Ebady and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1058
•21 December 2016
Ebady and Secretary, Department of Social Services (Social services second review) [2016] AATA 1058 (21 December 2016)
Division
GENERAL DIVISION
File Number
2016/0186
Re
Mr Oudh Ebady
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 21 December 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY - Disability Support Pension - relevant date - whether physical, intellectual or psychiatric impairment - whether conditions fully diagnosed, fully treated and fully stabilised - whether impairment rates 20 points or more under Impairment Tables - decision affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
REASONS FOR DECISION
Mr Conrad Ermert, Member
21 December 2016
INTRODUCTION
Mr Ebady was granted a Disability Support Pension (DSP) in 2002. In February 2015 Centrelink initiated a review of his eligibility for DSP. Centrelink is the service provider for the Department of Social Services, the Respondent.
Mr Ebady attended a Job Capacity Assessment on 7 April 2015. In a report dated 10 July 2015 a Job Capacity Assessor (JCA) formed the opinion that Mr Ebady suffered from hearing loss, osteoarthritis, ischaemic heart disease, anxiety/depression, diabetes and obstructive sleep apnoea. However the JCA assigned no impairment ratings to the conditions and found that Mr Ebady had a baseline work capacity of 15 to 22 hours per week.
On 17 July 2015 an officer of Centrelink decided that Mr Ebady was no longer qualified for the payment of DSP and cancelled the entitlement. Mr Ebady requested a review of the decision. On 23 September 2015 an Authorised Review Officer (ARO) affirmed the decision. Mr Ebady sought a review of the ARO’s decision. On 8 December 2015 the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO’s decision.
This matter is a review of the AAT1 decision.
HEARING
Mr Ebady represented himself at the hearing and gave evidence under affirmation with the assistance of an interpreter in the Arabic language. Mr Cameron Munro, an advocate in the employ of the Department of Human Services represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). I had also the following Supplementary T-Documents:
· ST1 – Centrelink Medical Certificate by Dr Akeel Alwaali dated 5 May 2016;
· ST2 – Health Summary Sheet by Dr Alwaali dated 5 May 2016;
· ST3 – Report by Dr Alwaali dated 24 May 2016;
· ST4 – Sleep study report by Dr Jibin Thomas dated 20 June 2016;
· ST5 – Report by Dr Raid Al Humrany, psychiatrist, dated 23 June 2016;
· ST6 – Report by Dr Ghassan Alhami dated 23 June 2016;
· ST7 – Report by Dr Avdo Zahirovic, ENT surgeon, dated 11 July 2016;
· (Document ST8 was deleted as it was a duplicate of T-Document 36)
· ST9 – Centrelink Medical Certificate by Dr Alwaali dated 11 August 2016;
· ST10 – Patient Medication Sheet by Dr Alwaali dated 11 August 2016;
· ST11 – email from DHS to the JCA dated 23 August 2016;
· ST12 – email from the JCA to DHS dated 24 August 2016; and
· ST13 – JCA assessment report dated 19 August 2016.
I had before me also the following documents previously received by the Tribunal:
·Report of Dr Talib Tahir, Rheumatologist, dated 14 April 2016;
·Report of Dr Raid AlHumrany, Consultant Psychiatrist, dated 23 June 2016;
·Dr Avdo Zahirovic, Ear Nose and Throat Surgeon, dated 8 August 2016;
·Report of Dr Tahir dated 28 September 2016; and
·Report of Dr Akeel Alwaali undated, but marked as received on 17 October 2016.
For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions dated 27 October 2016.
LEGISLATION
The relevant legislation is contained in the:
·Social Security Act 1991 (the Act),
·Social Security (Administration) Act 1999 (the Administration Act), and
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Subsection 94(1) of the Act details the requirements for qualification for DSP as follows:
(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…
RELEVANT DATE
Citing the decision of the Federal Court in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 the Respondent contends that the Tribunal must consider whether Mr Ebady was qualified for DSP on the date of cancellation, and at no other time. I accept that contention and find that the relevant date in this case is 17 July 2015, that being the date on which Mr Ebady’s DSP was cancelled.
ISSUES
The issues I must determine are whether, on the relevant date:
·Mr Ebady had physical, intellectual or psychiatric impairments; and if so
·The impairments attracted a rating of at least 20 points under the Impairment Tables; and if so
·Mr Ebady had a continuing inability to work.
EVIDENCE
Mr Ebady chose to not lead evidence but responded to questions put to him by the Respondent and the Tribunal. He said that he relied on the medical reports already provided to the Tribunal.
