Al Ateyeh and Secretary, Department of Social Services (Social services second review)

[2016] AATA 166

Al Ateyeh and Secretary, Department of Social Services (Social services second review) [2016] AATA 166 (21 March 2016)

Division	GENERAL DIVISION
File Number	2015/0063
Re	Mustafa Al Ateyeh
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	21 March 2016
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Miss E A Shanahan, Member

Social Security – pensions benefits and allowances – disability support pension – portability of the pension – cancellation of pension payments due to prolonged overseas absence – review of portability and entitlement to the disability support pension conducted – unlimited portability denied – ability to work 2 hours per week – decision affirmed.

Legislation

Social Security Act 1991
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

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

Cases

Re Chang and Secretary, Department of Social Services [2013] AATA 772

Re Morton and Secretary, Department of Social Services [2014] AATA 949

REASONS FOR DECISION

Miss E A Shanahan, Member

21 March 2016

1. On 23 March 2007 Mr Al Ateyeh qualified for the disability support pension (DSP).  As a result of a job capacity assessment (JCA), he was assigned an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for his long standing pain due to spinal degenerative disease.  Mr Al Ateyeh suffered a back injury at work in May 1995 for which he subsequently received workers’ compensation payments. As a result, he was not eligible for the DSP until 2007.  He subsequently developed coronary artery disease presenting as a myocardial infarct on 5 November 2004; and as a result developed an adjustment disorder with depression and anxiety. This led to a reassessment of his impairment rating in 2013, at which time he was allotted an impairment rating of 20 points under the Impairment Tables for his ischaemic heart disease and impaired cardiac function and 5 points for his spinal disease. 

2. Mr Al Ateyeh’s DSP was suspended on 2 September 2014, as he had been overseas for longer than the permitted 6 week period.  He was found not eligible for indefinite portability.  This decision was reviewed at Mr Al Ateyeh’s request and affirmed by an authorised review officer (ARO) on 18 September 2014.  Mr Al Ateyeh lodged an application for review of the ARO decision by the former Social Security Appeals Tribunal (SSAT) and the SSAT affirmed the decision on 2 December 2014. 

3. On 7 January 2015 Mr Al Ateyeh applied to the Administrative Appeals Tribunal for further review.

4. At the hearing, Mr Al Ateyeh was self-represented with the assistance of his wife, Monika Kaspari, and that of an interpreter in the Arabic language. The Secretary, Department of Social Services (the respondent) was represented by Ms Kellie Latta, a solicitor with Sparke Helmore. The Tribunal was provided with the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). Additionally, further reports from the treating general practitioner, Dr A Wassouff, the clinical psychologist, Dr J Hooper, the results of an MRI of the lumbar spine and the report of Mr M Khan, orthopaedic surgeon, dated 17 November 2015 were also taken into evidence. 

5. Mr Al Ateyeh gave evidence before the Tribunal. 

   BACKGROUND TO THE APPLICATION

6. Mr Al Ateyeh injured his back at work in May 1995 and since that time has suffered from chronic back pain radiating to both legs as a result of nerve root compression. He received workers’ compensation payments for a considerable period of time and the resulting preclusion times prevented him from qualifying for the DSP. In March 2007 Mr Al Ateyeh underwent a job capacity assessment (JCA) that resulted in a recommended impairment rating of 20 points under the Impairment Tables. The JCA determined that Mr Al Ateyeh was unable to bend, push, pull or lift heavy objects and could not sit, stand or drive for prolonged periods.  At that time he did report psychological symptoms and had already suffered a myocardial infarction, but these conditions were considered not to be fully treated, diagnosed and stabilised and thus did not attract an impairment rating.  However, as Mr Al Ateyeh’s rating for his spinal disorder was 20 points under the Impairment Tables, he qualified under the Social Security Act 1991 (the Act) as having a severe disability.

7. Following his back injury, Mr Al Ateyeh had intensive conservative treatment and was offered surgical intervention, which he declined.  He has continued to suffer from chronic back pain but it would appear that his radiculopathy has varied in intensity.   Subsequent investigation of Mr Al Ateyeh’s ischaemic heart disease in February 2010 led to the insertion of two coronary artery stents and at that time he was also diagnosed with left ventricular impairment, which was classified as a cardiomyopathy. 

8. In 2013 Mr Al Ateyeh underwent a further JCA; and based on his then symptoms and his more recent cardiac investigations, the recommended impairment rating for his spinal disorder was 5 points under the Impairment Tables and 20 points for his ischaemic heart disease.  Those 20 points were attracted by the reports that there was a severe functional impact on all physical exertion, ongoing chest pain, shortness of breath on exertion; and on the results of angiography.  Once more, Mr Al Ateyeh’s impairment rating placed him in the severe impairment category under the Impairment Tables.  Mr Al Ateyeh was assessed as capable of undertaking physically light duties on a part time basis. 

9. Since first receiving the DSP, Mr Al Ateyeh has spent 13 weeks overseas in Syria and Lebanon in 2005, 2007, 2008, 2010, 2012, 2013 and 2014. In 2013 and 2014 he was overseas for six weeks. His DSP was suspended when he did not return in 2014 within the stated period.  Mr Al Ateyeh was under the misapprehension that his portability was for 13 weeks per year. Apparently, he found his periods of residence overseas of great benefit psychologically. Ms Kaspari, Mr Al Ateyeh’s wife has received carer allowance intermittently for the care she provides to her husband. 

10. Between November 2013 and May 2014 Mr Al Ateyeh’s cardiac status has been reinvestigated.  He has undergone normal echocardiography, stress echocardiography and also review of his left ventriculogram (performed on 6 April 2010).  While he was originally stated to have poor left ventricular function/cardiomyopathy, his left ventricular function is now excellent and his left ventricular ejection fraction which measures this function is normal at 72 per cent.

11. Mr Al Ateyeh continues to take his cardiac medications which are part of the normal post stenting procedure and while it is normal for the anti-platelet drug Plavix to be prescribed for 3 to 12 months post-stenting, at the suggestion of his general practitioner, he continues to take Plavix five years after it was first prescribed.  Mr Al Ateyeh’s back pain is treated with Tramadol, Panadeine Forte and Endone. He takes sleeping tablets and Valium to assist with his sleep, anxiety and depression.

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Al Ateyeh

12. Mr Al Ateyeh confirmed his past history and that he remains severely restricted in his activities because of symptoms relating to his back.  He stated that he was aware that his stents were patent and that his left ventricular function was now normal. He agreed that his incapacity no longer related to his cardiac condition.

13. His localised chronic back pain is unaltered and in the past two and a quarter years he has noted a progressive deterioration in the distance that he can walk before developing numbness in his lower limbs and some muscular pain.  Mr Al Ateyeh was of the opinion that his incapacity is now all related to his back.  He has at last accepted that he has psychological problems and has been seeing a clinical psychologist every two months for more than a year. 

14. As a result of recent investigations instituted by Mr Khan, orthopaedic surgeon, Mr Al Ateyeh is awaiting an appointment at the neurosurgical clinic at St Vincent’s Hospital for further investigation if necessary, and a determination as to the appropriateness of surgery for his more recently diagnosed severe spinal canal stenosis, resulting in what is called spinal claudication.

    DOCUMENTARY EVIDENCE

15. The documentary evidence that is relevant has been summarised under BACKGROUND TO THE APPLICATION. However, the more recent medical reports require further consideration.  Dr Wassouff had provided a report dated 31 October 2013 which was, in terms of diagnosis, essentially identical to those provided in 2007, and indicated there had been no change in Mr Al Ateyeh’s underlying medical conditions. 

16. Apparently, Mr Al Ateyeh underwent further investigation while in Lebanon in 2014. On his return to Australia after his DSP had been suspended in September 2014, Dr Wassouff was informed of these investigations and referred Mr Al Ateyeh to Mr Khan.

17. Mr Khan diagnosed neurological claudication at 100 metres when he saw Mr Al Ateyeh in late 2014 and arranged for an MRI to be performed.  The MRI of the lumbar spine performed on 23 December 2014 revealed severe spinal canal stenosis at the L4/5 level.  This was due to a circumferential disc bulge and developmentally short vertebral pedicles.  As the only treatment for this condition is surgical decompression, Mr Khan referred Mr Al Ateyeh back to the Royal Melbourne Hospital where he had been originally treated in 1995. 

18. For reasons that are not clear, the Royal Melbourne Hospital stated they could not provide treatment or investigation. Mr Al Ateyeh is now awaiting an appointment in March 2016 at St Vincent’s Hospital.

19. Having previously refused any psychological counselling for his anxiety, Mr Al Ateyeh was referred to Dr Hooper, clinical psychologist, and was seen on 24 February 2015 for the first time.  Dr Hooper made a diagnosis of a degree of clinical depression and anxiety, due to chronic health issues.  She reported that Mr Al Ateyeh was totally free of these symptoms while he resided in Lebanon in the midst of his large extended family.  She therefore supported him having total portability of his DSP so that he could reside in Lebanon with his family. 

    RELEVANT LEGISLATION

20. Section 94 of the Act provides the criteria for eligibility for the DSP and in particular defines a severe impairment as:

    94 Qualification for disability support pension

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

21. In terms of the portability of the DSP, s 1217 of the Act states:

    1217  Meaning of maximum portability period, allowable absence and portability period

    Meaning of maximum portability period

    (1)The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

    (a)the payment (as specified in column 2 of the table); and

    (b)the class of persons to which the person belongs (as specified in column 3 of the table).

    ...

    (3)If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.

    Meaning of portability period if maximum portability period limited

    (4)If the person’s maximum portability period for the payment is not an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is the period:

    (a)beginning at the commencement of the period of absence; and

    (b)ending at the earlier of the following times:

    (i)     the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

    (ii)     the end of the period that is the person’s maximum portability period for the payment. ...

22. In relation to unlimited portability, s 1218AAA of the Act provides:

    1218AAAUnlimited portability period for disability support pension—severely impaired disability support pensioner

    (1)The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

    (a)the person is receiving disability support pension;

    (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

    While s 1218AAA(1) of the Act requires that the severe impairment prevents a person from performing any work, the Centrelink E-Reference Guide to the Act provides that:

    ‘No future work capacity’ portability provisions’

    A customer is allowed indefinite portability of Disability Support Pension if they  either have a severe impairment that is likely to remain for at least 5 years and having no (less than two hours per week) future work capacity independently of an ongoing program of support and this level is likely to remain for at least 5 years.

23. In Morton and Secretary, Department of Social Services [2014] AATA 949 the Tribunal found that all subsections of s 1218AAA(1) must be satisfied. In Mr Al Ateyeh’s case, subsection (b) is not satisfied and as a result subsections (c) and (d) cannot be satisfied. Mr Al Ateyeh has not met the requirements for the definition of a severe disability or impairment.

24. Mr Al Ateyeh’s diagnosis has changed, his symptoms are severe but of a different nature. And it may well be that when this is fully diagnosed, a neurosurgical opinion has been obtained and no surgical procedure is considered appropriate, he may well attract an impairment rating of 20 points under the Impairment Tables for his spinal canal stenosis with neurological claudication. 

25. The Tribunal affirms the decision as Mr Al Ateyeh does not qualify for unlimited portability of his DSP.

26.     I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

[sgd]........................................................................

Associate

Dated 21 March 2016

Date of hearing	4 February 2016
Applicant	In person
Advocate for the Respondent	Kellie Latta
Solicitors for the Respondent	Sparke Helmore