Ahmed Afaneh and Secretary, Department of Social Services
[2014] AATA 792
•17 October 2014
[2014] AATA 792
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0106
Re
Ahmed Afaneh
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 17 October 2014 Date of written reasons 24 October 2014 Place Melbourne The Tribunal affirms the decision under review.
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G. D. Friedman, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability – maximum portability period – whether an impairment – whether an inability to work for five years.
LEGISLATION
Social Security Act 1991 (Cth) ss 1218AAA; 1217AAA (1)(b)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth) Table 4
WRITTEN REASONS FOR DECISION
G. D. Friedman, Senior Member
24 October 2014
The decision before me is a decision of the Social Security Appeals Tribunal made on 22 November 2013, which affirmed a decision by a Centrelink authorised review officer that Mr Afaneh's maximum portability period of Disability Support Pension is six weeks because he does not satisfy the requirements of unlimited portability as he does not qualify medically under section 1218AAA of the Social Security Act 1991 (the Act).
What I need to determine is whether Mr Afaneh has a severe impairment as defined in the Act, and if so whether he has an inability to work for the next five years. It is clear that Mr Afaneh has a number of medical conditions and in general terms they are a back or spinal condition, depression, a visual condition in that he has only one functioning eye, and he has knee problems.
The parties have agreed, and I accept what they say, especially on the evidence, that the conditions of depression, the visual condition and the knee condition and anything else other than the back condition do not attract 20 points, and therefore he could not be considered to be severely disabled under any of those conditions. So what we are left with is really a discrete question today, and that is does the spinal condition attract 20 impairment points under Table 4 of the Impairment Tables:
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
I have a number of reports and assessments before me today going back to 2006 where Health Services Australia concluded that Mr Afaneh's conditions were long term and precluded any full-time work for two years, but he could do some light part-time sedentary work, and there was a treating doctor's report in 2008 which basically said similar things. A job capacity assessment report was completed on 18 December 2008 and referred to disc degeneration and arthritis with 20 points under Table 5.1.
Mr Afaneh lodged a medical report, Disability Support Pension review form in July 2012. Dr Habib noted:
Condition one severe disc and back, increased risk of developing infections, impact on ability to function is mild. The current impact of this condition on the person's ability to function is expected to persist for more than 24 months and remain unchanged.
On 18 July 2012 there was a job capacity assessment report which referred to the spinal disorder and was assigned 10 points under Table 4. It was noted in that report that Mr Afaneh reported being able to sit for up to 60 minutes before having to move. Posture: He could walk for 15 minutes and stand for 10 minutes.
On 8 August 2012 Centrelink sent a notice to Mr Afaneh reminding him that his portability would be limited to 13 weeks of departure from Australia because he did not have a severe impairment. On 13 February 2013 the Social Security Appeals Tribunal affirmed a decision which is similar to the one before me today, and in that decision the SSAT reported that Mr Afaneh had told it that he could sit for about an hour, but then must get up and walk around. He could walk for about 10 minutes to ease the pain and then he can walk around for 20 minutes and can drive a car for half an hour. He lodged an application to this tribunal for review but subsequently he withdrew his application.
On 10 April 2013 Mr Afaneh provided a letter from Dr Habib dated 10 April outlining his medical conditions and advising that Mr Afaneh cannot work for more than 10 hours a week due to multiple degenerative disease in the spine, blindness, and above all severe depression. He is unable to sit for more than 10 minutes as his pain gets aggravated and he gets restless.
Then on 2 May 2013 a job capacity assessment report was completed and in that report the spinal disorder/other was assigned 10 points under Table 4 and the assessor noted that attempts to contact Dr Habib to clarify discrepancies in tolerances such as pain were unsuccessful.
On 24 June 2013 Mr Afaneh provided a further letter from Dr Habib dated 20 June outlining the medical conditions and advising that Mr Afaneh's back condition is excruciating and he is unable to sit for more than a few minutes. His work capacity is practically zero. On 3 July 2013 there was a further job capacity assessment report. That indicated spinal disorder/other and was assigned 10 points under Table 4 with a notation that in a conversation with Dr Habib the assessor was advised that Mr Afaneh was able to sit for up to 30 minutes. The assessor also noted that Mr Afaneh had recently travelled which would have required him to sit for significantly longer than 30 minutes, he drives himself to and from appointments, and he can walk up to 15 minutes and stand in line for up to 10 minutes, and maintains independence and self care, although he required assistance with some tasks.
