Henein and Secretary, Department of Social Services (Social services second review)
[2017] AATA 10
•5 January 2017
Henein and Secretary, Department of Social Services (Social services second review) [2017] AATA 10 (5 January 2017)
Division
GENERAL DIVISION
File Number
2014/5836
Re
Farag Henein
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 5 January 2017 Place Melbourne The Tribunal affirms the decision under review.
........................................................................
Regina Perton, Member
SOCIAL SECURITY - disability support pension – whether medical conditions fully diagnosed, treated and stabilised at time of claim or within 13 weeks of that date – points to be allocated - some conditions not fully diagnosed, treated and stabilized - insufficient points to qualify for disability support pension – resident for less than 10 years – whether medical conditions arose before or after migration - decision affirmed
Legislation
Social Security Act 1991 section 4, 7, 94
Social Security (Administration) Act 1999 Schedule 2, section 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011REASONS FOR DECISION
Regina Perton, Member
5 January 2017
Farag Henein arrived in Australia from Egypt as a permanent resident in May 2011. He and his wife had been granted carer visas on the basis of the care needs of his wife’s mother and stepfather who lived permanently in Australia. Mr Henein and his wife had visited Australia on three previous occasions. Mr Henein had been working for a government agency in Egypt in a paymaster/clerical role and had also run a family business part-time. He was aged fifty when he arrived in Australia.
Mr Henein lodged a claim for disability support pension (DSP) with Centrelink on 19 May 2013. Centrelink, the service provider which administers DSP for the respondent, refused the claim on 25 August 2013 on the basis that Mr Henein did not attain 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) at that time. The impairments cited in the claim included deep vein thrombosis (DVT), back and leg pain and a lack of concentration due to the residual effects of a brain tumour removed some 14 years earlier. Mr Henein was granted newstart allowance (NSA) as from 26 May 2013 and was exempt from the requirement to satisfy the activity test for NSA for the following year due to his medical conditions.
On 2 January 2014 Mr Henein contacted Centrelink advising that he intended to lodge a fresh claim for DSP. He lodged that claim on 13 January 2014. A medical report accompanied the claim form. In addition to the impairments cited in his earlier DSP claim, there was also a diagnosis of depression/anxiety.
On 14 February 2014 Centrelink advised Mr Henein that his claim for DSP had been rejected as he did not meet Australian residence requirements. Social security legislation generally prescribes that a person must have at least ten years of Australian permanent residence to be eligible for DSP.
There is an exception to the 10 year rule for eligibility for DSP where a person is a permanent resident at the time of claim and satisfies the decision maker that his continuing inability to work became apparent only after he became a permanent resident. In other words, the impairments and the consequent inability to work need to arise after the person has moved to Australia as a permanent resident.
On 5 May 2014 Mr Henein sought review by an authorised review officer of Centrelink (ARO). He submitted a large number of medical reports and certificates in an effort to show that all of his medical conditions had arisen after his migration to Australia. The ARO affirmed the original decision on 6 August 2014 on the basis that Mr Henein had a continuing inability to work before his arrival in Australia and therefore could not access the exception to the requirement to have been resident in Australia for 10 years prior to qualifying for DSP.
Mr Henein lodged an application for review of the decision with the Social Security Appeals Tribunal (SSAT) on 19 August 2014. On 9 October 2014 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Mr Henein’s impairments did not rate 20 points on the Impairment Tables on 13 January 2014 or within 13 weeks of that date, namely 14 April 2014 (the relevant period).
On 11 November 2014 Mr Henein lodged an application for review of the SSAT decision with this Tribunal.
The first issue for the Tribunal to consider is whether Mr Henein could satisfy the requirement of 20 points under the Impairment Tables during the relevant period. If he did, then the Tribunal needs to consider if he had a continuing inability to work at that time. Lastly, if those requirements have been met, it must be determined whether the continuing inability to work first occurred after Mr Henein became a permanent resident.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
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) …the person has a continuing inability to work
(d) the person has turned 16; and
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) …
(ea) one of the following applies:
(i) the person is an Australian resident;
…
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5)
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
...
Active participation in a program of support
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D) The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E) The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
Other definitions
(5) In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Person not qualified in certain circumstances
(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of application to be granted DSP if they qualify within 13 weeks of that date.
