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

[2015] AATA 883

Athansious and Secretary, Department of Social Services (Social services second review) [2015] AATA 883 (18 November 2015)

Division	General Division
File Number(s)	2015/1298
Re	Samer Athansious
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	18 November 2015
Place	Sydney

The decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 37, 39, 41, 42, Sch 2

CASES

Re Bobera and Secretary Department of Social Services [2012] AATA 922

Re Fanning and Secretary Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

14 December 2015

1. Mr Athansious is a 64 year old Egyptian national, who arrived in Australia in June 2013.  On 28 July 2014 Mr Athansious unsuccessfully submitted a formal application for disability support pension (“DSP”). 

2. Centrelink rejected Mr Athansious’ application - on the grounds that his nominated medical conditions did not qualify for, or did not in total achieve, the required impairment point rating.  Centrelink affirmed its rejection decision, in October 2014, despite having received further reports and various medical certificates. The Social Security Appeals Tribunal (“SSAT”) affirmed the rejection in its 25 February 2015 decision. 

3. Mr Athansious disputes the SSAT decision and seeks to have this Tribunal accept his original application.  The principal complaint Mr Athansious made in his 15 March 2015 review application was that the SSAT did not take into account the depressive condition which he said he had suffered since 2009.

   DSP ELIGIBILITY CRITERIA

4. The relevant eligibility criteria for DSP are set out in various places:- the Social Security Act 1991 (Cth) (“SSA 1991”);the Social Security (Administration) Act 1999 (Cth) (“SS(A) 1999”); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the 2011 Impairment Determination”); and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the 2011 Participation Determination”). 

5. The complexity of the eligibility criteria means that summarising them risks a degree of over simplification.  Subject to that risk, qualification for disability support pension can be described as depending on satisfaction that the pension claimant

   (a)had “permanent” conditions – in the sense that they were fully diagnosed, treated and stabilised, and likely to persist for more than two years: see the 2011 Impairment Determination subss 6(3)-(7);

   (b)has, as a result of the “permanent” medical conditions, functional impairments affecting their capacity to work and likely to persist for more than two years:  see the 2011 Impairment Determination s 3, subs 6(3) and (8);

   (c)is unable, as a result of those functional impairments themselves, within the next two years, either to do any (ordinarily remunerated) work for at least 15 hours per week, or to undertake a relevant training program: see SSA 1991 ss 94(1)(c); 94(2)(a), 94(2)(b) and 94(5);

   (d)has an impairment rating of at least 20 points (under the relevant Impairment Tables) for their functional work impairments:  see ss 26 and 94(1)(b) of the SSA 1991 and the 2011 Impairment Determination Pt 3;

   (e)either has a 20 point impairment rating under a single Table, or has completed a program of support, has actively participated in such a program for at least 18 months, before his October 2014 application, or their impairment made their continued participation unlikely to improve their employment capacity:  see SSA 1991 ss 94(1)(c); 94(2)(aa), 94(3B), 94(3C) and 94(5) and the 2011 Participation Determination.

   RULES FOR DETERMINING AN IMPAIRMENT RATING

6. The 2011 Impairment Determination (referred to in paragraph 4 above) with its prescriptive rules and Tables, governs the assessment of any rating for any impairments resulting from Mr Athansious’ medical conditions. Significant aspects of the 2011 Impairment Determination include the following propositions:

   (a)a rating can only be applied to levels of functional impairment, rather than to the diagnosed condition responsible for the impairment:  see the 2011 Impairment Determination subss 5(2)(d), 6(8) and  11(5);

   (b)an impairment point rating can only be assigned where (i) conditions are fully diagnosed, treated and stabilised, (ii) those conditions cause functional impairment, and (iii) the impairment is likely to persist for more than two years: see the 2011 Impairment Determination subss 6(1)-6(4);

   (c)diagnosed and relevantly treated chronic pain may be characterised as a relevant condition, but it must be rated according to its impact on the person’s functional abilities:  see the 2011 Impairment Determination subs 6(9);

