Asam Khdher and Secretary, Department of Social Services
[2015] AATA 74
•13 February 2015
[2015] AATA 74
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1887
Re
Asam Khdher
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member Date 13 February 2015 Place Sydney The decision under review is affirmed.
..................[sgd]..................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s impairment is of 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2, cl 4
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Professor R McCallum AO, Member
13 February 2015
BACKGROUND
The Applicant, Mr Asam Khdher, was born in Iraq and immigrated to Australia in 1988. He married in 1988 and he has two children. After working for several years, he established his own jewellery business in 1994. In other words, he was self employed as a jeweller, but in late 2012 he closed the business.
On 10 January 2013 Dr Daryl Li, general practitioner, completed a medical report in support of the Applicant’s forthcoming application for the Disability Support Pension (DSP). In this report, Dr Li stated that the Applicant had the conditions of “obesity and sleep apnoea”, “back pain” and “thyroiditis/hypertension”.
On 16 January 2013, when the Applicant was aged 59, he made a claim for DSP. On his claim form, the Applicant stated that he suffered from “obesity, sleep apnoea, back pain, thyroid dysfunction, severe knee osteoarthritis, bilateral inguinal hernia, hypertension, glaucoma”.
On 14 March 2013, the Applicant was informed his claim for DSP had been rejected. The Applicant sought review of this decision, and on 25 November 2013, an Authorised Review Officer (ARO) affirmed the decision under review.
The Applicant appealed to the Social Security Appeals Tribunal (SSAT) which heard this matter on 19 February 2014, and posted its decision on 28 February 2014. The SSAT affirmed the decision of the ARO, however, the SSAT’s reasons differed to those of the ARO.
I will examine the legislation and the criteria to qualify for DSP later in this decision. In summary, the ARO had assessed the Applicant’s impairment at 10 points under the Impairment Tables which are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and are used to assess the nature and extent of impairment of applicants for DSP. The ARO had assessed the Applicant’s impairment under the Impairment Tables as 5 points under Table 1 for sleep apnoea and 5 points under Table 3 for his knee condition.
The decision of the SSAT is now before this tribunal.
In its decision, the SSAT assessed the Applicant’s impairment as being 15 points under the Impairment Tables. The SSAT agreed with the assessment by the ARO of 5 points under Table 1 for the Applicant’s sleep apnoea. However, it further held that the Applicant’s knee condition warranted an assessment of 10 points under Table 3.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The qualification criteria for DSP are set forth in section 94 of the SS Act. In the Applicant’s circumstances, section 94(1) relevantly provides:
A person is qualified for disability support pension if:
(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;
...
Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that the Applicant has a continuing inability to work.
The 13 week qualifying period
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Clause 4(1) provides:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine the Applicant’s eligibility for DSP in the 13 week period commencing on the day on which the Applicant applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether the Applicant qualified for DSP between 16 January 2013 and 16 April 2013.
The date of hearing of this matter was 15 January 2015 which is one day short of two years since the Applicant made his claim on 16 January 2013. In these circumstances and given the material before me, I take this opportunity to refer to the relevant case law on the 13 week qualifying period.
In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with[in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant’s condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
Therefore, in determining whether the Applicant qualifies for DSP I am confined to examining the Applicant’s impairments during the thirteen week qualifying period.
THE CONCESSIONS BY THE RESPONDENT
In paragraphs 24 and 25 of the Respondent’s Statement of Facts and Contentions, it is stated that the Respondent accepts that:
24. ...[W]ithin the claim period, the Applicant suffered from the medical conditions of:
a. Osteoarthritis of the knees;
b. Sleep apnoea;
c. Morbid obesity;
d. Hypertension/thyroidism;
e. High cholesterol;
f. Back pain;
g. Right shoulder tendinopathy;
h. Hernias;
i. Glaucoma; and
j. Minor thalassaemia.
25. Therefore the Respondent accepts that subsection 94(1)(a) of the Act is satisfied.
In paragraph 26 it is conceded that the sleep apnoea has a rating of 5 points under Table 1, and the osteoarthritis of the knees has a rating of 5 points under Table 3. Therefore, the Respondent contends that the Applicant’s imapirments have a total rating of 10 impairment points.
Put another way, the Respondent accepts the decision of the ARO with respect to impairment points, but does not accept the finding of the SSAT that the Applicant’s impairments have a rating of 15 points under the Impairment Tables.
THE MATTERS BEFORE ME
The primary matter which I am required to decide is whether pursuant to section 94(1)(b) of the SS Act, the Applicant’s impairments may be assigned a rating of 20 points or more under the Impairment Tables. If I find in the Applicant’s favour, I am required to further decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of the Applicant are rated 20 points or more under the Impairment Tables. This requires a few words of explanation. As I have elaborated above, the Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. This Determination also contains the rules for the application of the Impairment tables.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
THE EVIDENCE OF THE APPLICANT
The Applicant gave sworn evidence at the hearing, and his was the only oral evidence before the Tribunal. I found the Applicant to be a truthful witness.
The Applicant gave evidence that on 11 July 2014, he was operated upon for his obesity. He described the operation as a “sleeve” operation where the stomach is cut and shortened. The Applicant said that from July 2014 to October 2014, he lost 32 to 33 kg, and since that time he has not put on any further weight. He said that he now weighs approximately 89 kg.
The Applicant gave evidence about his sleep apnoea. He said that it was diagnosed in 2012 by Dr David Freiberg. The Tribunal has before it a medical report from Dr Freiberg dated 12 July 2012. The Applicant explained before the SSAT, and more briefly before this Tribunal that he uses his continuous positive airway pressure (CPAP) machine and mask at night. Yet, the Applicant said he is still tired and affected by the sleep apnoea.
The Applicant gave evidence about the bilateral osteoarthritis in his left knee. When speaking of his difficulties in walking and bending etc, the Applicant said that for approximately 30 years he has been suffering chronic back pain. In other words, in discussing his mobility limitations, he combined the affects of his bilateral osteoarthritis in his left knee and his back pain.
The Applicant said that he can sit in a chair for about 45 minutes, although he has to move about in the chair and place his hand on his back from time to time. The Applicant stated that he has some difficulty in walking. He said that he travelled to the hearing by train, and walked from Town Hall railway station to the Tribunal. He sometimes walks a short distance to pick up the children from their nearby school, and usually they meet him half way between the school and their home.
The Applicant said that he can drive approximately 10 km to meet with friends and relations. He said that he has some difficulty with squatting.
The Applicant said that his wife does the shopping and pretty much all of the housework. However, he said that on occasions he has hung out his washing on the line.
The Applicant said that since he has lost approximately 32 kg, walking and bending are easier. He said that he can now put on his socks, and do up his shirt buttons and his belt.
The Applicant was asked about a report from Dr John O’Rourke dated 22 May 2013 which is before this Tribunal. The Applicant was asked why he did not take up Dr O’Rourke’s recommendation to relieve pain by having a CT guided right L4 perineural injection. The Applicant intimated he understood there may be some risks, but in any event he did not have the injection. The Applicant was also asked about a recommendation from Dr S Aran in a medical report dated 20 July 2013 which is before this Tribunal. Dr S Aran recommended both physiotherapy treatment and loss of weight. Physiotherapy would assist the management of back pain, while loss of weight would improve the Applicant’s mobility. The Applicant said that he had not undertaken physiotherapy for his back pain.
In relation to his mental condition, the Applicant agreed that he was still having treatment from a psychiatrist, Dr Samir Benjamin. The report of Dr Benjamin dated 4 April 2014 is before this Tribunal.
The Applicant was asked about his glaucoma. He said that he was able to read with glasses, and that it did not greatly impact on his life.
Finally, the Applicant said that he and his brother in law had travelled to China for about 10 days in 2013. He said they were looking for business ventures but he found no business opportunities for himself. The Applicant also gave evidence that he and his family travelled to Thailand for about 9 or 10 days for a holiday in October 2014. In Thailand, the Applicant said he spent most of his time sitting and watching his children.
THE MEDICAL EVIDENCE
I have examined the medical reports in the documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and also the later medical reports in the supplementary documents. They describe the Applicant’s conditions and medical treatments in some detail. Several of these medical reports have been referred to above when summarising the evidence of the Applicant.
CONSIDERATION
As I stated above, the Respondent concedes that the Applicant’s sleep apnoea was fully diagnosed, treated and stabilised at the date the Applicant claimed DSP, that is, on 16 January 2013. I note that in his report dated 10 January 2013, Dr Daryl Li states that the Applicant suffers from tiredness and fatigue. Having regard to the medical evidence and the evidence of the Applicant, I find that the Applicant’s sleep apnoea has a mild functional impact on activities requiring physical exertion or stamina. Therefore, I assess the impairment arising from his sleep apnoea under Table 1 of the Impairment Tables as warranting 5 points.
The Respondent accepts that the Applicant’s hypertension/thyroidism and high cholesterol were fully diagnosed, treated and stabilised at the date of the Applicant’s claim for DSP, 16 January 2013. I find that there is no functional impairment from these conditions which is separate from the Applicant’s sleep apnoea which I have already assessed at 5 points under Table 1 of the Impairment Tables. In other words, I find the impairment arising from these conditions not separately assessable under the Impairment Tables.
The Respondent concedes that the Applicant’s bilateral osteoarthritis warranted a assessment of 5 points under Table 3 of the Impairment Tables.
From the Applicant’s evidence, it is clear that since his “sleeve” operation on his stomach on 11 July 2014 and his loss of weight, it is now easier for the Applicant to walk and to bend. These changes occurred well beyond the claim period for DSP. I have relied on the medical reports around the date of the Applicant’s claim for DSP, 16 January 2013. I note the report by Dr S Aran dated 20 July 2013 who states that the Applicant has difficulty in walking and in bending. Therefore, I find that the impairment from the Applicant’s bilateral osteoarthritis of the left knee is assessable at 5 points under Table 3 of the Impairment Tables.
In his evidence about his chronic back pain, the Applicant stated that he had neither had a CT guided right L4 perineural injection as was recommended by Dr O’Rourke on 22 May 2013, nor undertaken physiotherapy as recommended by Dr Aran on 20 July 2013. As reasonable treatments were available to the Applicant, I find the back pain was not fully treated and stabilised during the claim period for DSP.
The Applicant did suffer from morbid obesity during the claim period. In his report dated 10 January 2013, Dr Daryl Li noted that the Applicant had a consultation with Dr K Durmush on 28 February 2012. Bariatric surgery was recommended. In his evidence, the Applicant said that he had surgery on 11 July 2014, and recounted his loss of weight. I therefore find that the morbid obesity was not treated and stabilised during the claim period.
The Applicant suffers from glaucoma. I have had regard to the medical evidence, and I have given weight to the Applicant’s evidence. He said that he can still read with glasses and that the glaucoma does not greatly effect his life. I find that his glaucoma was fully diagnosed, treated and stabilised during the claim period. I further find that the glaucoma has little functional impact, and accordingly it does not warrant a rating under the Impairment Tables.
In relation to the Applicant’s hereditary minor thalassaemia, I have examined the medical evidence. I agree with the SSAT, that the heriditary minor thalassaemia was fully diagnosed, treated and stabilised. I also agree with the SSAT that it has no impact on functioning and a nil rating applies.
In relation to the Applicant’s mental health, in evidence he said that he was still receiving treatment from Dr Benjamin, whose report dated 4 April 2014 is before this Tribunal. I find that as treatment was occurring in 2014, the mental condition was not fully treated and stabilised during the claim period for DSP.
From the medical evidence, it appears that the Applicant does suffer from tendinopathy in his right shoulder. In his evidence, the Applicant did not give detailed evidence about this condition. The Applicant did not mention tendenopithy on his DSP claim form dated 14 January 2013, and it was not noted by Dr Daryl Li in his medical report dated 10 January 2013. However, the Applicant did mention his tendinopathy of the right shoulder to the assessors who carried out the first job capacity assessment report dated 7 February 2013. Two medical reports do mention this condition, namely, a medical report from Dr J Dreverman dated 3 June 2013 which gave an ultrasound report, and a medical report from Dr S Aran dated 20 July 2013. In his report, Dr Aran stated that the current treatment was Panadol osteo and voltaren. Dr Aran recommended physiotherapy to treat this condition. I find that the Applicant’s tendinopathy of the right shoulder was not fully treated and stabilised during the claim period for DSP.
The Applicant has hernias, but in his evidence he did not give much detail about this condition. A medical certificate by Dr S Aran dated 10 January 2014 is before this Tribunal. Dr Aran noted that the hernias were likely to show improvement in the next two years. I find the hernias to be a temporary condition and thus any impairment caused by the condition is not assessable under the Impairment Tables.
I find that the Applicant’s impairments warrant an assessment of 10 points under the Impairment Tables. As the Applicant does not warrant an assessment of 20 points under the Impairment Tables, he was not qualified to receive DSP on 16 January 2013 or in the 13 weeks after this date. Accordingly, it is unnecessary for me to decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and its accompanying provisions.
DECISION
The decision under review is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...................[sgd].................................................
Associate
Dated 13 February 2015
Date of hearing 15 January 2015 Applicant In person Solicitor for the Respondent Mr S Misrachi, Department of Human Services
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