Mr Ebady said that the conditions with the greatest impact were the problems with his back, shoulders and knees, his constant dizziness, his psychological condition and his loss of hearing.
When asked about the impact of his hearing condition while wearing hearing aids, Mr Ebady said that he avoids using them due to his dizziness and that he gets blocked ears.
In regard to his mental health condition Mr Ebady agreed with the report of Mr Ramzi Mohammad dated 28 August 2014, which recorded that he was experiencing “a bout of depression and anxiety”. Mr Ebady said he had been seeing psychologists for a long time. He agreed that his condition deteriorated in 2014 due to the separation from his wife.
Mr Munro took Mr Ebady to his evidence at the AAT1 hearing, which recorded him as being less nervous and more optimistic after commencing medications prescribed by his psychiatrist, Dr Al-Humrany. Mr Ebady said that his condition was not very stable. He said that he has been taking his medications as directed “fairly regularly”.
When asked about his dizziness condition Mr Ebady said that Dr Zahirovic was not the first specialist he had seen. He said that he used to see a specialist in Sydney about 10 years ago. He could not remember the name of the specialist. Mr Ebady said he has had the condition for a long time. All the doctors had told him that it was untreatable. He said it was severe. He had sometimes called for an ambulance but was told that there was nothing they could do.
Mr Munro referred to the report of Dr Zahivoc dated 8 August 2016 which recommend further investigation including an MRI. Mr Ebady said that he had had an MRI scan but the results reported the same conclusion.
When asked about the problem with his back, shoulders and knees Mr Ebady said he had been seeing Dr Tahir since 2008 or 2009. He said Dr Tahir has been treating him with painkillers. Mr Munro referred to Dr Tahir’s recommendations for physiotherapy contained in his report dated 29 October 2015. Mr Ebady said that he had undertaken five sessions of physiotherapy this year.
In regard to other recommended treatments Mr Ebady said that he had not agreed to cortisone injections as he was concerned that he might suffer negative effects from the treatment, similar to those experienced by his son. He said he had undertaken non-weight-bearing exercises in 2011 and 2012 but that they did not help much.
Mr Ebady agreed that up to 2014 he regularly travelled overseas to be with his family. He said his family provided support for him and he felt better while with them. Mr Ebady disagreed with the report of the Health Professional Advisory Unit (HPAU) dated 30 June 2015, which recorded Dr Alethan advising that Mr Ebady is able to attend to all his activities of daily living. Mr Ebady confirmed that, following separation from his wife, he lived on his own for one to one and a half years.
TRIBUNAL CONSIDERATIONS
Impairments (Subsection 94(1)(a) of the Act)
The Respondent concedes that Mr Ebady satisfies subsection 94(1)(a) of the Act in that he suffered from the following conditions:
·Adjustment disorder,
·Bilateral hearing loss,
·Coronary artery disease,
·Obstructive sleep apnoea,
·Spinal conditions,
·Arthritis,
·Diabetes,
·Rotator cuff syndrome,
·Overweight/obese, and
·Other conditions: hypercholesterolaemia, hyperlipidaemia, dyslipidaemia hypertriglyceridaemia, trigger finger, plantar fasciitis, helicobacter pylori positive and vitamin D deficiency.
There is medical evidence to support these conditions. I accept the concession and find accordingly.
In addition Mr Ebady contends that he suffers from dizziness. I will also consider whether this condition can be assigned an impairment rating.
Impairment Rating (Subsection 94(1)(b) of the Act)
I will now consider whether Mr Ebady’s impairments attracted an impairment rating of 20 or more points in order to satisfy subsection 94(1)(b) of the Act.
The Impairment Tables provide the criteria by which impairment points are allocated to impairments. Subsection 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent. Subsection 6(4) provides that a condition is permanent if the condition:
(a)has been fully diagnosed by an appropriately qualified medical practitioner, and
(b)has been fully treated, and
(c)has been fully stabilised.
I will consider each condition in turn.
Adjustment Disorder with Anxiety and Depression
The Introduction to Impairment Table 5 – Mental Health Function requires the diagnosis of a condition 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)”.
Mr Ebady said in evidence that he had been seeing a psychologist for a long time for this condition. He agreed that his first referral to a psychiatrist occurred after his DSP had been cancelled. His evidence is confirmed by the reports of Mr Ramzi Mohammad dated 28 August 2014, 26 February 2015, and 4 August 2015 and the report of Dr Humrany dated 10 September 2015.