   (d)past and planned reasonable treatment, corroborated diagnosis, and the likelihood of significant functional improvement, are relevant to the characterisation of a condition as “fully diagnosed, treated and stabilised”:  see the 2011 Impairment Determination subss 6(4)-(7);

   (e)the Tables provide descriptions of various levels of functional impact (indicated by italicised type). Those levels are accompanied by particular examples of activities, abilities, symptoms or limitations (typically numerically itemised and indicated by ordinary font text). The functional impact of an impairment is to be assessed “by reference to” the listed examples: see the 2011 Impairment Determination subs 5(2)-5(3);

   (f)a person’s impairment rating must be assessed on the basis of what the person can, or could, do normally or habitually, not on the basis of that they choose to do, or on what they can only do rarely: see the 2011 Impairment Determination subs 6(1) and 11(3);

   (g)the functional assessment and rating cannot take into account either uncorroborated symptoms or non-medical factors:  see the 2011 Impairment Determination subs 8;

   (h)a functional impairment must be assessed by applying the Table specific to the particular impairment, and ratings for the same impairment (even where contributed to by several conditions) cannot be assigned under multiple Tables: see the 2011 Impairment Determination subss 10(2) - 10(6);

   (i)in choosing between levels of impairment, the relative descriptors have to be compared, only the specified rating values (and no intermediate values) can be assigned, and the higher rating can only be assigned if all of its descriptors are satisfied:  see the 2011 Impairment Determination subss 11(1)(b), 11(1)(c) and 11(2).

   THE “START DATE” FOR BENEFIT OR PENSION PAYMENTS

7. There is an important additional condition that applies to most social security payments.  It is both permissive and limited in time.  In so far as it is permissive, the condition entitles qualified claimants to be paid from the date they made their application, even if it is only later that they satisfy the relevant eligibility criteria.  (In this respect the additional condition operates in favour of successful claimants.)  In so far as the condition is limited it requires a claimant to satisfy the eligibility requirements within 13 weeks of their application.  In this respect the condition can require a claim to be rejected, where later events and information are sought to be relied on to establish the claimant’s qualification.  The existence and effect of this timing condition are often not fully appreciated - either by claimants or the health professionals on whose diagnoses and opinions they typically rely in pursuing their claims.  The condition therefore can, and not infrequently does, apply to require the rejection of claims by persons whose current functional impairments might otherwise have satisfied the eligibility requirements.

8. The additional condition applies because of the “start date” provisions in the SS(A) 1999.  The basic proposition is that the Secretary must determine a claim within 13 weeks, otherwise it is (generally) taken to have been refused:  SS(A) 1999 ss 39(1)&(3).  The second proposition is that the Secretary must grant a social security benefit claim if (i) the person satisfies the relevant qualification requirements and, (ii) the social security payment is “payable”:  SS(A) 1999 s 37(1).  But a social security payment becomes “payable” only on the successful claimant’s “start date in relation to the social security payment”:  SS(A) 1999 s 41.  That “start date” depends on when the person satisfies the qualification requirements.  The start date will be the date of their claim if they satisfied those qualification requirements either (i) when they made their claim, or (ii) within 13 weeks after their claim:  see SS(A) 1999 s 42 and Sch 2 cl 4(1).

9. The practical effect of these SS(A) 1999 provisions is that a social security payment cannot establish their entitlement to, and the Secretary cannot grant, a social security payment claim, unless the person satisfies the relevant qualification requirements within 13 weeks of the date they made their claim.

   THE IRRELEVANCE OF “LATE” (POST 13 WEEK) QUALIFICATION

10. The “13 week” qualification period condition governing social security payment entitlement is inflexible.  There is no discretion to expand the qualification period.  The eligibility criteria (see paragraph 5 above) and the rules for determining an impairment rating (see paragraph 6 above) must be applied to the circumstances that existed within the 13 week period from the date of the person’s application.

