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

[2017] AATA 1020

Moammar and Secretary, Department of Social Services (Social services second review) [2017] AATA 1020 (4 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4214

Re:Rabie Moammar

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:4 July 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment Tables – whether conditions fully diagnosed, treated and stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – mental health condition – major depression and post-traumatic stress disorder – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94(1)

Social Security (Administration) Act 1999 (Cth) s 42, sched 2

CASES

Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012)

Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member Linda Kirk

4 July 2017

1. Mr Rabie Moammar (‘the Applicant’) suffers from a number of serious medical conditions which he claims make it difficult for him to work, or to look for work. 

2. On 9 October 2015, Mr Moammar applied for the Disability Support Pension (‘DSP’). On 8 January 2016, his application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’) and, on 7 April 2016, an Authorised Review Officer (‘ARO’) affirmed the decision on review on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).

3. Mr Moammar applied to the Social Security and Child Support Division of this Administrative Appeals Tribunal for review (‘the SSCSD’). In a decision dated 29 July 2016, the SSCSD affirmed the decision of the ARO refusing Mr Moammar’s claim for DSP as he did not satisfy section 94(1)(b) of the Act.

4. On 11 August 2016, Mr Moammar applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.

5. The matter was heard by the Tribunal in Sydney on 5 April 2017.  Mr Moammar attended the hearing by telephone and was self-represented.  He was assisted by an interpreter and Ms Tanvi Joshi, individual advocate, from the Multicultural Disability Advocacy Association

   ISSUES AND LEGISLATION

6. The issue before the Tribunal is whether Mr Moammar qualified for DSP at the relevant time.

7. Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for the DSP, Mr Moammar must satisfy the requirements of section 94 of the Act as at the date he made his claim, 9 October 2015, or within 13 weeks of lodging the claim, that is between 9 October 2015 and 8 January 2016 (‘the qualification period’).

8. Section 94(1) of the Act provides that a person qualifies for the DSP if:

   ·the person has a physical, intellectual or psychiatric impairment; and

   ·the person’s impairment is of 20 points or more under the Impairment Tables; and

   ·the person has a continuing inability to work as defined in section 94(2) of the Act.

9. The Respondent concedes, and the Tribunal agrees, that Mr Moammar suffered medical conditions that caused impairment during the relevant period, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for disability support pension.

10. It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, Mr Moammar had:

    ·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and

    ·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)(i)).

    The Impairment Tables

11. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).

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. Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

15. Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Pursuant to section 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.

16. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

17. For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:

    (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

    (b)the 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.

18. The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.

19. Reasonable treatment is defined in section 6(7) of the Impairment Tables as 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.

20. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    MEDICAL CONDITIONS

21. Mr Moammar’s claim and the evidence available indicate that his primary condition is a mental health condition which has been diagnosed as major depression and post-traumatic stress disorder (PTSD).

22. The evidence before the Tribunal is that Mr Moammar’s mental health condition was recorded on 31 January 2015 by Dr Georges in Lebanon, who indicated that he was taking a number of medications in respect of this condition.

23. On 19 March 2015, Dr Kumar, Mr Moammar’s psychiatrist, wrote to Dr Setrak, his General Practitioner, noting that Mr Moammar had been treated with a “complex range of medications” to which he had not had access since his arrival in Australia in February 2015.  Dr Kumar made adjustments to Mr Moammar’s medication, and on 25 March 2015 he recorded that his symptoms were ongoing, but that his condition had improved following the previous consultation.

24. On 17 June 2015 Dr Kumar recorded that Mr Moammar’s condition was improving with the medications he had been prescribed and that his mental state was stable.  At this time Mr Moammar resolved to stop drinking and continue with his current treatment.  On 12 August 2015, Dr Kumar recorded that Mr Moammar had not ceased drinking and referred him to a number of support services, but did not alter his treatment for his mental health condition.

25. On 11 November 2015, Dr Kumar recorded that Mr Moammar had ceased drinking and that he “needs psychological therapy”. He noted that Mr Moammar had a mental health plan prepared by Dr Setrak, and that he had an appointment scheduled with Mr Metri, a psychologist, for the following week. On 18 November 2015 Dr Setrak recorded that Mr Moammar has “severe depression”, and on 3 December 2015 he noted Mr Moammar has “severe depression and anxiety and he is under the care of the psychiatrist”.

26. In his evidence at the Tribunal hearing, Mr Moammar said his condition is worsening and that he cannot work, and that this is supported by the recent medical reports written by Dr Setrak in March 2017.  He said that he has been taking medication for his mental health condition for two years, but he suffers whether or not he takes this medication.  He experiences shaking, memory loss, perspiration and becomes confused when he speaks. 

27. Mr Moammar gave evidence that he had received treatment from Dr Kumar in the past, but he is not seeing him anymore as he no longer needs to do so.  He believes he last saw Dr Kumar about one year ago.  He told the Tribunal that he saw Mr Metri, a psychologist, once or twice, but he was not comfortable seeing him because he asked too many questions and he did not want to answer them as it made him tired and distraught.  He could not remember the dates of his appointments with Mr Metri.

