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

[2017] AATA 1090

Nahoum and Secretary, Department of Social Services (Social services second review) [2017] AATA 1090 (14 July 2017)

Division:GENERAL DIVISION

File Number(s):      2015/6123 

Re:Salam Nahoum  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:14 July 2017  

Place:Melbourne

The decision under review is affirmed.

........................................................................

D.J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified at time of cancellation – whether impairments correctly assigned 20 or more impairment points – fluctuating condition – reasonable treatment not undertaken for a condition - whether Respondent has continued inability to work –  reviewable decision affirmed

Legislation
Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999, Sch 2, cl 4(1)

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

REASONS FOR DECISION
D. J. Morris, Member
14 July 2017

BACKGROUND

1. The Applicant, Ms Salam Nahoum, was granted Disability Support Pension (DSP) in April 2009 because of a spinal condition.  The Department of Human Services (the Department) initiated a review into her eligibility - for DSP, and on 19 February 2015, her general practitioner, Dr Youssef Khoudry, provided a medical report.

2. On 25 June 2015 Ms Nahoum underwent a Job Capacity Assessment (JCA) connected with this review.  On 13 July 2015 an officer of the Department acting as a delegate of the Secretary decided that the Applicant was no longer eligible for DSP and it was cancelled.  This is the original decision.

3. Ms Nahoum requested a review of the decision.  The review was conducted by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 30 July 2015 the ARO affirmed the original decision. The ARO accepted that Ms Nahoum’s spinal condition and hypertension were permanent conditions, and therefore could be assigned impairment points under the Impairment Tables (supra).  However, the ARO’s assessment was that her spinal condition should be assigned five impairment points, and her hypertension condition should be assigned zero points.  Consequently, the ARO affirmed the original decision that Ms Nahoum was not eligible for DSP on the date it was cancelled.

4. The Applicant sought review of this decision by the Social Services and Child Support Division of the Tribunal (AAT1).  AAT1 held a hearing on 27 October 2015 and affirmed the decision.

5. Ms Nahoum sought review of this decision by the General Division of the Tribunal.  The hearing commenced on 25 January 2017, and was conducted by telephone.  The Applicant’s daughter, Ms Joceline Nasr, represented Ms Nahoum.  Mr Tim Noonan, a solicitor from the Department of Human Services represented the Respondent Secretary.  The Applicant gave evidence under affirmation and was cross-examined.  Ms Nasr also gave evidence.  Two medical witnesses gave concurrent evidence, Dr Khoudry, the Applicant’s general practitioner, and Dr Christopher Minogue, a specialist occupational physician employed by the Department.  At the conclusion of the hearing, the Tribunal directed that the Applicant provide any radiological or neurological reports dated between 1 July 2012 and 1 July 2016 to the Tribunal, and gave the Respondent leave to make submissions in reply.  On 11 April 2017 the hearing resumed and further evidence was heard from Dr Khoudry. 

6. The Respondent tendered documents and supplementary documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence. The Respondent also submitted a Secretary’s Statement of Facts, Issues and Contentions on 19 October 2016.

7. The Tribunal also took into evidence at the hearing on 25 January 2017:

   ·a Centrelink Health Professional Advisory Unit report dated 28 July 2016 by Dr Christopher Minogue (Exhibit R1);

   ·a Centrelink Health Professional Advisory Unit report dated 30 August 2016 by Dr Minogue (Exhibit R2);

   ·a medical report by Dr Youssef Khoudry dated 31 May 2016 (Exhibit A1);

   ·a medical report by Dr Khoudry dated 9 August 2016 (Exhibit A2);

8. The following documents were lodged before the resumed hearing on 11 April 2017:

   ·a radiological report dated 14 August 2015 (Exhibit A5);

   ·a radiological report dated 24 January 2013 (Exhibit A6);

   ·a medical certificate from Dr Martin Gallagher, radiologist, dated 2 April 2009 (Exhibit A7);

   ·The Secretary’s submissions dated 20 February 2017, which include a Centrelink Health Professional Advisory Unit report dated 14 February 2017 by Dr Minogue (Exhibit R3).

