El Hawat; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 617
•16 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 617
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1375
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
NADIM EL HAWAT
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberDate16 July 2008
PlaceSydney
Decision The reviewable decision is set aside and substituted therefor is our decision that, as at 30 November 2005, Mr El Hawat did not qualify for disability support pension. .................[sgd]....................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – relevant physical, intellectual or psychiatric impairments – L5/S1 intervertebral disc disease - anxiety/depression and memory impairment - whether impairment rating of 20 points or more at date of cancellation – medical and job capacity assessment evidence considered – zero points under Table 5.2 for laminectomy / discectomy – SSAT decision set aside – decision substituted did not qualify for pension
Social Security Act 1991, s 94, Schedule 1B
REASONS FOR DECISION
16 July 2008 Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberINTRODUCTION
1. Mr Nadim El Hawat began receiving the disability support pension (DSP) in October 1997 when he was 27 years old. He had been injured when run down by a motor vehicle in 1987. His injuries included abrasions to the face, left shoulder and hand, and tenderness in the chest and abdomen. He suffered a compound fracture of his right tibia and fibula, and fractures of the third, fourth, fifth, sixth and seventh ribs on the left side. He suffered back problems which resulted in a laminectomy and discectomy in 1994.
2. On 30 November 2005 a delegate of the Secretary of the Department of Education, Employment and Workplace Relations (the Secretary) cancelled Mr El Hawat's DSP. Following an internal reconsideration of that decision, Mr El Hawat successfully sought the review of that decision by the Social Security Appeals Tribunal (SSAT). In these proceedings, the Secretary seeks the review of the SSAT's decision made on 1 September 2006, which found that Mr El Hawat satisfied the criteria set out in s 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) and set aside the decision to cancel his DSP.
3. For the reasons that follow we set aside the reviewable decision and substituted therefor is our decision that Mr El Hawat did not qualify for DSP on 30 November 2005.
THE ISSUES
4. The relevant date for assessment is the date of the decision to cancel the DSP, that is, 30 November 2005. The Secretary concedes that Mr El Hawat satisfied s 94(1)(a) of the Act in that he had the following physical, intellectual or psychiatric impairments: L5/S1 intervertebral disc disease; right tibia/fibula injuries; left shoulder injury; neck condition; pneumothorax; right elbow pain; anxiety/depression; and memory impairment.
5. The issues are therefore whether Mr El Hawat's impairments should be assessed at 20 points or more under the Tables in Schedule 1B to the Act, and if so, whether he has a continuing inability to work, as defined, as at 30 November 2005.
THE CASE FOR MR EL HAWAT
6. Mr Sutherland, who appeared for Mr El Hawat, argued that the SSAT's decision was correct. That is, that Mr El Hawat had 20 points impairment for anxiety/depression under Table 6, Psychiatric Impairment. The SSAT gave nil impairment ratings for Mr El Hawat's back, neck and upper and lower limb conditions under Tables 3, 5, 5.1 and 5.2 of Schedule 1B of the Act, respectively.
7. The SSAT also found that Mr El Hawat could not work for 30 hours or more a week at award wages in the next two years in any job without retraining because of his anxiety-depression and musculo-skeletal conditions, and therefore satisfied s 94(2)(a).
8. That Tribunal also accepted that Mr El Hawat's conditions may not prevent his undertaking some training in the next two years but that that the training would not equip him to do work for 30 hours or more a week and, therefore, he satisfied s 94(2)(b)(ii) of the Act. Consequently, he had a continuing inability to work and satisfied s 94(1)(c)(i).
CONSIDERATION
9. We had extensive material before us, including the 1995 decision in Mr El Hawat's common law proceedings following the accident. We had medical reports from 1994 until 2007, various forms filled out by Mr El Hawat, and treating doctors' reports relevant to the DSP from 1997. We had a number of work capacity and job capacity assessments. We heard evidence from Mr El Hawat, Dr George, and two job capacity assessors.
10. However, it is critical in this case to appreciate that our assessment has to be made as of the date of cancellation of the DSP, that is, 30 November 2005.
