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

[2019] AATA 5403

Amin Zada and Secretary, Department of Social Services (Social services second review) [2019] AATA 5403 (21 November 2019)

Division:GENERAL DIVISION

File Number:          2019/3075

Re:Sayed Amin Zada

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:21 November 2019

Date of written reasons:        16 December 2019

Place:Sydney

The decision under review is affirmed.

..........................[sgd]..........................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – rejection – physical and mental conditions – whether applicant has an impairment rating of 20 points or more according to the Impairment Tables Determination – whether the applicant has a continuing inability to work – where impairments not rated at 20 points or more under the Impairment Tables Determination – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

16 December 2019

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 21 November 2019. The following paragraphs are the reasons for the Tribunal’s decision.

   INTRODUCTION

2. Mr Sayed Amin Zada lodged a claim for disability support pension on 13 November 2018.

3. The Department of Human Services (the Department), initially and on review, rejected Mr Amin Zada’s claim for disability support pension because he did not meet the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

4. Mr Amin Zada applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 2 May 2019, the SSCSD affirmed the decision of the Department.

5. Mr Amin Zada subsequently applied to the General Division of the Tribunal for review.

6. The application was heard by the Tribunal in Sydney on 21 November 2019. Mr Amin Zada attended the hearing by teleconference and provided oral evidence to the Tribunal with the assistance of an interpreter of the Hazaragi language.

   RELEVANT LEGISLATION

   Qualification for disability support pension

7. To qualify for disability support pension, Mr Amin Zada must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

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

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

   (c)a continuing inability to work.

8. Further, Mr Amin Zada must satisfy these criteria on the date he applied for disability support pension on 13 November 2018 or within the following 13 weeks (the claim period): section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth).

   Rules for assigning impairment ratings

9. The Impairment Tables are found in 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 it affects a person’s ability to function, impairment may be rated between nil and 30 points.

11. 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).

12. 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 doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

13. 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).

14. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition:

    …must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

15. The Secretary concedes, and the Tribunal agrees, that Mr Amin Zada has medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.

16. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, Mr Amin Zada had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue – Does Mr Amin Zada have an impairment rating of 20 points or more under the Impairment Tables?

    Spinal condition

17. Mr Amin Zada has a long-standing spinal condition. Medical evidence relevant to the claim period includes:

    ·A report by Dr M Dowla (neurologist) dated 24 October 2018, which verified that Mr Amin Zada is ‘suffering from severe low back pain and sciatica’ that ‘is currently being investigated and treated with high dose of analgesics’.[1]

    ·A medical letter by Dr K Hamid (general practitioner) on 14 November 2018. This letter stated that Mr Amin Zada has ‘chronic lower back pain due to disc protrusion; he walks with difficulty. He has been on long-term narcotic analgesic medications’.[2]

    [1] Exhibit T-T24, page 152.

    [2] Exhibit T-T29, page 189.

18. On 16 August 2019, more than six months after the claim period, Dr Hamid reported that Mr Amin Zada has had treatment for his lower back pain and he is mentally ‘not fit’ for an operation.[3] On 18 October 2019, eight months after the claim period, Dr Dowla continued to report that Mr Amin Zada’s low back pain and sciatica is ‘being investigated’.[4]

    [3] Exhibit A9.

    [4] Exhibit A5.

19. A discharge plan from Auburn Hospital dated 6 November 2019, nine months after the claim period, reported that Mr Amin Zada presented with ‘acute on chronic back pain in the context of known spinal canal stenosis’ and an MRI showed ‘degenerative changes in the lower lumbar spine, with moderate narrowing of the L5 neural exit foramina’.[5]

    [5] Exhibit A10.

20. At the Tribunal hearing, Mr Amin Zada said he has seen specialists for his spinal condition and has previously undertaken physiotherapy but has not had injections for pain relief. Mr Amin Zada further told the Tribunal that he is currently ‘paralysed’ and relies on a carer.

21. I find that Mr Amin Zada’s oral evidence that he is ‘paralysed’ is not consistent with the medical evidence before the Tribunal. Having regard to the evidence, in particular the reports by Dr Dowla dated 24 October 2018 and 18 October 2019, I am satisfied that Mr Amin Zada’s spinal condition is still being investigated. I further note there is minimal evidence about treatment that has been undertaken by Mr Amin Zada in the medical reports before the Tribunal.

