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

[2019] AATA 5452

Hamdan and Secretary, Department of Social Services (Social services second review) [2019] AATA 5452 (18 December 2019)

Division:GENERAL DIVISION

File Number(s):      2019/3823

Re:Wael Hamdan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:18 December 2019

Place:Canberra

The decision under review is affirmed.

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Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – spinal condition – sinus condition – whether conditions fully diagnosed, fully treated and fully stabilised – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, ss 26, 27, 94
Social Security (Administration) Act 1999, ss 37, 42, Schedule 2

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fuad and Telstra Corporation Ltd [2004] AATA 1182

REASONS FOR DECISION

Mark Hyman, Member

18 December 2019

1. This decision is about whether the applicant, Mr Wael Hamdan, qualifies for disability support pension (DSP). Mr Hamdan lodged three claims for DSP in quick succession, the first on 4 October 2018, the second on 25 October 2018 and the third on 3 January 2019. The Department of Human Services – Centrelink (the Department) rejected the first claim on 15 October 2018; the second on 13 December 2018; and the third on 22 January 2019, all on the basis that Mr Hamdan’s impairments did not meet the relevant criteria under the Social Security Act 1991 (the Act). Mr Hamdan applied for review of all three rejection decisions, and his claims were rejected again twice on review, first by an authorised review officer of the Department, and then most recently by the Social Services and Child Support Division of this tribunal. On 28 June 2019 Mr Hamdan applied for review of the tribunal’s decision.

2. The tribunal held a hearing on 6 November 2019. Mr Hamdan appeared in person and gave evidence. Ms Claire Campbell, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter.

3. The documentary evidence before the tribunal comprised documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”); a number of documents tendered before the hearing by Mr Hamdan; and two documents tendered before the hearing by the Secretary. These additional documents, apart from those already reflected in the T-documents, are set out in the following table:

Document	Date	Exhibit number
Brief curriculum vitae of Dr M Jeganathan	undated	A1
Photographs of Mr Hamdan’s back	Marked 21 July but without year	A2
Letter to Dr Jeganathan from Ms K Vine with charts	1 June 2016	A3
Note from Canberra Hospital advising of referral for orthopaedic surgery	31 August 2016	A4
Record of physiotherapy at ALmashreq Physiotherapy Centre, Jordan	31 July 2019	A5
Note from Pain Management Unit	31 July 2018	A6
Letter from Dr Safi Albekaa with referrals, a quote, materials providing information about surgery and letter from Canberra Health Services	Various dates	A7
Sign-up sheet for Pain Management Unit, including signed annotation of reasons for non-participation	Annotation dated 18 September 2019	A8
Collected information identified as “Pain Management Resources”, source unclear	Undated	A9
Pain and opioid fact sheets issued by Canberra Hospital, NSW Health and others	Undated	A10
Opioid Fact Sheet issued by Canberra Hospital, stretching exercise sheet, pain fact sheets issued by NSW Health and others	Undated	A11
Summary of Mr Hamdan’s international travel	Covers 1998-2019	R1
Information on program of support participation	2 October 2015 - 2 October 2018	R2

LEGISLATION

1. The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:

   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;

   …

2. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

3. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and made a mandatory consideration in the decision process under paragraph 94(1)(b) by section 27 of the Act. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables, a decision-maker must first determine that the impairment in question is permanent. The Impairment Tables are preceded by some preliminary material, including in Part 2 of the Determination a set of Rules for Applying the Impairment Tables (the Rules). Subsection 6(4) of the Rules provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.

4. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

5. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

1. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. Each of Mr Hamdan’s claims implies a separate qualification period, the first starting on 4 October 2018 when the claim was lodged, and the third ending on 8 April 2019, 13 weeks after the third claim was made. To succeed in his claim Mr Hamdan must have been qualified at some point in the period between those dates (if Mr Hamdan were qualified at one point but not at another, that might influence which of his three claims might succeed). The qualification period prevents developments in Mr Hamdan’s conditions occurring after 8 April 2019 from being taken into account. This was explained by Member Breen in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   … it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

2. As noted above, the decision under review – the decision by the Social Services and Child Support Division of this tribunal – extends only to the first of Mr Hamdan’s applications for DSP, although all three of the applications were the subject of review by the Department’s authorised review officer, and were therefore before the tribunal for first review.  For the reasons set out in Fuad and Telstra Corporation Ltd [2004] AATA 1182, all three decisions are before me for review, despite the constrained scope of the actual decision under review.

   ISSUES

3. The issues before the tribunal in this matter are:

   ·whether Mr Hamdan has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether he has a continuing inability to work.

   THE EVIDENCE

4. Whether Mr Hamdan meets the criteria required to qualify for DSP depends in particular on the medical evidence. Mr Hamdan suffers from a spinal condition; he also has a problem with his sinus, leading to difficulties with breathing and sleeping; and he has a foot problem. The evidence with regard to each of these conditions in turn is examined below.

