Hamid Al Ugali and Secretary, Department of Social Services
[2014] AATA 352
[2014] AATA 352
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2235
Re
Hamid Al Ugali
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 5 June 2014 Place Sydney The decision under review is affirmed.
.......[Sgd].................................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – permanent conditions – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 94
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth), ss 3, 6REASONS FOR DECISION
Ms N Isenberg, Senior Member
5 June 2014
DECISION UNDER REVIEW
On 27 August 2012, the applicant, Hamid Al Ugaili, lodged a claim for disability support pension (“DSP”). His application was refused. That decision was affirmed on internal review, by a Centrelink Authorised Review Officer, and then by the Social Security Appeals Tribunal (“SSAT”). The Applicant seeks review of that decision.
ISSUES
The issue before the Tribunal is whether the Applicant was qualified or became qualified to receive DSP within the period 27 August 2012 (the date of claim) to 26 November 2012 (13 weeks of that date). This depends on whether the Applicant satisfied s 94 of the Social Security Act 1991, in particular:
(i)Whether some or all of the Applicant’s impairments were permanent, and, if so;
(ii)Whether his impairments attracted an impairment rating of at least 20 points, and, if so;
(iii)Whether he had a continuing inability to work.
THE LEGISLATION
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Policy advice contained in the Guide to Social Security Law (‘the Guide’) is also relevant.
Section 94 of the Act provides the qualification criteria for DSP. Relevantly, the person must have a physical, intellectual or psychiatric impairment: s 94(1)(a), which attracts an impairment rating of at least 20 points (s 94(1)(b)) and the person must have a continuing inability to work: s 94(1)(c). A continuing inability to work (“CITW”) is defined in s 94(2) of the Act.
The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination) took effect from 1 January 2012. The Determination contains the Impairment Tables (‘the Tables’) and the rules for their application. The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, ie fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
The relevant period
The Administration Act provides that ordinarily the start-day for DSP is the date of claim (ss 13, 41, 42, Schedule 2 clause 3). This means that qualification and impairment ratings must be determined at the date of claim. The only exception is where the person is not qualified on the day of claim but ‘will... become qualified’ and ‘becomes so qualified’ within thirteen weeks of lodging a claim, in which case their start-day is the day they became qualified: Schedule 2 clause 4(1).
The Applicant lodged a claim for DSP on 27 August 2012. By virtue of ss 13, 41, 42, Schedule 2 clause 3 of the Administration Act, the issue is whether the Applicant is qualified to receive DSP and whether he became so qualified within 13 weeks, ie 27 August 2012 to 26 November 2012.
At the hearing the applicant tendered a number of medical reports and imaging documents, all of which were from late 2013 or 2014. Because these related to a period about a year or more after the relevant period they were unhelpful with respect to the matters I was to decide. They may, of course, be relevant should the applicant make another application for DSP, as was discussed at the hearing.
DOES THE APPLICANT SUFFER A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In the treating doctor’s report dated 24 August 2012 by Dr Al-Taiff provided in support of the applicant’s claim the following disabilities/illnesses were listed, in order of severity: severe generalized arthropathy and severe discogenic low back pain. Other conditions that were generally well-managed and that cause minimal or limited impact upon the applicant’s ability to function were: cervical discogenic pain, fatty liver and severe anxiety with depressed mood. The applicant said Dr Al-Taiff was very familiar with his conditions.
At the hearing the applicant was asked to indicate the conditions, in order, that impacted upon his ability to function. He claimed:
·‘Slipped disc’;
·‘Both knees’;
·‘Nerve in his shoulder and neck pain’;
·‘Inflammation in the whole of his body’; and
·‘A mental condition he would prefer not to discuss’.
The respondent conceded that the applicant suffered physical, intellectual or psychiatric impairment during the relevant period. Therefore I find the Applicant satisfies s 94(1)(a) of the Act.
WERE, AT THE RELEVANT DATE, THE APPLICANT’S CONDITIONS PERMANENT, AS DEFINED?
Back pain
Dr Al-Taiff, the applicant’s GP wrote in the treating doctor’s report dated 24 August 2012 with respect to the applicant’s back that he had severe discogenic low back pain with stiffness. He was of the opinion that the applicant’s impairment would impact on his ability to function for more than 24 months and the effect on his ability to function in the next two years was expected to deteriorate.
