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

[2016] AATA 686

Karezi and Secretary, Department of Social Services (Social services second review) [2016] AATA 686 (6 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0069
Re	Jasim Karezi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	6 September 2016
Place	Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of payment – whether conditions permanent – fully diagnosed – fully treated – fully stabilised – whether Applicant has 20 points under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991, s27, 94

Social Security (Administration) Act 1999, ss 80, 118

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

6 September 2016

INTRODUCTION

1. The applicant, Mr Jasim Karezi, was granted disability support pension on 23 February 2005.

2. On 23 November 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision of the Secretary to cancel Mr Karezi’s disability support pension. The basis of the decision was that Mr Karezi ceased to satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 23 July 2015.

3. Mr Karezi applied to the General Division of the Tribunal on 18 December 2015 for a review of the SSCSD decision.

4. The matter was heard in Sydney on 29 July 2016. Mr Karezi attended the hearing in person. He was self-represented and assisted by an interpreter of the Arabic language.

   LEGISLATION

5. The power for the Secretary to cancel Mr Karezi’s disability support pension is contained in s 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). The cancellation decision takes effect on the day on which it was made, in this case on 23 July 2015 (date of cancellation), pursuant to s 118(13) of the Administration Act.

6. In assessing whether Mr Karezi qualified for disability support pension on 23 July  2015, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables), pursuant to ss 27(3) and (4) of the Act. These Impairment Tables are stricter than the tables which applied when Mr Karezi was granted disability support pension in 2005.

7. Section 94(1) of the Act provides that a person qualifies for a 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.

8. Mr Karezi had to satisfy these criteria at the date of cancellation.

9. The Secretary concedes and the Tribunal agrees that Mr Karezi suffers medical conditions that cause impairment and therefore, satisfied sub 94(1)(a) of the Act at the date of cancellation.

10. It follows that the determinative issues in this matter are whether, at the date of cancellation, Mr Karezi 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 Karezi have medical conditions that can be rated at 20 points or more under the Impairment Tables?

11. The Impairment Tables require 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, 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.

12. 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.

13. 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’.

14. The medical conditions of Mr Karezi set out in the Disability Support Pension Medical Report dated 27 February 2015 completed by Dr R Shamoun (General Practitioner) are:

    ·(L) testicular pain;

    ·major depression;

    ·(L) eye poor vision;

    ·back pain with sitting problems;

    ·bilateral plantar fasciitis;

    ·bilateral varicose veins.

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

    Testicular pain

16. Mr Karezi has had testicular pain since 1998. A report by Dr Shamoun dated 28 October 2015 stated that Mr Karezi had an operation for his varicocele in 2000, which ended in complications of on-going pain in his left testicle due to nerve injury. He was prescribed medications for the pain and referred to a pain clinic, which did not alleviate his pain. Dr Shamoun stated that ‘all options were exhausted’ and treatment involves ‘on-going pain killers like Panadeine forte and Indocid depositories’. In a report dated 6 May 2016, Dr Shamoun acknowledged ‘consulting 3 Surgeons who suggested testicular removal which was understandably unacceptable for social, personal as well as cultural reasons’.

17. Dr Subhas (Consultant Psychiatrist) provided a report dated 25 August 2015, which diagnosed Mr Karezi as ‘suffering from Chronic Pain Syndrome related to Varicocele Surgery’ and prescribed Cymbalta to ‘help lift his mood as well as relieve some of the Neuropathic pain he is suffering’.

18. At the Tribunal hearing, Mr Karezi said that he cannot sit for more than five minutes and needs to lie down all day. He described daily activities such as bathing, where he requires his wife to assist him. He leaves the house once per week with his wife to do the shopping; his wife drives and he uses a shopping trolley to assist him walking. He has difficulty walking up stairs and uses the bannister for assistance. Mr Karezi gave evidence that these difficulties were attributable to general pain in his back and legs, as well as pain in his testicular and groin area.

19. The Secretary contends that at the date of cancellation, Mr Karezi’s testicular pain was diagnosed but not fully treated and stabilised. This is because Mr Karezi had not begun taking Cymbalta as recommended by Dr Subhas on 25 August 2016. In addition, the potential medical benefits of surgery had not been sufficiently explored.

20. I note that Cymbalta was prescribed by Dr Subhas on 25 August 2015 to assist with Mr Karezi’s depression as well as relieve ‘some’ of his neuropathic pain. The prescription of Cymbalta also enabled Mr Karezi to reduce his dosage of Endone (the medication he was using to manage his testicular pain). Dr Shamoud reported on 6 May 2016 that he ‘found Cymbalta good treatment for him [Mr Karezi], that was somewhat acceptable from the side effects point of view and effect [sic] one’. I therefore find that, at the date of cancellation, there was alternative and preferable treatment available to Mr Karezi to manage his testicular pain.

21. Based on the medical evidence before me, I am satisfied that Mr Karezi’s testicular pain condition was fully diagnosed, but not fully treated and not fully stabilised at the date of cancellation. For this reason, Mr Karezi’s condition cannot be considered permanent at the date of cancellation and cannot be rated under the Impairment Tables.

