El-Omari and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3387

El-Omari and Secretary, Department of Social Services (Social services second review) [2021] AATA 3387 (22 September 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0089

Re:Amna El-Omari

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:22 September 2021

Place:Sydney

The decision under review is affirmed.

............................[SGD]............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the qualification period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Dr L Bygrave, Member

22 September 2021

INTRODUCTION

1. On 15 April 2019, Mrs Amna El-Omari lodged a claim for disability support pension.

2. Services Australia,[1] both initially and on review, rejected Mrs El-Omari’s claim for disability support pension on the basis that she did not meet the requirements set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

3. Mrs El-Omari applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 11 December 2019, the SSCSD affirmed the decision of Services Australia.

4. Mrs El-Omari subsequently made an application for review to the General Division of the Tribunal.

5. The application was heard by the Tribunal in Sydney on 10 September 2021. Mrs El-Omari attended the hearing by telephone conference and provided oral evidence with the support of Ms Rania El-Omari (her daughter) and the assistance of an interpreter of the Arabic language. Three of Mrs El-Omari’s children – Ms Rania El-Omari, Ms Fatmah Moussa (daughter) and Mr Ahmad El-Omari (son) – also gave oral evidence at the hearing.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and require Mrs El-Omari to show she has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mrs El-Omari must satisfy these criteria on the date she applied for disability support pension on 15 April 2019 or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the qualification period).

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis:

    …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).

14. The Secretary accepts, and I agree, that Mrs El-Omari has medical conditions that cause impairment and therefore, she satisfied paragraph 94(1)(a) of the Act during the qualification period.

15. It follows that the determinative issues for the Tribunal in this matter are whether, during the qualification period, Mrs El-Omari had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue 1 – Does Mrs El-Omari have an impairment rating of 20 or more points under the Impairment Tables?

    Mental health conditions

16. Mrs El-Omari’s mental health conditions of ‘severe anxiety/depression’ were first recorded in a medical certificate completed by Dr Raafat Soliman (general practitioner) on 13 June 2016, which stated that treatment included counselling and antidepressants.[2]

    [2] Exhibit T-T4, page 101.

17. A psychological assessment report by Ms Sana Zaarour (psychologist) on 22 July 2016 stated that Mrs El-Omari had been referred for psychological counselling by her doctor after she had presented with symptoms of depression. Ms Zaarour listed symptoms of major depression experienced by Mrs El-Omari, which she noted were triggered by ‘grief over her husband’s passing’ and appeared to be significantly impacting on her daily functioning.[3]

    [3] Exhibit T-T7, page 116.

18. Ms Hannan Dover (clinical psychologist) provided the following documents in relation to Mrs El-Omari: a medical certificate dated 10 August 2018; a letter dated 7 September 2018; a report dated 15 February 2019; a letter dated 7 June 2019; and a report dated 9 September 2020.

19. On 7 September 2018, Ms Dover reported Mrs El-Omari had ‘long-standing psychological issues’ since the death of her husband and, as well as ‘complicated grief’, had experienced post-traumatic stress disorder, anxiety and major depressive disorder.[4] She opined that Mrs El-Omari ‘needs to engage in psychological therapies to continue treatment’.[5]

    [4] Exhibit T-T14, page 132.

    [5] Exhibit T-T14, page 132.

20. Ms Dover provided a detailed report and ‘mental health function’ assessment for Mrs El-Omari on 15 February 2019, two months prior to Mrs El-Omari lodging her claim for disability support pension. In this report, Ms Dover stated that Mrs El-Omari had been diagnosed with post-traumatic stress disorder and persistent major depressive disorder, and outlined the history of treatment as follows:

    [Mrs El-Omari] has accessed psychological, medical, and GP sessions to address ongoing issues related to her functioning since her husband’s death in…2016… On 11.07.2018 her treating GP, Dr Rafaat Soliman referred her to our service to address her presenting psychological complaints. She was being prescribed Lexapro but was not improving on medication alone. He referred her to a clinical psychologist in addition to the psychopharmacological medications to reduce her symptoms. However, despite the best efforts to use all available and recommended treatment methods on top of her psychopharmacological medications prescribed by doctors and specialists, her symptoms have not decreased but in fact increased where more additional medical and psychological complaints are made.[6]

    [6] Exhibit T-T20, page 146.

