.
Dr Machart makes a diagnosis of “attrition tear of the medial meniscus, probably related to early degenerative changes” but notes that the focus of the more predominant pain was in the proximal tibia and that the cause was not immediately obvious. He states that a bone scan has been organised and that if this is not productive an arthroscopy is the best option. There is no documentary evidence before the Tribunal that the bone scan was performed or that there was any follow-up with Dr Machart.
Mr Al-Taay told the Tribunal that the pain from the shrapnel had been present for a long time and the reason for the consultation with Dr Marchart was the development of “new pain” in late 2013.
On consideration of the evidence I am not satisfied the Mr Al-Taay’s left knee condition was fully diagnosed, fully treated and fully stabilised during claim period so that an a rating under the Impairment Tables cannot be applied.
Even if were accept that during the claim period that the knee left knee condition was permanent within the meaning of the Impairment Determination the evidence before the Tribunal, in my view, suggests only a mild functional impact on activities using lower limbs with a rating of 5 points under Impairment Table 3.
Gastrointestinal condition
Mr Al-Taay told the Tribunal that his longstanding gastrointestinal symptoms had the most functional impact of his activities and had “ruined” his life. It had caused him to suffer embarrassment with friends and family, caused hardship for his family and prevented him from planning or committing to normal life events.
Mr Al-Taay explained that his symptoms caused him to sit on the toilet for long periods with no apparent benefit and that all treatment had failed. He claims to have to have been told that that there are no further treatment options.
Despite his claimed difficulties Mr Al-Taay was the full time designated carer for his mother and received Centrelink carer payments until August 2012. In June 2012 he travelled to Iraq and stayed with relatives for about twelve months before returning to Australia.
Mr Al-Taay told the Tribunal that the trip to Iraq took about 36 hours with stops in Singapore and Dubai and that he travelled alone. While in Iraq he said that his condition caused embarrassment because he was always late.
In his report of 16 July 2013 Dr Selim described Mr Al-Taay’s gastrointestinal condition as “severe reflux & colonic inertia” and indicated that the condition was generally well managed and causes minimal or limited impact on ability to function but provided no other relevant information.
Dr Hossain in his letter of 18 July 2013 noted the following:
He has a longstanding problem with his bowel. He suffers from chronic constipation and dyspepsia. The thing that appeared to be worrying most was the fact that he feels like moving bowel which makes him keep sitting in the toilet for hours without anything happening. He used to consult Dr Alrubaie who extensively investigated with endoscopy and other GI studies. He was found to suffer from chronic gastritis and lactase deficiency. Dr Alrubaie thought he might have colonic inertia which was probably making him constipated. He tried prokinetic agents with no relief of symptoms.
In a letter dated 16 December 2014 Dr Alrubaie, gastroenterologist, states writes the following:
Mr Al-Taay is under my care for more than 5 years for his longstanding constipation bloating and abdominal discomfort. He had in the past several investigations which showed Gastroparesis and slow transit constipation (both referred to motility disorder) as main cause of his symptoms. He failed several medical treatments and continues to have significant symptoms and one of the options for him is to see colorectal surgeon to discuss option of surgical treatment if he fails other medical treatments we are using currently. Mr Al-Taay has recent changes in pattern of symptoms and I planned for him to have endoscopic evaluation for this purpose.
The difficulty with Mr Al-Taay’s gastroenterological condition is that, in my view, an objective analysis of the available medical evidence suggests that his condition was not fully diagnosed, treated and stabilised during the claim period.
However, on the basis that he has been under specialist care for more than 5 years I accept that during the claim period his condition was permanent for the purposes of the Impairment Determination.
The assessment of the level of functional impact under Impairment Table 10 is problematic in that Mr Al-Taay’s self-reported claim of “sitting on the toilet for hours” is somewhat implausible and is not corroborated by the documentary evidence. Nevertheless on consideration of the descriptors in Table 10 I am satisfied that there is a moderate impact on Mr Al-Taay’s daily activities due to symptoms or personal care needs associated with his gastroenterological condition so that a rating of 10 points can be applied.
Conclusion
For reasons set out above I am satisfied that during the claim period Mr Al-Taay’s impairment was not 20 points or more under the Impairment Tables and therefore did not satisfy section 94(1)(b) of the Act and he was not qualified for DSP. It is therefore not necessary to consider whether Mr Al-Taay had a continuing inability to work.
DECISION
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 I Alexander, Member ............................[sgd]............................................
Associate
Dated 16 July 2015
Date(s) of hearing 24 June 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Jurisdiction
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Appeal
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