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

[2017] AATA 1066

Yousif and Secretary, Department of Social Services (Social services second review) [2017] AATA 1066 (11 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5351

Re:Muhanad Yousif

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member Linda Kirk 

Date:11 July 2017

Place:Sydney

The decision under review is affirmed

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

Catchwords

SOCIAL SECURITY – disability support pension – spinal condition – depression – respiratory disorder – diabetes – peripheral neuropathy – gastro-oesophageal reflux – calcaneal spur – osteoarthritis – applicant has physical and psychiatric impairments – applicant’s impairments do not total 20 points or more under the Impairment Tables – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, sch 2

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

REASONS FOR DECISION

11 July 2017

1. Mr Muhanad Yousif (‘the Applicant’) suffers from a number of serious medical conditions which he claims make it difficult for him to work, or to look for work. 

2. On 3 December 2015, Mr Yousif applied for the Disability Support Pension (‘DSP’). On 3 March 2016, his application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’), and on 8 July 2016, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).

3. Mr Yousif applied to the Social Security and Child Support Division of this Administrative Appeals Tribunal for review (‘SSCSD’). In a decision dated 1 September 2016, the SSCSD affirmed the decision of the ARO refusing Mr Yousif’s claim for DSP as he did not satisfy section 94(1)(b) of the Act.

4. On 6 October 2016, Mr Yousif applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.

5. The matter was heard by the Tribunal in Sydney on 10 May 2017.  Mr Yousif attended the hearing in person and was self-represented. 

ISSUES AND LEGISLATION

1. The issue before the Tribunal is whether Mr Yousif qualified for DSP at the relevant time.

2. Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for DSP, Mr Yousif must satisfy the requirements of section 94 of the Act as at the date he made his claim, 3 December 2015, or within 13 weeks of lodging the claim, that is between 3 December 2015 and 3 March 2016 (‘the qualification period’).

3. Section 94(1) of the Act provides that a person qualifies for the DSP if:

   ·the person has a physical, intellectual or psychiatric impairment; and

   ·the person’s impairment is of 20 points or more under the Impairment Tables; and

   ·the person has a continuing inability to work as defined in section 94(2) of the Act.

4. The Respondent concedes and the Tribunal agrees that Mr Yousif suffered medical conditions that caused impairment during the qualification period, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for disability support pension.

5. It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, Mr Yousif had:

   ·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and

   ·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).

The Impairment Tables

1. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).

2. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

3. The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.

4. Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”

5. Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, provides that a condition is ‘permanent’ if it:

(a)has been fully diagnosed by an appropriately qualified medical practitioner; and

(b)has been fully treated; and

(c)has been fully stabilised; and

(d)is more likely than not to persist for more than two years.

1. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables 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.

2. For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:

   (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:

   (c)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

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

3. The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.

4. Reasonable treatment is defined in section 6(7) of the Impairment Tables as treatment that:

   (a)is available at a location reasonably accessible 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.

5. 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:

   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)

Medical conditions

1. Mr Yousif claims and the Respondent accepts that during the qualification period he suffered from the following conditions:

   1.    Spinal condition

   2.    Depression

   3.    Respiratory disorder

   4.    Diabetes

   5.    Peripheral neuropathy

   6.    Gastro-oesophageal reflux

   7.    Calcaneal spur; and

   8.    Osteoarthritis

2. The first issue for determination by the Tribunal is whether the conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

Which of the medical conditions can be given an impairment rating?

Condition 1 – Spinal condition

1. The Respondent accepts that Mr Yousif suffers from a spinal condition, namely cervical and lumbar spinal pathology, which was fully diagnosed during the qualification period, but contends that it was not fully treated and stabilised at that time.

2. At the end of the qualification period (3 March 2016), Mr Yousif was under the care of Dr Darwish, a neurosurgeon and spinal surgeon, whom he had been seeing since May 2011.  In a report dated 10 April 2014, Dr Darwish advised him to increase his exercise including swimming and cycling. 

3. In his evidence to the Tribunal Mr Yousif said that he did do light exercise, including swimming and stretching, as recommended by Dr Darwish in April 2014, but he could not do as much as he or the doctor wanted him to do as he did not have the ability.  He said that the exercise did not help his condition at all.

4. In a report dated 17 November 2014, Dr Hanna recommended physiotherapy and massage for Mr Yousif.  In his evidence at the hearing Mr Yousif told the Tribunal he had a couple of physiotherapy sessions but they did not help him at all, other than giving him some temporary relief.

5. Mr Yousif told the Tribunal that from April 2014 to December 2015 he was taking mobic for his pain, and also panadeine forte as the pain is unbearable. He does light exercises every day to get his body moving, but he is very restricted in his movements.

