Gazawe and Secretary, Department of Social Services (Social services second review)

[2016] AATA 303

Gazawe and Secretary, Department of Social Services (Social services second review) [2016] AATA 303 (12 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/0352
Re	Mohammed Gazawe
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	12 May 2016
Place	Sydney

The decision under review is affirmed.

...............................[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 applicant suffered severe functional impact on activities – decision affirmed

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

12 May 2016

1. In 2006, Mr Gazawe was injured in a work related accident and has not been employed since that time. He had been in receipt of regular worker’s compensation payments from 2006 until they were ceased in October 2013.

2. On 5 February 2014, Mr Gazawe 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.

3. 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.

4. In a decision dated 15 December 2014, the former Social Security Appeals Tribunal (SSAT) found that Mr Gazawe had a total impairment rating of 20 points, with 10 points under Impairment Table 5 and 10 points under Impairment Table 4, so that he satisfied section 94(1)(b) of the Act.

5. However, the SSAT found that Mr Gazawe did not satisfy section 94(1)(c) of the Act. In particular, he did not satisfy s 94(2)(aa) of the Act because he had not actively participated in a program of support (POS).

6. In these proceedings Mr Gazawe seeks review of the decision of the SSAT.

7. At the hearing Mr Gazawe was self-represented and was assisted by his son and an interpreter of the Arabic language.

   ISSUES

8. In order to qualify for DSP Mr Gazawe 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 5 February 2014 and 7 May 2014 (the claim period).

9. 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.

10. The Respondent concedes and the Tribunal accepts that Mr Gazawe 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.

11. For present purposes the relevant medical conditions include a spine condition, a mental health condition and an upper limb condition.

12. 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)).

13. 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)).

14. 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”.

15. 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)”.

16. The Respondent concedes that, during the claim period, Mr Gazawe had a total rating of 20 points under the Impairment Tables with 10 points under Table 4 and 10 points under Table 5 so that he had satisfied section s 94(1)(b) of the Act.

17. However, the Respondent contends that, during the claim period, Mr Gazawe could not satisfy section 94(1)(c) of the Act as he did not have a “continuing inability to work” because he had not actively participated in a POS as required by section 94(2)(aa) of the Act.

18. Section 94(2)(aa) provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C)”.

19. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

20. Subsection 5 of the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 (the POS Determination) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

21. The is no evidence before the Tribunal that Mr Gazawe had participated in a POS during the 36 months prior to the date of claim which means that his application for review cannot succeed unless he suffered a “severe impairment” during the claim period.

22. Mr Gazawe submits that, during the claim period, he suffered a severe functional incapacity due to his lumbar spine condition so that a rating of 20 points under Impairment Table 4 should be applied. In his submission he relies on a letter dated 14 July 2015 provided by his current GP, Dr Abdalla.

23. It follows that the determinative issue in this matter is whether, during the claim period, any of Mr Gazawe’s medical conditions warranted a rating of 20 points or more under a single Impairment Table.

    SPINAL FUNCTION

24. At the hearing Mr Gazawe told the Tribunal that he lives alone in a one-bedroom unit on the second floor. He said that he has some difficulty with the steps to his unit but can manage at his own pace with the aid of a walking stick or the hand rails. He said that he uses a walking stick only when his pain is more severe and described a walking and standing tolerance of less than 60 minutes and a driving tolerance of about 30 minutes. 

25. In a WorkCover NSW certificate of capacity dated 28 February 2013 Dr Guirgis, orthopaedic surgeon, states that Mr Gazawe has “capability for some type of employment from 28-2-2013 to 28-8-2013 for 4 hours/day 5 days/week”.

26. Dr Guirgis lists the following activity tolerances and states that he does not anticipate any change in the subsequent 6 months:

    Lifting/carrying capacity  - 10kg and not on a repeated basis

    Sitting tolerance   - Up to 60 minutes at a time

    Standing tolerance   - Up to 60 minutes at a time

    Pushing/ pulling ability            - 10kg and not on a repeated basis

    Bending/ twisting/ squatting ability      - No repeated

    Driving ability   - Up to 60 minutes at a time

27. In a Centrelink Medical Report dated 26 November 2013 Dr Said, GP, lists “chronic lower back pain, pain both shoulders” as a medical condition with most impact but provides no details with respect to impact on ability to function.

28. In a Centrelink Medical Report dated 30 January 2014 Dr Said lists “Chronic low back pain post work injury” as a medical condition with “significant impact” but again provides no details with respect to impact on ability to function.

29. In a report dated 3 March 2014 Dr Mitchell, occupational physician, notes that Mr Gazawe described activity tolerances before an increase in pain symptoms as “sitting for between 30 and 40 minutes; standing for 30 minutes; walking for between 30 and 40 minutes; lifting between 5 and 6 kg; and driving and travelling between 30 and 40 minutes”.

