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

Alchaar and Secretary, Department of Social Services (Social services second review) [2021] AATA 4646 (15 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0473
Re:Mr Mouhammad ALCHAAR
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms L Rieper, Member
Date:15 December 2021
Place:Sydney

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies section 94(1)(a), (b) and (c) of the Social Security Act1991 (Cth).
................................[SGD]........................................
Ms L Rieper, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether the applicant's impairments have been fully treated and stabilised - whether the applicant's impairments attract 20 points or more on any one relevant Impairment Table - whether the applicant's impairments constitute a continuing inability to work - decision under review set aside and remitted.
LEGISLATION
Social Security Act 1991 (Cth) s 94
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms L Rieper, Member
15 December 2021

Mr Alchaar seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal on 20 January 2021.
The issue to be determined is whether Mr Alchaar was qualified for disability support pension (DSP) following a claim made by him on 19 July 2020.[1]
[1] T61, T-Documents, 260 – 269.
A hearing was held on 2 November 2021 via Microsoft Teams. Mr Alchaar appeared on his own behalf, and the Respondent was represented by Mr Gauci of Hunt and Hunt.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
Subsection 94(1) of the Social Security Act 1991 (Cth) (‘the Act’) sets out the qualifications for DSP:
94(1) 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 of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;…
The Tribunal must determine whether Mr Alchaar met the qualification for disability support pension at the date of his claim, or within 13 weeks of that date, which in this case would be by 18 October 2020 (‘the qualification period’). The Tribunal may consider medical evidence (or other evidence) provided subsequent to a claim, but the evidence must pertain to Mr Alchaar’s condition and the status of his treatment at the time of his claim or during the qualification period.[2]
[2] See Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
In order to satisfy paragraph 94(1)(b) of the Act, Mr Alchaar must have an impairment rating of at least 20 points in total. The Impairment Tables are a Ministerial Determination under subsection 26(1) of the Act and are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables set out the rules for assessing an impairment and assigning a rating. An impairment rating can only be given to a medical condition that is permanent. Permanent means[3]:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[3] See paragraph 6(4) of the Impairment Tables.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider[4]:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[4] See paragraph 6(5) of the Impairment Tables.
Fully stabilised means[5]:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[5] See paragraph 6(6) of the Impairment Tables.
Reasonable treatment is treatment that[6]:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[6] See paragraph 6(7) of the Impairment Tables.
The Respondent concedes, and the Tribunal agrees, that Mr Alchaar had medical conditions that cause impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act during the qualification period.
It follows that the issues the Tribunal must determine are whether, during the qualification period, Mr Alchaar had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and, if so
(b)a continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION
Chronic pain
The Tribunal notes that in the Secretary’s Statement of Facts, Issues and Contentions, chronic pain was dealt with as a separate medical condition. The rules for applying the Impairment Tables (contained in Part 2) note that chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected. The Tribunal has therefore not considered it separately and has considered it as part of each potential impairment.
At the hearing Mr Alchaar identified his back, hips, knees, feet and anxiety/depression as being the main causes of his inability to work and need for DSP.
