Peter Hermez and Secretary, Department of Social Services

[2014] AATA 400

[2014] AATA 400

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5555
Re	Peter Hermez
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	23 June 2014
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions fully diagnosed, treated and stabilised – whether applicant had a 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

REASONS FOR DECISION

Dr Ion Alexander, Member

23 June 2014

BACKGROUND

1. On 13 August 2012 Mr Hermez lodged a claim for Disability Support Pension (DSP) on the basis that he suffered various medical conditions that were having an impact on his ability to function. The conditions included severe depression/anxiety, Post Traumatic Stress Disorder (PTSD), diabetes, hypertension, hyperlipidaemia and asthma.

2. Mr Hermez’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) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.

3. In this proceeding Mr Hermez seeks review of the decision of the SSAT.

4. At the hearing, which was conducted by telephone, Mr Hermez was self-represented and he gave oral evidence with the assistance of an interpreter in the Assyrian language.

   ISSUES

5. In order to qualify for DSP Mr Hermez 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 assessment period) in accordance with the requirements of the Social Security (Administration) Act 1999, that is, 13 August 2012 to 12 November 2012.

6. It is agreed that Mr Hermez satisfied s 94(1)(a) of the Act.

7. The Respondent submits that Mr Hermez’s correct rating was no more than 10 points under Impairment Table 5 – Mental Health Function and therefore did not satisfy s 94(1)(b) of the Act.

8. The Respondent also submits that if the Tribunal finds that Mr Hermez’s rating under the Impairment Tables was 20 points or more he did not have a continuing inability to work as required by s 94(1)(c).

9. Therefore the issues to be decided are whether during the assessment period Mr Hermez had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

   IMPAIRMENT RATING

10. On 21 August 2012, Mr Hermez attended a face to face Job Capacity Assessment (JCA) with two assessors, an occupational therapist and a psychologist.

11. In a report dated 21 August 2012, the assessors indicated that Mr Hermez suffered several medical conditions including arthritis, PTSD, depression/anxiety, diabetes, hypertension, hyperlipidaemia and asthma.

12. The assessors concluded that all the conditions, although fully diagnosed, could not be considered fully treated and stabilised and no rating under any Impairment Tables was allocated.

13. The assessors also concluded that Mr Hermez had a baseline work capacity of 8-14 hours which was likely to last for more than two years and with assistance from Disability Management Services it might be possible to increase future work capacity to 15-22 hours within two years.

    MR HERMEZ’S EVIDENCE

14. Mr Hermez’s oral evidence was somewhat limited by the use of the telephone and the requirement for full translation.

15. Although he was able to confirm the relevant aspects of the evidence he gave before the SSAT it was clear that Mr Hermez had significant difficulty with concentration and memory and was unable to provide any additional useful information.

16. Prior to applying for DSP Mr Hermez was referred to Dr Abu-Arab, clinical psychologist, for a mental health assessment and was diagnosed as suffering from PTSD and major depression.

17. In his evidence before the SSAT Mr Hermez stated he saw Dr Abu-Arab on about five occasions and was only given “guidance” with no improvement in his symptoms so he stopped seeing him.

18. In his oral evidence before the Tribunal Mr Hermez confirmed that the only treatment he had received was counselling which was of little benefit and was unable to remember whether he had been treated with medication.

19. It was noted in the JCA report of 21 August 2012 that Mr Hermez had told the assessors that he was being treated with Zoloft, an antidepressant, since June 2012 but indicated poor compliance in that he only “takes it when he feels like it.”

20. When questioned by the Tribunal about that notation in the report Mr Hermez stated that he was unable to remember.

    MEDICAL EVIDENCE

21. In a medical report dated 6 February 2012 Dr S Guirguis, general practitioner, lists “anxiety & depression” and “arthritis” as medical conditions that have a significant impact on Mr Hermez’s ability to function.

22. In respect of the diagnosis of “anxiety & depression” the doctor notes current symptoms as “can’t sleep at night, can’t concentrate, can’t communicate with people, low self-esteem, lack of energy” and simply describes impact on ability to function “as in the symptoms”.

23. Current treatment and future treatment is noted as “antidepressant, several counselling sessions”.

24. In respect of “arthritis” the doctor notes a history of “generalised joint pain all over body”, lists symptoms as “can’t do repetitive movements, can’t lift heavy weights, can’t sit or stand for long periods, can’t push or pull heavy weights” and describes impact on ability to function “as in symptoms”.

25. Current and future treatment is noted as “NSAI-pain management, physiotherapy”.

26. The conditions of diabetes, asthma, hypertension and hypercholesterolemia are listed as conditions that are generally well managed and cause minimal or limited impact.

27. In a medical report dated 13 August 2012 Dr Guirguis lists “severe anxiety & depression-post traumatic stress disorder” and “arthritis” as medical conditions which have a significant impact on Mr Hermez’s ability to function.

28. In respect of current symptoms and impact on ability to function this report is almost an exact copy of the earlier report and provides no additional useful information.

29. On the issue of future/planned treatment the doctor does note “maybe referral to a psychiatrist.”

30. With respect to the condition of “arthritis” Dr Guirguis simply repeats the information provided in the earlier report.

31. The conditions of diabetes, asthma, hypertension and hypercholesterolemia are again listed as conditions that are generally well managed and cause minimal or limited impact.

32. A CT scan of the lumbar spine performed on 6 July 2012 is reported as showing minimal osteophyte development form L1 to L5, no signs of disc protrusion and no impingement on nerve roots.

33. In a relatively brief letter dated 8 August 2012 Dr Abu-Arab, clinical psychologist, notes that he saw Mr Hermez on six occasions in a Cognitive Behavioural Program to help him overcome his depression and anxiety.

