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

[2019] AATA 4467

Abu Quba and Secretary, Department of Social Services (Social services second review) [2019] AATA 4467 (5 November 2019)

Division:GENERAL DIVISION

File Number:           2019/0766

Re:Custandi Abu Quba

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:5 November 2019

Place:Sydney

The decision under review is affirmed.

.............................[SGD]...........................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – where conceded that applicant has accepted medical conditions causing impairment – whether the applicant has an impairment rating of 20 or more points according to the Impairment Tables – whether the applicant has a continuing inability to work – where impairments not rated at 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991(Cth), s 94
Social Security (Administration) Act 1999 (Cth), s 118

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

5 November 2019

1. The applicant, Mr Custandi Abu Quba, was in receipt of the disability support pension from 30 September 2004.

2. On 8 August 2018, the Department of Human Services (Centrelink) cancelled Mr Abu Quba’s disability support pension because he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act). An authorised review officer of Centrelink affirmed this decision on 8 November 2018.

3. Mr Abu Quba then applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 30 January 2019, the SSCSD affirmed the decision of Centrelink.

4. Mr Abu Quba applied to the General Division of the Tribunal for review on 13 February 2019.  

5. The matter was heard in Sydney on 23 October 2019. Mr Abu Quba attended the hearing and gave oral evidence in person; he was supported by his wife and assisted by an interpreter of the Arabic language.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for the disability support pension, Mr Abu Quba must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mr Abu Quba must satisfy these criteria on 8 August 2018, the date on which his disability support pension was cancelled: subsection 118(13) of the Social Security (Administration) Act 1999 (Cth).

   Rules for assigning impairment ratings 

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. The Secretary concedes, and the Tribunal agrees, that Mr Abu Quba has medical conditions that cause impairment and he satisfied paragraph 94(1)(a) of the Act at the date his disability support pension was cancelled.

14. It follows that the determinative issues in this matter are whether, at the date his disability support pension was cancelled, Mr Abu Quba had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

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

    CONSIDERATION

    Issue – Does Mr Abu Quba have an impairment rating of 20 or more points under the Impairment Tables?

    Spinal condition

15. Mr Abu Quba has a long-standing spinal condition. Dr Ian Harris (orthopaedic trauma and spine surgeon) reported on 29 July 1998 and 27 August 1998 that Mr Abu Quba injured his spine and underwent L3/4 and L4/5 spinal decompression and decompression of right L5 nerve root.

16. A report by Dr Mark Sheridan (neurosurgeon) dated 5 June 2000 noted Mr Abu Quba was taking medication and had received injections for pain, and there was ‘no need to consider further surgery’.[1]

    [1] Exhibit T-T10, page 94.

17. Dr Ajitha Chara (medical advisor) recorded on 23 October 2004 that Mr Abu Quba had low chronic back pain and was able to ‘sit, walk, stand and drive for 30 to 45 minutes’.[2]

    [2] Exhibit T-T32, page 160.

18. Centrelink wrote to Mr Abu Quba on 6 July 2017 asking him to provide current medical evidence for a medical eligibility review of his disability support pension.

19. On 16 November 2017, Mr Abu Quba provided a health summary sheet from Dr Md Mirjahan Mia (general practitioner) that listed his current medications and active medical conditions. Mr Abu Quba was subsequently referred for a Job Capacity Assessment (JCA) by Centrelink. On 12 January 2018, the person undertaking the JCA spoke with Dr Mia who reported that Mr Abu Quba ‘can bend down and pick up a light object from the floor and can turn his head and trunk however, repetitive movements can be difficult for him’ and noted that he ‘can lift 2 to 5 kg of weight’.[3]

    [3] Exhibit T-T45, page 214.

20. At the Tribunal hearing, Mr Abu Quba disputed the accuracy of Dr Mia’s assessment of his functional capacity. However, Mr Abu Quba told the Tribunal that he is able to drive a car for 30 minutes and use his side mirrors. Mr Abu Quba said that he travelled to the Tribunal hearing by train, which took approximately one hour. He also remained seated during the hearing for more than one hour. Mr Abu Quba was observed to get up from his chair without the assistance of a person and confirmed to the Tribunal that he was able to pick up a light object from knee height.

21. Based on the medical evidence, I am satisfied this condition was fully diagnosed, fully treated and fully stabilised on 8 August 2018, the date that Mr Abu Quba’s disability support pension was cancelled. In accordance with the descriptors in Table 4 – Spinal Function of the Impairment Tables Determination, I find Mr Abu Quba’s condition has a mild functional impact on activities involving spinal function and assign five points on the basis that he had some difficulty bending to knee level.

    Ischaemic heart disease

22. In 2003, Mr Abu Quba was admitted to Fairfield Hospital with acute myocardial infarction. A report by Dr Gamal Nashed (cardiologist) on 31 July 2003 noted Mr Abu Quba had multiple risk factors and noted that he should be ‘managed medically at this stage’ and advised Mr Abu Quba to ‘stop smoking’.[4]

    [4] Exhibit T-T20, page 131.

23. In September 2016, Mr Abu Quba was admitted to Liverpool Hospital under the care of Dr Lo (cardiologist) for ‘management of coronary artery disease’, which included ‘angio and stenting’.[5]

    [5] Exhibit T39, page 188.

