Beyrouti and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1723

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1723

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/0607

GENERAL ADMINISTRATIVE DIVISION		)
Re		SANA BEYROUTI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Ion Alexander, Member

Date31 August 2007

PlaceSydney

Decision

1. Mrs Beyrouti’s total impairment rating is 10 points which does not meet the requirement of s91(1)(b) of the Social Security Act 1991 and therefore she is not eligible for a disability support pension.

2.      The decision of the Social Security Appeals Tribunal is affirmed.

  Dr Ion Alexander, Member (SGD)

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairment, diagnosed condition – impairment rating – decision under review is affirmed.

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

31 August 2007   REASONS FOR DECISION

INTRODUCTION

1.          On 15 March 2005 Mrs Beyrouti submitted a claim for a disability support pension (“DPS”). Centrelink rejected the claim and a subsequent appeal to the Social Security Appeals Tribunal (“SSAT”) heard on 5 May 2006 affirmed that decision. The decision by the SSAT is the subject of this review by the Administrative Appeals Tribunal (“AAT”).

2.        Mrs Beyrouti attended the AAT for a hearing on 10 August 2007 and was not legally represented but Mrs Beyrouti had the assistance of an Arabic interpreter.

ISSUES

What is the relevant PERIOD?

3. In order to qualify to receive a DPS Mrs Beyrouti must have satisfied the requirements of s94(1) of the Social Security Act 1991 (“the Act”) at the relevant time, that is, at the time of her application or in the subsequent 13 weeks as determined by the Social Security (Administration) Act 1999, Schedule 2.

4.      The relevant time is 15 March 2005 to the 14 June 2005.

DID MRS BEYROUTI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC CONDITION UNDER SECTION 94(1)(a)

5. In order to satisfy s94(1)(a) of the Act, Mrs Beyrouti is required to have a condition or conditions that could be assigned a rating under the Impairment Tables in Schedule 1B of the Act.

6.        At the time of her application Mrs Beyrouti claimed functional impairment as a consequence of a number of medical conditions. It was agreed between the parties that at the relevant time the conditions to be considered for impairment included:

(a)Discopathy of the Lumbosacral Spine resulting in lower back pain;

(b)Cervical Spondylosis resulting in neck pain;

(c)Hypothyroidism;

(d)Hypertension;

(e)Non Insulin Dependent Diabetes Mellitus (“NIDDM”);

(f)Depression

WHAT IS THE EVIDENCE WITH REGARD TO MRS BEYROUTI’S CLAIM?

7.        Three different medical practitioners have examined Mrs Beyrouti and made an assessment using the relevant Impairment Tables. Each assessment results in significantly different conclusions.

8.        The first medical assessment report, provided by Dr Mackenzie, Health Services Australia (“HSA”), Medical Adviser was done during the relevant time dated 4 April 2005. Dr Mackenzie considered all of the conditions except Hypothyroidism and allocated 10 points for NIDDM and nil points for each of the other conditions resulting in a total impairment of 10 points. It appears that Dr Mackenzie allocated the 10 points for NIDDM using Table 19 on the grounds that Mrs Beyrouti’s blood sugar levels were unstable.

9.        On 12 August 2005 Dr Logan, HSA, Medical Advisor, allocated a total of 30 points with 10 points for Depression (Table 6) and 20 points for NIDDM (Table19).

10.      Dr Logan did not provide any reasons to explain the ratings and did not assess either the Hypertension or the Hypothyroidism.

11.       Dr Matalani, Occupational Physician, provided a relatively more comprehensive report dated 17 December 2006. In his report Dr Matalani provided an assessment of all the claimed conditions and allocated a total of 15 points with 5 points for the Cervical Spine (Table 5.1) and 10 points for Depression (Table 6).

12.      In her oral evidence Mrs Beyrouti complained of many symptoms as a consequence of her various medical conditions. She also described the numerous medications that she is currently taking.

13.      In general Mrs Beyrouti complained that many of her symptoms had worsened over the past 12 months particularly with regard to pain in her right upper arm and shoulder which had started in the previous six months.

14.       Mrs Beyrouti also explained that about 12 months prior to the hearing her diabetes medication had been changed with a doubling of the dose of her usual treatment and the introduction of a second drug. This occurred as a consequence of unstable blood sugar measurements.

15.      Mrs Beyrouti is being treated for Depression by her general practitioner and has continued on antidepressant medication that was started just prior to the time of her claim. She indicated that medication has helped but she continues to complain of moderate and regular symptoms.

between 15 March 2005 to the 14 June 2005, did Mrs Beyrouti’s functional impairment from the various conditions amount to 20 points or more under the Impairment Tables in Schedule 1B of the Act?

