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

[2017] AATA 68

Sisalem and Secretary, Department of Social Services (Social services second review) [2017] AATA 68 (25 January 2017)

Division	GENERAL DIVISION
File Number(s)	2016/4939
Re	Aladdin Sisalem
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	25 January 2017
Place	Melbourne

The decision under review is set aside. In substitution I find that Mr Sisalem qualified for disability support pension as at the date of his claim, being 1 April 2016.

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

Senior Member A Poljak

SOCIAL SECURITY - pensions, benefits, allowances - qualification for disability support pension - mental health condition - whether conditions fully diagnosed, treated and stabilised - allocation of impairment points - whether applicant suffered severe functional impact on activities – applicant found to have a severe impairment within one impairment table - whether applicant has a continuing inability to work - applicant unable to work separately from program of support - training activity unlikely to enable applicant to work separately from program of support - decision set aside

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member A Poljak

25 January 2016

INTRODUCTION

1. Mr Sisalem seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) on 7 September 2016. The SSCSD affirmed a decision to reject Mr Sisalem’s claim for the disability support pension (“DSP”) which was lodged on 1 April 2016.

2. Mr Sisalem’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out on section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (Cth) (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mr Sisalem to qualify for DSP, he had to satisfy these criteria on 1 April 2016, when he applied for the DSP, or within the following 13 weeks, that is, by 1 July 2016 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”). The Secretary contends that the medical evidence does not support a finding that Mr Sisalem was qualified for DSP during the relevant period.

4. The Secretary accepts that Mr Sisalem suffered from a number of medical conditions during the relevant period including a mental health condition, a cervical spine condition malaria vivax and proteinuria. He therefore satisfies section 94(1)(a) of the Act.

5. The issues for determination in these proceedings are:

   (a)whether the conditions were fully diagnosed, treated and stabilised during the relevant period; and if so,

   (b)what rating may be assigned for functional impairment in accordance with the Impairment Tables; and if enough points can be allocated,

   (c)whether Mr Sisalem has a continuing inability to work.

   IMPAIRMENT TABLES

6. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 of the Impairment Tables to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

7. Subsections 6(3) and 6(4) of the Impairment Tables provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; is fully stabilised; and will more likely than not, persist for more than two years. 

8. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

9. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised as:

   (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.

10. The Macquarie Dictionary defines undertaken as, inter alia, “committing oneself to, taking on, and promising to do a particular thing”. I am of the view that to undertake something, there must be a level of commitment to see it through.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably assessable to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Mental Health Condition (Post Traumatic Stress Disorder (“PTSD”), anxiety and depression)

13. Table 5 of the Impairment Tables is to be used when assessing and rating the functional impairment of a mental health condition. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

14. The Introduction to table 5 of the Impairment Tables provides (inter alia):

    A diagnosis of a 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 by a psychiatrist). (emphasis added)

15. The Secretary concedes, and I accept, that Mr Sisalem’s mental health condition was fully diagnosed, treated and stabilised during the relevant period. This is supported by the breadth of medical evidence before me; some of which I have relevantly identified, in part, below.

16. Lyn Bender, a psychologist, in a report dated 12 October 2010 states that, in her view, Mr Sisalem “exhibits chronic enduring symptoms of acute traumatic stress and post-traumatic stress disorder”. She states that his “symptoms can be quite disabling”. She says that she has conducted 24 counselling sessions with Mr Sisalem between 27 June 2009 and 12 May 2010.

17. Francois Joubert, a psychologist, in a report dated 19 July 2012 diagnoses Mr Sisalem with “depression/anxiety and intense post-traumatic stress disorder”. This diagnosis is confirmed in a later report dated October 2012. It is noted that Mr Sisalem commenced counselling with Francois Joubert on 28 June 2012 and attended six sessions. It is suggested that Mr Sisalem may be able to reduce his traumatic symptoms with ongoing treatment.

18. Dr Witt, a clinical psychologist, confirms in her report dated 20 January 2014, that Mr Sisalem suffers from depression, anxiety and PTSD. She describes Mr Sisalem’s PTSD as “severe and chronic”. In regards to current and past treatment, Dr Witt opines that “given the chronology and complexity, his psychological condition is unlikely to resolve spontaneously in the near future and requires long-term counselling and assistance”.

