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

[2017] AATA 203

Allahverdi and Secretary, Department of Social Services (Social services second review) [2017] AATA 203 (21 February 2017)

Division	GENERAL DIVISION
File Number	2016/2054
Re	Bilal Allahverdi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	21 February 2017
Place	Melbourne

The decision under review is affirmed.

........................................................................

D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully stabilised – whether conditions have functional impact - condition fully diagnosed, but treatment still continuing in claim period – other condition not diagnosed in claim period – ‘work’ does not mean work in previous occupation – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)

Social Security (Administration) Act 1999, Sch 2, cl 4(1)

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

SECONDARY MATERIALS

Assessing Fitness to Drive; Ausroads and National Transport Commission joint publication (version current in 2015).

CASES

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

REASONS FOR DECISION

D. J. Morris, Member

21 February 2017

BACKGROUND

1. Mr Bilal Allahverdi is a 53 year old gentleman who had been driving taxis for many years until November 2014.  He suffered a significant health event which led to him not being able to hold a driver licence.  This was, understandably, a major blow to him.

2. On 27 July 2015, in the wake of his health challenges, Mr Allahverdi made a claim to the Department of Social Services (the Department) to receive Disability Support Pension (DSP). 

3. The Department considered his claim and on 4 November 2015 Mr Allahverdi was advised by an officer of the Department in writing that it had been rejected because he had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables Determination (infra).  This was the original decision.

4. Mr Allahverdi sought a review of that original decision by an Authorised Review Officer (ARO), who is an officer of the Department not involved in the original decision.  On 11 January 2016 the ARO affirmed the original decision.

5. Dissatisfied with the outcome, Mr Allahverdi applied to the Social Services and Child Support Division of this Tribunal (AAT1) for an independent review of the decision that he was not qualified for DSP.  On 8 April 2016 AAT1 affirmed the decision.

6. Mr Allahverdi has, as is provided for in the law, sought a second independent review by the General Division of this Tribunal.  That is this hearing.

7. The hearing was held on 7 February 2017.  The Applicant represented himself, gave sworn evidence and was cross-examined by a representative of the Respondent, Mr Cameron Munro.

8. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (T documents), which were admitted into evidence.

9. The Applicant tendered two other documents which were also admitted into evidence:

   ·A medical report dated 22 June 2016 from Associate Professor Doug Crompton of Northern Health Neurology (Exhibit A1).

   ·A medical report dated 6 December 2016 from Dr Christopher French, neurologist, of Comprehensive Neurological Care Victoria (Exhibit A2). 

   THE LAW

   Qualification for DSP under the Act

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

11. 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.

12. 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.

13. 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.

14. So, therefore, for a person to be qualified for DSP, the person must have an 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.

15. 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?

16. 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.

    MATTER TO DECIDE

17. Was Mr Allahverdi qualified for DSP on the date he lodged his claim, 27 July 2015? If he was not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, did he become qualified on a day in the thirteen week period after the day he lodged his claim, a period which ended on 26 October 2015? This is called the claim period.

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

18. With Mr Allahverdi’s application for DSP, he provided medical reports which indicated his historical and recent medical history.  Notably, Dr Selim Kurnaz, general practitioner, recorded in a Health Summary Sheet printed on 11 August 2015 that Mr Allahverdi had obstructive sleep apnoea (OSA), hypermetropia, diabetes, hypertension, carpal tunnel syndrome (CTS) and epilepsy/tonic-clonic seizures.

19. The Respondent, in his submissions, accepted that the Applicant had impairments, but contended that they did not attract a rating of 20 or more points under the Impairment Tables during the claim period and contended that he did not have a continuing inability to work.

20. Having considered the medical evidence before me, I find that, in the claim period, Mr Allahverdi did have impairment, namely OSA, CTS, hypermetropia, diabetes mellitus, hypertension and an epilepsy condition. 

21. I therefore find that he satisfied section 94(1)(a) of the Act at that time.

    What is the correct rating under the Impairment Tables?

22. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, Rule 5(2)).

23. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

24. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

25. Under Section 6(3), 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.

26. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

27. The Impairment Tables Rules also provide, at Section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

28. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    Obstructive sleep apnoea condition

29. Mr Allahverdi underwent an overnight sleep study under the care of Dr David Cunnington, a consultant sleep medicine and respiratory physician.  The Tribunal had before it Dr Cunnington’s report dated 24 March 2015 which found that the Applicant suffered from severe respiratory disturbances.  The report ended:

    Conclusion: Snoring and severe obstructive sleep apnea [sic] that was more prominent during REM sleep.

    Recommendations: Given the severity of sleep apnea [sic], treatment with CPAP [continuous positive airway pressure machine] is indicated.

30. On 27 April 2015 Dr Cunnington wrote to the Applicant’s general practitioner, Dr Kurnaz, saying:

    I reviewed Bilal regarding his obstructive sleep apnoea and treatment with CPAP.  Bilal is compliant with treatment averaging just over eight hours of use per night.  With this, symptoms of sleep apnoea are well controlled and his Epworth Sleepiness Score is now in the normal range.

    Given this, I feel that Bilal meets the national medical standards for both private vehicle and taxi driving.  As such I have asked him now to see you so you can check if you are happy for him to return to driving duties.  I typed a separate letter for Bilal today and gave it to him by hand so that he can pass it on to you.  As this stage I have not made further followup [sic] appointments for Bilal but he knows to follow up to see me if he has any difficulties.

31. Mr Allahverdi gave evidence at the hearing that he continues to use the CPAP machine each night.  While this is a chronic condition, it is well controlled and Mr Allahverdi is obviously compliant with treatment.  The good thing is that the quality of his sleep has much improved.  He did give evidence that the CPAP machine sometimes makes sleep difficult, which the Tribunal understands.  In his oral evidence, Mr Allahverdi told the Tribunal he has had a further sleep study more recently before he went overseas and had to see Dr Cunnington in relation to it, but he had not yet done so.

32. Accordingly, while I find the condition is fully diagnosed, I cannot find it is fully treated and fully stabilised during the claim period, because further treatment was in prospect (and the Tribunal does not know the outcome of that further treatment) and so I cannot assign impairment points for his OSA condition.

    Carpal tunnel syndrome condition

33. Mr Allahverdi told the Tribunal that he had had surgery for left carpal tunnel release ’10 years ago’.  He said after that surgery the effect on him was minimised, but there was still an effect when he was doing chores.  He continued to work.  He told the Tribunal that his CTS condition later deteriorated and became more severe in the left hand than the right hand.  He saw his general practitioner, Dr Kurnaz, who then requested nerve conduction tests.  The Tribunal had before it Dr Kurnaz’s Austin Hospital Neuroscience Laboratory Request dated 24 August 2015.

34. It is clear to me on his own evidence that while Mr Allahverdi’s CTS condition may have been fully diagnosed and fully treated some ten years ago, that situation has now changed because of a deterioration.  The nerve conduction test request was not carried out until 10 November 2015, which is after the 13 week claim period that I must consider.  Consistent with the decision of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations, any subsequent change in the Applicant’s health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.  This approach has been approved by subsequent Federal Court decisions.

35. The neurodiagnostic report of Dr Nicholas Crump and others dated 10 November 2015, while recording electrophysiological evidence of median neuropathy of the left wrist went on to say:

    These findings are far from diagnostic in the post surgical setting.  If symptom [sic] persist, repeat NCS and NMUS in 3-6 months may be of interest.

36. I accept Mr Allahverdi’s evidence that, during the claim period, his historic CTS condition may have become more troublesome, and it may have spread, but it is clear that his medical advisers were still treating it after the claim period and had not settled on a diagnosis in the sense that they were contemplating further tests.

37. I therefore find that the CTS condition was not ‘permanent’ within the terms required by Section 6(4) of the Determination in the claim period.

38. I stress here that ‘permanent’ in this usage does not suggest that the condition is temporary, but I must apply the special meaning of this term in the Determination relating to DSP which, for a condition to be regarded as ‘permanent’ requires me to take into consideration whether treatment is continuing or planned in the next 2 years.  Clearly it was.

