Rahem and Secretary, Department of Social Services (Social services second review)
[2016] AATA 83
•18 February 2016
Rahem and Secretary, Department of Social Services (Social services second review) [2016] AATA 83 (18 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3553
Re
Qusai Rahem
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 18 February 2016 Place Sydney The Tribunal affirms the decision under review.
........................[sgd]................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions - disability support pension – multiple conditions - whether condition is fully diagnosed, treated and stabilised – whether applicant’s impairments rated 20 points or more under the Impairment Tables – 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 I Alexander, Member
18 February 2016
Mr Rahem is 41 years old and on 29 August 2014 he 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.
Mr Rahem’s 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”) because his impairment was not 20 points or more under the Impairment Tables.
In a decision dated 12 May 2014 the former Social Security Appeals Tribunal (“SSAT”) found that Mr Rahem had a total impairment rating of 10 points on the basis that his permanent mental health condition had a moderate functional impact on activities involving mental health function and warranted a rating of 10 points under Impairment Table 5. Accordingly Mr Rahem’s impairment was not 20 points or more so that he did not satisfy s 94(1)(b) of the Act.
In these proceedings Mr Rahem seeks review of the SSAT decision.
At the hearing Mr Rahem was self–represented and assisted by his wife and an interpreter of the Arabic language.
ISSUES
In order to qualify for DSP, Mr Rahem 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) Act 1999 (Cth), that is, between 29 August 2014 and 28 November 2014 (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 Rahem suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
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 a psychiatrist)”.
In a Centrelink Medical Report dated 27 August 2014, Dr Sidrak, GP, listed “major depression, melancholic features complicated with panic attacks” as the medical condition with most functional impact. He also listed “impaired vision, bilateral pulmonary nodules… crush fracture L1 and T12 → back pain, renal stone (passed), vertigo” as medical conditions causing significant functional impact.
I note that in the last 12 months Mr Rahem has suffered significant abdominal pain and has recently been diagnosed as suffering from diverticular disease of the bowel. In November 2015 he was admitted to hospital with acute diverticulitis. This condition has apparently had a significant impact on his more recent functional capacity but cannot be considered for present purposes as the condition was clearly not diagnosed or treated until well after the end of the claim period.
The definitive issues for the Tribunal to consider are whether, during the claim period, Mr Rahem had an impairment of 20 points or more under the Impairment Tables because of his medical conditions and, if so, whether he had a continuing inability to work.
MENTAL HEALTH CONDITION
In a letter dated 29 September 2012 Dr Philips, psychiatrist, notes that that he reviewed Mr Rahem and states, inter alia, the following:
“He reported partial improvement in his symptoms especially agitation, anxiety and sleep. He still finds it difficult to concentrate…
…His depressive symptoms have partially improved.
The results of cognitive tests may reflect cognitive symptoms of his depression/anxiety or pre-existing level of functioning. Secondary gain also may be a factor as he needs a certificate for Centrelink.”
In a brief note dated 10 November 2012, Dr Philips states that Mr Rahem “is being treated for major depressive episode. Although there was some initial improvement, the symptoms are still severe and will need long term treatment”.
In a brief letter dated 12 January 2013, Dr Philips states that Mr Rahem is being treated for a “major depressive episode” and notes the following :
“He continues to have significant symptoms including low mood, disturbed sleep and lack of energy. The symptoms are still severe and will need long term treatment. Those symptoms affect his ability to work and function normally.”
Dr Philips does not provide any details with respect to treatment or how the condition impacts on Mr Rahem’s ability to function.
In a very brief note dated 13 July 2013, Dr Philips states that Mr Rahem attended for his appointment and “He still has some depressive symptoms. I have given him a script for antidepressants”.
As noted above, Dr Sidrak, in his report of 27 August 2014, confirms the diagnosis of “major depression”, notes current treatment as Olanzapine and Valproate and describes impact on ability to function as “↓ endurance ↓ communication ↓ energy”.
In a report dated 15 December 2014, Dr Philips states that Mr Rahem has been under his care since 18 August 2012 and that at the first consultation he reported “low mood, lack of sleep, energy and appetite, loss of weight, social isolation and decreased concentration”.
