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

[2018] AATA 350

Bajouri and Secretary, Department of Social Services (Social services second review) [2018] AATA 350 (19 January 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6413

Re:Khaled BAJOURI  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:19 January 2018

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – lower limb condition - upper limb condition – type one diabetes mellitus – mental health condition – the applicant has a physical and psychological impairment – the applicant’s impairments do not total twenty points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1994 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Dr I Alexander, Member

19 January 2018

1. Mr Bajouri had been receiving Disability Support Pension (DSP) since May 2011. He had qualified for DSP under the Social Security Act 1991 (the Act) when an earlier version of the Impairment Tables was in force.

2. On 29 June 2015 Mr Bajouri submitted section A of a Program of Support and Medical Review and Medical Review Disability Support Pension form.

3. On 27 June 2015 Dr Devsam, General Practitioner, completed section B of the above form and listed various conditions that were having an impact on Mr Bajouri’s ability to function.

4. Mr Bajouri’s functional impairment was assessed under the current Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination), which was introduced on 6 December 2011, and found to have an impairment rating of less than 20 points under the current Impairment Tables.

5. On the 25 February 2016 Centrelink cancelled Mr Bajouri’s DSP.

6. The decision to cancel Mr Bajouri’s DSP was affirmed by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) in a decision dated 5 October 2016. AAT1 decided that Mr Bajouri had a total rating of 10 points under the Impairment Tables with 5 points under Impairment Table 2 and 5 points under Table 3.

7. In this proceeding Mr Bajouri seeks review of the AAT1 decision.

8. At the hearing on 14 December 2017, Mr Bajouri was self-represented and in attendance were his wife and young son.

   ISSUES

9. DSP is defined as a social security payment in s 23 of the Act

10. Section 80 of the Social Security (Administration) Act1999, provides

    (1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

    (a)who is not, or was not, qualified for the payment; or

    (b)to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

11. Section 117 of the Administration Act provides that an adverse determination “means a determination under section 79, 80, 81, 81A or 82.”

12. Section 118 (1) of the Administration Act provides that

    (1) The day on which an adverse determination takes effect in relation to a social security payment is worked out:

    (b)in the case of carer payment—in accordance with this section and section 120; and

    (c)in the case of any other social security payment—in accordance with this section.

13. Section 118 (13) provides for DSP as follows:

    (13) In any other case, an adverse determination takes effect:

    (a)on the day on which it is made; or

    (b)if a later day is specified in the determination, on that day.

14. As the decision to cancel Mr Bajouri’s DSP was an adverse determination within the meaning of s 117 of the Administration Act, Mr Bajouri  had to satisfy the requirements of s 94 of the Act as at the date of cancellation of his DSP, that is, 25 February 2016. 

15. Section 94(1) of the Act provides that a person is qualified for DSP if:

    ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

    ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

    ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

16. The Respondent concedes, and the Tribunal accepts, that Mr Bajouri suffered medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act.

17. For present purposes, the relevant medical conditions include a left lower limb condition, left upper limb condition, type 1 diabetes mellitus (T1DM) and a mental health condition.

18. The Impairment Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

19. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

20. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

21. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where the person has a permanent condition resulting in functional impairment due to a mental health condition”, 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)”.

22. The Respondent contends that at the date of cancellation, Mr Bajouri’s upper and lower limb conditions were permanent for the purposes of the Impairment Determination and that Mr Bajouri had a total rating of 10 points under the Impairment Tables with 5 points under Table 2 and 5 points under Table 3.

23. The Respondent also contends that at the date of cancellation the T1DM and the mental health condition were not fully treated and not fully stabilised so that a rating under the Impairment Tables cannot be assigned.

24. Therefore, the definitive issue in this matter is whether, at the date of cancellation, Mr Bajouri’s impairment was 20 points or more under the impairment tables and, if so, whether he had a continuing inability to work.

    Left lower limb condition

25. In 2011 Mr Bajouri suffered a wound to the left groin and thigh. He suffered a comminuted fracture of his left femur which required internal fixation. He also suffered arterial vascular injury which required angioplasty and a large haematoma treated with a fasciotomy.