19. It is plain that Mr Sisalem has suffered from a severe mental health condition for many years. His treatment has included numerous counselling sessions with varied psychologists and it is unlikely for his condition to improve in the next two years. As already stated, I am satisfied that Mr Sisalem’s mental health condition of PTSD, depression and anxiety is fully diagnosed, treated and stabilised during the relevant period. The question in these proceedings is the level of functional impairment suffered by Mr Sisalem as a result of the condition having regard to the criteria in Table 5 of the Impairment Tables.

20. Table 5 of the Impairment Tables outlines a number of criteria to consider when determining the functional impact functional impact on activities involving mental health function. The criteria are self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity.

21. The medical evidence before me speaks of Mr Sisalem’s functional difficulties some of which I have outlined below.

22. Dr Witt states in her report dated 16 June 2015, that Mr Sisalem’s difficulties can “significantly affect his daily life and impact on his cognitive ability, as they are likely to interfere with his ability to concentrate, to process and retain information, and affect his short-term and long-term memory function. Furthermore, planning ahead, time-management, organising and keeping to deadlines and commitments, are likely to be impaired because of his high levels of distractibility and his impaired cognitive function as described”.

23. Dr Chris Olszewski has been Mr Sisalem’s treating doctor for over 10 years. In his report dated 4 January 2016, he says that Mr Sisalem has been suffering from PTSD for many years and that “this impacts on his mood, ability to concentrate for any extended periods, poor memory and inability to cope with stress”. He states that “stress exacerbates his condition to severe levels and he can have difficulty in coping with activities of daily living such as travel by public transport”.

24. Mr Sisalem advised that he manages his self-care and lives independently. He lives in rented accommodation which has a shared garden maintained by the owner. The landlord reminds Mr Sisalem when to pay his rent. Mr Sisalem is capable of doing his own cooking, cleaning and washing.

25. I note that the applicant has travelled overseas on number of occasions. He has travelled alone. At hearing Mr Sisalem advised that he was only able to travel alone because he sought help from airline staff when needed. His evidence was that he made all the arrangements himself online, and was able to get himself to and from the airport. He advised at hearing that the purpose of his travel was for treatment. He said he stayed in accommodation one street away from the clinic where he was receiving treatment and “did not do tourist trips and did not go out”.

26. There are numerous medical records before me detailing the possible benefit of Thai Traditional Rehabilitation therapy for Mr Sisalem. Dr Olszewski states in a letter dated 27 March 2015 that Mr Sisalem “suffers from chronic pain and PTSD with anxiety and requires treatment over an extended period of time. This treatment is only available in Thailand and thus requires travel overseas from time to time… The treatment includes manual therapy, use of Thai traditional medicine, physical exercises and physiological therapy for rehabilitation of the medical condition. He requires this treatment in order to be able to function…. He is intolerant due to side effects of standard analgesic medication available in Australia… This treatment is not available in Australia.”

27. Mr Sisalem says that he visits the gym up to 4 hours in total a day. He says this four hour period is cumulative over the day and that he attends often at odd hours depending on how he was feeling. At hearing Mr Sisalem advised that his physio recommended that he go to the gym every day to undertake strengthening exercises, decompression exercises and stretching to help manage his back condition.

28. Melissa Manuelpillai, a physiotherapist, notes in an undated letter that Mr Sisalem first presented to her clinic on 31 March 2015 with increased neck, upper back, shoulder and lower limb pain. She notes “currently Aladdin has been managing his symptoms with regular stretching and home exercise program given to him from his previous physiotherapist.”

29. Having considered the circumstances of Mr Sisalem’s overseas travel and his regular gym attendance, I am satisfied, on balance, that Mr Sisalem has moderate difficulties with social/recreational activities and travel. These activities are recommended and managed to an extent by medical practitioners.

30. I am satisfied that Mr Sisalem has severe difficulty with interpersonal relationships. This is fundamentally based on the medical evidence before me. Some of which I have summarised below.

