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

[2015] AATA 714

Tila and Secretary, Department of Social Services (Social services second review) [2015] AATA 714 (15 September 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6521
Re	Yoiel Tila
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	15 September 2015
Place	Sydney

The decision under review is affirmed.

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

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

15 September 2015

Dr Ion Alexander, Member

1. On 12 February 2014 Mr Tila lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

2. Mr Tila’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 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment was not 20 points or more under the Impairment Tables.

3. In these proceedings Mr Tila seeks review of the decision of the SSAT dated 4 December 2014.

4. At the hearing Mr Tila was self-represented and assisted by an interpreter of the Arabic language.

   ISSUES

5. In order to qualify for DSP, Mr Tila 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 10 February 2014 and 10 May 2014 (the claim period).

6. 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) one of the following applies;

   (i) the person has a continuing inability to work;

   …

7. The Respondent concedes and the Tribunal accepts that Mr Tila suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act during the claim period.

8. The relevant medical conditions are a mental health condition (PTSD, depression), a spine condition, a neurological condition, respiratory conditions (asthma, sleep apnoea), hypertension and gastro-oesophageal reflux (GORD).

9. 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)).

10. 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));

    ·fully treated (paragraph 6(4)(b));

    ·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)).

11. The introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

12. The Respondent contends that during the claim period Mr Tila’s impairment was not 20 points or more under the Impairment Tables, so that he did not satisfy section 94(1)(b) of the Act.

13. If the Tribunal finds that during the claim period Mr Tila had a rating of 20 points or more under the Impairment Tables the Respondent contends that Mr Tila did not satisfy section 94(1)(c) of the Act in that he did not have a continuing inability to work.

14. Therefore the Tribunal must consider whether during claim period Mr Tila 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

    Spine condition

15. In an undated Centrelink Medical Report Dr A J Sanki, diagnoses “L4/5 stenosis of the neural foramina and disc L3/4 bulges…Disc D7/87” [sic]  as the condition with most functional impact but provides no detail on impact on ability to function. Current treatment is noted as “analgesics”.

16. In a Centrelink Medical Report dated 18 February 2014 Dr S. Sanki, GP, does not refer to a disorder of the spine.

17. A  CT scan of the thoracic spine performed on 2 January 2013 is reported as showing “mild spondylitic change” with mild disc bulges at three levels and no evidence of significant narrowing of exit foramina.

18. A CT scan of the lumbosacral spine performed on 2 January 2013 is reported as showing a minor broad based disc bulge at L4/5 and L5/S1 with minor narrowing of exit foramina.

19. An MRI scan of the cervical spine performed on 7 November 2013 is reported as showing disc protrusion at C5/6 and C6/7 with minor encroachment of the nerve roots but no cord compression or canal stenosis.

20. I note that Dr A.J. Sanki’s diagnosis is not entirely consistent with the scan reports.

21. In my view there is insufficient corroborative documentary evidence before the Tribunal to support a conclusion that Mr Tila’s spine condition was fully treated and stabilised during the claim period so a rating under the Impairment Tables cannot be applied.

22. Furthermore, if I were to accept that the spine condition was permanent for the purposes the Impairment Determination there is, in my view, insufficient corroborative evidence to allow for any reasonable assessment of the functional impact of this condition during the claim period.

    Neurological condition

23. Mr Tila told the Tribunal that he suffers regular severe “dizziness”  which occurs either daily  or sometimes every second day. The dizziness  usually starts at about midday and lasts for about two and a half hours. His other symptoms include headaches, tiredness, fatigue and poor memory.

24. In a report dated 23 October 2013  Dr Hanna, Neurologist, notes that Mr Tila suffers multiple neurological symptoms including headache, vertigo, poor concentration, working memory disturbance, visual disturbance, fatigue, muscle weakness and shortness of breath. He also noted that Mr Tila is a non-smoker and does not drink alcohol.