11. Circumstance, whether diagnoses, prognoses, treatments, symptoms, or impairments, that are made, or occur, more than 13 weeks after the date of a person’s claim cannot provide a basis for qualification.  Indeed their relevance will typically be indirect, and limited to the extent they inform evaluation of the circumstances existing during the 13 week qualification period:  see ReBobera and Secretary Department of Social Services [2012] AATA 922 at [34]; ReFanning and Secretary Department of Social Services [2014] AATA 447 at [33].

12. The specific impact of these provisions in the present matter is that Mr Athansious’ DSP entitlement depends on satisfaction that he satisfied the relevant qualification requirements by no later than 27 October 2014 (ie within 13 weeks of his 28 July 2014 application).

    MR ATHANSIOUS’ MEDICAL CONDITIONS

13. Mr Athansious’ formal application, and the supporting  24 July 2014 medical report from his general practitioner (Dr El Wahsh), described his relevant medical conditions as (i) multilevel lower back disc prolapse / lumbar discopathy (ii) ischaemic heart disease and hypertension.  Mr Athansious said that this atherosclerotic condition affected his memory, and his spinal condition prevented him from leaning forward, and lifting or carrying objects.  It also restricted his ability to stand or sit for long periods.  He said he expected to undergo surgery for spinal disc excision, and internal fixation.  This surgery had been postponed to give him a chance to undertake conservative medical treatment (bed rest and physiotherapy.)

14. Dr El Wahsh’s description of the impact of Mr Athansious’ spinal condition was that it made difficult for him to stand for more than 15 minutes, walk more than 20 minutes and sit for more than 15 minutes.  Dr El Wahsh’s description of the functional impact of Mr Athansious’ heart disease was that it led to a shortness of breath during walking.  The doctor expected that the functional impact of each of these conditions was likely to persist for more than two years and that Mr Athansious’ prognosis was uncertain.

    BACK PAIN

15. Prior to lodging his disability support pension claim Mr Athansious had consulted a neurologist, Dr Dowla.  In June 2014 he reported to Dr Dowla a 20 year history of lower back pain radiating to both buttocks, and weakness in his left big toe.  Dr Dowla at first suggested surgical intervention, but Mr Athansious (who was himself an orthopaedic surgeon in Egypt) was reluctant to accept that recommendation.  Consequently Dr Dowla referred him to a pain management clinician.  Thereafter he was prescribed a range of anti-inflammatory and analgesic medication (Voltaren, Lyrica and morphine). 

16. Mr Athansious was apprehensive about the risk of addiction associated with some this medication, and also disliked the listlessness he attributed to Lyrica (in particular).  He made his own decisions about the use of the medication that had been prescribed.  He sometimes substituted (or added) medication he obtained from Egypt, and with which he was more familiar (because of his previous occupation and practice).

17. Mr Athansious obtained at least some of his preferred medication during a visit to Cairo in late 2014 (from 25 October to 25 December 2014).  That visit occurred because his elderly mother had been hospitalised.  During the visit he lived at his mother’s house in Heliopolis, about 10km from his mother’s hospital bed.  He would travel by car to the hospital most days.  Typically he would stay for about two  hours, sitting by the side of his mother’s bed and conversing with his mother, sister and hospital staff.

18. Before he went to Egypt Mr Athansious already had a degree of physical impairment because of his spinal condition.  Apart from the effects he and Dr El Wahsh had described in his July 2014 claim documents, he had begun to use a stick to pick up objects, and a long handled shoe horn to help him put on shoes.  He also had difficulty cutting his toe nails, and would typically ask his wife to help with (or perform) that task.

    Cervical Spine

19. During his time in Egypt in late 2014 Mr Athansious began to use a neck collar, which he wore occasionally.  This development is likely related to an April 2015 diagnosis of degenerative changes in his cervical spine - a diagnosis reported following X-Ray and CT imaging carried out on 14 and 16 April 2015.  The development of cervical spine symptoms has been particularly significant for Mr Athansious.  He currently regards the difficulties he now has with his neck as more serious than the impact of the previously diagnosed discopathy affecting his lumbosacral spine.

