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

[2016] AATA 588

Aziz and Secretary, Department of Social Services (Social services second review) [2016] AATA 588 (10 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4867
Re	Muhammad Aziz
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	10 August 2016
Place	Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether Applicant qualified at date of cancellation – whether impairments rated 20 points or more – decision under review affirmed

LEGISLATION

Social Security Act 1991, s94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Ms N Isenberg, Senior Member

10 August 2016

BACKGROUND

1. Mr Aziz commenced receiving disability support pension (‘DSP’) in 2006.  Following a review, on 11 May 2015 Centrelink decided to cancel his pension on the ground that he did not, at that date, qualify for the payment.

2. On 27 August 2015, the Social Services and Child Support Division of this Tribunal (SSCSD) affirmed the decision to cancel Mr Aziz’s DSP.  Mr Aziz seeks review of that decision.

   QUALIFICATION FOR DSP

3. The legislation concerning DSP is found in the Social Security Act 1991 (‘the Act’). Section 94 provides that, to qualify for DSP, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rates at 20 or more points according to the Impairment Tables; and

   (ii)a continuing inability to work, as defined by the Act.

4. The provisions concerning qualification for DSP have been amended a number of times since Mr Aziz qualified for the payment in 2006.  It is not necessary to detail the amendments here. 

   The Impairment Tables

5. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) comprises of tables by which the effect of impairments on work performance is assessed.  According to its severity, an impairment may be given a rating between nil and 30 points according to whether its effect is nil, mild, moderate, severe or extreme.

6. An impairment can only be given a rating if the condition causing it is permanent and the resulting impairment is more likely than not, in light of available evidence, to persist for more than two years: cl 6(3). A condition is permanent if it is fully diagnosed, treated and stabilised: cl 6(4).

   Spinal Condition

7. In a treating doctor’s report dated 3 December 2001 the Applicant’s then GP, Dr A Jones recorded that, at that time, the Applicant’s lumbar disc disease caused him to suffer low back pain and right leg sciatica, for which he had been prescribed Vioxx, Tramal and physiotherapy.  In 2002 the Applicant reported to Dr R Jones, a medical adviser to Health Services Australia that he was not planning correcting surgery.  A CT scan dated 2 September 2005, recorded disc bulges in Mr Aziz’s spine in several locations. 

8. A report dated 6 May 2005 was provided to the Applicant’s lawyers (presumably in accordance with his workers’ compensation claim) by Dr R Adler, specialist in rehabilitation medicine.  The Applicant was reported to have been attending, at that time, physiotherapy twice a week.  In a treating doctor’s report dated 5 September 2005 Dr Qidwai, the Applicant’s GP, reported that the Applicant’s treatment has consisted only of NSAIDs and physiotherapy.  In a further treating doctor’s report dated 27 June 2006 Dr Qidwai reported the Applicant was being treated with analgesics, NSAIDs and physiotherapy.  In 2008 the Applicant reportedly told a JCA that, in the past he had had ‘physiotherapy, chiropractor and medication’, and that no further treatment was planned.

9. Dr Qidwai, recorded in his undated report (which was received by Centrelink on 10 February 2015) that Applicant had previously had analgesics and the physiotherapy, but that currently he was only taking analgesics and doing exercises. 

10. A CT scan dated 12 June 2015 noted aspects of right-sided foraminal and mild central canal stenosis, suspicion of nerve root impingement and posterocentral disc bulging.

11. The Respondent accepted that this condition is fully diagnosed, treated and stabilised, and should therefore be rated under the impairment Tables.

12. In 2005 when the Applicant saw Dr Adler, a specialist in rehabilitation medicine, the doctor noted that at that time that Mr Aziz experienced “low back pain when walking for long periods or sitting for long periods … [and he] admits to back pain mainly when involved in any heavy lifting tasks.”

13. Dr Qidwai recorded in his undated report that the impact of this condition was ‘unable to concentrate’, which seems to me, an unlikely analysis relating to a back condition. 