22. With regard to Mr Amin Zada’s functional capacity, six months prior to the claim period, he was able to travel by aeroplane for approximately 20 hours and live alone. He received assistance from a carer to translate for him in the community and assist him with shopping.

23. Based on these findings, I am satisfied that Mr Amin Zada’s spinal condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. In accordance with the Impairment Tables Determination, I cannot assign points for this condition.   

    Epilepsy

24. Mr Amin Zada has suffered from epilepsy and ‘uncontrolled’ seizures since childhood. On 24 October 2018, Dr Dowla reported the following in relation to Mr Amin Zada’s epilepsy:

    I have been looking after [Mr Amin Zada] since 2013. He has been suffering from uncontrolled seizures due to non-compliance, poor understanding etc. This 60-year-old gentleman from Afghanistan presented with a longstanding history of seizure disorder that dates back to his childhood. He describes this used to be a faint or convulsion which would last about five minutes. On recent occasions, he would lose consciousness and would wake up with a headache. Sometimes, he would be even agitated and verbally abusive.  There was no witness to corroborate his history. He was put on Tegretol CR 200 milligrams twice a day and he has remained seizure free until more recently when he suffered a seizure a few months ago. He has been taking Tegretol only once a day, which may have been the reason for his seizure.[6]

    [6] Exhibit T-T24, page 152.

25. In a subsequent report dated 18 October 2019, eight months after the claim period, Dr Dowla stated that Mr Amin Zada was admitted to hospital on 13 December 2018 with ‘fever and seizure’: his dose of Tegretol was increased because his ‘seizure control was unsatisfactory’.[7]

    [7] Exhibit A5.

26. Based on the medical evidence, I am satisfied that Mr Amin Zada’s condition of epilepsy was fully diagnosed, but not fully treated and fully stabilised during the claim period. This is because the report of Dr Dowla on 24 October 2018 stated that Mr Amin Zada was non-compliant with his medication. This means I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Depression

27. Mr John O’Connor (registered psychologist) at NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) provided reports about Mr Amin Zada dated 1 April 2014 and 21 November 2014. These reports outlined Mr O’Connor’s psychological support for Mr Amin Zada since 11 January 2012 and the deterioration of Mr Amin Zada’s physical and mental health since he has been separated from his family in Pakistan. These letters described Mr Amin Zada as experiencing ‘poor sleep, poor concentration and memory, periods of disassociation, stress and low mood’ but do not make a diagnosis of depression.[8] The purpose of these reports appeared to be to support Mr Amin Zada’s claim for Australian citizenship.

    [8] Exhibit T-T10, page 132.

28. A report by Dr Reza Pishyar (clinical psychologist) on 17 December 2014 diagnosed Mr Amin Zada with major depression and post-traumatic stress disorder (PTSD). This report described Mr Amin Zada’s participation in cognitive behaviour therapy and trauma counselling, and outlined his symptoms including short term memory problems and poor concentration, feelings of hopelessness and helplessness, poor sleeping and intrusive memories. Dr Pishyar also referred to Mr Amin Zada’s application for Australian citizenship and his difficulties in fulfilling the requirements of his citizenship application.

29. Dr Pishyar provided a further report dated 30 April 2019, more than two months after the claim period. In this report, Dr Pishyar confirmed Mr Amin Zada has been under his clinical care since 2012 and has received ongoing psychological treatment for depression, an anxiety disorder and PTSD. Dr Pishyar noted Mr Amin Zada was attending counselling sessions, and taking antidepressant medication and sleeping tablets to monitor his symptoms of depression and anxiety.

30. In this report, Dr Pishyar described Mr Amin Zada’s ‘current depressive and anxiety symptoms’ as:

    1.    Poor memory and concentration,

    2.    Having difficulty to recall things and unable to register events in his mind due to mental distress,

    3.    Feeling of hopelessness and helplessness,

    4.    Poor sleeping and waking early morning tired and lethargic,

    5.    Loss of interest and meaningless attitude.[9]

    [9] Exhibit A1.

