Reda NAKHLA and Secretary, Department of Social Services

[2015] AATA 333

[2015] AATA 333 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1893
Re	Reda NAKHLA
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander
Date	15 May 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is 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 Ion Alexander, Member

15 May 2015 

BACKGROUND

1. On 31 October 2012, Mr Nakhla lodged a claim for Disability Support Pension (‘DSP’) on the basis that his medical conditions were having an impact on his ability to function.

2. In his claim, Mr Nakhla described his conditions as “broken shoulder plus wrist, also damaged left shoulder, back and depression.”

3. His 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 (‘the Act’), in particular s 94(1)(b) of the Act, in that his impairment rating under the Impairment Tables was less than 20 points.

4. On 11 March 2014, the SSAT decided that Mr Nakhla’s impairments should be assigned a rating of zero points. He was therefore not qualified for DSP.

5. In this proceeding, Mr Nakhla seeks review of the decision of the SSAT.

6. At the hearing, Mr Nakhla was unrepresented but was assisted by an interpreter in the Arabic language and was able to give oral evidence.

   ISSUES

7. In order to qualify for DSP, Mr Nakhla 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 claim period’), in accordance with the requirements of the Social Security (Administration) Act 1999, that is between 31 October 2012 and 30 January 2013.

8. It is agreed that Mr Nakhla suffers various medical conditions and therefore satisfies 94(1)(a) of the Act.

9. The Respondent contends that during the claim period, Mr Nakhla had an impairment rating of zero points and therefore Mr Nakhla did not qualify for DSP.

10. The definitive issue in this proceeding is whether during the claim period, Mr Nakhla had a rating of 20 points or more under the Impairment Tables  set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’).

    Mr Nakhla’s Evidence

11. In his oral evidence at the hearing, Mr Nakhla had significant difficulty in presenting a satisfactory history of his medical conditions. He tended to rely on the various documents he had provided to Centrelink. Mr Nakhla’s memory of past events was patchy. He was unable to provide a reasonable description of his symptoms or the nature of his claimed functional impairment particularly with reference to the claim period.

12. Mr Nakhla described non-specific musculoskeletal symptoms including pain and limitation of mobility with reference to his shoulders, neck, back and right wrist, and various mental health symptoms including depression and difficulty sleeping. Many of the symptoms dated back to a workplace injury in about 2003 which resulted in a successful claim for worker’s compensation.

13. In 2006, Mr Nakhla suffered a workplace injury to his right shoulder which required an operation.  This injury also resulted in a successful compensation claim.

14. Mr Nakhla revealed that in 2009, he travelled to Egypt for a few months to begin arrangements for his marriage and that during that time his compensation payments were ceased.

15. In August 2010, Mr Nakhla again travelled to Egypt to finalise arrangements for his marriage. He remained in Egypt until he returned to Australia with his pregnant wife in August 2012.

16. Mr Nakhla claimed that while in Egypt he had medical treatment for his various musculoskeletal and mental health symptoms. He did not provide any relevant documents pertaining to this treatment to Centrelink or the Tribunal.

17. Mr Nakhla claimed that on his return to Australia he needed the airline to assist him with a wheel chair because of his physical limitations.

18. In June 2013, Mr Nakhla submitted a claim for Carer Payment and Carer Allowance for the care of his wife. This claim was rejected by Centrelink.

19. In respect of his mental health condition, Mr Nakhla said that he had been treated by a psychiatrist in the period from 2004 to 2005, in 2007 and again in 2014. He claimed that he had been having treatment with a psychologist regularly since 2004 but was unable to provide any documentary evidence to support this claim.

20. In summary, apart from an apparent restriction in the mobility of the right arm, Mr Nakhla was unable to provide the Tribunal with a reasonable understanding as to his current level of functional impairment caused by his claimed physical and mental health symptoms and no real understanding of his functional impairment during the claim period.

    Medical Evidence

21. In a Centrelink Medical report dated 6 November 2012, Dr Shahri, general practitioner, notes that Mr Nakhla had been a patient since 2006.

22. Dr Shahri lists “Rt shoulder tendinosis, tendon tear (repaired) infraspinatus, partial tear subscapularis” as the only medical condition with most impact.

23. Dr Shahri notes that treatment commenced in May 2006 and included “physiotherapy, rehabilitation, analgesics and surgery” but makes no mention of current treatment. Impact on ability to function is described as “decreased ability to lift and use (L) arm” with no assessment of severity.

24. In response to the question as to whether Mr Nakhla has any other medical conditions that are generally well managed and that cause minimal or limited impact, Dr Shahri simply lists various diagnoses which were made in 2003 and 2007 but provides no other relevant information.

25. In a supplementary Centrelink Medical Report dated 29 June 2013, but received by Centrelink on 9 October 2013, Dr Shahri confirms the diagnosis in respect of the right shoulder as a condition with most impact and notes current treatment as “analgesics”. With respect to impact on ability to function, Dr Shahri notes “affects his ability for daily activity”.

26. She also lists “central disc protrusion at C2/C3-C4/C5 with mild impingement of (Rt) C4 nerve” as a medical condition which causes most impact and comments that this condition was confirmed by MRI in 2007.

27. Dr Shahri notes that current symptoms include “neck pain with radiation to bilateral arm”[sic], impact on ability to function as “affects ability with daily living activity that involves arm movement”, current treatment as “analgesic” and future treatment uncertain.

28. I note that in the report of 6 November 2012, Dr Shahri listed this diagnosis as a condition that is generally well managed and causes minimal or limited impact but provides explanation for the change in the assessment.

29. I note that the MRI of the Cervical Spine performed on the 26 April 2007 is reported as showing C3/C4 central disc protrusion with “possible” impingement of the exiting right C4 nerve. Clinical correlation was suggested.

30. The findings in this report would not explain Mr Nakhla’s symptom of pain radiating to both arms.

31. A CT scan of the lumbar spine performed on 14 May 2003 is reported as showing no significant abnormality.

32. In a NSW WorkCover certificate dated 4 May 2004, Dr Benjamin, Psychiatrist, notes a diagnosis of Major Depression with a management plan as “antidepressants, anxiolytics, counselling” and certifies Mr Nakhla as unfit for work for three months.

33. In a very brief letter dated 11 April 2007, Dr Girgis, Psychiatrist, notes Mr Nakhla suffered greatly as a result of a work injury and that a “mental state examination revealed  the major features of PTSD”. Dr Girgis comments that Mr Nakhla is very depressed. He recommended weekly cognitive behaviour therapy for four weeks. 

34. In another very brief letter dated 13 June 2007, Dr Girgis notes that Mr Nakhla is still suffering physical and emotional problems. Dr Girgis states that he prescribed medication and recommended four weeks off work.

35. In a note to the Westmead Pain Clinic dated 6 May 2013, Dr Botros, general practitioner, notes current medications including Mobic (anti-inflammatory) daily and one tablet of Valium before bed. No antidepressant medication was noted.

36. The Tribunal was provided with several medical reports that had been prepared in September and October 2014. These reports did not assist the Tribunal in the consideration of Mr Nakhla’s functional impairment during the claim period as they were not referable to Mr Nakhla’s condition at that time.

    CONSIDERATION

37. The Determination provides that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

38. For the purposes of paragraph 6(3)(a), a condition is permanent if the condition 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))

39. The Introduction to each Impairment Table stipulates that the diagnosis of a condition must be made by an appropriately qualified medical practitioner, that self–report of symptoms alone is insufficient, and that there must be corroborating evidence of the person’s impairment. The evidence required is usually in the form of reports from medical practitioners or other health care professionals.

40. 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)”.

41. In the Job Capacity Assessment (‘JCA’) report submitted on the 27 February 2013, the assessor, an occupational therapist, concluded that the only medical condition that was permanent within the meaning of the Determination was the right shoulder condition. The assessor found that the shoulder condition had mild functional impact on Mr Nakhla’s upper limb function and applied a rating of five points under Impairment Table 2.

42. I have referred above to the difficulty with Mr Nakhla’s oral evidence before the Tribunal but note that, at the SSAT, Mr Nakhla appeared to more candid with his oral evidence and was more informative about his functional capacity.

43. The SSAT decided that all Mr Nakhla’s claimed medical conditions were fully diagnosed, fully treated and fully stabilised. Based on his oral evidence, the SSAT decided that his claimed conditions “do not restrict his functions in day to day situations where he receives no or very little assistance” and applied zero points under all the relevant Impairment Tables.

44. The documentary evidence in support of Mr Nakhla’s application is somewhat problematic and can best be described as sparse.

45. Nevertheless, I am satisfied that that there is sufficient grounds to conclude that three of Mr Nakhla’s claimed medical conditions are worthy of  consideration in this application, namely, the right shoulder condition, the cervical spine condition and the mental health condition.

46. In respect of all the other claimed conditions, I am satisfied that there is insufficient evidence before the Tribunal to make any meaningful assessment of these conditions at the time of the claim period.

47. I am satisfied that the shoulder condition was fully diagnosed, treated and stabilised during the claim period.

48. In my view, the evidence of any functional impairment during the claim period is limited and somewhat inconsistent. I am not prepared to make a definitive decision as to the correct impairment rating. However, I am satisfied that the evidence points a conclusion that the rating under Impairment Table 2 is likely to have been less than 10 points.

49. The cervical spine condition was diagnosed in 2007 as reported in the MRI. Whether the findings on the scan would have been similar in 2012 is arguable. Also it is well accepted that abnormalities in the MRI scan do not necessarily correlate with symptoms or functional impairment. A clinical assessment, including physical examination, is necessary in order to make a comprehensive diagnosis.

50. In her two reports, Dr Shahri does do not provide any meaningful clinical assessment of Mr Nakhla’s condition and provides only limited information about treatment. Also, in her supplementary report, Dr Shahri provides no explanation for her changed opinion as to functional impact. In my view, on the basis of the evidence before me, I cannot be satisfied that the condition was fully diagnosed, treated and stabilised.

51. Mr Nakhla’s claimed mental health condition is, in my view, problematic. He claims to have suffered this condition for more than 10 years and to have had continuous psychological treatment during that time. Nevertheless, he has not been able to provide a satisfactory history of either his symptoms or his treatment.

52. In May 2004, Dr Benjamin diagnosed major depression in the context of a workplace injury and compensation claim.

53. In his oral evidence, Mr Nakhla claimed that Dr Benjamin treated him from 2004 to 2005.  Apart from the WorkCover certificate of 4 May 2004, there is no other documentary evidence in respect of any ongoing treatment provide by Dr Benjamin.

54. In April 2007, Dr Girgis diagnosed post-traumatic stress disorder and depression, also in the context of a workplace injury and compensation claim.

55. Mr Nakhla could not remember the length of time he spent in treatment with Dr Girgis. Apart from the two brief letters of 11 April 2007 and 13 June 2007, there is no other documentary evidence with reference to any treatment provided by Dr Girgis.

56. Between 2009 and August 2011, Mr Nakhla spent most of his time in Egypt and the nature and extent of any medical treatment he received during this time is unclear and uncorroborated.

57. Despite his claimed impairments, Mr Nakhla was able to travel to and live in Egypt, arrange a marriage, get married and arrange for his now pregnant wife to accompany him back to Australia. This appears to be somewhat inconsistent with Mr Nakhla’s claimed level of functional impairment.

58. In Dr Shahri’s first report, she makes passing reference to “PTSD after injury” with no mention of any current treatment or any functional impact. In her supplementary report Dr Shahri makes no mention of any current mental health condition.

59. Dr Botros’ letter of 6 May 2013, which details the medication that Mr Nakhla was taking, does not make reference to anti-depressants. This would suggest that Mr Nakhla was not being treated with any antidepressant medication at that time.

60. In 2014, Mr Nakhla started seeing another psychiatrist, Dr Anis, who provided a report dated 9 October 2014.

61. In his report, Dr Anis makes a diagnosis of Major Depressive Disorder and addresses the relevant diagnostic criteria. However, he does not discuss Mr Nakhla’s past history with reference to symptoms, treatment or functional impairment.

62. Dr Anis makes brief reference to the some of the criteria in Impairment Table 5, which at best would be consistent with a moderate impairment rating of 10 points.

63. His report is of little assistance with reference to any functional impairment Mr Nakhla may have suffered during the claim period as result of any mental health symptoms.

64. On balance, I am satisfied that the evidence before the Tribunal does not support a conclusion that during the claim period Mr Nakhla suffered a mental health condition that was fully diagnosed, fully treated and fully stabilised so that a rating could not be applied.

65. It follows that, during the claim period, Mr Nakhla’s impairments could not be assigned a rating under the Impairment Tables of 20 points or more. Therefore, he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

    DECISION

66. The reviewable decision is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 15 May 2015

Date of hearing	1 April 2015
Applicant	In person
Solicitor for the Respondent	Amanda McLeod, Department of Human Services