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

[2018] AATA 4444

Gorgees and Secretary, Department of Social Services (Social services second review) [2018] AATA 4444 (27 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5632

Re:Aimr Gorgees

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President I Hanger QC

Date:27 November 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Deputy President I Hanger QC

Catchwords

SOCIAL SECURITY – disability support pension - mental health condition – lumbar spine condition – cervical spine and neck condition – left shoulder condition – hearing condition – abdominal condition – migraines – s 94(1) not satisfied – insufficient medical evidence - decision affirmed

Legislation

Social Security Act 1991

Secondary Materials

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

REASONS FOR DECISION

Deputy President I Hanger QC

27 November 2018

1. The issue in this case is whether the applicant was qualified for the Disability Support Pension (DSP) during the period 14 October 2016 to 13 January 2017 (the qualification period).

2. The applicant seeks review of a first tier decision of the Administrative Appeals Tribunal Social Services and Child Support Division dated 15 August 2017 (AAT1). On 9 October 2013, he was issued with a spousal visa before entering Australia on 27 October 2013.  On 14 October 2016, he lodged the current claim for DSP.  On 6 December 2016 that claim was rejected on the basis that it did not meet the requisite impairment rating under s 94(1)(b) of the Social Security Act 1991 (the Act).

   GENERAL PRINCIPLES

3. Section 94 of the Act provides:

   94. (1) 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) one of the following applies:

   (i) the person has a continuing inability to work.

   …

4. The tables referred to in s 94(1)(b) of the Act contain specific provisions that apply to the assessment of a person’s impairment.

5. Section 6(3) of the Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the tables) referred to in section 94 (1)(b) of the Act provide that an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent, and the impairment is more likely than not, in light of available evidence, to persist for more than two years.

6. Section 6(4) of the tables provides that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and stabilised and the condition is likely to persist for more than two years.

7. Section 6(5) of the tables provides that in deciding whether a condition has been fully diagnosed and treated, a decision-maker must consider:

   (a) whether there is corroborating evidence of the condition; and

   (b) what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or planned in the next 2 years.

8. Section 6(6) of the tables provides that a condition is fully stabilised if either the person:

   (a) has undertaken a reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or

   (b) has not undertaken reasonable treatment but such treatment is either not expected to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.

9. Section 8(1) of the tables provides that the symptoms reported by a person in relation to their condition can only be taken into account when there is corroborating evidence.

10. For the purpose of considering the eligibility of the applicant for DSP, the relevant period for consideration by this tribunal is the period from 14 October 2016 to 13 January 2017 (the qualification period). There is no issue that during the qualification  period  the applicant suffered from: 

    (a)a mental health condition;

    (b)a lumbar spine condition;

    (c)a cervical spine and neck condition;

    (d)a left shoulder condition;

    (e)a hearing condition;

    (f)an abdominal condition; and

    (g)migraines.

11. The respondent accepts that the applicant satisfies the provisions of section 94(1)(a) of the Act.

    SECTION 94(1)(B) - AN IMPAIRMENT RATING OF 20 POINTS?

    Mental Health

12. In December 2015, Dr Samir Ibrahim reported that the applicant suffered from a deep awe, depression, and a destroyed inner structure of the ego.[1] Reports from a registered psychologist referred to the applicant in February 2014 as experiencing a bout of depression and anxiety.[2]

    [1] T24

    [2] T6/50; T9/53

13. On 25 May 2016 Dr Ibrahim recorded that the applicant had very low self-esteem, poor concentration, deep depression, and feelings of despair and helplessness.  The applicant was offered support and advised to continue with prescribed medications.

14. On 30 August 2016 the applicant’s GP diagnosed post-traumatic stress disorder.

15. There is no evidence before this tribunal that indicates that in the qualification period, from 14 October 2016 to 13 January 2017, the applicant’s psychiatric problems had been fully diagnosed, treated and stabilised.  To the extent that there is psychiatric evidence about his condition it relates to the period before October 2016.Therefore, there is a lack of evidence to support and award points under the tables.

16. This tribunal had the benefit of a report dated 11 April 2018 from Mr Ramzi Mohammad[3], a qualified psychologist, but not a clinical psychologist.  He expresses the opinion that taking into account the duration and intensity of the applicant’s manifestations and despite ongoing counselling and medication, his condition is permanent and chronic in nature.  He says that his mental health condition is causing him a significant restriction in function and is compounded by his physical pain.  In his opinion, the applicant requires ongoing psychological care.

