Yousif and Secretary, Department of Social Services (Social services second review)
[2016] AATA 149
•15 March 2016
Yousif and Secretary, Department of Social Services (Social services second review) [2016] AATA 149 (15 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2897
Re
Albert Yousif
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 15 March 2016 Place Sydney The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised - impairment ratings – continuing inability to work – visual function - neurological function - mental health condition – 20 point impairment rating not reached- decision under review 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
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
15 March 2016
Mr Yousif, who is 48 years old, migrated to Australia in 2012.
On 15 May 2014 Mr Yousif 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.
Mr Yousif’s claim was rejected by Centrelink 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.
On 14 October 2014 an Authorised Review Officer decided that Mr Yousif’s impairment was more than 20 points but did not satisfy s 94(1)(c) of the Act which requires that the person has a continuing inability to work because he did not have a severe impairment under a single Impairment Table and had not actively participated in a program of support (POS).
In a decision dated 22 May 2015, the former Social Security Appeals Tribunal (“SSAT”) found that Mr Yousif had a total impairment rating of 15 points and therefore he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings Mr Yousif seeks review of the SSAT decision.
At the hearing Mr Yousif was represented by a solicitor and was assisted by an interpreter in the Arabic language.
ISSUES
In order to qualify for DSP, Mr 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 the requirements of the Social Security (Administration) Act 1999, that is, between 15 May 2014 and 14 August 2014 (the claim period).
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)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Mr Yousif 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.
The medical conditions include impaired vision, a neurological condition, a mental health condition, knee pain, back pain, and hypertension.
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 to persist for more than two years (paragraph 6(4)(d)).
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”.
Also, the Introduction to Table 5 of the 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 a psychiatrist)”.
The Respondent contends that Mr Yousif’s impairment rating, during the claim period, was five points under Impairment Table 5 so that he did not satisfy s 94(1)(b) of the Act.
Alternatively, the Respondent contends that, during the claim period, Mr Yousif could not satisfy s 94(1)(c) of the Act as he did not have a “continuing inability to work” because he did not have a severe impairment as defined in the s 94(3B) of the Act and had not actively participated in a POS as required by 94(2)(aa) of the Act.
At the hearing, Mr Yousif’s solicitor agreed that prior to the date of claim Mr Yousif had completed approximately eight months of a POS which means that he did not satisfy section 5(2) of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the POS Determination”).
Mr Yousif contends that his total impairment, during the claim period, was 40 points under the Impairment Tables with 10 points under Table12, 10 points under Table 7 and 20 points under Table 5.
Therefore, the issues for the Tribunal to consider are whether during the claim period Mr Yousif’s impairment was 20 points or more under the Impairment Tables and, if so, whether Mr Yousif had a “continuing inability to work”.
Also, because Mr Yousif did not satisfy s 5(2) of the POS determination, the Tribunal may have to consider whether, during the claim period, Mr Yousif had a “severe impairment” as defined in s 94(3B) of the Act, that is 20 points or more under a single Impairment Table.
VISUAL FUNCTION
It is agreed that Mr Yousif has lost total vision in the left eye as the result of an injury in 2007 and that this condition is permanent for the purposes of the Impairment Determination.
Mr Yousif told the Tribunal that he has worn glasses since 1987 and that he currently has difficulty with reading. He told the SSAT that he had normal vision in the right eye and that, when reading a newspaper, he “has to hold it close to his face”.
In a letter dated 1 November 2013, Dr Goh, ophthalmic surgeon, stated that “his vision is 6/6 on the right”. In a subsequent brief note dated 19 November 2013, Dr Goh stated that “he had right LASIK surgery in Syria and his vision is quite good at 6/6 on the right. He has lost vision in the left eye”.
On consideration of the evidence before the Tribunal and the descriptors in Impairment Table 12, I am satisfied that, during the claim period, Mr Yousif’s eye condition had a mild functional impact on activities involving visual function so that a rating of 5 points can be applied.
NEUROLOGICAL CONDITION
Mr Yousif contends that he suffers a neurological condition diagnosed as ‘hemiplegic migraine” which warrants a rating of 10 points under the Impairment Tables.