Mr Mohammad describes himself as a qualified psychologist registered with the Psychology Board of Australia. However I note that he is not registered as a Clinical Psychologist. Dr Al Humrany is a Consultant Psychiatrist. His report dated 10 September 2015 reports the results of his first examination of Mr Ebady.
The evidence shows that Mr Ebany’s condition was not diagnosed by a psychiatrist or with evidence from a clinical psychologist until 10 September 2015. I find that at the relevant date Mr Ebany’s mental health condition was not fully diagnosed in the terms of the Impairment Tables. As a result the condition cannot be accepted as permanent on the relevant date and cannot be assigned an impairment rating.
Bilateral Hearing Loss
In his report dated 22 February 2015, Dr Ala Alethan diagnosed the condition of bilateral sensorineural hearing loss. The report notes that the diagnosis was confirmed through a referral to Hearing Australia and that relevant specialist reports were attached to the report. I accept that the condition has been diagnosed in accordance with the requirements of Impairment Table 11 – Hearing and Other Functions of the Ear.
Dr Alethan recorded the current treatment as hearing aids – lost them awaiting appointment and the future treatment as hearing aids. The reasons for the AAT1 decision record Mr Ebany as saying that he did lose his hearing aids in February 2015 and was without them until he received replacements in July 2015.
The Respondent contends that the condition was not fully treated and stabilised on the relevant date. However, as Mr Ebady did receive hearing aids, even though he lost the original ones, I am satisfied that his condition was fully treated. There is no medical evidence proximate to the relevant date of a need for further reasonable treatment that would be likely to result in significant functional improvement to his impairment. Accordingly I am satisfied that the condition was also fully stabilised at the relevant date.
In considering the impairment resulting from the hearing condition I note the requirements of the Introduction to Table 11 that self-report of symptoms alone is insufficient and that Table 11 should be applied with the person using his prescribed hearing aids. There are no medical reports proximate to the relevant date that record Mr Ebady’s impairment while he was using his hearing aids.
In the absence of corroborated evidence of any impairment while using his hearing aids I am unable to assign an impairment rating from Table 11.
Coronary Artery Disease
In considering this condition I note the report of Dr Ali Al-Fiadh, Interventional Cardiologist, dated 21 July 2015 in which he recorded:
“I had the pleasure to review Mr Ebady once again today at my room. He has been my patient for over 5 years … That test was followed by a coronary angiogram performed in October 2010. There was no flow limiting disease found in any of his coronary arteries and the left ventricular systolic function was assessed as normal which raised the possibility of coronary microcirculatory dysfunction. Given that he is diabetic and overweight, coronary microcirculatory dysfunction is quite common and might be responsible for his ongoing symptoms. I have also seen him earlier this year, with recurrent chest discomfort for which he had a stress echocardiography and it was reported as normal. Having said that, given his ongoing angina sounding chest pain and his underlying risk factors he is at high risk of cardiovascular event and needs ongoing management and cardiovascular risk factor modification. I would also advised (sic) him to avoid heavy work but encouraged regular exercise and weight loss”.
I am satisfied that at the relevant date the condition was fully diagnosed. However there is no evidence of Mr Ebady undertaking regular exercise and any program of weight loss. I also note the need for cardiovascular risk factor modification. I am satisfied that the condition required further treatment and was not yet stable.
I find that at the relevant date the condition was fully diagnosed but not fully treated or fully stabilised. Accordingly, at the relevant date, the condition was not permanent in the terms required by the Impairment Tables and I am unable to assign an impairment rating to this condition.
Obstructive Sleep Apnoea (OSA)
The Respondent concedes that this condition is fully diagnosed on the relevant date. The medical evidence supports this concession and I find accordingly. Mr Munro submitted that the condition was not fully treated or fully stabilised, citing the report of Dr Jibin Thomas, sleep physician, dated 14 June 2016 which recommended a trial of side-sleeping, and a further review of the symptoms persisted.
In considering this condition I note the following reports:
·Dr David Freiberg, physician, dated 9 November 2005 in which recorded that Continuous Positive Airway Pressure (CPAP) therapy was the most appropriate treatment;
·Dr Mazin Said dated 20 February 2007, which included OSA amongst conditions that are generally well managed and causing minimal or limited impact on ability to function;
·Dr Alwaali dated 26 August 2010, which included OSA amongst conditions that are generally well managed and causing minimal or limited impact on ability to function; and
·Dr Alethan dated 22 February 2015, which included OSA amongst conditions that are generally well managed and cause minimal or limited impact on ability to function.