34. Dr Abu-Arab diagnoses PTSD and Major Depression and states that the condition is chronic and that he does not expect significant improvement, but provides no information as to future treatment and makes no mention of medication or psychiatric assessment.

35. In oral evidence before the SSAT Dr Abu-Arab confirmed that he had six sessions with Mr Hermez the last being on 8 August 2012. He stated that he had provided Mr Hermez with “some skills” to help him manage his symptoms but considered his condition was chronic and that further treatment would not improve the symptoms. He simply sent Mr Hermez back to his GP for monitoring and management of drug therapy, but did not explain the nature of any drug therapy or recommend psychiatric review.

36. A note from the Guirguis Family Medical Practice dated 27 August 2013 lists all Mr Hermez’s medications but does not include any antidepressant medication.

37. In a brief letter dated 4 November 2013 Dr Tejani, endocrinologist, notes that Mr Hermez has suffered from Type II diabetes for six years and that he has been treated with oral medication alone despite previous specialist recommendation for treatment with insulin.

38. Dr Tejani states that Mr Hermez has had very poor glycaemic control and needs to be treated with insulin.

39. In a report dated 21 November 2013 Ms Short, diabetes educator, notes that Mr Hermez was started on treatment with insulin.

40. In November 2013 Dr Guirguis referred Mr Hermez for psychiatric assessment.

41. In a letter dated 10 November 2013 Dr Attia-Soliman, psychiatrist, noted that Mr Hermez presented with biological features of depression and diagnosed PTSD with chronic depression due to family stress.

42. She recommended treatment that included “a chance to ventilate his feeling[s] in a supportive environment” and antidepressant medication (Avanza).

43. In a postscript dated 19 February 2014 Dr Attia-Soliman noted that Mr Hermez was not improving because of continuing stress and increased his medication dose. She also stated that Mr Hermez would need to continue his antidepressant medication for more than two years.

    CONSIDERATION

44. There is no dispute that Mr Hermez suffers various medical conditions that cause impairment and may have an impact on his ability to function.

45. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) states that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.

46. The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.

47. For present purposes I accept that the conditions asthma, hypertension and hypercholesterolemia are permanent within the meaning of the Act.

48. The medical evidence before the Tribunal clearly indicates that these conditions have been generally well managed and cause minimal impact on Mr Hermez’s ability to function and, therefore, an impairment rating cannot be assigned.

49. In respect of the condition of diabetes the medical evidence clearly suggests that Mr Hermez’s glycaemic control was very poor for some unspecified time prior to starting treatment with insulin in November 2013.

50. This leads me to conclude the Mr Hermez’s diabetes was not fully treated and stabilised during the assessment period which means that an impairment rating for this condition cannot be assigned.

51. The condition of “arthritis” is somewhat problematic in that no definitive diagnosis has been made. The reports provided by Dr Guirguis simply describe several ill-defined symptoms which have no coherent explanation and there is no other evidence to support a diagnosis of “generalised arthritis”.

52. The only radiological evidence before the Tribunal is a CT scan of the lumbar spine which is essentially normal.

53. Therefore, I conclude that the condition of “arthritis” was not fully diagnosed which means that an impairment rating cannot be assigned.

54. In respect of Mr Hermez’s mental health condition it is clear from the evidence before the Tribunal that during the assessment period he suffered from PTSD and depression and that this was fully diagnosed.

55. What is not so clear is whether the condition was fully treated and stabilised and, if so, whether Mr Hermez’s impairment rating was as least 20 points under Impairment Table 5 which would be necessary for his application to succeed.

56. On the issue of treatment the evidence of Dr Guirguis and Dr Abu-Arab is somewhat unhelpful. It is not clear whether, during the assessment period, Mr Hermez was prescribed any appropriate medication and, if so, whether he was compliant in taking that medication.

57. Dr Abu-Arab, a clinical psychologist, clearly considered that he was no longer able to assist Mr Hermez, but did not consider whether assessment and treatment by a psychiatrist may be beneficial.

58. This situation was subsequently remedied when Dr Guirguis referred Mr Hermez for psychiatric assessment and treatment in November 2013, well after the assessment period. There is nothing in the material before the Tribunal to explain the reason for referral at that time.

59. It follows that the evidence tends to support a conclusion that Mr Hermez’s mental health condition was not fully treated and stabilised during the assessment period and therefore not permanent within the meaning of the Act.

60. Even if I were to be satisfied that Mr Hermez’s mental condition was permanent during the assessment period the question of Mr Hermez’s impairment rating under Impairment Table 5 remains problematic.

61. The relatively comprehensive evidence given by Mr Hermez before the SSAT suggests that, at the time of his application for DSP, his diagnosed mental health condition had moderate to severe impact on several of the activities listed in Table 5.

62. However, the Introduction to Table 5 clearly requires that “[s]elf–report of symptoms alone is insufficient” and that “[t]here must be corroborating evidence of the person’s impairment”.

63. The difficulty for Mr Hermez is that the medical evidence before the Tribunal is relatively superficial and inconclusive and I am not satisfied that it provides sufficient support to corroborate the level of impairment suggested by all his self-reported symptoms.

64. At best, the medical evidence tends to support a conclusion that there is a moderate impact on activities involving mental health function which leads to an impairment rating of 10 points under Table 5.

65. If follows that during the assessment period Mr Hermez did not have an impairment rating of at least 20 points and therefore did not satisfy s 94(1)(b) of the Act.

    DECISION

66. For the reasons set out above Mr Hermez did not satisfy the requirements of s 94 of the Act and therefore was not qualified for DSP.

67. The decision under review is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 23 June 2014

Date of hearing	2 June 2014
Applicant	Appeared by telephone
Advocate for the Respondent	Ms B Salaji, Department of Human Services