El-Arif and Secretary, Department of Family and Community Service S
[2003] AATA 1001
•3 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/664
GENERAL ADMINISTRATIVE DIVISION ) Re Jamel El-Arif Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date3 October 2003
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
[Sgd] G Ettinger
Senior Member
CATCHWORDS
SOCIAL SECURITY – claim by Applicant for disability support pension – permanent impairment asthma condition and depression – impairment rating - decision affirmed
Social Security Act 1991 sections 94, 100
REASONS FOR DECISION
Ms G Ettinger, Senior Member
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member G Ettinger
Signed: L Bonouvrie
Associate
Date of Hearing 3 October 2003
Date of Decision 3 October 2003
Representative for Applicant Self-represented
Advocate for Respondent Mr Emerson Thistlethwaite
DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No 03/664
By MS G. ETTINGER, Senior Member
EL-ARIF and SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, FRIDAY, 3 OCTOBER 2003MS ETTINGER: Now these are the reasons for decision in the matter of Jamal El-Arif heard 2 October 2003. It is now 3 October 2003, 10.00am.
The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 9 October 2002 (T18) as affirmed by the authorised review officer on 19 December 2002 (T35) and the Social Security Appeals Tribunal on 14 March 2003 (T2) which refused the claim by the Applicant, Mr Jamal El-Arif, for Disability Support Pension (“DSP”).
The Applicant was self represented and the Respondent department was represented by its advocate Mr Emerson Thistlethwaite. The Tribunal was assisted by Mr Nada Khodr, an interpreter in the Arabic language.
Issue Before the Tribunal
The issue before the Tribunal was whether the Applicant satisfied the criteria pursuant to section 94(1) and (2) of the Social Security Act 1991 and thus whether the Applicant was eligible for DSP a legislative framework.
Legislative Framework
The relevant legislation in this matter is the Social Security Act 1991 in particular sections 94(1) and (2):
“SECT 94 Qualification for disability support pension
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;
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
Note: For work see subsection (5).”
“94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
…’
“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.
…”
Preliminary Matters
I noted that it was not in dispute and the Tribunal accepted that the Applicant suffers impairment because he has an asthma condition and depression which have stabilised and are permanent. Accordingly the Applicant satisfies the test in section 94(1(a) of the Social Security Act 1991.. I noted that the Applicant also discussed his hypertension and there was medical evidence before the Tribunal to that effect, however that is another matter as it appears from the medical evidence not to have stabilised and it is not necessarily a permanent condition. Accordingly it cannot be taken into account in assessing permanent impairment for purposes of this claim.
Therefore the issue to be decided by the Tribunal was whether the Applicant's asthma and depression have a combined impairment rating of 20 or more points in accordance with section 94(1)(b) of the Social Security Act 1991 and calculated with reference to the Tables for the Assessment of Work Related Impairment for Disability Support Pension (“the Impairment Tables”). They are produced pursuant to Schedule 1B of the Social Security Act1991. If the Applicant is found to be suffering 20 or more impairment points pursuant to the impairment tables then I would have to decide whether the applicant meets the conditions in section 94(1)(c) of the Social Security Act1991.
Evidence before the Tribunal
ITEM
DATE
NAME
Exhibit R1
T-Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit R2
Respondent’s Statement of Facts and Contentions
Exhibit A1
31 August 2003
Report of Dr Mariam Ferkh
I move then to consider the evidence of the applicant Mr Jamal El-Arif who was the only witness.
Evidence of the Applicant
Mr El-Arif whose date of birth was 9 September 1957 gave oral evidence before the Tribunal. He said that he wished he could have been represented. I assured him he was very welcome to present his case himself with the assistance of the interpreter. Mr El-Arif also complained that no one at Centrelink would listen to him and I reassured him that I was there to listen carefully to what both parties had to say and I have certainly endeavoured to do that.