21. Ms Dover further opined that Mrs El-Omari’s psychological conditions were fully diagnosed, treated and stabilised, and assessed her mental health function in relation to the criteria of self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity.

22. On 7 June 2019, during the qualification period, Ms Dover advised that Mrs El-Omari ‘continues to experience chronic and long-standing psychological issues preventing her from being able to study, work, or be reskilled’.[7] She further noted that Mrs El-Omari ‘needs to engage in psychological therapies to continue treatment’.[8]

    [7] Exhibit T-T28, page 199.

    [8] Exhibit T-T28, page 199.

23. Prior to the hearing, the Secretary filed:

    ·Mrs El-Omari’s ‘Medicare Patient History Report’, which showed she saw Ms Dover on 13 occasions between 18 July 2018 and 22 March 2019, and then five occasions between 7 June 2019 and 7 April 2020.[9]

    ·Mrs El-Omari’s ‘Pharmaceutical Benefits Scheme Summary’, which recorded that she was first prescribed and supplied escitalopram (Lexipro) on 19 March 2019.[10]

    [9] Exhibit R2.

    [10] Exhibit R1.

24. At the hearing, Mrs El-Omari’s oral evidence to the Tribunal was inconsistent. While she noted that she ‘gets angry and upset’ with ‘too many questions’, she attempted to respond to questions despite sometimes confusing her answers in relation to her psychological and physical conditions. In relation to her psychological conditions, Mrs El-Omari said that she attended sessions with Ms Dover but saw her less frequently after March 2019 because she lived ‘far away’ and relied on her children to take her to medical appointments. She also said that she first took antidepressant medication in March 2019 ‘for three days’ but then stopped because it made her ‘feel dizzy’. She said she instead took a natural supplement that her daughter, Ms Rania El-Omari, gave her and said that Rania could describe this to the Tribunal.

25. Ms Rania El-Omari gave clear and credible evidence to the Tribunal. She explained that Mrs El-Omari’s general practitioner, Dr Soliman, had prescribed antidepressant medication for Mrs El-Omari prior to 2018 but her mother had declined to take antidepressants; she then gave her mother a natural herbal supplement, ‘rescue remedy’, that she obtained from the pharmacy. Ms Rania El-Omari said her mother only commenced taking antidepressant medication (Lexapro) in September 2020, albeit not consistently. She further stated that Dr Soliman and Ms Dover had recommended Mrs El-Omari seek psychiatric review due to concerns about the state of her mental health in September 2020.

26. Based on the evidence before the Tribunal, I am satisfied that Mrs El-Omari’s conditions of post-traumatic stress disorder and persistent major depressive disorder were fully diagnosed, but not fully treated and stabilised during the qualification period. I find that Mrs El-Omari’s conditions were not optimally treated because she was not engaging with Ms Dover on a regular basis during this period as recommended in Ms Dover’s letter dated 7 June 2019; she had not commenced taking Lexapro, the antidepressant medication that her treating general practitioner had prescribed since 2016; and she had not seen a psychiatrist for pharmacological review. For this reason, I am unable to assign points in accordance with the Impairment Tables Determination.

    Eye condition

27. Dr Neville Lai Kwon (eye physician and surgeon) provided reports reviewing Mrs El-Omari’s eye condition on 6 May 2016, 8 February 2018, 20 June 2019, 10 October 2019 and 31 January 2020.

28. On 20 June 2019, Dr Lai Kwon stated that Mrs El-Omari sustained an injury to her right eye during childhood and has ‘counting finger vision only in the right eye’, and has long sightedness in her left eye ‘which is correctable with spectacles to 6/9 vision’.[11] He advised that she wears ‘spectacles on a continuous daily basis for distance and reading vision’.[12]

    [11] Exhibit T-T29, page 200.

