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

[2016] AATA 204

Nabhani and Secretary, Department of Social Services (Social services second review) [2016] AATA 204 (1 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3507
Re	Fazel Nabhani
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	1 April 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Mr C Ermert, Member

CATCHWORDS

SOCIAL SERVICES - disability support pension - qualification period - whether physical, intellectual or psychiatric impairments - whether impairments attract 20 or more impairment points - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Mr C Ermert, Member

1 April 2016

INTRODUCTION

1. On 31 December 2014 Mr Fazel Nabhani, the Applicant, lodged a claim for Disability Support Pension (DSP).  On 31 January 2015 Centrelink advised him that his claim had been rejected on the basis that his conditions did not attract the impairment rating of 20 points or more required to qualify for DSP.  Centrelink is the service provider for the Secretary, Department of Social Services (the Respondent).

2. Mr Nabhani requested a review of this decision.  On 2 March 2015 an Authorised Review Officer (ARO) of Centrelink affirmed the decision to reject the claim.  Mr Nabhani requested a first review of the ARO decision by this Tribunal.  On 19 June 2015 the Tribunal affirmed the ARO decision.

3. This matter is a second review by this Tribunal.

   HEARING

4. At the hearing Mrs Soghra Toopchizadeh, wife of Mr Nabhani, represented him and gave evidence under affirmation by telephone with the assistance of an interpreter in the Farsi language.  Ms Vincci Chan, a departmental lawyer, represented the Respondent, also by telephone. 

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  I also took in the following supplementary T-Documents:

   ·ST1 – Job Capacity Assessment (JCA) report dated 30 September 2015;

   ·ST2 – report by Dr Harris Delfinis dated 6 July 2015;

   ·ST3 – report by Dr Harris Delfinis dated 8 June 2015;

   ·ST4- X-ray report dated 6 July 2015 and MRI report dated 22 July 2015;

   ·ST5 – undated report by Dr Ahmad Al-Sharifi; and

   ·ST6 – undated report by Dr Ahmad Al-Sharifi received on 17 August 2015.

6. For Mr Nabhani, I took into evidence:

   ·Exhibit A1 – undated report by Dr Ahmad Al-Sharifi received 17 August 2015.

   LEGISLATION

7. The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).

8. Section 94 of the Act  relevantly prescribes qualification for DSP:

   (1)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)one of the following applies:

   (i)the person has a continuing inability to work;

9. A person’s impairment is assessed by reference to the Impairment Tables of the Social Security (Tables for the Assessment of Work-related Impairments for Disability Support Pension) Determination 2011 (the Impairment Tables)

   QUALIFICATION PERIOD

10. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

11. In this case the qualification period runs from 31 December 2014, the day on which the claim was lodged, to 1 April 2015. 

    ISSUES

12. The issues are whether, during the qualification period, Mr Nabhani:

    ·Had any physical, intellectual or psychiatric impairments; and, if so,

    ·Had impairments attracting a rating of 20 points or more under the Impairment Tables; and, if so,

    ·Had a continuing inability to work.

    EVIDENCE

13. In her evidence, Mrs Toopchizadeh said that Mr Nabhani is unable to walk.  He suffers from back pain and leg pain and his body aches all over.  She said that, at times, he is unable to lift a one kilogram weight. He has no control over his bowels.  He is unable to shower or have a bath without assistance from his daughter. 

14. In regard to his mental health, Mrs Toopchizadeh said that he is nervous and is aggressive from the pain.   His condition has become worse after his operation.  She said he takes medications every night for his mental condition.  The medication causes him to sleep all the time.

15. In answer to questions about Mr Nabhani’s back pain, Mrs Toopchizadeh said:

    ·Without medication he is unable to sit for 30 minutes;

    ·With medication he can sit for one to two hours;

    ·He cannot pick up light objects from a table; his daughter has to help him;

    ·Even with medication he cannot pick up an object from a table because of the severe pain in his arm;

    ·He needs assistance from his daughter to get out of a chair;

    ·He has difficulty moving his head in all directions; and

    ·With medication he can turn his head a little but with pain.

16. In response to questions about Mr Nabhani’s bowel cancer, Mrs Toopchizadeh responded:

    ·He underwent surgery in November 2014;

    ·He was seen five or six times immediately following the surgery while still in hospital;

    ·He has had no further treatment since his discharge from the hospital;

    ·He has attempted without success to make an appointment to see a specialist to check on his condition; and

    ·When referred to her evidence to the first tribunal review that Mr Nabhani was due for another review on 26 June 2015, she said she was not sure and he may have had just one appointment.

17. In response to questions about Mr Nabhani’s mental health, Mrs Toopchizadeh said that he first started to see a psychologist about one or two months ago.  Previously he had declined to go to see a psychologist.

