Hammam and Secretary, Department of Social Services (Social services second review)
[2016] AATA 115
•29 February 2016
Hammam and Secretary, Department of Social Services (Social services second review) [2016] AATA 115 (29 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4155
Re
Mohamed Hammam
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 29 February 2016 Place Sydney The Tribunal affirms the decision under review.
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Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
29 February 2016
In August 2013 Mr Hammam, who is currently 58 years old, was involved in accident at Flemington Markets involving a forklift vehicle. He suffered an injury to his right foot. About two months after the accident he developed an extensive deep vein thrombosis (DVT) in the right leg which was treated with anticoagulation medication.
On 3 December 2014, Mr Hammam lodged a claim for DSP on the basis that he suffered several medical conditions which were having an impact on his ability to function.
Mr Hammam’s 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.
In a decision dated 13 July 2015, the Social Services and Child Support Division of the AAT (SSCSD), found that Mr Hammam had a total impairment rating of only 5 points under Impairment Table 3, so that he did not satisfy s 94(1)(b) of the Act.
In these proceedings Mr Hammam, who is self-represented, seeks review of the SSCSD’s decision.
ISSUES
In order to qualify for DSP, Mr Hammam 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, that is, between 3 December 2014 and 4 March 2015 (the claim period).
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.
The Respondent concedes and the Tribunal accepts that Mr Hammam 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.
The medical conditions include a condition involving lower limb function (right foot, right knee, left knee), a lumbar spine condition, a mental health condition, a cardiac condition, Type 2 diabetes and hypercholesterolaemia.
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)).
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)).
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”.
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 a psychiatrist)”.
The Respondent contends that Mr Hammam has a total rating of only 5 points under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act.
Therefore, the definitive issue for the Tribunal to consider is whether, during the claim period, Mr Hammam had an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a “continuing inability to work”.
Lower limb function
Mr Hammam told the Tribunal that as a result of the injury in 2013 he has a significant deformity of his right foot and requires a special shoe and insole. As a result of the deformity he has a significantly reduced walking tolerance. He is able to walk for about 10 minutes without any assistance but then needs to sit down because of pain in his foot and lower back. If he has to walk for more than 10 minutes he needs to use a walking aid but does not require the assistance of another person. He also has intermittent problems with his right and left knees.
The Respondent accepts and the Tribunal agrees that that Mr Hammam’s various lower limb conditions are permanent for the purposes of the Impairment Determination.
The Respondent contends that, during the claim period, the functional impact of these conditions on activities requiring the use of lower limbs was mild so that a rating of 5 points under Impairment Table 3 can be applied.
The corroborating medical evidence in respect of the functional impact of Mr Hammam’s various lower limb conditions on activities requiring lower limb activities during the claim period can best be described as incomplete and somewhat unhelpful.
In a Centrelink Medical Report dated 2 December 2014 Dr Nicola, GP, lists a diagnosis “Fracture of right 2nd, 3rd & 4th metatarsals” as a condition with most impact and describes impact on ability to function as “difficulty in walking, standing” but provides no other details.
Dr Nicola lists a diagnosis of “deep vein thrombosis & post thrombosis syndrome” as a condition with significant impact and describes impact on ability to function as “chronic pain swelling, redness of the whole right leg. Extensive varicose veins as a result of extreme DVT”.
Dr Nicola does not mention any problem with the right knee and lists a diagnosis of left knee osteoarthritis as a medical condition that causes severe impact but provides no other details.