    [12] Exhibit T-T29, page 200.

29. Dr Lai Kwon further wrote on 31 January 2020, more than six months after the qualification period, that Mrs El-Omari’s:

    …visual acuity is counting fingers in the right eye and 6/12 in the left eye corrected. She has a pair of spectacles which she is to use on a daily basis.

    She has vascularised pterygium on the left eye which is encroaching upon the visual axis. She may eventually require removal of the pterygium. The right intra-ocular lens is being tolerated well. She has a clear lens on the left side.

    There is right macular scar following a previous right retinal detachment. The left fundus is normal. Her ocular pressures are normal.[13]

    [13] Exhibit A1.

30. At the hearing, Mrs El-Omari’s son, Mr Ahmad El-Omari said he had witnessed his mother walking into objects due to her ‘blurry vision’ even when she was wearing spectacles.

31. Based on the medical evidence, I am satisfied that Mrs El-Omari’s eye condition was fully diagnosed, fully treated and fully stabilised during the qualification period. Having regard to Table 12 – Visual Function in the Impairment Tables Determination, I am satisfied Mrs El-Omari’s condition has a mild functional impact on activities involving visual function and assign five points. I further find there is no evidence that Mrs El-Omari meets the criteria to assign a rating of ten points because she does not need ‘to use vision aids or assistive devices other than spectacles’; for this reason, I cannot assign a higher rating for Ms El-Omari’s eye condition in accordance with Table 12 – Visual Function.

    Osteoarthritis – lower limbs (knees)

32. Medical imaging of Mrs El-Omari’s knees by Dr Shane Connolly (radiologist) on 6 May 2016 concluded she had ‘moderately marked degenerative changes medial compartment on the left’.[14] A report by Mr Jun Yan Zhou (physiotherapist) dated 10 August 2016 and Mrs El-Omari’s Medicare Patient History Report noted Mrs El-Omari subsequently presented for physiotherapy treatment for ‘chronic bilateral knees pain’ on three occasions between 20 July 2016 and 17 August 2016.[15]

    [14] Exhibit T-T5, page 114.

    [15] Exhibit T-T8 and R2.

33. Further medical imaging of Mrs El-Omari’s knees by Dr David Boshell (radiologist) on 25 March 2019 concluded she had ‘osteoarthritis of the left knee, particularly in the medial compartment’ and ‘changes of early patellofemoral compartment osteoarthritis on the right [knee]’.[16] However, there is no evidence that Mrs El-Omari undertook any reasonable treatment in relation to her knees after this diagnosis or during the qualification period.

    [16] Exhibit T-T22, page 158.

34. Dr Mark Liew (rheumatologist) provided reports dated 29 January 2020, 9 April 2020 and 14 September 2020. On 29 January 2020, more than six months after the qualification period, Dr Liew diagnosed Mrs El-Omari with ‘advanced osteoarthritis’ to her left knee and ‘to lesser extent’ her right knee, and stated that an ‘intra-articular cortisone injection may afford temporary symptomatic relief but will not improve her function nor her prognosis’.[17] Dr Liew further reviewed Mrs El-Omari and provided a report dated 9 April 2020 in which he opined she was ‘fully diagnosed, managed and stabilised’ and her ‘symptoms and disabilities are permanent given [the] primarily degenerative nature of her disease’.[18] Most recently, Dr Liew reported on 14 September 2020 that ‘total knee replacement surgery…will probably improve her symptoms and functional capacity’ but he doubted she will have any surgery in the ‘foreseeable future’.[19]

    [17] Exhibit A5.

    [18] Exhibit A6.

    [19] Exhibit A10.

35. At the Tribunal hearing, Mrs El-Omari and Ms Rania El-Omari confirmed that Mrs El-Omari first saw Dr Liew for specialist review and assessment of her bilateral knees condition in January 2020, a period of more than six months after the qualification period.