Mr El-Arif told me that his main complaints were his asthma, depression and hypertension. He mentioned his general practitioner Dr Mariam Ferkh quite a few times as well as another general practitioner who is his neighbour. He mentioned the latter towards the end of the hearing and said that she monitored his blood pressure. There were no reports of the latter before the Tribunal.
Mr El-Arif told me that he was a welder and had suffered for a long time with his asthma not realising what was wrong and hence not seeking medical attention. He dated that back to 1996 although he could not remember most dates. He said that he had a wife and three children to look after. He said he changed employers in about 1999 and stayed there six to seven months and he said, “I had broken down in the chest”.
Mr El-Arif recounted how he felt very tired, knew he was not performing as well as he should at work and how he implored his employer to be patient with him. He said that his employer was kind but eventually paid him out and told him they no longer needed his services but would contact him if they did. Mr El-Arif said that he stayed at home and was sick with his asthma, his wife saying that he had worked for fourteen years in Australia and needed a rest. Mr El-Arif however said that he loved to work and after six months he again sought welding work which he could not do after three weeks. In reply to cross examination in regard to why he had not made a worker's compensation claim rather than a claim for disability support pension Mr El-Arif said that he did not want to claim money and anyway he did not really know he was sick when he was working. He said that he left work because of his asthma and his depression and the problems these were causing with his work.
Mr El-Arif was unable to recall dates but told the Tribunal that Dr Ferkh thought he looked sad and referred him to Dr Younan, a Psychiatrist. I noted that Dr Younan first saw Mr El-Arif on 8 October 2002 (T24) and for the second time on 20 February 2003 (T38). Mr El-Arif's evidence was that he saw Dr Younan every two months and sometimes monthly and felt very comfortable talking to him. He said that Dr Younan also prescribed certain tablets.
Mr El-Arif also gave evidence about his current search for jobs saying he could not do welding but tried to get a job delivering papers and anything else where there was no dusty atmosphere which would aggravate his asthma. He said he was often told he was too old when he applied for jobs. When I asked him if he could work full time Mr El-Arif said that he thought he could work approximately three hours a day. He said that Centrelink did not understand his health problems and sent him for example to work with an upholsterer, which was a dusty atmosphere. He said he could not do that.
When cross examined about his apparent refusal to undergo rehabilitation, which I noted was documented in a file note of the department dated 17 October 2002 (T24), Mr El-Arif denied that he refused, and said that what was offered was an English course. He also spoke about a course on gardening and flowers which he said he could not understand and hence attended for only two days.
Medical Evidence
There were a number of medical reports documenting the Applicant's impairments in evidence before the Tribunal which have been considered. A discussion follows.
Medical Evidence of Dr Mariam Ferkh – General Practitioner
There were reports of Dr Ferkh who has been the Applicant's treating general practitioner since 1997 and these were before the Tribunal at T7 dated 22 August 2002, T14 dated 6 September 2002, T40 dated 4 March 2003 and Exhibit A1 dated 31 August 2003.
In the first report dated 22 August 2002, Dr Ferkh mentioned Mr El-Arif's asthma and his hypertension which she then described as recent. She completed the report to indicate that Mr El-Arif could return to work within six months and it would be two years before he could return to full time work. In her later report at T14 Dr Ferkh had changed her opinion to say it would be in excess of two years before the Applicant could return to work. At T40 which was dated 4 March 2003 Dr Ferkh also indicated that in respect of asthma and depression, the impact of the condition on Mr El-Arif's ability to function was expected to persist for more than two years.
In her final letter dated 31 August 2003 which in fact falls outside the relevant period to be taking into account, which is 20 August 2002 to 29 November 2002 Dr Ferkh indicated Mr El-Arif had since 1 August 2002 been suffering and continued to suffer major depression, chronic asthma and hypertension. She rated Mr El-Arif at 20 impairment points for his depression and 20 for his chronic asthma. As to hypertension, she stated the control of his blood pressure had been reasonable but not optimal and found there would be minimal effect of work attendance from this disorder.
