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

[2021] AATA 1852

Musawi and Secretary, Department of Social Services (Social services second review) [2021] AATA 1852 (22 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1735

Re:Sayed Musawi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:22 June 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – mental health condition –spinal condition – whether conditions fully diagnosed, treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

Newman and Secretary, Department of Family and Community Services [2002] AATA 917

Smalldon and Secretary, Department of Social Services [2015] AATA 2

Secondary Materials

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

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

22 June 2021

1. This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 16 March 2020 affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (‘DSP’).

   The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 6 July 2019.

   ·The application was assessed and refused on 22 October 2019 (‘the Initial Decision’).

   ·An authorised review officer (‘ARO’) affirmed this decision on 30 January 2020 (‘the ARO Decision’).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (‘the First Tier Review’) and a decision affirming the ARO Decision was handed down on 16 March 2020.

2. The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 20 March 2020.

3. A hearing in relation to the Second Tier Review was held by telephone on 6 May 2021. The Applicant was self-represented. The Respondent was represented by Ms Shauna Roeger, a solicitor with the Australian Government Solicitor.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person or deferred until the restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on 6 May 2021, on the basis that it was conducted by telephone. The Tribunal determined pursuant to section 33A of the Administrative Appeals Tribunal Act 1975 to conduct the hearing by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’);

   ·Social Security Act 1991 (‘the Act’);

   ·Social Security (Administration) Act 1999 (‘the Administration Act’);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011; and

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 6 July 2019 and ended on

   
   

   5 October 2019.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence. Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in section 94(1) of the Act, as assessed during the qualification period.

10. In essence, section 94(1) of the Act requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment; and

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment, if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review, the Tribunal has had regard to:

    (a)the documents produced by the Respondent pursuant to section 37 and section 38AA of the AAT Act (‘T Documents and Supplementary T Documents’); and

    (b)the oral evidence of the Applicant.

    CONSIDERATION OF ISSUES

14. The Applicant’s claim on review relates to the following two conditions:[3]

    (a)a spinal condition; and

    (b)a psychiatric condition.

    [3] The Respondent addressed three further conditions in its written submissions, left knee pain, leg condition and elevated lipid/cholesterol. However, the Applicant confirmed at the outset of proceedings that he did not claim these conditions had caused a permanent impairment and he pressed his claim on appeal on the basis of the two stated conditions.

15. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent; that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[4]

    [4] Section 94(1) of the Act.

16. A condition is only considered fully treated and fully stabilised if, pursuant to subsection 6(6) of the Determination:

    (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  two 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  two 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.

17. Reasonable treatment is defined in subsection 6(7) of the Determination 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.

    Spinal condition

18. The Respondent submits that the Applicant’s spinal condition of diffuse idiopathic skeletal hyperostosis was fully diagnosed during the qualification period, but it was not fully treated or stabilised because reasonable treatment had not been undertaken.

19. The Applicant gave oral evidence that he had been in pain from around 2010 with a disc bulge at T7-9 which had caused him to cease work in 2013. He said he had consulted a neurosurgeon who had administered one cortisone injection which had no positive effect. He also stated that the surgeon refused to give a second injection because it would have been unlikely to have any effect on his condition. He said he had also been told that there was no effective surgical option for his condition. He said that since 2013 he had seen an acupuncturist, an osteopath, a chiropractor and a physiotherapist but their treatments had not improved his condition. He said that when he told Mr Bulluss, Neurosurgeon, that his pain became worse after seeing the physiotherapist. Mr Bulluss advised the Applicant that there was no point in seeing the physiotherapist any further. He said he had been prescribed various pain killers by his treating doctor, however, he reported experiencing constant pain whilst taking the medication. The Applicant said this impaired his functioning.

20. Mr Bulluss provided a permanent incapacity declaration for superannuation purposes on 17 May 2016. Mr Bulluss stated that the Applicant’s condition was ‘resistant to treatment’ and that, pending pain specialist review, it is unlikely the Applicant could ever be gainfully employed in a capacity for which he was reasonably qualified by education, training or experience. Mr Bulluss advised that there was no surgical intervention possible and referred the Applicant on to a chronic pain physician.[5]

    [5] T9 at p 31.

21. Since seeing Mr Bulluss, the Applicant’s condition has been treated with analgesics (including high doses of Lyrica, Celebrex and Panadeine Forte).[6] The evidence also confirms that the Applicant was treated by an acupuncturist in 2013,[7] an osteopath in 2014[8] and a physiotherapist in 2014.[9] From 13 April 2016 to 6 December 2019, the Applicant saw Dr Musaddiq, General Practitioner (‘GP’), when he needed a prescription for his medication.[10] The Applicant’s Medicare Records also show that he consulted with several other GP’s before and during the qualification period. As at 23 July 2019, the Applicant’s medications were Celebrex, Lyrica, Panadeine Forte and Zoloft.[11]

    [6] ST93 at p 315; T19; T31.