Dr Al-Taiff considered the applicant may need an operation in the future. When asked about the treating doctor’s report the applicant said that the GP had written it without consulting him.
A CT scan of the applicant’s lumbosacral spine dated 4 June 2012 found no evidence of significant facet joint arthrosis but there were multilevel disc bulges with potential impingement of the exiting right L3 nerve root at L3/4 that should be correlated clinically. In her letter of 12 June 2012 Dr Lau indicated that the pain was due to degenerative disease in his lumbosacral spine. She suggested that he “may also have mild seronegative inflammatory spondylarthritis, however, at this stage, it is best to target his mechanical symptoms”.
The applicant said he had hurt his back some 15-20 years ago. He said he is unable to walk for five minutes unless he has taken painkillers – Mobic and Tramadol. He said he started taking Tramadol for his neck but also takes it for his back pain. He has also taken Digesic for some time. It is of concern that he has five different doctors all of whom prescribe him medication for his pain, independently of each other. For example, he has not told Dr Islam (or any other doctor at that practice), whose mediation summary he tendered, that Dr Al-Taiff has prescribed Digesic. He said he will ‘take anything’.
The applicant said he has collapsed ‘many times’ and needed morphine. He did not know if it was because of his back though. He said they may have started in about 1995 and there was ‘a big one’ in 1999.
He said his back stops him doing ‘everything’. For example, he sometimes needs help to take off some of his clothing. He travelled to the Tribunal by train, from a station that has a lift. It was lucky he got a seat, he said. He agreed that in 2010 he had travelled overseas, but then he was ‘only half as bad’ as he is now.
If his children are coming to stay he takes more medication so he can attend to them. As to household chores, he said he cooks simply for himself and creates no washing up. When he has care of the children he only makes the simplest things. His children are able to do things for themselves. His daughter does the washing and changes the bed. He said his wife forces him to do some domestic chores like cleaning the bath and this causes arguments. He sleeps on a low bed and has to take care as to how he gets into and out of bed. He does not sit or walk for too long and only drives when he has to – ‘in an emergency’. When he goes to the shopping centre he has to lean on a trolley. Standing for more than about five minutes is difficult. He said that he may take the children to a movie and takes medication in order to be able to sit through the movie. He lives in a Housing Commission villa, without stairs and with a very small yard which is maintained by the Housing Commission.
He said he is able to attend to his toileting but he gets chest pain from doing it. His children have to pull up his pants when his back is bad. He said he is able to drive but has difficulty pulling on the handbrake. He last drove seven weeks before the hearing for about two minutes. He could not remember how much driving he was doing in 2012. He said he adjusts his medication so that he is not too heavily medicated if he is going to drive.
He agreed that he had claimed carer’s payment when it was likely he would not qualify for DSP.
He said he was taught about appropriate exercises at Westmead Hospital in 2012, sometime before his application. He could not remember how many times he attended. His children massage his back for half an hour each day.
At the time of the job capacity assessment in September 2012, the applicant reported that his current treatment included analgesia (Panadol Osteo and Mersyndol Forte) and two sessions of physiotherapy. This differed somewhat to his evidence before me, when he was specifically asked to confine his evidence to the relevant period. The applicant reported that he was on the waiting list to commence hydrotherapy and his doctor had recommended that he have an operation for his condition.
The applicant told the SSAT that he has been told to rest and have physiotherapy but had given up and decided he has to live with the situation. Contrary to that assertion, he said in his evidence that in 2013 he did ‘physiotherapy’ for a year. He did 8-9 hours every day – at the spa, sauna and some exercise. He found walking in the hot water was beneficial as there is no pressure on his back and joints, but within 5-6 hours of returning home the pain in his back would return. He meets with other men at the Iraqi club where he exercises. He denied that he socialised there, saying he but mainly focussed on his exercise regime. The people he meets with are only ‘friends’ to the extent that they share a common language. He undertook a pain management course at Auburn hospital which taught him how to sleep better. He could not remember when he attended or how many sessions he attended.
The applicant claimed his GP had said everything that could be done for his back, had been done and that an operation would not help. (This contrasts with Dr Al-Taiff’s evidence.) The applicant said the hospital told him in 2012 that nothing can be done. He had not been to see a ‘back doctor’. He said Dr Islam has now referred him to ‘specialist’, Dr Hossain, whose report dated 21 November 2013 he tendered. Dr Hossain, however, is a consultant geriatrician and physician, not an orthopaedic surgeon.
