Drar and Department of Family and Community Services

[2000] AATA 755

DECISION AND REASONS FOR DECISION [2000] AATA 755

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.   N2000/222

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      ABDALLAH DRAR 
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member

Date30 August 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.

.....…(Sgd) B. H. Pascoe……
  Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – depression – lumbar spine – whether 20 points – whether required to qualify within 3 months of claim
Social Security Act 1991

REASONS FOR DECISION

30 August 2000                   Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the Social Security Appeals Tribunal ("SSAT") of 5 January 2000 which affirmed a decision of the respondent dated 30 July 1999 confirming an earlier determination that the applicant was not qualified to receive disability support pension ("DSP").

2. At the hearing the applicant, Mr Abdallah Drar was unrepresented and assisted by an interpreter and the respondent was represented by Ms S. Mantaring, an advocate with Centrelink. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  In addition, Mr Drar tendered a radiologist report from Westmead Hospital dated 26 February 2000, a report from Dr M. Guirgis, an orthopaedic surgeon, dated 4 May 2000 and reports from two general practitioners, Dr B. Ahmed, dated 1 June 2000 and Dr A. Selim, dated 15 June 2000.

3. Mr Drar lodged a claim for DSP on 19 February 1999. He listed his illnesses or disabilities as "depression disorder, lumbar scoliosis (back problems), eye problems". The treating doctor's report dated 20 July 1998 by Dr Selim attached to the application referred solely to depression and showed the treatment as "rest, antidepressants and psychiatric treatment". A further treating doctor's report by Dr Selim dated 19 February 1999 stated the diagnosis of the current condition as "anxious depression" and "neck and back muscular dysfunction". The medical assessment by Dr Phillips of Health Services Australia rated the "mixed anxiety/depression" at 10 points under Table 6 of Schedule 1B of the Social Security Act 1991 ("the Act") and the neck and back pain at 0 points under Table 5.2. On the basis of that assessment, the determination that Mr Drar was not qualified for DSP was made. At the instigation of the respondent, Mr Drar was referred to a psychiatrist, Dr D. Lovell, who reported on 25 May 1999. Dr Lovell stated:

   "Mr Drar has been receiving psychiatric treatment for the last 17 months.  Last year he travelled to Lebanon to see his parents and siblings for five months and ceased all medication.  He has been trialed on therapeutic doses of two antidepressants, Sertraline and Efexor (and possibly other medications which he could not recall).  Currently he is prescribed 75mg of Dothiepin.
   I felt that he suffered from a dysthymia (or unhappiness) secondary to his marital separation.  His complaints of his hair going grey and his losing his bearings when he drives his car, are unusual.  They are coupled with generalised nervousness and social withdrawal.  He was retrenched from his last employment and does not appear motivated to seek work.
   I could not convince myself that he suffered from a Major Depression.  He is a man with few work skills and limited education.  He is living with his unemployed brother who is studying English who immigrated to Australia in 1994.
   On the basis of his presentation today, I felt that he would be fit initially for part-time work 15 hours a week and that this would probably be beneficial for him in helping him improve his self-esteem and motivation.  As it has been some five years since he was in the workforce, he would require a period of work hardening and possibly some further training before resuming employment.
   He is unlikely to respond to the antidepressant medications which are being prescribed.  His unhappiness is reactive to his marital separation and his unemployment.  There is no family history of depression and no previous history of this disorder."

The respondent concluded that this report supported the conclusions of Dr Phillips of a rating of 10 points under Table 6.

1. Mr Drar said that his back condition had deteriorated significantly since he lodged his claim for DSP.  He said that he had an appointment with an orthopaedic surgeon and understood that he would need surgery or his condition would become much worse.  Pain-killers were having little effect.  Mr Drar said that he spends most of his day lying down, cannot sit for more than 30 minutes without pain, can walk for only 10 to 15 minutes at any time and cannot do shopping, washing and ironing which are done for him by his sister-in-law with whom he lives.  He maintained that he could not live alone as he could not afford the full rent and, in any event, needs assistance.  Mr Drar said that his main problem is his psychiatric condition.  He maintained that he is frequently confused, is unable to interact with people, becomes anxious, is reluctant to drive a car because he becomes confused as to his whereabouts and, while he can and does travel by train, has difficulty if it is necessary to change trains.  He had been under treatment by a psychiatrist but Mr Drar said that he had not seen a psychiatrist for two months as he did not consider he was obtaining any benefit.  His general practitioner prescribed the antidepressant medication.

2. Mr Drar submitted that the severity of his psychiatric condition had been under assessed and there had been inadequate consideration of the extent of his back condition.  He maintained that he was in constant pain, could not work and that the reports of the two general practitioners in June 2000 demonstrated a rating of at least 10 points for his back problems.

3. It was accepted by the respondent that Mr Drar suffers from depression and the medical opinion justified a rating of 10 points under Table 6 of Schedule 1B of the Act. However, while the respondent also accepted that he suffers from low back and neck pain, this did not justify a rating of more than nil under Table 5.2 at the time of his claim or within three months of the date of that claim. It was said that the nil rating was supported by Dr Phillips and the radiological reports available at that time. Whilst it was considered that a higher rating may be available under Table 5.2 at present, it was submitted that the Act requires an applicant to satisfy the requirement for a total of 20 points within three months of the date of claim.