   Spinal condition

5. The documentary record clearly indicates that Mr Hamdan has a spinal problem. A translated report from Dr Khaled Dawood Samouh, an orthopaedic surgeon, from the Islamic Hospital in Amman, Jordan, dated 13 September 2014, notes symptoms of lower back pain, and makes a diagnosis of disc degeneration at L5/S1 (T2, f 15). A report on an x-ray of the lumbosacral spine, dated 9 July 2015, identified decreased disc height at L5/S1 and mild lower facet joint arthrosis (T6). A CT scan of the lumbosacral spine, dated 10 January 2016, revealed a moderate central posterior disc bulge at L5/S1, impressing on the theca but not involving the exiting nerve roots.

6. In some of the early reports, there is a reference to radiculopathy to the left foot. It later transpired that Mr Hamdan had a calcaneal spur (T6), which presumably was the cause of the foot pain. A physiotherapist at the Orthopaedic Clinic at Canberra Hospital, Ms Kathryn Vine, concluded (Exhibit A3) that Mr Hamdan’s heel pain arose from the spur and his lower mechanical back pain was an entirely separate condition.

7. Mr Hamdan’s doctors commented on his long term lower back pain, without radiation, but becoming worse with movement (T2, ff 17, 18, 19 – Dr Mugunthan Jeganathan, Dr Abdul Matin Talukdar). They referred him to an orthopaedic clinic, to Canberra Hospital, and to the Pain Management Unit at ACT Health. Mr Hamdan was placed on a waiting list for both orthopaedic surgery and treatment by the Pain Management Unit (T8, T11).

8. Mr Hamdan was meanwhile treated with analgesia. He also saw Ms Vine, a physiotherapist, who noted in a report dated 1 June 2016 (Exhibit A3) that there were no symptoms in the lower limbs, and that the range of movement in his lumbar spine was reasonable, with some pain arising “with 50% of flexion with extension and left lateral flexion”. She encouraged him to take physiotherapy. In a further report dated 1 November 2018 (T2, f 24) Ms Vine noted that Mr Hamdan’s condition had worsened since she had last seen him, and that he now reported paraesthesia and mild pain in the right leg. She found that his movements were noticeably stiff, and that his range of movement was reduced. At this point Mr Hamdan was awaiting an appointment with the Pain Management Unit, and Ms Vine encouraged him to pursue that option. She noted that he had undertaken no physiotherapy since the previous appointment and indeed that he had had no intervention for his back beyond referrals and analgesia. From 20 to 31 July 2019, Mr Hamdan underwent physiotherapy at ALmashreq Physiotherapy Center in Jordan (Exhibit A5). The record of that treatment notes that he reported a pain level of 8/10 at commencement, and after six sessions reported pain at 7/10. He was referred back to his doctor for further advice.

9. Dr Jeganathan referred Mr Hamdan to the Pain Management Unit on 25 April 2018. Following the waiting period mentioned above, Mr Hamdan attended the Unit, and listened to the introductory session explaining the biopsychosocial approach adopted for pain management by the Unit. On 18 September 2019 he decided not to participate further, apparently on the basis that the approach involved the kind of “active self-management” which in his view he was already undertaking (Exhibit A8). He repeated that explanation at the hearing.

   Sinus condition

10. Mr Hamdan also has a history of sinus and nasal blockages and snoring. On 27 October 2014 one of Mr Hamdan’s general practitioners, Dr Natham Al-Naser, referred him to Dr Safi Albekaa, an ear, nose and throat surgeon (Exhibit A7). On 25 November 2014 Dr Albekaa diagnosed septal deviation, bilateral hypertrophy of the inferior turbinates, and hypertrophy of the tonsils, soft palate and uvula. He suggested septal reconstruction, bilateral inferior turbinectomies and “UPPP [scilicet: uvulopalatopharyngoplasty] including tonsillectomies” (T5). Apparently finding Dr Albekaa’s quote for the surgery to be beyond his means, on 25 September 2015 Mr Hamdan obtained a referral to Dr Fardin Eghtedan, another ear, nose and throat surgeon, for treatment in the public system. On 22 August 2019 Canberra Health Services advised Mr Hamdan’s doctor that he had been triaged and placed on a waiting list, with an expected waiting time of a year (Exhibit A7). In oral evidence Mr Hamdan said that he uses nasal sprays, steroids and other medication while he is waiting for surgery. The effect of the condition is that his sleep is poor and he suffers from sleep apnoea; he has tried a continuous pathway airway pressure (CPAP) machine, but said that it did not help him.

    Other conditions

11. Mr Hamdan said that he did not want his calcaneal spur taken into account. There is limited evidence available about the condition. It appears to be well understood, but so far to have received limited treatment.

12. Mr Hamdan mentioned haemorrhoids as one of his conditions, but the documentary record is silent, and there is clearly insufficient medical evidence available to take it into account.

    CONSIDERATION

13. To succeed in his application for DSP, Mr Hamdan must meet the tests set by the three paragraphs in subsection 94(1) of the Act.

    Does Mr Hamdan have one or more impairments?

14. It is common ground that Mr Hamdan has impairments. I find that he meets paragraph 94(1)(a) of the Act.

    Are Mr Hamdan’s impairments of 20 points or more under the Impairment Tables?

