Mouhamad Masri and Secretary, Department of Social Services
[2016] AATA 488
•12 July 2016
Masri and Secretary, Department of Social Services (Social services second review) [2016] AATA 488 (12 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6096
Re
Mouhamad Masri
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 12 July 2016 Place Sydney The Tribunal affirms the decision under review.
................................[sgd]........................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – 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
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Dr I Alexander, Member
12 July 2016
On the 15 April 2015 Mr Masri, who is now 35 years old, lodged a claim for disability support pension (DSP) on the basis that he suffered several medical conditions which were having an impact on his ability to function.
The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.
In a decision dated 2 November 2015, the Social Services and Child Support Division (SSCSD) found that a rating under the Impairment Tables could not be assigned because Mr Masri’s medical conditions were not fully treated and stabilised during the relevant period so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings Mr Masri, who was self – represented, seeks review of the decision of the SSCSD.
ISSUES
In order to qualify for DSP Mr Masri must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act1999 (Cth), that is, between 15 April 2015 and 15 July 2015 (the claim period).
Section 94(1) of the Act provides that a person is qualified for 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.
The Respondent concedes and the Tribunal accepts that Mr Masri suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
In his claim form Mr Masri listed his disabilities as “poor diabetes (IDDM) refractory hypotension [sic] Diabetic retinopathy (sever (R) eye) Diabetic neuropathy [sic]”.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment 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)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it 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)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
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”.
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 by a psychiatrist)”.
The Respondent contends that, during the claim period, none of Mr Masri’s medical conditions were fully diagnosed, treated and stabilised so that a rating under the Impairment Tables cannot be assigned and, therefore, he could not satisfy 94(1)(b) of the Act.
Alternatively, the Respondent contends that, during the claim period, Mr Masri could not satisfy section 94(1)(c) of the Act as he did not have a “continuing inability to work” because he had not actively participated in a POS as required by section 94(2)(aa) of the Act.
Section 94(2)(aa) provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C)”.
Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Subsection 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the “POS Determination”) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.
At the hearing it was agreed that Mr Masri had not participated in a POS for the required period during the 36 months prior to the date of claim, which means, that his application for review cannot succeed unless he suffered a “severe impairment” during the claim period.
It follows that the determinative issue in this matter is whether, during the claim period, Mr Masri suffered an impairment of 20 points or more under the Impairment Tables and, in particular, whether any of his medical conditions warranted a rating of 20 points or more under a single Table.
MR MASRI’S EVIDENCE
At the hearing Masri told the Tribunal that he had suffered from for diabetes for many years and that in early 2015, when informed that he had developed significant impairment of his renal (kidney) function and diabetic retinopathy, he decided to change his lifestyle. He said that he began to stick to an appropriate diet, take more care with the regular monitoring of his blood glucose and cease his previously regular use of marijuana. He indicated that he has not used marijuana for more than twelve months and feels that this is no longer a problem.
Mr Masri told the Tribunal that he is very concerned about his kidney function and has been told that it is very likely that he will need regular dialysis within the next six months. At present, however, he is still managing with diet and regular medication. He also indicated that the retinopathy has responded to specialist treatment and appears to have stabilised.
Mr Masri claims that he has suffered depression and anxiety for some years and has been seen by various psychologists. However, he was not able to provide any details with respect to any treatment or assessment by a clinical psychologist or a psychiatrist.
Medical evidence
On 31 March 2015 Mr Masri presented to a hospital Emergency Department (ED) with a four-day history of headache, nausea and vomiting.
The ED discharge summary dated 31 March 2015 noted that Mr Masri’s past medical history included type 2 diabetes mellitus, hypertension, hypercholesterolemia, gout and chronic renal impairment. He was diagnosed with diabetes as a teenager and was originally treated with insulin, but for the last 10 years he had been treated with oral medication alone.
It was noted that he had not been regularly monitoring his blood sugar levels and not been compliant with his oral medication.
Mr Masri was reviewed by the drug and alcohol team who noted that had decreased his cannabis intake over the previous 2 weeks and had been having withdrawal symptoms.
Mr Masri was discharged on the same day with recommendations to change his diabetes and hypertension medication and to attend specialist endocrine and renal follow-up.
On the 13 April 2015 Mr Masri was seen at Central Eyecare and found to have “blurry vision…due to advanced diabetic retinopathy”. He was referred for further treatment to Dr Chau-Vo, an ophthalmic surgeon.
In a Centrelink Medical Report, dated 15 April 2015, Dr Sakla stated that he had been Mr Masri’s GP since 1993 and listed “Very long history of very poor diabetic control (IDDM) resulting in refractory Hypertension – Diabetic Retinopathy (severe (R) eye) and Diabetic nephropathy” as the medical condition with most functional impact.
Dr Sakla noted that future treatment included regular monitoring, laser treatment and injections in the (R) eye and referral to an endocrinologist and nephrologist. He noted that Mr Masri was rarely compliant with recommended treatment but was “hoping that his compliance to diet, exercise & medication can improve”.
