Basim Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 379
[2013] AATA 379
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0696
Re
Basim Toma
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member
Date 5 June 2013 Place Melbourne The Tribunal affirms the decision under review. Mr Toma was not qualified for disability support pension as at 31 January 2012.
................[sgd]........................................................
Dr Kerry Breen, Member
SOCIAL SECURITY – disability support pension – depression – type 2 diabetes mellitus – old shrapnel injury – bilateral inguinal hernias and right varicocele– right shoulder tendonitis and bursitis – hypercholesterolaemia – conditions not fully treated and stabilised and permanent – decision affirmed
Legislation
Social Security Act 1991 s 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Kerry Breen, Member
5 June 2013
Mr Basim Toma applied to Centrelink for a disability support pension (DSP) on 31 January 2012. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent). Mr Toma’s application was supported by a Medical Report DSP (MRD) completed by his general practitioner Dr Basim Francis dated 29 January 2012. The MRD gave the diagnoses of right pampiniform plexus with varicosity (an abnormal enlargement of the testicular veins or varicocele) for which Mr Toma was awaiting surgery; and depression/PTSD (post‑traumatic stress disorder).
Mr Toma had attended Centrelink for an employment services assessment report on 7 July 2011 (for a purpose unrelated to his DSP application). On 2 February 2012 a Centrelink officer rejected Mr Toma’s DSP claim. Mr Toma sought a review of the Centrelink officer’s decision (the original decision). On 24 February 2012, Mr Toma attended for a job capacity assessment (JCA). Centrelink received another MRD, completed by Dr Francis on 18 July 2012. On 21 September 2012, a Centrelink Authorised Review Officer (ARO) wrote to Mr Toma affirming the original decision to reject his DSP claim.
Mr Toma then applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT affirmed the ARO’s decision on 17 January 2013. On 1 February 2013 Mr Toma applied to this Tribunal for a review of the SSAT decision.
THE ISSUES
The issues to be determined are:
·Does Mr Toma have a physical, intellectual or psychiatric impairment?
·What impairment ratings do his conditions attract? and
·If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
The relevant assessment period is from 31 January 2012 and the subsequent 13 weeks.
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 94(1) provides that:
(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; …
In order that a person’s impairment be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years, as is provided in s 6 of the Impairment Tables which reads as follows:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) 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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) 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.
…
Fully stabilised
(6) 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..
CONTENTIONS
Mr Toma, who was unrepresented, contended that his several health problems make him too unwell to work and that he should be granted DSP.
The respondent accepted that Mr Toma suffers from a number of medical conditions but contended that these conditions do not comply with the Act as the conditions (as at January 2012) had not been fully treated and stabilised. Hence, the conditions could not be deemed to be permanent.
THE EVIDENCE
Mr Basim Toma
Mr Toma gave oral evidence to the Tribunal by telephone with the assistance of an interpreter in the Assyrian language. He described his health problems as including operations for umbilical and inguinal hernias. The operation for the latter condition was unsuccessful in relieving his pain. He also described a problem of inflammation in his right shoulder, arthritis in two fingers, pain in the left side of his chest and left shoulder resulting from an old shrapnel injury, diabetes, and depression.
Mr Toma explained that he had first had surgery for an inguinal hernia while living in Syria but that the surgery needed to be redone after he arrived in Australia in 2011. This operation took place in the Northern Hospital in Epping but Mr Toma was unable to provide the date. Mr Toma stated that this operation had not relieved his pain. He had raised this with the surgeon and was told that the operation had been successful and that there was nothing more that could be done. He has an appointment with the same surgeon in August 2013.
With regard to the right shoulder, Mr Toma stated that he had first noticed pain about a year ago. He was unaware of any injury and attributed the pain to lack of heating in his house. He stated that the pain makes it difficult to sleep and also aggravates his mental problems. He takes the medication ibuprofen prescribed by his general practitioner, Dr Francis. He has not seen a specialist for this problem and such referral has not been discussed by Dr Francis.
Mr Toma described having arthritis involving two fingers of his left hand. He stated that he has difficulty bending these fingers and that the problem makes it difficult to change gears when driving a car.
Mr Toma described serving in the army in Iraq for six and a half years. In 1987, while serving in the army, he suffered a shrapnel injury to his left shoulder and chest in a bomb blast and was admitted to hospital for 10 days. He stated that there is still shrapnel embedded near his heart and that he had been told that it would be dangerous to operate to remove the shrapnel. He was sent back to the war in Iraq after being discharged from hospital. Dr Francis has advised him to see a specialist about this problem but Mr Toma wishes to delay such a consultation until his mental state is better. He described this injury as causing pain in his left shoulder, especially on cold days, and difficulty lifting his left arm.