Following an application to the Social Security Appeals Tribunal after an authorised review officer's decision the Social Security Appeals Tribunal noted on 22 November 2013 that Mr Afaneh advised that he can reach up to cupboards as long as he does not lift anything heavy, and it was on that basis that the Social Security Appeals Tribunal came to the view that Mr Afaneh did not satisfy the requirements for 20 impairment points. That is the evidence before me today, which has been supplemented by a letter from Dr V Carlisle who is a consultant physician, and on 16 June 2014 he advised in his report that he had originally seen Mr Afaneh in August 2010, but he saw him recently for the purposes of this application.
Dr Carlisle concluded that an impairment rating of 20 points for the spinal function was appropriate, although his report dated 16 June 2014 did not specify in any detail how he came to that conclusion other than talking generally of pain and three disc lesions in the lumbar spine and difficulty with spinal movements, difficulty walking and needing to use a walking stick, difficulty walking outside the home or to get to local shops and an inability to use community facilities, inability to use steps and an inability to use public transport.
Given the rather general nature of that report it seems that the solicitors acting for Mr Afaneh sought clarification from Dr Carlisle and this was provided in a supplementary report dated 8 August 2014, and he says:
Regarding my assessment of Mr Afaneh, in particular finding 20 points related to his spine. On the occasion when I examined him he was unable to sit for more than a few minutes. He was standing when I walked into the consulting room supported by a walking stick and he did attempt to sit down, but this was only for a few minutes before he again stood up. Thus his sitting time is severely limited. I couldn't get him to bend forward to touch his toes. His neck movements were extremely limited. There may have been an element of voluntary guarding, but I assumed this was to prevent the pain which would result. He was unable on this occasion to elevate his arms above shoulder height and I therefore gave him the 20 points for his spinal disability.
Mr Afaneh gave evidence today, and he clearly is in a lot of pain. Asked "How do you describe the pain?" He said, "It's continuous day and night." He said that medication helps to reduce the pain. He said he cannot raise his arms above head height or shoulder height. He said he could not perform any overhead activities. He said that the situation is getting worse. He said that in terms of bending forward he can bend forward to pick up an object, but it is not easy, and presumably it is quite painful for him to do so.
He was asked how long he can sit and he said, "It's very hard to sit for 10 minutes because the pain is getting worse." He described the arrangements for travelling to Jordan in early 2013. He said he visited Dr Habib before travelling. Dr Habib gave him medication, including Panadeine Forte. He said that can last for up to two hours. Dr Carlisle, as I understand the evidence, gave him Valium and something else, which allows him to sit for an hour, although there are side effects such as constipation.
When questioned about the trip, especially as it is a long way from Melbourne to Jordan on an aeroplane, he said that because of the medication he was able to stand up after about an hour and then he said he takes the medication and then he could probably sit for - it seemed to me he was saying - another couple of hours, and then he would have to get up again.
He said that he can drive short trips, 10 minutes. When he was asked how he can drive, particularly regarding turning his head, he said he can see by looking through the mirrors and therefore does not have to move his whole body. In terms of his personal care he said he needs assistance and obtains that from his wife and children. He said he needs help even to do things like get dressed and go into the shower.
Dr Habib, when he gave evidence, noted the discrepancies in his evidence in the sense of Mr Afaneh's ability to sit down, which was 10 minutes in the first letter of 10 April 2013, and then a few minutes in a letter of 20 June 2013. Dr Habib noted that when Mr Afaneh comes to see him in his surgery he cannot stay in one place, he jumps around and does things like picking up newspapers.
Dr Habib said the situation basically has remained unchanged since about June last year. Dr Habib said he has been treating Mr Afaneh since 2012 and did not have access to medical records before that date. Although my impression was that the situation has remained much the same over the last 12 months, Dr Habib said that the situation will get worse. He allocated 20 impairment points, and he said that was based on his observation of Mr Afaneh and the opinion of his colleague, who I took to mean Dr Carlisle.
Ms Holmes on behalf of Mr Afaneh submitted that Mr Afaneh should qualify for 20 impairment points and therefore is severely disabled under the Act. She said that his evidence was clear today despite some discrepancies in the past. She said that he is unable to perform overhead tasks and cannot sit for more than 10 minutes, and she noted that Mr Afaneh disagreed with the Social Security Appeals Tribunal's record of his evidence, particularly in regard to the tasks that he can and cannot do and the length of time he can sit, and she also said that he disagreed with the conclusions reached by various job capacity assessors, particularly in relation to the length of time that he can sit, or could sit at the time of the assessment.
Ms Holmes noted that Mr Afaneh acknowledged that he could pick up an object from a table at the moment; that is what he said in his evidence. She noted that additional medication was taken in relation to Mr Afaneh's travel last year and also presumably his travel which is planned for later this year or early next year. Ms Holmes pointed out that both Dr Habib and Dr Carlisle had allocated 20 impairment points and that I should be guided by all the evidence which pointed towards a severely disabled condition.