DOES MR HENEIN SUFFER FROM AN IMPAIRMENT?
In his claim form lodged on 13 January 2014, Mr Henein described his ailments as major depressive disorder – lack of concentration - cognitive function, back pain – left sciatica, previous brain tumour.
On 13 January 2014 Mr Henein's general practitioner, Dr Menrit Abrahams, completed a medical report indicating that Mr Henein suffered from depression/anxiety, back pain – left sciatica, right DVT and left shoulder pain.
On 16 December 2013 Dr Youssef Malek, consultant psychiatrist, provided a letter to Mr Henein in which he stated that Mr Henein had been his patient since 25 July 2013 and was suffering from Major Depressive Disorder.
Dr Abrahams provided a letter dated 30 December 2013 in which he stated:
Mr Farag Henein 52 yrs old, had been my pt since 2011, he had multiple medical problems, including, D Back pain, Left sciatica, previous Right DVT, previous brain tumour removed in 1999, Insomnia and sleep disturbance, he has multiple joint pain and is currently under the rheumatology dept at the Alfred, he suffers from depression and is currently under a psychiatrist, I do not anticipate that his condition will improve over the next 24 months.
The Tribunal accepts that Mr Henein suffered from a number of medical conditions during the relevant period and continues to do so. He therefore meets the requirements of section 94(1)(a) of the Act.
DO MR HENEIN'S CONDITIONS ATTRACT AN IMPAIRMENT RATING OF 20 POINTS?
The Tribunal must next decide whether Mr Henein's medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under paragraphs 6(3) and (4) of the Impairment Tables. The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(2) of the Act).
Paragraph 6 of the Impairment Tables states that:
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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 is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either 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; or
(bthe person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Paragraph 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
FURTHER MEDICAL REPORTS
The Tribunal was provided with the translation of a medical report originally written in Arabic dated 19 August 1999 and translated in 2011:
The bearer was admitted to the hospital on 13/08/1999 and discharged from it on 19/08/1999. He was found to suffer from tumour in the left dorsal of the brain. The tumour was removed surgically. He needed two months of rest starting from the date of discharge, and completion of treatment and follow up.
In November 2013 there were radiological investigations of Mr Henein’s cervical spine and left shoulder. An MRI in October 2013 of Mr Henein’s lumbar spine revealed minor L4/5 disc disease.
On 13 February 2014 Dr Peter Kacser, radiologist, provided a report following an ultrasound of Mr Henein’s left thumb:
There is moderate thickening of the flexor tendon sheath, in particular at the level of the metacarpophalangeal joint. This measures up to about 2.5mm across. There is increased vascularity present. The features are consistent with tenosynovitis. There is also some thickening of the tendon in this area.
There is bunching of the tendon seen in flexion and extension at the level of the metacarpophalangeal joint
On 20 March 2014 Dr Malek provided the following letter addressed to Mr Henein at his request:
This is to certify that Mr. Farag Henein has been my patient since 25 July 2013 until the present time. He is suffering from Major Depressive Disorder and he is taking two antidepressant medications without satisfactory control on his depressive symptoms. His memory is not great at the moment, and he was referred for neuropsychological assessment and MRI on his Brain. He is also suffering from a number of complex physical illnesses which are explained in a letter from his General Practitioner.
I believe Mr. Henein’s Major Depressive Disorder, Memory Problem and his complex physical illnesses are impacting severely on his concentration, cognitive function, communication, endurance, and energy level. The current impact of his psychiatric condition on his ability to work is expected to run a chronic course and to deteriorate over time and to persist for more than 24 months. Therefore I support his application for Disability Support Pension from Centrelink.
Dr Malek provided a further letter addressed to Mr Henein on 24 April 2014 with some slightly different wording to the first paragraph of the letter dated 20 March 2014 (highlighted in earlier letter above) but the rest of the text remaining the same.
This is to certify that Mr. Farag Henein has been my patient since 25 July 2013 until the present time. He is suffering from Major Depressive Disorder and he is taking two antidepressant medications without satisfactory control on his depressive symptoms.