24. On 12 January 2018, Dr Mia told the JCA assessor that Mr Abu Quba’s:

    …functional capacity has significantly improved following the surgery for his stent in 2016. [He] experiences occasional symptom[s] of mild shortness of breath when performing physically demanding activities including climbing flight of stairs… [He] is independent in completing ADL [activities of daily living], self-care activities and accessing local communities… [He] can drive for 30 minutes and perform sedentary work that does not involve heavy manual labour.[6]

    [6] Exhibit T-T45, page 214.

25. Mr Abu Quba further told the JCA that he can climb five to seven stairs and mow the lawn for ten minutes.

26. At the Tribunal hearing, Mr Abu Quba explained that he resides in a two-storey house and goes up and down the staircase, which has ten to 12 stairs, three times a day. He confirmed he is able to mow the lawn for ten minutes if he takes rests. Mr Abu Quba told the Tribunal he is unable to self-care, but acknowledged that he is able to dress himself, shower himself and accompany his wife to do the grocery shopping. He said that he and his wife walk outside their home for about 15 minutes each day.

27. Based on the medical evidence, I am satisfied Mr Abu Quba’s ischaemic heart disease was fully diagnosed, fully treated and fully stabilised at the date his disability support pension was cancelled on 8 August 2018. The relevant table in accordance with the Impairment Tables Determination is Table 1 – Functions requiring Physical Exertion and Stamina. I note the introduction to this table sets out the requirement that the self-report of symptoms alone is insufficient and there must be corroborating medical evidence of the person’s impairment. The evidence of Dr Mia, that Mr Abu Quba experiences occasional symptoms of mild shortness of breath, is consistent with a finding that his ischaemic heart disease has a mild functional impact on activities requiring physical exertion or stamina. I therefore assign five points for this condition.

    Urinary incontinence

28. A discharge referral from Canterbury Hospital dated 9 August 2018 showed Mr Abu Quba underwent surgery ‘elective TURP’ (transurethral resection of the prostate) on 7 August 2018.[7] A report by Dr David Jefferson (urologist) on 19 September 2018 confirmed that Mr Abu Quba underwent TURP approximately six weeks earlier and the procedure ‘went well’.[8]

    [7] Exhibit A10.

    [8] Exhibit A9.

29. Mr Abu Quba told the Tribunal that, even following this surgery, he frequently needs to go to the bathroom.

30. The medical evidence shows that Mr Abu Quba underwent surgery on 7 August 2018, the day prior to the date his disability support pension was cancelled. I am therefore satisfied that this condition was fully diagnosed and fully treated; however, it is not clear from either the medical evidence or the oral evidence of Mr Abu Quba whether this condition was fully stabilised as at 8 August 2018. For this reason, I cannot assign points for this condition under the Impairment Tables Determination.

    Sleep apnoea and chronic obstructive pulmonary disease (COPD)

31. Mr Abu Quba was diagnosed with ‘mild to moderate obstructive sleep apnoea’ by Dr Peter Collett (respiratory physician) on 13 August 2001. A report by Dr Tan Letran (general practitioner) on 3 December 2002 noted this condition was treated with a CPAP machine and significant improvement was expected.

32. At the Tribunal hearing, Mr Abu Quba stated he has not used a CPAP machine ‘for years’ and advised this condition is now treated with the use of inhalers.

33. The Tribunal notes that the health summary sheet printed on 16 November 2017 by Dr Mia set out that Mr Abu Quba has been diagnosed with COPD, which is treated with medication. There is no further medical evidence in relation to this condition.

34. Mr Abu Quba confirmed to the Tribunal that he has not seen a respiratory physician since 2001 and his condition of COPD is adequately managed using medication/inhalers.

35. The Tribunal finds there is no medical evidence that shows that Mr Abu Quba’s conditions of sleep apnoea or COPD have any impact on his functional capacity. The Tribunal is therefore unable to assign points for these conditions in accordance with the Impairment Tables Determination.

    Lower limb condition

36. A medical report by Dr Sameer Viswanathan (orthopaedic surgeon) dated 21 January 2019 noted Mr Abu Quba experiences ‘lateral sided ankle pain which is probably related to early arthritis in his ankle joint’. Mr Abu Quba told the Tribunal that he is currently on the hospital waiting list for surgery to treat this condition.

37. Based on the medical evidence, I am not satisfied this condition was fully diagnosed, fully treated and fully stabilised on 8 August 2018, the date Mr Abu Quba’s disability support pension was cancelled.  This is because Dr Viswanathan’s report is dated more than five months after the date of cancellation and Mr Abu Quba is currently awaiting surgery. Therefore, I cannot assign points for this condition in accordance with the Impairment Tables Determination.

    CONCLUSION

38. For the reasons set out above, I am satisfied that Mr Abu Quba did not meet the requirements of paragraph 94(1)(b) of the Act at the date his disability support pension was cancelled on 8 August 2018 because his impairments were not rated at 20 points or more under the Impairment Tables.

39. As I find that Mr Abu Quba did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...........................[SGD].............................................

Associate

Dated: 5 November 2019

Date(s) of hearing:	23 October 2019
Applicant:	In person
Solicitors for the Respondent:	S Agnello, Department of Human Services