Dr Sakla noted that current clinical features included “anxiety/depression” with poor concentration, described impact om ability to function as “very poor endurance” but provided no other details.
Dr Sakla also listed “Drug dependence/addiction (marijuana)” as a medical condition with significant functional impact. He noted future treatment as “need to comply with drug rehab” and described impact on ability to function as “very poor endurance”.
The documents provided to the Tribunal included several letters from Dr Chau-Vo dated 14 May 2015, 23 May 2015, 22 June 2015, 10 September 2015.
These letters confirmed that Mr Masri suffered “proliferative diabetic retinopathy” in the right eye” and severe “non-proliferative diabetic retinopathy” in the left eye. Treatment of the right eye included “anti-VEGF injections” and “panretinal photocoagulation”. The left eye did not require ocular therapy but would need to be carefully monitored. Systemic treatment with oral “Lipidil” was also commenced.
In his letter of 22 June 2015 Dr Chau-Vo noted that there had been a good response to anti-VEGF injection but that the right eye will require long term therapy.
In his letter of 10 September 2015 Dr Chau-Vo noted Mr Masri’s last attendance was on 20 August 2015 but provided no further details with respect to response to treatment or any details with respect to functional impairment.
In a letter dated 13 August 2015 Dr Elder, Renal physician, notes inter alia the following:
“…..He has been treated for hypertension ….for about 10 years but until recently was missing his medication regularly…..His diabetes was diagnosed around the age of 15…he saw an endocrinologist at the Children’s Hospital Westmead but has not seen anybody for about 15 years. He has recently started doing glucometer tests daily… ..He has had laser to the right eye….the right eye has also been injected. His vision was sufficiently poor so he could not read his phone text but that has now improved …..he has been developing dyspnoea on exertion at about 200 metres over the last 6 months… he was developing migraine headaches and vomiting during the night but those have not occurred in the last 6 months ….”
In a letter dated 30 September 20015 Dr Elder notes a diagnosis of “presumed diabetic nephropathy plus vascular disease” and indicates that a renal biopsy is required.
In a letter dated 2 February 2016 Dr Elder notes that Mr Masri said that “he feels tired” but is not complaining of any other symptoms and appears to be taking the correct medications. He raises concerns about Mr Masri’s diabetes medications because of reduced renal function but does not make any changes.
Dr Elder also notes that he has arranged for Mr Masri to have an interview at the Regional Dialysis Centre at Blacktown Hospital in preparation for the commencement of dialysis for kidney failure.
Consideration
It is clear from the available medical evidence that, at the date of claim, Mr Masri’s medical condition of Diabetes Mellitus (DM) was fully diagnosed and that he suffers significant complications as a result of this longstanding condition, namely, diabetic nephropathy and diabetic retinopathy.
I am satisfied, however, that the available evidence supports a conclusion that the DM was not fully treated and fully stabilised during the claim period.
Mr Masri had not been regularly monitoring his blood glucose levels, his compliance with oral medication had been poor and there had been no specialist review for many years.
It follows that a rating under the Impairment Tables for the condition of DM cannot be assigned.
The condition of diabetic nephropathy was clearly present for a considerable time prior to a formal diagnosis in 2015. The question as to whether this condition was fully treated and fully stabilised during the claim period is somewhat problematic. Apart from diet and regular antihypertensive medication there is no convincing evidence that additional treatment was required during the claim period.
Therefore, notwithstanding the concerns about Mr Masri’s compliance with diet and antihypertensive medication, I am satisfied that, during the claim period, the medical condition of diabetic nephropathy was permanent for the purposes of the Impairment Determination.
However, as there is no corroborative evidence before the Tribunal with respect to the functional impairment caused by this condition, a rating under the Impairment Tables cannot be assigned.
With respect to the condition of “hypertension”, I am satisfied that the there is sufficient evidence to support a conclusion that, during the claim period, the condition was permanent for the purposes of the Impairment Determination. There is, however, no corroborative evidence to support a conclusion that, during the claim period, Mr Masri suffered any functional impairment because of this condition. Therefore, a rating under the Impairment Tables cannot be assigned.
The condition of diabetic retinopathy was clearly first diagnosed in April 2015, just prior to the date of claim, and treated during the claim period.
I am not satisfied, however, that the available the evidence is sufficient to confirm that this condition was fully stabilised during that period, therefore, a rating under Impairment Table 12 cannot be assigned.
Furthermore, even if I were to accept that the condition was permanent for the purposes of the Impairment Determination there is no evidence to corroborate the level of any functional impairment caused by this condition during the claim period. Therefore, a rating under the Impairment Table cannot be assigned.
With respect to Mr Masri’s claimed condition of “depression/anxiety” there is no evidence that this condition has been diagnosed by clinical psychologist or psychiatrist so that a rating under Impairment Table 5 cannot be assigned.
DECISION
For reasons set above I am satisfied that during the claim period, Mr Masri’s impairment was not 20 points or more under the Impairment Tables so that he did not satisfy s 94(1b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
................................[sgd]........................................Associate
Dated 12 July 2016
Date(s) of hearing 20 June 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Statutory Construction
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Appeal
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