Spinal condition
Mr Alchaar gave evidence that he has been suffering back pain for over 10 years. He described his back condition as the most disabling of his medical conditions.
There is evidence before the Tribunal of Mr Alchaar reporting back pain as long ago as 2012. In a medical report dated 1 May 2012, which appears to have been completed in association with an earlier claim for DSP, Mr Alchaar was diagnosed by Dr Alsayed with lumbar spine discopathy.[7]
[7] T4, T Documents, 103
On 2 May 2019 Dr McKechnie, neurosurgeon, recommended that Mr Alchaar undergo a right L5/S1 and left L4/5 microdiscectomy.[8]
[8] T14, T Documents, 132
On 19 February 2020, some five months before his claim, Mr Alchaar underwent a left L4/5 microdiscectomy and right L5/S1 foraminotomy performed by Dr McKechnie although the presenting problem was said to be ‘bilateral leg pain’.[9]
[9] T21, T Documents, 256-259
Mr Alchaar’s evidence was that the surgery did not result in any improvement in his symptoms.
Mr Alchaar underwent an MRI of his lumbar spine on 18 July 2020.[10] It was reported to show a L4/5 foraminal disc bulge with swollen left L5 nerve root at the recess suggesting edema and at L5/S1 a swollen right L5 nerve root at the foramen with remarkable narrowing right neural exit foramen and facet arthropathy. Further evaluation was recommended.
[10] T27, T Documents, 277-278
A bone scan was carried out on 24 August 2020 and reported on by Dr Monaghan as showing mildly active thoracic and lumbar degenerative spondylosis as well as moderately active right L4/L5 facet joint arthritis, mildly in the right L3/L4 level.[11]
[11] T29, T Documents, 281
Mr Alchaar’s general practitioner, Dr El Semary referred Mr Alchaar back to Dr McKechnie for a review on 31 August 2020 in relation to his lower back pain.[12] Mr Alchaar’s current medications included Osteomol Paracetamol, Panadol Osteo and Movalis.
[12] T30, T Documents, 282-283
Dr McKechnie reported on 31 August 2020 that he had reviewed Mr Alchaar who was still complaining of chronic back pain with intermittent bilateral leg pain.[13] A bone scan had demonstrated moderate tracer uptake affecting the right L4/5 facet joint and to a lesser extent L3/4 and L5/S1. He had discussed facet joint injections, but they had previously provided minimal improvement and so the agreed treatment was continued medication and physical therapy.
[13] T31, T Documents, 284
On 17 November 2020, Dr Al Shamali, registered psychologist, reported as follows:
Moreover, Mr Al Chaar has reported chronic health concerns. He has a history of severe lower back pain since 2008; where radiating to bilateral legs. However he had previously lumbar spine decompressive surgery in March 2020; he still complaining of lower back chronic pain and legs pain as he can't walk more than few minutes then has to rest. He also complains of asthma and bilateral degenerative knee conditions. He can’t lift heavy object (sic) or bend to pick up something placed at knee height. He doesn’t drive unless has to (sic) and for maximum 10 minutes.
Dr McKechnie provided a further report dated 21 June 2021 having reviewed Mr Alchaar on that day. He was still reporting chronic pain in the back, the left hip and legs. He had undergone a cortisone injection, but it had worsened the pain and he did not wish to try further cortisone injections. Dr McKechnie did not recommend any further surgical interventions. He had suggested Mr Alchaar continue with core strengthening exercises and that he could try further physiotherapy and avoid any heavy work or lifting.
The Secretary concedes that Mr Alchaar’s diagnosis is:
(a) lumbar disc bulging impingement of nerve root was fully diagnosed as at 23 April 2019 as per the radiology reports and the diagnosis of Dr El Semary; and
(b) thoracic and lumbar degenerative spondylosis and facet joint arthritis, as per the report of Dr Monaghan of 24 August 2020.
The Secretary contends that the spinal condition was not fully treated or stabilised during the qualification period as there is insufficient evidence that Mr Alchaar undertook reasonable treatment options. The Secretary points to Mr Alchaar declining facet joint injections and deciding to continue his post-surgery rehabilitation with medication and physical therapy.