31. Lyn Bender states in her report the following:

    “Aladdin in my view exhibits chronic enduring symptoms of acute traumatic stress and PTSD. These include extreme in disabling anxiety and agitation, chronic excessive feelings of guilt related to his survival, severe loss of trust, depression, despair, agitation and anger, hopelessness, cognitive disorganisation, poor concentration, intrusive thoughts and flashbacks, numbing and avoidance and sleep disturbance.

    The symptoms can be quite disabling.”

32. Dr Witt says in her letter dated 16 June 2015 that Mr Sisalem suffers from a range of clinical symptoms some of which include depressed mood, irritability, guilt, elevated anxiety, agitation, avoidance and emotional numbing. All of these symptoms would impact on Mr Sisalem’s interpersonal relationships.

33. In regards to the criteria work/training capacity and concentration and task completion, I am satisfied that Mr Sisalem suffers severe difficulty. My reasons are as follows.

34. While Mr Sisalem has been undertaking tertiary education for many years it is plain on the evidence before me that it has not been an easy road. It took him five years to complete a two-year Advanced Diploma of Engineering (Aerospace) at RMIT University. His academic transcript demonstrates many failures, many repeat subjects, and pass grades with the occasional distinction. Mr Sisalem then embarked on a Bachelor of Engineering (Mechanical Engineering) at Deakin University. It appears that he received a two year credit as a result of his earlier Diploma.

35. At hearing, Mr Sisalem provided copies of some correspondence between himself and Deakin University. Although it appears that I do not have all such correspondence, I have summarised relevant aspects below.

36. On 19 March 2012, Mr Sisalem was given an Academic Progress Warning from Deakin University because he failed one of his subjects two or more times. On 12 July 2013, Deakin University once again issued Mr Sisalem with an Academic Progress Warning because he had failed 50% or more credit points he had attempted in the relevant teaching period.

37. In the Reasons for Decision from the University Appeals Committee (Chair) Resolution dated 20 January 2014, it appears that in November 2013 the Deakin University Faculty Academic Progress and Discipline Committee (“FAPDC”) wrote to Mr Sisalem proposing to restrict his enrolment in his course because he had failed two units twice and failed 50% of credit points attempted in the two preceding active trimesters. After a show-cause hearing, the FAPDC, decided to restrict Mr Sisalem’s enrolment in his course on 13 December 2013.

38. On 22 December 2014, following another show-cause hearing, the FAPDC decided to issue Mr Sisalem with a warning that his academic performance must improve and permitted him to continue with his studies in the next active trimester, without restriction from his course at that time.

39. On 21 August 2012 and again on 19 December 2014, the applicant was endorsed by Deakin University for concessions regarding studies and exams. These include flexibility with timelines for assessments, additional clarification around assessment tasks, assistance with early planning, exam arrangements to be implemented by DSA and an online (off-campus) mode of study.

40. Mr Sisalem is currently enrolled in a Masters of Engineering at Deakin University.

41. Mr Sisalem advised that he is trying the best he can to obtain his education. His persistence is evident from the evidence before me. I am satisfied that he has severe difficulties with concentration, task completion and work/training capacity. He has severe difficulties with time management, organisation and keeping to deadlines and commitments.

42. At hearing, Mr Sisalem, although obviously very intelligent, fluctuated in thought and struggled to maintain concentration. It was evident that he had difficulty presenting his case, even though he was well prepared and had some written submissions.

43. For all the above reasons and having careful regard to the criteria in Table 5 of the Impairment Tables, I find that Mr Sisalem’s has severe difficulties with most of the criteria in the severe category, being work/training capacity; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making. His mental health condition causes severe functional impact on activities and warrants a rating of 20 points under the Impairment Tables.

    Cervical Spine Condition

44. The Secretary accepts that at the relevant period Mr Sisalem’s cervical spine condition was fully diagnosed but contends that it was not fully treated and fully stabilised. I agree for the following reasons.

45. In the Job Capacity Assessment report dated 5 August 2016, the applicant indicated that he had been referred to pain specialist team regarding possible treatment. The treatment may result in an improvement in his condition.

