El Hawli; Secretary, Department of Social Services and

[2016] AATA 197

El Hawli; Secretary, Department of Social Services and [2016] AATA 197 (31 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1488
Re	Secretary, Department of Social Services
APPLICANT
And	Charif El Hawli
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	31 March 2016
Place	Sydney

The decision under review is set aside and, in substitution, a decision that during the claim period Mr El Hawli did not have an Impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for disability support pension.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension –– whether conditions fully diagnosed, treated and stabilised - impairment ratings – continuing inability to work – whether mental health condition 20 points under the Impairment Tables – decision set aside

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

31 March 2016

1. In May 2012 Mr El Hawli, who is 45 years old, was injured in a work related accident and is still pursuing a compensation claim.

2. In February 2013, Mr El Hawli applied to Centrelink for Carer Payment and Care Allowance with respect to his two sons. He was paid those entitlements from February 2013 to May 2014.

3. On 9 September 2014, Mr El Hawli lodged a claim for disability support pension (DSP) on the basis that he suffered several medical conditions which were having an impact on his ability to function.

4. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

5. In a decision dated 24 February 2015, the former Social Security Appeals Tribunal (SSAT) found that Mr El Hawli had a total impairment rating of 25 points, with 20 points under Impairment Table 5 and 5 points under Impairment Table 4, so that he satisfied section 94(1)(b) of the Act.

6. The SSAT also found that Mr El Hawli had “a continuing inability to work” so that he satisfied section 94(1)(c) of the Act and, therefore, qualified for DSP.

7. In these proceedings the Secretary, Department of Social Services (the Secretary) seeks review of the decision of the SSAT.

8. At the hearing Mr El Hawli was self-represented and was assisted by his wife and an interpreter of the Arabic language.

   ISSUES

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

10. Section 94(1) of the Act provides that a person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work as defined by the Act.

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

12. In his claim form Mr El Hawli lists the following disabilities:

    permanent bilateral high tone sensorineural deafness, adjustment disorder with depressed mood, neck pain with radiculopathy, back and buttock pain, foot pain, migraine, GOR.

13. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

14. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

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

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

16. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

17. The Applicant contends that Mr El Hawli’s impairment, during the claim period, was 5 points under Impairment Table 5 so that he did not satisfy s 94(1)(b) of the Act.

18. Alternatively, the Applicant contends that, during the claim period, Mr El Hawli could not satisfy section 94(1)(c) of the Act as he did not have a “continuing inability to work” because he did not have a “severe impairment” as defined in the s 94(3B) of the Act and had not actively participated in a program of support (POS) as required by s 94(2)(aa) of the Act.

19. Mr El Hawli’s Centrelink POS record shows that, prior to his application for DSP, he had not actively participated in a POS for the required time, which means that he could not satisfy section 5(2) of the POS determination. 

20. Therefore, the determinative issue in this matter is whether, during the claim period, Mr El Hawli suffered a “severe impairment” as defined in s 94(3B) of the Act, that is, 20 points or more under a single Impairment Table. If so, the Tribunal must consider whether the impairment was of itself sufficient to prevent him from doing any work independently of a POS or undertaking a training activity during the next two years as required by sections 94(2)(a) and 94(2)(b) of the Act.

    HEARING LOSS

21. In a Centrelink Medical Report dated 8 September 2014, Dr Alsayed, GP, lists “permanent bilateral high tone sensorineural deafness due to acoustic trauma” as a medical condition with most functional impact and states that Mr El Hawli was referred to two ENT specialists and an audiologist. He provides no details with respect to these consultations apart from a statement that “bilateral pure tone Audiogram was carried out in the usual soundproof booth. And it showed he has bilateral high tone sensorineural deafness”.

22. Dr Alsayed notes impact on ability to function as “bilateral hearing loss” but provides no other details.

23. In a letter dated 5 November 2014, Dr Alsayed states that “Mr Elhawli suffers from hearing loss bilaterally more significant on the left. He was assessed by specialist and he requires hearing aid to be fitted in his left ear” but provides no other details with respect to the functional impact on Mr El Hawli’s activities involving hearing.

