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

Baradari and Secretary, Department of Social Services (Social services second review) [2020] AATA 3437 (4 September 2020)
Division: GENERAL DIVISION
File Number: 2019/2111
Re: Alireza Atabaki Baradari
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:D Cremean, Senior Member
Date:4 September 2020
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Senior Member
Catchwords
SOCIAL SECURITY — Disability Support Pension — Medical conditions including chronic groin pain after hernia surgery — asthma — qualification period — whether conditions fully diagnosed, treated and stabilised — further treatments recommended — decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
D Cremean, Senior Member
4 September 2020

The Applicant, Mr Alireza Atabaki Baradari, seeks review of a decision of the Social Services & Child Support Division of this Tribunal (“Tier 1”) made on 1 April 2019 affirming a decision dated 13 July 2018 to reject his claim for a Disability support Pension (“DSP”) made on 2 July 2018. That decision had already been affirmed by an Authorised Review Officer (“ARO”) on 22 November 2018.
A hearing by telephone took place in this matter on 27 April 2020 at which the Applicant was self-represented and the Respondent was represented by Ms Massey, a lawyer with Sparke Helmore.
At the hearing, affirmed evidence was given by the Applicant assisted by an interpreter and affirmed evidence was also given by Dr Shahla Ferdousian, general practitioner.
No witnesses were called by the Respondent.
Both the Applicant and Dr Ferdousian were cross-examined by Ms Massey.
At the conclusion of the hearing I reserved my decision.
These now are the Reasons for the decision I have made.
LEGISLATION
Qualification for DSP is governed by the Social Security Act 1991(Cth)(“Act”)
Section 94(1) of the Act in its material parts is as follows:
(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 Impairment Tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Tables”). A points impairment rating under the Tables is determined by assigning points according to the appropriate table for the condition concerned.
Under s 5(2)(b) of the Tables, the points rating is function based rather than diagnosis based. Section 6(1) provides that, in 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.”
Before a points impairment rating can be assigned under the Tables, certain qualifying criteria must be met. Under s 6(3)(a) of the Tables, a condition must be permanent. Under s 6(4) of the Tables a condition is permanent if:
(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 two years.
Section 6(5) of the Tables provides:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Section 6(6) of the Tables provides:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
For the purposes of s 6(7), reasonable treatment is treatment that:
(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.
Under s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), the Applicant’s claim must be assessed based on his medical conditions as at date of his claim to a date 13 weeks thereafter. In this matter, that is 2 July 2018 to 1 October 2018 (“qualification period”).
ISSUES AND CONTENTIONS
It is not in issue that the Applicant satisfies the requirements of s 94(1)(a) of the Act. Tier 1 found in his favour on this issue. It is accepted that he has chronic right groin pain and he claims he has certain further conditions (“other conditions”) including asthma, impaired glucose tolerance, enlarged prostate and gastroesophageal reflux.
It is in issue, however, whether the Applicant satisfies s 94(1)(b) and (c) of the Act.
As regards his chronic right groin pain, Tier 1 found that the Applicant suffers only a mild functional impairment and assigned him 5 points under Table 3 of the Tables. In doing so, Tier 1 found that his condition was fully diagnosed, fully treated and fully stabilised.
As regards the other conditions the Applicant claims Tier 1 was unable to undertake any assessment under the Tables for lack of medical evidence.
On this occasion the Respondent concedes that the Applicant’s chronic groin pain was fully diagnosed during the qualification period but contends that it was not fully treated or fully stabilised.
The Respondent also contends that there is insufficient evidence to find the Applicant’s other conditions were fully diagnosed, fully treated or fully stabilised during the qualification period.
Hence the Respondent argues that the Applicant does not satisfy s 94(1)(b) of the Act but argues that, if this should not be so, he does not satisfy s 94(1)(c) of the Act and that the decision under review denying him DSP should be affirmed.
The Applicant, in his application to this Tribunal dated 17 September 2019, claims that Tier 1’s decision is “wrong”, Tier 1 “did not use all my information about the decision” and that therefore he needs a “second review to check all my information again”.
Accordingly, the Applicant contends that upon a review of all the information the decision of Tier 1 should be set aside
In my review of the evidence, I am not bound by the findings made by Tier 1, but I am bound to reach my decision, as the correct or preferable one, on the balance of probabilities.
