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

[2016] AATA 103

Yassine and Secretary, Department of Social Services (Social services second review) [2016] AATA 103 (25 February 2016)

Division	GENERAL DIVISION
File Number	2015/3878
Re	Abdul Yassine
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	25 February 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions are fully diagnosed, treated and stabilised – impairment ratings –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

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

25 February 2016

1. In August 2009 Mr Yassine, who is currently 49 years old, suffered a lumbar back injury while at work. After his worker’s compensation payments were cancelled in late 2012 he received Newstart Allowance.

2. On 23 December 2014, Mr Yassine 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.

3. Mr Yassine’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”). In particular he did not satisfy s 94(1)(b) of the Act, as his impairment was not 20 points or more under the Impairment Tables.

4. In a decision dated 7 July 2015, the Social Services and Child Support Division (SSCSD) of the AAT upon first review, found that Mr Yassine had a total impairment rating of 10 points under Impairment Table 4 so that he did not satisfy s 94(1)(b) of the Act.

5. In these proceedings Mr Yassine seeks review of the SSCSD decision.

6. At the hearing Mr Yassine was self-represented and was assisted by an Arabic language interpreter.

   ISSUES

7. In order to qualify for DSP, Mr Yassine 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, that is, between 23  December 2014  and 24 March 2015 (“the claim period”).

8. Section 94(1) of the Act provides that a person is qualified for DSP 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.

9. The Respondent concedes and the Tribunal accepts that Mr Yassine 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.

10. The conditions include a lumbar spine condition, a cervical spine condition, left leg symptoms, Hepatitis B, hypothyroidism and hyperlipidaemia.

11. 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)).

12. 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)).

13. 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”.

14. The Respondent contends that Mr Yassine has a total rating of 15 points under the Impairment Tables with 10 Points under Table 4 – Spinal Function, and 5 points under Table 3 – Lower limb Function, so that he did not satisfy s 94(1)(b) of the Act.

15. Therefore, the definitive issue for the Tribunal to consider is whether, during the claim period, Mr Yassine had an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a “continuing inability to work”.

    LUMBAR SPINE CONDITION

16. Mr Yassine told the Tribunal that he is always very tired and has many problems including family problems. His most significant problem, however, is severe lower back pain which has persisted since his work place injury in 2009.  He claims that the pain has become more severe over time and is made worse by prolonged sitting, prolonged standing as well as bending and is only relieved by lying down. The pain is said to radiate to the left buttock and left leg and is associated with a sensation of weakness in the legs particularly on the left side as well as numbness in “four toes”.

17. Mr Yassine claims that his  “condition” has deteriorated over the last 12 months so that he can no longer undertake tasks that he was able to perform at the time he lodged his claim for DSP. He attributes the deterioration to frequent physical incidents with his brother-in-law.

18. Mr Yassine stated that apart from two brief periods of physiotherapy he has had no treatment for his condition. He avoids pain medication because of concerns about potential adverse effects on his liver because of his Hepatitis B carrier status. He also indicated that physiotherapy did not help his symptoms.

    Medical Evidence

19. An MRI of the lumbar spine performed on the 15 February 2010 is reported as showing inter alia the following:

    “small acute annular rupture centrolateral to the right side with perhaps early contact with epidural fat around right L5 nerve root although without displacement or compression seen….at L5/S1…a small centrolateral disc bulge towards the right but without displacement of the right S1 nerve root …..at L4/5 level there is facet arthritis, particularly on the right …no significant nerve root compromise is seen  [emphasis added].” 

20. An MRI of the lumbar spine performed on 22 April 2010 is reported as showing an “acute annular rupture at L4/5 level centrolateral to the right side with early right L5 nerve root compromise. No left side nerve compromise is seen [emphasis added].”

21. An MRI of the pelvis and thigh performed on the 22 April 2010 is reported as showing “no extraspinal cause for the sciatica.”

22. An MRI of the lumbar spine performed on 2 August 2012  for “left sciatica” is reported as showing right sided shallow bulges and annular tears as well as early facet joint degenerative changes at L4/5 a and L5/S1 but no evidence of nerve root compression.

23. In a Centrelink Medical Report dated 20 December 2014,  Dr Saad, GP notes  “discogenic low lumbar back pain with left lower limb radicular symptoms” as a condition with most functional impact.

24. Dr Saad notes current symptoms as “constant lumbar back pain and left leg/buttock pain with dysaesthesia anterior left thigh”. He states that there is currently no treatment and that “significant family issues have impacted on all modalities of treatment and management”.

25. Dr Saad describes impact on ability to function as “complains of chronic back pain which impacts on all activities, unable to lift >10 Kgs and prolonged standing uncomfortable”. He also notes that the “condition, despite several interventions by specialists and workcover providers has basically remained unchanged since 2009”.

26. In a subsequent Centrelink Medical Report dated 4 April 2015 Dr Saad  provides similar information but notes that “pain management clinic to be discussed and arranged” as recommended by Dr Davies, neurosurgeon.