24. At the hearing Mr El Hawli indicated that he does not have a hearing aid.

25. I accept that, during the claim period, Mr El Hawli’s medical condition of “bilateral hearing loss” was permanent for the purposes of the Impairment Determination. However, in my view, there is insufficient corroborative evidence before the Tribunal to allow for any reasonable assessment of the functional impact of this condition on activities involving hearing so that a rating under Impairment Table 11 cannot be applied.

    MENTAL HEALTH CONDITION

26. At the hearing, after additional oral evidence from Mr El Hawli and Dr McDonald, psychiatrist, the advocate for the Secretary conceded and the Tribunal agreed that, during the claim period, Mr El Hawli suffered a mental health condition that was permanent for the purposes of the Impairment Determination.

27. Mr El Hawli contends that, during the claim period, he suffered a “severe impairment” because of his mental health condition so that a rating of 20 points under Impairment Table 5 should be applied.

28. Mr El Hawli also claims that his condition has got worse over time.

29. The Applicant contends that, during the claim period, Mr El Hawli suffered a “mild impairment” because of his mental health condition so that a rating of 5 points under impairment Table 5 should be applied.

30. In a letter dated 26 October 2015, Mr El Hawli states inter alia the following:

    I am receiving constant care from my wife… I am not able to totally care for my self (sic) as I suffer severe physical, psychological and mental behaviours and therefore I am not capable to be or do every day activities including work… My wife and carer has never left caring for me… although she did take a break in 2014 but only for less than 6 weeks. During her break I had immediate family and friends looking after me…

    Medical evidence

31. In a letter dated 21 January 2014 Mr Girgis, clinical psychologist, notes that Mr El Hawli presents with symptoms of “anxiety, low mood, insomnia, irritability, lack of energy, decreased motivation, and indecisiveness” and suffers physical symptoms such as “heart palpitations, sweating, panic, and tightness in his chest”.

32. Mr Girgis makes a diagnosis of “Major Depressive Disorder” and “Panic Attacks” and states that Mr El Hawli is involved in Cognitive Behavioural Therapy (CBT). 

33. Mr Girgis describes CBT as “a short term evidence-based treatment approach focussed on providing clients with coping skills to manage their emotional difficulties more effectively”.

34. In a letter dated 20 May 2014 which, apart from different recommendations, is essentially a copy of the earlier letter, provides no additional information. 

35. In a Psychological Evaluation dated 22 August 2014, which appears to be directed at Mr El Hawli’s compensation claim, Mr Girgis states that Mr El Hawli was referred by his GP for the “assessment and management of his psychological difficulties following his ongoing difficulties after a work related injury he was involved in, on 3^rd May 2012”. He indicates that Mr El Hawli was initially seen on 28 November 2013 and had been seen on 18 occasions up until 4 August 2014.

36. Mr Girgis notes inter alia the following:

    Mr Elhawli (sic) reported that the unfair treatment he has been receiving by Allianz have exacerbated both his physical and psychological symptoms… reported numerous psychological disturbances following the work related injury… presented as a polite individual dressed in neat casual attire… his intelligence is estimated to be within the normal range, however cognitive functions have been effected as he has difficulty concentrating and difficulty with memory… he appeared to process thoughts coherently and his perception phenomena revealed no hallucinatory experiences, nor any bizarre or psychotic occurrences… He also reported a number of avoidance behaviours such as trying to be alone, and evading social situations… he does not enjoy socialising with others as he once used to… exhibits poor adjustment and coping with his physical injury which have manifested into psychological disturbances… takes antidepressant medication… his relationship with his wife has been affected… spends most of his time at home doing minimal activities due to his severe pain… he depends on his wife and children to assist him with some of his daily routines… Mr Elhawli also enjoyed spending time with his family and going on family outings. He has however withdrawn from such activities…

37. Mr Girgis makes a diagnosis of “Adjustment Disorder with Depressed Mood and Panic Attacks” and strongly recommends continuation of CBT.

38. A GP Management Plan dated 28 August 2014 lists current medication which includes chlorpromazine 25mg twice daily and quetiapine 100mg daily.

39. In a letter dated 5 November 2014 Dr Alsayed notes that Mr El Hawli suffers from Major Depression Disorder and complains of “poor memory, depressed mood, lack of energy and social isolation” and “strong anti-depression medication”, namely, venlafaxine 150mg daily and reports that he has become socially withdrawn and has reduced his social activities and social contacts.