   Qualification for DSP under the Act

   9.The law applicable to the grant of DSP is contained in the Social Security Act 1991 (the Act), and in particular, section 94 of that Act.

   10.In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and satisfy the qualification criteria. It must be established that the person applying has:

   (a)       physical, intellectual or psychiatric impairment; and

   (b)       impairment of 20 points or more under the Impairment Tables; and

   (c)       a continuing inability to work.

   11.The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

   12.The question before the Tribunal is whether the decision that Ms Nahoum was not qualified for DSP on the date the Department cancelled it, 13 July 2015, in accordance with the law applicable on that date, was the correct and preferable decision.

   Does the Applicant have a physical, intellectual or psychiatric impairment?

   13.In his medical report dated 19 February 2015, the Applicant’s treating general practitioner, Dr Khoudry, stated that the condition which had the most impact on Ms Nahoum’s functional ability was a spinal condition, namely ‘L4 L5, L5S, disc bulging with degenerative facet joint arthritis’.  He determined the date of onset of this condition as 2 April 2009, and said that the condition had been confirmed by a CT scan at the Western Hospital orthopaedic department.  Dr Khoudry said the condition caused back pain for the Applicant which radiated to both legs, and was being treated with analgesia and physiotherapy.  Dr Khoudry said that the effect on Ms Nahoum was numbness in both legs and difficulty walking; standing for a long period; and pushing and pulling.  He expected the condition to persist for more than two years.

   14.The second condition identified by Dr Khoudry was ‘cervical thoracic spine degenerative disc and scoliosis.’  He said that the Applicant has had this condition for ten years and the diagnosis was confirmed by a neurologist, x-ray, and CT scan results from the Western Hospital orthopaedic department. He listed medicaments the Applicant was taking, that she was undergoing physiotherapy, and that conservative treatment had been recommended.  Dr Khoudry stated that he expected this condition to deteriorate within two years.

   15.There is a section of the medical report where other medical conditions are listed that are considered generally well managed and cause minimal or limited impact on the person’s ability to function.  In this section, Dr Khoudry identified ‘Depression anxiety disorder’ for which Ms Nahoum was on medication and undergoing counselling.

   16.Although he did not mention hypertension in his 19 February 2015 medical report, Dr Khoudry had mentioned it in a 2009 report.  Ms Nahoum also told the Job Capacity Assessor (JCA) in June 2015 that she was still prescribed blood pressure medication.

   17.Dr Khoudry reported in a later medical report dated 9 August 2016 in response to an earlier report by Dr Minogue, that in his opinion Ms Nahoum had cervical radiculopathy which manifests itself in pain running from her neck down both arms to her hands, accompanied by numbness and swelling.

   18.On the medical evidence before the Tribunal, I find that Ms Nahoum did satisfy the requirements in section 94(1)(a) of the Act at the time her DSP was cancelled.  She had impairments, namely a spinal condition, a mental health condition, hypertension and an upper limb condition.

   What is the correct rating under the Impairment Tables?

   19.The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

   20.Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can or could do, and not on the basis of what a person chooses to do or what others can do for the person.

   21.Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

   22.Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent.  Additionally, the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.

   23.Section 6(4) of the Impairment Tables provides that for a condition to be permanent, it must be fully diagnosed, fully treated, and fully stabilised by an appropriately qualified medical practitioner.

   24.The Impairment Table Determination also provides at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.  The Tribunal must therefore consider Ms Nahoum’s medical conditions with reference to the applicable Impairment Tables.

   Spinal condition

   25.As mentioned above, Dr Khoudry diagnosed a condition of ‘cervical and thoracic spine degenerative disc and scoliosis’.  Although Dr Khoudry referred to Ms Nahoum undergoing physiotherapy, the Applicant told the JCA that she had not had physiotherapy for many years but did attend massage periodically when funds allowed.  Ms Nahoum told the JCA about difficulties bending to the floor to don socks and shoes but that she could reach her knees.  She told the JCA she could lift items up to a weight of around 5 kilograms and sit to watch a television programme for 30 minutes.  However, in the hearing Ms Nahoum changed this view and stated that she could not remain seated for at least ten minutes.

