Yousif and Secretary, Department of Social Services (Social services second review)
[2016] AATA 849
•27 October 2016
Yousif and Secretary, Department of Social Services (Social services second review) [2016] AATA 849 (27 October 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0985
Re
Rita Yousif
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 27 October 2016 Place Sydney The decision under review is affirmed.
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Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application rejected by Centrelink – whether applicant’s impairments are fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – hearing loss – mental health condition – fibromyalgia – 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
Dr I Alexander, Member
27 October 2016
BACKGROUND
On 12 June 2015 Ms Yousif, who is currently 47 years old, lodged a claim for disability support pension (DSP) on the basis that she suffered medical conditions which were having an impact on her ability to function.
The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.
In a decision dated 2 February 2016, the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Yousif had a total rating of 10 points under the Impairment Tables and, therefore did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings Ms Yousif seeks review of the decision of the SSCSD.
At the hearing Ms Yousif, who was self-represented, was assisted by an Arabic language interpreter.
RELEVANT LEGISLATION AND ISSUES
In order to qualify for DSP Ms Yousif 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 subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999, that is, between 12 June 2015 and 11 September 2015 (the claim period).
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.
The Respondent concedes, and the Tribunal accepts, that Ms Yousif suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
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)).
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, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).
The introduction to each relevant Table requires that “[t]here must be corroborating evidence of the person’s impairment” and that “[s]elf-report of symptoms alone is insufficient”.
Also, the introduction to Table 5 of the Impairment Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the 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)”.
It is agreed that Ms Yousif suffers medical conditions including bilateral hearing loss, a mental health condition and fibromyalgia.
The Respondent contends that during the claim period Ms Yousif’s medical conditions were not fully diagnosed, treated and stabilised so that a rating under the Impairment Tables could not be applied.
Alternatively, the Respondent contends that, during the claim period Ms Yousif’s medical conditions warranted a total rating under the Impairment Tables of no greater than 10 points and, therefore, she did not satisfy section 94(1)(b) of the Act.
The Respondent also contends that Ms Yousif did not have a “continuing inability to work” and, therefore, could not satisfy section 94(1)(c) of the Act.
It follows that the determinative issue in this matter is whether, during the claim period, Ms Yousif suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether she had “a continuing inability to work”.
HEARING LOSS
There is no dispute that Ms Yousif suffers bilateral hearing loss which is due to an operation in the right ear that was performed in Iraq in about 1991 and a perforation in her left tympanic membrane.
Ms Yousif claims she suffers recurrent symptoms which include headaches, dizzy spells, noises and pressure in her ears, difficulties with balance, insomnia fatigue and recurrent infection.
Ms Yousif told the Tribunal that she does not use hearing aids because they are uncomfortable and cause pain. She conceded that she had only tried a friend’s hearing aids on one occasion and, despite having been referred, had decided not to attend Australian Hearing Services for a formal assessment.
At the hearing Ms Yousif appeared to have no difficulty with communication with the interpreter and the Tribunal and agreed that she can use a standard mobile telephone in speaker mode. She said that she prefers speaker mode because placing the handpiece or mobile close to her ear causes discomfort and pain.
Ms Yousif also told the Tribunal that she requires regular ear toilet every 4 to 6 months.
Medical Evidence
In a letter dated 12 November 2010 Dr Winkler, Ear, Nose and Throat (ENT) surgeon, notes that Ms Yousif “has a right mastoid cavity which is clean and dry and had the operation in Iraq in 1991” and “[o]n the left side…has a subtotal perforation which is dry”.
Dr Winkler stated that Ms Yousif had seen two other ENT surgeons who recommended surgery and that he would evaluate the possibility after reviewing audiometry results.
In a Centrelink Medical Report dated 4 December 2010 Dr Guirguis, GP, lists “Bilateral Ear infection with damages to 8th cranial nerve” as a medical condition with most impact but provides no evidence to support this diagnosis. He describes current and future treatment as “awaiting operation”.
In a letter dated 9 August 2013 Dr Winkler states that he had cleared wax from the right mastoid cavity and the left external auditory meatus and that both ears were now clean and dry. He noted that Ms Yousif does not cope with cleaning because of anxiety and indicated that “if her ears need cleaning in the future this will need to be done under a short anaesthetic”.
The report of audiometry testing performed on 27 May 2014 states, inter alia, the following:
Pure Tone Audiometry demonstrated a moderate conductive hearing loss on the left side and a severe conductive [hearing] loss on the right side…Bone conduction testing was fairly average…Tympanometry results revealed bilateral type (B) curves showing absent eardrum movement (absent compliance and absent middle ear pressure) with…high physical ear canal volume consistent with eardrum perforation on the left and large canal volume resulting from modified radical mastoidectomy in 1990 performed in Iraq…Hearing aids trial is recommended if no medical contraindication is present…Brainstem Evoked Response Audiometry (B.E.R.A) using click stimulus was recoded successfully on both sides. The traces and waveforms were reproducible and well defined and showed absolute and interpeak latencies within normal limits.
In a letter dated 14 August 2014 Dr Kirmani states, inter alia, the following:
Thank you very much for letting me see Rita who was complaining of otalgia right ear on and off for the past 1 month, dizziness for the same period, there was no tinnitus and loss of hearing left ear worse.
On examination the ear drum showed perforation on the left side antroinferior. She had audiometric examination done on 27/5/2014…She got this audiometric test done after a long period of time and hence this delay in writing to you.
Last time I saw her the perforation in the ear was dry and because she was having pain in the ear I had put her on Endep 10mg once at night and Beconase nasal spray. I shall appreciate if you could refer her to another ENT surgeon attach [sic] to public hospital somewhere in Liverpool where Myringoplasty could be done without any cost to her [emphasis added].
It is not clear from this letter when Dr Kirmani actually treated Ms Yousif.
In a report dated 22 June 2016 Dr Armstrong, Medical Adviser at the Health Professional Advisory Unit, states that Medicare records indicate that Ms Yousif was seen by Dr Kirmani on five occasions between 18 October 2013 and 10 December 2013 and subsequently on single occasions on 26 June 2014 and 18 August 2015.
In a brief handwritten note dated 18 August 2015 Dr Kirmani notes that Ms Yousif presented complaining of severe pain in the right ear due to “self inflicted injury with cotton bud” and describes a laceration of posterior inferior wall of the right ear. Dr Kirmani describes significant wax in both ears and recommends referral to another ENT surgeon “for further microsuction”.
At this point I note that Dr Kirmani’s letterhead says that he is an ENT surgeon. However, the Australian Health Practitioner Regulation Agency (AHPRA) website states that Dr Kirmani is registered in General Practice with no specialist endorsement.
In a Centrelink Medical report dated 4 June 2015 Dr Guirguis describes the diagnosis with most impact as “[c]hronic middle ear infection with drums permanent perforations and mastoid bones involvement causing chronic resistant vertigo and tinnitus (8th nerve injury)”.
Dr Guirguis describes current symptoms as “earache, discharge, fever, nausea and vomiting, vertigo and tinnitus with insomnia and day fatigue” and impact on ability to function as “unable to maintain balance, hearing impairment, to avoid exposure to dust, heat and other ear irritants e.g. water” but provides no other details.
In an undated reply to questions from the Legal Services Division of the Department of Human Services, Dr Guirguis states that Ms Yousif always has difficulty hearing a conversation at an average volume in a room with no background noise on the basis that he always has to raise his voice and that “sometimes” she is reliant on lip reading or a recognised sign language.
Dr Guirguis states that the use of hearing aids is contraindicated but does not provide any explanation to support this opinion.
Consideration
There is no dispute that Ms Yousif has structural abnormalities in both ears particularly the right ear and that she has bilateral conductive hearing loss.
The evidence before the Tribunal, in respect of Ms Yousif’s ear condition is, in my view, problematic in that there is inconsistent diagnostic description and an incomplete account of the functional impact of her ear abnormalities on activities involving hearing function or other functions of the ear, particularly during the claim period.
Ms Yousif’s self-report of symptoms and severity of impairment, with respect to the descriptors in Impairment Table11, is not consistent with other evidence.
The corroborating medical evidence, which can best be described as inconsistent and somewhat limited, does not provide a reliable account of diagnosis, treatment or functional impairment.
It is unclear whether Ms Yousif would benefit from further surgery or the use of hearing aids, particularly as she has not been assessed by a registered ENT surgeon since August 2013.
Also, in my view, Dr Guirguis does not provide a satisfactory explanation for his diagnosis which is not consistent with the other medical evidence.
However, despite the difficulties with evidence I am satisfied that, during the claim period, Ms Yousif ear condition can be considered as permanent for the purposes of the Impairment Determination and that a rating under Impairment Table 11 can be applied.
On consideration of the available evidence, in particular the audiometry findings, and the descriptors in Impairment Table 11 I am satisfied that, during the claim period, Ms Yousif suffered mild functional impact on activities involving hearing and other functions of the ear.
Dr Guirguis’ responses to questions from the Legal Services Division suggest that, during the claim period, Ms Yousif suffered a moderate functional impact on activities involving hearing and other functions of the ear.
However, on the available evidence I am not persuaded that, during the claim period, Ms Yousif suffered a moderate functional impact on activities involving hearing and other functions of the ear.
I have placed little weight on Dr Guirguis’ responses to the questions from the Legal Services Division as he did not provide any details to support his statements.
Furthermore, Ms Yousif appears to have had no significant difficulty with hearing a conversation during both AAT hearings with no apparent need for raised voices, and on her own evidence, she is able to use a standard mobile telephone in speaker mode. Also, there is no reliable evidence to support a conclusion that she is partially reliant on lip-reading or a recognised sign language.
It follows that I am satisfied that, during the claim period, Ms Yousif suffered a mild functional impact on activities involving hearing and other functions of the ear so that a rating of 5 points under Impairment Table 11 can be applied.
MENTAL HEALTH CONDITION
In a letter dated 18 August 2011 Sana Zaarour, psychologist, notes that Ms Yousif presented with symptoms of depression and received Cognitive Behavioural Therapy (CBT) for a number of sessions.
In a letter dated 31 January 2015 Medhat Metry, psychologist, notes that Ms Yousif appears to be suffering from Major Depressive Disorder and has received six psychological therapy sessions in the form of CBT and would benefit from receiving a course of antidepressant medication.
In a brief letter dated 7 May 2015 Dr Abu-Arab, clinical psychologist, notes a diagnosis of chronic PTSD and chronic Major Depression and scheduled a second appointment in July 2015.
In a brief letter dated 9 October 2015 Dr Allam, psychiatrist, makes a diagnosis of Major Depressive Disorder and PTSD and notes current medication as “sertraline” and psychological follow-up.
In a letter dated 29 January 2016 Dr Philips, psychiatrist, notes that Ms Yousif was seen on only one occasion and that she presented with symptoms “suggestive of chronic depressive symptoms”. He states that he found “[n]o evidence of pervasive low mood, psychosis, mania, PTSD, OCD or other anxiety disorders” during his assessment and that “she takes some medications (antidepressant venlafaxine, though not sure of the name or dose)”.
Dr Philips indicates that he asked Ms Yousif to provide all previous reports and to continue on the same medications until he is able to further assess her mental state and advise on further management.
In a letter dated 15 April 2016 Dr Philips notes that Ms Yousif was seen for the first time on 15 January 2016 when she was referred by Dr Guirguis for opinion and management.
Dr Philips again states that he found “[n]o evidence of pervasive low mood, psychosis, mania PTSD, OCD or other anxiety disorders” during the assessment and notes that “she takes some medications (antidepressant; sertraline 100 mg /day and quetiapine for sleep)”.
Dr Philips concludes that Ms Yousif “is presenting with symptoms of chronic depressive symptoms. There are also some PTD symptoms” [sic] and advised that she should continue on medication but that he had made some changes and would continue to monitor her mental state and advise on further management.
I note that Ms Yousif’s PBS summary from 1 June 2011 to 17 May 2016 states that sertraline (30 tab) was dispensed on only 2 occasions, 11 April 2015 and 29 July 2015. Quetiapine was dispensed on one occasion on 15 April 2016.
Dr Armstrong reported on a telephone conversation with Dr Guirguis on 17 June 2016 during which he advised that Ms Yousif does not take antidepressants “as it is seen as a stigma in her community”.
At the hearing Ms Yousif confirmed that she did not take the antidepressant medication regularly as it did not help. More recently however she has been taking Quetiapine at night and said this “makes her relax and helps her sleep”.
Consideration
The evidence clearly demonstrates that the diagnosis of Ms Yousif’s mental health condition was confirmed by a clinical psychologist a few weeks before the date of claim and I am satisfied that the condition was fully diagnosed for the purposes of the Impairment Determination.
However, the medical evidence with respect to treatment is incomplete and somewhat limited. There appears to be confusion about the treatment particularly with respect to compliance with antidepressant medication.
On the available evidence I am not persuaded that Ms Yousif’s mental health condition was fully treated and fully stabilised during the claim period, therefore, a rating under Impairment Table 5 cannot be applied.
FIBROMYALGIA
In his report of 4 June 2015 Dr Guirguis lists “Fibromyalgia” as a medical condition that is generally well managed and that causes minimal or limited impact on ability to function but provides no other details.
I am satisfied that there is insufficient evidence before the Tribunal that would allow for any meaningful conclusion about this condition and, therefore, a rating under the Impairment Tables cannot be applied.
DECISION
For the reasons set out above the Tribunal is satisfied that, during the claim period, Ms Yousif did not have an impairment of 20 points or more under the Impairment Tables so she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP. It is therefore unnecessary to consider whether Ms Yousif has a continuing inability to work.
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
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Associate
Dated 27 October 2016
Date(s) of hearing 14 October 2016 Applicant In person Solicitors for the Respondent S Heithersay, Department of Human Services
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