Mr Toma explained that his diabetes was first recognised after blood tests in 2011. His treatment consists of one tablet taken each morning before breakfast. He stated that his blood sugar levels vary according to his diet. He has not seen a dietitian or a diabetes medical specialist. Although Dr Francis’s MRD of 13 November 2012 identified evidence of the diabetes being complicated by peripheral neuropathy, Mr Toma denied experiencing any problems with his feet. [In the SSAT decision, it is reported that Mr Toma gave evidence that he was briefly admitted to hospital because of high blood sugar levels.]
Mr Toma stated that his feelings of depression had been present for around four to five years. He believed that his depression, as well as the PTSD (diagnosed by Dr Francis) was a consequence of his pain and his physical conditions. He stated that Dr Francis had advised him to see a specialist for these problems but that he had not accepted this advice. While Dr Francis had listed counselling as a treatment for his depression, Mr Toma denied being referred to a counsellor. [The Tribunal thus assumes that any counselling that Mr Toma receives is delivered by Dr Francis.]
Mr Toma stated that he has not worked since finishing his service in the Iraqi army. When he left the army he lived with his father and he stated that his father did not want him to work. Mr Toma now fills in his days reading books, watching television and visiting the local shopping centre.
Medical evidence
The medical and other written evidence available to the Tribunal included the following:
·a Centrelink Employment Services Assessment Report dated 25 July 2011;
·a letter dated 6 October 2011 from the Northern Hospital addressed to Mr Toma;
·an MRD dated 29 January 2012 completed and signed by Dr Basim Francis;
·a report of a JCA undertaken on 24 February 2012;
·an MRD dated 18 July 2012 completed and signed by Dr Francis;
·a report of an ultrasound examination of the groin and scrotum dated 16 October 2012 performed by Northern Hospital Radiology;
·a letter from the Northern Hospital addressed to whom it may concern dated 7 November 2012;
·an MRD dated 13 November 2012 completed and signed by Dr Francis;
·a report of an ultrasound examination of the right shoulder performed on 14 November 2012 by Victorian Medical Imaging; and
·a Centrelink medical certificate dated 2 March 2013 signed by Dr P Walsh of the Northern Hospital.
Dr Francis’s MRD dated 29 January 2012 gave the diagnosis of condition 1 as right pampiniform plexus with varicosity. [The Tribunal notes that this is more commonly referred to as a varicocele.] Under the heading History, Dr Francis wrote right testicle pain for a long time worse recently. Under the heading Current symptoms, Dr Francis wrote R testicle /groin pain. Current treatment was listed as waiting for surgery. In response to question I The current impact of this condition on the patient’s ability to function is expected to persist for, Dr Francis ticked the box More than 24 months. In response to question J Within the next 2 years the effect of this condition on the patient’s ability to function is expected to, Dr Francis ticked the box uncertain and wrote stable now but uncertain in the future.
In the same MRD, Dr Francis gave the diagnosis of condition 2 as Depression/PTDS [sic]. Under the heading History, he wrote flat mood, tiredness, poor sleep for long time after he was injured in Iraq/Iran war. Under the heading Current symptoms, he wrote flat mood, tiredness, poor sleep & concentration, flash backs. Current treatment was listed as counselling, past treatment as nil and future/planned treatment as counselling, antidepressants, psychologist & psychiatrist referral. The MRD identified the following conditions as generally well managed and causing minimal or limited impact on Mr Toma’s ability to function: Type 2 DM (diabetes mellitus), umbilical hernia waiting for surgery, and hypercholesterolaemia.
In his MRD dated 18 July 2012, Dr Francis again gave the diagnosis of condition 1 as right pampiniform plexus with varicosity. He reported that Mr Toma was awaiting surgical specialist review and surgery for this condition. Dr Francis again gave the diagnosis of condition 2 as Depression, PTSD and Current treatment remained counselling. Future/planned treatment was stated as psychologist referral & antidepressants. Conditions regarded as generally well managed and causing minimal or limited impact on Mr Toma’s ability to function were noted as: umbilical hernia, Type 2 DM (diabetes mellitus) and previous shell injury.
In his third MRD dated 13 November 2012, Dr Francis gave the diagnosis of condition 1 as Type 2 DM peripheral neuropathy. Current treatment was given as Gliclazide 5mg/day and diet. Future/planned treatment was stated as same – regular checks. Current symptoms were noted to be bilateral foot pain, numbness paraesthesia. Condition 2 was given as bilateral inguinal hernia and Current treatment was listed as R inguinal hernia repair waiting for left inguinal hernia surgery. Conditions regarded as generally well managed and causing minimal or limited impact on Mr Toma’s ability to function were noted as: – umbilical hernia, – R shoulder tendinitis, – hypercholesterolaemia, – R shoulder subacromial bursitis.