14. Following cancellation, Dr Qidwai provided another report dated 23 August 2015.  There, Dr Qidwai provided a vastly different account.  He referred to the Applicant’s pain and stiffness of the neck which had ‘gone from bad to worse’ and the Applicant’s inability to sit and walk for more than 10 minutes, as well as an inability to climb stairs.  He reported that the Applicant was able to reach his fingers to 40cm from the floor.  Dr Qidwai further reported that the Applicant requires regular (unspecified) support at least twice a week, to live independently.

15. In the JCA report of 13 March 2015, the Applicant was recorded as reporting:

    ·Inability to stand for more than 10 minutes

    ·Ability to walk for one hour, with 10-minute rest breaks

    ·Inability to sit for more than 20 minutes without changing position

    ·Independent in self-care activities, and ability to shop and use public transport independently

    ·Ability to lift 5kg but not for more than 10 minutes

    ·Difficulty bending all the way down to the floor, but can bend to knee height

    ·Ability to negotiate stairs slowly by handing the hand rails

    ·Ability to perform light cooking and washing up, but inability to vacuum or mop

16. In his evidence the Applicant, however, was critical of the JCA.  

17. In a conversation with the Authorised Review Officer (‘ARO’), on 3 June 2015, the Applicant was reported to have said that he could bend at the knees to retrieve something at knee height; that he could walk around a shopping centre for an hour with intermittent breaks; and was able to turn his head side to side. 

18. The ARO also reportedly discussed with the Applicant the inconsistency between the reported ability to sit for no more than 10 minutes with the Applicant’s travel history, notably, a 14-hour flight to Pakistan.  In this regard, the Respondent noted that the Applicant travelled to Pakistan on 29 May 2013, 7 August 2013 and 23 July 2014, and has travelled to unspecified destinations on 3 July 2015 and 3 April 2016.  At the hearing the Applicant told me that, with the exception of the obligatory seating associated with landing and taking off he spends the whole time out of his seat and walking up and down the aisle of the aircraft, which, on a long journey such as to Pakistan, is, in my view, highly unlikely.

19. The applicant underwent an independent evaluation (a functional capacity evaluation (‘FCE’) on 11 January 2016.  The Applicant reported a restricted ability to walk 400-500 metres and a sitting tolerance of only 10-15 minutes.  The Applicant further reported an inability to bend, such that if he were to drop an item on the floor at home, he would leave the item on the ground until somebody would visit him to pick it up.  The Applicant’s restrictions he reported in the FCE were notably worse when compared to other contemporaneous evidence, in particular, the Applicant’s recorded reporting to the JCA, the ARO and also, for that matter, Mr Berbari and Dr Qidwai. 

20. I accept that Mr Aziz is adamant that he had never previously said he could bend forward and touch his knees and that he could not perform such an action.  However, Mr Berbari, his physiotherapist, reported on 10 June 2015, that: “Lumbar spine movements demonstrated fingertips reaching the mid shin level on flexion”, and even Dr Qidwai on 23 August 2015 noted: “Spinal flexion allowed him to reach his fingers to 40 cm from the floor.”  I see no reason to find that the JCA report does not accurately reflect what Mr Aziz told the assessor, or that the FCE report does not accurately reflect the assessor’s observations of Mr Aziz.  Like the SSCSD I have grave concerns about the reliability of Mr Aziz’s evidence. 

21. The Respondent reiterated that the Applicant’s condition is to be assessed solely as at the date of cancellation, 11 May 2015: Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. That approach was recently affirmed in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 in which Besanko J approved previous observations by the Tribunal that medical reports produced after the relevant period are only relevant to the extent they are referrable to the person’s condition during the relevant period. Whilst in relation to the deterioration of conditions since an application for DSP, the principle, in my view, is equally applicable when considering the cancellation of a DSP.

22. Mr Aziz told SSCSD that when he was granted the pension he stopped all treatment for all his conditions and he has only recently resumed some of his treatments as a result of Centrelink’s decision to cancel his pension.  From 10 June 2015, that is, after cancellation, the Applicant re-engaged a physiotherapist, Mr Berbari, who planned deep tissue massage, mobilisations, stretches, core stabilisation exercises and postural education.