   26.In regard to her periodic travel overseas, the Applicant’s daughter gave evidence that another daughter works for an airline and when her mother travels, she arranges to ‘block’ out adjacent seats so that Ms Nahoum can lie down during the flight.  Ms Nahoum said she changes her position from sitting to standing during the flight, as she needs to. Ms Nahoum said she travelled overseas in 2014 and 2015 for a period of about two weeks.  Ms Nasr said that part of the reason for the travel was to give her family some respite from caring for her mother.

   27.Ms Nasr gave other evidence about limitations on Ms Nahoum’s movement.  She said that she or her sister washed her mother’s hair and chopped up her meat for meals. She said that her mother would occasionally – but rarely – go to the supermarket and would lean on a trolley for support.

   28.The Tribunal also heard evidence from Dr Minogue, who had been asked by the Respondent to review the medical evidence and provide an assessment.  Dr Minogue said that disc bulges are common in persons of the Applicant’s age group.  In terms of the radiculopathy of Ms Nahoum’s upper limbs, Dr Minogue was of the opinion that CT scans often provide insufficient definition and do not confirm radiculopathy, and that the logical next step would be to order an MRI scan to clarify that issue.  Dr Minogue was of the view in regard to the Applicant’s reported symptoms of spinal pain “all the time” that the evidence was consistent with the allocation of 10 impairment points under Table 4 – Spinal Function.

   29.Dr Khoudry gave evidence Ms Nahoum was on the waiting list for an MRI appointment on his advice.  Dr Khoudry took the view that he had the advantage of having examined the Applicant over a long period and that Dr Minogue was only able to perform an assessment on the papers before him.  He said it was a judgement as to whether Ms Nahoum is in severe disability and in Dr Khoudry’s view, she cannot work at all. 

   30.Dr Khoudry agreed that Ms Nahoum’s condition fluctuated and that her clinical presentation varies from time to time. He said that her symptoms are not always consistent – sometimes she had severe irritation, and other times she might feel no pain. He said that this depended on whether the disc is touching the nerve at the time or not.  Sometimes she could not raise her arms when she was in pain, other times she could.  Dr Khoudry said that Ms Nahoum might experience two days of pain and then relief with analgesia. 

   31.In terms of Ms Nahoum’s right shoulder condition, Dr Khoudry agreed with Dr Minogue that the Applicant could benefit from a cortisone injection.  He said that her main condition was her back and neck problems.  The Tribunal drew Dr Khoudry’s attention to section 11(4) of the Determination which states:

   When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

9. Dr Khoudry’s evidence was that he did not think the Applicant could sustain any type of work at all. He said that Ms Nahoum has to stay at home on strong analgesics and that in his opinion she may be able to work 10 hours in one week but not work at all in the next week, because of the unpredictability of her condition.

10. The Tribunal has carefully considered the oral and written evidence of both Dr Khoudry and Dr Minogue.  The Tribunal notes that Dr Khoudry has had the benefit of treating the Applicant for some years and is more familiar with her condition, and that his evidence was that it was fluctuating.  The Tribunal also notes that in the claim period, Ms Nahoum confirmed to the ARO that she undertakes a 14 hour non-stop flight to Qatar each year, and she told the hearing she had also travelled to holiday in Turkey on one occasion. 

11. Accepting the evidence that her daughter’s employment with an airline made this travel easier for Ms Nahoum by allowing her room to stretch out and rest during the flight, applying the Descriptors in Table 4, on the evidence Ms Nahoum may not be able to perform overhead activities or turn her head without moving her trunk, but she is able, on the evidence, to remain seated for at least 10 minutes. On her evidence, she can bend forward to pick up a light object from a desk or table.  The matrix in the Determination for the assignment of 20 impairment points under Table 4 requires each of the Descriptors to be met, and they are not.

