El-Behidi and Secretary, Department of Social Services (Social services second review)
[2021] AATA 1617
•4 June 2021
El-Behidi and Secretary, Department of Social Services (Social services second review) [2021] AATA 1617 (4 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3889
Re:Medhat El-Behidi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:4 June 2021
Place:Adelaide
The Tribunal sets aside the decision under review and substitutes with a decision that Mr El-Behidi is qualified to receive the Disability Support Pension from 27 September 2019.
..............................[Sgnd]..........................................
Member I Thompson
Catchwords
SOCIAL SECURITY – disability support pension – whether medical conditions diagnosed, treated and stabilised during the qualification period - whether an impairment rating of 20 points or more existed under the Impairment Tables - decision under review set aside
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Secretary, Department of Social Services and Seyfang [2016] AATA 243Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
The 2020 Royal Australian and New Zealand College of psychiatrists clinical practice guidelines for mood disorders
REASONS FOR DECISION
Member I Thompson
4 June 2021
INTRODUCTION
The applicant Medhat El-Behidi lodged a claim for disability support pension (DSP) on 27 September 2019. Centrelink rejected the claim in the first instance and Mr El-Behidi requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Mr El-Behidi requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Mr El-Behidi applied to the General Division of the Tribunal for a second review.
The hearing took place on 14 and 20 January 2021. Mr El-Behidi attended the hearing and was self‑represented. Mr Nocera represented the respondent, the Secretary, Department of Social Services.
Mr El-Behidi gave evidence and called one witness, his psychologist, Mr Minniti. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Mr El-Behidi is now 50 years old. He suffers from several medical conditions which include conditions relating to his back, upper limbs, and mental health.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The qualification period in this case is 27 September 2019 to 27 December 2019.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Mr El-Behidi will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work.
The Secretary accepted that Mr El-Behidi suffers from both physical and psychiatric impairments during the qualification period and therefore satisfies s 94(1)(a) of the Act.
In her Statement of Facts, Issues and Contentions, the Secretary contended that:
· the upper limb condition and mental health condition were not fully diagnosed, treated or stabilised in the qualification period and do not attract an impairment rating;
· the spinal condition could be assigned 5 impairment points; and
· an overall impairment rating of 5 points does not satisfy s 94(1)(b) of the Act
Accordingly, the Secretary contended that Mr El-Behidi did not have a continuing inability to work and was not qualified for the DSP during the qualification period.
The main issue for determination is whether Mr El-Behidi’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.
IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for each of Mr El-Behidi’s conditions will be considered in turn by reference to the Impairment Tables.
CONSIDERATION
There is a lapse of time between lodging the DSP claim on 27 September 2019 and the hearing before this Tribunal. Nonetheless the task for the Tribunal is to assess Mr El-Behidi’s condition at the time of the DSP claim and the qualification period, as several decisions of the Tribunal have confirmed.
It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[1] at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[1] [2012] AATA 922.
In addition, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services,[2] DP Handley stated (at 33) that:
“The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.
[2] [2014] AATA 447.
In Secretary, Department of Social Services and Seyfang[3] , the Tribunal comprising Deputy President Bean noted that:
“I am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period.”
[3] [2016] AATA 243.
EVIDENCE
Mr El-Behidi gave evidence with the assistance of a highly capable and helpful interpreter. At times Mr El-Behidi spoke in English. He was emotional and easily prone to straying from the topic in question. His son assisted him with paperwork and generally as a calming support. Mr El-Behidi resides in suburban Adelaide with his wife and children.
Prior to the hearing Mr El-Behidi provided a typed document of one page in which he commented upon his medical condition and various matters relating to his DSP claim. In that document he wrote that he has tried to get his back fixed, however nothing works because there is too much damage which leaves him with chronic back pain and severe pain in both hands. Ultimately the treatment which he has received has not assisted him because, as he wrote: – “…there’s no medication to fix multiple disc damage, chronic back pain, spinal disorder, acute arthritis, severe anxiety and depression, all what I take is pain killers and anti-inflammatory tablets just to reduce the pain and that’s causing another problem which is destroying my stomach…”[4]
[4] Exhibit 5
Mr El-Behidi completed year 12 schooling equivalent in Egypt prior to migrating to Australia in 1996. He can read and write in English. After arriving in Australia he worked for many years as a pizza cook and carried out associated work in a restaurant. Eventually he could not continue that work because of problems with his back pain. He told the Tribunal that he was falling over at work and dropping dishes. Subsequently he managed a takeaway food shop as best he could until he ceased the business in 2017.
