Zuhair Elhenday and Secretary, Department of Social Services
[2014] AATA 855
•17 November 2014
[2014] AATA 855
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2013/6070 |
| Re | Zuhair Elhenday |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Senior Member J F Toohey |
| Date | 17 November 2014 |
| Place | Sydney |
The Tribunal affirms the decision under review
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – serious injury at work – back, neck and shoulder impairments – psychological condition – reflux – whether conditions fully diagnosed treated and stabilised – not all conditions fully treated and stabilised during the relevant period – no single condition rating 20 or more points – applicant had not completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIAL
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
Senior Member J F Toohey
BACKGROUND
Background
In December 2011, Mr Zuhair Elhenday had a serious accident at work. Up until that time, he had been in good health. He had obtained his commercial pilot’s licence and had been living in Western Australia where he worked as a flight instructor. He had returned to Sydney with his family when his wife developed rheumatoid arthritis. While caring for her, he started a master’s degree in aviation and was working as a truck driver when he had his accident.
On 13 November 2012, Mr Elhenday applied for a Disability Support Pension (DSP). He listed his disabilities as: lumbar spine discopathy L4/5; cervical spine discopathy C 3, 4, 5, 6; thoracic spine discopathy T6/7; saphenous nerve damage right knee; and depression. Centrelink decided that he did not qualify at that time for DSP.
Mr Elhenday asked the Social Security Appeals Tribunal (SSAT) to review Centrelink’s decision. When he attended a hearing at the SSAT in October 2013, Mr Elhenday provided further medical reports which showed his conditions as: cervical and lumbar spine discopathy; depression, anxiety, vertigo and insomnia secondary to post-traumatic stress disorder; right knee and bilateral shoulder conditions; and gastro-oesophageal reflux disorder.
The SSAT considered each of Mr Elhenday’s conditions and, for slightly different reasons, affirmed Centrelink’s decision that he did not qualify for DSP.
Relevant legislation
To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, these are:
(i)a physical, intellectual or psychiatric impairment, or impairments, which rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
Mr Elhenday had to satisfy these criteria on the date he applied for DSP, or within 13 weeks, that is by 12 February 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the relevant period.
The Impairment Tables
The Impairment Tables are used to assess the effect of an impairment on a person’s functional capacity. They are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination).
A rating can only be given to an impairment rating if the condition causing it is permanent: cl 6(3)(a).
Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).
Fully stabilised means either:
(i)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
(ii)the person has not undertaken reasonable treatment for the condition and:
i.significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate, and carries a low risk to the person: cl 6(7).
Summary of decision
Mr Elhenday impressed me as an honest person who described his disabilities without exaggeration. He was plainly highly motivated to gain qualifications and worked hard up until he was injured at work. Through no fault of his own he now finds himself with serious health problems, in constant pain and without work. Unfortunately, however, I find he did not qualify for DSP during the relevant period. I find that, during the relevant period:
(i)his spinal condition (which affects his cervical and lower spine, and his shoulders) was fully diagnosed, fully treated and fully stabilised, and rated 10 points on the Impairment Tables;
(ii)his knee condition was fully diagnosed, treated and stabilised and rated five points;
(iii)it is not clear that his stomach condition was fully treated and stabilised during the relevant period but, if it was, I would rate it five points during the relevant period;
(iv)his depression was fully diagnosed but not fully treated and fully stabilised, and so cannot be given a rating on the Impairment Tables.
Because none of Mr Elhenday’s conditions alone rated 20 or more points on the Impairment Tables, he had to have actively participated in a program of support for 18 months in the three years immediately before making his application for DSP in order to have a continuing inability to work: s 94(2). He had completed only approximately 9.5 months of a program of support before he made his application, meaning he could not satisfy this requirement. This means that his application cannot succeed. I refer briefly below to the difficulties Mr Elhenday says he has had in trying to engage in a program of support.
Information before the Tribunal
A large number of medical reports are before the Tribunal. They include reports from general practitioners, Dr Gabriel Adeniyi, Dr Ashok Kumar, Dr Aiman Alsayed; orthopaedic surgeons, Dr Ronald Clark and Dr Daniel Rahme; neurosurgeons Dr Simon McKechnie, Dr Darweesh Al-Khawaja and Dr David Rosen; specialist physician in pain management, Associate Professor Raj Sundaraj; psychiatrist, Dr Ishrat Ali; and reports of CT and MRI scans.
