Buttigieg and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1082

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1082

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/27

GENERAL ADMINISTRATIVE  DIVISION		)
Re		EMMANUELE BUTTIGIEG

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

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

Date14 December 2006

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Social Security - benefits - Disability Support Pension (DSP) - resident of Malta - international agreement - disabilities - degree of impairment - medical evidence - continuing inability to work - permanent or temporary - Social Security Appeals Tribunal (SSAT)

Social Security Act 1991 and Amendments, Section 94 and Schedule 1B - Tables for the Assessment of Work-Related Impairment for Disability Support Pension

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

Guide to Social Security Law

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake No 2 (1979) 2 ALD 634

SDSS v Pusnjak (1999) 56 ALD 44

Sayan and SDFCS (2001) AATA 950 (19 November 2001)

Giddings and SDFCS (2003) AATA 893 (12 September 2003)

Re Watts and SDFCS (2003) AATA 632 (3 July 2003)

Re Crossland and SDFCS (2004) AATA 864 (18 August 2004)

Reissis and SDFCS (2005) AATA 702 (25 July 2005)

Bantick & SDFCS (2003) AATA 472 (23 May 2003)

Ellul & SDFCS (2006) AATA 488 ( 6 June 2006)

REASONS FOR DECISION

14 December 2006 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 9 August 2005, subsequently affirmed by the Social Security Appeals Tribunal on 28 February 2006, to reject Mr Emmanuele Buttigieg’s claim for Disability Support Pension (DSP) because he did not satisfy Sections 94(1)b and 94(1)c of the Social Security Act 1991 (The Act).

Issues

2.      The principal issues are:

(a) whether the applicant has physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables set out in Schedule 1B of the Social Security Act 1991;

(b)      whether the applicant has a continuing inability to work because of the       impairment.

Legislation

3.      The relevant legislation is as follows:

Social Security Act 1991 and Amendments, especially Section 94 and Schedule 1B – Tables for the Assessment of Work-Related Impairment for Disability Support Pension; Social Security (Administration) Act 1999; Social Security (International Agreements) Act 1999; and Guide to Social Security Law.

Standard of Proof

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

Context

5.      Mr Buttigieg resides in Malta, but claimed Australian disability support pension (DSP) on 24 January 2005 on the basis of the following medical conditions:

.  ischaemic heart disease

.  obsessive compulsive ruminative disease

Mr Buttigieg last worked as a police officer in Malta in June 2004.

6. On 12 August 2005 a delegate of the Secretary of the Department of Employment & Workplace Relations (DEWR) decided the applicant was not medically qualified to receive disability support pension, as he did not satisfy requirements of Sections 94(1)(a)(b) and (c) of the Social Security Act 1991.

7.      Mr Buttigieg sought a review of the decision which was affirmed by the original decision-maker on 21 September 2005 and further affirmed by an Authorised Review Officer (ARO) on 21 September 2005.  The ARO noted that although the applicant suffered from ischaemic heart disease, his condition was considered to be near normal and only prevented him doing heavy manual labour.  In relation to Mr Buttigieg’s depression, the ARO noted the condition had not been fully treated and stabilised and therefore could not be assigned an impairment rating.  He concluded that as Mr Buttigieg did not have an impairment rating of 20 points he did not qualify for DSP.

8.      Mr Buttigieg lodged an appeal with the Social Security Appeals Tribunal (SSAT) on 3 November 2005, the hearing being conducted in Melbourne on 20 January 2006, with the original decision refusing DSP again affirmed.  In reaching its conclusion the review panel sought considerable detail of the applicant’s disabilities and lifestyle by teleconference with him and his wife and also had available all relevant medical reports and other documentation.

9.      In essence the applicant claims that his ischaemic heart disease has induced fears about death, great despondence and a feeling his life is over.  He suffers from severe depression, somatisation and sleep disturbance.  He has not contemplated suicide, but is very stressed and fearful, going in and out of the house many times a day, shunning all socialisation.  He considers he is totally unfit for work.

