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

[2015] AATA 879

Barzanji and Secretary, Department of Social Services (Social services second review) [2015] AATA 879 (13 November 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5277
Re	Nawzad Barzanji
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	13 November 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – spinal condition – mental health condition – whether conditions fully diagnosed, treated and stabilised - impairment ratings – continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

13 November 2015

1. On 14 November 2013 Mr Barzanji lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

2. Mr Barzannji’s claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that he did not have an impairment rating of 20 points or more under the Impairment Tables.

3. In a decision dated 17 September 2014 the Social Security Appeals Tribunal (“SSAT”) found that Mr Barzanji had a rating of 5 points under the Descriptors in Impairment Table 5 (although I note what I assume to be a typographical error in reference to Table 7) and 5 points under Impairment Table 4 so that he did not satisfy s 94(1)(b) of the Act.

4. In these proceedings Mr Barzanji seeks review of the SSAT decision.

5. At the hearing Mr Barzanji was self-represented and was assisted by an Arabic language interpreter but became very distressed and was unable to proceed with oral evidence.

6. Mr Barzanji was under the misapprehension that the hearing was going to consider his most recent application which was lodged in March 2015 but was also rejected by Centrelink.

7. The Tribunal concluded the hearing and it was agreed by the parties that the matter would be decided on the papers alone with no further evidence or submissions.

8. At the conclusion of the hearing the representative of the Respondent agreed to arrange for a Centrelink social worker to assist Mr Barzanji with the difficulties he was experiencing with his more recent application.

   ISSUES

9. In order to qualify for DSP, Mr Barzanji must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 14 November 2013 and 14 February 2014 (the claim period).

10. Section 94(1) of the Act provides that 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)the person has a continuing inability to work as defined by the Act.

11. The Respondent concedes and the Tribunal accepts that Mr Barzanji suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

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

13. 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

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

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

15. For present purposes the relevant medical conditions to be considered by the Tribunal are a mental health condition and conditions involving spinal function.

16. Accordingly, in these proceedings the Tribunal must consider whether during the claim period Mr Barzanji’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

    The Mental Health Condition

17. Mr Barzanji’s application is supported by Dr Saeed, general practitioner, in a Centrelink Medical Report dated 12 November 2013 which is partly illegible.

18. Dr Saeed lists “anxiety sleeping disturbance…” as a condition which has significant functional impact with a date of onset in 2013. The details about how this condition impacts on Mr Barzanji’s ability to function are brief and illegible.

19. In a relatively brief letter dated 21 February 2014, after the end of the claim period, Dr Al Shamali, psychologist, noted that Mr Barzanji had been a client of United Medical Centre since July 2013 and had been referred by his GP for assessment and management.

20. Dr Al Shamali stated that Mr Barzanji suffers from “severe Depression and Anxiety”, is attending regular psychological sessions and requires long term therapy but does not indicate when the diagnosis was made and when the therapy actually started.

21. There is no evidence that Dr Al Shamali is a registered clinical psychologist and, in fact, he is not currently registered with the Australian Health Practitioner Regulation Agency as a psychologist. Whether he was registered to practice in February 2014 is unclear.

22. Relevantly, the Introduction to Impairment Table 5 of the Determination, which is to be used where a “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 a psychiatrist)”.

23. There is no evidence before the Tribunal that prior to the date of claim or during the claim period Mr Barzanji had been diagnosed by a psychiatrist or a clinical psychologist which means that the requirements of Impairment Table 5 have not been satisfied so that a rating under this Table cannot be applied.

    The Spine Conditions

24. An X-ray of the lumbar spine performed on 1 October 2010 is reported as showing “inferior endplate depression at L1 suggesting fracture”.

25. The report of a bone scan performed on 15 October 2010 noted that “there is no evidence of recent crush fracture. The minor increased tracer activity associated with the anterior wedging of L1 may be secondary to lumbar Sheuermann’s disease or an old crush fracture.”

26. The report of an MRI of the cervical spine performed on 28 February 2011 notes “no cervical cord abnormality. No central canal stenosis. There is mild to moderate spondylitic narrowing of the left C5/C6 and left C6/C7 intervertebral foramina”.

27. On 14 August 2013 Mr Barzanji was referred to Dr N Alkhateeb, consultant rehabilitation, musculoskeletal physician, for an opinion and management of “back pain sincelong time getting worse numbness of both legs mainly left on and off ”[sic].

28. In a copy of progress notes dated 7 October 2013 Dr Alkhateeb stated that he saw Mr Barzanji  on 26 August 2013 and described his problems as follows:

    He’s been complaining of lower back pain for the last 5-6 years, and also left leg numbness “dead” for the last 3 years. He reported feeling his leg sleepy without any pain whenever he walks for more than 25 minutes. The ‘leg sleeping’ sensation is not constant but comes in episodes of about 2-3 times a week with no obvious reason. Each episode could last 2-3 hours. The sleepy leg usually relieved when he sits or lies down and when he does leg massaging.  The back pain has been constant though fluctuates as well.

29. On physical examination Dr Alkhateeb noted the following:

    Examination showed fairly good range of movements in all directions of the spine, although there was some pain and pain behaviour on spine rotation with tenderness dorsolumbar area. Straight leg raising was negative lying and sitting. Neurologically, he was intact apart from diffuse impaired touch sensation at the left leg. In particular the strength and the ankle jerks were normal.

30. Dr Alkhateeb concluded as follows:

    The history and clinical examination doesn’t seem to pinpoint to any particular diagnosis. The association of pain behaviour could be more psychological rather than secondary to pain. Because he has a specific pain and tenderness at the dorsolumbar spine I would like to send him for CT scan. I also decided to send him or nerve conduction study of the left leg just to reassure the patient that there is no serious problem. (emphasis added)

31. I note that Dr Alkhateeb makes no reference to any neck symptoms and does not confirm clinical signs of cervical radiculopathy.

32. In his Medical report of 12 November 2013 Dr Saeed lists “lumbar back pain neck pain radiculopathy overnight” with a date of onset in 2010 as a medical condition with most functional impact. He describes impact on ability to function as “unable to lift stand sit or walk for long time …”. Again, the writing is partly illegible.

33. The report of a CT scan of the thoracolumbar spine performed on 27 August 2013 noted “unremarkable evaluation of the thoracolumbar spine. No significant spondylytic change. No canal stenosis, foraminal compromise or nerve root compression.”

34. The report of an MRI of the cervical spine performed on 29September 2013 noted “significant spondylitic narrowing of the left C5/C6 intervertebral foramen with potential compromise to the left C6 nerve root. This has demonstrated mild interval progression in 2.5 years”.

    CONCLUSION

35. In my view the progress notes of Dr Alkhateeb demonstrate that at 26 August 2013, less than three months prior to the date of claim, there was no satisfactory explanation for Mr Barzanji’s symptoms and no clear diagnosis.

36. The CT scan of the thoracolumbar spine performed on the 27 August did not reveal any significant abnormality.

37. The MRI of the cervical spine performed on 29 September revealed evidence of spondylosis.  However, in my view, there is insufficient evidence before the Tribunal to allow for any conclusion as to the clinical relevance of these findings particularly with respect to treatment or functional impact.

38. It follows that I cannot be satisfied that during the claim period Mr Barzanji’s spine conditions were fully diagnosed, fully  treated and fully stabilised so that a rating under Impairment Table 4 cannot be applied.

    DECISION

39. For reasons set out above I am satisfied that during the claim period Mr Barzanji did not have an impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 13 November 2015

Date(s) of hearing	4 November 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services