Daniel Mushi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 468

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 468

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4711

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Daniel Mushi

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen

Date9 June 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is AFFIRMED.

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

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY – Claim for Disability Support Pension rejected.  Impairment does not meet 20 points. Psychological component to chronic pain. Applicant demonstrated ability to work 15 hours a week or more.  Decision under review affirmed.

LEGISLATION

Social Security Act 1991 section 94
Social Security Administration Act (1999)

REASONS FOR DECISION

24 June 2010 M D Allen, Senior Member            

1. At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ..................[sgd]............................................
  K. Lynch, Associate

Date of Hearing  9 June 2010
Date of Decision  9 June 2010
Date of Written Reasons  24 June 2010
Representative for the Applicant               Mr D Mushi (self) 
Representative for the Respondent          Centrelink Advocacy Service          

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:

MR ALLEN:  By application made the ninth day of October 2008, the Applicant sought review of a decision of the Social Security Appeals Tribunal made on 4 September 2008.  At the outset I want to say that this matter has been subjected to an unconscionable delay.  It is to no-one’s advantage that a claim for disability support pension made on 12 May 2008 should not come to a hearing in this Tribunal until 9 June 2010.  The Respondent must take some blame for this delay, but unfortunately, it must be said that the main reason for the delay is the processes adopted by the AAT. 

I note that there have been five preliminary conferences in this matter. In a disability support pension matter, that is absurd. In particular, because schedule 2 to the Social Security Administration Act (1999) provides that the qualifications for the grant of a disability support pension are to be assessed at the date of the claim and for a period of 13 weeks thereafter.

The qualifications for disability support pension are set out in section 94 of the Social Security Act 1991, subsection (1) of section 94 reads, inter alia, that:

“A person is qualified for disability support pension if
(a) they have a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables, and the person has a continuing inability to work.”

As stated, the Applicant made his claim on 12 May 2008.  At the time of that claim a report was obtained from his treating General Practitioner, Dr Behary.  In that report, Dr Behary said that the Applicant was suffering from major depression and chronic neck pain and chronic headache.  In relation to the major depression, Dr Behary stated that the current treatment was psychologist counselling psychotherapy.  As to the chronic neck pain and headache, the treatment was said to be painkillers. 

The Applicant was assessed, in relation to his claim, by a Mr Miro of CRS Australia on 19 May 2008, and that was a face to face assessment.  I note from the report that Mr Miro is a registered psychologist.  In that report, Mr Miro stated:

“TDR by Dr Nabil Behary, dated 07.05.08 indicates current treatment includes psychotherapy counselling with a psychologist.  Mr Mushi stated he tried counselling and antidepressants in the past and does not have any treatment at the moment.” 

Mr Miro gave an impairment rating of nil for depression and 10 for chronic pain. In relation to the Applicant’s chronic pain, as has been pointed out in the clinical notes of Dr Behary, which are to be found at ST46, page 293 of the documents prepared for the Tribunal, pursuant to section 37 of the AAT Act, there appears to be no consultations for depression or indeed any form of psychiatric illness, in the period from 14 November 2007 to 12 December 2008.

There certainly seems to be some evidence that the Applicant suffers from chronic pain.  On 16 October 2006 the Applicant was assessed by Dr Aggarwal, a staff specialist in pain and rehabilitation medicine at the Royal Prince Alfred Hospital. The report of Dr Aggarwal commences:

“Unfortunately, there has been little change in Daniel’s pain since his last review…  The dentist also advised Mr Mushi that his cervical neck pain is not related to his teeth.  Despite this, however, Mr Mushi wishes to have ongoing dental work, as it is his impression that this pain is related to his teeth.” 

Dr Aggarwal added:

“…Mr Mushi was once again feeling that he had significant pathology on the left side of his neck that was undiagnosed.  This is despite previously having a CT scan of his cervical spine that shows only mild degenerative disease, and an MRI scan of the brain that was essentially normal. 

Again, I reinforce with Mr Mushi that a significant proportion of his pain is related to muscular tension with underlying subconscious anxiety and stress.  I suggested again that he recommence Cipramil at a dose of 10 milligram daily.”

Accompanying that report is an x-ray report of the applicant’s cervical spine, dated 9 March 2007, which is essentially normal.  So far as the applicant’s neck is concerned, there was a follow-up CT scan on 20 August 2008, and the report of that scan reads:

“No abnormality of the petrous temporal bones or TM joints.  The middle ear and mastoids are normal.”

I would simply mention for completeness sake a further report by Dr Aggarwal, dated 26 March 2007, which states, inter alia:

“Even though Mr Mushi is aware that there is a psychological component to his pain, he is having difficulty accepting this concept, as he is still looking for a medical cure to his pain.  He was reviewed by our pain psychologist in October, who felt he was not open to psychological strategies to manage his pain.”

From those reports it seems clear that the real incapacity of the Applicant is to be found in his psychological condition.  As stated, he was reviewed by a psychologist on 19 May 2008, and the degree of incapacity under table 20 of the Impairment Tables was found to be 10. 

A further comprehensive report on the Applicant’s ability to undertake employment and his level of incapacity was conducted in November 2009.  Although, strictly speaking, that report cannot be applied to an application made in May 2008.  It is relevant in that it throws some light on the condition of the Applicant at the time he made his claim and 13 weeks thereafter.  The report reads, inter alia:

“The medical information confirms the longevity of chronic neck pain.  Mr Mushi has had numerous investigations with no significant chemical findings. Dr Aggarwal, in a letter dated 16/10/06 stated: ‘Again I reinforced with Mr Mushi that a significant proportion of his pain is related to muscular tension, with underlying subconscious anxiety and stress………He would also benefit from participating in our pain education program, but only once he has accepted that there is no significant underlying pathology causing his pain.’ Mr Mushi has continued under the care of A/ Prof D Sullivan and it is noted in a report dated 19/03/09 that neck pain is maximally treated.  Previously 15 points signed under Table 20 for Chronic Pain and this rating would not change in light of supplementary documentation.”

There was tendered this morning by the Applicant a report from Onsy Mattar, a psychologist, which report is dated 20 May 2010.  I derive very little assistance from that report.  To start with, Mr Mattar does not say for how long he has been treating the Applicant.  He gives a diagnosis of the Applicant’s conditions which certainly seems at odds with the reports from Royal Prince Alfred Hospital.  The report reads, inter alia:

“Mr Mushi is suffering from stress, anxiety-depressive disorder, and adjustment disorder.  He also suffers from general fatigue, poor sleep and poor memory and concentration, hallucination and also schizophrenia and is mentally disturbed.”

I would not accept a diagnosis, particularly schizophrenia, unless it was by a registered psychiatrist.  In addition, Mr Mattar’s report does not attempt to address the Impairment Tables, and certainly does not address the status of the Applicant as at 12 May 2008, and 13 weeks thereafter.

All in all, I am not satisfied that an assessment of 15 impairment points is wrong.  That is sufficient to say that the decision under review is affirmed.  But even if I were wrong in that regard, I note the Applicant has demonstrated an ability to work for over 15 hours a week, by the very fact he is the carer for his elderly father, the duties of which obviously involve more than 15 hours a week. 

For these reasons, the decision under review is AFFIRMED.

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