Mr Henein is also suffering from poor memory, and he saw a Neurologist at Monash Medical Centre for this problem.He was referred by the Neurologist for Neuropsychological Assessment and MRI on his Brain.
A letter from The Alfred Hospital dated 25 February 2014 advised Mr Henein that he has been booked in for an overnight sleep study on 30 April 2014. A letter addressed to Mr Henein dated 29 April 2014 advises him that his next appointment with Dr Andrew Gillman of The Alfred Sleep Service is scheduled for 20 May 2014. Dr Gillman had provided an earlier report to Dr Abrahams on 5 March 2013 in which he had stated, amongst other things:
…
Farag presents a history of insomnia. There is a clear psychological element to this problem and Farag would benefit from exploring relaxation techniques and I have given him suggestions today….I will see Farag back in the clinic in two months time and if he is still having troubles we may need to discuss the role of a sleep psychological referral.
In a letter dated 6 May 2014, three weeks after the relevant period, Dr Abrahams repeated some of what he had written on 30 December 2013 but with some added conditions:
Mr Farag Henein 52 years old, has been my pt since 2011, he has multiple medical problems, including, Back pain, Left sciatica, previous Right DVT, previous benign brain tumour removed in 1999, Insomnia and sleep disturbance, he has multiple joint pain and is currently under the rheumatology dept at the Alfred, he suffers from depression and is currently under a psychiatrist, he has left arm nubness [sic] and currently being inestigated [sic] by a Ct scan. I do not anticipate that his condition will improve over the next 24 months.
On 12 April 2013 Dr Manhinder Mundae, Visiting Medical Officer at the Rheumatology Unit of The Alfred Hospital wrote to Dr Abrahams:
Thank you for referring Mr Henein to our Rheumatology Clinic today. He is a gentleman who presents with widespread joint pain.
Farag is a 52-year-old gentleman who lives with his wife who is not currently working. He has a history of hyperlipidaemia, gout, hypertension and gastro-oesophageal reflux disease. He has had a benign tumour removed from his brain. He is factor V Leiden homozygous and has a prothrombin gene mutation.
…
He describes pain for more than three years in every joint of the body. He feels this in the neck, the shoulders, the knee, the ankles and the back. It has been getting worse and the pain is constant….He does not describe swelling in the joints. There is no muscle pain. It is just the joints. He describes numbness in the left arm and leg. He feels tired with the pain. He does not have a rash. His appetite is good. He does not describe any systemic features. He exercises and is walking occasionally.
…
He has had extensive investigations with x-rays of multiple parts of the body which have all been essentially normal. The cervical spine x-ray did reveal some degenerative changes; otherwise, the knee x-rays were normal. The hip x-rays were normal. The lumbar back x-ray and CT scan were normal….
This gentleman has widespread joint pains, though clinically, I could not find any evidence of inflammation.
In the first instance to check if this is mechanical or inflammatory pain, I have ordered a whole body bone scan. I have also ordered blood tests, rechecking his inflammatory markers and his automimmune scan…
We will cater this gentleman after he has had the investigations. In the interim, I have advised him to continue with the Panadol and some gentle exercise.
On 7 June 2013, Dr Flavia Cicultini, head, Rheumatology Unit at The Alfred Hospital wrote to Dr Abrahams:
I reviewed Mr Henein today in Rheumatology Outpatients
He has a number of problems. However, the musculoskeletal symptoms are most consistent with Fibromyalgia. I note that the Respiratory Unit has also suggested Mr Henein see an Arabic psychiatrist as his sleep abnormalities seem to be stress related. We are still waiting for his bone scan. However, the clinical diagnosis is most consistent with fibromyalgia. I have suggested that he see the Arabic psychiatrist to try and discuss some of the stresses that he is currently experiencing. In addition, regular exercise, some water-based exercises if possible and learning how to relax the muscles will be very important in trying to manage his symptoms….
The Tribunal was also presented with the medical notes from Sandringham Hospital where Mr Farag was treated in May – June 2011 for above knee DVT in the right leg. Notes from the hospital’s clinic indicate that Mr Henein will require lifelong use of Warfarin as he suffers from Homozygous V Leiden.