Mr El Hawat’s claim for DSP
11. In the Medical service update form that Mr El Hawat filled out on 2 November 2005, he listed his disabilities as “multiple fractures, bad back, neck, shoulder, leg, mental stress". He wrote that he was working 5-10 hours per week, 50 weeks a year. He apparently asked Dr Maniam, orthopaedic surgeon, to fill out the treating doctor's report. Dr Maniam had carried out the discectomy and laminectomy in 1994. The only condition the doctor addressed in his report of 2 November 2005 was Mr El Hawat's lumbar spine. Dr Maniam wrote that it caused Mr El Hawat difficulty with heavy lifting, bending, and prolonged standing. He also noted that the current symptoms were pain in lumbar spine and into lower limbs.
12. Dr Maniam had provided earlier reports to Centrelink. In 1997 in support of the application for DSP, Dr Maniam diagnosed L5/S1 IUD protrusion and impingement, pain in the right ankle, right shoulder, and right tibia and fibula. In a 2004 report Dr Maniam also referred to anxiety/depression as a condition that significantly affected Mr El Hawat's ability to function, as well as the lumbar spine condition. Dr Maniam did not refer to anxiety-depression in his November 2005 report.
13. The work capacity / participation assessment carried out closest to the date of cancellation was dated 25 November 2005. It was a face to face assessment by Advanced Personnel Management. The following conditions were considered: neck injury, injury to “R tibia/fibula”, “L shoulder injury”, “R elbow pain”, “anxiety/depression”, and “memory impairment”. The assessor found the laminectomy / discectomy to be a permanent condition and allocated nil points under Table 5.2. She considered as temporary conditions the right tibia/fibula injuries, the shoulder injury (non dominant), the neck condition, pneumothorax, elbow pain (dominant), anxiety/depression and memory impairment. She noted that Mr El Hawat used cannabis to assist with pain and anxiety and did not use any other pain medication.
14. It is significant that, on 23 December 2005, Mr El Hawat wrote to Centrelink saying that he believed that the decision to cancel his DSP was wrong because of his "mental problems & stresses". He did not express disagreement with the assessment of his physical impairments.
15. Mr El Hawat was referred to CRS Australia. In a letter dated March 2006, CRS stated that he would not be offered a rehabilitation program because he was not ready for a vocational rehab program "due to your difficulties with marijuana addiction, feelings of anger and high levels of agitation". CRS recommended referral to a Personal Support Program (PSP). Mr El Hawat said that he had applied, but had heard nothing. Mr Hamilton, who appeared for the Secretary, advised the Tribunal that such a program is not available when a review of a decision is sought. We note however that the Authorised Review Officer stated the Mr El Hawat did not want the PSP because it would not help him get better. Reference to PSP is made in later assessments also but apparently nothing has occurred.
16. In a decision dated 10 July 2006, the ARO gave Mr El Hawat 15 points under Schedule 1B – 10 points for anxiety and depression (Table 6) and 5 points under Table 7 for drug dependence.
Assessments after SSAT appeal
17. Following Mr El Hawat’s success in the SSAT in September 2006, a flurry of activity occurred on the part of the Secretary once the matter came before this Tribunal.
18. Ms Hanzal-Jones, registered nurse, assisted by Ms Stratford, occupational therapist, carried out a face-to-face job capacity assessment and prepared a report on 27 February 2007. They found the following permanent impairments: - Table 5.2 spinal function 0 points; psychiatric impairment 20 points under Table 6 based in part on Dr Sharah's reports; low vision both eyes under table 13, nil points – widespread retinal dystrophy. The assessment of the eye condition was based on a report of Dr Ong dated 29 November 2006. Dr Ong's report was not before the Tribunal and no mention of an eye condition arose until this assessment. It is not a condition that we consider on the evidence was apparent on 30 November 2005 and we do not consider it further.
19. In the February 2007 job capacity assessment, there seems to have been no assessment of the extent to which Mr El Hawat's job capacity was affected by his permanent impairments. The assessment was that his permanent conditions reduced his future capacity to work but that he was also temporarily incapacitated for a period of 18 months when he could carry out 0-7 hours per week to enable him to undergo treatment for substance abuse.
20. Ms Stratford a prepared further report on the basis of file assessment on 29 May 2007. She found the same permanent conditions as in the February 2007 report but reduced the points for the psychiatric condition to 10, relying on Dr George's report of December 2006. She repeated that Mr El Hawat had a temporary reduction in work capacity due to his substance abuse and to allow for appropriate treatment. She expressed the opinion that following resolution of substance abuse, Mr El Hawat should be able to engage in full time appropriate work.