The SSAT member telephoned Dr L. Reiter, rheumatologist on 27 March 2013. Dr Reiter confirmed that she had seen the applicant once in mid 2012 but he failed to return for his review. She was of the opinion that the degenerative disease in his back had not been fully treated and stabilised. The applicant’s failure to return for a review meant that Dr Reiter could not follow-up with appropriate treatment recommendations for his back. The applicant said he did not return to Dr Reiter because he went to Westmead Hospital to see ‘the specialists’ there instead because it was free. In any event, the applicant said, Dr Reiter asked nothing about his back, only his knees. I note however that Dr Nagra’s CT scan report, which was addressed to Dr Reiter, referred to both the applicant’s lumbosacral and cervical spine, and not his knees.
I accept that the applicant’s back condition, at the relevant time, may have affected his mobility and caused him pain. However, I do not accept that the condition can be regarded as fully treated and stabilised at that time. By the time of the relevant period he had not undertaken the physiotherapy as advised, nor had the operation foreshadowed by his GP been arranged. He was on the waiting list for hydrotherapy. His medication was not settled because he took painkillers at random and failed to inform his various treating doctors about other medication which had been prescribed.
As a result, an impairment rating cannot be assigned for this condition.
Arthropathy (knees, ankles & feet)
In his treating doctor’s report Dr Al-Taiff diagnosed the applicant with “severe generalised arthropathy” with “severe continuous joint pain”. He noted the applicant had been taking analgesics and was continuing with such treatment. He considered the impairment would impact on his ability to function for more than 24 months and the effect on his ability to function in the next two years was expected to fluctuate.
A CT Scan report of 30 May 2011 was provided. The report concludes “there is active athroscopy in the knees, acromioclavicular [shoulder] joint and to a lesser degree in the ankles and small joints of the feet. The increased vascularity suggests an inflammatory component. Mild left plantar fasciitis and enthesopathy of the tendo-achilles”.
In her letter of 12 June 2012, Dr Lau stated that over the past 12 months the applicant had developed arthralgia affecting the knees, left shoulder, wrists, ankles and feet. The bone scan suggested a possible inflammatory component to his arthropathy and that given the applicant “has new symptoms of left foot pain and right sided thoracic pain, we have asked for a repeat bone scan with SPECT CT of the left foot especially. We will also check his inflammatory markers and auto immune serology. We will arrange for an imaging guided injection of the left acromioclavicular joint for symptoms. I advised him to continue his current analgesia regime. We have asked him to bring in his previous x-rays and we would like to review him again after the bone scan.” The applicant did not return for a review with a repeat bone scan.
The applicant said that for the last year to one and a half years he has used a walking stick because his left knee is ‘dead’. He said he uses the stick whenever he goes out. There was no reference in any of the medical evidence about the use of a walking stick during the relevant period.
The applicant said he has problems with both knees and tries to avoid bending and using stairs. He could not kneel at the mosque and had to sit on a chair instead. Sometime before the application he had given up going and just prays at home, seated in a chair.
He said that he has pain in many of his joints and therefore finds any movement very difficult. In 1996 he had an operation (which sounded like a knee arthroscopy) to ‘clean out the bones in his knee’. He was on crutches for four weeks.
The applicant reportedly told the Authorised Review Officer on 30 October 2012 that he had an appointment on 15 November 2012 in relation to his feet and may require orthotics costing $150.00. He also mentioned recently having a nuclear scan.
The applicant said that the specialist he saw in February 2014 has advised him to have a left knee replacement and he is on a waiting list. He understood the doctor to have said the nerves are to be ‘tied’ and it might not work. The doctor was of that opinion from the first time he saw him, the applicant said. He has done nothing in respect of his right knee.
It was clear that at the relevant time the applicant’s overall condition was still being investigated. Further, the applicant did not have a repeat bone scan, as suggested by Dr Lau, and he did not return for a review.
He said that he has been taking Naprosyn for about three years for the pain in his joints. He said that problem stared about 6-9 months before he had the nuclear scan which was in May 2011.
Despite the pain and difficulties the applicant reportedly experienced during the relevant period, the evidence does not suggest that reasonable intervention or treatment had been undertaken for this condition. I therefore consider that the impact of this condition on the applicant’s upper and lower limbs cannot be regarded as permanent at the relevant time and therefore cannot be given a rating under the impairment tables.