Ms Bramley on behalf of the respondent noted that there were various discrepancies in the evidence, and that both at the moment and more particularly in July 2013 the evidence suggested that Mr Afaneh could drive certainly more than 10 minutes and he could pick up things and he did not require as much assistance as perhaps he is suggesting today, and therefore he would not qualify for 20 impairment points.
Consideration
In relation to the evidence I have heard I have already said that I accept that Mr Afaneh is in a lot of pain and I accept that he is suffering a number of medical conditions and that his future does not look very good at all. I accept what he says that wanting to travel to Jordan in the past has been of assistance to him and he wants to do it again.
There were some inconsistencies in his evidence, whether that was because he is in pain or he is suffering some kind of memory loss or did not quite understand what was being said to him despite using the interpreter when required. I find that his evidence that the Social Security Appeals Tribunal was wrong to record accurately on two occasions what he said is not credible. There was nothing in the statement of facts and contentions provided to me by his legal representative to suggest that the Social Security Appeals Tribunal was incorrect in recording his evidence on two occasions, and I prefer the conclusions drawn by the Social Security Appeals Tribunal on two occasions, which suggested that he had an ability to sit for more than 10 minutes and that he could reach over his head, although it caused him some pain.
At the second hearing, that is the 22 November 2013 hearing, the conclusion was that he did not qualify for 20 impairment points on the basis that he could reach up to cupboards as long as he did not lift anything heavy. That tribunal said he can pick up light objects and can remain seated for 10 minutes, although he will then get up and move around to avoid discomfort and pain. Despite Mr Afaneh's evidence to me today I am satisfied that the record that was taken by the Social Security Appeals Tribunal on that occasion is accurate and I see no reason to suggest that it was not accurate.
Similarly a differently constituted Social Security Appeals Tribunal on 13 February 2013 recorded his evidence that he can sit for about an hour but must get up and walk around, that he needs to walk around for 10 minutes to ease the pain and he can walk for about 20 minutes. Once a week he accompanies his wife to do the shopping. He would be able to drive for half an hour, but generally only drives short distances to the shops to visit friends, and that he is able to dress and wash unaided most of the time, but in cold weather his wife needs to assist him. He can put on his socks and shoes. He would not be able to pick up an object from the floor.
So once again I prefer the record of his evidence as set out by the Social Security Appeals Tribunal in February 2013 as well as November 2013. I also note Mr Afaneh's concession today that he can bend forward and pick up an object from a table. He said it is not easy, but I accept his evidence that he can do that, and that suggests that he is unable to satisfy sub-section (1)(c) of Table 4, which reads:
The person is unable to bend forward to pick up a light object from a desk or table.
That concession is supported to some extent by Dr Habib who when talking about Mr Afaneh's pain said that Mr Afaneh jumps around because he can't sit still for long. Dr Habib quite unsolicited said "including picking up a newspaper". One can only assume the newspaper was either on a table or a bench or somewhere, and if that is the case that supports his evidence that he can bend forward to pick up an object from the floor and that he therefore cannot satisfy paragraph 1(c) of Table 4.
Further, Mr Afaneh said to me today that he can drive short distances, and regarding his use of the mirrors to drive without moving his trunk. I find that a little hard to believe that a person when he or she is using the mirrors does not move his or her head at least to some extent. I could accept that he or she probably does not turn his or her whole body around if reversing into a car parking space, but in using mirrors, side mirrors and the rear vision mirror, one has to move one's eyes and generally there is a head movement involved in that as well, particularly if one is driving even for short distances. So on the balance of probabilities I find it difficult to accept that Mr Afaneh is unable to turn his head or bend his neck without moving his trunk.
As far as performing any overhead activities are concerned, I have already said that I prefer the evidence of the Social Security Appeals Tribunal, which on the second occasion said that he could reach into a cupboard. So on the balance of probabilities I find it difficult to accept that he is unable to perform any overhead activities at all.
As far as remaining seated for 10 minutes is concerned I note that Dr Habib said 10 minutes in the first report and then a few minutes in the second report, and I note that Dr Carlisle said:
On the occasion when I examined him he was unable to sit for more than a few minutes.
As Ms Holmes rightly pointed out the value of Dr Carlisle's reports is somewhat limited by reason of Dr Carlisle not being available for cross-examination. I also take into account that he only saw Mr Afaneh on one occasion, and it may well be that Dr Carlisle's observation of him was that he was unable to sit for a few minutes.
I also note, just referring once more to the sub-section (1)(c) of Table 4 Dr Carlisle said:
I couldn't get him to bend forward to touch his toes. His neck movements were extremely limited. There may have been an element of voluntary guarding. I assume he is either not willing to perform tasks that might cause pain or might otherwise be detrimental to a person's case, or may not be performing at a person's optimum ability.
So I take that into account, which really leads me to place even less weight on Dr Carlisle's report, and I really do not know what Dr Carlisle means when he says, "I couldn't get him to bend forward to touch his toes", whether that means he couldn't touch his toes at all - I presume it means that - or couldn't get him to perform to bend forward at all. It does not really say whether Mr Afaneh might have been able to bend forward sufficiently to pick something up from a table. It is really totally unclear what Dr Carlisle says. Once again that supports the view that Mr Afaneh in my view is unable to demonstrate that he is unable to bend forward to pick up a light object from a desk or table.
Returning to the question of whether he can remain seated for at least 10 minutes Mr Afaneh said that he only drives for 10 minutes. The impression I had was that Mr Afaneh drives himself, at least on some occasions, to Dr Habib's surgery and Dr Habib's surgery is at Campbellfield and Mr Afaneh lives in Glenroy. In looking at Google maps, I am not suggesting is 100 per cent accurate, but it does give an indication that according to Google maps that that distance is approximately eight kilometres, and the driving time is around about 12 to 15 minutes.
Once again I am not basing my decision on that, but there was no suggestion from Mr Afaneh that whenever he goes to the doctor he stops after 10 minutes, gets out of the car, gets back into the car and goes to see the doctor. Whether in fact it takes more than 10 minutes or not I do not know, but it would seem to me that if a person is going to drive somewhere and it is more than their capabilities that they are more likely to say, "I drove for 10 minutes, I got out and got back into the car and drove on." Mr Afaneh did not say that, nor was he asked.
Although it is somewhat speculative it supports the view that Mr Afaneh is able to drive maybe not all the time but he is able to sit in a car for more than 10 minutes, and this is confirmed by his evidence when I asked him how he gets to the airport when he goes overseas. He said a friend or relative arranges a taxi and it is more than 10 minutes to the airport by taxi, and I accept that Mr Afaneh said he takes medication to get him there, but he can still sit for more than 10 minutes in the car. There was no suggestion that he gets out of the car on the way to the airport.
Similarly in the job capacity assessments I have already referred to the conclusions reached in several of those assessments, which find that either he told them or he told his doctor who told the job capacity assessor that he could sit for up to 60 minutes or certainly more than 10 minutes at various times and it is my view that those job capacity assessment reports on the balance of probabilities are more likely than not to have recorded accurately the information that was made available to that particular assessor.
I have referred to Mr Afaneh taking medication to enable him to travel to Jordan by aeroplane. Obviously sitting in a plane for 14 hours or so to get to Dubai and a couple of hours maybe to get to Jordan, or an hour at least to get to Jordan, would be an excruciatingly difficult task for someone with Mr Afaneh's medication conditions, but he is able to do it and he did it last year and he is able to do it again. Although he takes medication there is nothing in Table 4 that said that taking medication means you cannot satisfy Table 4, or can satisfy Table 4. In my view for public policy reasons it makes a lot of sense that, if somebody refuses or declines to take medication and then claims a benefit that would not otherwise be payable were it not for the medication, the Social Security system might well collapse under the weight of thousands more applications.
So my conclusion from that is that notwithstanding that Mr Afaneh quite sensibly seeks medication before he travels he is in fact able to travel on aeroplanes to and from Jordan and therefore he is able to remain seated for at least 10 minutes. His evidence confirmed that he sits for at least an hour before getting up, which would be the requirement anyway for take-off and landing; one is not able to walk around an aeroplane until the plane is up in the air and similarly after it has finished its descent.
For all those reasons I find that at the relevant time in July last year and even at today Mr Afaneh has not been able to demonstrate to me on the balance of probabilities that he is unable to perform any overhead activities or turn his head or bend his head without moving his trunk, or bend forward to pick up a light object from a desk or table or remain seated for at least 10 minutes. Therefore I find that he does not qualify for 20 impairment points. Therefore he is not severely disabled under the Social Security Act; under section 1217AAA he is unable to satisfy sub-section (1)(b), and therefore he is unable to claim unlimited portability for his Disability Support Pension. On that basis I affirm the decision under review.
Decision
The Tribunal affirms the decision under review.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member ...............................[Sgd]...................................
Associate
Dated 24 October 2014
Date of hearing 17 October 2014 Counsel for the Applicant Ms S Holmes Solicitors for the Applicant Victoria Legal Aid Advocate for the Respondent Ms A Bramley Solicitors for the Respondent Department of Human Services
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