    TRIBUNAL CONSIDERATIONS

    Does Mr Nabhani have an Impairment? (section 94(1)(a) of the Act)

18. The Respondent concedes, correctly in my opinion, that during the qualifying period
    Mr Nabhani had impairments from the following conditions, which satisfy the requirements of section 94(1)(a) of the Act:

    ·Back pain;

    ·Bowel cancer;

    ·Hernia;

    ·Anxiety and depression; and

    ·Osteoarthritis of hands.

19. The concession is supported by the evidence, and I find accordingly.

    Do the Impairments attract an Impairment Rating of 20 points or more?
    (section 94(1(b))

20. I must now determine whether Mr Nabhani’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

21. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and if the impairment is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

22. Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

23. I will consider each of the conditions in turn.

    Back Pain

24. In her submissions, Mrs Toopchizadeh contented that Mr Nabhani cannot walk, lift anything or do daily chores and that he should be eligible for the DSP.

25. Ms Chan conceded that the back pain condition was fully diagnosed, treated and stabilised and will persist for more than 24 months.  This concession is supported by the evidence of Dr Al-Sharifi in his reports dated 11 November 2013, 13 February 2013, and 18 December 2014. 

26. I find that the condition is permanent and can be assigned an impairment rating from the Impairment Tables.

27. Ms Chan also conceded that Mr Nabhani’s impairments attract a rating of 10 points under Table 4 of the Impairment Tables–Spinal Function. I am satisfied that the medical evidence supports this rating.  I must now consider whether a higher impairment rating may apply.

28. The descriptors in Table 4 relating to a severe functional impact on activities involving spinal function attracting 20 impairment points are:

    1The person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

29. The Introduction to Table 4 provides that self-report of symptoms alone is insufficient and there must be corroborating evidence of the impairment from medical practitioners.  I note the following corroborating evidence:

    ·Report of Dr Al-Sharifi dated 11 November 2013 which records:

    oLower back pain, only able to walk short distance;

    oEffects walking, standing, bending;

    ·Report of Dr Al-Sharifi dated 13 February 2013 which records:

    oLower back pain, stiffness, difficulty in walking and bending, walk short distance;

    ·Report of Dr Al-Sharifi dated 18 December 2014 which records:

    oEffects ability to walk and bending, flexor and extensor movement effects;

    ·JCA Report dated 27 January 2015 which records:

    oHe can sit with comfort for 30 minutes but cannot bend forward to pick up a light object placed at knee height;

    ·Report of Dr Talib Tahir dated 4 February 2015 which records:

    oHe shouldn’t be involves (sic) in any physical weightlifting job, sitting or standing for long period of time;

    ·JCA Report dated 30 September 2015 (ST1) which records:

    oMr Nabhani is able to sit in or drive a car for at least 30 minutes.  In discussion with contributing Assessor …General Practitioner (GP)  Dr Al Sharifi stated that Mr Nabhani is able to sit for at least 30 minutes.  He further stated that Mr Nabhani can drive generally when he has no severe pain attacks.  The GP also stated that Mr Nabhani sometimes relies on his family to drive him to appointments or uses a walking stick, whether a passenger or a driver he would likely be able to tolerate sitting for about 30 minutes.  (b) Letter from GP … outlined that Nr Nabhani sometimes has difficulties moving his head to look in all directions.  This was clarified during telephone discussion to occur only during severe pain attacks.  (c) … Dr Al Sharifi stated that Mr Nabhani is not able to bend forward to pick an object from the floor; However is able to bend beyond knee level with difficulties and some pain.

30. Dr Al-Sharifi had provided three further reports that are undated but received in August 2015 (ST5, ST6 and Exhibit A1).  Dr Al-Sharifi states in Exhibit A1 that His degenerative disc disease is progressively getting worse and his mobility and comfort levels are declining making his general tasks on a daily basis more difficult to undergo … I would greatly appreciate it if you could take in consideration his current situation with regards to his centrelink application.

31. These reports are outside the qualifying period and report a progressive change in the condition.  Exhibit A1 specifically refers to Mr Nabhani’s current condition and not his condition during the qualifying period.  I prefer the contemporaneous evidence contained in Dr Al-Sharifi’s earlier reports and his clarifying comments as recorded in the JCA reports.

32. There is no corroborated evidence in regard to Mr Nabhani’s inability to perform any overhead activities.  Dr Al-Sharifi records effects of the condition on flexor and extensor movements. However, this is not sufficient to support a finding of an inability to perform any overhead activities.

33. Dr Al-Sharifi’s evidence is that Mr Nabhani has difficulty in moving his head in all directions during severe pain attacks.  However, I note the evidence that Mr Nabhani is able to drive a car for 30 minutes.  I accept that driving a car requires a driver to turn his head without moving his trunk.  The evidence is not sufficient to support a finding the Mr Nabhani is unable to turn his head or bend his neck without moving his trunk.

34. There is evidence from Dr Al-Sharifi and the JCA that Mr Nabhani has difficulty in picking up a light object placed at knee height.  However, there is no corroborated evidence that he is unable to bend forward to pick up a light object from a desk or table.

