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

[2021] AATA 4585

Hamdache and Secretary, Department of Social Services (Social services second review) [2021] AATA 4585 (9 December 2021)

Division:GENERAL DIVISION

File Number(s):2020/4896      

Re:Mahmoud Hamdache  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:9 December 2021  

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant’s impairments can be assigned 20 points or more in accordance with the Impairment Tables – relevant legislation and secondary materials considered – medical reports and other evidence considered – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

CASES

Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member

9 December 2021 

1. The applicant, Mahmoud Hamdache, applied for disability support pension (‘DSP’) on 4 January 2019.  Following an Employment Services Assessment (‘ESA’) on 16 January 2019, his application was rejected as he was deemed to have an impairment rating of less than 20 points under the Impairment Tables. 

2. Mr Hamdache sought review of the decision to reject his application. On 20 May 2020 an Authorised Review Officer affirmed the decision. He sought review at the Social Services & Child Support Division of the Tribunal, and his application was again rejected on the basis of Mr Hamdache not having 20 points under the Impairment Tables. Mr Hamdache now seeks review of the decision at the General Division of the Tribunal. 

   BACKGROUND

3. Mr Hamdache is currently 59 years of age and lives with his wife and two young children. He has unsuccessfully applied for DSP on other occasions including in 2015, 2016 and 2017.  The claims were rejected on account of him being assessed as not having 20 points under the Impairment Tables.

   The relevant period and additional evidence

4. When reviewing the decision I am to consider the evidence as it relates to the 13 week period following application for DSP (‘the relevant period’). The relevant period for the purposes of the reviewable decision is 4 January 2019 to 5 April 2019. Any evidence is relevant only in so much as it relates to Mr Hamdache’s conditions during this time.  

5. This is consistent with the approach outlined by Deputy President Handley in Fanning and Secretary, Department of Social Services [2014] AATA 447 in which he observed at [31]:

   Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period. 

6. Between making his application and the reviewable decision, Mr Hamdache has presented new medical evidence. This evidence may be considered in so much as it may be applicable to his conditions during the relevant period.

   CRITERIA TO BE APPLIED

   Qualification for Disability Support Pension

7. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) sets out the criteria for qualification for payment of DSP. Subsection 94(1) of the Act provides that to qualify for the DSP:

   ·a person must have a physical, intellectual or psychiatric impairment, or impairments; and

   ·the impairment(s) must be rated at 20 points or more in accordance with the Impairment Tables; and

   ·the person must have a continuing inability to work as defined in the Act.

8. The Secretary accepts that Mr Hamdache suffered from impairments during the relevant period and that paragraph 94(1)(a) of the Act is satisfied. Based on the evidence I agree with this assessment.

   Impairment tables

9. The first issue for determination is whether Mr Hamdache’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

10. 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 Determination’). The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments.

11. Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 provides that a condition can only be assigned an impairment rating if it is considered permanent. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. 

12. When applying the Tables, subsection 6(1) requires that in assessing functional capacity: 

    The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

13. Subsection 8(1) provides that when applying the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

    ISSUE

14. The issue to be determined is whether Mr Hamdache satisfied the eligibility criteria for DSP disability support pension during the relevant period.

    CONSIDERATION

    Spinal Condition

15. Table 4 of the Impairment Tables is to be used when a person has permanent spinal condition which results in a functional impairment. The Secretary submits that Mr Hamdache’s spinal condition was fully diagnosed, treated and stabilised during the qualification period and qualifies for an impairment rating of no more than 10 points.

16. Mr Hamdache told me he first injured his spine in a car accident in 2006. He was able to improve his condition through remedial massage therapy and medication. In 2015 he was involved in another car accident and hurt his spine and neck. He said that both his neck and lower back are still painful.

17. In terms of the medical evidence a report from Dr Ali El-Jaam dated 2 November 2020 states that Mr Hamdache is under the care of orthopaedic surgeons and pain management doctors.

18. A report from Dr Simon McKechnie, neurosurgeon, dated 19 April 2018 confirmed that an MRI scan of the cervical spine demonstrates several small disc protrusions with ‘several areas of foraminal stenosis’. He writes that the MRI of the lumbar spine demonstrates ‘several lower lumbar disc protrusions without significant thecal sac or nerve root impingement’.