30. Dr Mitchell concluded that Mr Gazawe “has a reduced residual functional capacity” due to his current symptoms but had a current “capacity for suitable duties employment” and with certain task precautions should be able to manage normal hours of employment.

31. In a Job Capacity Assessment report submitted on 26 March 2014 the assessor states inter alia the following:

    Client reported discomfort walking more than 20 minutes and standing more than 15 minutes. He was observed to sit with minimal discomfort for 45 minutes in the JCA interview.  He reported no difficulty with aspects of self-care and stated that he is able to manage his daily duties at a reduced pace independantly (sic).

32. In a brief letter dated 14 July 2015 Dr Abdalla, GP, states that Mr Gazawe complains of daily lower back pain and has a low tolerance with sitting, standing and walking and is unable to bend down.

33. Dr Abdalla expresses the opinion that Mr Gazawe has severe functional incapacity due to his lumbar spine injuries and that he would qualify for 20 points under the social security Impairment Tables.

34. I note that at the hearing Mr Gazawe agreed that his first attendance at Dr Abdalla’s practice was in May 2015.

    Consideration

35. The evidence with respect to the impact of Mr Gazawe’s spine condition on activities involving spinal function during the claim period, in my view, can best be described as incomplete and somewhat inconsistent.

36. However, on due consideration of the available evidence and the descriptors in Impairment Table 4, I am satisfied that, during the claim period, a rating of 10 points can be applied.

37. I am not persuaded that the available evidence would support a conclusion that, during the claim period, Mr Gazawe suffered a severe functional impact on activities involving spinal function.

38. I have placed no weight on the opinion expressed by Dr Abdalla in his letter of 14 July 2015 on the basis that, in my view, he did not provide adequate reasons for his opinion, his opinion was inconsistent with the other evidence and he had not seen Mr Gazawe until 12 months after the end of the claim period.

    MENTAL HEALTH CONDITION

39. In a letter dated 12 February 2009 Dr Ali, psychiatrist, states that Mr Gazawe suffers from “Dysthymia (chronic depression)”.

40. In a letter dated 23 April 2015, Dr Ali states that he reviewed Mr Gazawe on 16 June 2014 and had been seeing him from time to time since then.

41. Dr Ali confirms his earlier diagnosis of “Dysthymia” and notes that Mr Gazawe has been treated with various antidepressant medications for a long time and that his symptoms have become chronic and are going to persist indefinitely.

42. In a letter dated 1 May 2015, Dr Ali provides an assessment of functional impact on activities involving mental health function and expresses the opinion that a rating of 10 points under the Impairment Tables would be appropriate.

43. On consideration on the available evidence and the descriptors in Impairment Table 5 I am satisfied that, during the claim period, a rating of 10 points can be applied.

44. In my view, there is no evidence to satisfy the Tribunal that, during the claim period, Mr Gazawe suffered a severe functional impact on activities involving mental health function.

    UPPER LIMB FUNCTION

45. Ultrasound examinations of the left shoulder performed in October 2007 are reported as showing mild infraspinatus and supraspinatus tendinopathy associated with mild sub-deltoid bursitis.

46. An ultrasound examination of the right shoulder performed in March 2008 is reported as showing mild sub-deltoid bursitis.

47. A report dated 16 November 2009 notes that a right subacromial bursal injection was performed.

48. In his report of 3 March 2014, Dr Mitchell noted the Mr Gazawe complained of “ongoing shoulder problems” that were treated by injections of steroid and local anaesthetic “to the left shoulder on one occasion, and twice to the right shoulder, which resulted in a reduction of symptoms for periods of between 4 and 6 months”.

49. Apart from mentioning “shoulder pain” the reports of Dr Said provide no information about Mr Gazawe’s claimed shoulder conditions.

50. In a letter dated 4 May 2015 Dr Said states that Mr Gazawe has been his patient for “over 10 years” and lists various medical conditions with no mention of any shoulder condition.

51. In my view, there is insufficient evidence to satisfy the Tribunal that, during the claim period, Mr Gazawe’s shoulder conditions were fully diagnosed, treated and stabilised so that a rating under the Impairment Tables cannot be applied.

    DECISION

52. For reasons set out above I am satisfied that, during the claim period, Mr Gazawe did not have a “severe impairment”, that is, he did not have a medical condition that warranted a rating of 20 points or more under a single Impairment Table.

53. Given, that during the claim period, Mr Gazawe did not have a “severe impairment” and had not actively participated in a POS he could not satisfy the requirements of section 94(1)(c) of the Act and did not qualify for DSP

54. The decision under review is affirmed.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 12 May 2016

Date(s) of hearing	27 April 2016
Applicant	In person
Counsel for the Respondent	Dr Stephen Thompson
Solicitors for the Respondent	Department of Human Services