15. To be given any rating for severity, each of Mr Hamdan’s impairments must meet the permanence criteria under the Impairment Tables, that is, by the end of the qualification period, each must be fully diagnosed, fully treated and fully stabilised, and expected to continue for at least two years.

    Spinal condition

16. Mr Hamdan’s spine has been scanned and his spinal condition is well understood as involving degeneration of the L5/S1 disc. The condition appears to be worsening. I find the condition to be fully diagnosed.

17. It is Mr Hamdan’s argument that his spinal condition is fully treated and fully stabilised. He says that he has done his best, with physiotherapy and analgesia; spinal surgery has not been recommended; and there is nothing further he can do. The Department points out that Mr Hamdan has done no physiotherapy except in Jordan; that there is limited evidence of the effectiveness of that treatment or of whether Mr Hamdan might be expected to benefit from further treatment of that kind; and that he had not attended the Pain Management Unit by the end of the qualification period, as he was awaiting his appointment.

18. It should be apparent that the conclusion that a condition is fully diagnosed, treated and stabilised is, in essence, a medical conclusion. The Impairment Tables, in the Rules that set out how to establish permanence, and in the introductory material that precedes each of the Tables, set some explicit requirements for medical opinion to be obtained: thus in Table 5 – Mental Health Function, diagnostic input is required from a psychiatrist or clinical psychologist; and every Table stipulates that self-report of symptoms is insufficient and that corroborating evidence is required, which generally includes a report from a doctor, specialist or appropriate allied health professional.

19. The Rules specify some further requirements for expert medical input and others are implicit; for example, paragraph 6(6)(a) sets out as one way of establishing that a condition is fully stabilised that “the person has undertaken reasonable treatment for the condition and any further reasonable  treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years”. It is evident that the conclusion that no further treatment is indicated is an expert opinion that must be obtained from an appropriate health professional.

20. It could readily be argued that the description of physiotherapy and pain management as “reasonable treatment” should be called into question (although that has not occurred in this matter in practice). Subsection 6(7) of the Rules states that “reasonable treatment” is treatment that, among other things, can be relied on to produce functional improvement; and that it has a high success rate. It is not clear that physiotherapy and pain management would meet that test in Mr Hamdan’s case.

21. But an anterior point is that no medical professional has ever said that Mr Hamdan has been fully treated. Ms Vine thought that he would benefit from physiotherapy. He undertook no physiotherapy in Australia but did go to physiotherapy in Jordan, where after treatment the practitioner referred him back to his doctor for further advice. His doctors have given him referrals to the Pain Management Unit, and to the Orthopaedics Clinic. No-one appears to think that nothing further can be done except Mr Hamdan himself. He left the Pain Management Unit declaring that the active self-management being offered was what he was already doing. But that is purely his opinion, and I can see no trace of medical backing for it.

22. There is more than one brief report from a general practitioner to the effect that Mr Hamdan had tried physiotherapy but it had had no effect (T2, ff 17, 18, 19, 30) but during the period covered by the reports Mr Hamdan was receiving no physiotherapy, and his general practitioners’ comments are presumably simply a reflection of what Mr Hamdan told them. In any case, none of those reports state, or even hint, that Mr Hamdan’s condition was fully treated at the time, given that most of the comments are in the context of referrals for further treatment.

23. I find that Mr Hamdan’s spinal condition is not fully treated or fully stabilised. I am unable to assign a rating under the relevant Impairment Table.

    Sinus condition

24. Mr Hamdan’s sinus condition has been diagnosed by a specialist and is well understood. I find it to be fully diagnosed.

25. As Mr Hamdan is awaiting surgical treatment for his sinus condition it cannot be regarded as fully treated and fully stabilised. I am unable to assign a rating under the Impairment Tables.

    Other conditions

26. The information available about Mr Hamdan’s other conditions is insufficient to reach any conclusion regarding either permanence or severity.

    CONCLUSION

27. None of Mr Hamdan’s conditions can be provided a rating under the Impairment Tables. He has no points under the Tables and does not meet paragraph 94(1)(b) of the Act.

28. As Mr Hamdan does not meet the second of the criteria for the grant of DSP I do not have to consider whether he has a continuing inability to work.

1. It is apparent that Mr Hamdan was basing his claim for DSP on his spinal condition. At least two of his general practitioners have written supporting his claim and asserting that he should receive 20 points under the relevant Impairment Table (T2, f 22, Dr Momotaj Begum, 18 October 2018; f 30, Dr Jeganathan, 25 January 2019). It should be clear from the consideration section above that the decision regarding DSP requires a number of criteria to be met; and it is a decision-maker within the Commonwealth Government who applies the criteria and tests if they are met in any given case. I cannot give any weight to the opinions of Mr Hamdan’s doctors on this point.

38.     I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member M Hyman.

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Associate

Dated: 18 December 2019

Date(s) of hearing:	6 November 2019
Applicant:	In person
Solicitors for Respondent:	Ms Claire Campbell, Department of Human Services