26. In a hospital discharge, it was noted that a “Left foot drop splint” was fitted for ongoing left leg weakness.

27. In a Centrelink Medical report dated 7 October 2011, Dr Devsam stated that Mr Bajouri had left foot drop and difficulty with standing because of severe pain.

28. In a letter dated 12 July 2016 Dr Chin, orthopaedic surgeon stated, inter alia, as follows:

    Mr Bajouri…is well known to me due to a…injury to his left thigh in 2011.  He was seen at…Hospital and he had a vascular injury and had a prophylactic fasciotomy to his thigh. He has dense foot drop at that time which had only partially recovered. His femur fracture was treated with an intramedullary nailing and complicated by osteomyelitis. The nail was then removed after his femur had united. He then underwent intravenous antibiotics via a PICC line. He has now been discharged from infectious diseases.

    His current functional deficit would include weakness in the entire left leg with altered sensation and inability to do any heavy manual work including lifting and climbing. This will be permanent and will not change in the future…Although Khaled does not walk with any aids, with his muscle wasting and underlying nerve, bone and vascular injury, desk type work will be the best course of action for him. He has ongoing weakness with single leg stance. The condition of Khaled’s leg is unlikely to change into the future

29. In a Job Capacity Assessment report, submitted on 12 November 2015, the assessor noted, inter alia, the following:

    The client reported constant pain in his left leg. He reported ability to walk up to 20 minutes at a time. He was observed using walking stick. The client reported he walked to the appointment (approximately 25 minutes). The client reported he was able to travel to Lebanon after completion of treatment for his injury. He reported he spent approximately one year overseas.

30. In a report dated 27 September 2016 Dr Bangash, GP, stated that Mr Bajouri suffered “pain-weakness left leg & numbness left lower leg” and had difficulty with walking but did not need to use an aid to walk around. Dr Bangash indicated that Mr Bajouri does use a walking stick when walking around a shopping mall or supermarket without rest, was able to walk from a carpark into a shopping centre or supermarket without assistance, was not able to climb stairs, was able to drive a car, could only stand for a few minutes, was not able to kneel, could sit and was able to rise from a sitting position without assistance. 

31. In letter dated 12 July 2017, Dr Devsam stated that Mr Bajouri has a “severe functional impairment of his lower limbs” and now needs to use a walking stick at all times.  With reference to the use of stairs Dr Devsam states that Mr Bajouri “has difficulty walking up and down stairs”.

    Consideration

32. The Tribunal agrees that, at the date of cancellation, Mr Bajouri’s left lower limb condition was permanent for the purposes of the Impairment Determination.

33. The Respondent submits that Mr Bajouri left lower limb condition caused a mild impairment so that a rating of 5 points under Table 3 should be assigned.

34. On consideration of the available evidence and the descriptors Impairment Table 3, in my view, it is clear that there is a least a mild functional impact on Mr Bajouri’s activities using lower limbs.

35. What is not so clear is whether there was a moderate functional impact on activities using lower limbs.

36. The description of the “functional deficit” with respect to the left leg provided by Dr Chin suggests, in my view, a significant impact on lower limb function.

37. Although there is no doubt that Mr Bajouri would have difficulty with stairs the relevant question, with respect to the descriptors for moderate impairment in Table 3, is whether Mr Bajouri is “unable to use stairs or steps without assistance”, that is, without the assistance of another person.

38. Unfortunately, there is insufficient evidence before the Tribunal to resolve this question. Therefore, I find that, at the date of cancellation, Mr Bajouri suffered a mild functional impact on activities using lower limbs, so that a rating of 5 points under Impairment Table 3 can be assigned.

    Upper Limb Function

39. At the time of the shooting in 2011 Mr Bajouri also suffered an injury to his left hand.  He claims that he has ongoing functional impairment as a result of the injury with persistent weakness and numbness. He told the Tribunal that he was left handed and was unable to write with his left hand.

