Abbas and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2027

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2027

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/1662

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TALEB ABBAS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Ion Alexander, Member

Date10 December 2007

PlaceSydney

Decision The decision under review is affirmed.

......................[Sgd]........................

Dr Ion Alexander, Member  

CATCHWORDS

SOCIAL SECURITY- disability support pension - physical, intellectual impairment - condition is fully, diagnosed, treated and stabilised - assignment of an impairment rating - decision affirmed.

Social Security Act 1991- s 94, Schedule 1B

10 December 2007 REASONS FOR DECISION

INTRODUCTION

1.      Mr Abbas was granted a Disability Support Pension (DSP) in 1994.

2.      Centrelink, in 2005, requested a Medical Service Update.

3.       Following an assessment by a Health Services Australia medical adviser, Mr Abbas was notified on 20 April 2006 that his pension would be cancelled as of 1 June 2006.

4. The assessor had concluded that Mr Abbas suffered from three conditions and assigned a combined impairment rating of only 15 points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”).

5. Section 94(1)(b) required an impairment rating of 20 or more points, therefore the Act was not satisfied.

6.      Centrelink’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 9 November 2006 on the grounds that the correct combined impairment rating was only five points.

7.      The decision of the SSAT is the subject of review by the Administrative Appeal Tribunal (AAT).

8.      Mr Abbas attended the AAT for a hearing on 3 December 2007. He was unrepresented and had declined the services of an interpreter.

ISSUES

Did Mr Abbas, at the time of the cancellation of his pension, have a physical, intellectual or psychiatric impairment as determined by s 94(1)(a) of the Act?

9.        Mr Abbas claimed that at the time of the cancellation of his pension he suffered from three conditions that had resulted in impairment, namely pulmonary disease, depression and recurrent infection in the right ear.

What is the evidence with regard to Mr Abbas’ claim?

10.      In a report dated 20 March 1996 Dr Goldberg, Respiratory Physician, indicated that in June 1992 Mr Abbas was diagnosed as suffering from pulmonary tuberculosis (TB) and that he had been treated with multiple drugs for about 18 months.  The course of the illness was complicated by a requirement for a left sided thoracotomy in order to treat tuberculous empyema and obstructive airways disease that was treated with bronchodilators and corticosteroids.

11.      Dr Goldberg noted that Mr Abbas had recovered from his TB apart from some residual chest xray abnormalities but continued to require treatment with inhaled bronchodilators and steroids.

12.      Between October 1996 and February 1997 Mr Abbas was reviewed by Dr Goldberg on three occasions.  At that time he was complaining of cough, shortness of breath with exertion and chest tightness.  Treatment included asthma therapy and antibiotics.         

13.      The report of CT scan done on 10 March 1997 noted left-sided pulmonary and pleural changes in keeping with old tuberculous scarring.

14.       There is no evidence of any subsequent assessment by a respiratory physician.

15.       In a Treating Doctor’s Report dated 13 July 2005, Dr Behary indicated that Mr Abbas had two conditions which had a significant impact on function, namely chronic airway disease treated with inhaled ‘Ventolin’ and ‘Seretide’ and depression treated with antidepressant medication.

16.      In a subsequent report dated 1 September 2005, Dr Behary indicated asthma and recurrent right middle ear infection as the conditions having a significant impact on function.   

17.      The information in these reports was so brief that they provided almost no useful information and I found them to be of little value.

18.       In a report dated 20 March 2006, Dr Arad, Health Services Australia medical adviser, noted that Mr Abbas suffered from three conditions, namely chronic obstructive pulmonary disease with left lung scarring, depression and recurrent right ear infection.

19.      Dr Arad’s report was brief with very little history and no evidence of physical examination or assessment of treatment. He did note that Mr Abbas had suffered from TB in 1993 and that his current symptoms included cough and shortness of breath with certain activities.

20.      Dr Arad assigned an impairment rating of 10 points for depression and five points for pulmonary disease.  However, there was no satisfactory explanation for his conclusions and therefore they can be given little weight. 

21.      In March 2007, Centrelink referred Mr Abbas to Dr Lovric, Consultant Psychiatrist, for assessment.

22.       In a comprehensive report dated 20 April 2007, Dr Lovric noted that following treatment for tuberculosis Mr Abbas complained of continuing symptoms of shortness of breath, fevers, cough and weakness and that he had difficulty in adjusting to the diagnosis.

23.       Dr Lovric diagnosed mild chronic Adjustment Disorder with depressed mood that had developed in the context of a maladaptive response to physical illness.  She assigned an impairment rating of nil points on the grounds that Mr Abbas had mild regular symptoms that caused him some subjective distress, but noted that he was readily able to distract himself from such distress.

24.      Dr Lovric noted that Mr Abbas has had no psychological or psychiatric treatment and that he was not compliant with the antidepressant medication prescribed by his general practitioner.