Also before the Tribunal are reports of Job Capacity Assessments undertaken by assessors for Centrelink on 27 March 2012 (in relation to an earlier claim for DSP), 11 December 2012 and 18 February 2014.
Spinal condition
The Secretary accepts, and I am satisfied, that Mr Elhenday’s spinal condition, which affects his cervical spine and lumbar spine, and causes pain to radiate into his shoulders and down his arms, and into his legs, was fully diagnosed, treated and stabilised during the relevant period. There is ample evidence in radiological scans and in the reports of the various specialists who have treated him, to support this conclusion.
The Secretary submits that Mr Elhenday’s back condition should be rated 10 points on Table 4 because it has a “moderate” functional impact on activities involving his spinal function.
According to Table 4, 10 points are assigned where:
The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(i)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(ii)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(iii)the person is unable to bend forward to pick up a light object placed at knee height; or
(iv)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Mr Elhenday says, and the Secretary does not dispute, that he is unable to sustain overhead activities. He has difficulty lifting his arms above shoulder height and experiences severe pain when he does so. He also has difficulty moving his head to look in all directions although he can drive when his pain is not too severe and is able to turn his head to look in rear vision mirrors. On rare occasions he can drive for up to an hour and a half (with breaks); depending on the pain, he can drive for up to 30 minutes. He is able to bend forward to pick up a light object from knee height, although he experiences pain doing so, and while his wife often has to help him, he can usually get up out of a chair without assistance.
On the basis that he needs satisfy only one of the criteria above, I am satisfied that Mr Elhenday’s back condition during the relevant period should be rated 10 points.
I should add that I do not find Mr Elhenday’s back condition to be severe according to Table 4 (that is, 20 points). According to Table 4, severe functional impact on activities involving spinal function means a person is unable to: perform any overhead activities; or turn their head, or bend the neck, without moving the trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes. While he cannot sustain overhead activities, Mr Elhenday does not claim to be unable to perform any overhead activities. Nor does he claim, and the evidence does not suggest, that he is unable to perform the other activities listed.
Right knee
There have been various determinations about Mr Elhenday’s right knee condition.In August 2013, the Authorised Review Officer at Centrelink who reviewed the decision to refuse Mr Elhenday’s claim for DSP found this condition to be fully diagnosed, treated and stabilised and allocated an impairment rating of five points, reflecting a mild impact on his ability to function. The SSAT was not satisfied that the condition was fully diagnosed and said it was “not causing a significant impact on function and therefore did not warrant consideration of the awarding of impairment points from the Impairment Tables”.
According to the SSAT’s statement of reasons, Mr Elhenday indicated at the hearing before that tribunal that his right knee was no longer a significant problem. On that basis, the Secretary contends, this condition was not a permanent impairment during the relevant period. Mr Elhenday denies telling the SSAT that his knee was no longer a problem. I accept what he says. He was forthright in saying that his knee is now “the least” of his problems but says it still causes constant pain; he can still walk but “sometimes not far” and he sometimes has to sit down on account of the pain; he has difficulty negotiating stairs and his wife has to help him; he can stand for up to 10 minutes and sometimes a little longer; he can drive for up to 30 minutes depending on the pain.
Mr Elhenday frankly conceded that the pain in his knee, while constant, is not severe. I am satisfied on the basis of the medical evidence that this condition was fully diagnosed, treated and stabilised during the relevant period. Taking into account the criteria in Table 3 (Lower Limb Function) I find that it has a mild functional impact and should be rated five points.
Gastro-oesophageal reflux disorder
Mr Elhenday has suffered from gastro-oesophageal reflux disorder since early 2012 when he started taking medication following his injury. He describes it as a “gassy” feeling, and a “pushing” sensation in his chest that feels like his heart, although he knows it is not his heart. He takes Somac and has recently been taking an additional medication which he says has made the condition worse. I accept that it causes him pain and extreme discomfort.
There is limited medical evidence about this condition. It was not included in Mr Elhenday’s application for DSP or in the report dated 23 November 2012 from his general practitioner, Dr Alsayed, which accompanied his application. In a report dated 11 February 2014, Dr Alsayed listed it as a condition that is “generally well-managed” and causes “minimal or limited impact on ability to function”. Dr Wassim Rahman, gastroenterologist and hepatologist, recorded a history of “severe epigastric pain and heartburn” in his report dated 27 November 2013. Dr Wassim reported that no serious pathology had been identified on Mr Elhenday’s gastroscopy and that his symptoms would be exacerbated by his weight gain following his injury and the numerous medications he was taking. Dr Wassim prescribed Somac and suggested a weight loss program to improve his symptoms.