40. In the discharge referral dated 30 June 2011 it is noted as follows:

    Plastics management

    Left carpal tunnel release on 2/6. Wounds healed well with good range of movement. Advised not for load through left hand and to follow-up in Dr Chan’s clinic.[emphasis added]

41. In Dr Devsan’s report of 27 June 2015 “L wrist carpal tunnel” is listed as a medical condition that is generally well managed and that causes minimal or limited impact on ability to function but provides no other details.

42. In a brief note dated 5 August 2015, Dr Bagash lists several medical conditions suffered by Mr Bajouri with no mention of any left hand or wrist condition.

43. In a Discharge Referral dated 14 March 2016 the report of an X-ray of the left hand performed on 10 March 2016 is noted as showing “no radiopaque foreign body seen. No fracture or dislocations seen.Impression: a negative examination”

44. In his report of 27 September 2016, Dr Bangash stated that Mr Bajouri suffered “severe weakness” of the left hand, complained of “hyperaesthesia (very sensitive to touch)” and “was not able to use his left hand at all” but provides no other details.

45. In the decision of AAT1 dated 17 October 2016 the Member noted, inter alia, the following:

    Mr Bajouri said that he is right hand dominant. He can open a bottle of water using both hands but has to alter the way in which he does it. For example he will put the bottle of water under the crook of his left arm or elbow for support and open it with his right hand. Mr Bajouri explained that he has difficulty gripping forcibly with his left hand …can toilet and dress himself…can use coins and his mobile phone and a remote control...can use the toggle on the play station most days for many hours…can open a tap and when he was driving was able to grip the steering wheel…can carry his son with care…

46. In a letter dated 10 July 2016, Dr Devsam listed a medical condition as “wound L wrist and hand causing L hand weakness and cannot write since is L handed” but provided no other details.

47. In my view, the evidence before the Tribunal, with regard to Mr Bajouri’s left hand condition, is incomplete, inconsistent and does not provide a satisfactory explanation for his symptoms or the claimed severity of his impairment.

48. Therefore, I am not satisfied that at the date of cancellation his left hand condition was fully diagnosed, fully treated and fully stabilised. Therefore, a rating under Impairment Table 2 cannot be assigned.

    Type 1 Diabetes Mellitus (T1DM)

49. Mr Bajouri was diagnosed with T1DM in early childhood and has been on treatment with insulin for many years.

50. The Respondent accepts, and the Tribunal agrees that, at the date of cancellation, the condition of T1DM was fully diagnosed.

51. However, the Respondent contends that, at the date of cancellation, Mr Bajouri’s T1DM was not fully treated and fully stabilised.

52. At the hearing Mr Bajouri submitted that his T1DM had been reasonably well controlled for many years but recently had become unstable because of his infected teeth. He explained that the impact of his condition is such that he requires significant assistance with personal care needs, particularly with his regular insulin injections and diet.

53. In the Medical Report of 27 June 2015, Dr Devsam noted that Mr Bajouri was very compliant with recommended treatment and “is very aware of insulin use” but suffers “frequent episodes of hypoglycaemic attacks” and “erratic control”. Dr Devsam added that long term prognosis is poor because of “brittle diabetes, exercise is difficult”

54. On 10 March 2016, two weeks after the date of cancellation, Mr Bajouri was admitted to Hospital following a hypoglycaemic seizure.

55. The Discharge Summary dated 14 March 2016 noted, inter alia, the following:

    …pt is recently well, has had seizure 6 weeks ago but did not present to Ed…he does not check his BSL as the ‘machine in broken’ for the last few weeks…no recent illness/infection…no fevers…poorly controlled T1DM ….no driving until 6 weeks clear of hypoglycaemia or no driving until 6 months clear of hypoglycaemic epilepsy or seizures ….poor dentition - extensive carious change and apical sepsis, requiring extraction. Noted patient’s T1DM poorly controlled secondary to poor dentition, which limited patient’s oral intake…..Follow up in Endocrine Post-Discharge Clinic…Follow-up in Dental Clinic

56. The available medical evidence, in my view clearly demonstrates that, at the date of cancellation, Mr Bajouri’s condition of T1DM was not fully treated and stabilised and, therefore, a rating under the Impairment Tables could not have been assigned.