A GP referral by Dr Abrahams on 14 May 2014 to The Alfred Hospital for a CT Cervical Spine because of pain in the left shoulder and left arm with pins and needles left arm.
On 28 May 2014 Dr Abrahams referred Mr Henein to the Orthopaedic Clinic of The Alfred Hospital for the following reason:
THANK YOU FOR SEEING MR HENIN WITH SEVERE PAIN AND RESTRICTED MOBILITY LEFT SHOULDER, US SHOWED TENDINOSIS AND BURSITIS, FROZEN SHOULDER, AS PT IS ON WARFARIN I CANNOT PRESCRIBE HIM NSAIDS OR REFERR [sic] HIM FOR INJECTION OR HYDRODILATATION, I AM REFERRING HIM FOR AN OPINION AND MANAGEMENT.
A report dated 1 May 2014 from The Alfred Sleep Disorders & Ventilatory Failure Service indicated that a sleep study had been undertaken that day.
There were a number of reports tendered to the Tribunal concerning further examinations that took place after the relevant period in relation to the present application before the Tribunal. An MRI of Mr Henein’s head was scheduled for 26 May 2014 at Monash Medical Centre. On 20 June 2014 Mr Farag was referred for a further opinion:
Your neurologist has referred you for a neuropsychological opinion. This involves testing a variety of aspects of thinking, such as concentration, ability to solve problems, and memory for new information…
On 28 August 2014 Dr Niloufar Mahdavi, Senior Clinical Neuropsychologist, prepared a report addressed to A/Prof Velandai Srikanth of Monash Neurology. After describing Mr Henein’s history, his assessment findings and other matters, he gave his Opinion and Recommendations:
The current neuropsychological assessment revealed reduced auditory attention and working memory, speed of processing, and aspects of executive functions, with secondary impacts on the efficiency of new learning and information retrieval. There was limited suggestion for a primary memory disorder, and at a fundamental level visuo-spatial and language functions appeared to be globally preserved. Mr Henein endorsed extremely severe levels of depressive, anxiety and stress symptoms. These findings occurred against the background of a self-reported 2 year history of deteriorating cognition which has coincided with his migration from Egypt to Australia and the onset of emotional symptoms.
In the context of the current findings and available history, Mr Henein’s cognitive difficulties are likely to be largely related to his current mood symptoms. Whilst I note his previous neurosurgical procedure in Egypt, this occurred some 15 years ago and the available history was not suggestive of any reported changes to his cognition following this procedure. Given his severe emotional symptoms, it is difficult to ascertain cognitive features consistent with a concomitant neurodegenerative disorder, and on the basis of the clinical history, presentation and assessment results, this seems less likely at this point in time. It is expected that ongoing stabilisation in his emotional symptoms would assist his cognitive function, and we have now established a baseline of his current function should any ongoing or additional concerns arise in the future.
With the interpreter, I provided Mr Henein with some general feedback about the impact of mood on everyday cognition. He appeared to take this on well. I also encouraged him to consider ongoing psychological therapy and he was open to this, stating preference for an Arabic speaking clinician. I have asked him to discuss a potential referral to clinical psychology with his GP and Psychiatrist. He may also benefit from engaging in some social and recreational activities, should he wish to pursue this.
On 20 October 2014 A/Professor Velandai Srikanth of Monash Neurology sent a note to Mr Henein’s general practitioner, Dr Onsy Hanna:
Mr Henein has had his neuropsychology assessment which seems to confirm reduced tension, working memory and speed of processing, together with executive difficulties which are consistent with his depressive disorder. Although there might be some underlying cognitive deficits from his previous brain surgery, it is hard to know how much this might be the case. However, there doesn’t seem to be a primary memory deficit which usually is a feature of Alzheimer’s dementia, hence this possibility is unlikely at this stage. Suggestions are to treat the depression aggressively as he is with his psychiatrist, Dr Malek, and also potentially some psychological therapy preferably with an Arabic speaking psychologist.
…
On 19 November 2015 Dr Hanna provided a medical certificate certifying that:
Mr. Farag Henein was given referral to Neuropsychiatrist assessment for his amnesia that he had for more than 10 years, and got worse since arrival to Australia. He also suffers from poor concentration, anxiety and depressed mood since migrated to Australia and had DVT of the right leg.
