Ismail and Secretary, Department of Social Services (Social services second review)
[2016] AATA 604
•15 March 2016
Ismail and Secretary, Department of Social Services (Social services second review) [2016] AATA 604 (15 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5314
Re
Mohamed Ismail
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 15 August 2016 Place Sydney The decision under review is affirmed.
...........................[sgd].............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – impairments do not attract a rating of 20 or more points under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
15 August 2016
Mohamed Ismail was granted Disability Support Pension (DSP) in 2010. Some years later, a review of his eligibility for DSP was undertaken. A delegate of the Secretary decided that he did not qualify and cancelled his DSP. Mr Ismail sought review. Successive decision makers have affirmed the original decision. He is not happy with this result and has applied for further review.
Issues
The issue for determination is whether Mr Ismail qualified for DSP on the day on which it was cancelled – 2 June 2015 (the cancellation day).
The qualification criteria for DSP are set out in s 94 of the Social Security Act 1991 (the Act). It is necessary to determine if the core requirements of s 94(1) are satisfied –
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
Impairments
The Secretary accepts that Mr Ismail had ‘impairments’ on the cancellation day.
On the evidence of Dr Selim, Mr Ismail’s treating general practitioner over a period of years before and after the cancellation day, it is quite clear that Mr Ismail suffered from the following medical conditions –
(a)anxious depression;
(b)lumbar spine disc disease and related pain, including pain radiating into his lower limbs;
(c)bilateral inguinal hernia;
(d)deformities affecting both feet;
(e)a right foot and ankle injury;
(f)epilepsy;
(g)hyperlipidaemia;
(h)hypertension; and
(i)gastro-oesophageal reflux disease.
On the present materials it is difficult to determine with any precision what impairments these conditions caused on the cancellation day.
That said, I think it can be accepted that Mr Ismail experienced some reduction in his movement function in his lower back and lower limbs, and some reduction in cognitive function.
There are but few references to Mr Ismail’s epilepsy or seizures. On 4 March 2015, Dr Selim listed this as a condition that significantly impacted upon Mr Ismail’s capacity to work or study, but he provided no detail of the nature or extent of any resulting impairments.
The extent to which, if at all, hyperlipidaemia and hypertension caused circulatory impairment or impairment of stamina on exertion is not presently established as of the cancellation day.
It can be accepted that Mr Ismail experienced reflux symptoms, and that such symptoms may have impaired his ability to function from time to time. There is, however, very little evidence to go on in respect of this condition.
Nevertheless, I am satisfied that Mr Ismail had physical and psychiatric impairments on the cancellation day. This means that the first DSP qualification criterion under s 94(1)(a) of the Act is satisfied.
Assessment and rating of impairments
The second qualification criterion requires a rating of 20 or more points under Impairment Tables set out in Part 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Part 2 of the Determination sets out rules for applying the Impairment Tables that must be followed when assessing impairments. A rating may only be assigned under the Impairment Tables to an impairment that results from a ‘permanent’ medical condition, where the impairment is expected to persist for more than 2 years. If a medical condition that is not ‘permanent’ causes impairment, no rating can be assigned for that particular impairment.
For a medical condition to be considered ‘permanent’ for the purposes of the Determination, the condition must be fully diagnosed, fully treated and fully stabilised: s 6(4). The matters set out in s 6(5) must be considered when deciding if a medical condition is fully diagnosed and fully treated. When determining if a medical condition is fully stabilised, the matters set out in s 6(6) and (7) must be considered.
Even though s 5(2)(d) of the Determination expressly provides that it is not for the purposes of assessing medical conditions, it is necessary to determine whether his impairments result from ‘permanent’ medical conditions before turning to consider the assignment of ratings under the applicable or relevant Impairment Tables.
Anxious depression – cognitive impairment
On the evidence of Dr Selim, Mr Ismail’s ‘anxious depression’ condition was assessed and diagnosed by Dr Clark, a psychiatrist, on 17 July 2009. Subsequently, he has been prescribed anti-depressant medication by Dr Selim.
On 28 August 2014, Dr Selim listed “psychotherapy” as past and future planned treatment for Mr Ismail’s anxious depression disorder.[1]
[1] T11 folio 125-126.
It appears that on 31 March 2015, Dr Selim informed a Registered Occupational Therapist from the Secretary’s Health Professional Advisory Unit (HPAU) that he referred Mr Ismail for psychological counselling treatment in or about 2012, but “there is no record that this was followed through”.[2]
[2] T14 folio 139.