10.     Medical reports by his GP, Dr John Dingli, consultant psychiatrist Professor Abraham Galea and Dr Gino Abela support this diagnosis.  Mr Buttigieg takes medication but this has failed to achieve improvement, his anxiety/depression now borders on Obsessive Compulsive Disease and the prognosis is poor.  A Medical Assessment Report completed on 14 April 2005 by Dr Gino Abela summarised the situation as follows:

“A fifty five year old gentleman who, for over a year has been suffering from chronic depression with somatic symptoms, symptoms of anxiety bordering on Obsessive Compulsive Disorder.  Patient has low esteem of himself with diminished concentration finding difficulty with simple tasks and keeping up conversation.  He suffers from insomnia waking up many times during the night.  He is easily moved to tears and his speech is slow.  There is lack of attention to personal hygiene.  He is withdrawn and finds it difficult to mix with social contacts including his relatives.  He complains also of episodes of dizziness, palpitations, shortness of breath and dry mouth.  Patient is totally and permanently unfit for any kind of work”.

11.     A Health Services Australia Assessment by Dr Krystyna Wnekowski dated 3 August 2005 noted:

“Condition 1 – Ischaemic Heart Disease.  ECG reveals condition is normal and only prevents him from doing heavy manual labour.  An impairment rating of nil on Table 1 has been given.

Condition 2 – Depression.  This condition started after he first experienced problems with his heart and the medication prescribed by Dr Galea was unchanged between October 2004 and May 2005.  This condition would improve with ongoing Cognitive Behaviour Therapy and medication.   Insufficient symptomology or duration to state that he is unfit for all work now and in the future.  No impairment rating has been given on Table 6 because the condition had not been fully treated and stabilised”.

12. The SSAT noted as general observation the applicant lived in Australia between 1967 and 1969 and again between 1972 and 1976. This permits him to seek Australian DSP via the Social Security Agreement between Malta and Australia, defined in Schedule 6 of the Social Security (International Agreements) Act 1999.

AAT Hearing

13.     Mr Buttigieg sought a de-novo review by the Administrative Appeals Tribunal (AAT) on 28 February 2006.  The hearing was conducted in Hobart on 22 November 2006.  The applicant did not attend, being ill in Malta and was represented by his son, Mr Chris Buttigieg.  Proceedings were conducted by teleconference using a Maltese interpreter in Australia.   The respondent was represented  by Ms Michelle Baulch and one witness, Dr Krystyna Wnekowski was called.

14.     Dr Wnekowski, a Health Services Australia (HSA) medical advisor was sworn and responded to a number of questions put to her by Ms Baulch.  She stated that on the documentation the applicant’s heart disease could and was being treated, stress tests were normal with a MET rating of 10, the only limitation being avoidance of heavy manual labour.  An impairment rating of nil on Table 1 was appropriate.

15.     She noted that the onset of severe depression occurred after Mr Buttigieg’s heart condition was diagnosed in 2004 and rapidly became more significant and obsessive, with some social withdrawal and changed behaviour patterns.  She considered the medication prescribed was perhaps too low and there were some prospects of improvement with therapy, but the applicant was currently unfit for work and it was not possible to forecast how long and with what degree of success rehabilitation might be achieved.  She described the medical diagnoses as lacking clinical details and considered Mr Buttigieg’s condition had not yet been fully treated or stabilised.  In such circumstances an impairment rating could not be assigned.

16.     Mr Chris Buttigieg was then affirmed and proceeded to explain in detail his father’s severe depression and its effect on personal and domestic life.  He said that his father’s behaviour had become abnormal and obsessive and it was clear he was totally unfit for work as had been confirmed by two Malta Medical Board assessments.  He considered it unlikely his father’s condition would respond to therapy and considered Dr Wnekowski’s evidence in this regard should not be given too much weight, especially as she had never seen his father.  He reported that his father had ceased going to his psychiatrist, Dr Galea, and was omitting some medication which he found expensive.

17. In closing submissions for the respondent Ms Baulch said it was clear DEWR’s rejection of the application for DSP was based on statutory and policy provisions specified in Section 94 of the Social Security Act 1991. In order for Mr Buttigieg to qualify for DSP he would have to demonstrate an impairment of at least 20 points and an ongoing inability to work and the available medical evidence did not meet such criteria. There was also a time limit to be considered, in that any diagnosis of impairment, such as severe depression, had to have been fully diagnosed and treated prior to the date of application for DSP or within 13 weeks thereafter. This had not occurred and Mr Buttigieg’s situation was one where the outcome remained unclear, given the lack of detailed clinical diagnosis and no systematic attempt at therapy. No impairment rating could currently be assigned and he therefore failed to meet the criteria for DSP. The correct and preferable decision for the Tribunal to make was to affirm the decision under review.

