Afaneh and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1002
•8 December 2016
Afaneh and Secretary, Department of Social Services (Social services second review) [2016] AATA1002 (8 December 2016)
Division
GENERAL DIVISION
File Number
2016/3863
Re
Mr Ramadan Afaneh
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 8 December 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]..................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY - Disability Support Pension - relevant period - whether physical, intellectual or psychiatric impairment - whether conditions fully diagnosed, fully treated and fully stabilised, corroboration of self-report of symptoms - whether impairment rates 20 points under Impairment Tables - decision affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
8 December 2016
INTRODUCTION
On 29 September 2015 Mr Ramadan Afaneh, the Applicant, lodged with Centrelink a claim for Disability Support Pension (DSP). Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.
In his claim, Mr Afaneh listed his disabilities as:
·All joints in body worn out;
·Bleeding nose sometimes; and
·Dizziness when standing a little bit longer time.
Supporting medical certificates from his General Practitioner, Dr R.M.B Chan, recorded a diagnosis of generalised osteoarthritis of multiple joints.
On 10 December 2015 Mr Shore was assessed by a Job Capacity Assessor who found that the condition of osteoarthritis was fully diagnosed but not fully treated and stabilised. On 14 December 2015 an officer of Centrelink rejected Mr Afaneh’s claim for DSP. The decision was affirmed by an Authorised Review Officer (ARO). Mr Afaneh sought a review of the ARO decision. On 1 July 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO decision.
This matter is a review of the AAT1 decision.
HEARING
Mr Afaneh represented himself at the hearing with the assistance of an interpreter in the Arabic language. He gave his evidence under affirmation by telephone. Mr Tim Noonan of the Department of Human Services represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). In addition I had the following Supplementary T-Documents:
·ST1 – report of Dr Karlov, Consultant Physician, dated 21 June 2016;
·ST2 – medical certificate by Dr Chan, General Practitioner (GP), dated 30 May 2016;
·ST3 – Impairment Table 1: Functions requiring Physical Exertion and Stamina;
·ST4 – Impairment Table 2: Upper Limb Function;
·ST5 – Impairment Table 3: Lower Limb Function;
·ST6 – Impairment Table 4: Spinal Function; and
·ST7 – Impairment Table 12: Visual Function.
Mr Afaneh tendered no additional documents.
For the Respondent, I took in for consideration the Respondent’s Statement of Facts and Contentions dated 23 November 2016.
LEGISLATION
The relevant legislation is contained in the:
·Social Security Act 1991 (the Act),
·Social Security (Administration) Act 1999 (the Administration Act), and
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 94(1) of the Act details the requirements for qualification for DSP as follows:
(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)One of the following applies:
(i) The person has a continuing inability to work…
Relevant Period
Schedule 2, section 4(1) of the Administration Act requires Mr Afaneh’s qualification for DSP to be determined from the date of his claim to a date 13 weeks thereafter. In this case the relevant period is 29 September 2015, the date of the claim, to 29 December 2015, that being a period of 13 weeks.
ISSUES
The issues I must determine are whether, at the relevant period:
·Mr Afaneh had physical, intellectual or psychiatric impairments; and if so
·The impairments attract a rating of at least 20 points under the Impairment Tables; and if so
·Mr Afaneh has a continuing inability to work.
EVIDENCE
Mr Afaneh chose not to lead any evidence, preferring instead to respond to questions.
When asked about his osteoarthritis, Mr Afaneh said the condition started 15 years ago and has since become worse. He has had multiple types of scans which have found that his joints are deteriorating with age. He has problems with his shoulder, hands, elbows, fingers and knees. He said he has had injections into his joints. He attends monthly appointments with his specialist, who has told him that there is no treatment for his condition. Mr Afaneh is taking only pain relief medication.
Mr Afaneh said that the joints causing him the most pain were his shoulders, elbows, wrists, back, knees and ankles. He said that his neck, toes, hip and fingers were also painful but less so than the others. He said the pain goes around his body. When asked about cortisone injections, Mr Afaneh said he had had some four to five years ago. He said he has not had any since as Dr Karlov and Dr Chan advised him that more than three injections per year may result in side-effects which could cause long term damage to the joints.
When asked about his appointments with Dr Karlov, Mr Afaneh said he saw Dr Karlov one or two months before he went overseas in August 2014. Since his return, he sees Dr Karlov every one or two months.
Mr Afaneh accepted as correct his evidence to the AAT1 hearing in which he is recorded as saying that for 14 months leading up to the claim Mr Afaneh was travelling overseas. He was not under the care of a specialist or regular GP during this period, but was taking medication and using creams for pain management. Mr Afaneh said that while overseas he continued to use the same medications that he had been prescribed prior to the trip. He said he was following the advice of his doctors.
When asked about his activities whilst in Jordan, Mr Afaneh said he used to take little walks, attend appointments with doctors and visit his brother who was seriously ill in hospital.