Mr Alchaar’s evidence regarding further injections was that injections he was given for his hip condition resulted in a worsening of his condition and reduced his mobility. He said that he does not want any further injections after that experience. Those injections seem to have been given after Mr Alchaar declined the facet joint injections.
For treatment to be reasonable treatment it needs to be treatment that can reliably be expected to result in a substantial improvement in functional capacity. Dr McKechnie reported on 31 August 2020 that previous facet joint injections had resulted in minimal improvement. There is no evidence to the contrary before the Tribunal. The Tribunal is therefore satisfied that the facet joint injections were not ‘reasonable treatment’ within the meaning of the Act.
There is also no evidence that there was post-surgery rehabilitation that was not undertaken by Mr Alchaar and could reliably be expected to result in a substantial improvement in functional capacity. There is no evidence that Dr McKechnie had concerns about Mr Alchaar continuing with treatment in the form of medication and physical therapy as opposed to undertaking some other form of treatment. Mr Alchaar’s evidence was that he undertook 5-6 physiotherapy sessions after his surgery and has continued with some, although not all, of the exercises he was shown by the physiotherapist. He has obtained little benefit. His evidence was that he continues to take his medication.
The Secretary also contends that attendance by Mr Alchaar at a pain management clinic was reasonable treatment that should have been undertaken. Dr Aggarwal referred Mr Alchaar to a pain clinic on 19 September 2015.[14] On 5 August 2021 Dr ElSemary referred Mr Alchaar to a pain clinic.[15] The referral letter is blank under the headings ‘Reason for Visit’ and ‘Actions’ and provides no insight into what treatment Mr Alchaar might receive. Mr Alchaar’s evidence was that he is yet to attend because he is waiting for an in-person appointment. The Tribunal is therefore left with an absence of evidence as to what functional improvements might be expected from the treatment. Both referrals are outside the qualification period and there is nothing in Dr McKechnie’s reports to suggest that he felt, during the qualification period, that attendance at a pain management clinic was reasonable treatment for Mr Alchaar.
[14] T18, T Documents, 197-198
[15] Exhibit A4
The same analysis applies to the Secretary’s contention that Mr Alchaar should have consulted a rheumatologist in respect of the chronic pain in his back. Whilst he was referred to a rheumatologist by Dr ElSemary on 8 October 2015[16], that was well before his surgery and there is no evidence that there was additional treatment that could be provided by a rheumatologist during the qualification period.
[16] T18, T Documents, 199-200
The Tribunal is therefore satisfied that at the qualification period Mr Alchaar’s back condition was fully treated and fully stabilised and therefore an impairment rating can be considered. The Tribunal notes that this is consistent with the view of the authorised review officer who considered the matter on 13 October 2020.[17]
[17] T35, T Documents, 300-304
Table 4 of the Impairment Tables is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
The evidence Mr Alchaar gave to the Tribunal which is relevant to an assessment under Table 4 was that:
(a) He can only lift his arms a little over shoulder height. He cannot hang out washing or get an item out of an overhead cupboard in the kitchen.
(b) The longest amount of time he spends in a car is 3-4 minutes travelling to do the shopping. He has no trouble moving to check blind spots and mirrors. He goes shopping once per week but often he stays in the car whilst his children go in and do the shopping. He can go inside at the local Aldi supermarket because there is not as much walking required. He can walk for 5-10 minutes at a time.
(c) He can bend to pick up something light from a coffee table.
(d) He can sit and watch TV but can only remain seated for 5-10 minutes at a time.
The Tribunal notes that Mr Alchaar’s evidence differed slightly from that given at the previous hearing which took place on 20 January 2021. Mr Gauci pointed to Mr Alchaar apparently having given evidence that he could lift his arms above his head.[18]
