Mohamed EL MELIGI and Secretary, Department of Social Services

[2015] AATA 269

[2015] AATA 269

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4327
Re	Mohamed EL MELIGI
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	28 April 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – 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 Ion Alexander, Member

28 April 2015

BACKGROUND

1. On 21 March 2013, Mr El Meligi lodged a claim for Disability Support Pension (‘DSP’) on the basis that his medical conditions were having an impact on his ability to function.

2. These conditions were not described in the claim form but included “renal impairment, depression, headaches and lower back pain” as listed in the Centrelink Medical Report provided by Mr El Meligi’s GP, Dr Ragy.

3. Mr El Meligi’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) of the Act in that his impairment rating under the Impairment Tables was less than 20 points.

4. In this proceeding Mr El Meligi seeks review of the SSAT decision of 25 July 2014.

5. At the hearing Mr El Meligi was self-represented. He was assisted by an interpreter in the Arabic language and was able to give oral evidence.

   ISSUES

6. In order to qualify for DSP, Mr El Meligi had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (‘the claim period’), in accordance with the requirements of the Social Security (Administration) Act 1999, that is between 21 March 2013 and 20 June 2013.

7. Also, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

8. For the purposes of paragraph 6(3)(a) a condition is ‘permanent’ if the condition is:

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

   ·fully treated (paragraph 6(4)(b)), and

   ·fully stabilised (paragraph 6(4)(c)).

9. Also, the Introduction to Table 5 of the Determination, 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 a psychiatrist)”.

10. It is agreed that Mr El Meligi suffers various medical conditions and therefore satisfies 94(1)(a) of the Act.

11. It is also agreed that El Meligi suffers “renal impairment” as a result of chronic kidney disease and that this condition is permanent as defined in in the Determination.

12. The Respondent contends that Mr El Meligi’s impairment rating, in respect of his renal condition, is five points under Impairment Table 10 of the Determination.

13. Mr El Meligi challenges the impairment rating of five points on the basis that his “immune system” is not functioning normally.

14. It is accepted that Mr El Meligi’s mental health condition, being major depression, was diagnosed by a psychiatrist, Dr Younan on 15 April 2015, during the claim period. His mental health condition was therefore fully diagnosed.

15. The Respondent contends, however, that during the claim period the mental health condition was not fully treated and fully stabilised, therefore an impairment rating could not be applied.

16. The Respondent also contends that during the claim period the “headaches and low back pain” were not fully diagnosed, fully treated and fully stabilised and that no impairment rating could be applied.

17. In my view, there is no satisfactory medical evidence before the Tribunal which would support a conclusion that during the claim period Mr El Meligi’s conditions of “headaches and low back pain” were fully diagnosed or fully treated and therefore I am satisfied that an impairment rating could not be applied to these conditions

18. Therefore, the definitive issues in this proceeding are:

    ·Was the impairment rating in respect Mr El Meligi’s renal condition greater than five points? 

    ·Was Mr El Meligi mental health condition fully treated and fully stabilised during the claim period? if so;

    ·What was the impairment rating in respect of the mental health condition?

    CONSIDERATION

    The impairment rating of Mr El Meligi’s Renal Condition

19. Mr El Meligi told the SSAT that his renal condition causes “fatigue, loss of appetite, difficulty with sleeping, lack of concentration, nausea and pain in the kidney area and generalised back pain”.  He admitted that his symptoms may also be attributed to his mental health condition and that he had difficulty in distinguishing the actual source of his symptoms.

20. Mr El Meligi also told the SSAT that “he is able to walk around, catch public transport, care for himself, undertake activities of daily living in a cautious manner and is not reliant on others for support or assistance” and that his day to day activities “were mildly impacted as a result of his kidney and back symptoms.”

21. The SSAT considered that Mr El Meligi’s functional impairment warranted a rating of five points under Impairment Table 10.

22. I note that the Introduction to Table 10 states that the Table is to be used “where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.”