I noted that Dr Ferkh had referred Mr El-Arif to Dr Tam who is a thoracic and sleep disorders physician. He agreed that Mr El-Arif suffers chronic asthma and recommended certain medication.
I turned then to consider the medical evidence of Dr Younan, Mr El-Arif's treating psychiatrist.
Medical Evidence of Dr Younan
There were two reports of Dr Younan before the Tribunal, very short reports, dated 15 October 2002 (T23) and dated 20 February 2003 (T38). In his first report Dr Younan found that Mr El-Arif manifested depressive symptoms in addition to panic attacks and prescribed medication. On the second consultation dated 20 February 2003 Dr Younan stated that the patient had reported no improvement.
Medical Evidence of Dr Pereira of Health Services Australia
Dr Pereira's report was dated 2 October 2002 (T17). He opined that Mr El-Arif suffered no functional impairment from his hypertension, also noting that the Applicant had suffered anxiety and depression for two years unrelated to his employment. However Dr Pereira then considered him not clinically depressed and rated Mr El-Arif at nil impairment points for his psychiatric condition. Dr Pereira discussed Mr El-Arif's asthma and rated him at 5 impairment points for his asthma.
Submissions and Conclusions
In deciding whether Mr El-Arif satisfied the requirements of section 94(1) of the Social Security Act 1991 during the relevant period and therefore qualified for Disability Support Pension from the time of his application on 20 August 2002 and for the three months following that date I have to take into account the evidence, legislation, case law and submissions in order to make the correct and preferable decision.
I noted that pursuant to section 100(3) of the Social Security Act 1991 the period upon which the Tribunal had to take into account in regard to Mr El-Arif's eligibility for DSP was 20 August 2002 to 29 November 2002. That is to consider the Applicant's medical condition and eligibility as at the date of his application for DSP and in the three months following.
Mr Thistlethwaite submitted that the Respondent accepted that Mr El-Arif suffers impairment in satisfaction of section 94(1)(a) of the Social Security Act 1991 so that the only issues remaining to be considered by the Tribunal were whether the Applicant had a combined impairment rating of 20 impairment points or more pursuant to section 94(1)(b) of the Social Security Act 1991 as assessed under the impairment table set out in Schedule 1B of the Act and if found to be so whether he has a continuing inability to work pursuant to section 94(1)(c) of the Act.
As discussed previously in these reasons I accepted that there was no dispute that the applicant suffers impairment that is asthma and depression. That he suffered those at the time of his application for DSP and in the three months following. I was therefore satisfied that the applicant fulfilled the requirements pursuant to section 94(1)(a) of the Social Security Act1991.
I turned my attention then to whether the Applicant's impairment rating reached a combined total of 20 or more impairment points, calculated in accordance with the impairment tables and pursuant to section 94(1)(b) of the Social Security Act 1991..
I was mindful that the legislation requires a claimant for DSP to have his or her injuries fully documented, diagnosed, treated and stabilised at the time of the claim. In this respect and in light of the concessions of the respondent I formed the opinion that Mr El-Arif's asthma and depression which were the subject of his DSP claim had been sufficiently documented, diagnosed, treated and stabilised at the time of his claim for the DSP.. I was mindful too from the reports of Mr El-Arif's general practitioner, Dr Ferkh, that he suffers hypertension which has been investigated and reported on by Dr Penny. It has however not stabilised and may yet not be a permanent condition. It cannot therefore be considered in the content of this claim for permanent impairment and therefore DSP.
I noted also from the medical evidence and that of Mr El-Arif that his condition may have deteriorated between the time of lodging the claim and the hearing. That may then be relevant to any future claim.
In considering the Applicant's evidence and submissions I noted he submitted he would “love to be able to work” and look after himself and his family and his children. He submitted that he had tried to continue working with his disabilities, in fact did not even realise how sick he was initially, but that after some years of pain and suffering he was unable to continue. He gave a history of leaving his job as a welder, trying another job and not being able to work to full capacity with the result that he was ultimately dismissed.