[18] T2, T Documents, 7
The relevant part of Table 4 says ‘the person is unable to sustain overhead activities (e.g. accessing items overhead height).’ In addition, the rules for applying the Impairment Tables say that ‘when determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.’
The Tribunal is satisfied on the evidence available to it that Mr Alchaar cannot, on a repetitive or habitual basis, sustain overhead activities. The Tribunal is therefore satisfied that Mr Alchaar has a severe impairment, being one which attracts 20 points, under Table 4 of the Impairment Tables.
Lower limbs
In the claim form that Mr Alchaar submitted on 19 July 2020 he advised that his ability to work was affected by his inability to walk, which he dated back to approximately 19 November 2015.[19]
[19] T22, T Documents, 266
In Dr Alsayed’s medical report dated 1 May 2012 Mr Alchaar was noted to have severe lower back pain radiating to his lower limbs with numbness.[20]
[20] T4, T Documents, 103
Mr Alchaar underwent bilateral CT scans of his knees on 29 August 2019.[21] They were reported as showing mild to moderate degenerative disease within both knee joints with no associated joint effusion or intra-articular bony bodies.
[21] T19, T Documents, 248-249
As already noted above (at paragraph ‎19) the surgery Mr Alchaar underwent to his lower back on 19 February 2020 was said to be related to his bilateral leg pain.
Also as noted above (at paragraph ‎26), the surgery did not resolve Mr Alchaar’s lower limb pain because on 21 June 2021 Dr McKechnie reported that Mr Alchaar was still experiencing pain in his legs.
Mr Alchaar said in evidence that his knee pain is the predominant lower limb problem although there is less pain than in his back. The pain comes and goes. He is taking the medication which has been prescribed and no other treatment has been recommended.
The Secretary accepts that Mr Alchaar's degenerative disease within his knee joints was diagnosed before the qualification period but contends that it has not been fully treated and stabilised. The Secretary points to the absence of evidence that Mr Alchaar has attended a specialist or surgeon in relation to his knees to determine the appropriate surgical or non-surgical treatment options.
The Secretary’s submission makes an assumption that the pathology in Mr Alchaar’s knees is causing symptoms which require further investigation and possible surgery. Mr Alchaar seems to be well cared for by general practitioners at the Bankstown Medical Centre, which he attends regularly. There is no evidence that they have recommended he consult a surgeon regarding his knees. There is no evidence at all that he needs surgery or any other form of treatment for his knees. In the absence of evidence of treatment being recommended by a medical practitioner, the Tribunal is not satisfied that during the qualification period there was reasonable treatment that had not been undertaken by Mr Alchaar.
The relevant Table for assessing lower limb function is Table 3. Given Mr Alchaar’s evidence that he can walk around his local Aldi supermarket but only for 5-10 minutes, the Tribunal is satisfied that Mr Alchaar has a moderate impairment, being one which attracts 10 points, under Table 3 of the Impairment Tables.
Hips
The Secretary accepts that Mr Alchaar was diagnosed with bilateral trochanteric bursitis prior to the qualification period. That diagnosis appears in a report from Dr Aggarwal dated 8 February 2018[22] and in Dr ElSemary’s referral letter to Dr McKechnie of 31 August 2020.[23]
[22] T10, T Documents, 126
[23] T30, T Documents, 282
There is no medical evidence regarding Mr Alchaar’s hip condition which is contemporaneous with the qualification period however, it is apparent from Dr McKechnie’s report dated 21 June 2021 that Mr Alchaar had recently seen an orthopaedic surgeon regarding his left hip pain, undergone an MRI and then undergone cortisone injections which had worsened his condition.
Given the treatment Mr Alchaar has undergone since the qualification period, the Tribunal is satisfied that the condition was not fully treated or fully stabilised as at the qualification period.
Feet