Spinal condition - whether the condition was fully diagnosed, treated and stabilised
Impairment Table 4 is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
Dr Giordano has been the applicant’s general medical practitioner for many years. In 2014 he reported that Mr El-Behidi suffered from chronic low back pain which commenced in 2012.[5] A specialist referral was made to the spinal assessment clinic at the Royal Adelaide hospital. A report written on 8 October 2014 by Dr Potter, senior visiting spinal surgeon, included a review of an MRI scan and CT scan and a diagnosis of chronic, non-specific lower back pain and left sciatica with marked multilevel disc degenerative changes. Dr Potter did not recommend surgery, while the option of a local steroid injection for potential short-term relief of the sciatica was not favoured by Mr El-Behidi. At that time treatment by medication included Voltaren, Tramadol and Panadeine forte. Mr El-Behidi experienced some drowsiness from the medication. He had attended regular physiotherapy appointments at the hospital without significant benefit. He was discharged from the spinal assessment clinic with recommendations for continuation of the current treatment regime including exercising, physiotherapy, anti-inflammatory medication and potentially a low dose of Endep for neuropathic symptoms.[6]
[5] Exhibit 2, T 33, p 208
[6] Exhibit 2, T 31, p 201
Mr El-Behidi’s problems with back pain continued in the following years. A medical certificate dated 11 April 2015 provides a diagnosis of discogenic back pain and sciatica as a permanent condition which is worse with movements, walking and standing for a long time.[7]
[7] Exhibit 2, T 35, p 223
Following a CT scan of the lumbar spine in November 2017[8], Dr Giordano reported that Mr El-Behidi was continuing to receive treatment for chronic back pain and the CT scan had confirmed degenerative joint disease in the lumbar spine. Dr Giordano added that Mr El-Behidi:- “has not improved with physiotherapy and anti-inflammatory medication. He is totally unfit for any work trained or educated for.”[9]
[8] Exhibit 2, T 36, p 224
[9] Exhibit 2, T 39, p 228
Dr Giordano sought a review by the spinal assessment clinic of the Royal Adelaide Hospital in 2017 in relation to Mr El-Behidi’s chronic low back pain and left leg pain. That review resulted in recommendations for continuing physiotherapy, the use of analgesics and possible consideration of a CT guided steroid injection.[10] Mr El-Behidi received treatment for discogenic back pain and right leg radicular pain as confirmed by Dr Giordano in medical certificates dated 24 March 2018[11] and 25 July 2018.[12] Once again, Dr Giordano reported on 15 September 2018 that the results of CT and MRI scans confirmed the spinal disorder and he observed that treatment had not led to improvement of Mr El-Behidi’s condition which was “fully stabilised and unlikely to improve in the next two years.”[13]
[10] Exhibit 2, T 40, p 229
[11] Exhibit 2, T 41, p 231
[12] Exhibit 2, T 47, p 243
[13] Exhibit 2, T 48, p 244
Dr Giordano provided further medical certificates on 21 August 2019[14] and 16 November 2019[15] in which he confirmed the continuing discogenic back pain and right and left leg radicular pain. He arranged for further x-rays and confirmed in a report written on 12 February 2020 that Mr El- Behidi suffers still from chronic back pain which is fully diagnosed and stabilised.[16]
[14] Exhibit 2, T 15, p 139
[15] Exhibit 2, T 18, p 143
[16] Exhibit 2, T 19, p 144
A Job Capacity Assessment Report (JCA) on 21 February 2020 followed a meeting conducted by assessors with Mr El-Behidi who was supported by an interpreter in the Arabic language. According to the report Mr El-Behidi reported difficulties with twisting and bending together with sporadic burning pain and numbness in both legs. The assessors noted that he mainly relies on friends to do shopping for him and although he has a driver’s licence he prefers to be driven by friends. The report added that Mr El-Behidi has difficulties moving his torso, he is unable to stand or walk for more than 10 minutes, he has difficulties sitting for long periods, is unable to reach up easily, he experiences difficulties turning his head from side to side and is unable to twist his body to look behind. According to the report, Mr El-Behidi said that he can bend to knee height, he wears a back brace, takes pain relief and anti-inflammatory medication.[17]
[17] Exhibit 2, T 21, p 146 - 148
Mr El-Behidi was adamant his oral evidence that he was in pain while sitting for 45 minutes during the JCA interview with the assessor. He told the Tribunal that he has felt pain in his lower back which has steadily increased over several years. He recalled having physiotherapy treatment at the hospital about 5 or 6 years ago and it was of no benefit. Of the various medications which he has used he said that Voltaren is the only one which reduced his level of pain. His back problems prevent him from straightening up and reaching out. At home during the day he said that he walks around a bit but sits down most of the time. He does not do household work. He said that standing is a problem and so too is bending. He needs help getting out of a chair which is low and he prefers a higher chair. Sometimes his children or his wife help him to get up from a chair otherwise he props himself up if there is something in front to lean on. He said he has difficulties with overhead movements. He said he cannot reach upwards to cupboards. He can do things at his level. He can make a cup of tea but if the kettle is full he cannot lift it. He cannot bend to do shoelaces. He told the Tribunal that his wife helps him to get dressed. She gets his clothes ready. He cannot mobilise his legs to get them into the trousers. While sitting down, another family member assists him to pull up his trousers.