    Mental Health Condition 

57. The Respondent accepts that, at the date of cancellation, Mr Bajouri suffered a mental health condition but contends that the condition was not fully treated and fully stabilised at that time.

58. In a comprehensive report dated 10 May 2012 Ms Malone, clinical psychologist, concluded that Mr Bajaouri’s symptoms and clinical presentation were consistent with the following DSM-IV diagnoses:

    (i)Post Traumatic Stress Disorder

    (ii)Generalised Anxiety Disorder

    (iii)Major Depressive Disorder, Single Episode, Moderate Panic Attacks

59. Ms Malone stated that Mr Bajouri presented “with a moderate to severe disability and moderate to severe impairment of global functioning”. Ms Malone added that the “prognosis of improvement” in Mr Bajouri’s psychological difficulties, whilst poor, could only be determined by the passage of time.

60. In his report of 27 June 2015, Dr Devsam stated that Mr Bajouri was “mentally poor due to brain damage” but provided no relevant details to support this statement.

61. In a brief letter dated 5 August 2015, Dr Bangash listed depression as medical condition suffered by Mr Bajouri and noted Avanza 45 Mg as one of his medications.

62. In a letter dated 9 June 2016 Dr Chan, Consultant Psychiatrist, stated, inter alia, the following:     

    Thank you for referring this 29-year-old man…..He has Type 1 diabetes. He reported poor BSL control due to irregular oral intake and running out of money to buy his insulin…Khaled presented with a depressive episode and post traumatic stress symptoms in the context of significant trauma history…I commenced him on sertraline 50mg, and will gradually reduce his mirtazapine from 45mg to 15 mg…..He has opioid dependence and once his anxiety symptoms are better I will discuss with him on opioid maintenance therapy. I will see him again in four weeks.

63. In a letter 22 June 2016 Ms McAneney, Psychologist, states, inter alia, the following:

    I saw Mr Bajouri for 7 counselling sessions, weekly between January 2016 and March 2016. Mr Bajouri ceased counselling due to deterioration in his health and it was decided that managing his health needed to become the priority focus……Mr Bajouri was assessed using the Depression Anxiety Stress Scale…..Outcome scores suggested the client was highly symptomatic for Depression and Anxiety...  

    Consideration

64. It is clear that, in 2012, Mr Bajouri was diagnosed with significant psychological conditions causing moderate to severe impairment.

65. The difficulty for Mr Bajouri, in this this matter, is that there is insufficient available medical evidence to allow for a meaningful assessment as to the progress of his psychological conditions in the subsequent 5 years.

66. Apart from antidepressant medication, Avanza, presumably prescribed by his GP, there is no evidence of any other treatment until he was seen by Ms McAvaney in January 2016, a few weeks, prior to the date of cancellation.

67. It is clear from the letters provided by Dr Chan and Ms McAvaney that Mr Bajouri continues to suffer from Post Traumatic Disorder and probably Depression and Anxiety.

68. However, although the available evidence does suggest that, at the date of cancellation, Mr Bajouri’s mental health conditions were causing significant functional impairment, I am not satisfied that the evidence supports a conclusion that the conditions were fully treated and fully stabilised at that time. Therefore, the conditions could not be considered as permanent for the purposes of the Impairment Determination. This means that, at the date of cancellation, Mr Bajouri did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

69. I note, however, that given the severity of Mr Bajouri’s impairment in 2012, the lack of ongoing supportive treatment and the persistence of symptoms, once his conditions have been stabilised, with treatment managed by Dr Chan, it is likely that Mr Bajouri will continue to suffer impairment because of his psychological conditions. In the context of a new application, Mr Bajouri may qualify for DSP.

    DECISION

1. For reasons set out above, the Tribunal is satisfied that, at the date of cancellation on 25 February 2016, Mr Bajouri’s impairment was not 20 points or more and did not satisfy s 94(1)(b) of the Act. Therefore, at that time he did not qualify DSP so that the decision to cancel his DSP was correct.

2. The decision under review is affirmed.

I certify that the preceding  71 paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated: 19 January 2018

Date(s) of hearing:	14 December 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services