35. The evidence of Dr Al-Sharifi and the JCA is that Mr Nabhani is able to sit for 30 minutes.  There is no corroborated evidence that he is unable to remain seated for at least 10 minutes.

36. There is no corroborated evidence to support any of the descriptors required for a rating of 20 points under the Impairment Tables.  As a result, I find that Mr Nabhani’s back condition attracts a rating of 10 impairment points under the Impairment Tables.

    Bowel Cancer

37. Ms Chan contended that, during the qualifying period, Mr Nabhani’s bowel cancer was not fully treated and stabilised.

38. I note the evidence of Dr Al-Sharifi in his report dated 18 December 2014 that Mr Nabhani had surgery for this condition in November 2014 and that he required follow up by colorectal team.  In her evidence, Mrs Toopchizadeh stated that Mr Nabhani had sought without success a further appointment with a specialist.  She also accepted that he may have had a review of his condition in June 2015. 

39. I am satisfied from the evidence that, during the qualifying period, Mr Nabhani’s condition of bowel cancer was not fully treated and find accordingly.  As a result, this condition is not permanent pursuant to the Impairment Tables and I am not able to assign an impairment rating to it.

    Hernia

40. Mrs Toopchizadeh made no submissions in regard to this condition.

41. Ms Chan conceded that Mr Nabhani’s hernia condition was fully diagnosed, treated and stabilised.  She contends that zero points should be assigned as the impairment rating as the condition is well managed.

42. I note the report of Dr Al-Sharifi dated 18 December 2014 which records Bilateral Hernia repaired amongst other conditions that are generally well managed and that cause minimal or limited impact on ability to function.  I note in the evidence given to the Tribunal at first review that Mr Nabhani said the hernias did not pose any functional liabilities currently. 

43. From the evidence I am satisfied that the condition is fully diagnosed, treated and stabilised and is well managed and causes minimal impact on Mr Nabhani’s ability to function.  I find that the condition attracts a rating of zero under the Impairment Tables.

    Anxiety and depression

44. In her submissions, Mrs Toopchizadeh submitted that Mr Nabhani has been frequently visiting a psychiatrist at Foundation House.  She also submitted that Dr Al-Sharifi has been prescribing medications for his condition but he has not been to see a psychologist or psychiatrist because he was unwell. 

45. Ms Chan submitted that the evidence given at the hearing was that Mr Nabhani has been reluctant to go to a psychologist and had his first consultation in February 2016.  Ms Chan contended that the condition was not fully diagnosed and could not be assigned an impairment rating.

46. The Introduction to Table 5 – Mental Health Function provides in part 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). 

47. The only diagnosis of depression and anxiety during the qualification period is by Dr Al-Sharifi in his report dated 18 December 2014.  In that report, he listed depression and anxiety with other conditions that are generally well managed and that cause minimal or limited impact on his ability to function.  Dr Al-Sharifi is not appropriately qualified to make a diagnosis of mental health conditions.  There is no evidence of a diagnosis by a psychiatrist or a clinical psychologist.  There is no evidence of a diagnosis of the condition in accordance with the provisions of Table 5 of the Impairment Tables. 

48. I find Mr Nabhani’s mental health condition to be not fully diagnosed during the qualifying period.  As a result, the condition is not permanent within the terms of the Impairment Tables and I cannot assign an impairment rating.

    Osteoarthritis of hands

49. Mrs Toopchizadeh made no submissions in regard to this condition.

50. Ms Chan conceded that the condition was fully diagnosed, treated and stabilised but said that it was well managed and attracted a rating of zero points.

51. I note the report of Dr Al-Sharifi dated 18 December 2014 which records the condition of osteoarthritis as a condition of Mr Nabhani that is generally well managed and causes minimal or limited impact on his ability to function. 

52. From the evidence, I accept the concession that the condition is fully diagnosed, treated and stabilised.  As the condition is generally well managed and causes minimal impact on Mr Nabhani’s ability to function, I find that it attracts a rating of zero impairment points.

    Total Impairment Rating

53. For Mr Nabhani’s conditions at the time of the qualifying period I have found the following:

    (a)Back pain – 10 impairment points under Table 4 of the Impairment Tables;

    (b)Bowel cancer – not fully treated and stabilised – unable to assign an impairment rating;

    (c)Hernia – zero impairment points under the Impairment Tables;

    (d)Anxiety and depression – not fully diagnosed – unable to assign an impairment rating; and

    (e)Osteoarthritis of the hands – zero impairment points under the Impairment Tables.

54. The total impairment rating at the time of the qualifying period is 10 impairment points.

    CONCLUSION

55. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all of the sub-sections must be satisfied.  Mr Nabhani does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, he cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.

56. The result is that during the qualifying period Mr Nabhani was not qualified for DSP and I find accordingly.

    DECISION

57. I affirm the reviewable decision.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 1 April 2016

Date(s) of hearing	11 March 2016
Applicant	In person
Advocate for the Respondent	Ms Vincci Chan, solicitor