    [7] T24 at p 64; ST63 at p 150.

    [8] ST83 at pp 301-2.

    [9] ST82 at pp 298-300.

    [10] ST92 at p 313; ST99 at p 430.

    [11] ST99 at p 446.

22. The Respondent contends that the Applicant has on multiple occasions been recommended to consult a pain specialist and/or undertake a pain management program,[12] and there is no evidence that this has occurred. The Respondent relied on the opinions of the Job Capacity Assessors (‘JCA’) in their reports dated 11 October 2019,[13] 26 June 2020,[14] 6 October 2020[15] and 22 December 2020[16] and the opinion of the Health Professional Advisory Unit (‘HPAU’) in their report dated 4 January 2021[17] to contend that the Applicant had not undertaken reasonable treatment during the qualification period.

    [12] See ST 64 at p 159; ST82; T9.

    [13] T20.

    [14] ST63.

    [15] ST69.

    [16] ST77.

    [17] ST70.

23. The assessment of the HPAU as at 4 January 2021, was that the Applicant requires review and treatment with a multi-disciplinary pain management team and that he should be reviewed by a rheumatologist to ensure there is no inflammatory arthropathy present to account for the severity of his back pain. He also observed that the Applicant had been ‘doctor shopping’ to obtain multiple scripts; particularly for Panadeine Forte and seemed to have become addicted to pain medication to treat his spinal condition.[18] He recommended that the Applicant attend just one GP to ensure better control of his medication.

    [18] This observation is consistent with the opinion of Dr Musaddiq in his clinical notes on 2 January 2020 and is evidenced in the Medicare Records during the qualification period.

24. The Tribunal accepts that the Applicant has consulted a specialist neurosurgeon who tried unsuccessfully to relieve the condition using cortisone injections and who ruled out surgery as an option. The Applicant had also undertaken manipulative therapy in the form of chiropractic, osteopathy and physiotherapy as well as acupuncture in the past, without success. At the time of the qualification period he was not receiving that treatment and was managing his condition with a range of analgesic medication.  

25. While the evidence shows that a range of treatment was employed, each form of treatment was administered separately in an uncoordinated way and their effectiveness was assessed, largely by the Applicant himself, on an individual basis and separated by significant periods of time. There is no evidence that an integrated approach had been attempted prior to the qualification period and certainly the Applicant had not been reviewed or treated by a multi-disciplinary pain management team or been reviewed by a rheumatologist as recommended by the HPAU Medical Advisor. Further, there is no evidence that during the qualification period the Applicant’s over-use of pain medication had been addressed in this context.

26. The Tribunal notes that not all of the medical opinion was enthusiastic about referral to a pain management specialist. Dr Boulous identified in November 2016 the need to refer the Applicant to a pain clinic as an option for his condition but expressed his view that he did not think it would make a ‘big difference’. Mr Hankinson from Natural Pain Solutions reported on 8 January 2020, shortly after the qualification period, that the Applicant had attended his clinic for treatment and a variety of pain relief techniques were tried including remedial massage, biomesotherapy and nutritional intervention. Mr Hankinson reported that none of the techniques were successful and the Applicant’s condition appeared to be persistent and ongoing.[19]

    [19] T24 at p 64.

27. The Tribunal has been referred to a number of Tribunal decisions in which members have accepted that a spinal condition cannot be regarded as fully treated unless a recommended course of pain management has been tried.[20] The Tribunal is not obliged to adopt the reasoning in these cases as every case turns on its own facts. However, the cases do indicate that referral to a pain management specialist is a recognised form of treatment for the sort of condition suffered by the Applicant. The fact that the referral was recommended by the Applicant’s treating doctors, a view endorsed by the HPAU Medical Advisor, satisfies the Tribunal that it was reasonable treatment for the Applicant’s condition. As that treatment had not been employed during the qualification period the Tribunal is not satisfied that the Applicant’s condition was fully treated and fully stabilised during the qualification period and therefore, it cannot be assessed under Table 4 of the Impairment Tables.

    [20] Newman and Secretary, Department of Family and Community Services [2002] AATA 917; Smalldon and Secretary, Department of Social Services [2015] AATA 2.

    Psychiatric Condition

28. The Applicant did not list the psychiatric condition on his application for DSP when he lodged it on 6 July 2019.[21] He said in his oral evidence that he just raised his spinal condition because he assumed this would be sufficient. When his initial claim was rejected, he added his mental health condition as part of his claim.