The Secretary contended that a report which Dr Giordano wrote on 12 February 2020[18] and the certificate which he provided on 13 February 2020[19] do not provide sufficient particularity for opinions about the nature, timing and functional restrictions caused by the injury to the lower back. In Dr Giordano’s opinion, Mr El-Behidi’s impairment meets the criteria for 10 points under Impairment Table 4. The JCA report concluded that the appropriate rating is 5 points.
[18] Exhibit 2, T 19, p 144
[19] Exhibit 2, T 20, p 145
The Tribunal takes into account the opinions offered by the medical practitioner and in the JCA report regarding the correct impairment rating. The Tribunal is not bound by Dr Giordano’s interpretation of the Impairment Tables and there is no evidence, perhaps unsurprisingly, about his knowledge and familiarity with the detail of the Tables. Nonetheless, his opinion would likely reflect his reading of the Table on spinal function. Ultimately, however, the decision about the impairment rating is one which the Tribunal must make and it is based upon all of the evidence and submissions, both oral and documentary, adduced at the hearing.
While it is correct to assert that Dr Giordano’s report on 12 February 2020 does not provide particularity about functional restrictions and their timing, the totality of the material which Dr Giordano wrote, in letters and certificates, covers a period from 2014 to the present time and is likely to bear upon the opinion which he gave in the report in February 2020. Clearly he is well acquainted professionally with Mr El-Behidi’s medical condition and its history, treatment, progress and impact.
The opinion of the assessor who wrote the JCA report similarly will reflect the way in which that Table is interpreted by the assessor. Of course, while the assessor is not a medical practitioner, the JCA report and opinions which are contained in the report, are important evidentiary material which, in this case, follows an interview between the assessor and Mr El-Behidi. The JCA report includes analysis and consideration of medical reports and certificates with a focus on an applicant’s functional capacity and the impact of the impairment on capacity for work.
The correspondence and certificates which Dr Giordano wrote prior to the qualification period assist in the understanding of Mr El-Behidi’s functional impairment at the time of his DSP claim and during the qualification period. The correspondence and certificates which Dr Giordano wrote after that time have relevance to the degree only that they assist in confirming the correct position during the qualification period.
For mild functional impact on activities involving spinal function, Table 4 states:
Points
Descriptors
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:
Points
Descriptors
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Weighing up the evidence about Mr El-Behidi’s activities that involve spinal function, the Tribunal finds that the condition was fully diagnosed, treated and stabilised at the time of the DSP claim. The Tribunal is satisfied that he meets the criteria in 1 (a) and (b) in the descriptors for a moderate functional impact with a rating of 10 points.
Upper limb condition - whether the condition was fully diagnosed, treated and stabilised
Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms. The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not enough.
As previously indicated, the Secretary contended that the upper limb condition was not fully diagnosed, treated and stabilised in the qualification period
Mr El-Behidi was assessed in hospital on 2 April 2018 for pain in his right wrist. According to the hospital records he was found on examination to be tender over the wrist flexor tendons with increased pain on testing. The report noted that there was not any swelling and his pain had improved after taking Panadeine forte. There was no apparent history of trauma.[20]
[20] Exhibit 2, T 42, p 232
Dr Giordano arranged for an x-ray of the right wrist which confirmed mild radiocarpal degeneration without any fracture or dislocation.[21] An x-ray and ultrasound of the left wrist on 1 May 2018 indicated mild degenerative changes in the left wrist joint.[22]
[21] Exhibit 2, T 43, p 233
[22] Exhibit 2, T 46, p 242
Dr Giordano noted the results of the x-rays and reported on 15 September 2018 that Mr El-Behidi has osteoarthritis in the hands and was experiencing weakness and pain in the hands.[23]
[23] Exhibit 2, T 48, p 244
An x-ray and ultrasound on 28 September 2018 of the left shoulder indicated mild sub- acromial bursitis and impingement of the bursa during induction.[24] Similar results were obtained x-ray examination on 21 October 2019.[25]
[24] Exhibit 2, T 49, p 245
[25] Exhibit 2, T 16, p 140
On 12 February 2020 Dr Giordano reported that Mr El-Behidi suffers from left shoulder impingement syndrome which was confirmed by ultrasound and he has not responded to anti-inflammatory treatment and physiotherapy.[26]
[26] Exhibit 2, T 19, p 144
The JCA report dated 21 February 2020 summarises the conversation which the assessors had with Mr El-Behidi. He indicated that he was having pain with his left shoulder and associated difficulties lifting and carrying more than 5 kg, and, he was “not able to reach up.” Mr El-Behidi reported pain in the wrist and hands with tingling and numbness together with difficulties lifting and carrying heavy objects.[27]
[27] Exhibit 2, T 21, p 146
Mr El-Behidi’s evidence at the hearing was broadly consistent with the comments attributed to him in the JCA report. He told the Tribunal about pain which he has in his shoulders and wrists. He takes Voltaren to reduce the level of pain. He said that as the problems with his left shoulder were getting worse he was referred for scans in 2018 and 2019, while the dosage of Voltaren was increased. He agreed that he has not had physiotherapy for the problems with the shoulders and wrists and he was unwilling to consent to steroid injections because of bad experience which he had with injections for back pain.
The Tribunal is satisfied that there is sufficient evidence that the upper limb condition was fully diagnosed at the time of the DSP claim. In particular, the Tribunal finds that the conditions of left shoulder bursitis and degenerative changes to both wrists were diagnosed.
There is only slight evidence about treatment for the upper limb conditions at the time of the DSP claim and during the qualification period. In order for a condition to be found to be fully treated and fully stabilised, the Tribunal must be satisfied that the evidence meets the requirement of ss 6(5) and 6(6) of the Rules for Applying the Impairment Tables, summarised earlier. The medical evidence between April 2018 and the qualification period, which commenced relatively soon thereafter, on 27 September 2019, provides little detail about the nature and progress of any treatment and whether treatment was continuing or planned in the following two years.
The Tribunal finds that Mr El-Behidi’s upper limb condition was diagnosed at the time of the DSP clam, however it was not fully treated and fully stabilised. Accordingly, an impairment rating cannot be given.
Mental health condition – whether the condition was fully diagnosed, treated and stabilised
Impairment Table 5 provides the descriptors relating to functional impairment due to a mental health condition, which includes recurrent episodes of mental health impairment. The introduction to Table 5 also indicates that the signs and symptoms of mental health impairment can vary over time and for mental health conditions that are episodic, the rating that best reflects the persons overall functional ability is appropriate. It is necessary to have regard to the severity, duration and frequency of the episodes or fluctuations.
Impairment Table 5 specifies that the diagnosis of a mental health 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).
Dr Giordano’s certificate dated 20 October 2018, which is in the form of a letter, states that Mr El-Behidi suffers from severe depression.[28] Subsequently, his report written on 12 February 2020 refers to Mr El-Behidi suffering from depression. It was noted that he has undertaken psychological treatment with little progress.[29]
[28] Exhibit 2, T 50, p 246
[29] Exhibit 2, T 19, p 144
Mr El-Behidi consulted a clinical psychologist Mr Minniti over several years, regarding mental health issues. Mr Minniti provided written reports and gave evidence by telephone at the hearing.
Mr Minniti’s first report dated 12 December 2018 referred to Mr El-Behidi’s severe anxiety and depression.[30] The report followed a consultation on 7 December 2018. Previously Mr El-Behidi had consulted Mr Minniti in 2016 for mental health issues. At the consultation in December 2018 Mr Minniti reported that Mr El-Behidi was in an emotionally labile state and was continuing to experience severe anxiety associated with his physical problems. According to the report Mr El-Behidi:
“has also developed a severe agoraphobic syndrome experiencing significant anxiety when he needs to leave the house which he often avoids. His day to day functioning is significantly influenced by the chronic pain as he spends much time lying down.” [31]
[30] Exhibit 2, T 51, p 247
[31] Exhibit 2, T 51, p 247
Mr Minniti reported that the depression was chronic, associated with feelings of helplessness and hopelessness, a poor sense of self, perceived problems of being a poor parent, the interaction of chronic pain and exacerbation of depression, with limited benefit from various types of medication. Mr Minniti reported that Mr El-Behidi has: – “a strong work ethic which has induced a sense of worthlessness given his inability to have a productive life.” Mr Minniti considered that Mr El-Behidi would be unable to lead a productive lifestyle for the foreseeable future and the pain continues to “rule his existence”.[32]
[32] Exhibit 2, T 51, p 247
In evidence Mr Minniti confirmed that Dr Giordano had referred Mr El-Behidi to him for psychology treatment. Mr Minniti said that the treatment comprised supportive psychotherapy which addressed Mr El-Behidi’s presentation of his physical condition and his personal traits, the latter including a strong work ethic and strong family values both of which have been challenged by the chronic pain that he experiences. In psychotherapy sessions, Mr El-Behidi was directed towards addressing practical ways of responding to the effects of the pain rather than the pain itself and doing this in the context of trying to understand and make sense of what he considers he has lost. Mr Minniti told the Tribunal that he considered that Mr El-Behidi participated in the psychotherapy sessions and responded as best he could, being generally cooperative, open and honest.
Mr Minniti confirmed in evidence that Mr El-Behidi had consulted him on a regular basis pursuant to a capped number of sessions under a mental health care plan; going back to sometime in 2016, with a gap in 2017 and 2018, and then continuing through to the present time. At one point he discussed with Mr El-Behidi the possibility of a referral to a pain clinic at a public hospital which could involve a multidisciplinary, inclusive assessment of his condition. There is a long waiting list and a referral has not occurred. Mr Minniti considered that assessment and review by a pain clinic might have been more beneficial than a referral to a psychiatrist because of the multifaceted approach that the pain clinic provides.
Mr Minitti continued to provide psychological support and noted in a report written on 30 June 2019 that Mr El-Behidi was continuing to experience severe depression and anxiety associated with chronic pain, also aggravated by his inability to feel productive at home or to work and earn an income. He was continuing to suffer from a severe agoraphobic syndrome. Medication was still of limited efficacy. Mr Minniti wrote:
“… the depression and anxiety will continue to exist in the long-term irrespective of the progress of the chronic pain as the depression has become embedded in daily life. His depression meets the criteria for Major Depressive Disorder (DSM V) with anxiety… his depression and anxiety are currently intractable and will persist in the long term given the failure of a variety of treatments.” [33]
[33] Exhibit 2, T 14, p 138
The situation was unchanged when Mr Minniti provided another report on 17 March 2020.[34]
[34] Exhibit 2, T 22, p 157
Mr Minniti’s report written on 10 September 2020 continued with the same theme regarding Mr El- Behidi ‘s depression and anxiety. He still met the criteria for a major depressive disorder with anxiety. Mr Minniti referred to Mr El-Behidi’s:
“inability to be productive at home or to meet the demands of paid employment has exacerbated his depression, feeling unworthy and helpless to alter his current situation. He reports difficulty in focusing on tasks at home. His decision-making capacity at a basic level is adversely affected by the depression and pain as has his sense of independence also been adversely affected.” [35]
[35] Exhibit 3
Mr Minniti summarised Mr El -Behidi’s mental health condition as follows:
“his psychological status has been stable for some years and has tried a variety of therapeutic modalities including medication without any reported benefit. It is asserted that his psychological state will most likely persist for at least the next 2 years – his psychological status is fully diagnosed, treated and stabilised.”[36]
[36] Exhibit 3
The Secretary’s Statement of Facts, Issues and Contentions made reference to the Royal Australian and New Zealand College of psychiatrists clinical practice guidelines for mood disorders which provides some commentary about the point at which a mood disorder might be considered to be resistant to treatment or intractable. At that point a practitioner should consider:
(a) switching medications in the case of a lack of efficacy altogether, and using medications with different mechanisms of action or pharmacological effects
(b) augmenting dose in the case of limited efficacy with a plateau together with complimentary combined therapies or even combining medications
(c) referral to a psychiatrist
There was no psychiatric evidence before the Tribunal in this application. Mr Minniti is a psychologist. There was no competing medical evidence, no alternative medical opinions and no competing allied health evidence.
Mr Minniti told the Tribunal that he did not consider it appropriate to refer Mr El-Behidi to another psychologist. That was his clinical judgement. He considered that a referral could have been counter-productive as it might prejudice a well-developed therapeutic alliance which he had with Mr El-Behidi. In forming that view he commented that he relies upon his clinical judgement and skills noting that he has been in practice as a psychologist since 1983 and for 3 years he worked in a pain clinic. He reiterated that he did not consider it would be useful for a referral to a psychiatrist practising alone.