A discharge referral from Fairfield Health Service noted that Mr Yousif was admitted on the 13 January 2013 and states, inter alia, the following:
Mr Youssef a 45 y. o. male presented on the 13/1/13 to Fairfield hospital with headache, slurred pseech [sic] and left sided hemiparesis involving both upper and lower limb. These symptoms had started 1 hour prior to presentation. …On examination he seemed to be in distress. He had obvious L sided weakness in the upper and lower limbs. Cranial nerve examination was normal……This is in the background of a recent CVA (Novemeber [sic] 2012) for which he was placed on warfarin……Over the next day Mr youssef’s neurological deficits improved …..Mr Youssef condition stabilised [sic]and he was deemed fit for d/c on 23/1/13.
In a letter dated 6 February 2013 Dr I Hanna states inter alia the following:
…On the 13 /01/2013 he was taken to Fairfield Hospital Emergency Department for sudden onset of severe headache with no nausea or vomiting but with visual aura followed by left hand side weakness for which he was investigated with a brain CT scan which was normal…urgent CT scan angiogram which was done and it was completely normal …carotid Doppler study which was normal ...A CT brain venogram also was normal…brain MRI scan with MRA with DWI also did not show any evidence of acute infarct …His medical history, apart from chronic headache highly likely due to migraine is unremarkable. …He has mild hypertension on therapy…His headache is very consistent with common migraine.
On clinical examination Dr Hanna notes inter alia the following:
He is right handed. Normal higher centre examination and all cranial nerve functions were normal. He had normal tone, power, coordination and all sensory modalities were preserved. His tandem gait was normal as was his Romberg’s. His deep tendon reflexes were depressed but equal in the upper and lower limbs with a flexor plantar response…A general examination was unremarkable.
Dr Hanna concludes that “The history is very suggestive of hemiplegic migraine”.
In a letter dated 13 March 2013 Dr Hanna noted that Mr Yousif’s major symptom at present is the “headache which is very consistent with migraine with tension component… [and] is interfering with his daily living activities”. Dr Hanna prescribes Epilim for migraine prevention and sleep disturbance.
In a letter dated 14 December 2013 Dr Hassan, neurologist, notes, inter alia, the following:
Thank you very much for referring this 45-year-old man who seeks a second neurological opinion. He has recurrent episodes of left–sided weakness and headache….Mr Yousif’s neurological complaints began in 1994. He had an episode of left hemiparesis. He does not recall having a significant headache at that time. In 1998, he had a second episode of left hemiparesis ….In, 2008 he had another episode of left hemiparesis this time with a significant headache….In 2010, he had another episode In January of this year, he was admitted to Fairfield hospital with an episode of left hemiparesis. He was described as having significant expressive aphasia and left hemiparesis which lasted for an hour. Following the episode of left hemiparesis in 2008, he had significant expressive aphasia which lasted for several months He had significant dysarthria since then….Over the past few months, he has experienced recurrent episodes of bilateral moderately severe headaches associated with gait disturbance. Each episode would last 30 to 60 minutes at a time.
On examination Dr Hassan notes inter alia the following:
He has moderately severe dysarthria…..There is subtle intention tremor in the right upper limb. The fractionated hand movements are impaired in the left hand. The upper and lower limb deep tendon reflexes are brisk at the upper limit of normal with mild asymmetry being more brisk on the left. The lower deep tendon reflexes are normal. The gait is essentially normal though he cannot tandem gait which is abnormal for his age.
Dr Hassan concluded that the most likely diagnosis is “familial hemiplegic migraine” with a combination of “episodic headaches, left hemiparesis without imaging abnormalities, an episodes of gait ataxia with cerebellar dysfunction”.
For the chronic migrainous headache Dr Hassan suggested that Mr Yousif “stop the codeine and continue to trial Epilim”.
Dr Werdi, GP, provided two Centrelink Medical Reports dated 14 May 2014 and 25 June 2014, which are essentially the same, in which he listed ‘hemiplegic migraine’ as a medical condition which causes significant functional impact which he describes as “interfere with mobility & daily activity” but provides no other details.