On 1 February 2016 Dr Malek provided a further report at Mr Henein’s request:
This is to certify that Mr. Farag Henein has been under my psychiatric care since 25 July 2013 until the present time. He is suffering from Major Depressive Disorder, with Generalised Anxiety Disorder and insomnia. His Major Depressive Disorder started in 2012. His Generalised Anxiety Disorder started in June 2015 and its treatment commenced on 18 June 2016 [sic] by increasing the dose of his morning antidepressant which is also effective for the treatment of anxiety. He is also on a night time antidepressant which has a sedating effect to assist with his insomnia.
Despite the pharmacological and psychological interventions, his symptoms are still persistent. This means that his psychiatric symptoms are chronic, severe and treatment resistant. Therefore, the treatment options for Mr Henein’s symptoms would be a number of trials on different antidepressants, adding a mood stabiliser, adding an atypical antipsychotic, using Electro Convulsive Therapy while his is under a general anaesthetic or using repeated Trans-cranial Magnetic Stimulations while he is in his normal wakeful state.
…
Mr Henein has been suffering from his psychiatric conditions and impairments while under my care from 25 July 2013 until the present time, including the period from 13 January 2014 to 14 April 2014.
Mr Henein’s mental conditions are impacting severely on his concentration, cognitive functions, motivation, communication, endurance and energy level. The current impact of his conditions on his ability to work is expected to run a chronic course and to deteriorate over time and to persist for more than two years. Therefore, I support Mr Henein’s application for Disability Support Pension from Centrelink.
…
Dr Malek had provided earlier reports with a similar text to the letter above on 22 June 2015 and 5 November 2015.
Dr Abrahams, Mr Henein’s previous general practitioner, had also provided an update on Mr Henein’s condition on 4 March 2015 and 24 June 2015.
On 1 February 2016, Dr Hanna provided a medical certificate for Mr Henein stating:
I’m writing this report in my capacity as the regular treating General Practitioner to Mr Henin [sic]. He has been suffering from anxiety disorder and major depressive disorder started in 2012. He is also suffering from poor memory and cognitive difficulties secondary to his depressive illness. He is seeing psychiatrist for treating his severe & chronic form of anxiety and depressive disorder. Mr Henin [sic] mental condition is affecting his concentration, motivation, ability to work, cognitive functions and energy levels.
POINTS ASSESSMENT DURING THE RELEVANT PERIOD
Anxiety/Depression
The preamble at the start of Table 5 states:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
· 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 by a psychiatrist).
· Self-report of symptoms alone is insufficient.
...
· The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Tribunal accepts that Mr Henein had been diagnosed as suffering from a major depressive disorder prior to lodgement of the claim by both his general practitioner and a treating psychiatrist. The Tribunal also accepts that the depression and the anxiety state diagnosed later have had, and are having, a profound effect on Mr Henein. The available evidence indicates that the condition arose after Mr Henein’s arrival in Australia as a permanent resident.
Mr Henein gave evidence about the changes in his life that followed migration to Australia. In Egypt, he and his wife had a 160 square metre apartment. He was working and had a great lifestyle and a good income. He and his wife have been married since 1985 and had a happy marriage. In Australia in contrast he stays in one room in his in-laws’ home. His in-laws suffer from serious medical problems and his wife spends most of her time caring for her stepfather and her mother. Instead of the happy person he was before arriving, Mr Henein said he is now always in pain with various medical conditions and feels sad and depressed.
Whilst it is clear that Mr Henein’s mental health issues had a major impact on his health and wellbeing during the relevant period and continue to do so, that does not automatically entitle him to DSP or to being allocated points for the purposes of this review.
The reports cited earlier indicate that at the date of the claim, as well as during and after the period, Mr Henein’s psychiatrist and doctors were still considering a number of options in relation to treating his condition including changing his drug regime, possible electro convulsive treatment and other possibilities in relation to his depression and anxiety. He was yet to see the neuropsychologist that the neurologist had referred him to in relation to the concerns about his cognitive issues.
The Tribunal finds that Mr Henein’s condition could not be considered fully treated and stabilised in relation to the January 2014 claim. Therefore, no points can be awarded pursuant to the legislative requirements.