25. On physical examination Dr Hanna noted a number of abnormalities including partial ptosis, some proximal and distal muscle weakness, mildly abnormal coordination, abnormal tandem gait and a positive Romberg’s with a tendency to fall backwards.

26. Dr Hanna made a provisional diagnosis of a hereditary neurodegenerative disorder and considered conditions such as mitochondrial disease and myotonia dystophica.  He recommended further investigation with blood tests and MRI scanning.

27. There is no other documentary evidence from Dr Hanna before the Tribunal.

28. A CT scan of the brain performed on 15 January 2013 is reported as showing “mild atrophic change in the cerebral parenchyma”

29. Dr A J Sanki, in the undated report, makes a diagnosis of “mild cerebral atrophy” but provides no other relevant information. Presumably the diagnosis was simply based on the CT scan report.

30. MRI scans of the brain performed on 14 August 2013 and 7 November 2013 did not reveal any significant abnormalities and did not confirm the diagnosis of  ”mild cerebral atrophy’.

31. In the report dated 18 February 2014 Dr S. Sanki raises the possibility of “Meniere’s syndrome” and indicates that Dr Hanna suspects “spino-cerebellar ataxia”

32. In respect of Mr Tila’s claimed neurological disorder the medical evidence is clearly incomplete and somewhat inconsistent and I am not persuaded that during the claim period this condition was fully diagnosed, treated and stabilised so that a rating under the Impairment Tables cannot be applied.

    Mental health condition

33. In a report dated 22 June 2013 Dr Abu-Arab, Clinical Psychologist, makes a diagnosis of Post -Traumatic Stress Disorder (PTSD) and Major Depression and indicates that Mr Tila participates in a cognitive behavioural program. He states that Mr Tila’s condition is chronic and does not expect significant improvement.

34. Dr Abu-Arab makes no mention of Mr Tila’s neurological symptoms and notes that he “uses excessive amounts of alcohol” which is inconsistent with the history recorded by Dr Hanna.

35. Dr Abu-Arab provides a “functional profile” which does not directly address the descriptors of mental health function outlined in Impairment Table 5 but does suggest that the during the claim period Mr Tila’s condition  did have a functional impact on his activities involving mental health function.

36. At the hearing Mr Tila provided three brief letters from Dr Abu-Arab dated 20 January 2014, 28 April 2015 and 7 July 2015 which did not assist the issues before the Tribunal.

37. The reports of the Dr A J Sanki and Dr S Sanki did assist the Tribunal in respect of Mr Tila’s mental health condition.

38. In a Job Capacity Assessment Report submitted on 11 March 2014  the assessor  notes that Mr Tila reported that “he is able to maintain independence with all aspects of self-care” and “he is able to independently walk to local shops, walk to his local Centrelink office/ appointments, drive independently (without any restrictions on his license) as well as complete light household tasks”.

39. The SSAT concluded that “it might be that Mr Tila has severe difficulties with most of the areas of mental health function” but declined to apply a rating under the Impairment Tables because that the difficulties arose as a result  of the neurological condition.

40. Notwithstanding the difficulties with the evidence I accept that during the claim period Mr Tila’s mental health condition was permanent for the purposes of the Impairment Determination and that the condition had at least a moderate functional impact on his activities involving mental health function so that a rating of 10 points under Impairment Table 5 can be applied.

    Other conditions

41. I accept that the during the claim period the conditions of sleep apnoea, asthma hypertension and GORD were permanent for the purposes of the Impairment

42. However, there is, in my, view insufficient corroborative evidence to support a conclusion that during the claim period Mr Tila suffered any functional impact as a result of these conditions so that a rating under the Impairment Table would be nil points.

    DECISION

43. For reasons set out above I am satisfied that during the claim period Mr Tila’s impairment was not 20 points or more so that he did not satisfy section 94(1)(b) and was not qualified for DSP.

44. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated  15 September 2015

Date(s) of hearing	24 August 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services