25. Furthermore Dr Lovric opined that, with treatment, Mr Abbas could expect significant functional improvement.

26. In a Job Capacity Assessment report dated 13 March 2007, an impairment rating of 15 points was assigned under Table 1 in Schedule 1B of the Act for chronic obstructive airways disease. Nil points were assigned for depression (Table 6) and hearing loss (Table 12).

27.       This assessment was based entirely on Mr Abbas’ reported difficulties with shortness of breath while undertaking various tasks identified in Table 1.2.

28.      Mr Abbas gave limited oral evidence at the hearing that was not convincing and of questionable reliability.

29.       With regard to his pulmonary problems, Mr Abbas complained of shortness of breath and recurrent cough but was not able to provide a reliable description of his alleged impairment.

30.      With regard to his asthma, Mr Abbas indicated that he needed to use his ‘Ventolin’ puffer three to four times per day but had stopped using ‘Seratide’ some months prior to the hearing.  He gave a clear impression that his treatment was somewhat ad hoc and that he not undergone appropriate medical review for some time.

31.       Mr Abbas was not able to clearly explain the problems with his ear apart from indicating that he had some hearing loss and that as a consequence of infection he had undergone an operation some years ago, and that a further operation may be required in the future.

32.       A Doctor’s report dated 15 December 1994 noted that Mr Abbas suffered a perforated right ear drum following an infection and subsequently required a myringoplasty.

CONSIDERATION

33. In this case Mr Abbas claimed that at the time his pension was cancelled he suffered impairment from three medical conditions namely depression, problems with the right ear and pulmonary disease.

34. The introduction to the Impairment Tables in Schedule 1B of the Act requires that an impairment rating can only be assigned to a condition after a comprehensive history and examination and that the condition must be fully documented, diagnosed, investigated, treated and stabilised.

35.      In order to assess whether a condition meets these requirements one must consider what ‘treatment or rehabilitation has occurred, whether the treatment is still continuing or is planned in the near future’ and ‘whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years’.

36.      Furthermore the condition must be considered permanent, that is, will persist for at least two years.

37. It follows that I must decide whether any of Mr Abbas’ claimed conditions meet the requirements of the Act.

38. In deciding I note that, apart from the assessment by Dr Lovric, the medical assessment of Mr Abbas’ conditions was inadequate and in my view did not meet the requirements stipulated in the Act.

39.      With regard to the claimed condition of depression I relied on Dr Lovric’s report and find that at the time his pension was cancelled Mr Abbas suffered from a mild Chronic Adjustment Disorder with depressed mood.

40.       I also find that there had been inadequate treatment and that reasonable medical treatment would have been likely to lead to significant functional improvement within the next two years.

41.       It follows that this condition could not have been assigned an impairment rating.

42.      With regard to the right ear problems I find that, at the time the pension was cancelled, there was insufficient evidence to support a conclusion that this condition had been fully documented, diagnosed, investigated and treated.

43.       It follows that this condition could not have been assigned an impairment rating.

44.      With regard to pulmonary disease I find that in 1992 to 1993 Mr Abbas suffered from TB with complications that resulted in residual scarring of the lungs.

45.  There was no evidence of any medical assessment with regard to Mr Abbas’ functional loss as a consequence of his problems with pulmonary TB since 1996.

46.      There was evidence to support a conclusion that Mr Abbas had suffered from obstructive airway symptoms or asthma for many years requiring treatment with inhaled bronchodilators.

47.      I find that, at the time Mr Abbas’ pension was cancelled, he suffered from the residual effects of pulmonary TB and ongoing asthma.

48.      However, as a result of inadequate medical assessment, I am not satisfied that, at the time Mr Abbas’ pension was cancelled, the impairment resulting from the two respiratory conditions was stabilised.  I find that on balance there was sufficient evidence to conclude that further reasonable medical treatment, particularly with regard to his asthma, was likely to have resulted in significant functional improvement within the next two years.

49.      It follows that at the time Mr Abbas’ pension was cancelled an impairment rating could not have been assigned to his respiratory disease.

50.      Furthermore, the highest combined impairment rating that had been assigned by any assessor was 15 points and there was insufficient reliable evidence before me that would have allowed me to conclude that, at the time Mr Abbas’ pension was cancelled, his claimed conditions warranted an impairment rating of 20 points or more.

DECISION

For the aforesaid reasons I find that:

51. At the time the DSP was cancelled Mr Abbas did not have a physical, intellectual or psychiatric impairment within the meaning of s 94(1) of the Act.

52.      The decision of SSAT is affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I. Alexander, Member

Signed: .........................[Sgd].................................
  Associate

Date/s of Hearing  3 December 2007    
Date of Decision  10 December 2007 
Representative for the Applicant    Mr T Abbas, self-represented
Solicitor for the Respondent           Ms P Sharma, Centrelink Legal Services