In a letter dated 29 August 2014 Dr McGrath, consultant physician vascular medicine, states inter alia the following :
…..Mr Hammam’s management then continued with analgesia, the CAM that he wore for approximately 6 months, and the crutches. He underwent physiotherapy and reports that the development of swelling of his right leg approximately 2 months after the accident prompted his referral for further investigations including a Duplex ultrasound examination of the veins. The latter was carried out on 11 October 2013…..report documenting a deep vein thrombosis extending from the calf veins of his right leg up the deep venous system into the right common femoral vein…..referred to the Haematology Department at St George Hospital …treatment with anticoagulation was commenced and he was then continued on an oral anticoagulant (Rivaroxaban) for approximately 8 months. The swelling subsided but Mr Hammam continues to experience pain in his right foot and has difficulty walking without the assistance of at least one crutch. This difficulty was evident today…..On examination he was walking with the assistance of the crutch being affected by continuing pain in the region of the right foot. His right calf was mildly swollen and slightly warmer than the left and there was a minor difference in the calf circumference measurements: right …..39 cm; left ….37.5 cm. There was also increased skin temperature in the region of the right ankle. There was no asymmetry of colour and there was no prominence of superficial veins except for some minor superficial venous abnormalities in the region of the left knee. There was no significant difference in the thigh circumference measurements …49 cm… right, and 49.5 cm…left:
I note that the Dr McGrath’s detailed physical examination does not support Dr Nicola’s description noted above.
In a report dated 23 December 2014 Mr Swinson, physiotherapist in the Pain Management Unit, notes that Mr Hammam “currently uses a walking stick if he walks for more than 10-15 minutes due to pain”.
Notwithstanding the limitations of the medical evidence and after due consideration of the descriptors in Impairment Table 3, I am satisfied that the evidence before the Tribunal tends to suggest that, during the claim period, Mr Hammam probably suffered a moderate functional impact on activities using lower limbs so that a rating of 10 points under Table 3 would be appropriate.
Lumbar spine condition
Mr Hammam claims that he suffers chronic low back pain which is made worse with prolonged walking and sitting.
The report of an MRI of the lumbar spine performed on 7 January 2014 notes “mild changes at L4/5 ….for the L5 nerve root there is narrowing of the left recess albeit mild only”.
In a report dated 5 November 2014 Dr Guirgis, orthopaedic surgeon, notes inter alia the following:
Episodic severe pain and stiffness in the lower back….patient also described attacks of radiation down left lower limb…during exacerbations of pain there was increased and difficulty to stand or walk for long periods of time. Sometimes such painful episodes were that bad forcing him to stay in bed being unable to move at all. Such acute exacerbations lasted for few hours to few days…”
Dr Nicola in his report of 2 December 2014 lists a diagnosis “L4/5 lumbar degenerative disc disease” as a medical condition with severe impact but provides no other details.
In a letter dated 22 September 2015 Dr Nicola notes that the Mr Hammam’s lumbar spondylosis causes “difficulty in bending, lifting or standing”.
On the evidence before the Tribunal, I accept that during the claim period Mr Hammam’s “lumbar spondylosis” was permanent for the purposes of the Impairment Determination. However, in my view, there is insufficient corroborative evidence to allow for a reasonable assessment of the functional impact of this condition so that a rating under Impairment Table 4 cannot be applied.
Mental health condition
Mr Hammam told the Tribunal that the medical condition which currently has the most functional impact is his mental health condition.
In a brief note dated 4 February 2014 Dr Younan, psychiatrist, noted a diagnosis of “Post Traumatic stress disorder. Major depression” and prescribed antidepressant medication, Mirtazapine and Lexapro. Dr Younan did not provide any other relevant details.
In a letter dated 24 September 2014 Dr Wheatley, clinical psychologist in the Pain Management Unit, noted that “In terms of mood, Mr Hammam presented with symptoms consistent with depression” and stated that he would benefit from “learning psychological pain management strategies” and “ongoing psychological intervention”.
Dr Wheatley suggested that Mr Hammam would benefit significantly from a pain management program such as the ACTIVATE program at St George Hospital.
Mr Hammam told the Tribunal he was offered a position in this program on at least two occasions but declined because he felt that the requirements of the program were too intensive and conflicted with other medical commitments. He also said that he had not had any psychological therapy to date.
