El-Jamal and Secretary, Department of Family and Community Services

[2004] AATA 330

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N03/479

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AKRAM EL-JAMAL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal M.A. GRIFFIN

Date31 March 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

[sgd] Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – chronic neck and back pain – depression not fully treated and stabilised – decision affirmed

Social Security Act 1991 section 94

REASONS FOR DECISION

31 March 2004 M.A. GRIFFIN       

1.      This is an application by Mr Akram El-Jamal for review of a decision of the Social security Appeals Tribunal (“SSAT”) dated 28 February 2003. The SSAT affirmed the decision of an authorised review officer (“ARO”) of Centrelink dated 15 November 2002 to reject Mr El-Jamal’s claim for disability support pension (“DSP”).

2.      At the hearing of this matter on 12 August 2003 and 28 January 2004, Mr El-Jamal was self-represented and the Secretary, Department of Family and Community Services (“the Respondent”) was represented by Mr Emerson Thistlethwaite, an advocate from the Centrelink Service Recovery Team.  The Tribunal was assisted by an Arabic-speaking interpreter.

3. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals tribunal Act 1975 (T1-T50) as well as exhibits marked A1-A4 for Mr El-Jamal and R1-R5 for the Respondent.

BACKGROUND

4. On 24 October 2002, Mr El-Jamal lodged a claim for DSP. The treating doctor’s report of Dr Tadros, which formed part of the application, listed Mr El-Jamal’s claimed disabilities as lumbar disc lesion, cervical spine degenerative disease, hypertension and non-insulin dependent diabetes. On 12 November 2002 Dr Rose, a medical adviser from Health Services Australia (“HSA”), examined Mr El-Jamal and allocated him a total impairment rating of 5 points under the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 (“the Act”).

5.      On 14 November 2002 Centrelink rejected Mr El-Jamal’s claim for DSP. Mr El-Jamal applied for review of that decision. On 3 December 2002 the original decision-maker reviewed and affirmed the decision. Mr El-Jamal requested a further review. On 20 January 2003 an ARO reviewed and affirmed the decision. On 24 January 2003 Mr El-Jamal lodged an appeal against the decision with the SSAT. The SSAT affirmed the decision on 28 February 2003. On 24 March 2003, Mr El-Jamal requested review of the decision by this Tribunal.

ISSUES

6.      The issues before the Tribunal are:

·     Whether Mr El-Jamal suffers from a physical, intellectual or psychiatric impairment; and if so

· Whether the impairment is of 20 points or more under the Impairment Tables set out at Schedule 1B of the Act; and if so

·     Whether Mr El-Jamal has a continuing inability to work.

EVIDENCE

7.      Mr El-Jamal is 59 years old. He is married and lives with his wife. He told the Tribunal he has constant pain in his neck. He said his bathroom was “a chemist’s shop” with all the medication he has to take. He said he does not like taking medication and it only has a temporary effect. He has a motor car but only drives it 100 or 200 metres to the railway station. He said the pain starts in his neck and goes down to the shoulder. He said when he sits with his arms behind his head he feels no pain but after a time he gets problems with his back. He said he tries to keep his head steady because if he moves it he feels pain, and indeed he spent most the hearing time supporting his head with his hand.  He said when he sits normally he feels pain in his neck and shoulder.

8.      A report of Dr Guirgis, an orthopaedic surgeon, dated 4 October 2001, assessed Mr El-Jamal as having a loss of “about one quarter of normal range of movement” for the cervical spine function and allocated 5 points for that condition and a loss of “one half of the normal range of movement as well as back or referred pain: with most physical activities and with standing for about 15 minutes, and with sitting or driving for about 30 minutes” and allocated 20 points for the lumbar spine function.

9.      Dr Rose, the HSA medical adviser, examined Mr El-Jamal on 12 November 2002, some 13 months after Dr Guirgis’s report. Dr Rose found that Mr El-Jamal had one-quarter loss of the range of movement in his back and “normal movement observed in [his] neck” and allocated an impairment rating of 5 points. Dr Rose noted Mr El-Jamal’s hypertension and diabetes and determined a nil impairment rating was applicable to these conditions because both were adequately controlled by medication and “do not affect tolerance for physical activities”.

10.     Mr El-Jamal submitted another Treating Doctor’s report, this time from Dr Sheridan on 22 November 2002. Dr Rose reviewed this material and determined that there was nothing in it to justify any change to his previous assessment.