In a letter dated 11 February 2015 Dr Hanna noted, inter alia, the following :
…He came along telling me that all of his nocturnal symptoms disappeared since he stopped taking Epilim. However, he continues to have the severe headache which is very consistent chronic classic familial hemiplegic migraine. Lately he has been having one attack every week, and the headache is interfering with his daily living activities…I was told that the routine EEG was done and it was reported normal. As I mentioned to you before he probably has obstructive sleep apnoea …..I had a long chat with him in regards to migraine prevention … I have started him on Inderal …for migraine prevention … I would like to state that his familial hemipegic migraine is very severe and is interfering with his daily living activities.
I note that at the hearing Mr Yousif stated that he did not have a severe headache every week but was not able to provide the Tribunal with a clear understanding as to the frequency of his headaches. He did say that since 2012 he has been admitted to hospital on four occasions.
In a medical certificate dated 7 August 2014 Dr Werdi, GP, lists “lower back pain”, “knee pain” and “slurred speech” as medical conditions which impact on Mr Yousif’s capacity to work or study but does not mention “headaches”.
Consideration
I accept that Mr Yousif suffers episodic “hemiplegic migraine” and that during an episode he suffers temporary physical impairment. Since 1994 these episodes have been relatively infrequent, however, there is some suggestion that in the last three years the frequency of the episodes has increased.
The available evidence also indicates that Mr Yousif experiences recurrent episodes of headache, without physical impairment, that occur more frequently. Whether these episodes are simply a less severe version of the “hemiplegic migraine” or a different condition is unclear. The frequency of the headaches is also unclear.
The question as to whether the condition of “hemiplegic migraine” can be considered to be “permanent” for the purposes of the Impairment Determination is, in my view, problematic.
Section 6(3)(a) of the Impairment Determination provides that:
An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
It is clear from the available evidence that the condition of “hemiplegic migraine” is a permanent diagnosis but the impairment caused by each episode appears to resolve spontaneously so the impairment does not persist.
Therefore, the question arises as to whether there is evidence of impairment that persists when the episodes resolve.
In his letter of 6 February 2013 Dr Hanna describes a normal clinical examination with no impairment.
In his letter of 14 December 2013 Dr Hassan notes a history of “expressive aphasia” which is not mentioned in the hospital discharge referral or by Dr Hanna. Also, Dr Hassan’s clinical examination findings are significantly different from those of Dr Hanna, particularly the abnormal “tandem gait” and the “moderately severe dysarthria”.
The reasons for and relevance of these differences is unclear.
Furthermore, in my view, the evidence suggests that, during the claim period, the neurological condition was not fully treated and fully stabilised. In his letter of 11 February 2015 Dr Hanna implied that Mr Yousif had been experiencing problems with the trial of Epilim and prescribed new treatment with Inderal.
After having considered the available evidence I am not persuaded that, during the claim period, the condition of “hemiplegic migraine” was permanent for the purposes of the Impairment Determination so that a rating under the Impairment tables cannot be applied.
Although not necessary, it is useful to comment that, in my view, there is insufficient corroborative evidence before the Tribunal for a reasonable assessment of the functional impact resulting from Mr Yousif‘s neurological condition during the claim period.
MENTAL HEALTH CONDITION
Mr Yousif contends that he suffers a mental health condition diagnosed as Post Traumatic Stress Disorder (PTSD) which warrants a rating of 20 points under Impairment Table 5.
In a report dated 14 May 2013 Dr Benjamin, psychiatrist, stated, inter alia, the following:
Albert said that he suffered with depression since he arrived in Australia, six months ago…Albert attended his appointment on time. He was appropriately dressed and groomed. His affect was reactive and appropriate. He did not appear psychiatrically impaired to any extent. There was strong overlay in his presentation, both physical and psychiatric. His psychiatric complaints did not correspond with his reported daily activities or lifestyle. There was no suggestion of Psychotic or Obsessive Phenomena. His Cognitive Functions were clinically unremarkable. He denied thoughts of self-harm…Albert’s [sic] may be experiencing some adjustment difficulties to life in Australia, particularly in the relation to his relationship with his wife and two daughters. He however does not appear to be suffering with a major psychiatric disorder...I counselled Albert and I encouraged him to study English language and to maintain physical and social activities. I also encouraged him to take Endep 25mg tablets, as they were helpful to his headaches and Musculo-skeletal pain in the past.