    [3] Exhibit 3

17. This tribunal also had the benefit of seeing the applicant in person and hearing him with the aid of an interpreter.  He appeared to be depressed, in pain and extremely frustrated.  He has no education, no English capabilities, and given the physical disabilities which he obviously has, he has been unable to find work while living in this country, despite his best efforts to do so.  He complained of a lack of assistance and conflicting messages from Centrelink.  However, I am not in the position to impose my present assessment of his condition as at today on the state of the evidence in relation to the qualification period.

    Lumbar spine condition

18. On 30 July 2014 Dr Karlov reported that the applicant underwent physiotherapy, but could not tolerate medication and was reluctant to have an epidural injection.  The alternative treatment involves surgery and the applicant was unwilling to undergo surgery because he had previously spent two years in hospital having shrapnel removed.

19. In a report dated 17 March 2015 Dr Karlov confirmed that the applicant had disc lesions with possible impingement on nerves.  The respondent accepted the applicant’s lumbar spine condition was fully diagnosed. 

20. In a report dated 28 November 2016[4] it is noted that the applicant during the qualification period had a pending appointment for a multidisciplinary pain management program at the Royal Melbourne Hospital.  This is reasonable treatment within the meaning of that term in s 6(7) of the tables. It follows that his lumbar spine problems were not fully treated and stabilised within the qualification period.

    [4] T 37/173

    Cervical and neck condition

21. The applicant was a bombing victim in 1986.  He presented to Dr Matthew Lee-Archer during December 2017 reporting a reduced range of movement in the neck.  Dr Lee-Archer provided a report dated 19 December 2017 in relation to right arm pain, but this diagnosis was made 11 months after the qualification period and there was no previous diagnosis in relation to the cervical spine, neck or right upper limb. The report is of little use in this application.

22. Dr Lee-Archer said that the applicant has polyradiculopathy due to cervical spine disease.  He expressed the opinion that the applicant could not work in a meaningful role and said that he was going to send him to a neurosurgeon to ascertain whether there was a surgical option.  I conclude that while the applicant is seriously disabled, it cannot be said, that his condition had been fully treated and stabilised during the qualification period.

    Left shoulder condition

23. The respondent accepts that the left shoulder condition was fully diagnosed by Dr Karlov in a report dated 30 July 2014.[5]

    [5] T 12/60

24. Dr Karlov recommended ultrasound and physiotherapy.  At the AAT1 hearing on 15 August 2017[6] the applicant gave evidence that he had pain in the left shoulder which was treated with an injection which he said made it worse.  That is insufficient evidence before this tribunal concerning the prognosis of the left shoulder with any recommended treatment. I cannot determine that this condition was fully diagnosed, treated and stabilised in the qualification period.

    [6] T2/5

    Left lower limb

25. The applicant saw Dr Karlov in 2014 and 2015 in relation to his left lower limb. There were various possible diagnoses in respect of the causes of complaint but no definitive diagnosis was made.  Furthermore, since the applicant was at the relevant time booked in to have a pain management program devised for him, it could not be said that his condition was either fully treated or stabilised in the qualification period.

    Hearing condition

26. The applicant has a fully diagnosed, severely profound, sensorineural hearing loss in the right ear[7].  The applicant has not attended a relevant specialist in the field since July 2014 and a suggestion was made concerning a possible referral to an ear, nose and throat specialist with respect to further possible treatment.  The applicant says that there is nothing further that can be done to assist his hearing but there is no medical evidence to support that assertion. There is no medical evidence of the status of this condition during the qualification period. Therefore, this condition cannot be assessed under the tables.

    [7] T11/58

    Abdominal condition

27. The respondent accepts that the applicant has been diagnosed with a number of abdominal conditions and that they have been fully treated and stabilised but contends that there is insufficient medical evidence regarding functional impact to support a rating under impairment tables. Therefore, this condition also cannot be assessed under the tables.

    Migraines

28. The respondent accepts that the applicant suffers from migraines.  The respondent contends that the condition is not shown to have been fully treated and stabilised during the relevant period and that in any event it would not attract any impairment rating. I accept that contention due to a lack of medical evidence.

    CONCLUSION

29. The legislature and the courts have insisted that there be strict compliance with the various complex provisions that have been laid down to enable a person to access the DSP. The functional impact of the conditions suffered by the applicant do not result in an impairment rating within the qualification period and therefore section 94(1)(b) is not satisfied.

30. The Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger QC

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Associate

Dated: 27 November 2018

Date(s) of hearing:	2 August 2018
Applicant:	In person
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Lawyers