Mr Afaneh confirmed his evidence to the AAT1 hearing that he had not participated in physiotherapy sessions for three years. He said that the sessions he first attended caused him more pain. He reported this to Dr Chan who advised him to cease the sessions.
When asked if he had participated in hydrotherapy sessions, Mr Afaneh described how he would take his daughter to a heated swimming pool. He said these visits were of his own initiative and were not sessions prescribed by doctors as treatment. He used to stand in the water as he cannot swim due to the pain from his joints.
Mr Noonan asked a series of questions regarding the impact of the osteoarthritis on Mr Afaneh’s ability to function. Mr Afaneh responded:
·He can carry only light things such as a bucket with two or three litres of water;
·He can force himself to do more but afterwards he suffers pain as a result;
·He can pick up a one litre carton of milk but if he had to do it a number of times in a few minutes he would suffer pain in his shoulders and fingers;
·He can pick up a light cardboard box using both his hands without problems but only once or twice a day, even on successive days;
·Holding and using a pen sometimes causes him pain, but not all the time;
·Pain starts in his fingers then goes to his wrists, elbows, shoulders, neck and back;
·He does not use a computer keyboard;
·He has difficulty reading newspapers and books as he cannot read in the English language; he cannot understand and he tires;
·He can turn the pages of a book, but after turning a few pages he suffers pain from having to lift his hand;
·He has difficulty doing up shirt buttons but can force himself to do it;
·He wears only sports shoes without shoelaces;
·He sometimes has difficulty unscrewing lids on bottles and jars and asks for help from his wife or daughters;
·He can walk from a car park into a shopping centre but cannot walk around for more than an hour;
·He can force himself to stand up out of a chair without assistance but he “can hear his bones cracking”;
·He does not use public transport, travelling instead by car;
·He can force himself to perform some overhead activities like washing his hair but the activities may lead to pain;
·He can force himself to drive but not for longer than one hour;
·He can bend forward to pick up a light object from a table, even from the floor if needed, but not more than once or it will lead to pain;
·He can stay seated for longer than 10 minutes but he suffers pain in the back when he stands up;
·When he is feeling good he does some gardening with help from his neighbours for up to 30 mins but gets fatigued after an hour; and
·He has not been in paid employment for 15 years and has not sought employment in that time.
In his submissions, Mr Afaneh said that he would be eligible for the age pension in five months time. He said that it was incredible that the government requires him to work for these five months. He said he is not able to do any work.
TRIBUNAL CONSIDERATIONS
Impairments (section 94(1)(a) of the Act)
The Respondent accepts that Mr Afaneh suffers a number of impairments and that he satisfies the provisions of section 94(1)(a) of the Act. I am satisfied that the medical evidence supports this concession and I find accordingly.
Impairment Rating (section 94(1)(b) of the Act)
I will now consider whether Mr Afaneh’s impairments attract an impairment rating of 20 or more points in order to satisfy section 94(1)(b) of the Act.
Section 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent. Section 6(4) provides that a condition is permanent if the condition:
(a)has been fully diagnosed by an appropriately qualified medical practitioner, and
(b)has been fully treated, and
(c)has been fully stabilised.
Osteoarthritis
In the Respondent’s Statement of Facts and Contentions the Respondent concedes that this condition is fully diagnosed, but contends that the condition is not fully treated or fully stabilised at the relevant period.
I note the medical certificates of Dr Chan dated 28 September 2015, 30 December 2015 and 11 January 2016 which record a diagnosis of generalised osteoarthritis multiple joints. I am satisfied that Dr Chan is an appropriately qualified medical practitioner to make this diagnosis. I am also satisfied that the medical evidence supports the Respondent’s concession. I find that Mr Afaneh’s osteoarthritis is fully diagnosed.
In considering whether the condition has been fully treated and stabilised at the relevant period, I note the following reports:
·Dr Chan dated 19 May 2008 which records nil future/planned treatment for the condition of lumbosacral spondylosis;
·Dr Chan dated 18 November 2009 which records nil future/planned treatment for the conditions of lumbosacral spondylosis and polyarthralgia;
·Dr Chan dated 28 September 2015 and 30 December 2015 which record “Prognosis: Symptoms are stabilised – Treatment: Panadol osteo tabs Under rheumatologist”; and
·Dr Chan dated 11 January 2016 which records: “Prognosis - Symptoms are permanent with persistent pain – Treatment: Panadol osteo tabs. Under rheumatologist”.
Although the report is outside the relevant period, I also note the opinion of Dr Karlov in his report dated 21 June 2016 in which he recorded “… there is no effective treatment”.
The Job capacity assessment report dated 10 December 2015 reports “The client has not received any treatment other than over the counter medication in more than 2 years. Therefore, this condition is considered to be fully diagnosed but not fully treated or stabilised for Centrelink purposes at this stage”.