In the time period up to the relevant date the only prescribed treatment is CPAP therapy. Up to the relevant date the condition is reported as being well managed. I accept that the condition is fully treated and fully stabilised. As the condition is fully diagnosed, fully treated and fully stabilised I am able to consider the impairment from the condition under the Impairment Tables.
The consensus of the doctors’ opinions is that the condition is well managed and causes minimal or limited impact on Mr Ebady’s ability to function. I note that in his report Dr Alethan also recorded that the condition has “major impact”. There is no explanation of the anomaly between the inclusion of OSA with conditions with minimal impact and the comment of a major impact. Absent an explanation, I prefer the evidence of the other doctors and accept that the condition caused minimal or limited impact on Mr Ebady’s ability to function. I find that the condition attracts zero impairment points.
Spinal Conditions
On 20 February 2007 Dr Said reported that Mr Ebady had chronic backache and prescribed medications and physiotherapy. On 26 August 2010 Dr Alwaali reported that Mr Ebady had a condition of disc prolapse. Dr Alwaali included the condition amongst conditions that were generally well managed and caused minimal or limited impact on Mr Ebady’s ability to function. On 22 February 2015 Dr Alethan reported that Mr Ebady had a condition of discogenic lower back pain which had a major impact.
On 23 July 2015 Dr Tahir recorded that Mr Ebady had conditions of low back pain and neck/cervical spine pain with features of degenerative disc disease. Dr Tahir requested a scan of the cervical spine and the lumbosacral spine, to be followed by a review of the condition. On 30 July 2015 Dr Paul Tauro, radiologist, reported the results of the scans. On 29 October 2015 Dr Tahir reviewed the results of the scans and prescribed new medications and physiotherapy.
The introductory notes to Table 4 - Spinal Function requires that the diagnosis of [a spinal condition] must be made by an appropriately qualified medical practitioner. I am satisfied from the medical evidence that before the relevant date Mr Ebady had not had specialist examination for this condition. The first scans of his spine were initiated after the relevant date and resulted in a new treatment regime.
I find that at the relevant date Mr Ebady’s spinal conditions were not fully diagnosed. Accordingly, at the relevant date, the condition was not permanent in the terms required by the Impairment Tables and I am unable to assign an impairment rating to this condition.
Arthritis
In considering this condition I note the reports of Dr Said, dated 20 February 2007, Dr Alwaali dated 26 August 2010, and Dr Alethan dated 22 February 2015, all of which classified Mr Ebady’s condition of osteoarthritis as generally well managed and causing minimal or limited impact on his ability to function. I accept these reports as evidence that, at the relevant date, the condition was fully diagnosed with no recorded requirement for further investigation. As the condition had been well managed for a period of several years I accept that it was fully treated and stabilised.
I am satisfied that at the relevant date Mr Ebady’s condition of osteoarthritis was fully diagnosed, fully treated and fully stabilised and caused minimal or limited impact on his ability to function. Accordingly I assign an impairment rating of zero to this condition.
Diabetes
In considering this condition I note the report of Dr Alwaali dated 26 August 2010, which recorded a diagnosis of diabetes with an onset of 1990. Dr Alwaali’s recorded the impact of the condition on Mr Ebady’s ability to function as “Patient needs to check his sugar regularly”. In an attachment to his report dated 22 February 2015 Dr Alethan recorded Diabetes Mellitus - NIDDM as a current active problem for Mr Ebady.
The Respondent concedes that the condition was fully diagnosed at the relevant date. The medical evidence supports this concession.
There is no evidence of further specialist examinations before the relevant date. There is no evidence that the condition required changes to the prescribed treatment before the relevant date. I am satisfied that at the relevant date the condition was fully diagnosed, treated and stabilised. Accordingly I can assign a rating under the Impairment Tables.
In the absence of corroborated evidence that the condition caused any impact on his ability to function I assign a rating of zero to this condition.
Rotator Cuff Syndrome
The first recorded diagnosis of this condition is contained in the report of Dr Tahir dated 23 July 2015. This is after the relevant date.
I find that at the relevant date this condition was not fully diagnosed. I am unable to assign an impairment rating to the condition.
Overweight / Obese
Prior to the relevant date Dr David Frieberg, Consultant Physician - Respiratory Medicine & Sleep Disordered Breathing, in his report of 12 October 2005 reported that Mr Ebady was moderately obese. In his report of 20 February 2007, Dr Said included the overweight condition amongst conditions that are well managed and causing minimal or limited impact on Mr Ebady’s ability to function.
I accept that the condition was fully diagnosed at the relevant date. As there is no record of further treatments or medical interventions for a period of eight years I accept that the condition was fully treated and stabilised at the relevant date. As the condition is reported as causing minimal or limited impact on ability to function I assign a rating of zero impairment points to this condition.