In a letter dated 11 May 2015 Dr Younan notes inter alia the following:
He reported that since his previous visit he had taken Mirtazipine 30 mg regularly, plus Lexapro 10 mg Daily. He however did not feel any better. In fact he reported feeling worse. …on assessment I found him still suffering from symptoms consistent with chronic posttraumatic stress disorder and major depression. ….The prognosis in my view is unfortunately guarded. What is hoped for is some alleviation in his symptoms by medication. This time I increased the dose of Mirtazapine to 45 mg….and maintained him on the same dose of Lexapro.
In a brief note dated 10 June 2015 Dr Younan states “He is even more depressed and started to develop psychotic symptoms of auditory hallucinations”.
In a letter dated 1 October 2015 Dr Younan stated inter alia the following:
I first saw Me Hammam on the 4th February 2014 and diagnosed him with Post traumatic stress disorder and depression. I then maintained him on the antidepressant Lexapro and added another antidepressant Mirtazapine. On reviewing him on the 5th May 2015, he reported that he has been taking his medications regularly, but his depression persisted and in fact worsened. I then increased the dose of antidepressant Mirtazapine to 45 mg each evening. I then saw him on 10 June 2015 when he reported that the higher dose of Mirtazapine made him sleepy during the day and I found that what disturbed him the most was hearing voices. I consider these voices mood congruent and as such they turned his diagnosis of his major depression into major depression with psychotic symptoms. Hoping that that if his depression resolves the hallucinations would subside. I lowered the dose of Mirtazapine to 30 mg because of lack of tolerance and added the antidepressant Efexor at a dose of 75 mg daily. I reviewed him last on the 30 September 2015….in terms of treatment I added the anti psychotic Zyprexa and increased the dose of the antidepressant Efexor to 150 mg.
The evidence before the Tribunal clearly indicates that Mr Hammam was diagnosed with a significant mental health condition, by a psychiatrist, in February 2014. However, there was no psychiatric review until May 2015 which was after the end of the claim period. During the 15 months after the original diagnosis Mr Hammam took regular medication but had no other psychiatric or psychological therapy.
Dr Younan’s evidence suggests that it is likely that during the claim period Mr Hammam’s mental health condition had deteriorated and that during that period there had been no review or modification of his treatment. The evidence also suggests that during 2015 Mr Hammam’s condition deteriorated further with the onset of auditory hallucinations which required a significant change in his medication.
In my view, the evidence before the Tribunal indicates that during the claim period Mr Hammam’s mental health condition was diagnosed but was not fully treated and fully stabilised so that a rating under Impairment Table 5 cannot be applied.
Other medical conditions
In his report of 2 December 2014 Dr Nicola lists the diagnoses of “Type 2 Diabetes Mellitus” and “Hypercholesterolaemia” as medical conditions that cause severe impact but provides no other details.
I accept that during the claim period these conditions were probably permanent for the purposes of the Impairment Determination. However, there is insufficient corroborative evidence to allow any assessment of functional impact so that a rating under the Impairment Tables cannot be applied.
In his letter of 22 September 2015 Dr Nicola refers to a ”chronic heart condition” which has the “potential for giving him manifestations of limited level of exertion and shortness of breath”, but does not provide a meaningful assessment of the actual “manifestations” during the claim period.
In a letter dated 10 December 2014 Dr Brahmbhatt, cardiologist, notes that Mr Hammam’s current echocardiogram “shows a stable heart condition in comparison to his echo of 2012” but provides no details with respect to any functional impairment.
I accept that during the claim period the cardiac condition was permanent for the purposes of the Impairment Determination. However, there is insufficient corroborative evidence to allow for any assessment of functional impact so that a rating under the Impairment Tables cannot be applied.
DECISION
For reasons set out above I am satisfied that, during the claim period Mr Hammam did not have an impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member .................................[sgd].......................................
Associate
Dated 29 February 2016
Date(s) of hearing 20 January 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Ratings
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Continuing Inability to Work
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