    [21] T15.

29. The Applicant was diagnosed with re-current depression, chronic adjustment disorder, chronic severe anxiety disorder and bipolar disorder by Dr Roy Nallaratnam, consultant psychiatrist. Dr Nallaratnam regarded the Applicant’s condition as permanent and treated the Applicant from 2010 until 2014.[22]

    [22] ST81 at p 295-297.

30. The Respondent accepts that the Applicant’s psychiatric condition was fully diagnosed at the qualification period. However, the Respondent contends that the condition was not fully treated and stabilised during the qualification period.

31. The Respondent pointed to an absence of medical evidence during the qualification period regarding the Applicant’s psychiatric condition and the extent of any functional impairment. The Respondent asserts that the Applicant’s condition was not fully treated during the qualification period and the condition was exacerbated by the decision to refuse his claim for the DSP in November 2019. The Applicant subsequently received psychiatric treatment after the qualification period and a further claim for the DSP based on his psychiatric condition was accepted in October 2020.

32. There is evidence that the Applicant received psychological or psychiatric treatment for mental health in 2016.[23] However, the Applicant’s Medicare Report[24] indicates that throughout the qualification period he only consulted with GP’s, principally, Dr Musaddiq, who had seen the Applicant from 13 April 2016.[25]

    [23] ST84 at p 303; ST67 at p 174.

    [24] ST67 at pp 181-182.

    [25] ST92 at p 313.

33. Dr Musaddiq made a Mental Health Assessment referral for depression on 15 June 2017, noting that the Applicant was on long term medications (Cymbalta Capsules 60 mg, Lyrica Capsules 75 mg) and his K10 assessment was 12/50 (‘likely to be well’).[26] The Applicant’s Pharmaceutical Benefits Scheme records show that he only filled scripts for Cymbalta (duloxetine) between September 2016 and May 2017 and a single script in December 2019. However, the Applicant was filling multiple scripts for Zoloft (sertraline) from January 2018 onwards.[27]

    [26] ST99 at p 495.

    [27] ST68.

34. Dr Musaddiq stated in his report dated 29 July 2019 that the Applicant was then on Zoloft daily and he would manage his medication and monitor his mood and affect. He said that the Applicant had previously seen a counsellor Mr Adepoju and would now see him ‘as required’. The stated goal of the treatment was ‘prevention of further panic attacks’.[28]

    [28] ST99 at p 580.

35. The Applicant’s application for the DSP was assessed and rejected on 22 October 2019.

36. It was in January 2020, that the Applicant commenced seeing Dr Kiyanagedara, GP, who reported that at that time he had severe depression and anxiety and a K10 assessment of 44/50 (‘likely to have a severe disorder’). Dr Kiyanagedara noted a significant worsening of his symptoms in late November 2019.[29] The Applicant advised a Centrelink officer by telephone on 23 January 2020, that the decision to refuse his application for DSP had triggered his pre-existing depression, and that he was currently at an emergency hospital.[30]

    [29] ST93 at pp 314-6.

    [30] T28 at p 70.

1. Dr Kiyanagedara referred the Applicant to Mr Joubert, registered psychologist, who first saw the Applicant for counselling on 13 February 2020.[31] On 3 April 2020, the Applicant had his first consultation with Dr Muruthettuwegama, consultant psychiatrist.

   [31] T61 at p 143.

2. On the basis of this evidence the Tribunal is satisfied that the Applicant’s psychiatric condition was not fully treated during the qualification period and that it was only after the Applicant’s symptoms worsened when his claim for the DSP was rejected that he was referred for counselling and his medication was changed. Dr Muruthettuwegama recommended Lithium as an adjunct to antidepressant medication, with Seroquel to assist with anxiety.[32] It was the treatment the Applicant received after the qualification period that supported the acceptance of his subsequent claim for the DSP by the Respondent on the basis of his psychiatric condition.

   [32] ST88 at p 307-8.

3. Accordingly, the Tribunal is not satisfied that the Applicant’s psychiatric condition was fully treated and stabilised within the qualification period, and an impairment rating cannot be assigned under Table 5 of the Impairment Tables.

   CONCLUSION

4. For the reasons discussed, the Tribunal is satisfied that the Applicant has a ‘physical, intellectual or psychiatric impairment’ as required by s 94(1)(a) of the Act, but he does not meet the qualification criterion for a DSP under s 94(1)(b) of the Act. Namely, that he have an impairment or impairments which rate 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of his claim or within the qualification period.

5. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.

   DECISION

6. The Tribunal affirms the decision under review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 22 June 2021

Date of hearing:	6 May 2021
Solicitors for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor