Romeo Daoud and Secretary, Department of Social Services

[2015] AATA 69

[2015] AATA 69  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3134
Re	Romeo Daoud
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	23 January 2015
Date of written reasons	10 February 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS – social security – disability support pension – back condition – psychological condition – Tribunal not satisfied conditions fully diagnosed treated and stabilised – decision under review affirmed

Legislation

Social Security (Administration) Act 1999 s 42 and Sch 2

Social Security Act 1991 ss 94

Secondary Materials

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

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Romeo Daoud suffered a serious injury to his back at work in April 2013.  In June 2013, he underwent a laminectomy.  He still suffers from back pain and also suffers from depression, and from pain in his neck and shoulders.  On 2 September 2013, he applied for a disability support pension (DSP).  He seeks review of a decision made by the Social Security Appeals Tribunal on 4 June 2014 that he did not qualify for the DSP.

2. For Mr Daoud’s application to succeed he had to qualify for DSP on the date he applied or within the following 13 weeks, that is by 2 December 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999.  I will call this the claim period.

3. Section 94 of the Social Security Act 1991 (the Act) provides that, to qualify for DSP, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rates at 20 or more points according to the Impairment Tables in the Act; and

   (ii)a continuing inability to work as defined in the Act.

4. These reasons reflect a decision and reasons given orally at the conclusion of a hearing on 23 January 2015.

   The Impairment Tables

5. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  They comprise 15 Tables by which the functional impact of impairment is rated as nil, mild, moderate, severe or extreme, corresponding to zero, five, ten, twenty and thirty points.  Ratings are assigned according to descriptors, some or all of which must be satisfied.

6. A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a).  Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).

7. When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).

8. Fully stabilised means either:

   (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   Did Mr Daoud have an impairment rating of 20 or more points during the claim period?

   Back condition

9. On the day after the accident at work in April 2013, Mr Daoud was unable to stand because of pain in his lower back that radiated down his left leg.  He had three weeks of physiotherapy and acupuncture before he had to travel to Lebanon in June 2013 to attend a family wedding.  On 13 June 2013, while in Lebanon, he underwent an urgent laminectomy.  He spent five days in hospital.  The surgery eased the pain in his leg but he continued to have back pain and numbness in his toes.

10. A report from Dr Nassim Halim Abi Chahine, a neurological surgeon in Beirut, confirms that Mr Daoud underwent urgent surgery in order “to liberate the L4 nerve root innervations [and] salvage the leg”.

11. Mr Daoud returned to Australia at the end of July 2013.  On 28 August 2013, his general practitioner, Dr Asim Saghir, provided a medical report in support of his claim for DSP.  Dr Saghir stated that Mr Daoud had been having symptoms for more than three years because of heavy lifting and repetitive movements (by which I understand Dr Saghir to mean on account of his work).  He described Mr Daoud’s diagnosis as “lower back pains – disc bulge” and said he was experiencing lower back pain, numbness in his toes and reduced range of movement for which planned treatment was physiotherapy and painkilling medication.  He stated that he expected Mr Daoud’s condition to persist for more than 24 months.  As to its expected effect on his ability to function within the next two years, Dr Saghir stated this was “uncertain”.

12. On 10 September 2013, Dr Neil Berlinski, radiologist, reported to Dr Saghir the results of a CT scan of Mr Daoud’s lumbar spine undertaken on 10 September 2013.  He stated that Mr Daoud had “narrowed L5/S1 disc space with small posterior disc bulge, broad-based posterior disc bulge, broad-based posterior disc bulge at L4/5 contacts the thecal sac and extends to the left exit foramen which is narrowed, and left hemilaminectomy at L4/5”.

13. On 16 April 2014, a CT scan of Mr Daoud’s lumbosacral spine showed “lumbar spondylosis which most significant at L4/5.  There is lateral recess compression of the L5 nerve root and possible irritation to the left-sided L4 nerve root”.

14. On 22 April 2014, Dr Mehdat Guirgis, orthopaedic surgeon, reported to Mr Daoud’s then general practitioner, Dr Hanna, that Mr Daoud presented with “increased pain in his lower back with left L5 radiation of pain after prolonged standing despite surgery [in 2013]”.  He advised Mr Daoud to “continue with conservative treatment at the present stage” and “emphasised the fact that regardless of having further surgery or not and regardless of its success or not there will be no dramatic improvement in the performance of his back”.  He thought Mr Daoud should avoid heavy or repeated lifting, repetitive bending and twisting of the spine, activities causing jolting, jerking or jarring of the back, heavy manual handling activities, and pushing and pulling heavy weights.  He thought Mr Daoud’s back problem “would preclude him indefinitely from being able to do his pre-injury duties as a form worker”.

15. In a report dated 9 October 2014 to Dr Hanna, Dr Guirgis reported the results of electrophysiological studies which showed “evidence of chronic radiculopathic changes from L3 to S1 on the left side” and “no evidence of acute denervation”.  He restated his opinion that Mr Daoud should continue with conservative treatment “at the present stage” and remained limited in the activities he could perform and would be precluded indefinitely from doing his pre-injury duties.

16. In a report dated 19 December 2013, a Job Capacity Assessor interviewed Mr Daoud and concluded that his condition was fully diagnosed but could not be considered fully treated and stabilised; he “will require further specialist intervention” and “functional improvement is likely with further rehabilitation”.  The basis for those statements is not clear.  I can see nothing in the medical reports at the time that indicated that further specialist intervention was required and, at most, Dr Saghir thought the effect on Mr Daoud’s functioning within the next two years was uncertain.  Some support for the Job Capacity Assessor’s conclusion is found in the notes of an Authorised Review Officer who spoke by telephone with Mr Daoud on 1 April 2014 and recorded that he said he was “still recovering but could benefit from physiotherapy” but could not afford it.  That conversation was well after the claim period and Mr Daoud says all he meant was that he did not know if physiotherapy would help because he is not a doctor.

17. That said, I am not satisfied that Mr Daoud’s back condition was fully treated and stabilised during the claim period.  Dr Saghir remained uncertain about its continuing effect and, while it is not clear exactly what prompted the referral in April 2014 to Dr Guirgis, Dr Hanna clearly thought referral to him warranted, and Dr Guirgis in turn required further radiological scans.

18. By April 2014, Dr Guirgis thought surgery would effect little or no improvement in Mr Daoud’s back and recommended he continue with “conservative treatment”.  By that time, it is reasonable in my opinion to say that Mr Daoud’s back condition was fully treated and stabilised.  However, it had not reached that point during the claim period.

19. As Mr Daoud’s back condition was not fully treated and stabilised during the claim period, it cannot be assigned an impairment rating.

    Depression

20. For a psychological condition to be considered fully diagnosed for the purposes of an impairment rating, it must be diagnosed “by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has been not be made by a psychiatrist)”: Introduction to Table 5 (Mental Health Function) of the Determination.

21. Neither Mr Daoud in his application for DSP, nor Dr Saghir in his supporting medical report, referred to Mr Daoud suffering from depression. 

22. In a report dated 11 November 2013, Lyndsay Coutet, a mental health nurse, stated that he had been seeing Mr Daoud for the past month; he had a long history of depression and anxiety and there were times when he was unable to go to work; the severity of Mr Daoud’s depression was not getting any better and he would continue to see him weekly to monitor his mental state. 

23. The Job Capacity Assessor recorded in December 2013 that Mr Daoud said he had been “seeing a mental health nurse and had 6 tablets of antidepressant medication which he ceased due to his medical conditions”.   This appears to be a reference to Mr Coutet.

24. In January 2014, Dr Hanna provided a report to Centrelink on a standard form.  He recorded a diagnosis of major depression which had its onset in November 2012.  The details in Dr Hanna’s report are very difficult to read but he stated that he expected Mr Daoud’s condition to persist for more than 24 months and the effect on his ability to function was “uncertain”.

25. Mr Daoud saw a psychologist in Melbourne for counselling on two occasions before moving to Sydney where he started seeing Carolyn Sihavong, a consultant psychologist, on 21 February 2014.  Ms Sihavong reported on 14 April 2014 that Mr Daoud met the criteria for Severe Major Depressive Disorder, Recurrent with Moderate-Severe Anxious Stress Features.  On 31 May 2014 she confirmed her diagnosis and that she would “continue working with Mr Daoud to help him manage his condition”.  She said that he had expressed some interest in seeking assistance from a hypnotherapist and she asked Dr Hanna if he could make that referral.

26. Ms Sihavong, while a fully qualified registered psychologist, is not a clinical psychologist.  It was not until 18 September 2104 that Mr Daoud saw Dr Monir Younan, a psychiatrist, who found him “suffering from symptoms consistent with major depression”.  He prescribed Efexor at “a starting dose of 75 mg, one capsule daily” and said that he did not expect dramatic improvement, mainly because the underlying factors causing his depression were likely to persist.

27. Mr Daoud’s depression cannot be assigned an impairment rating because, during the claim period, it had not been fully diagnosed in accordance with the impairment tables.  Even had it been diagnosed during that time, it was not fully treated and stabilised because he was yet to try hypnotherapy as recommended by Ms Sihavong and it was not until nearly a year later that he saw Dr Younan who prescribed Efexor.  Given Dr Younan’s prognosis, it may be that this condition would now be considered fully treated and stabilised.

    Shoulder condition

28. This condition was not mentioned in Mr Daoud’s claim for DSP or in Dr Saghir’s report.  A report from Dr Robert Adler, consultant in pain management and musculoskeletal medicine, on 27 September 2004, shows that Mr Daoud had a two month history of right-sided neck pain following a work accident when a sheet of plywood fell onto his right shoulder.  Dr Adler reported that Mr Daoud had a right shoulder traumatic bursitis for which he had recommended a series of cortisone injections, to be performed by his general practitioner.

29. An ultrasound on 25 July 2007 of Mr Daoud’s right shoulder showed bursitis and some localised subacromial tenderness in his right shoulder but no other significant findings; his movement was not restricted and no impingement was noted.  A further ultrasound on 10 April 2014 was unremarkable except for “subdeltoid bursitis”.

30. Mr Daoud told me that he did not include this condition in his claim for DSP because he was more concerned at the time with his back condition.  The Secretary contends that, because it was not included in his claim, this condition cannot be considered.  The fact that a condition is omitted might reflect its severity but I am not sure why its omission means it is necessarily precluded from consideration.  In any event, it is not necessary finally to determine this question.  Even if this condition was fully diagnosed treated and stabilised during the claim period, it would not rate more than five points on Table 2 (Upper Limb Function) of the Determination.  Mr Daoud agreed that he did not have difficulty with most of the functions listed under moderate functional impact which would mean he did not meet the criteria for a rating of 10 points.

    Conclusion

31. For these reasons, I find that Mr Daoud did not have an impairment rating of 20 or more points during the claim period.  It follows that his claim must fail.  It is not necessary to consider whether he also had a continuing inability to work.

32. I affirm the decision under review.

33.       I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

........................................
Associate

Dated 10 February 2015

Date(s) of hearing		23 January 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Ms Glenda Heggan, Government Lawyer