It is not clear that this condition was fully treated and stabilised during the relevant period when Mr Elhenday had been on Somac for some nine or ten months. Even if it was however, I would find it had a mild functional impact according to Table 10 (Digestive and Reproductive Function) and was rated five points during the relevant period. With reference to Table 10, I accept Mr Elhenday’s evidence that his attention and concentration are interrupted on most days by pain and other symptoms and personal care needs associated with the condition; and further that he is unable to sustain tasks for more than two hours without a break because of it.
Depression and related psychological conditions
Mr Elhenday started seeing psychologist, Dr Metry in about March or May 2012 after his accident. In July 2012, he started seeing psychiatrist, Dr Ishrat Ali. He also sees Dr Raj Sundarajan, a specialist in pain management. He has been on medication including Lovan, Lexapro, temazepam and Efexor. He is currently on Efexor and Endep.
On 12 July 2012, Dr Ali reported to Dr Alsayed that, since his accident, Mr Elhenday had been suffering from symptoms of “depression and post traumatic stress disorder including depressed mood, insomnia, irritability, poor concentration, difficulty in relaxing”; he “appeared to be functioning at an average level of intelligence and had reasonable insight into his problems”. He recommended that Mr Elhenday change his medication from Lovan to Efexor and that he continue to receive counselling.
In a report dated 28 November 2013, Dr Ali stated that Mr Elhenday “continued having pain in various parts of his body and he gradually started feeling more depressed”; he had started having difficulty in sleeping and in concentrating and had become more irritable; he was having frequent dreams about the accident and recurring suicidal ideas. In Dr Ali’s opinion, he met the criteria for a diagnosis of post-traumatic stress disorder and was suffering from chronic depression. He thought Mr Elhenday’s overall prognosis was “guarded” and that “a lot of the symptoms are going to persist indefinitely and he will always be on some medication”. He did not think that Mr Elhenday would ever be able to return to his pre-injury job and considered him permanently unfit to work.
In a report dated 10 February 2014, Dr Ali stated that Mr Elhenday has “severe difficulty in concentration, behaviour and planning and decision-making”.
It is difficult to know, on the information before me, whether Mr Elhenday’s psychological condition was fully treated and stabilised during the relevant period. At that time, he had been seeing Dr Metry for some months but had only seen a Dr Ali on a few occasions. He was overseas from early August 2012 to early October 2012 during which time he was on medication but was not seeing a psychiatrist or psychologist; he resumed seeing Dr Ali when he returned. Based on Dr Ali’s more recent reports, I would find that Mr Elhenday’s condition had been fully treated and stabilised by the end of 2013 but I could not be satisfied this was the case during the relevant period
As I am not satisfied that this condition was fully treated and stabilised during the relevant period, it cannot be assigned an impairment rating. As to its present impact, I would find, based on his evidence and on Dr Ali’s reports, that Mr Elhenday has moderate difficulties with self-care and independent living; concentration and task completion; behaviour planning and decision-making; and “work/training capacity” and would assign a rating of 10 points on Table 10.
Program of support
At the date of his application for DSP, Mr Elhenday had actively participated in a program of support over several periods totalling approximately 9.5 months. He had been exempted from participation on several occasions, none of which counts as active participation as required by s 94(3C) of the Social Security Act 1991 and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 cl 5(6)(d).
Mr Elhenday accepts that he had not participated in a program of support for 18 months in the three years prior to his application. I accept without reservation that he wants to work and wants to undertake a program of support. For reasons which are not clear, he appears to have been given conflicting advice by Centrelink officers about his eligibility to engage in a program of support because he is in receipt of parenting payment. He produced at the hearing his hand written notes of conversations with Centrelink officers including in August and October this year which indicate conflicting advice about this. I accept that his notes reflect the conversations he had. Most recently, he was referred to a job provider who advised he was not eligible to participate because he is in receipt of parenting payment.
It is not clear whether there is some misunderstanding about Mr Elhenday’s eligibility to participate in a program of support but I would hope this matter can be clarified as it is clearly adding to his frustration and his feelings of depression.
Conclusion
Unfortunately for Mr Elhenday, this application cannot succeed. That does not prevent him from making a further application in the future.
| 1. I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. |
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Associate
Dated 17 November 2014
| Date(s) of hearing | 11 November 2014 |
| Representative for the Applicant | Self-represented |
| Representative for the Respondent | Ms Grace Thangasamy |
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