The report of the ultrasound examination conducted by Northern Hospital Radiology on 16 October 2012 concluded with a discovery of a Large left-sided reducible inguinal hernia extending to the upper scrotum.
The letter dated 6 October 2011 from the Northern Hospital addressed to Mr Toma, is a pro forma letter informing Mr Toma that he has been placed on a waiting list for an operation for repair of a paraumbilical hernia.
The letter from Northern Hospital, addressed to whom it may concern and dated 7 November 2012, was handwritten and signed by Dr Jason Goh. It stated: Mr Toma is a 46 y/o man, reviewed in urology clinic today. He has a large left sided inguinal hernia pending general surgical review.
The report of the ultrasound examination of Mr Toma’s right shoulder performed on 14 November 2012 by Victorian Medical Imaging reads as follows:
There is evidence of right subacromial bursitis. There is mild bursal thickening with fluid and bursal impingement at 20 degrees abduction. Biceps, subscapularis and supraspinatus otherwise have a normal outline.
The Employment Services Assessment Report dated 25 July 2011 and the report of the JCA undertaken on 24 February 2012 do not include any additional medical evidence. The JCA report mentions that after leaving the Iraqi Army, Mr Toma worked in a pizza shop for 5 years until leaving for Syria where he was not legally able to work due to the political situation.
CONSIDERATION OF THE ISSUES
Does Mr Toma have any physical, intellectual or psychiatric impairments?
The evidence of Dr Francis, supported by Mr Toma’s oral evidence, makes it clear to the Tribunal that Mr Toma suffers from the following medical conditions:
·depression;
·type 2 diabetes mellitus;
·an old shrapnel injury;
·bilateral inguinal hernias and right varicocele;
·right shoulder tendonitis and bursitis; and
·hypercholesterolaemia.
These diagnoses were conceded by the respondent as meeting the requirement of s 94(1)(a) of the Act.
On the evidence currently available, the Tribunal is not prepared to accept the diagnosis of PTSD. The only hint of symptoms of PTSD recorded in Dr Francis’s MRDs is the entry about flashbacks. The Tribunal notes that Dr Francis has reported that Mr Toma’s diabetes has been complicated by peripheral neuropathy. Mr Toma did not acknowledge any symptoms of this condition but it is possible that the questioning on this aspect, via the interpreter, was unclear to Mr Toma.
Are any of Mr Toma’s conditions permanent?
In order that an impairment rating can be made, it is first necessary to determine if Mr Toma’s diagnosed conditions have been fully treated and stabilised, that any associated impairment is likely to last for more than 2 years and hence the condition can be deemed as permanent for the purposes of the Act. Each diagnosed condition is examined separately in the following paragraphs.
Depression
There is clear evidence before the Tribunal that this condition has not yet been fully treated. Dr Francis’s management to date has taken the form of counselling. As Mr Toma admitted, Dr Francis referred him for specialist treatment but Mr Toma declined to act on the referral as he wanted to have his physical health problems attended to first.
Type 2 diabetes mellitus
The Tribunal accepts that this condition has been fully diagnosed. The condition did not form a central component of Mr Toma’s claimed incapacity to work. However, if Mr Toma did so claim, the Tribunal would observe that it has not yet been fully treated and fully stabilised. Mr Toma stated that his test results (presumably blood sugar levels) fluctuate according to his diet. He informed the Tribunal that he has not seen a dietitian or a diabetes medical specialist. If the condition is already complicated by peripheral neuropathy, as is indicated in Dr Francis’s most recent MRD, this further suggests that Mr Toma has not had his diabetes under good control for some time, ie it is not stabilised.
Old shrapnel injury
Although no imaging or other documentation is available to the Tribunal, the Tribunal accepts that Mr Toma does continue to experience pain in his left shoulder and left chest and some disability in his left arm, consequent upon an injury that occurred during the Iraq/Iran war. Mr Toma’s evidence was that Dr Francis has advised him to seek specialist review of this problem but that this has not yet taken place. Accordingly, it is not possible for the Tribunal to find that this condition has been fully treated and fully stabilised.