A Job Capacity Assessment (JCA) was undertaken on 27 October 2014. I note that this was not reported until 7 May 2015. I understand that the Assessor sought opinion from the HPAU and this was not provided until 9 April 2015.[3] The Assessor wrote that “Client reported at assessment interview that he inconsistently takes prescribed medication for this condition”.[4] I am not able to test the veracity of this account.
[3] T14 folio 141.
[4] T15 folio 144.
Even though Dr Selim reported that he expected Mr Ismail’s anxious depression would persist for more than 24 months, and the effect of this condition on his ability to function would remain unchanged within two years,[5] it can be inferred from his report that this assessment is based, at least in part, on Mr Ismail undertaking psychotherapy treatment. However, the available evidence does not establish that any such treatment was undertaken. The HPAU advisory opinion reports Dr Selim saying that he had no record of such treatment being undertaken. No evidence has been adduced to counter this report.
[5] T11 folio 127.
I accept that Dr Selim’s recommendation of psychotherapy treatment for Mr Ismail’s anxious depression condition had a therapeutic purpose, with the possibility of reducing the function effects of this condition. There is no present evidence to establish that Mr Ismail obtained psychotherapy treatment in the period from Dr Selim’s referral recommendation on 28 August 2014 and the cancellation day. Nor is there evidence sufficient to establish that he had a good reason for not doing so. On balance, in view of the doctor’s recommendation and his apparent report that no such treatment had been followed up, I am reasonably satisfied that Mr Ismail’s anxious depression had not been fully treated and fully stabilised as of the cancellation day.
It follows that no rating can be assigned to cognitive impairments Dr Selim reported as a result from this condition, including difficulty concentrating, for example.
Lumbar disc disease - movement impairment
Mr Ismail’s lumbar spine was investigated on 16 April 2008 and again on 29 January 2016 and 8 March 2016. A reasonably clear picture of progressive deterioration emerges from the reports of these investigations. It appears likely that Mr Ismail had lumbar disc disease at the L4/L5 and L5/S1 levels on or about the cancellation day.
On 28 August 2014, Dr Selim listed “back pain” as a condition that was generally well managed, with minimal or limited impact on Mr Ismail’s ability to function.[6]
[6] T11 folio 131.
On 4 March 2015, Dr Selim reported “persistent low back pain”.[7]
[7] T13 folio 137.
A CT scan of Mr Ismail’s lumbar spine was carried out on 29 January 2016. The report of this investigation includes the following conclusion –
“There is moderate to marked narrowing of the L4/5 neural exit foramina bilaterally (L4 nerve roots). This is in part related to mild to moderate sized L4/5 posterior disc bulge.
I do note that patient has sitting intolerance suggesting a discogenic component to the pain, if required MRI could be performed for further evaluation. Right limb radiculopathy is likely related to the right L5 nerve root. If clinically appropriate CT guided spinal injections could be considered for diagnostic and therapeutic purposes.”
An MRI scan was subsequently undertaken on 8 March 2016. Dr Rustogi reported –
“Moderate L5/S1 disc disease with circumferential broad based disc bulge causing mild to moderate bilateral mid foraminal narrowing in combination with mild facet joint hypertrophic changes.”
Having regard to this material, it is quite clear that Mr Ismail’s lumbar spine condition had progressed somewhat from the minor condition that was reported on investigation in April 2008 –
“Minor only findings with minor broad based disc bulges at L4/L5 and L5/S1, not causing neural exit foraminal stenosis or canal stenosis”[8]
[8] T6 folio 99.
The extent to which this condition had progressed, and the precise nature of the symptoms and impairments it caused on the cancellation day is a matter of conjecture – the present evidence does not establish the state of this condition and its effects on that day.
I think that it is clear enough, however, that when Mr Ismail’s symptoms of pain and restricted movement increased, Dr Selim considered it desirable for further investigations to be undertaken. The reports of these investigations suggest diagnostic and therapeutic options that may be appropriate, subject to clinical considerations.
In these circumstances, I am satisfied that Mr Ismail’s lumbar spine condition was not fully diagnosed, fully treated and fully stabilised as of the cancellation day.
For this reason, impairments that are attributable to this condition cannot be assigned a rating under the Impairment Tables.
Bilateral inguinal hernia - movement impairment
On Dr Selim’s evidence, Mr Ismail has bilateral inguinal hernia and this condition causes groin pain. This condition was assessed by Dr Kozman, a surgeon, in 2012. At that time and subsequently, it appears that surgical repair is considered to be appropriate treatment.