23. Table 4 of the Impairment Tables provides, relevantly, as follows:

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)      The person can:

(a)      bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)      turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities overhead height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items overhead height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. In assessing the Applicant’s condition at the date of cancellation, I find that a rating of five points is appropriate.  As to the Applicant’s reported ability to sit for only short periods of time, on the basis of his travel history, such a restricted capacity is, in my view, as I have said, unlikely.  The contemporaneous evidence also indicates that the Applicant was able to bend and pick up light objects at knee height, and lift objects up to 5kgs.  There was no evidence nor claims relating to the need for assistance to get up out of a chair.

2. I also assessed the Applicant under Table 3 in relation to lower limb function.  That Table provides, relevantly:

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:     The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

1. I find that the Applicant’s back condition causes impairment to his lower limbs and I accept the JCA and the FCE assessments that the Applicant’s impairment is mild, and that he meets the descriptors for a mild impairment rating of 5 points under Table 3. 

   Shoulder Condition

2. There is some evidence indicating a right shoulder condition, although radiological reports in 2005, being an ultrasound by Dr Silva, revealed that the shoulder, at that time, was ‘normal’, but with ‘signs’ of subacromial bursitis.  A report by Dr Bentivoglio, orthopaedic surgeon, dated 16 September 2005, however, stated that there was no evidence of subacromial bursitis and that the Applicant was, at that time, reasonably happy with his shoulders.  Dr Adler who in his report dated 6 May 2005 also regarded the shoulder as ‘normal’ noted that the Applicant ‘may require shoulder cortisone injection to alleviate right shoulder pain, or in the longer term a subacromial decompression surgery to treat this.'  I do not, however, draw any conclusion that the doctor was recommending such treatment but was, at that time speculating as to prognosis.

3. Two reports by Dr Habib, both dated 9 September 2005, state that the Applicant’s range of movement was, at that time, only slightly below normal. 

4. In treating doctor’s reports dated 25 October 2005, 27 June 2006, and 3 June 2008, Dr Qidwai referred to the condition as causing pain, although in his report dated 13 October 2008, the condition is listed as causing only minimal impact.  The condition is not mentioned at all in his report provided as part of the DSP review.  At the SSCSD hearing, Mr Aziz said the condition had deteriorated since Dr Qidwai had written his report, and that he said he had started attending physiotherapy “a couple of months ago.” 

5. However, in his report dated 23 August 2015 Dr Qidwai’s made extensive reference to a left shoulder condition (which by letter dated 20 February 2016 he clarified as an erroneous reference to the right shoulder).  Dr Qidwai reported, when corrected, that ‘there was no restriction of movement of the shoulder on the [left] side but [right] shoulder movements were possibly only to the middle of the range.’  Dr Qidwai states that the Applicant could not lift a cup of tea at times.  Accepting the error in regards to left/right, this is the highest that any medical evidence places the impact of the shoulder condition. 

6. Before me the Applicant said that he was only able to lift his right arm to just below shoulder level.  He said he carries nothing in his right hand because of his shoulder.  He said he can carry nothing heavier than a cup or glass.  When he gets a litre container of juice out of the fridge he does so with his left hand. 

7. As to treatment he said that he had started the physiotherapy again last year.  He gets 6 sessions through Medicare, and has used them up.  The sessions are helpful, but only for a few days.  When asked if surgery had been contemplated he said that only a few doctors had raised surgery, and, as there was no guarantee of a successful outcome, he had decided against it.  In cross-examination however he denied that surgery had ever been an option.  He had had an injection a long time ago but it had not helped.  He said his medical advice was to learn to live with the pain.  He said he takes 2-4 Panadeine Forte a day, depending on the pain.  