40. In a letter dated 14 October 2015, Mr Girgis states that initially Mr El Hawli was diagnosed with Adjustment Disorder with Depressive Mood and secondary Panic Attacks but after subsequent consultation it has become apparent that “Mr El-hawli suffers from a mood disorder classified as Major Depressive Disorder” and also “Panic Attacks secondary to his mood disorder”. Mr Girgis recommends continuing CBT and Graduated Exposure Therapy.

41. In a report dated 18 August 2015 Dr McDonald, psychiatrist, states inter alia the following:

    Mr Elhawli stated that his emotional and psychological problems commenced following the accident in May 2012… he required surgery on his left ear. He spent one night in hospital and was discharged… He said he is constantly angry and wants to break things. He wants to isolate from others. He feels depressed and anxious… insignificant things make him angry, especially with his wife and his three children… he used to take the kids to sport, but now he mostly leaves this to his wife… after arising about 7:00am, he drinks coffee and watches TV before going to bed and sleeping from about 10:00am to midday… he sits outside his home. He goes for frequent strolls. A good friend visits most days and they talk and this makes him feel better. He drives a car, but he stated that his doctor advised to only drive short distances because he feels “drowsy”… Mr Elhawli stated his wife does all the housework… if she requests assistance, it makes him angry. He stated he does not do any home chores… he goes shopping with his wife about weekly or “when he feels like it” according to his wife… In the evenings, he goes for another walk… Sometimes he spends time speaking with the kids… He takes the antidepressant medication, Efexor 75mg one-and-half tablets (112.5mg) daily… chlorpromazine about twice a week for insomnia… He also takes the sedating anti-psychotic quetiapine twice daily… his level of self-care and hygiene was good. His mood was dysphoric. His affect was at times animated.  He was preoccupied with, and focussed on, the injury in May 2012, which he felt changed the course of his life… there were no signs of cognitive deficit. He was animated talking about his injuries and the injury that he had suffered. 

42. Dr McDonald makes a diagnosis of “Adjustment disorder with depressed and anxious mood” and comments that this is a broad diagnostic classification that “does not automatically infer unfitness for work”. He notes that Mr Elhawli attributes his irritable mood entirely to the injury of May 2012 and comments that “such an outcome appears greater than I would expect in normal circumstances, that is, the development of a chronically depressed irritable mood seems to be inordinate, given that he only required one night in hospital to repair his ear lobe and does not appear to have suffered a serious head injury”.

43. Dr McDonald expresses the opinion that the adjustment disorder is moderate and not severe and that, ideally, returning to the workforce would enhance his prognosis and comments that Mr El Hawli is likely to remain unfit for work, despite his stated desire to return to work, because of “his pain and musculoskeletal problems”.  He goes on to say that the adjustment disorder is complicated by a “negative mindset and an adoption of an invalidity role” and that the symptoms are chronic and “would have been similar during the relevant period”.

44. Dr McDonald expresses the opinion that Mr El Hawli is on reasonable antidepressant medication, venlaxafine 112.5mg daily, but that the anti-psychotic medications, quetiapine and chlorpromazine may be contributing to his lethargy and weakness and that he would cease these two drugs. He also opines that psychotherapy, including CBT, is unlikely to be of further benefit.

45. Dr McDonald states that Mr El Hawli’s adjustment disorder has become quite entrenched over the last three years and he appears to have adopted an “invalidity-type role, which probably perpetuates his adjustment disorder and his self-sabotaging” so that the prognosis is guarded.

46. Dr McDonald expresses the opinion that Mr El Hawli’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period and “that there may be up to a moderate impact on activities involving mental health function. This scores up to 10 points under Table 5 Mental Health Function”. He also states the following:

    Mr Elhawli says he lives a restricted lifestyle but there is no indication of difficulty with maintaining self-care. He goes for regular strolls and has daily meetings and conversations with his good friends. He drives the car and goes shopping. He engaged in an animated way during our interview and, despite the history of irritability, he appears to have a close and supportive relationship with his wife. He provided a vague history but there was nothing to indicate cognitive deficits. From a psychiatric perspective, I am of the opinion that he is medically fit for work. 

47. In oral evidence Dr McDonald agreed with Mr Girgis’ assessments that Mr El Hawli presents with symptoms consistent with “anxiety and depression” but did not agree with the dual diagnosis of Major Depressive Disorder and Panic Attacks or his approach to treatment.