    Job Capacity Assessment (JCA) report

27. In a JCA report submitted on 3 February 2014 the assessor notes inter alia the following:

    “client reported difficulty sitting in a car for more than 15-20 minutes…. reported travelling in the local area only, taking his children to and from school…… reported he is able to persist with most household activities such as grocery shopping, cooking and stacking the dishwasher, however will experience pain with these activities….reported difficulty with turning the trunk, reporting occasional sharp pain with twisting….he is able to perform overhead activities, he is able to turn his head without moving the trunk, he is able to pick up items from desk height….is able to remain seated for more than 10 minutes…”

    Consideration  

28. I accept that Mr Yassine suffers chronic low back pain and that there are several MRI scans which demonstrate some degenerative changes in his lumbar spine.

29. However, in my view, the medical evidence before this Tribunal, which is somewhat limited, does not provide a satisfactory explanation for the claimed severity and persistence of Mr Yassine’s symptoms. In particular, apart from Mr Yassine’s self-report of symptoms, there is insufficient corroborative evidence to support his claim of significant deterioration of his lumbar spine condition in the last 12 months.

30. On balance, Dr Saad’s reports tend to suggest that, during the claim period, Mr Yassine’s condition was not fully treated and fully stabilised.

31. However, for present purposes, I accept that during the claim period Mr Yassine’s lumbar spine condition was permanent for the purposes of the Impairment Determination.

32. The question as to the level of functional impact of Mr Yassine’s condition on activities of spinal function, during the claim period, I find problematic. Apart from Mr Yassine’s self- report of symptoms there is little corroborative evidence to support his claimed impairment.

33. However, I am satisfied that the limited evidence before the Tribunal tends to suggest that, during the claim period, Mr Yassine suffered only a moderate functional impact on activities involving spinal function which would warrant a rating of 10 points under Impairment Table 4.  

    CERVICAL SPINE CONDITION

34. Mr Yassine told the Tribunal that in October 2014 he was pushed by his brother-in-law and suffered neck pain which has persisted.

35. In his report of 4 April 2015 Dr Saad lists “cervical/neck pain” as a medical condition with significant functional impact and notes that Mr Yassine was “shaken by disabled relative 19/10/14. Onset of cervical pain since with limitation of movement.”

36. Dr Saad describes impact on ability to function as “discomfort with neck rotation mainly flexion forward. Muscle spasm. Should improve with treatment” and notes that the effect of the condition on ability to function is expected to significantly improve.

37. Dr Saad also states that Mr Yassine was “S/B N Mark Davies 3/3/2015. Suggests Physiotherapy. (MRI scan unremarkable) no nerve root impingements”.

38. Dr Saad’s report, dated after the end of the claim period, clearly indicates Mr Yassine’s cervical spine condition was not fully treated and stabilised during the claim period so that a rating under the Impairment Tables cannot be applied.

    LEFT LEG

39. Mr Yassine claims that he suffers pain and weakness in the left leg which impairs his ability to walk and stand. He also complains of numbness in “four toes”.

40. The report of an MRI of the pelvis and left thigh dated 28 October 2010 concludes as  follows:

    “[t]here is asymmetry of the iliopsoas muscles. I note the patient has left sided leg pain and therefore it is likely that the left iliopsoas muscle is hypertrophic. The unilateral hypertrophy at the iliopsoas muscles is described as being asscoaited symptoms [sic], particularly in body builders. Does the patient have any unusual physical activity.”

41. The report of a nerve conduction study performed on  9 September 2011 states inter alia the following:

    “[t]he nerve conduction study shows that left EDB compound muscle action potential amplitude is reduced (similar to previous study). The remainder of the study is unremarkable. EMG examination revealed mild chronic partial denervation in L5,S1 innervated muscles.”

42. The relevance of the findings in these two studies, with respect to Mr Yassine’s reported leg left symptoms, is unexplained.

43. Dr Saad provides a diagnosis of “left lower limb radicular symptoms” which suggests that he considers Mr Yassine’s left leg symptoms to be caused by irritation of the nerves roots exiting on the left side of the lumbar spine. Dr Saad does not support his diagnosis with an explanation or any physical examination findings.

44. The difficulty with Dr Saad’s diagnosis is that the MRI findings described above consistently report right sided abnormality with potential nerve root compromise with no evidence of any left sided nerve root compromise.

45. In my view, there is insufficient evidence before the Tribunal to support a finding that Mr Yassine suffers a separate left leg condition that would warrant a rating under Impairment Table 3.

    OTHER MEDICAL CONDITIONS

46. In a letter dated 20 April 2015 Dr Saad confirms that Mr Yassine is a Hepatitis B carrier and is being treated for hypothyroidism and hyperlipidaemia.

47. I accept that, during the claim period, these conditions were permanent for the purposes of the Impairment Determination. There is no corroborative evidence before the Tribunal that these conditions have any functional impact so that a rating of 0 points under the Impairment Tables is appropriate.

    DECISION

48. For reasons set out above I am satisfied that, during the claim period, Mr Yassine did not have an impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

49. The decision under review is affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 25 February 2016

Date(s) of hearing	13 January 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services