Analysis

18.     The Tribunal is required to conduct a de-novo review of all available evidence, noting relevant statutory and policy provisions and any precedent created by prior case determinations.

19. As previously noted the key issues for the AAT to consider are whether Mr Emmanuele Buttigieg has a disability rating of 20 points or more and whether he has an ongoing inability to work. Relevant criteria are set out in Sections 94(1)(a), (b) and (c) of the Social Security (Administration) Act 1999 and Schedule 6 of the Social Security (International Agreements) Act 1999, dealing with an Agreement between Australia and Malta on Social Security (‘the Agreement’).

20.     The crucial period under consideration is 26 January 2005 (being the date the applicant lodged his claim) and 27 April 2005 (being the date 13 weeks later).  The requirement that the applicant demonstrate his eligibility within this period is the effect of operation of Division 3 – Commencement of Social Security payment – and Part 2 Clause 4 of the Social Security (Administration) Act 1999. Further support for this contention is found in prior decisions of the AAT and Federal Court, see for example Sayan and SDFCS (2001) AATA 950 (19 November 2001) and Giddings and SDFCS (2003) AATA 893 (12 September 2003).

21.     Mr Buttigieg’s application for DSP was lodged with the Maltese authority under the International Agreement between Malta and Australia and for the purposes of DSP is taken as an Australian resident for purposes of the Administration Act.  The Tribunal notes that as from 1 July 2005 a new Agreement with Malta came into force and from that date Maltese residents will only be eligible to receive an Australian DSP if they are severely disabled.  However, the new Agreement does not apply in this case as the applicant lodged his claim prior to 1 July 2005.

22.     Turning more directly to the applicant’s situation, the Tribunal has conducted a de-novo review of the medical evidence and all other related documentation and finds as follows:

Ischaemic Heart Disease

23.     Mr Buttigieg was admitted to Gozo General Hospital, Malta, on 26 February 2004 with a diagnosis listed as angina.  Medical reports by Dr John Dingli, Professor Abraham Galea, the Malta Medical Board and HSA medical advisor Dr Krystyna Wnekowski all confirm that Mr Buttigieg’s heart condition has been stabilised and treated, with no impairment other than the restriction to avoid heavy manual labour.  This means that the applicant’s heart disease does not rate any impairment points under the Impairment Tables.

Medical Condition of Depression

24.     Here the situation is less certain.  Reports by the Malta Medical Board and Professor Galea, both dated April 2005, indicate Mr Buttigieg developed severe depression as a result of leaving employment and diagnosis of his heart condition in early 2004.  Thus far his depression and anxiety have not lessened, but worsened to a point bordering on Obsessive Compulsive Disease (Professor Galea).  Dr Wnekowski has a slightly different diagnosis, as she considers the medication prescribed was too low and there might be some prospect of improvement with therapy, but the applicant is currently unfit for work and it is not clear whether rehabilitation might be achievable or when. 

25.     The Malta Medical Board decided in mid-April 2005 that Mr Buttigieg was totally and permanently unfit for work, but Dr Wnekowski has queried this assessment, noting the lack of any detailed and comprehensive symptomology upon which to draw such a conclusion.  She noted that the psychiatrist’s report of April 2005 failed to answer the majority of questions asked by CIS and therefore considered the applicant’s condition had not yet been fully diagnosed or treated.  No impairment rating could be assigned in such circumstances.

26. After considering the evidence carefully the Tribunal accepts Dr Wnekowski’s assessment. At the relevant time, 26 January – 27 April 2005, Mr Buttigieg’s medical condition had not yet been fully diagnosed and treated in documented form, thus it failed to demonstrate a specific impairment rating and therefore did not meet provisions of Section 94(1)(b) and (c) of the Social Security Act 1991. Accordingly Mr Buttigieg’s application for DSP fails.

Heading

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  22 November 2006
Date of Decision  14 December 2006
Representative for the Applicant    Mr Chris Buttigieg
Solicitor for the Respondent          Ms M Baulch, Centrelink Legal Services