Neck and shoulder pain
Dr Al-Taiff diagnosed cervical discogenic pain and anticipated a worsening of pain. The doctor considered the condition to be generally well managed causing minimal or limited impact on ability to function. His only treatment was analgesics.
The applicant said he also has pain in his left shoulder and has had an injection into it. He finds it hard to lift his left arm. He can only carry a very light bag with his left arm.
The applicant explained that the “disc [in his neck] is pressing on a nerve”. He said the ‘specialist’, Dr Hossain, told him the Lyrica he takes “controls the nerve”. He said his neck seizes up and he is unable to move. He must lie down on his stomach. Dr Hossain has told him to wear a cervical collar.
He has had pain and stiffness in his neck for 10 years and has been dealing with specialists during this time. He said he had also had some surgery on his right shoulder but was not clear about the details of this surgery.
Dr Nagra on 4 June 2012 reviewed a CT scan of the cervical spine which revealed severe left sided neural foraminal narrowing at C3/4 with potential impingement of the exiting nerve root at this level. There were degenerative changes at C5/6 but no significant lateral recess or neural foraminal narrowing.
At the job capacity assessment the job capacity assessor noted that current treatment consisted of analgesia (Panadol Osteo and Mersyndol Forte) and two sessions of physiotherapy. The applicant had consulted with a rheumatologist on one occasion and was requested to obtain a bone and CT Scan. The applicant was on the waiting list to commence hydrotherapy.
The SSAT member telephoned Dr Reiter, rheumatologist on 27 March 2013. Dr Reiter confirmed that she had seen the applicant once but he failed to return for his review. She was of the opinion that the degenerative disease in his neck had not been fully treated and stabilised. The applicant’s failure to return for a review meant that Dr Reiter could not follow-up with appropriate treatment recommendations for his neck condition. As discussed above, the applicant denied that Dr Reiter examined him with respect to his neck, and did not return to her because he went to Westmead Hospital instead.
In her letter of 12 June 2012 Dr Lau said that the applicant’s neck pain is due to degenerative disease in his cervical spine. She suggests that he “may also have mild seronegative inflammatory spondylarthritis, however at this stage, it is best to target his mechanical symptoms”. This suggests to me that the applicant’s condition was still being investigated at that time and that treatment was to target the symptoms, rather than address the not-yet-identified cause.
The applicant said Dr Hossain had said that even if he had an operation it would not take the pain away. Steroid injections were discussed but the applicant was unable to say where would be the site of such an injection. He declined to have that injection because relief would only be temporary and, besides, he knew someone who became incapacitated after having a steroid injection.
I accept that the applicant’s neck and shoulder condition causes him some restriction of movement and pain. However, it is not known what, if any, reasonable treatment will lead to a functional improvement in these conditions in the next two years. Treatment options were still being explored, even as recently as earlier this year following his referral to Dr Hossain. It therefore cannot be said that the applicant’s neck condition is fully treated and stabilised. As a result, an impairment rating cannot be assigned for this condition.
Anxiety and Depression
The applicant said that his condition is a ‘huge problem’ for him. He had not attributed much weight to it earlier in the hearing because his young son was present in the hearing room at that time. (I asked his son to leave the room while his father gave evidence about his psychiatric condition.)
The applicant said his depression arose out of his experiences when in the Army in Iraq where he spent ‘5 years in the desert’. He has felt agitated for about five years. He said he first ‘had a turn’ at Centrelink about 2-3 years ago. He was angry, in pain and upset about his divorce. He was shocked at his own behaviour. Things sometimes get too much for him to cope with. His religion helps him a great deal to cope with his situation. The problem is now well-controlled because of the medication and he needs to control himself because of the children.
In his treating doctor’s report Dr Al-Taiff considered the condition to be generally well managed and caused minimal or limited impact on the applicant’s ability to function. The applicant had been taking Zypreza (Olanzapine) since August 2012 and had previously taken other medication. Dr Al-Taiff stated that the applicant suffers from severe anxiety and depressed mood. He is easily agitated, obsessive and socially isolated. The applicant said he has been taking Zyprexa for about one and a half years ever since his problem started. He was previously taking one per day, but has increased that dosage. Now he is ‘not allowed to stop’.