16.      In order to deal with this issue I will consider each claimed condition separately:

(i) discopathy of the lumbosacral spine resulting in lower back pain (Table 5.2)

17.      The impairment rating for this condition was assessed by all medical practitioners as nil and I have no reason to challenge this rating.

(ii) hypothyroidism (Table 19);

18.      Dr Matalani was the only practitioner who assessed this condition and rated the impairment as nil on the grounds that the disease was adequately controlled with replacement therapy. This conclusion is supported by a pathology report dated 23 October 2005 indicating a normal thyroid function test.

19.      Therefore I find that the correct rating was nil.

(iii)  hypertension (Table 20);

20.      Mrs Beyrouti’s hypertension was considered to be well controlled by Dr’s Mackenzie and Dr Matalani with an impairment rating of nil. Dr Logan did not consider this condition. I have no reason to challenge this rating.

(iv) Cervical spondylosis resulting in neck pain (Table 5.1);

21.      Dr Matalani assigned 5 points for impairment on the basis of self limiting active movement of the neck and pain radiating to the right side and upper part of the right arm.

22.      I note that Dr Matalani’s assessment was made more than 18 months after the claim and that Mrs Beyrouti in her oral evidence indicated that symptoms with regard to her right shoulder and upper arm had started relatively recently.

23.      Neither Dr Mackenzie nor Dr Logan found any impairment with regard to the cervical spine and I note that their assessments were done at a time that was closer to the time of the claim.

24.      Therefore I find that the appropriate impairment rating for this condition was nil.

(v) NIDDM (table 19);

25.      Dr Mackenzie was the only practitioner to assess Mrs Beyrouti during the relevant claim period and assigned an impairment rating of 10 points for NIDDM. It appears that the points were assigned on the basis of unstable blood sugar levels.

26.       I note that in Table 19 diabetes mellitus is in fact not included in the list of conditions attracting a rating of ten points.

27.      Furthermore, the introduction to the tables specifies that a rating can only be assigned to a condition that has been fully documented, diagnosed and has been investigated, treated and stabilised. In order to assess whether a condition is fully diagnosed, treated and stabilised the introduction to the tables require that a number issues need to be considered including whether “whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years”.

28.      Dr Mackenzie made no assessment as to whether further medical treatment was likely to lead to improvement in Mrs Beyrouti’s condition. There is clear evidence before the Tribunal from Mrs Beyrouti that her treatment was able to be changed with the expectation of improvement in her condition.

29.      This is supported by Dr Matalani’s later assessment that her diabetes was controlled with medication and that there was no evidence of end organ damage.

30.      It follows that the correct rating for impairment for NIDDM by Dr Mackenzie should have been nil.

31.      Dr Logan rated impairment for diabetes at 20 points.

32.      For Diabetes Mellitus to attract 20 points table 19 stipulates that the condition must not be “satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ damage.”

33.      Dr Logan did not refer to any evidence nor was there any evidence before the tribunal to support such an assessment.

34.      Furthermore Dr Logan made no reference to further medical treatment.

35.      I also note that a pathology report dated 23 October 2005 indicated an Hb A1c level consistent with “very good glycaemic control”.

36.      Therefore on this issue I consider Dr Logan’s assessment to be unreliable and give it little weight.

37.      I find that the appropriate impairment rating for NIDDM was nil.

(vi) depression (Table 6);

38.Dr Logan and Dr Matalani assigned 10 points for her impairment and Dr Mackenzie nil.

39.In her summary Dr Mackenzie did not adequately explain her rating of nil.

40.After considering all the evidence before the Tribunal particularly Mrs Beyrouti’s oral evidence, on balance I am satisfied that the correct impairment rating for depression was 10 points.

DECISION

41.      It is clear that on the date of her claim being 15 March 2005 and within 13 weeks after this date Mrs Beyrouti suffered from several medical conditions.

42.      For the aforesaid reasons I have decided that at that time the impairment rating for all of Mrs Beyrouti’s claimed conditions apart from depression had an impairment rating of nil.

43.      l find that the impairment rating for depression was 10 points.

44. It follows that Mrs Beyrouti’s claim has not achieved the impairment rating of 20 points as required by s 94(1)(b) of the Act to be eligible for a DSP.

45.      Therefore the decision of the Social Security Appeals Tribunal is affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

Signed:         ..Felicia Daniele...................................................................................
  Associate

Date/s of Hearing:  10 August 2007
Date of Decision:  August 2007
Counsel for the Applicant:        Self-represented

Counsel for the Respondent:   
          Solicitor for the Respondent:     George Lozynsky-Centrelink