In a progress report dated 16 April 2014 Dr Slewa-Younan, psychologist, stated that Mr Yousif was originally assessed on 9 December 2013 and his presentation was consistent with “Pervasive Depressive Disorder with episodes of Major Depressive Disorder” and that “structured Cognitive Behaviour Therapy” was implemented. She noted that Mr Yousif was compliant with treatment and making moderate progress but “further continuation of treatment is required to achieve goals of treatment”.
In a letter dated 30 April 2014 Dr Slewa-Younan stated that Mr Yousif was first referred for a mood disorder but on further examination it was obvious that he was suffering from chronic PTSD with Comorbid Depression disorder.
Dr Slewa-Younan noted that she has been seeing Mr Yousif for over five months. Initially he was commenced on treatment with a cognitive behavioural approach and although he demonstrated good compliance there had been little improvement in his severe anxiety symptoms. She goes on to say that he requires ongoing treatment and that his GP, Dr Werdi, has prescribed Amitriptyline 50 mg but does not indicate when the medication was started.
In his report of 14 May 2014, Dr Werdi lists “Anxiety with Depressive Mood” 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.
In his report of 25 June 2014, Dr Werdi lists “Anxiety Stress Adjustment disorder seen psychologist for counselling” as a medical condition that is generally well managed and that cause minimal or limited impact on ability to function.
In a letter dated 23 November 2015, Dr Werdi wished to retrospectively correct his diagnosis of June 2014 to “severe depressive illness and depressive mood in the form of Post–Traumatic Stress Disorder”.
Consideration
As noted above, the Introduction to Impairment Table 5 provides that the diagnosis of a permanent mental 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 a psychiatrist)” [emphasis added].
In May 2013 Dr Benjamin was clearly of the opinion that, at that time, Mr Yousif was not suffering from a psychiatric disorder and did not make a diagnosis.
It is not disputed that Mr Yousif has not been seen by another psychiatrist or clinical psychologist prior to or during the claim period.
Dr Slewa-Younan is a registered psychologist but is not endorsed by the Australian Health Practitioner Regulation Agency (AHPRA) to practice as a clinical psychologist.
It follows that a rating under the Impairment Table, for Mr Yousif’s mental health condition, cannot be applied.
Furthermore, on the available evidence I am not persuaded that, during the claim period, Mr Yousif‘s mental health condition was fully treated and fully stabilised so that even if I were to accept the diagnosis, a rating under Impairment Table 5 could not have been applied.
OTHER MEDICAL CONDITIONS
In his two medical reports, Dr Werdi lists lower back pain and bilateral knee pain as medical conditions that are generally well managed and that cause minimal or limited impact but provides no details with respect to treatment or functional impairment.
X-rays of the knees performed on 10 February 2014 revealed minor bony spurs raising the “possibility of mild osteoarthritis”.
An ultrasound of the right knee performed on the 7 March 2014 revealed a “small effusion” but no other abnormalities.
A CT scan of the lumbosacral spine performed on 1 July 2014 is reported as showing multilevel minor broad based disc bulging and mild arthritic change.
In a very brief letter dated 25 November 2015 Dr Werdi notes the following:
The above patient has hypertension since 2010 and he is on medication Coversyl. He also suffer from back pain for long tome worsen for the last few years, he is using the medication to ease pain and had physiotherapy. this back pain and neck pain with bilateral knee pain affect his daily mobility and activities. he has mild limitation of movement his neck to both side …He bend with limitation to pick up objects.
I accept that, during the claim period, the conditions of hypertension, back pain and knee pain were permanent for the purposes of the Impairment Determination.
However, in my view, there is insufficient corroborative evidence before the Tribunal to allow for a reasonable assessment of the functional impact of these conditions on Mr Yousif’s activities during the claim period, so that, a rating under the Impairment Tables cannot be applied.
DECISION
For the reasons set out above I am satisfied that, during the claim period Mr Yousif 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.
Therefore, it is unnecessary for me to consider whether, during the claim period, Mr Yousif had a “continuing inability to work”.
The decision under review is affirmed.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ............................[sgd]............................................
Associate
Dated 15 March 2016
Date(s) of hearing 23 February 2016 Solicitors for the Applicant Lex Fori Lawyers Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
2