31. Mr Amin Zada told the Tribunal he has continued to attend counselling sessions at STARTTS from 2012 and see Dr Pishyar from 2014 to the current period. This is confirmed in a report from STARTTS dated 5 December 2018, which stated that Mr Amin Zada has continued to receive counselling since February 2012.

32. Based on the evidence of Dr Pishyar, I am satisfied that Mr Amin Zada’s condition of depression was fully diagnosed, fully treated and fully stabilised during the claim period.  However, I find Dr Pishyar’s report provided limited detail about Mr Amin Zada’s functional capacity due to his mental health. Considering the descriptors in Table 5 – Mental Health Function of the Impairment Tables Determination, I am satisfied that this condition has a mild functional effect on Mr Amin Zada and I assign 5 points. I make this finding in view of Mr Amin Zada’s capacity to live alone, to travel overseas on four occasions from 2013 to 2018 and to participate in the Tribunal hearing on his own for three hours by telephone on 21 November 2019. I further note that there are no medical reports before the Tribunal that support assigning a higher rating of points.

    Diabetes

33. A health summary sheet dated 25 January 2019 stated that Mr Amin Zada was diagnosed with diabetes in 2015. This health summary also listed three medications prescribed to Mr Amin Zada for his diabetes. An undated report from Dr Hamid also noted that Mr Amin Zada has had ‘diabetes for 15 years’.[10]

    [10] Exhibit T-T45, page 336.

34. At the Tribunal hearing, Mr Amin Zada said he has been treated by Dr Naswrin Moin (endocrinologist) for the past three years but is unable to provide a report because he cannot afford to pay for it.

35. While I accept this situation places Mr Amin Zada in a difficult position, I further note that the medical evidence in relation to Mr Amin Zada’s condition of diabetes from his other treating medical practitioners, including his general practitioners, is limited to the information set out above.

36. In view of the limited medical evidence before the Tribunal, I am satisfied this condition was fully diagnosed, but not fully treated and stabilised during the claim period.

    Eyes

37. Ms Emma Jaafar (optometrist) provided reports dated 6 July 2018 and 12 April 2019, which stated that Mr Amin Zada was under the care of Westmead and Blacktown Hospitals and has ‘reduced vision’ that the hospital ‘is investigating’.[11] Mr Amin Zada confirmed to the Tribunal that his eye condition is still being investigated by Westmead Hospital.

    [11] Exhibit T-T21, page 149.

38. Based on the evidence, I am satisfied that Mr Amin Zada’s eye condition was not fully diagnosed, treated and stabilised during the claim period. In accordance with the Impairment Tables Determination, I am unable to assign points for this condition.

    Asthma

39. Dr Hamid reported on 4 December 2018 that Mr Amin Zada suffers from asthma. However, there is no detail about this diagnosis or treatment for this condition.

40. Mr Amin Zada told the Tribunal that he uses a puffer but this ‘does not help’. He said that he has not been referred for specialist review. 

41. Based on the minimal medical evidence before the Tribunal, I cannot be satisfied Mr Amin Zada’s condition of asthma was fully diagnosed, treated and stabilised during the claim period. For this reason, I am unable to assign points for this condition under the Impairment Tables Determination.

    Gastro-oesophageal reflux disease (GORD)

42. A health summary sheet dated 25 January 2019 set out that Mr Amin Zada was diagnosed with GORD in 2013.

43. Mr Amin Zada told the Tribunal that he has seen Dr Chowdhury (gastroenterologist) for this condition. However, there is no report from Dr Chowdhury before the Tribunal and no medical evidence from Mr Amin Zada’s general practitioners providing details about the diagnosis and treatment of this condition.

44. Based on the minimal medical evidence before the Tribunal, I am not satisfied that Mr Amin Zada’s condition of GORD was fully diagnosed, treated and stabilised during the claim period. I am therefore unable to assign points for this condition in accordance with the Impairment Tables Determination.

    CONCLUSION

45. For the reasons set out above, I am satisfied that Mr Amin Zada did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.

46. As I find that Mr Amin Zada did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

47. The decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[sgd].......................................

Associate

Dated: 16 December 2019

Date of hearing:	21 November 2019
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Department of Human Services