    Hypermetropia condition

39. Dr Tow Lim, ophthalmologist, saw Mr Allahverdi on 15 May 2015.  He wrote to Dr Kurnaz on that day as follows:

    DIAGNOSIS

    1.Diabetes

    2.High hypermetropia

    I saw Bilal today for review.

    With correction this gentleman sees 6/5 bilaterally.  He has clear lenses with intraocular pressures.  His fundi are normal with no diabetic retinopathy found.

    Bilal only requires an eye check every eighteen months.

40. On this medical evidence, I find that Mr Allahverdi’s long-sightedness is fully diagnosed, fully treated and fully stabilised.  However, Section 9 of the Determination states:

    A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually does.

41. Mr Allahverdi uses prescription lens spectacles and, applying Section 9 and Section 11(5), I find that there is no functional impact on him of his hypermetropia condition and so a rating of zero points must be assigned.

    Diabetes mellitus condition

42. Dr Kurnaz’s medical summary of 11 August 2015 notes Mr Allahverdi as having diabetes mellitus with the date of onset occurring in 2008.  He is non-insulin dependent.  As noted above, Dr Lim also recorded this diagnosis in May 2015.  Mr Allahverdi confirmed to the Job Capacity Assessor (JCA) on 31 August 2015 that this condition is well managed and has minimal impact on function.  When asked about his diabetes at this hearing, the Applicant said he was not medically trained and that the condition does have an impact on him, and that his anxiety and depression affects it.  He said that he has to be careful with his diet.

43. I find that this condition is ‘permanent’ in terms required by the Determination.  It is fully diagnosed, fully treated and fully stabilised in the sense that it is a condition Mr Allahverdi has had for nine years and it has not prevented him working.  I find that no impairment points could be assigned for this condition in the claim period.

    Hypertension condition

44. Dr Kurnaz notes hypertension in his medical summary of 11 August 2015 with a date of onset of 2008.  The JCA recorded that Mr Allahverdi’s hypertension is managed by his general practitioner and treated with regular medication, and the Applicant confirmed to the JCA that it had minimal impact on his ability to function.  It did not prevent him from working.

45. In relation to this condition, there is no evidence of impairment from it and so under Section 11(5) a zero rating must be assigned.

    Epilepsy/tonic-clonic condition

46. This is the condition which led Mr Allahverdi to lodge his claim for DSP.  It is the one that has had the most effect on him.  The Tribunal had before it a Discharge Summary from The Northern Hospital dated 17 July 2015.  It recorded a principal diagnosis of Multiple tonic clonic seizures likely secondary to cerebrovascular disease.  It recorded a history of seizures.  The first was in November 2014 where Mr Allahverdi’s daughter found him asleep and non-responsive.  In March 2015 he had a further seizure when he went to pick up his daughter from school.  He had a further seizure in July 2015 and was admitted to hospital, and another seizure quickly followed the same day which was witnessed by medical staff.

47. Dr Christopher French’s 6 December 2016 letter was before the Tribunal.  Dr French said:

    I first met Mr Allahverdi in April 2015 where he had been found slumped over his steering wheel parked in his taxicab that he was driving for employment.  The cause of this particular problem was uncertain but severe sleep apnoea was diagnosed at that stage.  Unfortunately in July 2015, he then had at least two convulsive seizures and was commenced on antiepileptic medication, Keppra and Lamictal.  He has been under the care of my colleagues at the Northern Hospital and fortunately has remained seizure free subsequently.

48. It is clear to me from the Discharge Summary and the witnessed medical episodes that the Applicant’s epilepsy condition may be regarded to be fully diagnosed.

49. When he was discharged from The Northern Hospital, it is recorded:

    Patient advised that he will need to be seizure free for 10 years before he can return to work as a taxi driver, & thus needs to realistically start searching for other forms of employment.  Patient appropriately consulted with SW.  He was also advised that he needs to be seizure free for 1 year before he can drive again.

50. Dr Kurnaz wrote to the Department on 11 November 2015 in support of Mr Allahverdi’s application for DSP saying, in part:

    Unfortunately he has had recurrent seizures requiring hospital admission on 31 October 2015.  His Epilim dose has been increased with ongoing followup [sic] arranged with his neurologist.  He remains unable to drive a motor vehicle or operate any form of machinery.