11.     Dr Guirgis saw Mr El-Jamal again on 13 February 2003. His report dated 17 February 2003 confirmed his previous assessment of the cervical spine function allocating 5 points. However, his assessment for the lumbar spine function was “loss of one quarter of normal range of movement” with an allocation of 10 points for the impairment rating. Despite being a specialist orthopaedic surgeon, Dr Guirgis also allocated 10 points for psychiatric impairment.

12.     After the SSAT decision Mr El-Jamal obtained further medical reports. A letter from Dr Tadros dated 23 May 2003 (A1) states that Mr El-Jamal has chronic depression and allocates 10 points for psychiatric impairment.  A report of Dr Attia-Soliman, a psychiatrist, dated 22 August 2003 (A2) diagnoses chronic dysthymic disorder or depression and prescribed an increased dose of anti-depressant medication. A report from Dr McGee-Collett, a neurosurgeon, dated 16 January 2004 (A3) states “I consider that he suffers a 20% permanent impairment of his cervical spine or, put another way, a 10% permanent impairment of his whole person”. Dr Attia-Soliman made a further report by way of an addendum handwritten on her first report on 9 September 2003 stating, in part, “took greater than maximum dose of Zoloft, did not respond, could not sleep, antidepressant Zoloft changed to Avanza…He has permanent and continuous disability total impairment with chronic depression 20%”.

CONSIDERATION OF ISSUES AND FINDINGS

13.     The Tribunal carefully considered all of the evidence both oral and written, the submissions of the parties and the relevant legislation in coming to the correct and preferable decision in this matter.

14.     The operative period to consider Mr El-Jamal’s claim commences on 24 October 2002, the day he lodged the claim for DSP. The period concludes 13 weeks thereafter.

15.      The specialist medical evidence in respect of Mr El-Jamal’s neck and back conditions, taken at its highest, amounts to 15 points as allocated by Dr Guirgis in his 17 February 2003 report. The relatively recent report of Dr McGee-Collett dated some 12 months after the end of the relevant period does not specifically allocate points pursuant to the Impairment Tables nor does it quantify the loss of range of normal movement. Dr McGee-Collett describes a “20% impairment of his cervical spine or, put another way, a 10% permanent impairment of his whole person”. The Tribunal notes that Dr Guirgis has been treating Mr El-Jamal for some years for his neck and back condition. The Tribunal notes Dr Guirgis’s assessment of the substantial change in the lumbar spine function over that period. In all the circumstances the Tribunal accepts the evidence of Dr Guirgis about the neck and back conditions and the loss of movement. The Tribunal agrees that the appropriate rating is the 15 points Dr Guirgis has allocated pursuant to the Impairment Tables for these conditions.

16.     As to Mr El-Jamal’s psychiatric condition, the Tribunal accepts the diagnosis of chronic depression given by Doctors Tadros, Guirgis and Attia-Soliman. Of these three doctors only one, Dr Attia-Soliman, is a specialist psychiatrist.  Dr Attia-Soliman’s diagnosis dates from 22 August 2003 but refers to depressive symptoms for the last four years. Dr Attia-Soliman’s later report of September 2003 describes a nil response to the prescribed anti-depressant and a change of medication.

17.     In these circumstances, it cannot be said that Mr El-Jamal’s psychiatric condition is fully treated and stabilised even now and certainly not at the time of his claim for DSP, or within the following 13 week period. Therefore, the condition of chronic depression cannot be considered as a permanent impairment and cannot be included in the assessment of Mr El-Jamal’s total impairment points.

18.     The conditions of hypertension and non-insulin dependent diabetes are adequately controlled by medication and receive a rating of nil points under the relevant tables.

19.     Consequently, the Tribunal finds that the total of the impairment points for all the conditions claimed by Mr El-Jamal amounts to 15 points.

20. The Tribunal finds that Mr El-Jamal does not satisfy subsection 94(1)(b) of the Act, which states that the impairments must attract a rating of 20 impairment points or more under the Impairment Tables. It is therefore not necessary to determine whether Mr El-Jamal has a continuing inability to work, as he does not satisfy subsection 94(1)(b). Mr El-Jamal therefore does not qualify for DSP and his application must fail.

DECISION

21.     The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. GRIFFIN

Signed: Guy Moloney           .....................................................................................
  Associate

Date/s of Hearing  12 August 2003, 28 January 2004
Date of Decision  31 March 2004
Counsel for the Applicant         Self
Counsel for the Respondent     Emerson Thistlethwaite