20. There was no reference to any cervical spine functional impairment, or related diagnosis, in either Mr Athansious’ July 2014 application or Dr El Wahsh’s July 2014 medical report.  Nor was there any such reference in Dr El Wahsh’s later report in September 2014.  Indeed that report continued to name lumbar discopathy and ischaemic heart disease as the two conditions, and the only two conditions, that had a significant functional impact.   In addition Dr Dowla’s September 2014 report was to the same effect.  It is only in Dr Dowla’s next report (in April 2015) that he first refers to Mr Athansious’ complaints of neck pain.  And that references in the context of history of having experienced neck pain “for the last 2 months”.

21. Given Mr Athansious’ evidence of having started to use a neck collar occasionally during his visit to Egypt in late2014 , it may be that his history of neck pain is somewhat longer than the two month period noted in Dr Dowla’s April 2015 report.  However, it is impossible to be satisfied that Mr Athansious’ cervical neck condition became significantly symptomatic at any time before 27 October 2014.  Conversely, there is a reasonable basis to conclude that it did not become significantly symptomatic, and give rise to any impairment, before about February 2015. It was certainly not diagnosed until the time of the imaging studies in April 2015.

22. In the circumstances outlined in two preceding paragraphs, Mr Athansious’ cervical spine condition cannot be relied upon to establish his qualification for DSP in relation to the application he made in July 2014.  This is because his cervical spine condition cannot be regarded as relevantly “permanent” (in the sense explained in paragraph 5 above) within the relevant 13 week qualification period.  (That period expired on 27 October 2014.)  Because the condition cannot be regarded as relevantly “permanent”, it cannot be allocated an impairment score rating:  see paragraph 6 above.

    Lumbosacral Spine

23. The Secretary contended in the present review proceedings that Mr Athansious’ lumbosacral spinal condition was also not relevantly “permanent”, and therefore not eligible for an impairment rating.  The Secretary’s contention is contrary to the approach of the psychologist and occupational therapist who conducted a Job Capacity Assessment of Mr Athansious in October 2014.  Those assessors considered that his lumbosacral spinal condition was unlikely to be significantly improved by any of the then proposed treatments, should be regarded as fully diagnosed, treated and stabilised, and merited a 10 point impairment rating.  The SSAT was of a similar opinion, in relation to both the “permanent” nature of the condition, and its effect in giving rise to “moderate” functional impairment.  The SSAT also considered that Mr Athansious’ spinal condition merited classification as giving rise to moderate functional impairment and an impairment rating of 10 points under the relevant impairment table:  Table 4 - Spinal Function.  A further Job Capacity Assessment in July 2015, by an occupational therapist, also came to the conclusion that Mr Athansious’ lumbosacral spinal condition was relevantly “permanent” and merited a 10 point impairment rating.

24. The basis for the Secretary’s contention that Mr Athansious’ lumbosacral spinal condition is not relevantly “permanent” is that, although fully diagnosed, it was not “fully treated and stabilised” within the 13 week qualification period.  More specifically, the Secretary relied on

    (a)Dr Dowla’s recommendation (in his June 2014 report) for surgical intervention and physiotherapy, and the expectation that both would be of benefit to Mr Athansious.

    (b)the indication in Mr Athansious’ claim that he was anticipating surgical discectomy and fixation, but preferred to pursue conservative treatment in the short term and defer any surgical intervention

    (c)the July 2014 recommendations of Drs Needham and Dr El Wahsh that Mr Athansious proceed with physiotherapy and hydrotherapy

    (d)The prognoses offered by both Drs El Wahsh and Dowla (in their respective July and December 2014 reports) that Mr Athansious’ spinal condition was either uncertain or expected to fluctuate over the ensuing two years.

25. The Secretary’s contention that Mr Athansious had been recommended to pursue surgical intervention, and was likely to benefit from it is, in my view, a very doubtful proposition.  Dr Dowla expressed his initial view about the likely benefit of surgical intervention before he had seen any MRI imaging.  Once that imaging became available it revealed multilevel degenerative change, and was the subject of “long discussion about surgical treatment” between Dr Dowla and Mr Athansious in the course of a consultation on 7 July 2014.  Following that discussion, Dr Dowla in fact referred Mr Athansious to a pain physician and recommended that he start physiotherapy.  Mr Athansious saw the pain physician on 15 July 2014.  The physician, after uncritically noting Mr Athansious’ disinclination for surgical intervention, recommended physiotherapy and hydrotherapy.  Dr El Wahsh's 24 July 2014 report refrained, in my view pointedly, from describing surgical intervention as a contemplated future treatment. 

1. The proposition that Mr Athansious indicated in his July 2014 claim that he expected to have surgery for his lumbosacral spinal condition is, in my view, an inaccurate description of his state of mind.  It is very clear from the contents of the earlier reports of both Dr Dowla and the pain physician (Dr Needham) that Mr Athansious was very disinclined to have any surgical intervention.  Indeed the detail in his July 2014 claim form really (and explicitly) notes Dr Dowla’s apparent preference for surgical intervention, rather than his own subjective intention.  Nor do I think it appropriate to attach any significance to the indication in Dr Dowla’s September 2014 report that “surgery” was a proposed treatment for Mr Athansious’ spinal condition at that time.  There is nothing to indicate that Dr Dowla saw Mr Athansious after his July 2014 consultation.  And it appears from Dr Dowla’s September 2015 report that it was only some time after the July 2014 consultation that he became aware of Mr Athansious’ preference to pursue non-surgical intervention.  Furthermore I regard it as a somewhat doctrinaire contention on the part of the Secretary to suggest that a proposed surgical intervention was both a standard treatment in Mr Athansious’ circumstances and that it can safely be concluded was an intervention likely to lead to significant functional improvement.  That contention is unpersuasive in view of the extent of the multilevel degenerative disease revealed in the June 2014 MRI report, and the subsequent long discussion between Dr Dowla (a neurologist) and Mr Athansious (himself a very experienced former orthopaedic surgeon) about surgical intervention.  It is also unpersuasive in the light of the fact that Dr Dowla’s September 2015 report failed to respond to specific questions about the nature of the surgery he proposed and his recommendation in relation to that proposal.  The plain facts of the matter are, as it seems to me, that Mr Athansious had a long history of lumbosacral back pain.  It was that condition which had forced him to give up surgery in Egypt.  The MRI report of June 2014 confirmed the significant extent of the degenerative changes affecting his lumbosacral spine.  In those circumstances I regard as correct the assessment made in the August 2014 Job Capacity Assessment report.  Mr Athansious’ lumbosacral spinal condition, and the impairment it then involved, were unlikely to improve significantly from the pursuit of any further treatment.  His condition should, therefore be regarded as relevantly “permanent” at that time, and entitled to an impairment rating.

2. The Secretary’s alternative contention was that Mr Athansious’ lumbosacral spinal condition was only “moderate” and only gave rise to a 10 point rating under the relevant Impairment Table - Table 4 - Spinal Function.  This alternative contention reflects the consistent findings and assessments made in (i) the Job Capacity Assessment report in August 2014, (ii) Centrelink’s October 2014 internal review decision, (iii) the SSAT’s 25 February 2015 reasons for decision, and (iv) a Job Capacity Assessment report in July 2015. . Even more significant were Dr Dowla’s handwritten responses in September 2015 to questions about the extent of Mr Athansious’ functional impairment, attributable to his lumbosacral spinal condition, during the 13 week qualification period.  Those questions specifically addressed the substance of the four examples in the “moderate functional impact” descriptors in Table 4 - Spinal Function.  Dr Dowla’s responses to those questions confirm unequivocally that Mr Athansious’ impairments at that time merited classification only as “moderate”. 

3. In the totality of the circumstances I accept the consistently stated opinions and specific findings described in the preceding paragraph.  Under the inflexible scoring provided for in the Impairment Tables, Mr Athansious’ spinal condition can, therefore, only be allocated a 10 point rating.

   ISCHAEMIC HEART DISEASE

4. Although Mr Athansious has a long history of cardiac disease, including coronary angioplasty in Egypt in 2000, there is no significant evidence that it gave rise to any significant functional impairment in the qualification period relevant to the July 2014 application.  In every assessment, whether by the Job Capacity Assessors in August 2014 and July 2015, Centrelink in its October 2014 internal review decision, or the SSAT in its 25 February 2015  reasons for decision, Mr Athansious’  ischaemic heart disease has consistently between regarded as meriting an impairment rating of “mild” and a corresponding rating of five points under the Impairment Tables.  That assessment is consistent with the functional impacts described by Drs El Wahsh and Dowla in their respective July and September 2014 reports.  It is also consistent with the July 2015 opinion of Mr Athansious’ treating cardiologist. 

5. There is, in my opinion, no factual basis to characterise Mr Athansious’ ischaemic heart disease as giving rise to anything more than mild functional impairment.  Consequently it merits an impairment score of only 5 points.

   DEPRESSION

6. As I indicated in paragraph 3 above, Mr Athansious complains that the SSAT decision did not take into account his history of depression, and refused to allocate it any impairment rating score.  Mr Athansious says he has a long history of depression, dating back to 2009. 

7. There is some support for Mr Athansious’ claims in the history recited in reports by a mental health social worker in September 2014, and by a consultant psychiatrist in January 2015.  The mental health worker described Mr Athansious as having a “long history or anxiety problems since he could remember from his High School days” and “symptoms of depression after he migrated to Australia”.  In a formal report submitted in support of Mr Athansious’ DSP application, the mental health counsellor described Mr Athansious as having an “adjustment disorder with anxiety and depressed mood” and “major anxiety disorder”.  She reported that those were the only conditions that had any significant impact on his functional capacity.  But they adversely affected his endurance, movement, neurological functioning, behaviour, planning and interpersonal relationships.  And, contrary to every other medical report, the mental health worker opined that Mr Athansious’ lumbosacral spinal condition, and his ischaemic heart disease gave rise to “minimal or limited impact” on his functional abilities and were well controlled. 

8. The January 2015 psychiatric report was a single page document that referred to a consultation on 22 January 2015.  It recorded a history of depression since 2000 with increasing symptoms of anxiety and panic attacks.  Mr Athansious consulted a psychiatrist in Egypt between 2009 and 2013 and was variously prescribed antidepressant medications, including as recently as six months earlier - suggesting a date in July 2014.

9. The January 2015 psychiatric report contained a short paragraph describing Mr Athansious’ presenting mental state.  The description was to the effect that he was appropriately dressed and had an appropriate and reactive affect.  Although pre-occupied by his deteriorating physical health, his cognitive functions were clinically unremarkable and there was no suggestion of psychotic or obsessive phenomena.  The psychiatrist concluded that Mr Athansious’ presentation was consistent with a diagnosis of “Chronic Major Depressive Disorder”.  The psychiatrist reported that he counselled Mr Athansious and encouraged him to continue with his antidepressant medication.  He opined that his prognosis remained “guarded” - given “the chronicity of his depression, his co-morbid physical illness, and his family and social circumstances”.

10. The SSAT accepted that Mr Athansious should be accepted as having a “fully diagnosed” condition of “major depressive disorder” - on the basis that the psychiatrist’s January 2015 diagnosis was “consistent with the condition having been present at the time of the claim”.  The Secretary accepts that position.  However the SSAT concluded that the psychiatrist’s guarded prognosis was based on a combination of factors, including Mr Athansious’ physical ill health and his concern about his mother’s ill health.  In those circumstances, the SSAT concluded that Mr Athansious’ depressive disorder could not be regarded as fully treated and stabilised.  As a result, having regard to the rules summarised in paragraph 6 above, the condition was not eligible to receive an impairment rating.  The Secretary supported the SSAT’s approach in the review proceedings.  In particular, the Secretary pointed to the contents of the mental health workers September 2014 report, and, in particular, (i) her suggestions that Mr Athansious’ then current presentation was affected by stresses association with adjusting to his new circumstances in Australia and (ii) her recommendations that he “learn effective coping strategies to cope with the current situation” and make a visit back to Egypt to alleviate his feelings of homesickness and guilt.  Perhaps it is even more significant that the mental health counsellor’s report indicated that Mr Athansious was receiving no treatment, other than a small nightly antidepressant.  The report indicated that Mr Athansious was highly motivated to obtain professional help “to come out of his predicaments” and was willing to undertake weekly counselling / therapy sessions.

11. Mr Athansious’ depressive disorder cannot be regarded as relevantly “permanent”, for the purpose of the rules summarised in paragraph 6 above.  That inability arises from the contents of the mental health counsellor’s report, having regard to the treatment recommendations it contains, and its positive acknowledgement of Mr Athansious’ motivation to pursue effective treatment. 

12. Even if I were to accept Mr Athansious’ depressive condition as relevantly “permanent” and eligible for an impairment rating, I would not regard the condition as giving rise to functional impacts that merit anything other than a zero point rating.  Neither of the July 2014 and September 2014 reports of Drs El Wahsh and Dr Dowla provide any support for the view that Mr Athansious’ depressive disorder gave rise to any material functional impairment.  Moreover there are fundamental difficulties in accepting any views the mental health worker expressed in the “Medical Report” she submitted in support of Mr Athansious’ disability support claim - having regard to her characterisation of his lumbosacral spinal condition, and his ischaemic heart disease as having minimal or limited impact on his functional abilities.  Even more importantly, in her narrative report of 25 September 2014 the mental health worker sets out a list of 29 matters under the heading of Mr Athansious’ “Main Concerns at Assessment”.  None of those matters provides a factual basis for attracting the description of “mild functional impairment” in the relevant Impairment Table - Table 5 - Mental Health Function.

13. Later in her narrative report of 25 September 2015 the mental health worker includes various descriptions under a further heading “Presenting Problems”.  One of those descriptions relates to “agitation” and refers to Mr Athansious reporting feelings of anger and agitation with this wife and children, and their tendency to avoid communication with him to reduce the chance of conflict.  This report might he regarded as evidencing behaviour that corresponds with one example in the “mild functional impact” descriptor in Table 5.  But it is the only example.  And in relation to the other examples for that descriptor, there is no satisfactory evidence that Mr Athansious had any impairment difficulty attributable to his depressive disorder.  On the contrary, the fact that he travelled independently to Egypt, and remained there visiting family, from October to December 2014, is rather inconsistent with his having any significant impairment (attributable to his depressive condition) with any of the other matters described in the other five examples in the Table. 

    CONCLUSION ON IMPAIRMENT RATING

14. Mr Athansious is entitled to a total impairment rating of 15 points - in relation to his lumbosacral spine condition and his ischaemic heart condition.  He is not entitled to any impairment rating in relation to either his depressive condition or his cervical spine condition - having regard to the rules summarised in paragraph 6 above, and the 13 week qualification period condition (referred to in paragraphs 7 to 9 above.)

15. Because Mr Athansious’ does not have functional impairments that merit a 20 point rating under the Impairment Tables, he was not qualified to be granted a disability support pension in relation to his July 2014 application. 

    DECISION

16. Consequently, the decision under review must be affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 18 November 2015

Date(s) of hearing	15 October 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services