19. The functional impact of Mr Hamdache’s spinal condition was considered during a face-to-face Job Capacity Assessment (JCA) conducted on 26 February 2018 in relation to an earlier DSP claim. In the assessment Mr Hamdache reported being able to sit for 30 minutes, stand for 30 minutes and walk for 20 minutes, but that he had difficulty bending and experienced restricted movement in all directions. He confirmed these symptoms when he attended the ESA held on 16 January 2019.

20. During the hearing Mr Hamdache confirmed that he can remain seated for longer than 10 minutes and is able to drive his car in which he sits for longer than 20 minutes. I consider this to be an accurate assessment of his sitting tolerance during the qualification period.

21. To be assigned 20 points under Table 4 the descriptors require that a person is unable to turn their head, perform any overhead activities or remain seated for at least 10 minutes.

22. The evidence suggests that Mr Hamache’s spinal condition was fully diagnosed, treated and stabilised during the qualification period. Based on the functional impairments described by Mr Hamdache, I am satisfied that an impairment rating of 10 points under impairment table 4 is appropriate for his spinal condition.

    Shoulder Condition

23. Mr Hamdache reported that he initially had difficulties with his right shoulder dating back to 2006. He said that because of his right shoulder injury he developed a problem with his left shoulder, which was exacerbated by the 2015 car accident which injured his left shoulder. Mr Hamdache reports that he had several operations on his left shoulder as the first operations were not successful. 

24. In that regard a report by Dr Jeffery Hughes dated 27 April 2016 states that Mr Hamdache previously underwent a failed rotator cuff repair. Dr Hughes suspected that there was a potential low-grade infection which may have caused the symptoms he was experiencing at that time. A discharge report form Northshore Private Hospital dated 11 June 2016 confirms that surgery was performed on Mr Hamdache’s left shoulder surgery following Dr Hughes’ diagnosis.  

25. In terms of ongoing symptoms, Mr Hamdache describes experiencing numbness in his right shoulder and pain in his left. He told the Tribunal he had a cortisone injection in his left shoulder shortly before the hearing but that he continued to experience pain. He said that when he reaches above his head the pain in his right shoulder radiates to his elbow.

26. The Secretary submits that Mr Hamdache’s shoulder condition was fully diagnosed, fully treated and fully stabilised during the qualification period but that the available evidence is insufficient to establish that any points should be assigned under Table 2 – Upper Limb Function.

27. Mr Hamdache describes having some difficulty with overhead lifting and told the ESA assessor in January 2019 that he was assisted with above shoulder tasks. The medical evidence before the Tribunal indicates that he has experienced regular shoulder pain since 2015 and has sought treatment through multiple surgical procedures.

28. The evidence regarding the impairment caused by his shoulder condition is limited. To be considered a mild functional impact on activities using hands or arms a person is expected to have difficulty with activities, including handling small objects, doing up buttons and reaching out to pick up objects. Mr Hamdache confirmed at the 26 February 2018 JCA that he had no difficulty handling very small objects, doing up buttons or reaching to collect an item from a table. As such, I consider that Mr Hamdache’s shoulder condition is appropriately assigned zero impairment points under Table 2.

    Mental Health Condition

29. Mr Hamdache was diagnosed with treatment resistant depressive disorder by psychiatrist Dr Abbas Alameddine on 21 March 2017. In his handwritten diagnosis Dr Alameddine recommends psychotherapeutic follow-up and psychosocial support.

30. Table 5 – Mental Health Function – is to be used where a person has a permanent condition resulting in impairment due to a mental health condition. The diagnosis must be made by an appropriately qualified medical practitioner, which includes a psychiatrist or evidence from a clinical psychologist where the diagnosis has not been made by a psychiatrist.

31. In a medical report dated 24 July 2017 psychologist Zeinab Allaw writes that Mr Hamdache scored ‘extremely severe ranges of all subscales [of the Beck Depression Inventory], indicating his overly stressed and disturbed psychological state’. Ms Allaw reports that ‘[i]n accordance with [the] Diagnostic and Statistical Manual of Mental Disorder (DSM-V) Mr Hamdache suffers from Major Depressive Disorder with features of Anxiety’. 