Mr Ismail has not undertaken treatment of this kind. On the HPAU report, this is because Mr Ismail “had been unable to action this for financial reasons”, even though such surgery is reported to be available through the public health system in New South Wales within a 12 month waiting period. There is no evidence before the Tribunal that Mr Ismail has registered on a public health waiting list for surgery of this kind.
I am satisfied that surgical treatment under the public health system is reasonable treatment for Mr Ismail’s bilateral inguinal hernia condition. He has not yet undertaken treatment of this kind. That being so, I am compelled to conclude that his bilateral inguinal hernia condition was not fully treated and fully stabilised on the cancellation day.
It follows that no rating can be assigned to impairments resulting from this condition under the Impairment Tables.
Foot deformity and injury - movement impairment
I understand that Mr Ismail has had deformities in his feet for many years and that he sustained an injury to his right foot. There is only scant evidence of these conditions. On the present materials, I am unable to determine when this injury is said to have occurred. Dr Selim’s reports refer to past surgical treatments, but provide no specific details.
A report by Dr Maniam, a surgeon, sets out a history of accidents –
“Eighteen years ago he was involved in a motor vehicle accident and suffered injuries to the lumbar spine and head…
In 2002 there was a further motor vehicle accident and he suffered injuries to the lumbar spine…
… at the age of eighteen months he got submerged in a swimming pool and suffered brain injury. Since his feet have become deformed and is held in equinus.”[9]
[9] Report by Dr Maniam, 10 February 2016, page 1.
A JCA Report dated 14 October 2010 states “[t]he client was diagnosed with a Right Foot Injury in 2008 following 2nd car injury”.[10]
[10] T8 folio 109.
On 4 March 2015, Dr Selim reported “Rt foot, ankle deformity post traumatic arthritis” that was treated with “pain killers”.[11]
[11] T13 folio 137.
The precise nature or diagnosis of Mr Ismail’s right foot injury is not established on the present materials. Nonetheless, I accept Dr Selim’s diagnosis of post traumatic arthritis in Mr Ismail’s right foot and ankle on 4 March 2015. There is no medical recommendation for further surgical treatment for this condition – analgesic medication appears to be the only recommended treatment.
I note in passing that, on 14 October 2015, Dr Selim reported a left ankle injury.[12] Whether this was a fresh injury or a mistaken reference to the existing right ankle injury I cannot determine. The present materials do not establish that a left ankle injury was present as of the cancellation day.
[12] T20 folio 164.
Mr Ismail’s bilateral foot deformity condition is described by Dr Maniam in the following terms –
“There was a cavitus deformity of the arches and hyperextension of the metatarsal phalangeal joints. The interphalangeal joints were clawed.”[13]
[13] Report by Dr Maniam, 10 February 2016, page 2.
The doctor did not offer or recommend any further treatment.
The nature of these conditions is such that, even though there is very little evidence to go on, I think they can be accepted as ‘permanent’ for present purposes – surgical treatments have been obtained in the past, no further treatment is recommended other than analgesic pain relief, and the impact of the conditions on Mr Ismail’s ability to function is likely to persist without improvement over the two years from the cancellation day.
On 5 June 2013, Dr Selim reported that Mr Ismail experienced moderate difficulty walking 400 metres and he had minor difficulty with steps and standing on public transport.[14] On 28 August 2014, Dr Selim reported that these conditions were generally well managed and caused minimal or limited impact on Mr Ismail’s ability to function. On 9 April 2015, the HPAU Occupational Therapist reported –
“In a discussion with Dr Selim on 31/03/2015 he stated the customer does have some lower limb issues such as pain and reduced standing/walking tolerance – difficult to estimate but believes tolerances would be longer than 10 minutes.”[15]
[14] T9 folio 116.
[15] T14 folio 141.
Without direct evidence from Dr Selim, this account cannot be tested. But I am prepared to accept it as accurate for present purposes.
It is necessary to assess these impairments under Table 3 – Lower Limb Function. Having regard to the graded scale and the related indicators (below), the evidence does not suggest there was a moderate or a severe impact, or that there was no impact on his lower limb function as of the cancellation day.
Points Descriptors 0 There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5 There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10 There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20 There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
I am satisfied that, as of the cancellation day, Mr Ismail had some difficulty using stairs and walking 400 metres, but he was able to use public transport and to walk around a shopping centre or a supermarket without assistance. He did not require a walking aid or a wheelchair to mobilise effectively.
Considering the rating variables in Table 3, it appears that Mr Ismail’s lower limb impairment would be consistent with a mild functional impact, attracting a rating of 5 points, but for the evidence of Dr Selim’s apparent belief that Mr Ismail was able to stand unaided for 10 minutes or more.