Bilateral inguinal hernias and varicocele
At the time of his DSP application, Mr Toma appears to have been suffering from bilateral inguinal hernias and a symptomatic varicocele on the right side. Based on Dr Francis’s MRD dated 29 January 2012, Mr Toma was awaiting surgery at the time of his DSP claim (presumably for the right side, as Dr Francis reported that this was the site of pain). Although no operation reports were available to the Tribunal, the Tribunal accepts the evidence of Mr Toma that the problems on the right side (hernia and varicocele) were operated upon at the Northern Hospital but the date of this surgery is unclear.
The Tribunal accepts Mr Toma’s oral evidence that he still experiences post-surgical pain on his right side but that he has been told by his surgeon that the operation was successful. The surgeon’s view is supported by the result of the ultrasound examination done on 16 October 2012. Given that the surgery for the right-sided hernia took place after the DSP qualifying period, it is clear that at the time of Mr Toma’s DSP claim, this condition had not been fully treated. As of October 2012, Mr Toma had not had surgery for his left-sided hernia. Therefore, Mr Toma’s left-sided hernia had also not been fully treated at the time of his DSP claim.
Right shoulder tendinitis and bursitis
The painful condition that Mr Toma now describes involving his right shoulder was not identified in Dr Francis’s MRDs until his third MRD dated 13 November 2012. Accordingly, Mr Toma’s right shoulder condition cannot form part of his application for DSP as at 31 January 2012. Therefore, the Tribunal cannot consider this condition when determining whether Mr Toma qualified for DSP as at 31 January 2012 and the subsequent 13 weeks.
Hypercholesterolaemia
Although little detail about this condition is provided in the available medical reports, the Tribunal accepts that the condition was fully diagnosed, treated and stabilised, and likely to persist for more than 24 months at the time of Mr Toma’s DSP claim.
Arthritis of the fingers
The Tribunal notes Mr Toma’s complaint of (what he terms) arthritis in two fingers. However, this condition is not identified in any of Dr Francis’s MRDs and did not form part of Mr Toma’s application for DSP. As there is no medical evidence to substantiate this complaint, the Tribunal will not consider this condition.
Umbilical hernia
The evidence in regard to this condition is unclear. The condition was identified in Dr Francis’s first MRD as one that was generally well managed and causing minimal or limited impact on Mr Toma’s ability to function. The Tribunal understands that Mr Toma has now had this hernia repaired surgically, possibly being the operation referred to in the medical certificate of the Northern Hospital dated 2 March 2013. Thus the condition was not fully treated as at the DSP qualifying period.
What impairment ratings do Mr Toma’s conditions attract?
Under s 94(1) of the Act, points under the Impairment Tables can only be allocated if a condition is deemed to be permanent (as outlined above in paragraph 7).
In the Tribunal’s view only the condition of hypercholesterolaemia has been fully treated and stabilised and likely to persist for more than 24 months and therefore meets the above requirements. This is not a condition that is associated with any impact on ability to function and there is no relevant impairment table. The Tribunal notes that Dr Francis regarded this condition as generally well managed and causing minimal or limited impact on ability to function. Accordingly, an impairment rating of nil points is appropriate.
Does Mr Toma have a continuing inability to work?
As none of the conditions from which Mr Toma suffers meet the requirements of s 94(1)(b) of the Act, it is not necessary for the Tribunal to examine this question.
CONCLUSIONS
The Tribunal is satisfied that Mr Toma suffers from the conditions of depression, type 2 diabetes mellitus, an old shrapnel injury, bilateral inguinal hernias and right varicocele, right shoulder tendonitis and bursitis, and hypercholesterolaemia. Thus Mr Toma meets the requirements of s 94(1)(a) of the Act.
The Tribunal is satisfied that, with the exception of hypercholesterolaemia, at the time of his application for DSP, Mr Toma’s conditions had not been fully treated and stabilised. Therefore, he did not meet the requirements of s 94(1)(b) of the Act and the Impairment Tables.
The Tribunal finds that Mr Toma’s condition of hypercholesterolaemia attracts an impairment rating of 0 points. This condition therefore does not meet the requirements of s 94(1)(b) of the Act.
As the requirements of s 94(1)(b) of the Act are not met, it follows that the Tribunal does not need to examine whether Mr Toma had a continuing inability to work.
As Mr Toma did not meet all the requirements of s 94(1) of the Act, he was not entitled to DSP as at 31 January 2012. The decision of the SSAT is affirmed.
DECISION
The Tribunal affirms the decision under review. Mr Toma was not qualified for DSP as at 31 January 2012.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. ..........[sgd]..............................................................
K Randall, Associate
Dated 5 June 2013
Date of hearing 27 May 2013 Applicant In person Advocate for the Respondent Nicholas Anawati, Department of Human Services
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