6. In his evidence to the Tribunal, Mr Yousif confirmed that on 15 February 2016 he went to Liverpool Hospital as he was experiencing severe pain. A physiotherapist saw him and then sent him home.  He said that the pain came on for no reason, and it was not related to vigorous exercise. 

7. Mr Yousif stated during the Job Capacity Assessment (JCA) conducted on 23 February 2016 that he had a recent CT scan and MRI and that he would have a follow-up appointment with a specialist.  The CT scan dated 17 February 2016 stated that there is normal vertebral alignment with no vertebral fractures.

8. In a report dated 30 April 2016 (outside the qualification period) Dr Darwish noted the lack of improvement in Mr Yousif following physiotherapy and multiple medications, and prescribed him new medication and scheduled a review in six weeks’ time.  In his report dated 26 May 2016 (outside the qualification period) Dr Darwish reviewed the MRI scans and noted that Mr Yousif’s pain improved after three weeks of physiotherapy and the effects of the new medication. 

9. On 20 October 2016 (outside the qualification period) Dr Darwish reported that Mr Yousif showed minimal improvement and that he did not believe Mr Yousif would be able to return to the work force in any capacity.  In his report dated 10 November 2016 (outside the qualification period) Dr Darwish noted that Mr Yousif’s condition had stabilised and that he had failed to respond to all forms of treatment.

10. In a report by Dr Hanna dated 7 December 2016, Mr Yousif’s pain was reported to have become more severe, radiating to his right leg and accompanied by severe headaches. Further medical reviews were arranged to ascertain the source of the pain.

11. At the hearing Mr Yousif told the Tribunal that his condition has not improved over time.  He had a second operation on his back on 23 September 2016 (outside the qualification period) and there has been no change in his condition.  He has three discs in his neck that require further surgery, but he has yet to make an appointment to see his neurologist in relation to this.  He applied again for DSP in February 2017 and it was granted on 8 May 2017 following an assessment with the Department’s doctor in April 2017.  He said that he did not provide any new evidence to support his most recent claim that was accepted and DSP granted to him in May 2017.

12. On the basis of the evidence before it, the Tribunal finds that at the end of the qualification period on 3 March 2016, Mr Yousif was scheduled to have a follow-up appointment with a specialist to review the reports of the MRI and CT scan dated 17 February 2016, but that this review had not occurred prior to the end of the qualification period.  

13. The medical evidence before the Tribunal indicates that Mr Yousif’s spinal condition has deteriorated significantly since the end of the qualification period in March 2016 and it notes that he underwent further surgery for this condition in September 2016 (outside the qualification period).  The Tribunal notes that Mr Yousif has now successfully applied for and been granted DSP payable from May 2017.

14. As further investigations and specialist review of his spinal condition had not been completed at the end of the qualification period, the Tribunal is not satisfied that Mr Yousif’s spinal condition was permanent as it was not fully diagnosed, treated and stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to this condition.

Condition 2 – Depression

1. The Respondent accepts that Mr Yousif suffers from depression and that it is fully diagnosed, but contends that it was not was fully treated and stabilised during the qualification period.

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

3. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

   The 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)

4. In a medical history dated 1 December 2015, Dr Aran lists depression/anxiety as a medical condition which Mr Yousif has suffered since 2009 and for which he has been prescribed medication. 

5. In his evidence to the Tribunal, Mr Yousif said he first saw Ms Rene Dilimanis, a clinical psychologist, on 7 April 2016 (outside the qualification period) and that prior to seeing Ms Dilimanis he had not seen a psychiatrist or psychologist.  He had not done so before because he could not afford the fees for a private consultation.  He saw Ms Dilimanis on about eight occasions, but these appointments were funded by Medicare. He told the Tribunal that he continues to be monitored by the mental health crisis team at the Liverpool Hospital and his next appointment with the psychiatrist is on 24 May 2017. 

6. The Respondent contends that Mr Yousif’s depression was not fully diagnosed during the qualification period as he did not commence treatment until after the qualification period.

7. On the basis of the evidence before it, the Tribunal finds that at the end of the qualification period on 3 March 2016, Mr Yousif had not consulted a psychologist or psychiatrist in relation to his depression. As he did not obtain psychological treatment until after the end of the qualification period, the Tribunal is not satisfied that Mr Yousif’s depression was permanent as it was not fully treated and stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to this condition.

Condition 3 – Respiratory Disorder

1. The Respondent accepts that Mr Yousif suffers from a respiratory disorder, namely chronic obstructive airways disease, and that this condition was fully diagnosed during the qualification period, but contends that it cannot be considered permanent as it was not fully treated and stabilised at that time.