The JCA report includes a summary of Mr El-Behidi’s mental health condition. It concluded that there was no corroborating evidence to confirm that reasonable treatment, such as psychotherapy, had been undertaken and the condition was not considered to be fully treated and stabilised: – “as there may be scope for improvement to functioning with further intervention.”[37]
[37] Exhibit 2, T 21, p 146
In evidence Mr El-Behidi discussed the impacts of his psychological issues on his daily activities both presently and during the qualification period. He said that he has problems with memory and concentration. He attributes some of those problems to medication which he takes. He was using antidepressants at the time of his DSP claim. He gets angry because of problems that he has concentrating. He said that he becomes short tempered with his children and that worries him. He said that he does not want his children to hate him. He is moody. His memory is problematic. He said that he does not remember where he puts things. He can concentrate only on some tasks. For example he pays the bills which his wife leaves on the fridge door. His social life and community activities are curtailed. He said that he does not go to the front gate for weeks. On an average day he spends a lot of time lying down. He has a couple of friends who visit him at home. He sometimes takes his children to the local shopping centre. Often he stays in the car and waits for them to return. He attributes his depression to the physical pain that he has. He only travels locally.He said that he finds his psychology sessions with Mr Minniti helpful, he trusts him, he receives advice about anger management and other problems. There has never been a suggestion that he should consult a psychiatrist.
Diagnosis
The Tribunal does not accept the Secretary’s contention that there is a lack of evidence to support a finding that the mental health condition was diagnosed at the qualification period.[38] In the absence of a diagnosis by a psychiatrist, Impairment Table 5 provides for diagnosis by an appropriately qualified medical practitioner with evidence from a clinical psychologist. Mr El-Behidis’s general medical practitioner, Dr Giordano, had referred him to the clinical psychologist, Mr Minniti, and they both confirmed the diagnosis of depression. That diagnosis was in place at the time of the DSP claim.
[38] Exhibit 1, para 4.49(a)
Treatment
The Secretary contended that the evidence about Mr El-Behidi’s treatment regime is not adequate to support a finding that his mental health condition was fully treated and stabilised within the qualification period.[39]
[39] Ibid para 4.49(b)
In support of that contention the Secretary questioned the frequency, duration and extent of treatment which Mr El-Behidi received. Details of the Medicare patient history and the Pharmaceutical Benefits Scheme Patient summary between April 2016 and June 2020 were provided. Those records together with the totality of the medical and psychological evidence suggested that the treatment with various types of medication was “intermittent and fleeting.”[40]
[40] Ibid para 4.56
The Secretary contended that Dr Giordano’s report dated 12 February 2020 does not provide a satisfactory basis to find that the condition was fully diagnosed, treated and stabilised within the qualification period – it does not refer to the qualification period, and does not provide particulars of the diagnosis or particulars of treatment modalities.[41] This submission has merit. However, Dr Giordano’s assessment and treatment were not in isolation. They were carried out in conjunction with the referral to Mr Minniti and it is apparent that Mr Minniti was the primary driver, as the clinical psychologist, for the assessment, reviews, counselling and treatment of the mental health condition.
[41] Ibid para 4.53
The Secretary questioned the frequency, duration and extent of treatment prior to the qualification period.[42] It was noted, for example, that there were 10 claims on Medicare for consultations with Mr Minniti between March 2016 and June 2020 and limited prescription of medication by Dr Giordano. The Tribunal considers that the totality of the evidence shows that Mr El-Behidi was receiving psychology treatment from Mr Minniti prior to, during and after the qualification period. Having heard evidence from Mr Minniti, the Tribunal accepts his evidence about the extent and efficacy of the treatment. He was well acquainted with Mr El-Behidi’s mental health issues as far back as March 2016 both in relation to diagnosis and treatment. The treatment which Mr El-Behidi undertook was reasonable, within the meaning of s 6(6) & (7) of the Rules for Applying the Impairment Tables.
[42] Ibid para 4.54 and 4.55
The Tribunal finds that Mr El-Behid’s mental health condition was fully diagnosed, fully treated and fully stabilised at the qualification period.