    The Applicant’s evidence

51. Mr Allahverdi told the Tribunal that he commenced taking the drug Epilim in relation to his epilepsy condition in July 2015.  AAT1 recorded that the Epilim dosage was increased in November 2015 and stopped in March 2016 and new drugs, Lamotrigine and Levetiracetam were added.

52. Mr Allahverdi said that the medication was changed because of side-effects, not because his condition was not fully stabilised.  He said that it had been found that sudden sounds caused in him a neurological reaction.

53. He said that it was originally thought that his first seizure might be connected to his OSA condition but when he was admitted to hospital he actually had a seizure on the ward.  Because of this direct observation of the episode, his doctors were able to conclude a diagnosis of epilepsy.  This is consistent with The Northern Hospital report.

54. He said that he had had no recent seizures and told the Tribunal that towards the end of 2016 he was allowed to regain his private driver licence.  However, the national standards (set out in Assessing Fitness to Drive, a joint publication of Ausroads and the National Transport Commission) detail the medical standards for driver licensing for use by health professionals and driver licensing authorities.  These mean, in Mr Allahverdi’s case, that whilst he can drive a private motor car, he was precluded from holding a commercial driver licence or operating certain machinery until a ten year period had passed from the time of the last epileptiform activity.  There has been some subsequent revision of these requirements in 2016 but that is not relevant to the claim period.

    Consideration

1. The Tribunal notes the ARO’s remark that Mr Allahverdi was scheduled to have further tests, an EEG on 21 August 2015 and an MRI on 22 August 2015.

2. The Tribunal had before it a medical report from Associate Professor Doug Crompton, neurologist, dated 22 June 2016.  Dr Crompton records:

   He has had 2 EEGs – one routine and one sleep-deprived, which have not shown any abnormalities, though on clinical grounds there is no doubt as to his history of epileptic seizures.  He has had 2 MRI brain scans which have shown a possible tiny developmental lesion (periventricular heterotopion) which may be the cause of the seizures.

   He is on treatment with 2 anti-convulsant medications (Lamotrigine, 50mg daily and Levetiracetam 500mg twice daily), having had unpleasant side effects on a different medication (sodium valproate).

3. It would seem to me that in the claim period there was no doubt of the settled diagnosis.  Mr Allahverdi had epilepsy.  The change in his medication does not, of itself, necessarily compel me to find that the condition is not stabilised, especially given his evidence, confirmed by Dr Crompton, that the change in medication was necessitated by a reaction.  Nor, of itself, does Dr Kurnaz’s advice of recurrent seizures and hospitalisation on 31 October 2015, outside the claim period. 

4. A regrettable reality of epilepsy is, in the Tribunal’s knowledge, that it has widely varying effects on sufferers and, sometimes, while the condition may be managed and well treated, seizures can still occur.  There are specific provisions in the Determination (Section 11(4)) to assess episodic or fluctuating conditions in terms of their overall functional impact on a person.  Epilepsy is an example of an episodic condition.

5. However, at the time, it is a fact that Mr Allahverdi was awaiting further tests in, and beyond, the claim period, so therefore I conclude that I cannot, on balance, find that this condition was fully treated at that time.  Unfortunately for the Applicant, I am constrained to look only at the 13 week period and subsequent medical evidence is only relevant if it is directly referrable to the claim period.  The conclusions of Dr French and Dr Crompton may be useful evidence for the Applicant to submit in relation to a fresh claim, but they contain information which is later than this claim period.

6. At the hearing, Mr Allahverdi referred to suffering from anxiety and depression.  I accept his evidence as truthful.  Anxiousness may be quite an understandable reaction after the time it took for his doctors to come to a settled diagnosis for his (at first) unexplained seizures, and the sudden impact for the Applicant of being confronted with the fact of being forced to immediately cease his employment as a taxi driver would reasonably have an effect.