2. In his report dated 8 April 2016 (outside the qualification period), Dr Dimitri noted that Mr Yousif had quit smoking and that his coughing was consistent with emphysema and changed his medication.  He discussed with Mr Yousif the need for a further consultation in order to review the results of the CT scan of his chest, and to assess whether a change of treatment was required if his coughing had not by then subsided.

3. On the basis of the evidence before it, the Tribunal is not satisfied that Mr Yousif’s respiratory disorder was permanent as it was not fully treated and stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to this condition.

Conditions 4 and 5 – Diabetes and Peripheral Neuropathy

1. The Respondent accepts that that Mr Yousif’s diabetes and peripheral neuropathy as a complication of his diabetes is fully diagnosed, treated and stabilised, and is therefore permanent, however contends that there is an absence of contemporaneous corroborating evidence and that no more than five points should be allocated to this condition under Table 3.

2. At the hearing Mr Yousif told the Tribunal that he had been employed as a transport inspector on buses until he resigned for health reasons on 27 November 2015.  He could no longer work due to numbness in his legs and he could not keep getting up and down off the buses.  He was working forty hours per week before he resigned.  His job involved boarding buses and checking customer tickets and doing other administrative work in the office.  Before he resigned he asked for part-time work so that he would have time to be able to attend appointments with doctors.  But part-time work was not on offer by his employer as they needed him to work full-time, and therefore he had no option but to resign his position.

3. The Respondent contends that the evidence of the effects of Mr Yousif’s peripheral neuropathy post-dates the end of the qualification period on 3 March 2016.  Dr Aran’s report 25 January 2017 notes that Mr Yousif’s functional impairment is mild and that he is unable to stand for more than 10 minutes.

4. In his evidence to the Tribunal Mr Yousif emphasised that during the qualification period he was functionally impacted by this condition such that in November 2015 he could no longer be engaged in full-time employment, and when his request to reduce his employment to part-time hours was denied he resigned from his position.

5. The Tribunal agrees with the findings of the SSCSD in relation to the functional impact of this condition on Mr Yousif, and finds that an impairment rating of five points under Table 3 should be assigned to this condition as the functional impairment resulting from this condition is mild.

Conditions 6 and 7  – Gastro-oesophageal reflux and Calcaneal spur

1. The Respondent accepts that Mr Yousif suffers from gastro-oesophageal reflux but that this condition was not fully diagnosed, treated and stabilised and cannot be assigned a rating under the Impairment Tables.

2. The Respondent accepts that Mr Yousif suffers from calcaneal spur and that this condition was fully diagnosed but not fully treated or stabilised during the qualification period and cannot be assigned a rating under the Impairment Tables.

3. In his evidence to the Tribunal, Mr Yousif did not claim that either of these conditions had a significant functional impact during the qualification period, and there is insufficient corroborating medical evidence for the Tribunal to find that these conditions were fully diagnosed, treated and stabilised during the qualification period.  Accordingly, these conditions cannot be assigned a rating under the Impairment Tables.

Condition 8 – Osteoarthritis – knees and hips

1. The Respondent accepts that Mr Yousif suffers from osteoarthritis and that this condition was fully diagnosed but not fully treated or stabilised during the qualification period and cannot be assigned a rating under the Impairment Tables.

2. A report dated 14 February 2010, written by Dr Bruce, noted that Mr Yousif would benefit from a rehabilitation program and an arthroscopy of the right knee.  In his report dated 13 September 2010, Dr Viswanathan discussed with Mr Yousif him trialling medication to manage his pain and to consider a knee replacement in the future.

3. In a report dated 8 April 2016 (outside the qualification period), Dr Andrew Dimitri reported that Mr Yousif’s exercise tolerance is limited to walking on flat surfaces and that he has difficulty walking up stairs. In his evidence to the Tribunal, Mr Yousif said that he has difficulty with his mobility and this is the reason why he had to resign from work. 

1. In his report, dated 25 January 2017, (outside the qualification period) Dr Aran reported that Mr Yousif has a mild functional impact on activity using his lower limbs and he is unable to stand for more than ten minutes.  In his evidence to the Tribunal Mr Yousif confirmed that this is correct.

2. On the basis of the evidence before it, the Tribunal is not satisfied that Mr Yousif’s osteoarthritis was permanent, as it was not fully treated or stabilised during the qualification period as he had not undertaken reasonable treatment such as a rehabilitation program or an arthroscopy of the right knee.  Accordingly, no impairment rating can be assigned to this condition.

CONCLUSION

1. During the assessment period, Mr Yousif suffered from impairments attracting a total rating of five points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, it follows that Mr Yousif was not qualified for DSP during the qualification period.

2. As Mr Yousif’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.

DECISION

1. The decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of

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

Dated: 11 July 2017

Date of hearing:	10 May 2017
Applicant:	In person
Solicitors for the Respondent:	J Kim, Department of Human Services