12. On balance, I find that there is a moderate functional impact on Ms Nahoum from her spinal conditions and 10 impairment points should be assigned under Table 4.

    Mental health condition

13. Dr Khoudry told Dr Minogue that he did not think that the Applicant had consulted a psychiatrist or a clinical psychologist.  For the assignment of impairment points under Table 5 – Mental Health Function, the Determination requires a diagnosis by a psychiatrist or, if that is lacking, a corroborative diagnosis by a clinical psychologist.

14. As there is no evidence before the Tribunal of a diagnosis by a practitioner who falls into those mandatory classes, I am unable to consider Ms Nahoum’s depression under the Determination in terms of assigning impairment points for it.

    Hypertension

15. Although this condition was not mentioned in the more recent medical report of Dr Khoudry, it was mentioned in his earlier medical report.  Dr Khoudry stated to Dr Minogue that he did not think Ms Nahoum’s hypertension resulted in an impairment as she is on medication and the condition is well managed.  Under section 11(5) of the Determination, the Tribunal assigns zero points for this condition.

    Upper limb condition

16. In terms of whether Ms Nahoum should have her neck and arm condition assessed under Table 2 – Upper Limb Function, the Tribunal notes the evidence from Dr Khoudry and Dr Minogue about radiculopathy.  Dr Minogue was of the opinion:

    Likewise despite client reported arm and hand symptoms, the available evidence does not corroborate a diagnosis of radiculopathy affecting either upper limb.  The ultrasound findings of right shoulder supraspinatus tendinopathy, subdeltoid bursitis and impingement probably explain at least a proportion of the upper limb symptoms.  However, apart from physiotherapy as reported by Dr Khoudry, there is no evidence of other specific treatment such as subacromial corticosteroid injection(s), and in my opinion this condition can be reasonably deemed not fully treated and stabilised.

17. Dr Khoudry said in response that the Applicant made her own decision not to have the injections as she felt it was invasive and improvement was not guaranteed, and Dr Khoudry felt this condition had been fully treated and stabilised with conservative treatment.  In his oral evidence, however, Dr Khoudry agreed that cortisone injections were a desirable treatment which could relieve pain.  I therefore find on this evidence that, as reasonable treatment had not been undertaken, the condition cannot be considered to be fully stabilised under section 6(6) of the Determination.  The Tribunal therefore cannot consider this condition for the assignment of impairment points under Table 2 of the Determination.

    Fibromyalgia

18. In terms of fibromyalgia, there was a dearth of information in the documents before the Tribunal to properly assess the possible functional impact of this condition on Ms Nahoum.  Dr Minogue said this condition may require specialist assessment and advice.  Dr Khoudry in his report of August 2016 stated he was confident in his diagnosis of fibromyalgia and had prescribed Zoloft, an antidepressant drug, for this condition, and a recommended a range of other measures such as massage and diet.  While I may accept that there was a clinical diagnosis of fibromyalgia, the Tribunal is am not persuaded that this condition was fully treated and fully stabilised at the time of cancellation, because of the lack of specific information about treatment.

    Total impairment point allocation

19. The Tribunal finds that the Applicant is assigned a total of 10 impairment points, under Table 4 – Spinal Function, for her medical impairments at the time of cancellation.  She therefore did not satisfy section 94(1)(b) of the Act at the time of cancellation.

    Continuing inability to work

20. Given that it is a mandatory requirement that a person be assigned 20 or more impairment points to be eligible for DSP under the Act,, it is not necessary for the Tribunal to go on to consider whether Ms Nahoum has a continuing inability to work under section 94(1)(c) of the Act. The Applicant was not qualified for DSP under section 94(1)(b) of the Act on the date it was cancelled.

    DECISION

1. 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 D.J. Morris, Member

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

Associate
Dated: 14 July 2017

Date of hearing:	25 January, 11 April 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr T Noonan
Solicitors for the Respondent:	Department of Human Services, Freedom of Information & Litigation Branch