8. The Respondent contended that this condition is not fully diagnosed, treated or stabilised due to the inconsistent reporting of the condition, and the fact that there has been minimal treatment for the condition.  Other than his resumption of the physiotherapy since the cancellation, the only reference to treatment is physiotherapy in 2005, in conjunction with treatment for his back condition.  In the JCA conducted on 13 March 2015 his right shoulder condition was considered to be ‘no longer an active condition’.  Further, the FCE examiner noted in relation to the Applicant’s shoulder condition that further investigations would be of benefit to the applicant. 

9. On Mr Aziz’s account of events, he was in need of treatment but had not yet commenced treatment at the time Centrelink cancelled his pension.  Further, on his own evidence his condition had deteriorated since Dr Qidwai made his first post-cancellation report.  It follows that his condition was not fully treated at the time of cancellation and therefore cannot be assigned an impairment rating.

   Depression

10. Mr Aziz suffers from depression.  In a number of reports between 2005 and 2008, Dr Qidwai consistently lists ‘depression’ as a condition which impacts on the Applicant, albeit minimally.  In his report dated 23 August 2015 in response to the DSP review, Dr Qidwai noted only that the Applicant had been under care of Dr Ishrat Ali, psychiatrist for approximately ten years and that he had been on antidepressants.  In fact, according to migration records, during the preceding ten years Mr Aziz had spent a total of almost three of those years in Pakistan.  On that basis I do not accept that the Applicant was continuously under the care of a psychiatrist as Dr Qidwai inferred.  The Applicant himself in his evidence, said that he had resumed seeing Dr Ali 3-4 months ago because, he said, he was ‘feeling funny’ and he was depressed ‘again’ ‘because of Centrelink’.  He has since seen him 2-3 times and the doctor told him he looked depressed and stressed.  Although the doctor wanted to see him again, he has been unable, he said, to get another appointment. 

11. The Applicant also provided a report from Dr Ishrat Ali, psychiatrist, dated 19 August 2015, which confirmed he had seen the Applicant ‘several years ago’, and that he had seen him again on 24 June 2015, namely after cancellation.  It is a reasonable inference that he had not seen him between-times.  Dr Ali provides no detail in relation to the impact of the condition, or any treatment history.  Mr Aziz stated that he stopped all treatment when he was granted the pension and only recently resumed treatment following Centrelink’s decision to cancel his pension.  Mr Aziz said he commenced seeing Dr Ali again approximately two months before the SSCSD hearing which was in August 2015, at which point he commenced taking anti-depressants. 

1. The Applicant reportedly told the JCA assessor on 13 March 2015 that he was feeling lonely, stressed and was worrying about his future and financial situation.  He reportedly said he had few friends who are supportive and with whom he socialises.  The Applicant said he has good friends and his brother and they ‘help out’.  Dr Qidwai recorded in his report of 23 August 2015 that the Applicant required support twice a week in order to assist with self-care, although this appeared to be at odds with his evidence before me. 

2. Dr Qidwai also reported that he is only able to travel to familiar places alone.  The Applicant said in his evidence that when he gets depressed he needs to ‘get away’ and that is why he spends so long overseas, visiting his family in Pakistan.  I do not accept that this is indicative of an inability to travel other than to familiar places.

3. In 2005, 2008 and 2015, the Applicant advised that he had recently stopped taking medication.  He also reportedly told the JCA assessor on 13 March 2015 that he had stopped taking antidepressants in 2014 and felt better as a result.  It is unclear when, if at all, the Applicant had been receiving medication or other treatment for this condition. 

4. In my view Dr Ali’s recently-resumed treatment of the Applicant does support a conclusion that this condition was fully diagnosed, treated and stabilised as at the date of cancellation.  Accordingly, no impairment rating can be assigned.

   CONCLUSION

5. For these reasons, I am not satisfied that Mr Aziz’s conditions attract a rating of 20 or more impairment points on the Impairment Tables when his DSP was cancelled.  It is therefore unnecessary to consider if he has a continuing inability to work.  I therefore affirm the decision under review.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated 10 August 2016

Date(s) of hearing	28 June 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services