Dr Al-Taiff suggested he see someone. He consulted Mr Abaie, psychologist, but thought he was ‘crazy’. In a letter dated 12 July 2012 Mr Abaie reported that the applicant’s psychological condition is having a negative impact on the quality of his life and his daily routine. He considered the Applicant “requires long-term ongoing medical and psychological treatment in order to get back to his normal life”. He has been having counselling with Mr Abaie since he was referred to him in mid-2011 by Dr Al-Taiff. By July 2012, he had had seven counselling sessions. Mr Abaie considered that the applicant suffers from major depressive order due to his medical conditions and dysthymia.
The applicant said Mr Abaie has since sent him to a ‘higher’ person, who is a clinical psychologist. He said he did not know why there was now talk of referring him to a specialist but he did not know why, because he is feeling alright. He hopes though that as a result he will “find out what’s wrong with [him].” No other report was forthcoming.
Table 5 of the Work-related Impairment Tables is used to assess Mental Health Function and states that a mental health condition must be diagnosed by an appropriately qualified medical practitioner (including a psychiatrist), with supporting information from a clinical psychologist, if the diagnosis has not been made by a psychiatrist.
The diagnosis of the applicant’s psychiatric condition was made by Dr Al-Taiff who is not a psychiatrist or clinical psychologist. The applicant was diagnosed as suffering from Major Depressive Disorder due to medical conditions and dysthymia by Mr Abaie as reported in the letter of 12 July 2012. However Mr Abaie is not a clinical psychologist.
The requirement for a diagnosis to be verified by a psychiatrist or clinical psychologist is a mandatory requirement, and in the absence of such evidence a rating cannot be assigned under Table 5 of the Impairment Tables.
I accept that the applicant may suffer psychological difficulties which are likely to be exacerbated by his numerous widespread physical problems. However, as the applicant had not, during the relevant period, consulted a psychiatrist or clinical psychologist, his condition cannot be said to be fully diagnosed and impairment points cannot be awarded.
Fatty Liver
In his treating doctor’s report Dr Al-Taiff considered the applicant’s fatty liver to be generally well managed and causing minimal or limited impact on the applicant’s ability to function. The applicant was on a diet and taking Crestor for his condition. Dr Al-Taiff said that as a result of the condition, the applicant experiences pain in the stomach. Significant improvement is not expected in the next two years.
The Applicant told the SSAT that he never raised the issue of his fatty liver before as being of concern, and he did not mention it when I asked him to identify the conditions he believed impacted upon his workability.
The job capacity assessment report dated 7 September 2012 noted that the applicant had sought treatment and no significant improvement was expected within the next two years.
Table 10 of the Impairment Tables is used to rate conditions which result in functional impairment related to digestive functions. The relevant descriptors are as follows:
0
There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) The person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.
5
There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least one of the following applies:
(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b) the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
I consider that the nil points is the appropriate rating of the applicant’s condition under Table 10 as the applicant would not usually be interrupted by this condition if he were at work and the symptoms do not currently interfere with his activities or personal care needs. The applicant’s own evidence, and that of his treating doctor, was that he has no functional impairment because of the condition.
Other Conditions
The applicant referred to the following conditions of ‘pimples on his feet, grip weakness and plantar faciitis when before the SSAT. He told the SSAT that he gets “pimples” on his feet. He also finds he easily drops things he is holding, such as a cup of coffee, because his grip is very weak. He is right-handed. It has also been mentioned by Dr Lau that the applicant has mild plantar fasciitis, but it is not known what treatment, if any, has been recommended for this condition.
These conditions were not mentioned in the treating doctor’s report. I am not prepared to find, on the available evidence, that these conditions are permanent, as defined. Accordingly, they cannot be assessed.
Conclusion
I have found that the applicant’s back, neck and shoulder condition, arthropathy and his anxiety and depression were not permanent at the relevant date and therefore cannot be rated. His only permanent condition, his fatty liver, attracts a nil rating under the Impairment Tables.
Therefore, the applicant does not satisfy s 94(1)(b) of the Act. It is therefore not necessary for me to consider the remaining criteria for the disability support pension.
The applicant does not qualify for disability support pension.
DECISION
The decision under review is affirmed.
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member. ......[Sgd]..................................................................
Associate
Dated 5 June 2014
Date of hearing 6 May 2014 Applicant In person Solicitors for the Respondent G Lozynsky, DHS Program Review Litigation Branch
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Jurisdiction
-
Disability Support Pension
-
Review of Administrative Decisions
0
0
0