36. Based on the evidence, I am satisfied that Mrs El-Omari’s condition of osteoarthritis in her knees was fully diagnosed, but not fully treated and fully stabilised during the qualification period. This is because Mrs El-Omari did not receive specialist review for treatment until more than six months after the qualification period. This means I cannot be satisfied her condition was permanent during the qualification period, and therefore, I cannot assign points in accordance with the Impairments Tables Determination.

    Osteoarthritis – upper limbs (hands) and right thumb injury

37. In January 2019, Mrs El-Omari presented to Auburn Hospital with a deep laceration and numbness in her right thumb. The wound was cleaned and dressed, and she subsequently attended the hospital plastics clinic for review. The hospital discharge comments noted that Mrs El-Omari preferred to follow up with her general practitioner.[20]

    [20] Exhibits T-T15 and T-T16.

38. A report by Ms Kylie Jorgenson (senior physiotherapist in hands at Blacktown Hospital) dated 31 January 2019 noted that Mrs El-Omari attended an appointment two and a half weeks after right thumb laceration and suturing. Ms Jorgenson reported Ms El-Omari’s thumb was stiff and swollen, outlined treatment and recommended she practice exercises ‘five times daily’ and ‘use her hand normally for all light to moderate tasks’.[21] A further undated report by Mr Blake Palmer (physiotherapist) noted Mrs El-Omari was still attending Blacktown Hospital post thumb laceration and continued to experience stiffness/numbness; he recommended an MRI and referral to a hand specialist.[22]

    [21] Exhibit T-T18, page 144.

    [22] Exhibit T-T25, page 194.

39. An ultrasound of Mrs El-Omari’s right thumb and left second finger (amended report dated 3 April 2019) found a ‘partial tear of the [right] flexor pollicis longus tendon’ and ‘lesion arising from the left second digit nail bed’.[23]

    [23] Exhibit T-T23, page 160.

40. Dr Liew’s reports dated 29 January 2020, 9 April 2020 and 14 September 2020 also reviewed Mrs El-Omari’s thumb. On 29 January 2020, Dr Liew diagnosed Mrs El-Omari with ‘advanced osteoarthritis base of thumb bilaterally’ and, on 14 September 2020, he stated that ‘bilateral hand surgery will probably improve her symptoms and functional capacity’ but doubted she will have ‘any surgery in the foreseeable future’.[24]

    [24] Exhibits A5 and A10.

41. Based on the evidence, I am satisfied that Mrs El-Omari’s conditions in her hands and right thumb were fully diagnosed, but not fully treated or fully stabilised during the qualification period. This is because she did not see Dr Liew for specialist review and assessment until January 2020, more than six months after the qualification period. As I find Mrs El-Omari’s conditions were not permanent during the qualification period, I am unable to assign points in accordance with the Impairment Tables Determination.

    Other conditions

42. Medical certificates completed by Dr Soliman on 13 June 2016 and 5 September 2016 noted that Mrs El-Omari was diagnosed with hyperthyroidism and hypertension, and experienced symptoms of persistent headaches and hand tremors.

43. There are no recent medical reports or other evidence of specialist review in relation to these conditions. Therefore, I am unable to find these conditions were fully diagnosed, fully treated and fully stabilised during the qualification period, and cannot assign points for these conditions under the Impairment Tables Determination.

    CONCLUSION

44. For the reasons set out above, I am satisfied Mrs El-Omari did not meet the requirements of paragraph 94(1)(b) of the Act during the qualification period because her impairments were not rated at 20 points or more under the Impairment Tables.

45. As I find that Mrs El-Omari did not qualify for the disability support pension during the qualification period, it is not necessary to consider whether she had a continuing inability to work.

    DECISION

1. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.....................[SGD]...................................................

Associate

Dated: 22 September 2021

Date(s) of hearing:	10 September 2021
Advocate for the Applicant:	Ms Rania El-Omari
Solicitors for the Respondent:	Ms Cara Hammerton, Services Australia