Mr Alchaar gave evidence that as a result of an accident a long time ago he has problems with his feet which are always swollen.
There is no medical evidence before the Tribunal regarding Mr Alchaar’s feet and so the Tribunal is not in a position to consider the condition.
Mental health condition
It is a requirement of the Impairment Tables that the diagnosis of a mental health condition 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). In addition, the self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment (see Table 5 of the Impairment Tables).
The Tribunal has evidence before it that Mr Alchaar has been diagnosed by general practitioners with depression and anxiety and that he has been referred to psychologists for treatment. For example, on 5 February 2019 Dr Ayyas referred Mr Alchaar to Dr Al Shamali, a registered psychologist at PsychCentral in Bankstown for an opinion and management of ‘depression/anxiety’.[24] Dr Al Shamali wrote a report dated 17 November 2020 to Centrelink, following a further referral dated 22 September 2020, outlining Mr Alchaar’s treatment history and current psychological condition.
[24] T18, T Documents, 216
The Tribunal therefore accepts that Mr Alchaar has a mental health condition which predates his claim and that he has been seeking treatment. However, there is no medical evidence before the Tribunal to suggest that he has been diagnosed by a psychiatrist and there is no evidence from a clinical psychologist. Whilst Mr Alchaar initially gave evidence that he had seen a psychiatrist, it became apparent that he was referring to Dr Al Shamali, who is a registered psychologist and not a psychiatrist or a clinical psychologist. That means that the Tribunal is unable to consider an impairment rating for Mr Alchaar’s mental health condition.
DOES MR ALCHAAR HAVE A CONTINUING INABILITY TO WORK?
Section 94(1)(c) of the Act requires that Mr Alchaar have a continuing inability to work because of his impairment. The meaning of ‘continuing inability to work’ is set out in section 94 of the Act. Section 94 says that if the impairment is not a “severe impairment” then Mr Alchaar must have actively participated in a ‘program of support’.
Section 94(3B) of the Act provides that a person has a severe impairment if he or she has a total impairment rating of 20 points or more under the Impairment Tables, of which 20 or more points have been assigned from a single Table. Mr Alchaar has a total impairment rating of 20 points solely from Table 4. It follows that subsection 94(3B) is met and Mr Alchaar has a severe impairment. This means that he is not required to participate in a program of support within the meaning of subsection 94(3C) of the Act.
Section 94(2) of the Act defines ‘continuing inability to work’ as meaning that the impairment must prevent a person from doing any work independently of a program of support, whether skilled or unskilled within the next two years. The impairment must also prevent the person from undertaking a training activity during the next two years, or, if the impairment does not so prevent, the training activity must be unlikely, because of the impairment, to enable him or her to do any work independently of a program of support within the next two years. A training activity can include an activity specifically designed for people with impairments (subsection 94(5)).
Section 94(5) of the Act defines ‘work’ to be work that is of a least 15 hours per week at award wages or above and that exists in Australia, even if it is not within the person's locally accessible labour market. All types of work must be considered, not just the type(s) of work a person may have done in the past.
The Secretary relies on the assessment contained in a Job Capacity Assessment Report dated 30 September 2020 which says that Mr Alchaar has a baseline work capacity of 8 to 14 hours per week, and, with intervention, a work capacity of 15-22 hours per week within 2 years in light less skilled work, such as that of a shop assistant.[25]
[25] T33, T Documents, 287-297
By contrast Dr McKechnie does not think that Mr Alchaar will be able to return to productive employment.[26]
[26] T30, T Documents, 282
Mr Alchaar has not worked since 2006 when he was a part-time painter. Given Mr Alchaar’s evidence regarding his inability to walk or sit for more than 5-10 minutes and his evidence that he can ascend 3-4 steps but not a flight of stairs, it is difficult to see Mr Alchaar being able to perform the tasks required of a shop assistant. As Dr McKechnie has been treating Mr Alchaar for a number of years and has consulted with him regularly over that time, the Tribunal prefers his opinion to that of the registered nurse who prepared the Job Capacity Assessment Report.
The Tribunal accepts Dr McKechnie’s opinion and finds that Mr Alchaar will not be able to undertake work for 15 or more hours per week during the next two years. Section 94(2)(a) of the Act is satisfied.
Finally, the Tribunal must consider Mr Alchaar’s potential for participation in a training activity. Given Dr McKechnie’s opinion, the Tribunal is satisfied that even if Mr Alchaar were able to undertake a training activity, it is unlikely (because of Mr Alchaar’s back and lower limb impairments) to enable him to do any work independently of a program of support within the next two years. Section 94(2)(b)(ii) of the Act is satisfied.
This means that Mr Alchaar has a continuing inability to work and is qualified to receive disability support pension.
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that Mr Alchaar satisfies section 94(1)(a), (b) and (c) of the Act.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms L Rieper, Member

.................................[SGD].......................................
Associate
Dated: 15 December 2021

Date(s) of hearing: 2 December 2021

Applicant: In person

Solicitors for the Respondent: Mr M Gauci, Hunt and Hunt

[2021] AATA 4646

15 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	2 December 2021
Applicant:	In person
Solicitors for the Respondent:	Mr M Gauci, Hunt and Hunt