Impairment rating
A mild functional impact on activities involving mental health function attracts 5 points as set out in Impairment Table 5 as follows:
| 5 | There is a mild functional impact on activities involving mental health function. (1) The person has mild difficulties with most of the following: (a) self-care and independent living; Example: The person lives independently but may sometimes neglect self-care, grooming or meals. (b) social/recreational activities and travel; Example 1: The person is not actively involved when attending social or recreational activities. Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments. (c) interpersonal relationships; Example: The person has interpersonal relationships that are strained with occasional tension or arguments. (d) concentration and task completion; Example 1: The person has difficulty focusing on complex tasks for more than 1 hour. Example 2: The person has some difficulties completing education or training. (e) behavior, planning and decision-making; Example 1: The person has unusual behaviors that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation. Example 2: The person has slight difficulties in planning and organizing more complex activities. (f) work/training capacity. Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings. |
For a moderate functional impact on activities involving mental health function, Table 5 provides:
Points
Descriptors
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self-care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book)
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity:
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
For a severe functional impact on activities involving mental health function Table 5 provides:
Points
Descriptors
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity:
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mr Minniti’s written reports are confused in the way in which he provided his view about impairment ratings. In the report which he wrote on 12 December 2018 he suggested that Mr El-Behidi has an impairment which meets the criteria for 30 points under Impairment Table 6.[43] However, that table concerns functioning related to alcohol, drug and substance use. In evidence Mr Minniti said that it was a typographical error in his report.
[43] Exhibit 2, T 51, p 247
In his report written on 17 March 2020 Mr Minniti wrote that Mr El-Behidi “meets the criteria for “fifty” of table 5 of the criteria.” [44] That is the correct impairment table. However the maximum rating under the table is 30 points. Mr Minniti was unable to recall in evidence why he had nominated “fifty. “He said the comment was drawn to his attention prior to writing a subsequent report.
[44] Exhibit 2, T 22, p 157
Ultimately it is a matter for the Tribunal to determine an impairment rating under the Impairment Tables. As discussed earlier, some guidance can be drawn from ratings which medical practitioners and allied health practitioners assign as their opinions provide some indication of the way in which they view the extent of the functional impact. However, some uncertainty may arise from the written material, standing alone. Where there is no oral evidence, the substance of the documentary evidence about diagnosis, treatment and functional impact is critical. The practitioner’s written opinion about an impairment rating is a factor for the Tribunal to take into account in its decision about the correct impairment rating. In the final analysis, the Tribunal has the benefit of all the evidence. It is not bound by the impairment rating which a witness suggests, however well-considered that opinion appears to be. The rating is something to be considered within the totality of the evidence.
Mr Minniti was not in his office when he gave evidence by telephone and he did not have notes with him of his consultations. He was relying to a degree upon his memory. His responses to questions about impairment ratings properly put to him in cross examination were sometimes argumentative and unhelpful. However, he maintained his opinion about the level of Mr El-Behidi’s depression and anxiety which he describes as intractable. He commented that the chronic pain sets off the psychological problems and is the cause of their persistence. However, given the nature of Mr El-Behidi’s depressive disorder he considers that even if the physical pain was alleviated, the depressive condition is likely to persist and could do so for another 2 years.
Mr Minniti told the Tribunal that Mr El-Behidi discussed his day-to-day functioning which involved a regular pattern of spending days lying down at home. He reported to Mr Minniti that he could not spend as much time with his children as he would like and that he also had concerns about a recently born child. He was concerned about not working. All these factors had an impact on his day-to-day functioning, and he became estranged from his environment, both in terms of his family and social connections.
Mr Minniti said that it emerged from his counselling sessions that Mr El-Behidi had difficulty following an ordinary daily routine and problems in making straightforward decisions such as whether to take a shower and taking appropriate steps to maintain his hygiene. There were reported difficulties with social and community participation with a reduced circle of friends, difficulty leaving the house and going into the community with apprehension about what might happen to him if he experienced significant pain when he is away from home. This was a constant theme during clinical sessions. Mr Minniti considers that it is an agoraphobic syndrome.
The Tribunal considers that the evidence which Mr El-Behidi gave at the hearing was truthful and it was provided to the best of his ability. The Tribunal accepts Mr Minniti’s evidence about the diagnosis, treatment and functional impact of Mr El-Behidi’s mental health condition. The functional impact is severe in relation to the necessity for regular support in self-care and independent living, the limitations in social and recreational activities and travel, the difficulties that he has with interpersonal relationships and his impaired capacity for concentrating and carrying out day to day tasks. The Tribunal is satisfied that he meets the descriptors (a), (b), (c) and (d) for a severe functional impact on activities involving mental health function. There is also some evidence about the disturbance to Mr El-Behidi’s behaviour, planning and decision-making, however it does not appear to be to the extent specified in the descriptors for 20 points and equates more with the descriptors for a moderate functional impact, for example, difficulty coping with stressful situations and succumbing to anger. However, as the Tribunal considers that four of the activities are within the descriptors for a severe functional impact it is not necessary that the activities involving behaviour, planning and decision-making (e) and work training capacity (f) also come within those descriptors.