7. However, for me to consider assigning an impairment rating for a mental health condition, the Tribunal needs more evidence than self-reporting by an Applicant.  Rule 8 in the Determination requires that there be corroborating evidence.  In particular, in relation to Table 5 – Mental Health Function, there must be a mandatory diagnosis by a psychiatrist or a clinical psychologist.

8. I note that Dr French in his 6 December 2016 report says as follows:

   Despite his good seizure control, he seems to have been significantly affected in several domains for which reason he is applying for disability support pension.  On questioning Bilal it appears that he has had problems with his memory, difficulty recording simple information conveyed to him recently.  He also has trouble concentrating on complex tasks for half-an-hour.  He also has trouble planning and problem solving, and mentioned that his mood has become quite labile putting some stress on his family relationships.

9. Dr French goes on:

   I think it would be fair to say that he will be unable to return to his normal profession as a taxicab driver given the national guidelines for epilepsy.  My strong clinical sense is that he has significant impairment in the domains of the degree required in the tables of disability.  Unfortunately, he has not had formal neuropsychological or neuropsychiatric testing to definitively quantify these disabilities.

10. The Tribunal noted during his evidence that Mr Allahverdi had trouble remembering dates and times, even in relation to evidence he had given to AAT1.  Dr French is not a medical practitioner in the category required by the Determination for the diagnosis of a mental health condition.  But he is an experienced neurologist, so his opinion in assessing Mr Allahverdi’s cognitive capacity carries significant weight.  It is my conclusion that further testing of whether there has been cognitive deterioration of the Applicant of the specific type mentioned by Dr French, may be desirable as it may affect his ability to work in the future.

11. However, this tentative conclusion by Dr French is more contemporary information that is well after the claim period, so my recording of it is here is for context, not in relation to the assignment of an impairment rating.

12. I also note Mr Allahverdi’s own evidence that he recently travelled overseas, independently, for some three months (though he did travel with friends).  He completed The Hajj, and also visited his daughter who resides in Turkey.  He told the Tribunal he took his CPAP machine and three months’ medication for his epilepsy and other condition with him during this trip.  This evidence is positive in regard to his ability to work.

    Conclusion

13. The Tribunal is unable in the claim period to assign any impairment points for the Applicant’s impairments.  Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a person at the time he made his claim or in the 13 weeks thereafter.  Consequently, Mr Allahverdi did not meet the requirements of section 94(1)(b) at that time, so this application cannot succeed.

14. As section 94 is conjunctive (meaning that a person claiming DSP must meet each part of the section) and Mr Allahverdi did not meet section 94(1)(b) in the 13 week period starting on 27 July and ending on 26 October in 2015, it is not necessary for me to go on to consider whether he had satisfied the requirements of section 94(1)(c) of the Act in regard to a continuing inability to work.

15. It is important that I make a point that has perhaps been overlooked by the Applicant and some of his medical advisers.  The fact that Mr Allahverdi had to give up his previous employment and is prevented from holding a commercial driver licence for the next several years is relevant in terms of being an employment barrier.  It will affect the types of employment available to him. 

16. However, in terms of a continuing inability to work requirement in section 94 of the Act, section 94(1)(5) of the Act relevantly defines what ‘work’ is:

    “work” means work:

    (a)That is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)That exists in Australia, even if not within the person’s locally accessible labour market.

17. Accordingly, the solitary fact that a medical condition may limit the range of jobs a person is able to do is not, ipso facto, qualification for DSP.

18. During the hearing, the Applicant remarked that he has made a fresh application for DSP.  This will allow more recent medical evidence and changes in the functional impact of his impairments to be taken into account.  The Tribunal cannot say whether that claim would succeed, but it is in Mr Allahverdi’s interests to gather together and submit to the Department all the medical evidence he can to support a new application.

19. The conclusion I have come to in relation to this claim is that the original decision that Mr Allahverdi was not eligible for DSP in the claim period was correct.

    DECISION

20. The decision under review is therefore affirmed.

75.     I certify that the preceding 74 (seventy‑four) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.

…..…...................................................

Associate

Dated 21 February 2017

Date of hearing	7 February 2017
Applicant	In person
Advocate for Respondent	Secretary, Department of Social Services, Mr C Munro