I noted Mr El-Arif's submission that he wanted to maintain his health, that he cannot work and that he does not want to be a failure.
Mr Thistlethwaite submitted that the Respondent accepted Mr El-Arif's impairment rating of 5 that the asthma was correctly assessed. He submitted that this was supported by the report of Dr Pereira. Mr Thistlethwaite also submitted that notwithstanding Dr Pereira's rating of nil for depression, the Respondent accepted the finding of the Social Security Appeals Tribunal that Mr El-Arif could be assigned 10 impairment points pursuant to table 6 of the Impairment Tables for his depression.
I noted also the opinions of Dr Ferkh, Dr Younan, Dr Tam and Dr Pereira. I noted that Dr Ferkh did not rate Mr El-Arif on impairment points until her letter of 31 August 2003 which is dated outside the period which I can consider. However in that letter she opined that Mr El-Arif has been suffering depression, panic and anxiety attacks since August 2002 and suffers chronic asthma. Accordingly her rating of 20 impairment points for the asthma and 20 for the depression dates back to the relevant period and can be taken into account.
I was mindful also of Dr Younan's assessment of depressive symptoms and panic attacks and the fact that Mr El-Arif is now in Dr Younan's care. Mr El-Arif said that he sees Dr Younan either monthly or every two months and that he takes medication prescribed for him and feels he benefits from the talks and medicine. I was persuaded by Dr Younan's report and Mr El-Arif's evidence that the Social Security Appeals Tribunal's assessment of 10 impairment points for Mr El-Arif's depression was an appropriate measure.
I noted also Dr Tam and Dr Ferkh's opinions regarding the chronic asthma and noticed Mr El-Arif's asthma is well controlled by medication provided he does not expose himself to chemicals, fumes or dust. I was mindful that Mr El-Arif has not been hospitalised for asthma although he has attended hospital a number of times with panic attacks. I accepted Dr Pereira's assessment of 5 impairment points in that regard as appropriate.
I preferred the medical reports which gave the ratings noted above to the impairment rating given by Dr Ferkh when I applied the Impairment Tables and considered all the evidence and submissions.
Therefore in assessing the relevant medical information before me, I was satisfied that the maximum impairment rating that could be assigned to the applicant was a rating of 10 for the depression and 5 for the asthma, making it 15 impairment points.
Accordingly Mr El-Arif does not meet the threshold of 20 points necessary to meet the test in section 94(1)(b) of the Social Security Act 1991. I do not therefore need to assess whether he has a continuing inability to work pursuant to sections 94(1)(c) and apply 94(2) of the Social Security Act 1991.. I accepted that there are issues with him returning to work as a welder due to the environment but retraining is available and Mr El-Arif may be able to avail himself of this.
Therefore the correct and preferable decision is to affirm the decision of the Department and the Social Security Appeals Tribunal to refuse the Applicant's claim for Disability Support Pension.
I noted also that Mr El-Arif's conditions may have deteriorated in recent times and if he can obtain further medical reports which confirm this, or if he has other medical conditions which are permanent then he may be able to lodge another claim for disability support pension in the future.
By way of completeness I note here that Mr El-Arif told the Tribunal that he was upset at having to look for work in connection with his present Newstart Benefit Payments. Mr Thistlethwaite explained correctly that given his hypertension had not yet stabilised this condition could not be considered as part of this Disability Support Pension claim. He said however that Centrelink may be able to take into account medical certificates certifying Mr El-Arif unfit for work in regard to the hypertension and if that were the case Centrelink may well then waive the requirement that he look for work. He advised Mr El-Arif to check with his doctor.
I then made the decision which follows.
Decision
The Tribunal affirms the decision of the Delegate of the Secretary, Department of Family and Community Services dated 9 October 2002 as affirmed by the authorised review officer on 19 December 2002 and the Social Security Appeals Tribunal on 14 March 2003 which refused the claim by the Applicant, Mr Jamal El-Arif for Disability Support Pension. Accordingly the claim is unsuccessful. Thank you.
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