21. In a letter dated 10 July 2007 in response to a request for clarification of her report, Ms Stratford said that, as of 30 November 2005 "and 13 weeks thereafter", Mr El Hawat had a capacity of 30+ hours per week.
22. Ms Stratford undertook a further file assessment on 18 June 2007. In this assessment Ms Stratford found two permanent psychiatric impairments – Depression and Anxiety. She assessed 10 points under Table 6 for Anxiety and nil under the same table for depression. Her findings in relation to the lumbar spine and eyes were the same as before. Her finding in relation to work capacity was the same as in the previous report.
23. Dr Harvey-Sutton, Consultant Occupational Physician, assessed Mr El Hawat as of 20 February 2008 when she saw him, rather than as at 30 November 2005. She allocated five points for each of the following: under Table 3 (non dominant upper limb); Table 5.1 (cervical spine), Table 5.2 (thoraco-lumbar-sacral spine), and Table 7 (alcohol and drug use). That is a total of 20 points. We do not find her report of assistance for two reasons. First, Dr Harvey-Sutton does not attempt to make an assessment at the relevant date, that is 30 November 2005. Secondly, there was no contemporaneous evidence that the non-dominant upper limb and cervical spine were causing Mr El Hawat any difficulties at the relevant date. In particular, we note the report of Dr Maniam and the work capacity / participation assessment of impairments November 2005.
24. Ms Stratford carried out a further file assessment on 4 March 2008. The assessment took into account information that came into existence after the cancellation date, and which did not address Mr El Hawat's condition at the relevant date. We do not find this report of assistance.
Mr El Hawat’s mental health
25. Mr El Hawat's mental health is an important issue in this case because the SSAT had found that Mr El Hawat had 20 points impairment for anxiety/depression under Table 6, Psychiatric Impairment. Their finding was based on the evidence of Dr Sharah.
26. However, Dr Sharah's evidence and the expert evidence of psychiatrists Dr George and Dr Roberts does not address how his condition was as of the date of cancellation of the DSP, which is what we are concerned with. Rather, the evidence persuades us that Mr El Hawat's mental health deteriorated after, and as a consequence of, the cancellation decision.
27. Following is our assessment of that evidence that has caused us to come to those conclusions.
28. Mr El Hawat told the SSAT that his most significant problem was stress, anxiety and depression. Significantly, he told the SSAT that prior to December 2005, he was coping with that problem, however when his disability pension was cancelled he could not longer cope.
29. The SSAT relied on the evidence of Dr Sharah who supplied reports dated 19 February 2005 and 23 February 2006. Dr Sharah first saw Mr El Hawat on 10 December 2005, that is, after the cancellation decision. Dr Sharah is a general practitioner who has some qualification in psychiatry, but he is not a fellow of the Royal Australian and New Zealand College of Psychiatrists.
30. Mr El Hawat told Dr George in December 2006 that he had been coping before the cancellation decision. His evidence at the hearing was to similar effect. It is also consistent with Mr El Hawat's consulting Dr Sharah in December 2005. Mr El Hawat described to us and the SSAT how he felt Centrelink was victimising him. His thoughts about killing a Centrelink officer arose after the cancellation of the DSP. According to Mr El Hawat, the officer told him he had no hope of having his DSP restored.
31. The reports of Dr Roberts and Dr George have been helpful to our understanding of Mr El Hawat's mental health since the cancellation of his DSP, but do not reflect his condition at the date of cancellation. We note that Dr George saw Mr El Hawat in December 2006 and Dr Roberts saw him on 9 October 2007. We also had the benefit of oral evidence from Dr George.
32. Mr El Hawat began a program to reduce or cease his cannabis use at Westmead Hospital in about July 2007 at the suggestion of a psychiatrist, Dr Baker. He attended for about 4 months and said that he had inquired about going back but had difficulty contacting the person with whom he had dealt in the past. He had reduced his use of cannabis as a result of that program. Therefore Dr George saw him before he undertook the program and Dr Roberts saw him while he was undertaking the program.
33. Mr El Hawat told Dr George that he was smoking 50 to 60 bongs a day. He told us that it was probably 40 at that time. Dr George thought his most significant problem was cannabis abuse. At that time he did not seem motivated to become abstinent. His prognosis was poor with respect to his cannabis abuse. Dr George considered that he may have a mild organic disorder but the mini-mental exam did not show any marked impairment. He wrote:
Any impairment he has would be relatively mild and would not impact on sedentary work for 40 hours a week.
