Al Najjar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 887

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 887

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2741

GENERAL ADMINISTRATIVE DIVISION		)
Re		WAIL AL NAJJAR

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms J Toohey, Senior Member

Date14 December 2011  

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Ms J Toohey

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – back condition – diabetes – depression – whether conditions fully treated and stabilised – back condition and depression not fully treated and stabilised – diabetes fully treated and stabilised but nil rating on impairment tables – decision under review affirmed.

LEGISLATION

Social Security Act 1991, s94
Social Security (Administration) Act 1991, ss 41, 42, sch 2 cl 4(1).

REASONS FOR DECISION

Ms J Toohey, Senior Member

Background

1.      On 8 March 2011, Mr Wail Al Najjar applied for a disability support pension (DSP).  Centrelink decided he did not qualify for the pension and the Social Security Appeals Tribunal (SSAT) affirmed that decision. 

2.      To qualify for DSP, Mr Al Najjar had to have a physical, intellectual or psychiatric impairment that attracted 20 or more points on the Impairment Tables in the Social Security Act 1991 (the Act), as well as a continuing inability to work: s 94.  He had to satisfy these criteria at the date he applied for the pension, or within 13 weeks of that date: Social Security (Administration) Act 1999, ss 41, 42, sch 2 cl 4 (1). 

3.      It is not in dispute that Mr Al Najjar suffers from lower back pain, depression and diabetes.  He suffers from other complaints as well, including asthma, but they are not part of this claim.

4.      I have to decide whether Mr Al Najjar qualified for DSP in the period 8 March 2011 to 7 June 2011.

The Impairment Tables

5.      The Impairment Tables are used to assess how severe are the effects of an impairment on a person’s ability to perform work-related tasks.  To be rated on the Tables, a condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”:  Introduction to Impairment Tables 

6.      In assessing whether a condition has been treated, it is relevant to consider what treatment or rehabilitation has occurred; whether the treatment is 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 two years.  If significant functional improvement is not expected, or if there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised: Introduction to Impairment Tables.

7.      To be fully stabilised means a condition is unlikely to significantly improve, without reasonable treatment, within the next two years.  It must be permanent, meaning that it will more likely than not persist for more than two years: Introduction to Impairment Tables.

Has Mr Al Najjar an impairment rating of 20 or more points

8.      The Tribunal has before it reports from Mr Al Najjar’s general practitioner, Dr Aiman Alsayed; psychiatrist, Professor Haider Maghzaji; psychologist, Mr Medhat Metry; orthopaedic surgeon Dr Vijay Maniam; and Dr Melvin Chew who undertook a CT scans of Mr Al Najjar’s lumber spine.  There is also a report of a job capacity assessment undertaken for Centrelink on 8 March 2011.

The lower back condition

9.      On 10 March 2011, Dr Alsayed reported to Centrelink that Mr Al Najjar suffered from lumbar spine discopathy which caused back pain radiating into his lower limbs and severe pain which affected his ability to stand, move, bend or lift objects; current treatment was pain killers and physiotherapy.  Dr Alsayed thought the effects of the condition were likely to persist for more than 24 months and the prognosis was uncertain.

10.     On 30 of November 2010, Dr Chew to reported to Dr Alsayed that he had performed a CT scan of Mr Al Najjar’s lumbosacral spine and “a CT-guided epidural as well as selective right L5 peroneal injection is recommended for further management”.

11.     On 11 March 2011, Dr Maniam reported to Dr Alsayed that he saw Mr Al Najjar on 20 January 2011 in relation to his lumbar spine pain.  Dr Maniam reported there was significant protrusion of a disc in his lumbar spine.  He noted that Mr Al Najjar had tried medication and physiotherapy and said he had “informed him he should submit to an injection for the right L5 nerve root to see if this will benefit him”. 

12.     It was evident at the Tribunal hearing that Mr Al Najjar was suffering back pain.  However, he seemed to be somewhat confused about his treatment.  He said that Dr Maniam had given him three options: to continue on medication; to have an injection, the effects of which might be temporary; or to undergo surgery, which would come with considerable risks.  Mr Al Najjar seemed to think that he had little option but to continue taking medication but said he was willing to try anything, including an injection or even surgery, if it would relieve his pain.

13.     In light of the medical reports, and Mr Al Najjar’s stated willingness to undergo the recommended treatment, I find that his back condition was not, at the relevant time, fully treated and stabilised.  It follows that it cannot be assigned a rating on the Impairment Tables.

Depression

14.     On 10 March 2011, Dr Alsayed reported to Centrelink that Mr Al Najjar suffered from major depression; he was depressed and anxious, and suffering sleep disturbance.  He was being treated with Endep 50 medication and counselling.

15.     On 2 November 2011, Mr Metry reported to Dr Alsayed that Mr Al Najjar appeared to be suffering from mixed anxiety and depression.  He stated Mr Al Najjar would benefit from receiving cognitive behavioural therapy; the treatment program would focus on various strategies; and he would keep Dr Alsayed informed about progress.

16.     Professor Maghajazi saw Mr Al Najjar in May 2011.  In a report dated 22 September 2011, he said he had diagnosed adjustment disorder with depression in May 2011 and prescribed amitriptyline.  When he saw Mr Al Najjar again in September 2011, “his mental state [had] not changed much”.

17.     Mr Al Najjar told the Tribunal that he continues to see Mr Metry for cognitive behaviour therapy.  It is not clear how long he will continue to have the treatment but what is relevant is that he has only just begun treatment and had not started it during the relevant period between March and June 2011.

18.     Given that Mr Al Najjar has only just commenced treatment for depression, I find that this condition was not fully treated and stabilised during the relevant period.  It follows that it cannot be assigned a rating on the Impairment Tables.

Diabetes

19.     It is not in dispute, and I am satisfied on the medical evidence, that Mr Al Najjar’s diabetes mellitus is fully treated and stabilised.  The question here is what rating it should be assigned on the Impairment Tables.

20.     In his report to Centrelink on 10 March 2011, Dr Alsayed nominated Mr Al Najjar’s diabetes as one of the “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”.  Under the heading “Impact on ability to function”, Dr Alsayed wrote “poorly controlled”.

21.     Table 19 (Endocrine Disorders) is the relevant Impairment Table for assessing diabetes.  In respect of diabetes, it states as follows:

RATING  CRITERIA

NILDiabetes mellitus … adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.        

TENDiabetes insipidus which is incompletely controlled or treated …

TWENTYDiabetes mellitus ... not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ disease.

22.     A medical certificate from Dr Alsayed to Centrelink on 27 May 2011 refers to Mr Al Najjar having “NIDDM Diabetes”.  I understand this to be a reference to non-insulin-dependent diabetes mellitus, and not to diabetes insipidus which is a separate condition.

23.     Although Dr Alsayed's report of 10 March 2011 refers to Mr Al Najjar's diabetes being “poorly controlled”, I am satisfied that, read in context, he nevertheless meant that it had minimal or limited impact on his ability to function. 

24.     I find that Mr Al Najjar’s diabetes attracts a Nil rating on the Table 19.  Ten points can only be assigned to the separate condition of diabetes insipidus (where it is incompletely controlled).  Diabetes mellitus can be assigned 20 points, but only where it satisfies the criterion and of not being satisfactorily controlled despite vigorous therapy.  There is no evidence that is the case here.

Osteoarthritis

25.     Mr Al Najjar’s osteoarthritis does not appear to have been assessed in the context of this claim.  Although Dr Alsayed referred to it in his report of the 10 March 2011 as a condition causing minimal or limited impact on Mr Al Najjar’s ability to function, it is either not dealt with in other medical reports or is referred to only in passing.  The only other reference appears to be in a report for the period 16 March to 16 June 2011, addressed “To whom it may concern”, in which Dr Alsayed refers to Mr Al Najjar suffering “left leg pain and neck stiffness most likely due to osteoarthritis”. 

26.     There is nothing to suggest that Mr Al Najjar’s osteoarthritis has any significant effect on his ability to function.  In any event, there is insufficient evidence before me to be satisfied that this condition is fully diagnosed, treated and stabilised.  It follows that cannot be assigned a rating on the Impairment Tables.

Conclusion

27.     At the relevant time, Mr Al Najjar’s back condition, depression and osteoarthritis were not fully treated and stabilised and so cannot be assigned a rating on the Impairment Tables.  His diabetes was fully treated and stabilised but rated Nil on the Impairment Tables. 

28.     As Mr Al Najjar’s impairments do not rate 20 points or more on the Impairment Tables, it is not necessary to decide whether he also has a continuing inability to work. 

29.     I affirm the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.

Signed: ..........[sgd]...........................................................................
             Associate

Date of Hearing  6 December 2011
Date of Decision  14 December 2011
Representative for the Applicant              Mr Al Najjar (self)
Representative for the Respondent          Centrelink Advocacy Service