The evidence on this point is less than satisfactory – Dr Selim’s account of Mr Ismail’s standing tolerance is reported second-hand, and it is conveyed in terms of a belief, rather than something that is supported by clinical examination, testing or other objective measure.
I must deal with the evidence at hand. On the present evidence, having regard to the graded scale and relative indicators set out in Table 3 (below), all that can be said is that Mr Ismail’s lower limb impairment falls between the 0 point and the 5 point markers.
Under s 11(1)(c) of the Determination, where an impairment is assessed as falling between two impairment ratings, the lower rating should be assigned.
This means, on the present evidence, that Mr Ismail’s lower limb impairment would attract a rating of 0 points under Table 3 as of the cancellation day.
Epilepsy
Dr Selim and Dr Maniam refer to Mr Ismail as suffering from epilepsy or seizures.
The present evidence is simply not sufficient to determine the state of this condition on the cancellation day – I am unable to assess whether this condition was fully diagnosed, fully treated and fully stabilised on that day, or whether resulting impairments, if any, were likely to persist for more than 24 months.
I can go no further on this point. No impairment rating can be assigned.
Circulatory conditions
Dr Selim’s evidence establishes that Mr Ismail was diagnosed with hyperlipidaemia and hypertension before the cancellation day.
The present evidence does not establish the nature or expectations of any treatment for these conditions, or the nature and extent of any resulting impairments.
All that can be said is that on 28 August 2014, Dr Selim reported that these conditions were generally well managed and caused minimal or limited impact upon Mr Ismail’s ability to function.[16] On 4 March 2015, however, he certified that hyperlipidaemia was a condition which had a significant impact on Mr Ismail’s capacity to work or study.[17] No explanation has been given for this change, or in respect of the ‘significant impact’ of Mr Ismail’s hyperlipidaemia on his functional capacity.
[16] T11 folio 131.
[17] T13 folio 137.
The present evidence is not sufficient to establish that Mr Ismail’s hyperlipidaemia and hypertension were fully treated and fully stabilised on the cancellation day. Even if they were, there is insufficient evidence to establish the nature and extent of any resulting impairment on that day. For this reason no rating greater than 0 points could be given.
Gastric condition
Dr Selim reported the presence of gastro-oesophageal reflux disease on 6 September 2010,[18] 5 June 2013,[19] 28 August 2014[20] and 4 March 2015.[21] In his 28 August 2014 report, Dr Selim indicated that Mr Ismail’s reflux disease was generally well managed and it caused minimal or limited impact upon his ability to function,[22] whereas on 4 March 2015 the doctor reported that the condition had a significant impact on Mr Ismail’s capacity to work or study.[23] No explanation for this change in assessment arises from the present evidence.
[18] T7 folio 105.
[19] T 9 folio 116.
[20] T11 folio 131.
[21] T13 folio 137.
[22] T11 folio 131.
[23] T13 folio 137.
On the present materials, I am unable to determine the nature of any treatment prescribed or recommended by Dr Selim (or any other doctor) for this condition.
It is not presently established that the condition was fully treated and fully stabilised on the cancellation day. Even if it was to be accepted as ‘permanent’ at that time (and I make no such finding), the present materials are not sufficient to make out the nature and extent of any resulting impairments, and whether any such impairments were expected to persist for more than two years from the cancellation day.
Simply put, there is insufficient evidence to enable proper assessment of any impairment resulting from this condition.
For this reason, I am unable to conclude that this condition was fully treated and fully stabilised on the cancellation day, or if it was, that a rating greater than 0 points could be assigned under any Impairment Table.
I cannot assign a rating for impairments that may be attributable to Mr Ismail’s gastro-oesophageal reflux disease on the cancellation day.
Overall impairment rating
In conclusion on this point, I am satisfied that Mr Ismail’s impairments attracted a rating of 0 points on the cancellation day.
This means that he did not meet the second essential criterion to qualify for DSP under s 94(1)(b) of the Act – his impairments did not attract a rating of 20 or more points under the Impairment Tables.
Conclusion
It follows that Mr Ismail was not qualified for DSP on the cancellation day.
It is not necessary to proceed further to determine whether or not he had a continuing inability to work on that day.
His application cannot succeed, and the decision under review must be affirmed.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ...........................[sgd].....................................
Associate
Dated 15 August 2016
Date of hearing (on the papers)
18 July 2016
Applicant
Self represented
Solicitors for the Respondent
Department of Human Services
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