The medical evidence is that there are no planned changes to Mr Afaneh’s treatment regime of Panadol osteo tablets and periodic consultations with his specialist. There is no evidence that Mr Afaneh has not undertaken reasonable treatment, prescribed by his treating GP or treating specialist that is expected to result in significant functional improvement. The specialist’s recorded opinion is that there is no effective treatment.
At the hearing, Mr Noonan conceded that the condition is fully treated and fully stabilised. The medical evidence supports this concession and I find accordingly. As a result I can apply the provisions of the Impairment Tables to determine an impairment rating.
Mr Afaneh’s evidence relating to the functional impairment resulting from his osteoarthritis condition is that he can perform most functions, however if he performs them repetitively or more than once or twice a day he suffers pain. In considering this evidence, I take note of section 11(3) of the Impairment Tables which provides:
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
I also take note of section 8(1) of the Impairment Tables which provides: “Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”. I note the following corroborating evidence relating to Mr Afaneh’s functional impairment from this condition:
·Reports of Dr Chan dated 28 September 2015 and 30 December 2015 which record: “painful stiff joints involving shoulders fingers & elbows”;
·Report of Dr Karlov dated 21 June 2016 which records: “Given the problems with his joints and muscle attachments it is pretty limiting; he has virtually had to give up working in his garden as on the night of a day spent in the garden results in severe pain and he currently has very little functional capacity … “,
In assessing the level of impairment, I refer to Impairment Table 2: Upper Limb Function as the table relevant to the main impacts of Mr Afaneh’s condition, that being the effects on his fingers, hands, arms, elbows, and shoulders.
I am satisfied from the evidence of Mr Afaneh, to the extent it is corroborated by the medical evidence, that he has difficulty with:
·Picking up a 1 litre carton full of liquid;
·Picking up a light bulky object requiring the use of two hands together;
·Holding and using a pen or pencil;
·Doing up buttons;
·Using a computer keyboard; and
·Unscrewing a lid on a soft-drink bottle.
I am satisfied that Mr Afaneh’s impairment is moderate, attracting a rating of 10 points under Table 2.
After considering whether or not his impairment attracts a higher rating, I am satisfied that the evidence shows that Mr Afaneh is capable of performing most of the activities described in Table 2 for a rating of 20 points. His evidence is that he can perform the activities a few times in the course of a day although too much repetition will result in pain in his joints. I consider his description of his capabilities is generally consistent with the example given in the Impairment Tables in that he is generally able to perform the activities when he attempts them and more than just once or rarely. I find this to be consistent with Mr Afaneh’s evidence relating to his normal activities, including overseas travel, walking around a supermarket for up to an hour and doing light work in the garden for up to 30 minutes.
For the condition of osteoarthritis I assign a rating of 10 impairment points.
Chronic Obstructive Pulmonary Disease (COPD)
I note that the condition of COPD is diagnosed in the medical reports of Dr Chan dated 19 May 2008 and 18 November 2009, and in the report of the Job Capacity Assessor dated 7 December 2009. However Mr Afaneh has not included the condition in his claim for DSP. The condition is not mentioned in the Dr Chan’s reports related to the relevant period. I have no evidence that Mr Afaneh suffers from the condition in the relevant period. I have no evidence that Mr Afaneh suffers any functional impairment from COPD in the relevant period.
I do not accept that COPD was a condition that was fully diagnosed, fully treated and fully stabilised during the relevant period. As a result, I am unable to assign an impairment rating to this condition.
Other Conditions
The AAT1 accepted that Mr Afaneh has previously been treated for hyperlipidaemia and that he wears glasses due to long-sightedness. In his claim for DSP, Mr Afaneh also states that he suffers from, spasms in his hands, a bleeding nose and dizziness. I have no medical evidence relating to the diagnosis, treatment and stability of these conditions relating to the relevant period. In his oral evidence to the AAT1 hearing, Mr Afaneh stated that he also suffers from reflux. Accordingly, I cannot consider them to be conditions that are fully diagnosed, fully treated and fully stabilised. As a result, I cannot assign to them an impairment rating.
Total Impairment Rating
I have found that in the relevant period Mr Afaneh suffered from the condition of osteoarthritis which was fully diagnosed, fully treated and fully stabilised. The condition attracts an impairment rating of 10 points.
Mr Afaneh has no other condition in the relevant period that attracts an impairment rating.
The total impairment rating in the relevant period is 10 points. This is not sufficient to satisfy the requirements of section 94(1)(b) of the Act.
Conclusion
As Mr Afaneh does not satisfy section 94(1)(b) of the Act, he does not meet all the requirements of section 94(1) of the Act. As a result, during the relevant period, Mr Afaneh is not qualified for the receipt of DSP. This means that the decision of the AAT1 is the correct and preferable decision.
DECISION
I affirm the decision under review.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert [sgd]...................................................
Associate
Dated 8 December 2016
Date of hearing 2 December 2016 Applicant In person Advocate for the Respondent Mr Tim Noonan, Department of Human Services
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Administrative Law
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Statutory Interpretation
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