EVIDENCE
Mr Baradari
The Applicant began his evidence by focusing on his asthma and stated that he cannot work. He described how serious his asthmatic condition is; he spoke of, among other things, not being able to walk far and sometimes having to go to hospital for an injection.
He also spoke of the severe pain in his chest which his asthma causes him and said his doctor has advised him to stay indoors.
Another issue he spoke of was the “intense pain” he has in the lower part of his right leg due to the operation he had had. He stated that this operation “was meant to fix my hernia problem, but apparently some of my nerves have been, like, involved or damaged.” For this he said he takes painkillers prescribed by the specialist, medication called Neurontin.
The Applicant said that with this condition (or perhaps partly the asthma as well) “I’m not able to walk more than five minutes, and I’m not able to bend down, I’m not able to drive and I need to basically take my medication all the time”. Otherwise, he said, “I won’t be able to function at all”.
He spoke of how he had first noticed pain on both sides of his groin and, despite medication, it did not get better and then hernias were diagnosed on both left and right sides, bilateral hernia, of his lower abdomen. He was not working at the time and had never “really” held a job in Australia.
The Applicant said he is a married man aged 58 years with two daughters aged 21 and 27 living in Australia with him and his wife, having been born in Iran.
In Iran he had completed military service and had been working in a sanitary and beauty products company.
He also said that he feels depressed “most of the time…I’m staying at home all the time and I’m not doing anything, and I think my brain I not functioning properly”.
In cross-examination the Applicant agreed he had attended a Dr Niazi about his groin pain and he had been recommended further surgery but he then spoke with Dr Zargar (who performed the initial surgery) who said he thought such a procedure would be “pointless”.
He agreed Dr Zargar had recommended that he see a pain specialist, but he decided not to do this in light of Dr Zargar’s comment that he (the Applicant) would have to live with this pain for the rest of his life. He said he thought about it but decided not to go ahead.
During the qualification period he said he had difficulties bending down and lifting weights. Also, the pain condition was causing him difficulties with sleeping because of the way he was used to going to sleep. He considered also that he was suffering poor concentration and forgetfulness (such as putting oil in the refrigerator).
The Applicant agreed though that he was able to walk, very slowly, with frequent breaks. He said he had difficulties with remaining seated for more than 10 minutes.
He agreed he had seen a specialist (Dr Aminazad) regarding his asthma who had prescribed yet another inhaler (in addition to his two prescribed inhalers) but that this was after the qualification period.
Dr Ferdousian
There is a report on file from Dr Ferdousian dated 26 November 2017 which was in the T Documents and admitted into evidence.
Dr Ferdousian said she had been the Applicant’s general practitioner since 2014.
She said the Applicant had had a right sided inguinal hernia repair in 2017 and since then he has been experiencing groin pain that seems to be due to nerve entrapment. She said it is “unlikely … any sort of surgical intervention … might help him”. I noted the Applicant said he had suffered “bilateral hernia”
She said the Applicant is generally an active man, but the hernia pain has been “affecting his capacity to walk, to do exercise…”
Dr Ferdousian said she is not an occupational physician and was not familiar with the Tables.
As to his asthmatic condition she said the Applicant was being treated by a respiratory physician and he was using inhalers and “most of the time, he can’t get out of the house”. She said she did not believe his asthmatic condition was likely to improve.
The Applicant did not seek to ask Dr Ferdousian any questions because he said “she’s the right person to provide information about my condition”.
In cross-examination she confirmed the contents of her 2017 report and also of other reports dated 20 July 2018 and 7 July 2019.
In her reports she agreed she made similar comments about the Applicant having difficulties bending and performing straining activities.
She agreed she had recommended the Applicant see a pain management specialist, but he had not done so.
ANALYSIS
Section 94(1)(a)
I have already noted that it is conceded that Mr Baradari satisfies s 94(1)(a) of the Act.
That concession is rightly made. In particular I am satisfied the Applicant suffers from chronic groin pain and asthma among the other conditions.
Section 94(1)(b)
Discussion of s 94(1)(b) of the Act has two aspects, permanency and assignment of points.
Permanency
To satisfy s 94(1)(b) of the Act it must be clear that any conditions the Applicant suffers from are permanent. That means any conditions relied on to support a claim of entitlement to DSP must be fully diagnosed, treated and stabilised and more likely than not, in light of available evidence, to persist for more than two years.
