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

[2016] AATA 780

Ibrahim and Secretary, Department of Social Services (Social services second review) [2016] AATA 780 (5 October 2016)

Division	GENERAL DIVISION
File Number	2016/0984
Re	Jason Ibrahim
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	5 October 2016
Place	Sydney

The decision under review is affirmed.

.................[sgd].......................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - mental health conditions - migraines - whether applicant had impairment rating of at least 20 points - whether conditions permanent - whether conditions fully diagnosed, treated and stabilised - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

5 October 2016

INTRODUCTION

1. On 11 May 2015, Mr Jason Ibrahim lodged a claim for the disability support pension.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Ibrahim did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 9 February 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Ibrahim did not satisfy s 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 25 February 2016, Mr Ibrahim applied to the General Division of the Administrative Appeals Tribunal for a second review of the decision.

5. The parties agreed that this review should be heard ‘on the papers’. As such, there has been no hearing and no oral evidence given. I have marked the documents filed by the Respondent in accordance with s 37 of the Administrative Appeals Tribunal 1975 (Cth) as Exhibit T1. 

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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 in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth) (Administration Act), to qualify for the disability support pension, Mr Ibrahim must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 11 May 2015 and 10 August 2015 (the claim period).

8. The Respondent concedes and the Tribunal agrees that Mr Ibrahim suffers medical conditions that cause impairment and therefore, he satisfied s 94(1)(a) of the Act at the time of his claim for disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Mr Ibrahim had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in s 94(2) of the Act.

   Does Mr Ibrahim have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. 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’.

13. Relevantly, the Introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also 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 by a psychiatrist)’.

14. The medical report for disability support pension completed by Dr Michael Panetta (General Practitioner) on 8 April 2015 listed Mr Ibrahim’s medical conditions as:

    ·chronic severe anxiety disorder with agoraphobia, panic attacks;

    ·major depressive disorder with or without psychotic features; and

    ·migraine headaches.

15. This medical report also noted Mr Ibrahim suffered from thalassemia and iron deficiency, which are ‘medical conditions that are generally well managed and that cause minimal or limited impact on [his] ability to function’.

16. Relying on the medical evidence before me, I consider Mr Ibrahim’s medical conditions for the purposes of his claim for disability support pension are:

    ·anxiety and depression – mental health condition;

    ·migraine headaches; and

    ·other conditions – thalassemia, iron deficiency, right wrist injury.

17. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Mental health condition

18. Dr Panetta, in the disability support pension medical report dated 8 April 2015,[1] stated that Mr Ibrahim suffered from ‘chronic severe anxiety disorder with agoraphobia, panic attacks’ and a ‘major depressive disorder +/- [with or without] psychotic features’, which are treated with medication. He noted that Mr Ibrahim saw a psychologist approximately six months ago, but provided no further details.

    [1] Exhibit A1.

19. The functional impact of these conditions for Mr Ibrahim were described by Dr Panetta as:

    ·decreased social/personal functioning;

    ·lower self-esteem, confidence in relationships;

    ·poor planning and motivation;

    ·decreased endurance and fatigue;

    ·decision-making and memory impaired.

20. Ms Jill Abeshouse (Psychologist) reported on 11 June 2015 that Dr Panetta referred Mr Ibrahim to her for treatment of depressive disorder with psychotic features. Ms Abeshouse stated that Mr Ibrahim experienced:

    … chronic low moods, with some suicidal thinking. His low mood appears to be exacerbated if he is required to go into busy situations … where he may have a panic attack. His anxiety levels are reported to escalate if he has to go into [a] noisy and busy situation.

21. I note that Ms Abeshouse is not considered to be an appropriately qualified medical practitioner, clinical psychologist or psychiatrist for the purposes of the Impairment Tables Determination and so I must place limited weight on the evidence in her report.

22. In a report dated 15 July 2015, Mr Gabriel Wong (Clinical Psychologist) stated that Mr Ibrahim presented with ‘Major Depressive Disorder with psychotic features, as well as features of Obsessive Compulsive Disorder’. He noted that Mr Ibrahim also exhibited ‘panic attacks and anxiety especially when he is in a busy and noisy environment’ and has suicidal thinking when he is in a ‘chronic mood’. He further reported that Mr Ibrahim has frequent headaches that require him to rest in a darkened room.

23. Dr Bhavanishankar (Consultant Psychiatrist), in a report dated 23 August 2015, stated that Mr Ibrahim saw him on 19 August 2015. Dr Bhavanishankar diagnosed Mr Ibrahim with generalised anxiety disorder and agoraphobia, and antisocial and borderline personality traits. He also noted ‘possible benzodiazepine dependence’ by Mr Ibrahim.

24. Dr Bhavanishankar further reported that he had made ‘no changes’ to Mr Ibrahim’s medication as he was ‘reluctant to discuss’. Further management strategies included ‘psycho education regarding the illness, treatment options and follow up arrangements’ and ‘review of his antidepressant medication and referral to see a psychologist’. Dr Bhavanishankar also noted in relation to Mr Ibrahim’s request for a review of the disability support pension that he ‘needs to comply with recommendations for treatment including psychological intervention and review of benzodiazepines’.