    Major depression

22. On 14 December 2004, Dr K Attia-Soliman (General Practitioner) diagnosed Mr Karezi with chronic dysthymic disorder and prescribed anti-depressant medication.

23. At the Tribunal hearing, Mr Karezi described symptoms of depression since the 1980s when he spent seven years in military service during the Iran-Iraq war. Mr Karezi acknowledged that he had attended appointments with Dr Attia-Soliman ‘three-four times’ but could not recall the date of his last visit.

24. A Disability Support Pension Medical Report completed by Dr Shamoun on 27 February 2015 noted the current treatment for Mr Karezi’s depression as ‘Aurorix 150mgs; Aropax 20mgs > stopped due to side effects’. On 25 August 2015, Dr Subhas prescribed Cymbalta to Mr Karezi to ‘help lift his mood’.

25. The Introduction to Table 5 of the Impairment Tables, 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 by a psychiatrist)’.

26. The Job Capacity Assessment (JCA) dated 22 July 2015 undertook a search of the Australian Health Practitioner Regulation Agency on 29 June 2015, which showed that Dr Attia-Soliman was only registered as a General Practitioner. The Secretary, in its Statement of Facts, Issues and Contentions dated 8 July 2016 wrote:

    The Respondent further confirms that Dr Attia-Soliman is not on the Royal Australian and New Zealand College of Psychiatrists Register (as at 4 July 2016). Dr Attia-Soliman is also no longer registered with the Australian Health Practitioner Regulation Agency (as at 4 July 2016).

27. I also note that Dr Shamoun, in his report dated 28 October 2015, refers to a ‘Dr Solomon (practitioner with interest in mental health)’.

28. Based on the evidence before me, I find that Mr Karezi was not diagnosed with depression by a clinical psychologist or psychiatrist, as required by the Impairment Tables, until he saw Dr Subhas on 25 August 2015. As this consultation occurred after 23 July 2015, I cannot be satisfied that Mr Karezi’s depression was fully diagnosed, treated and stabilised at the date of cancellation. For this reason, Mr Karezi’s condition cannot be considered permanent at the date of cancellation and cannot be rated under the Impairment Tables.

    Vision

29. The Disability Support Pension Medical Report completed by Dr Shamoun on 27 February 2015 sets out Mr Karezi’s visual condition under question 6, which describes medical conditions that are generally well managed and cause minimal or limited impact on ability to function. Mr Karezi’s optometrist, in a report dated 8 October 2015, noted a diminished aided visual acuity and some early signs of macular degeneration.

30. At the Tribunal hearing, Mr Karezi said that he has difficulty reading and needs to have paper close to his eyes in order to read. I note that Mr Karezi represented himself and was able to look at relevant documents and write notes at various times during the hearing.

31. Based on the medical evidence before me, I am satisfied that Mr Karezi’s vision loss was fully diagnosed, fully treated and fully stabilised at the date of cancellation. In accordance with the information at Table 12 – Visual Function, Mr Karezi’s condition has a mild functional impact on activities involving visual function and I assign an impairment rating of 5 points.

    Back pain, bilateral plantar fasciitis and varicose veins

32. The Disability Support Pension Medical Report completed by Dr Shamoun on 27 February 2015 described Mr Karezi with the following conditions at question 6, which notes conditions that are generally well managed and cause minimal or limited impact on ability to function: ‘back pain with sitting problems, bilateral plantar fasciitis, bilateral varicose veins’.

33. At the Tribunal hearing, Mr Karezi described constant pain in his legs and back. However, the medical evidence before me in relation to these conditions is limited and based on reports from 2003 and 2006. A report by Dr V Maniam (Trauma Orthopaedics) dated 7 May 2003 described Mr Karezi as having worsening low back pains and pain in lower limbs and left heel; and examination of the lumbar spine detected no abnormal signs. Dr E Farmer (Vascular Surgeon), in a report dated 1 February 2006, stated Mr Karezi ‘has recovered from surgery to his right sided varicose veins. I have suggested he wear graduated compression stockings for his left leg varicosities’.

34. Given the limited medical evidence before me, I cannot be satisfied that Mr Karezi’s conditions were fully diagnosed, treated and stabilised at the date of cancellation. For this reason, Mr Karezi’s conditions cannot be considered permanent at the date of cancellation and cannot be rated under the Impairment Tables.

    CONCLUSION

35. For the reasons set out above, I am satisfied that, at the date of cancellation, Mr Karezi did not meet the requirements of s 94(1)(b) of the Act as his impairments were not 20 points or more under the Impairment Tables.

36. As I find that Mr Karezi did not qualify for disability support pension at the date of cancellation, it is not necessary for me to consider whether he had a continuing ability to work at the date of cancellation.

37. If Mr Karezi’s circumstances have changed since the date of cancellation, he is entitled to submit a new application for disability support pension at any time.

    DECISION

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated 6 September 2016

Date(s) of hearing	29 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services