4. Section 94 of the Act sets out the qualifications for DSP and, so far as is relevant to this case, provides:

   "94(1)  A person is qualified for disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person's impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)     …

   …"

There is no dispute that Mr Drar has a physical impairment. The question, however, is whether that impairment is of 20 points or more. The Impairment Tables are contained in Schedule 1B of the Act. Table 5.2 refers to the Thoraco-lumbar-sacral spine and provides:

"Table 5.2            Thoraco-lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating  Criteria

NILNormal or nearly normal range of movement.

FIVELoss of one-quarter of normal range of movement.

TENLoss of one-quarter of normal range of movement as well as back pain or referred pain:

• with many physical activities and

• with standing for about 30 minutes and

• with sitting or driving for about 60 minutes.

  or
  Loss of half of normal range of movement.

  TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

• with most physical activities and

• with standing for about 15 minutes and

• with sitting or driving for about 30 minutes.

  or

  Loss of three-quarters of normal range of movement."

Table 6 provides:

"TABLE 6.       PSYCHIATRIC IMPAIRMENT

It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders.  People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment.  The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness.  Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature.  Table 6 is used for permanent psychiatric disorders only.  If there is insufficient clinical information available, a current or recent specialist report should be obtained.

Rating  Criteria

NILMild but regular symptoms which tend to cause subjective distress.  On most occasions able to distract themselves from this distress.  Minimal interference with function in everyday situations.  Exacerbation of symptoms may cause occasional days off work.  (eg.  There may be some loss of interest in activities previously enjoyed.  There may be occasional friction with family, colleagues or friends)  Medical therapy or some supportive treatment from treating doctor may be required.

TENModerate and regular symptoms and generally functioning with some difficulty.  (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (eg. short periods of absence from work).

TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnoses psychotic illness with continuing symptoms).  There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work."

1. On the basis of the report by Dr Lovell and the assessment of Dr Phillips, the rating of 10 points under Table 6 appears appropriate.  There is no evidence and, in particular, no medical assessment which supports a higher rating under this Table.  In relation to the claimed back and neck problems there was no evidence at the time when the decision under review was made that Mr Drar had an impairment justifying a rating of above nil under Table 5.2.  The radiological reports on the lumbar spine then available consisted of one from Sydney Imaging Group dated 5 February 1999 which concluded that "degenerative changes are noted within the apophyseal joints but no sequestrated disc fragment or exit foraminal narrowing defined at any level" and one from Revesby X-ray Centre dated 26 August 1999 which concluded that "minimal convexed posterior disc margin noted at L4/5 level.  No significant focal herniation or protrusion seen in the lumbar disc examined".  No medical examiner noted any loss of normal range of movement.

2. It may well be that the condition of Mr Drar's back has deteriorated since those assessments to the extent that he may qualify at this time.  The evidence he gave indicated that a rating of 10 points may be possible under either Table 5.2 or Table 20.  The radiological report from Westmead Hospital concluded that, on 26 February 2000, "there is a left paracentral disc protrusion at L5/S1 level touching the left S1 nerve root".  Dr Guirgis agreed that the signs and diagnosis were consistent with that finding.  He did not believe that surgical treatment would dramatically alter the current clinical presentation due to the presence of chronic pain syndrome and should only be considered if Mr Drar developed progressive neurological deficits.  Dr Ahmed stated that Mr Drar "has developed loss of one-quarter of normal range of movement" of the lumbar spine and was unable to drive a car for 60 minutes because of pain.  Dr Selim stated that Mr Drar's lumbar spinal movements are restricted to 70% of the range.  These three medical opinions were provided in May or June 2000, some 15 or 16 months after the claim was made.

3. It is relevant to the question of the rating of an impairment to consider whether a condition at the time of hearing is directly relevant to the review of the particular decision under review. Section 106 of the Act provides:

   "106(1)     A person who wants to be granted a disability support pension must make a proper claim for that pension.

   106(2)     For the purposes of subsection (1), where:

   (a)a claim for disability support pension is made by or on behalf of a person; and

   (b)at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;

   the claim is, subject to subsection 100(3), to be taken not to have been made."

Section 100(3) of the Act provides:

"100(3)     If:

(a)a person lodges a claim for a disability support pension; and

(b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

It was the contention of the respondent that, if the applicant was not qualified at the date of the claim or within three months of such date, he can not succeed in the application to this Tribunal, even if the Tribunal was of the view that he qualified as at the date of hearing.  This is said to be so as a result of the abovementioned provisions and that the Tribunal is reviewing the decision on the claim made by the applicant on 19 February 1999.  Any new condition or deterioration of a claimed condition must be the subject of a new claim with appropriate medical assessments.  I am satisfied that the effect of these two sections is that the Tribunal can consider only assessment of impairment as at the date of claim or within three months of that claim.  It is the decision on that claim which is under review.  Even if this were not so, it is inappropriate for the Tribunal to make its own assessment without the appropriate medical assessment which would need to be made in relation to a current application.

1. Unfortunately for Mr Drar, the Tribunal has no option but to affirm the decision under review and, if he believes that he can now support a higher rating, to urge him to make a fresh claim. Given the finding that Mr Drar did not have an impairment of 20 points or more, it is unnecessary to consider whether he had a continuing inability to work at the relevant time. Suffice it to say that the then medical evidence indicated that he would not have satisfied that requirement of section 94(1)(c).

   I certify that the eleven (11) preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B. H. Pascoe, Senior Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  10 August 2000
   Date of Decision  30 August 2000
   The Applicant  Self-represented
   Solicitor for the Respondent    Ms S. Mantaring, Centrelink