Dr Philips stated his “impression and plan” as follows:
“History and mental examination suggests a major depressive episode with melancholic features complicated with panic attacks.
I have prescribed an antidepressant. During the course of his follow up visits; Mr Rehem (sic) continued to have difficulty with his mood, sleep and anxiety. His symptoms are exacerbated not only because of his mental state but also because of his constant pain.
His mental state has not stabilized yet and I will continue to monitor and advise on further management”.
In a Job Capacity Assessment (JCA) submitted on 10 October 2014, the assessor notes, inter alia, that Mr Rahem reported the following:
“…he is not leaving his home without his wife. She is assisting him with attending appointments, taking kids to school or playground…having mild difficulty with social and recreational activities…limited social contacts…has recently had his medication changed and the dosage increased…has not been engaged in any sort of psychological treatment/counselling…doe (sic) not have any effective strategies to manage his medical condition other than medication…has recently started new medications and will attend review with Dr Philips in 4 months”.
The SSAT was satisfied that Mr Rahem’s depression was permanent for the purposes of the Act and on the basis of information provided by him at the hearing concluded that there was a moderate functional impact on activities involving mental health function and assigned a rating of 10 points under Impairment Table 5.
Consideration
The Respondent submits that, during the claim period, Mr Rahem’s mental health condition was not fully treated and fully stabilised and in particular, relies on Dr Philips’ report of 15 December 2014.
The medical evidence which, in my view, can best be described as limited and generally unhelpful does suggest that Mr Rahem’s condition was not fully stabilised during the claim period.
However, it is well recognised that the symptoms of a chronic mental health condition may vary over time and that modification and review of treatment is often necessary.
Accordingly, I am satisfied that during the claim period Mr Rahem’s mental health condition was permanent for the purposes of the Impairment Determination.
The issue of the functional impact of Mr Rahem’s condition on activities involving mental health function is in my view, somewhat problematic. The medical evidence does not provide a satisfactory assessment of his impairment with respect to descriptors in Impairment Table 5.
The assessment by the SSAT is helpful but is based upon Mr Rahem’s self-report of symptoms.
However, notwithstanding the difficulties, on consideration of all the evidence before the Tribunal I am satisfied that, during the claim period, there was at least a moderate impact on activities involving mental health function so that a rating of 10 points under Table 5 can be applied.
In my view, there is insufficient corroborative evidence to support a conclusion that there was a severe impact on activities involving mental health function.
BACK PAIN/ SPINAL FUNCTION
Mr Rahem claims that he suffers from severe lower back pain which causes significant impairment and requires regular pain medication.
A lumbosacral spine x-ray performed on 9 July 2012 is reported as showing “slight anterior wedging of the vertebral body of T12 which may represent a minor crush fracture” and “a slight depression of the superior endplate of L1”.
In his report of 27 August 2014, Dr Sidrak lists “Crush fracture L1 and T12 → back pain” as a medical condition that has significant functional impact and notes treatment as Tramal SR 100m daily. He provides no relevant details with respect to any other treatment or the functional impact of this condition.
In the JCA report of 10 October 2014, the assessor referred to a bone scan performed in April 2012 which apparently showed “minor degenerative changes in the lower cervical and mid to upper thoracic spine with minor left C5/6 facet joint arthropathy”. A copy of this report was not provided to the Tribunal.
The assessor states, inter alia, that Mr Rahem reported the following:
“no issues with self-care and daily living activities… no driving at this point of time due to side effects of the medications… he avoids lifting heavy objects, bending and squatting… relies on his wife to assist with activities requiring lifting and carrying… he doe (sic) not exercise does not perform physically active tasks due to lower back pain… he is able to play with his young children, taking them to a local park for a walk and shopping in a local shopping centre… his wife assists when going out due to psychological issues.”
A CT scan of the lumbosacral spine performed on 16 December 2014 is reported as showing mild degenerative changes.
An MRI scan of the lumbar spine performed on 19 February 2015 is reported as showing, inter alia, the following:
“Minimal anterolisthesis of L4 on L5…
At the L3l4 level minor left lateral bulging… without normal compromise.