I am satisfied on the evidence, especially that of Dr Ferdousian, that Mr Baradari’s chronic groin pain is fully diagnosed.
I am satisfied also on the evidence, again, especially that of Dr Ferdousian, that Mr Baradari’s asthma is fully diagnosed.
I am unable to make any finding, that Mr Baradari’s asthma has been fully treated. It may well have been, and no further treatment options are open, but due to a lack of evidence, I simply do not know. I note that Dr Ferdousian, in a letter dated 7 September 2019, mentions that Mr Baradari needs “constant use of asthma inhalers to control his symptoms and to improve his breathing”. That letter occurs outside the qualification period but, on a fair reading, it relates also to matters within that period. I note however that the Applicant himself referred to hospital visits for injections and I cannot be satisfied, for instance, that a course of injections might have helped him more or be better for him. This means that there is still reasonable treatment open to him which may significantly improve his condition. Therefore, I also cannot be satisfied that his asthma is a condition which is fully stabilised.
I am also unable to make a finding that Mr Baradari’s chronic groin pain has been fully treated. He was recommended to have further surgery by Dr Niazi (nerve blocking I assume) but after discussion decided not to go ahead with that. This was a decision he reached in light of a comment by Dr Zargar that it would be “pointless”.
I can, in a sense, understand Mr Baradari’s reluctance to have further surgery in light of that comment, and all surgery entails some risk, but what I cannot understand or accept is that he should not follow Dr Zargar’s recommendation to see a pain specialist. This also was the recommendation of Dr Ferdousian but Mr Baradari has not pursued it.
As regards his chronic groin pain, brought on, I accept, after hernia surgery leading to nerve entrapment, the condition is fully stabilised but only in the limited sense that if nothing is done to try to alleviate it then the condition will remain the same. As Mr Baradari was told, in such circumstances he will suffer the condition for the rest of his life.
Superficially, that indicates I should find that Mr Baradari’s condition is fully stabilised under s 6(6)(a) of the Tables. However, he has not undertaken reasonable treatment because he has not seen a pain specialist as referred to in paragraph [58] above. Therefore, he does not meet the requirements of this section.
He also falls outside of the exceptions in s 6(6)(b) of the Tables. I can see no medical or other compelling reason for him not to follow the course recommended by Dr Niazi. Nor do I have any evidence before me that the course recommended by him would not result in significant functional improvement.
I appreciate that Dr Ferdousian, in her letter dated 7 September 2019, says that Mr Baradari’s groin condition “has been fully diagnosed, treated and stabilised” and is “unlikely to significantly improve for at least the next 2 years”, something, I note, she did not say of his asthma condition, but this is plainly wrong. His condition cannot have been “fully treated” or “fully stabilised” if there is still a treatment option open, having an operation or seeing a pain specialist, which is reasonable.
I have no evidence to enable me to make any findings about any of his other conditions, excluding his asthma.
Assignment of points
I find that I am unable to make any finding that Mr Baradari’s chronic groin pain is fully treated or fully stabilised nor that his asthma is fully treated. or fully stabilised. For this reason, I am unable to assign him any points under the Tables.
As regards his groin condition this differs from Tier 1 which regarded that condition as fully diagnosed, treated and stabilised. I am unable to see the basis for Tier 1 having done so and there appears to be none. I therefore reject the view that Mr Baradari is entitled to 5 points or any points under Table 3.
I have not considered the issue of self-reporting or corroboration. But it would be likely in my view that there would be sufficient corroboration in this case of Mr Baradari’s groin condition and of his asthma.
Section 94(1)(c)
Having formed the view that the Applicant does not meet the requirement of s 94(1)(b), in that both his chronic groin pain and his asthma are not fully treated or fully stabilised , I have no need to consider whether he may satisfy s 94(1)(c) of the Act.
CONCLUSION
For the reasons I have given, the Applicant must fail and the decision under review must be affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the written reasons for the decision herein of D Cremean Senior Member

.................................[sgd].......................................
Associate
Dated: 4 September 2020

Date of hearing:
Applicant:

27 April 2020

By telephone

Advocate for the Respondent: Ms Anneliese Massey

Solicitors for the Respondent: Sparke Helmore

[2020] AATA 3437

4 September 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction