Azzopardi and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1487

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1487

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/88

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANGELO AZZOPARDI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date29 June 2007

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - eligibility - resident of Malta - claimed disabilities - depression - paranoia - impairment rating - inability to work - Social Security Appeals Tribunal (SSAT).

Social Security Act 1991 and Amendments - s94(1)(a),(b) and (c)

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999 - Schedule 6 - Agreement between Australia and Malta about Social Security

Guide to Tables for Assessment of Work-related Impairment for Disability Support Pension (Schedule 1B of the Act).

Authorities

Re Sayan and SDFCS (2001) AATA 950

Re Reissis and SDFCS (2005) AATA 702

Re Bantick and SDFCS (2003) AATA 472

Re Ellul and SDFCS (2006) AATA 488

Re Giddings and SDFCS (2003) AATA 893

SDSS v Pusnjak (1999) 56 ALD 444

Re McDonald and SDSS (1984) 6 ALD 6   

REASONS FOR DECISION

29 June 2007 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      The decision under review is a decision made by a Centrelink officer on 20 September 2005, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 6 April 2006, to reject Mr Angelo Azzopardi’s claim for disability support pension (DSP).

Issues

2. Does the applicant satisfy s94(1)(b) of the Social Security Act 1991 (“the Act”); that is, does his impairments attract a rating of 20 points or more under the Impairment Tables.

3. Does the applicant satisfy s94(1)(c) of the Act; that is, does he have a continuing inability to work?

Standard of Proof

4.      The standard of proof is one the balance of probabilities and to the reasonable satisfaction of the Tribunal.

5.      As this is an international case, the Social Security (International Agreements) Act 1999, especially Schedule 6: An Agreement between Australia and Malta about Social Security, also applies.

Background

6. The applicant, Angelo Azzopardi, lives in Malta and on 2 December 2004 lodged a claim for Australian disability support pension with the Maltese authorities, on the basis of prior residential period in Australia. Section 29 of the Social Security (Administration) Act 1999 provides that in such a case the applicant is to be treated as an Australian citizen subject to Australian law for social security purposes.

7.      Mr Azzopardi’s claimed disabilities are those of depression and paranoia.

8. In order to qualify for disability support pension he must meet criteria set out in s94(1)(a), (b) and (c) of the Act, namely have a disability rating of 20 points or more under the Impairment Tables and demonstrate an ongoing inability to work.

9.      There is a further provision that his condition is to be assessed as at the date of application and no later than 13 weeks after that date i.e. he must demonstrate that his disabilities have been identified, treated and stabilised within that timeframe. (See Division 3 and Part 2 Clause 4 of the Administration Act.

10. This provision has been tested in the Federal Court and in various AAT determinations, see for example Sayan and SDFCS (2001) AATA 950, Giddings and SDFCS (2003) AATA 893, also Ellul and SDEWR (2006) AATA 488.

11. The respondent does not dispute that Mr Azzopardi has disabilities which meet the requirements of s94(1)(a) of the Act, but the issue is whether he meets provisions of s94(1)(b) in respect of disability rating and s94(1)(c) concerning ongoing inability to work. In both situations the case must be fully documented.

Medical Evidence

12.     Mr Azzopardi lodged a claim for Australian DSP on 2 December 2004, with a Centrelink Work Ability Information Form he had been assisted to complete by his GP, Dr John Dingli.    The form indicated Mr Azzopardi had suffered from depression since June 2004, after having been working full-time as a fisherman.   He indicated the applicant’s depression and paranoia was severe and stated it would be two years or more before he could return to full-time work or study.

13.     On 27 April 2005 Dr Anton Grech, a psychologist, identified the situation as one of severe chronic depressive disorder, with obsessional symptoms and paranoid overvalued ideas, including thinking people were saying things against him.   Mr Azzopardi isolated himself socially and stayed indoors.   The doctor stated that several therapeutic measures had proven unsuccessful and the medication had to be limited, because Mr Azzopardi had a severe hiatus hernia.   The doctor considered him unfit for work and he should be “boarded out” from employment.   A Maltese Medical Panel report dated 5 May 2005 confirmed this diagnosis noting that the applicant’s condition was not currently controlled and work capacity was only in the range 0 - 7 hours per week.

14.     A further report by Dr John Dingli dated 9 July 2005 noted that Mr Azzopardi’s condition had not improved despite medication and the applicant remained unfit for work.   At that time Mr Azzopardi had no problem standing, walking, lifting, carrying, bending and hearing, but sometimes had problems driving a car, using public transport, interacting with others, managing personal affairs, remembering things and sleeping.   When asked why he could not enrol in a rehabilitation or training program, Mr Azzopardi responded that medication was not aiding him and he could no longer work.   He had left employment in January 2004.

15.     On 9 September 2005 Dr Mieka Tabart from Health Services Australia completed an assessment based on the various medical and psychological reports about Mr Azzopardi’s depressive condition, noting that varying medication regimes did not appear to have improved his situation.     His hiatus hernia limited some treatment, but she considered he could possibly benefit from alternative psychotropic medication, along with regular and sustained psychological intervention, preferably in the context of vocational rehabilitation.     Dr Tabart considered that given the above possibilities the applicant’s condition must be regarded as temporary rather than stabilised and permanent.   She considered that with suitable rehabilitation Mr Azzopardi might be capable of working 30 plus hours per week within 6 to 24 months.   However, it must be recognised that this judgment was based on documentation, rather than any direct interpersonal diagnosis.

16.     On 20 September 2005, a Centrelink officer decided to reject Mr Azzopardi’s application for DSP, considering the applicant’s disabilities were not fully diagnosed, stabilised and treated within the relevant claim period 2 December 2004 and 13 weeks later (mid March 2005).    This decision was affirmed by an Authorised Review Officer (ARO) on 2 November 2005 and subsequently by the Social Security Appeals Tribunal (SSAT) on 6 April 2006.   The SSAT considered Mr Azzopardi was not in a position to have his psychiatric condition fully treated, due to the hiatus hernia, thus a rating was not possible under the Impairment Tables where at least 20 Points were required to qualify for DSP.

17.     On 14 June 2006 Mr Azzopardi submitted an application for review by the Administrative Appeals Tribunal (AAT).

The AAT Hearing

18.     A telephone hearing between Australia and Malta was conducted on 20 May 2007.   Mr Azzopardi was not called as a witness, but was represented by Dr Georgine Brech as counsel; the respondent was represented by Mr Brian Sparkes.

19.     In opening submissions for the applicant Dr Georgine Grech said Mr Azzopardi’s disability appeared perhaps around year 2000, but by 2004 had become much more severe.    His depression made him unable to cope with life generally, creating a negative outlook and belief others were against him, various medical regimes had been prescribed, but failed in part due to a hiatus hernia and heart problem which limited what could be taken.   He was unfit for work and his disabilities appeared permanent.

20.     Dr Xureb (John) Dingli was then affirmed, indicating many years experience in general practice, but currently retraining in family medicine, as the Maltese medical authorities required some flexibility in deploying expertise in a small island nation.   He considered Mr Azzopardi’s psychiatric condition difficult to treat, as the applicant lived on the island of Gonzo, rather than Malta itself and its capital Valleta.   Both he and psychologists had tried various medical regimes in consultation, but Mr Azzopardi had failed to respond and there was not the range of specialists available to deal with difficult cases such as the applicant.    In any case Mr Azzopardi was not in a condition to travel far for treatment.

21.     Dr Mieka Tabart of Health Services Australia was affirmed and stated that in her view not all psychological interventions had been attempted and there was, perhaps, too much reliance on medical regimes.   She admitted she had not known Mr Azzopardi had suffered minor heart problems, but this might explain a reluctance to try to relieve the hiatus hernia which limited some treatment.    Dr Grech said Dr Tabart’s evidence should be given little weight, as she had never met or personally diagnosed Mr Azzopardi’s situation.

22. Mr Sparkes said he found it difficult to accept the proposition that Mr Azzopardi could not obtain psychiatric treatment, as the island of Gonzo was not far from Malta itself and there were regular buses and ferries available to travel to Valleta, where the principal hospital and services existed. He admitted the Act provided only 13 weeks after a claim for DSP was lodged for diagnosis stabilisation and treatment to be completed, so that an impairment rating could be identified, and fro people with depression and paranoia this might be far too short a period, nonetheless the Department and the Tribunal could only act within what the law provided. In his view Mr Azzopardi’s disabilities were not yet fully treated and stabilised, so provisions of s94(1)(b) of the Act had not been met and the claim for DSP failed. It did not prevent Mr Azzopardi making another claim if the requisite evidence was available.

Analysis

23.     The Tribunal is required to conduct a de-novo review of all available evidence, taking into account relevant statutory and policy provisions and any prior case determinations.

24.     There is ample medical evidence to demonstrate that Mr Azzopardi has suffered from severe depression and paranoia from at least mid 2004, if not earlier.  Dr Grech had diagnosed the disability as “severe chronic depressive disorder, with obsessional symptoms and paranoid overvalue ideas.”   The doctor indicated in April 2004 that several therapeutic measures had proven unsuccessful, his patient’s medication had to be restricted because of a hiatus hernia and Mr Azzopardi was unfit for work.   It is clear therefore, that when he applied to DSP in early December 2004, Mr Azzopardi’s disabilities were known and being treated, but with no positive or final outcome, i.e. his condition was not stabilised to the point where an impairment rating could be assigned.

25.      Having applied for DSP on 2 December 2004 the applicant had only 13 weeks to demonstrate his disabilities were fully treated and stabilised, but all available medical evidence indicates that condition was not met, indeed has not been met now.

26.     Mr Azzopardi’s situation remains parlous, with severe depression, little response to treatment and incapacity to work.   Dr Mieka Tabart considers not all prospective psychiatric treatments have been explored and a query arises as to whether treatment of the hiatus hernia is feasible, given the applicant’s heart problem and whether this might open up prospects of new medical regimes.   Dr Grech has argued Dr Tabart’s opinion should be given little weight as she has not seen or examined the patient.   However the doctor is experienced and considerable documentation exists to analyse Mr Azzopardi’s condition.

27. Having conducted a review of all available evidence, the Tribunal has determined on the balance of probabilities that the applicant’s were not fully diagnosed, treated and stabilised during the relevant period 2 December 2004 and 13 weeks later (early-mid March 2005). It follows that the specified criteria in s94(1)(b) of the Act have not been met and Mr Azzopardi fails to qualify to receive DSP. In this situation his capacity or incapacity for work does not need to be assessed, but the medical evidence is that he continues to be unfit for employment. One must feel some sympathy for the applicant, but the Tribunal can only act within what the law provides.

Decision

28.     The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller
(Administrative Assistant)

Date/s of Hearing  10 May 2007 by telephone
Date of Decision  22 June 2007
Counsel for the Applicant         Dr Georgine Grech
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink Legal