48. Dr McDonald expressed the opinion that Mr El Hawli’s constellation of symptoms can be characterised by a single diagnosis, that is, “Adjustment Disorder with depressed and anxious mood”. He noted that in his letters Mr Girgis stated that CBT is a short term treatment and agreed that CBT is useful in treating symptoms of depression and anxiety but, if the there is no improvement within 6 to 12 months, it is unlikely to provide further benefit.

49. Dr McDonald noted that despite adequate antidepressant medication and more than two years of CBT there has been no improvement in Mr El Hawli’s symptoms and indicated that CBT and Graduated Exposure Therapy may be counterproductive in Mr El Hawli’s situation because he appears to have adopted an invalidity and sickness role. He suggested that a workplace rehabilitative treatment model would be a better approach.

    Other evidence 

50. In two Care Needs Assessment Forms dated 19 December 2013, which are required to be filled by the person providing the care, Mr El Hawli declared that he provides constant care to both sons on a daily basis and that they need “a lot of help” with everyday tasks and that he spends about one hour per day in preparing and administering medications for each child.

51. On 3 June 2014 Mr El Hawli submitted a claim for Carer Allowance on the basis that he personally was providing additional care and attention to his youngest son for 7 days per week.

52. At the hearing, Mr El Hawli agreed that he had signed the documents noted above but when questioned about the care he had provided to his sons during 2013 and 2014 he was somewhat evasive and did not provide a coherent explanation with regard to his actual role in their care.

    Consideration

53. The evidence with respect to the impairment suffered by Mr El Hawli because of his mental health condition, during the claim period, I find to be somewhat problematic in that it is largely based on his self-report of symptoms and appears to be coloured by his focus on his work injury and compensation claim.

54. The three letters provided by Mr Girgis dated 21 January 2014, 20 May 2014 and 14 October 2015 are somewhat repetitive and unhelpful as they essentially document Mr El Hawli’s self-report of symptoms and provide a diagnosis but do not provide a meaningful assessment of functional impairment.

1. Mr Girgis’ psychological evaluation of 22 August 2012 appears to be directed at Mr El Hawli’s compensation claim with Allianz Insurance and, in my view, does not provide a convincing assessment with respect to the descriptors in Impairment Table 5.

2. Dr Alsayed’s letter of 5 November 2014 also documents Mr El Hawli’s self-report of symptoms but does not sufficiently address the relevant descriptors in Impairment Table 5.

3. The most persuasive evidence was provided by Dr McDonald who not only documents Mr El Hawli’s symptoms but also provides the most comprehensive assessment of his overall mental health condition.

4. The declarations made by Mr El Hawli with respect to the additional daily care he provided to his sons during 2013 and 2014 are inconsistent with the claim, in his letter of 26 October 2015, that he is “receiving constant care” from his wife. They are also inconsistent with his claim that, during the claim period, he was suffering a “severe impairment” because of his mental health condition.

5. If I accept that his declarations at that time were honest I could accept that he may have been able to provide the claimed care if he had suffered a mild to moderate impairment, but I do not accept that he could have undertaken the claimed care if his impairment had been “severe”. Also, there is no evidence to suggest that Mr El Hawli suffered significant deterioration in his mental health condition during the last 3 months of 2014.

6. However, after due consideration of all the available evidence and the descriptors in Impairment Table 5, I am satisfied that during the claim period, Mr El Hawli suffered a moderate impairment on activities on mental health function and that a rating of 10 points can be applied.

   OTHER MEDICAL CONDITIONS

7. X-rays of the chest, ribs, skull, thoracic and lumbar spine, pelvis, right and left humerus, right and left femur/hips, right and left knees and cervical spine performed on 29 August 2012 revealed no abnormalities.

8. In a report dated 8 April 2012, which is clearly provided for the purposes of Mr El Hawli’s   compensation claim Dr Guirgis, orthopaedic surgeon, lists numerous physical symptoms which Mr El Hawli attributes to his work accident in May 2012.

9. Dr Guirgis describes various abnormalities on physical examination and states that the accident in 2012 has resulted in various musculoskeletal “sprain/strain” injuries including the spine, right shoulder and left knee.