At the L4/5 level there is a small left lateral disc protrusion… without discrete neural encroachment. Osteoarthritic changes are present in these apophyseal joints.
….L5/S1 level osteoarthritic change is noted in the apophyseal joints.
….remaining discs are intact.
The lumbar neural structures are normal in appearance...”
In a letter dated 10 March 2015, Dr McKechnie, neurosurgeon, notes that Mr Rahem is still complaining of “back and intermittent bilateral leg pain” and that the MRI scan demonstrates “small L3/L4 disc protrusions without thecal sac or nerve root impingement”.
Dr McKechnie prescribes Lyrica for neuropathic pain, emphasises the need for Mr Rahem to “commence physiotherapy and a core strengthening exercise program” and indicates that surgical intervention is not required.
In a letter dated 6 July 2015, Ms Mardini, physiotherapist, notes that treatment was commenced on 10 June 2015. Treatment included manual therapy, back care and safety education, posture care and correction advice and active exercises to increase strength and flexibility.
Ms Mardini also noted that Mr Rahem reported short term relief of pain following completion of physiotherapy sessions but still requires further treatment to obtain significant improvement.
Consideration
The evidence before the Tribunal, in my view, suggests that the cause of Mr Rahem’s lower back pain was not fully diagnosed during the claim period.
The medical evidence in general, including the radiological studies performed after the claim period, does not provide a satisfactory explanation for the claimed severity and persistence of Mr Rahem’s symptoms.
The only treatment Mr Rahem had prior to seeing Dr McKechnie in March 2015 appears to have been regular narcotic pain medication.
Physiotherapy treatment, recommended by Dr McKechnie, was started in July 2015 and has been reported as resulting in an improvement in symptoms.
Accordingly, I am satisfied that during the claim period, Mr Rahem’s condition of lower back pain was not fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
PULMONARY NODULES
Dr Sidrak states that “bilateral pulmonary nodules’’ were seen by the chest clinic at Liverpool Hospital on 3 March 2014 but provides no other relevant information.
A CT scan of the chest performed on 3 March 2014 is reported as showing “multiple nodules scattered throughout the lungs. Some appear calcified and some are associated with architectural distortion”. The nodules were considered to be related to “previous granulomatous disease”.
Mr Rahem told the Job Capacity assessor that he was previously diagnosed with tuberculosis.
As there is no other medical evidence before the Tribunal with respect to diagnosis, treatment or functional impact of this condition, I am satisfied that a rating under the Impairment Tables cannot be applied.
IMPAIRED VISION
Mr Rahem claims he has impaired vision which, however, appears to be corrected by wearing glasses.
An ophthalmic assessment performed on 27 March 2012 revealed decreased visual acuity in both eyes which improved to 6/9 in each eye with refraction.
I accept that Mr Rahem’s visual impairment is permanent for the purposes of the Impairment Determination. However, on consideration of the descriptors in Impairment Table 12- Visual Function, I am satisfied that the correct impairment rating under this Table is zero points.
RENAL STONE
Dr Sidrak notes “renal stone” as a medical condition but provides no other relevant information.
As there is no other meaningful evidence before the Tribunal with respect to this condition, I am satisfied that an impairment rating under the Impairment Tables cannot be applied.
VERTIGO/DIZZINESS
Mr Rahem told the Tribunal that over the last 2 years he has suffered frequent, intermittent episodes of “dizziness” which usually last for only a few minutes and resolve when he sits or lies down.
Dr Sidrak lists “vertigo” as a condition causing significant impact and notes past treatment as Stemetil tabs but provides no other relevant details with respect to diagnosis, current treatment or functional impact.
As there is no other medical evidence before the Tribunal with respect to this condition, I am satisfied that a rating under the Impairment Tables cannot be applied.
DECISION
For the reasons set out above, I am satisfied that during the claim period, Mr Rahem’s impairment was not 20 points or more so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
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Associate
Dated 18 February 2016
Date(s) of hearing 16 December 2015 Applicant In person Solicitors for the Applicant Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Disability Support Pension
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Functional Impact
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