Insomnia and sleep disturbance
Insomnia and sleep disturbance were mentioned in the letter written by Dr Abrahams on 30 December 2013. Sleep issues were also mentioned by Dr Gillman in correspondence in March 2013 and by Dr Cicuttini in June 2013. There were also later references by other medical specialists. The Tribunal therefore accepts that Mr Henein had been diagnosed with insomnia and sleep difficulties prior to the date of claim by appropriate medical specialists.
However, Mr Henein’s sleep study to confirm the reasons for, and severity of, his sleep issues took place on 1 May 2014 which was after the relevant period. He was subsequently diagnosed with moderate obstructive sleep apnoea as a result of the study. There were also suggestions that his mental health issues impacted on his sleeping issues.
On the basis of the timing of the further investigations into his sleep issues, the Tribunal is not satisfied that the condition was fully diagnosed, treated and stabilised during the relevant period. Therefore no points can be awarded for this condition.
Previous right DVT
Mr Henein’s DVT of his right leg arose after his long flight to Australia as a permanent resident. He was treated at Sandringham Hospital and placed on ongoing medication. He was also diagnosed with heterozygous Factor V Leiden, a genetic condition that predisposes a person to DVT. Mr Henein gave evidence that he still suffers as a result of the DVT with swelling of his leg and the need to wear a compression garment. The requirement to take Warfarin daily has impacted on the treatment for other conditions.
In his medical report dated 13 January 2014 prepared in relation to the claim under review, Dr Abrahams answered “yes” to a prompt question asking: Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function? with the response being Right DVT and left shoulder pain. The condition has also been described in later reports as previous DVT.
Asked by the respondent’s advocate about the impact of the DVT on him, Mr Henein said that he cannot stand for longer than 10 minutes and could only walk for about 10 minutes before he has to stop and rest. The Tribunal is not satisfied that the limitations on Mr Henein’s walking and standing are due solely to the DVT he suffered in June 2011 rather than being intertwined with other conditions which now impact on him.
The respondent submitted that there is no medical evidence that the condition results in a continuing impairment apart from the need to be aware of possible future risk.
Based on the available evidence, the Tribunal finds that this condition does not attract an impairment rating.
Previous benign brain tumour
In his claim form for DSP, Mr Henein mentioned his previous benign brain tumour. Initially it was Dr Abrahams’ view and that of Dr Malek that there might have been a residual effect on Mr Henein’s cognitive functions.
During the relevant period, it was still not clear if there was an impact. However later investigations, including an MRI of the head and examinations by neurologists and neuropsychologists suggest that the cognitive impairments exhibited by Mr Henein are related to his mental health issues rather than the residual effects of the surgery to remove the tumour.
Based on the later investigations and reports, the Tribunal finds that the previous surgery did not lead to any impairment at the date of claim. No points are therefore allocated for this condition which was fully diagnosed, treated and stabilised many years before Mr Henein arrived in Australia as a permanent resident.
Back pain and/or fibromyalgia and/or multiple joint pain
In his claim form, Mr Henein stated that he suffered back pain – left sciatica in the list of conditions from which he suffered. Dr Abrahams cited the same conditions in his medical report in relation to the DSP claim however he did not provide a date of onset. He stated that the diagnosis had been confirmed by a rheumatologist and that Mr Heinen had undertaken an MRI. His current treatment was described as physio and pain management. Dr Abrahams stated that Mr Heinen was a rheumatology outpatient at The Alfred. Future treatment plans were pain management and physio. Dr Abrahams stated that Mr Heinen cannot walk for long distances and cannot bend.
In his letter dated 30 December 2013 Dr Abrahams included back pain, left sciatica and multiple joint pain as separate conditions.
As indicated earlier, Mr Heinen underwent an MRI on 7 October 2013 which revealed minor L4/5 disc disease. What was made of that investigation and report is not clear.