25. In a further report dated 8 September 2015, Dr Bhavanishankar stated that Mr Ibrahim remained at the same level and was reluctant to undertake psychological intervention but agreed to see Mr Wong. On 9 November 2015, Dr Bhavanishankar reiterated that Mr Ibrahim was not keen to pursue psychological intervention and he had ‘not made changes to his medications’.

26. Dr Bhavanishankar provided a summary report to Centrelink (facsimile dated 9 February 2016) in which he noted that Mr Ibrahim has been diagnosed with major depressive disorder with possible psychotic features, agoraphobia and panic disorder for over four years. He also reported that Mr Ibrahim has ‘undergone a comprehensive management’ but ‘there appears to be no significant functional improvement’.

27. Mr Wong reported on 1 May 2016[2] that he saw Mr Ibrahim for four sessions on 15 July 2015, 12 August 2015, 9 September 2015 and 7 October 2015. He noted that, at that time, Mr Ibrahim was prescribed with ‘Lobavan (40 mg), Serequel (25 mg), Kalma (4 mg), Termazepan, Crestor, Iron and Codeine for headaches’.

    [2] Exhibit A2.

28. Mr Wong further noted that a referral from Dr Panetta on 20 April 2016 showed Mr Ibrahim was taking the following medications: ‘Lovan (40 mg), Seroquel, Alprazolam, Temazepam for sometime’.

29. The medical evidence shows that Mr Ibrahim has been diagnosed by his treating medical practitioner, clinical psychologist and psychiatrist with anxiety disorder, agoraphobia, major depressive disorder, and antisocial and borderline personality traits; conditions that have a significant impact on Mr Ibrahim’s functional capacity.

30. However, despite Dr Bhavanishankar stating he had made no changes to Mr Ibrahim’s medications, the report by Mr Wong dated 1 May 2016 shows there were ongoing changes to Mr Ibrahim’s medications from July 2015 to May 2016. There also appears to be potential options for managing and treating Mr Ibrahim’s mental health condition with psychological intervention that were not fully investigated during the claim period.

31. I find that Mr Ibrahim’s mental health condition was not fully treated and fully stabilised during the claim period as required by the Impairment Tables Determination. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.

    Migraine headaches

32. In the disability support pension medical report dated 8 April 2015, Dr Panetta stated that Mr Ibrahim suffered from migraine headaches that occur one to two times per week and are debilitating. Mr Wong’s report on 1 May 2016 noted that Mr Ibrahim was taking ‘Codeine for headaches’.

33. An MRI of Mr Ibrahim’s head on 23 June 2015 concluded that there were ‘unremarkable intracranial appearances’ and ‘non-specific FLAIR [fluid-attenuated inversion recovery] white matter hyperintensities in both anterior frontal lobes’.

34. The Job Capacity Assessment Report (JCA) dated 6 July 2015 stated that Mr Ibrahim told the job capacity assessor on 29 June 2015 that ‘a specialist referral is pending to investigate MRI scan results’. Mr Ibrahim also stated that he had ‘recently commenced physiotherapy treatment which includes massage for his head and neck’.

35. There is no further information before the Tribunal regarding Mr Ibrahim’s migraines.

36. On the basis of the limited evidence before me, I am not satisfied that Mr Ibrahim’s condition was fully diagnosed, treated and stabilised during the claim period as required by the Impairment Tables Determination. I therefore cannot assign an impairment rating.

    Other conditions

37. In the disability support pension medical report dated 8 April 2015, Dr Panetta listed thalassaemia and iron deficiency as ‘medical conditions that are generally well managed and that cause minimal or limited impact on ability to function’.

38. The JCA reported that Mr Ibrahim confirmed the condition is ‘chronic, well managed and has no/minimal impact on function’.

39. Based on this limited information, I am satisfied that these conditions can be considered to be permanent during the claim period. There is no evidence before me to find these conditions have any functional impact on Mr Ibrahim and I assign an impairment rating of 0 points for these conditions.

40. While there is no reference in the disability support pension medical report dated 8 April 2015 to Mr Ibrahim having a wrist injury, the documents before me include evidence of a right wrist injury.

41. An x-ray of Mr Ibrahim’s right wrist by Dr Richard Wing (Radiologist) on 8 December 2010 revealed a ‘non-displaced and non-angulated traverse fracture through the distal end of the radius’. Ms Julie Collom (Physiotherapist) reported on 18 January 2011 and 24 January 2011 that Mr Ibrahim had limited mobility and strength of the right wrist, and treatment was to reduce pain, and ‘mobilization and strengthening work’.

42. There is no further information before me to indicate that Mr Ibrahim’s right wrist fracture in 2010 was permanent during the claim period or had any functional impact. I therefore cannot assign an impairment rating for this condition.

    CONCLUSION

43. For the reasons set out above, I am satisfied that Mr Ibrahim did not meet the requirements of s 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.

44. As I find that Mr Ibrahim did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

45. If Mr Ibrahim’s medical conditions change, he is entitled to submit a new application for disability support pension at any time.

    DECISION

46. The decision under review is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

..............[sgd]..........................................................

Associate

Dated 5 October 2016

Applicant	Self-represented
Solicitors for the Respondent	Ms J Eslick, Department of Human Services