    Can the Applicant’s conditions be given an impairment rating?

    Major Depression and Post-Traumatic Stress Disorder (PTSD)

28. The Respondent accepts that Mr Moammar’s major depression and PTSD was fully diagnosed during the qualification period, but contends that it was not fully treated and stabilised at that time.

29. The evidence before the Tribunal is that, during the qualification period, Mr Moammar had a mental health plan prepared by Dr Setrak and he was under the care of Dr Kumar, whom he had consulted on five occasions, including once during the qualification period.  Dr Kumar changed Mr Moammar’s medication and he recommended that Mr Moammar undergo psychological treatment.  There is evidence before the Tribunal that Mr Moammar saw Mr Metri, a psychologist, once or twice on unspecified dates, however he did not continue this treatment because he was not comfortable speaking to Mr Metri.

30. There is no evidence before the Tribunal that indicates that Mr Moammar had undertaken the recommended psychological treatment for his condition prior to the end of the qualification period on 8 January 2016. 

31. The evidence before the Tribunal supports the Respondent’s submission that Mr Moammar’s depression and PTSD was not fully stabilised and fully treated during the qualification period as required by sections 6(5) and 6(6) of the Impairment Tables.  It had been recommended to Mr Moammar by his treating psychiatrist Dr Kumar that he receive psychological treatment, which was reasonable treatment as defined in section 6(7) of the Impairment Tables, and which was anticipated to result in an improvement in Mr Moammar’s condition in the following two-year period.  This is supported by the report of the assessor, a psychologist, who noted in the Job Capacity Assessment (JCA) file review of 5 January 2016 that psychological treatment (such as exposure therapy) could be expected to assist with a condition such as PTSD.

32. As Mr Moammar did not receive the recommended psychological treatment it cannot be said that his mental condition was fully treated and fully stabilised during the qualification period.

33. On 11 February 2016 (outside the qualification period), Dr Setrak reported that Mr Moammar had “severe depression and anxiety” and that his “condition is stabilised now and he will depend on these medications. So he is unfit and unsafe for any type of work and any hours”.  In a medical certificate dated 3 March 2016 (outside the qualification period) Dr Setrak did not mention Mr Moammar’s mental health condition, and in a further medical certificate dated 10 May 2016 (outside the qualification period), Dr Setrak noted Mr Moammar’s conditions as “depressed, insomnia, weakness, headache, poor memory and concentration”.  These reports did not make any reference to the opinions of Dr Kumar or Mr Metri in relation to Mr Moammar’s condition.

34. On 6 November 2016 (outside the qualification period) Dr Setrak recorded that he had changed Mr Moammar’s medication and that he was previously under the care of Dr Kumar.  He reported that in his opinion the applicant had not “made any improvement” since his arrival in Australia, and that his “condition is stabilised and he is not going to make any improvement”.  In his reports dated 1 March 2017 and 8 March 2017 Dr Setrak reiterated his view that Mr Moammar’s condition had stabilised, that he is not going to make any improvement, and he is unfit for any type of work.

35. In Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (‘Bobera’), the Tribunal said at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. (emphasis added)

36. Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services (‘Fanning’), where Deputy President Handley made the following pertinent observations (emphasis added):[1]

    31.In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the          Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referable to the Applicant’s condition during the qualification period.

    32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an Applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    33.The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years" (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.

    (original emphasis)

    [1] [2014] AATA 447, [31]-[33].

37. In the decision of Gallacher v Secretary, Department of Social Services,[2] the Federal Court affirmed the principle (as discussed in Fanning and Harris above) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.

    [2] [2015] FCA 1123, [25]-[29].

38. Having regard to the above authorities, the Tribunal finds that the medical reports written by Dr Setrak in relation to Mr Moammar’s mental health condition prepared after the qualification period are not relevant to his condition during the qualification period.

39. The Tribunal is not satisfied that Mr Moammar’s major depression and PTSD were fully treated and stabilised during the qualification period, and therefore no impairment can be assigned to any resulting functional impairment arising from these conditions.

    Other Conditions

40. In a letter dated 6 November 2016, Dr Setrak reported that Mr Moammar has suffered from a number of other medical conditions since February 2015 including gastro-oesophageal reflux disease, irritable bowel syndrome, a hernia, fatty liver, high cholesterol and several vitamin deficiencies.  However, there is insufficient evidence before the Tribunal to determine whether these conditions are ‘permanent’ and if so, what functional impact they impose on Mr Moammar.

    CONCLUSION

41. The Tribunal is not satisfied that Mr Moammar’s conditions were fully, diagnosed, treated and stabilised during the qualification period and therefore no impairment rating can be assigned to any resulting functional impairment arising from these conditions.

42. As Mr Moammar’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.

43. It is open to Mr Moammar to lodge a new DSP application based on what he claims to be the progression of his mental health condition and new medical evidence since the time of his original DSP application, the decision on which is the subject of this review.

    DECISION

44. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 4 July 2017

Date(s) of hearing:	5 April 2017
Advocate for the Applicant:	Ms T Joshi, Multicultural Disability Advocacy
Solicitors for the Respondent:	Mr S Davidson, Department of Human Services