The Tribunal is satisfied that there is a severe functional impact for Mr El-Behidi on activities involving mental health function and the applicable impairment rating is 20 points.
CONTINUING INABILITY TO WORK
The next issue for determination is whether Mr El-Behidi had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines a continuing inability to work as follows:
“Continuing inability to work”
(1)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support --the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself enough to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of within the next 2 years.
With an impairment rating of 20 points under a single Impairment Table, it follows that Mr El-Behidi has a severe impairment within the meaning of s 94(3B) of the Act and participation in a program of support is not required.
Dr Giordano has consistently provided his view that Mr El-Behidi is unfit for work or vocational training. In his report dated 20 October 2018 Dr Giordano wrote that Mr El-Behidi is: – “unfit for any work, training or study.”[45] His view prior to the qualification period was confirmed after the qualification period in his report dated 12 February 2020 in which he wrote that Mr El-Behidi is unable to work or undertake a training activity for 15 hours or more per week for the next 2 years.[46] Mr Minniti reported on 17 September 2020 that Mr El- Behidi :- “ would not be able to meet the demands of any level of employment of formal training.”[47] This is consistent with Mr El-Behidi’s presentation during psychology treatment with Mr Minniti, dating back to well before the qualification period. It is an unfortunate situation in view of Mr El-Behidi’s previous history and commitment to working and providing for his family.
[45] Exhibit 2, T 50, p 246
[46] Exhibit 2, T 19, p 144
[47] Exhibit 3
The JCA report written on 21 February 2020[48] assessed Mr El-Behidi’s baseline work capacity for light less skilled work as 8 to 14 hours per week and a capacity for work within two years with intervention at 15 to 22 hours per week. The assessment was based only on one permanent impairment, namely the spinal disorder, as the mental health condition and upper limb condition were not regarded as fully diagnosed, treated or stabilised. Even so, barriers to attaining a work capacity were identified and included limited physical abilities, chronic pain with endurance limitations, cross cultural issues, and limitations with concentration and episodic fluctuations. Significant support would be required to build Mr El-Behidi’s work capacity to a point where he could maintain employment. The intervention could include disability management education and counselling, vocational rehabilitation, counselling and cultural support, together with assessment and modifications to a workplace.
[48] Exhibit 2, T 21, p 146
Work is defined in s 94(5) of the Act as follows:
“‘work’ means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market”.
Having heard Mr El-Behidi’s’s evidence, and noting the medical and psychology evidence, the Tribunal is satisfied that Mr El-Behidi would have considerable difficulty in sustaining employment for at least 15 hours per week over a period of two years. This conclusion is drawn in relation to the functional impact of his spinal disorder and mental health condition and does not include any functional impact from the upper limb condition.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
“‘training activity’ means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) prevocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work related training (including on the job training)”.
Similar to his inability to work, Mr El-Behidi’s impairment as a result of his spinal condition and mental health condition was sufficient to prevent him from undertaking a training activity within the relevant period.
The Tribunal finds that Mr El-Behidi satisfies s 94(2)(a) and (b) of the Act and that he has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
Ms El-Behidi’s spinal condition was fully diagnosed, fully treated and fully stabilised. The appropriate rating is 10 points under the Impairment Tables.
Mr El-Behidi’s’s mental health condition was fully diagnosed, treated and stabilised during the qualification period. The appropriate rating is 20 points under the Impairment Tables.
The Tribunal finds that Mr El-Behidi’s upper limb condition was fully diagnosed during the qualification period. However it was not fully treated and not fully stabilised and an impairment rating under the Impairment Tables cannot be given.
With a total of 30 impairment points the criterion in s 94(1)(b) of the Act is satisfied.
Mr El-Behidi has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single Impairment Table.
In view of the finding that Mr El-Behidi has a severe impairment within the meaning of s 94(3B) there is no need for him to have actively participated in a program of support within the meaning of s 94(3C) of the Act.
The Tribunal is satisfied that Mr El-Behidi has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Mr El-Behidi is qualified to receive the Disability Support Pension from 27 September 2019.
107. I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.
……………[Sgnd]……………………
Administrative Assistant Legal
Dated: 4 June 2021
Date of hearing: 14, 20 January 2021 Advocate for the Applicant: Self-represented Advocate for the Respondent: Mr Domenic Nocera, SPARKE HELMORE LAWYERS
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