23. The Introduction also states that digestive conditions may include:

    “diseases that affect the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus” and reproductive system conditions may include “gynaecological diseases (e.g. severe and intractable endometriosis, ovarian cancer) and conditions of the male reproductive system (e.g. testicular cancer).”

24. There is no mention of diseases that affect the kidney, in fact, there appears be no Table that addresses functional impairment as a result of kidney disease.

25. For present purposes I will use Impairment Table 10 in order to consider Mr El Meligi’s functional impairment in respect of his renal condition as the impairment descriptors have some similarity with his claimed symptoms.

26. Dr Ragy’s Medical Report of 18 February 2013 simply notes “pain on lower back” and pain on “passing urine.” In my view, it is of little assistance to the Tribunal as it does not provide a satisfactory assessment of functional impairment suffered by Mr El Meligi as a result of his renal condition.

27. In his oral evidence at the Tribunal, Mr El Meligi confirmed that his comments to the SSAT were correct but was unable to provide any additional evidence which would allow a more comprehensive assessment of his functional impairment.

28. Notwithstanding the identified difficulties, I am satisfied that during the claim period Mr El Meligi suffered only mild or moderate functional impairment as a result of his renal condition and that his impairment rating would have been no more than 10 points.

    Mr El Meligi’s Mental Health Condition

29. In a letter dated 15 June 2012, Dr Ragy notes that Mr El Meligi suffers from “symptoms of depression and anxiety state and stress related disorders, which have impacted on his mental health”. Dr Ragy reported that “due to personal family issues he has been experiencing, low energy, poor apatite [sic] and disturbed sleep”.

30. Dr Ragy states that he had provided counselling for Mr El Meligi and referred him to a psychologist.

31. During the hearing, Mr El Meligi stated that his depression had started in about 2013 and that he had not had any treatment for this condition until he saw Dr Younan on 15 April 2013. This was during the claim period.

32. In a letter dated 22 April 2013, Dr Younan notes that Mr El Meligi suffers from major depression. He also notes that he commenced treatment with antidepressant medication, mirtazapine.

33. Over the next 15 months, Dr Younan saw Mr El Meligi on 13 occasions. During that time Dr Younan reviewed his diagnosis and regularly modified the medication regime.

34. It is noted that, on 26 September 2013 Dr Younan prescribed Mr El Meligi 200 mg of Epilim per day. On 30 January 2014, Dr Younan added 10 mg of Lexapro per day, and on 24 February 2014 Epilim was increased to 800 mg per day.

35. In a letter dated 23 May 2014, Dr Younan noted that, after increasing the dose of Epilim to 800 mg per day, Mr El Meligi stated that he felt better and “found himself a bit calmer”.

36. In a letter dated 21 July 2014, Dr Younan concluded that Mr El Meligi “suffers from major depressive disorder which is very likely to be a pole of bipolar disorder” and that his condition causes significant impairment in his capacity for work. He also noted that Mr El Meligi’s condition seems to have stabilised and that no significant improvement would be expected in the foreseeable future.

37. In my view, it is clear from the documentary medical evidence that during the claim period Mr El Meligi’s mental health condition was diagnosed but not fully treated and not fully stabilised. He had only commenced treatment in the form of medication during the claim period, and this treatment was still being trialled into 2014. A rating under the Impairment Tables could not have been applied to Mr El Meligi’s condition during the claim period.

38. It is also my view that the medical evidence suggests that Mr El Meligi’s mental health condition was permanent within the meaning of the Determination as of 21 July 2014 and that an impairment rating may be applied to this condition in the context of a new application for DSP.

    CONCLUSION

39. For reasons set out above, Mr El Meligi’s impairments during the claim period could not be assigned a rating under the Impairment Tables of 20 points or more and, therefore, he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

    DECISION

40. The reviewable decision is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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

Associate

Dated 28 April 2015

Date of hearing	31 March 2015
Applicant	In person
Solicitor for the Respondent	G Lozynsky; Department of Human Services