10. Dr Guirgis concludes that Mr El Hawli’s employment “was a substantial contributing factor” to the “injuries described” and to Mr El Hawli’s “symptoms, signs, incapacities and disabilities” but does not provide any explanation for his conclusion. In particular, he does not explain how a relatively minor accident can cause persistence of symptoms for almost two years without objective evidence of injury.

11. In a letter dated 25 August 2014 Mr Gebara, optometrist, notes that Mr El Hawli’s vision in the right eye was 6/36 and 6/12 in the left eye which corrected to 6/6 in both with appropriate lenses.

12. In his report of 8 September 2014 Dr Alsayed lists “Back and buttock pain, nerve pain with radiculopathy, migraine, gastro-oesophageal reflux” as medical conditions that are generally well managed and cause minimal or limited impact but provides no other details.

13. In his letter of 5 November 2014, Dr Alsayed states inter alia the following:

    Charif complains of constant pain to the lumbar spine area aggravated by long sitting or standing. This is also aggravated by repetitive work… has a history of discopathy causing lower back pain radiating to his lower limbs… he is still receiving remedial therapy and pain management to restore as much as possible of his Lumbar spine functions… his back condition has stated few years ago (sic), fully treated and stabilised and no more improvement is expected… he also complains of shoulder pain which aggravated by lifting his shoulder up or by carrying objects. The pain was described by the patient as a shooting pain with numbness on the lateral side of the shoulder… he stated that it was very difficult to get dressed. Anything that required movement of the shoulder was problematic… he was referred to physiotherapy and injection under ultrasound which provided minimal improvement… his mobility was markedly reduced and he finds that his back ache if he walks too far and he feels uncomfortable if he walks on uneven ground… on examination of the lumbar spine there was restriction of all lumbar spine movements… he was able to sit up to 20 minutes before changing his posture, standing up to 10 minutes with pain and walking up to 15 minutes… could manage weights up to 2 kg in both hands but not for a long time… lifting from floor to waste was not possible because of restricted lumbar spine flexion… neck and back condition has been fully diagnosed, treated and stabilised…

14. In a very brief letter dated 14 December 2015 Dr Hassan, neurologist, states Mr El Hawli:

    has slowly progressive right hemiparesis (partial paralysis in the right upper and lower limbs). This is most likely due to MS (multiple sclerosis). His condition is likely to either remain stable or worsen in future. He has difficulty walking for prolonged periods (sic) and using his right upper limb.

    Consideration

15. The evidence with respect to Mr El Hawli’s other medical conditions can best be described as incomplete.

16. Dr Alsayed’s assessment of the ‘back and shoulder pain’ is based on Mr El Hawli’s self-report of symptoms with no reference to diagnosis or objective evidence of relevant pathology.

17. Dr Guirgis’ assessment is also not supported by objective evidence of pathology and his conclusion with respect to the contribution by Mr El Hawli’s employment is, in my view, unreliable.

18. Accordingly, I am satisfied that there is insufficient corroborative evidence before the Tribunal to support a conclusion that, during the claim period, Mr El Hawli’s “back and shoulder pain” was fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.

19. There is no evidence before the Tribunal with respect to the conditions of “migraine” or “GOR” so that a rating under the Impairment Tables cannot be applied.

20. Mr El Hawli’s visual impairment can be corrected with glasses so that a rating of nil points under Impairment Table 12 can be applied.

21. The relevance of Dr Hassan’s diagnosis of MS to Mr El Hawli’s physical symptoms is unclear and so there is insufficient evidence to support any reasonable conclusion.

22. Furthermore, the diagnosis was made about 12 months after the end of the claim period and there in no reference to this condition prior to, or during, the claim period so this condition cannot be considered in the current review. It may be relevant to a future claim.

    DECISION

23. For reasons set out above I am satisfied that, during the claim period, Mr El Hawli had a total rating of 10 points under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

24. Therefore, it is unnecessary for me to consider whether, during the claim period, Mr El Hawli satisfied section 94(1)(c) of the Act.

25. The decision under review is set aside and, in substitution, a decision that during the claim period Mr El Hawli did not have an Impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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Associate

Dated 31 March 2016

Date(s) of hearing	7 March 2016
Solicitors for the Applicant	Department of Human Services
Respondent	In person