34. Dr George estimated that Mr El Hawat's psychiatric impairment from cannabis abuse would not be more than 10%. This figure seems, wrongly, to have been applied as 10 points in a later JCA. Dr George also was of the opinion that his cannabis use would probably be the cause of paranoia at times.
35. Dr Roberts commented that although Mr El Hawat asserted a constellation of symptomatology, certain assertions he made:
are more consistent with an attempt to portray himself as being ill rather than genuine illness. Mr El Hawat's assertion of cognitive impairment is simply not borne out by his presentation.
36. In summary, given Mr El Hawat's presentation and inconsistencies in presentation, Dr Roberts:
was unable to confirm the degree of severity of his impairment and on reasonable psychiatric grounds would consider that such is unlikely to be of the severity that he asserts and that he is capable of undertaking far more in terms of activities than he alleges.
37. Mr El Hawat reported to Dr Roberts that he was working for his brother 20 hours a fortnight. Dr Roberts considered that the only qualification he would make in relation to employment Mr El Hawat might undertake was that his cannabis use would make it inappropriate for him to work with machinery or in circumstances where rapid decision-making was required, or where decisions affected by substance use could adversely affect the affect the health and safety of himself or others. Mr El Hawat told Dr Roberts that he was using one gram of cannabis a day and that he was cutting down and that he was seeing a substance abuse counsellor.
38. Dr Roberts made the following comment about Mr El Hawat's treatment:
The treatment of Mr Nadim El Hawat requires explanation since it is not understandable to me. Why Mr El Hawat should be seeing Dr Sharah on a daily basis is obscure. The prescription of Dexamphetamine to a person who uses marijuana would on grounds of probability result in an exacerbation of symptomatology produced by marijuana rather than an amelioration.
39. Dr Roberts also referred to Dr Sharah's assertion that Mr El Hawat had severe brain damage. Dr Roberts said that clinically there was nothing to support that. Further, in relation to Dr Sharah's statement that Mr El Hawat is able to function in a work situation but his mental state prevents this if he is not taking marijuana, Dr Roberts stated that the assertion that marijuana is to be regarded in this case as having any positive therapeutic value would not be consistent with mainstream psychiatry. We accept Dr Roberts' opinion on that matter.
40. We note that Dr Roberts concluded that he was unable to provide an accurate assessment, or assign any impairment points for psychiatric impairment under Table 6, because of clear inconsistencies in Mr El Hawat’s presentation.
41. The program Mr El Hawat undertook at Westmead Hospital in about July 2007 at the suggestion of a psychiatrist, Dr Baker, helped him reduce his cannabis use. The evidence of both Doctor George and Dr Roberts is that reducing or ceasing cannabis abuse would be most beneficial to Mr El Hawat and that his using cannabis is his choice.
CONCLUSION
42. Generally, we have not found material obtained after November 2005 to be of assistance because it does not address Mr El Hawat's state as of the relevant date, which is the date of cancellation on 30 November 2005. In our view, the SSAT gave great weight to Dr Sharah's reports, which related to Mr El Hawat's condition after the decision. We have had the benefit of recent expert psychiatric reports that indicate that Mr El Hawat's main problem is cannabis abuse. They indicate his use of cannabis is a matter of choice. There was little evidence of any organic disorder.
43. On the evidence that was contemporaneous with the cancellation to which we have referred, in particular the report of Dr Maniam and the assessment carried out, we find that the only permanent impairment Mr El Hawat had as at 30 November 2005 was to his lumbar spine. We would allocate 0 points under Table 5.2 of Schedule 1B of the Act based on the November 2005 work capacity assessment. In coming to that conclusion, we consider that the only conditions that should be taken into account are those that Mr El Hawat listed in the Medical Services update form he filled out in November 2005, and the additional conditions considered by the assessor in November 2005, following the face to face assessment. In our opinion, that information reflects the conditions which Mr El Hawat believed were "impairments" at that time.
44. The reviewable decision is set aside and substituted therefor is our decision that Mr El Hawat did not qualify for DSP as at 30 November 2005. The decision to cancel the DSP was the correct or preferable decision.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr MEC Thorpe, Member.Signed: ………[sgd] .………..
Steven Mulipola, Associate
Date of hearing: 10 March 2008
Date of decision: 16 July 2008
Solicitors for the Applicant: Logical Legal Solicitors
Solicitors for the Respondent: Centrelink Legal Services
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