In April 2013 and June 2013, Mr Heinen saw rheumatologists at The Alfred Hospital who could not find the reasons behind his multiple joint pain and/or possible fibromyalgia and ordered more tests including a bone scan, blood tests and an autoimmune scan. Dr Cicuttini suggested a possible link with his mental health issues and suggested regular exercise and learning how to relax his muscles. It is not clear if Mr Heinen followed that advice. The SSAT in its decision records that Mr Heinen stated that he had not commenced any management as recommended by Dr Cicuttini. There is also no clear evidence as to whether the diagnosis of possible fibromyalgia that she made became more certain after the later testing.
The Tribunal also notes that in his letter of 6 May 2014, Dr Abrahams lists back pain as a condition but does not include fibromyalgia. In another letter dated 4 March 2015, long after the relevant period, Dr Abrahams mentions fibromyalgia as one of Mr Henein’s current medical problems. His notes also reveal that minor L4/5 disc disease was diagnosed in 2013 as was fibromyalgia.
Interestingly, in a medical certificate dated 3 March 2015, the day after Dr Abrahams’ letter, Dr Hanna, Mr Henein’s later or concurrent general practitioner, mentions severe cervical & lumber disc disease, multiple joint osteoarthritis, fibromyalgia and gout as affecting his patient. So at some time between the relevant period and early March 2015, a diagnosis of osteoarthritis appears to have been made.
The Tribunal accepts the respondent’s contention that there is insufficient clear medical evidence about Mr Henein’s back condition, multiple joint pain and/or fibromyalgia to determine that the conditions were fully diagnosed, treated and stabilised on the date of claim or during the relevant period. Therefore, despite the Tribunal accepting that Mr Henein suffered from pain related to his joints, back and the like during the relevant period, it is not in the position to award any points given the lack of clarity about treatment and stabilisation at that time.
Left sciatica
Mr Henein had been diagnosed with left sciatica prior to making his claim. However it has been cited alongside back pain with no particular treatment cited for that condition. The Tribunal is therefore unable to be satisfied that the condition was fully treated and stabilised. No points are therefore awarded for that condition during the relevant period.
Left shoulder pain
The medical evidence indicates that Mr Heinen was diagnosed with left shoulder pain at the date of claim. However, in the medical report accompanying the claim, Dr Abrahams indicated that the condition was well managed and caused minimal or limited impact on ability to function (response to prompt question on form).
However, the condition obviously deteriorated. On 14 May 2014, after the relevant period, Dr Abrahams referred Mr Henein to The Alfred Hospital for a CT scan. On 28 May 2014, Dr Abrahams referred Mr Henein to the orthopaedic clinic at The Alfred Hospital in relation to his left shoulder.
The Tribunal finds that Mr Henein’s left shoulder pain was recognised at the date of claim but was not fully diagnosed, treated and stabilised during the relevant period. Therefore no points are awarded for that condition.
Other conditions
Mr Henein was reported to be suffering from a number of other conditions including gout, hypertension, hyperlipidaemia, right thumb (retained foreign body). Dr Abrahams indicated that the hypertension is generally well managed and causes minimal impact on Mr Henein. No points are awarded for that condition.
In relation to gout, left arm numbness, hyperlipidaemia, left thumb tenosynovitis and other conditions, the Tribunal finds that there is insufficient medical evidence to establish whether those conditions were fully treated and stabilised during the relevant period.
Conclusion
The Tribunal finds that Mr Henein does not meet section 94(1)(b) of the Act during the relevant period as he has not been allocated 20 points for his impairments under the Impairment Tables based on his functioning in early 2014.
The Tribunal accepts that Mr Henein is unable to work given the significant impact of his symptoms. However, the Tribunal is not able to consider whether Mr Henein would qualify for DSP if it were considering his medical conditions and limitations at the present time.
The Tribunal has commented on whether certain conditions arose before or after Mr Heinen became a permanent resident but later decision makers are not bound by the Tribunal’s comments. However, there is now a larger body of evidence, some of which the Tribunal has cited in this decision, concerning that matter if Mr Heinen has lodged, or decides to lodge, a fresh claim at some time in the future.
DECISION
The Tribunal affirms the decision under review.
75. I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member
...................[sgd]........................................
Associate
Dated 5 January 2017
Date of hearing 2 July 2015, 26 October 2015, 29 March 2016 Applicant In person Advocate for the Respondent Ms Ailsa Bramley
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Appeal
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Jurisdiction
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