Other Conditions
In his report dated 22 February 2015, Dr Alethan recorded that Mr Ebady had the conditions of hyperlipidaemia, hypertriglyceridaemia, trigger finger, vitamin D deficiency and that he was helicobacter pylori positive. I accept that these conditions were fully diagnosed at the relevant date. There is no evidence of Mr Ebady undertaking treatment for the conditions. I am unable to conclude that the conditions were fully treated at the relevant date.
I have no treating doctor’s diagnosis of hypercholesterolaemia. I do not accept that at the relevant date this condition was fully diagnosed.
The earliest diagnosis of the condition of dyslipidaemia is contained in the report of Dr Tahir dated 23 July 2015, a date which is after the relevant date. I am not satisfied that the condition was diagnosed at the relevant date.
As none of these conditions was fully diagnosed, fully treated and fully stabilised at the relevant date I am unable to assign an impairment rating to them.
Dizziness
In considering this condition I note the following reports created prior to the relevant date:
·Dr Al-Taiff dated 22 October 2002 which includes severe dizziness in his diagnosis of the hearing condition. The report also records “Recent ear infection with dizzy spells and worsening hearing”. The planned treatment is “may need hearing aids”;
·Dr Alwaali dated 26 August 2010 which records “vertigo all the time” as a symptom of hearing loss; and
·Nixon Street Medical report to Dr Alethon dated 2 February 2015 which shows that Stemetil was prescribed for Mr Ebady’s dizziness.
The doctors are not specialists in the area of hearing disabilities and associated conditions.
Reports subsequent to the relevant date are:
·Dr Alwaali dated 24 May 2016 which records: “Benign Paradoxical Vertigo – Mr Ebady has suffered this illness for a long time obviously related to his hearing loss and cervical spine issues. Even after multiple hospital visits and reviews with an ENT specialists (sic) Mr Ebady still experiences episodes from time to time. The condition began in 1993 and it will persist and not improve” ;
·Dr Avdo Zahirovic, ENT surgeon, dated 11 July 2016 which records: “[Mr Ebady] reports episodes of dizziness which have been occurring for some years now. … Examination of the ear canals and tympanic membranes was normal. Neurological examination including cranial nerves, limbs and Rhomberg’s tests was also normal. I would like to investigate a little further with an audiogram, ABR and ECoG …”; and
·Dr Zahirovic dated 8 August 2016 which records: “I reviewed this man following his tests. … I don’t think there is any evidence of a vestibular disorder such as Meniere’s in this man. However the asymmetry of his hearing does require further investigation. I have organised for an MRI to exclude acoustic neuroma or similar. …”.
From the medical evidence I accept that, at the relevant date, the condition had not been fully diagnosed. Indeed the condition was still being investigated by a specialist in August 2016. As the condition is not fully diagnosed at the relevant date I am unable to assign an impairment rating to the condition.
Total of Impairment Ratings
In considering the assignment of impairment ratings I have found the following in regard to the claimed conditions at the relevant date:
·Adjustment disorder - not fully diagnosed; unable to assign an impairment rating;
·Bilateral hearing loss – impairment not able to be assessed; unable to assign an impairment rating;
·Coronary artery disease - not fully treated or fully stabilised; unable to assign an impairment rating;
·Obstructive sleep apnoea – zero impairment points;
·Spinal conditions - not fully diagnosed; unable to assign an impairment rating;
·Arthritis – zero impairment points;
·Diabetes – zero impairment points;
·Rotator cuff syndrome - not fully diagnosed; unable to assign an impairment rating;
·Overweight / obese – zero impairment points;
·Other conditions - not fully diagnosed, not fully treated or not fully stabilised; unable to assign impairment ratings; and
·Dizziness – not fully diagnosed, unable to assign an impairment rating.
On the relevant date the conditions attracted a total of zero points. This is not sufficient to satisfy the requirements of section 94(1)(b) of the Act.
CONCLUSION
As Mr Ebady did not satisfy section 94(1)(b) of the Act on the relevant date, he did not meet all the requirements of section 94(1) of the Act. As a result, on the relevant date, Mr Ebady was not qualified to receive DSP. This means that the decision of the AAT1 is the correct and preferable decision.
DECISION
I affirm the decision under review.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]........................................................................
Associate
Dated 21 December 2016
Date of hearing 8 December 2016 Applicant In person Advocate for the Respondent Mr Cameron Munro Solicitors for the Respondent Department of Human Services,
FOI & Litigation Branch
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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