32. On 17 May 2019, which is after the qualification period, consultant psychiatrist Dr Ashraf Philips noted that Mr Hamdache ‘described long-term depressive symptoms, low mood, thinks all the time about the issues’. Dr Philips recommended a change in medication and suggested that Mr Hamache would benefit from continued psychotherapy. Dr Phillips opined that ‘[s]econdary gain should be considered as the motive for this presentation’.

33. Mr Hamdache was first diagnosed with a treatment resistant depression disorder on 21 March 2017 by Dr Abbas Alameddine who is a registered psychiatrist.

34. A report from the St George Hospital Department of Anaesthetics Pain Management Unit dated 7 July 2020 records that Mr Hamdache was seen for a psychology assessment at the St George Pain Management Unit. It is recorded that Mr Hamdache completed a pre-assessment questionnaire which indicated psychological distress but his score on the DASS21 indicates mild depression symptoms which this did not match with his clinical presentation. It was recommended that he continue to maintain treatment for his mental health.

35. Based on the evidence I accept that Mr Hamdache suffers from a depressive disorder but it appears his treatment of the condition has been irregular. Mr Hamdache indicated he has seen Ms Allaw regularly every two to three months since March 2017, though I note there is little evidence to support him having done so. There is no evidence of him having obtained treatment from a psychiatrist between 21 March 2017 and 17 May 2019. I also consider that there is a lack of evidence as to the functional impairment which is caused by this condition.

36. Based on the evidence I am not satisfied that Mr Hamdache’s mental health condition was fully treated and stabilised during the qualification period and cannot be assigned an impairment rating.

    Chronic Obstructive Pulmonary Disease (‘COPD’)

37. Mr Hamdache suffers from COPD which the Secretary accepts was fully diagnosed but not fully treated and stabilised during the qualification period.

38. A report dated 28 May 2020 from Dr David Freiberg, a consultant physician in respiratory and sleep medicine, observes that Mr Hamdache is an ex-smoker with more than a 40 packet/year history stopping two years ago. He reports that Mr Hamdache has moderate exertional dyspnoea which causes wheezing and intermittent chest pain. He also has a long history of nasal obstructions and has had previous nasal surgery. Dr Freiberg reports Mr Hamdache sometimes feels dyspnoeic trying to talk or eat.

39. Dr Frieberg concludes that further testing is to be arranged but that he suspects that his issues relate to Mr Hamdache’s upper airway with nasal obstruction causing mouth breathing and hyperventilation.

40. As the condition was not diagnosed until after the qualification period it cannot be assigned an impairment rating.

    Knee Pain

41. Mr Hamdache suffers from knee pain, initially in his right knee but also in his left. He indicated that he had surgery in November 2020 to repair his right knee. As surgery occurred after the qualification period I do not consider his right knee condition was fully treated and stabilised during the qualification period and cannot be assigned an impairment rating.

    Other Conditions

42. Mr Hamdache suffers from a blood disorder which was first recorded in a medical report dated 11 September 2019 by Associate Professor Raj Ramakrishna who does not provide any information on what treatment has been received and indicates that the condition had no functional impact at that time.

43. A diagnosis of diabetes was made in October 2015 which is managed with medication. There is no evidence that this condition causes any significant impairment whilst the condition is fully treated and stabilised.

44. During the hearing Mr Hamdache stated that he was suffering from tinnitus, but there are no medical reports before the Tribunal in relation to this.

    CONCLUSION

45. As Mr Hamdache’s impairments do not rate 20 or more points on the Impairment Tables, he is unable to satisfy paragraph 94(1)(b) of the Act and his claim for DSP cannot succeed. It is therefore not necessary to consider whether he also had a continuing inability to work during the relevant period.

    DECISION

46. For the reasons stated above, 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 Mr S Evans, Member

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

Associate

Dated: 9 December 2021

Date(s) of hearing:	9 September 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms K Dunlop, Services Australia