46. Dr Lim has referred Mr Sisalem to a neurosurgeon for re-assessment of his spinal condition on 14 April 2016. At hearing Mr Sisalem advised that his appointment is arranged for March 2017.

47. It follows that, since I accept the condition is fully diagnosed but not fully treated and stabilised, no impairment rating may be given for this condition under the Impairment Tables.

    Other Conditions

48. In regards to proteinuria and malaria vivax, there is insufficient evidence before me to conclude whether or not these conditions are fully treated and stabilised. In any event they appear to cause minimal or limited functional impairment.

49. Mr Sisalem reports fatigue and muscle stiffness, however self-reporting alone is insufficient. It follows that no impairment rating may be given for this condition under the Impairment Tables.

    CONTINUING ABILITY TO WORK

50. Section 94(1)(c) of the Act requires that in addition to the requirements outlined above, a DSP claimant must have a “continuing inability to work”, or must satisfy the Secretary that they are “participating in the program administered by the Commonwealth known as the supported wage system”. There is no evidence before the Tribunal that Mr Sisalem has participated in the supported wage system, and as such I must determine whether he has a continuing inability to work.

51. Section 94(2) of the Act defines a continuing inability to work as follows:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (a)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (b)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (c)in all cases--either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

1. As I have determined that Mr Sisalem has conditions attracting 20 impairment points under one table, namely Table 5, he has a severe impairment as defined in section 94(3B). I therefore only need to consider subsections 94(2)(b) and 94(2)(c) of the Act in determining whether Mr Sisalem has a continuing inability to work.

2. Work is defined in section 94(5) of the Act as work “that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person's locally accessible labour market”.

3. On the basis of the impact of Mr Sisalem’s mental health condition on his functional ability discussed above, I am satisfied that Mr Sisalem is prevented from doing any work independently of a program of support within the next two years. In doing so, I note the Secretary’s reference to Mr Sisalem’s travel and attendance at the gym for roughly 28 hours per week as indicating he would be capable of working. Mr Sisalem’s evidence, however, makes it clear that the timing of these activities are intermittent, undertaken primarily for treatment purposes and still significantly impacted by his mental health condition. There is nothing about Mr Sisalem’s involvement in such activities which suggests that he, despite his mental health condition, would be able to undertake work as defined in the Act.

4. In considering section 94(2)(c), I am not satisfied that Mr Sisalem’s mental health condition would prevent him from completing a training activity, as defined in section 94(5) of the Act. A training activity includes education, pre-vocational training, vocational training, vocational rehabilitation and work-related training (including on the job training). While Mr Sisalem’s mental health condition appears to have had a significant impact on his studies as noted above, he continues to study a Masters of Engineering program at Deakin University.

5. I am, however, satisfied that even if Mr Sisalem completes the training activity he is currently undertaking, he is still unlikely to be able to work independently of a program of support within the next 2 years. I am further of the opinion that, due to the significant impact of his mental health condition, there is no such training activity within the definition of the Act that is likely to enable Mr Sisalem to undertake work, independently of a program of support, within the next 2 years. The significant interference of Mr Sisalem’s condition on his ability to concentrate, his memory function and his levels of stress make this clear.

6. Mr Sisalem’s mental health condition causes functional impairment such that he is prevented from doing work independently of a program of support. Further, his mental health condition means although he may be able to complete a training activity, such an activity is unlikely to enable him to do any work independently of a program of support within the next two years. He therefore has a continuing inability to work.

   CONCLUSION

7. Mr Sisalem’s mental health condition causes severe impairment pursuant to section 94(3B) of the Act. It rates 20 points under a single table of the Impairment Tables. He further has a continuing inability to work resulting from his condition. Mr Sisalem therefore satisfies the requirements of section 94(1) of the Act.

8. The decision under review is set aside and I find that Mr Sisalem qualified for the disability support pension as at the date of his claim, being 1 April 2016.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated             25 January 2017

Date of hearing	14 December 2016
Applicant	In Person
Advocate for the Respondent	Mr Nam Nguyen
Solicitors for the Respondent	Sparke Helmore Lawyers