Fadel and Secretary, Department of Social Services (Social services second review)

[2016] AATA 93

Fadel and Secretary, Department of Social Services (Social services second review) [2016] AATA 93 (23 February 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2779
Re	Ibrahim Fadel
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Prof R McCallum AO, Member
Date	23 February 2016
Place	Sydney

The decision under review is affirmed.

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

Prof R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4(1)

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Prof R McCallum AO, Member

23 February 2016

INTRODUCTION

1. Mr Ibrahim Fadel was born in Lebanon and immigrated to Australia in 1978. In 1980, he injured his back when working for the New South Wales railways. He has not worked in Australia since this accident.

2. Mr Fadel returned to Lebanon in 1982 where he was supported by his family, but he returned to Australia in 1988.

3. On 1 April 2010, Mr Fadel was granted Disability Support Pension (DSP).

4. On 19 July 2013, Mr Fadel travelled to Lebanon, however, on 29 November 2013, Mr Fadel's DSP was cancelled as he remained outside Australia beyond the portability period.

5. Mr Fadel returned to Australia on 23 October 2014.

   Mr Fadel's 2014 Application For DSP

6. On 6 November 2014, Mr Fadel applied for DSP.

7. Dr Ismail wrote a medical report dated 7 December 2014 in support of Mr Fadel's application. In this report, Dr  Ismail stated that Mr Fadel had the following conditions: multiple disc bulges in the back, nerve root compression, causing back pain; severe anxiety and depression; diabetes mellitus; ischaemic heart disease; and bilateral cataracts.

8. On 2 January 2015, Mr Fadel undertook a job capacity assessment report. The assessor held that none of Mr Fadel's conditions were assessable under the impairment tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the impairment tables). This was because the conditions were variously found not to be fully diagnosed, or treated or stabilised. The assessor also found that Mr Fadel had a baseline work capacity of 8 to 14 hours per week, with 15 to 22 hours work capacity in the future with intervention.

9. Dr Ismail provided a further and more detailed report dated 19 January 2015. As well as discussing Mr Fadel's five conditions, Dr Ismail also stated that Mr Fadel suffered from sleep apnoea.

   Reviews By The ARO And The SSAT

10. Mr Fadel sought review from an Authorised Review Officer (ARO) and then from the former Social Security Appeals Tribunal (SSAT), but to no avail.

11. Briefly put, the ARO held that none of Mr Fadel's conditions were variously not fully diagnosed, or treated or stabilised and could not be assessed under the impairment tables.

12. The decision of the SSAT is dated 5 May 2015.  The SSAT held that Mr Fadel's degenerative back and neck disorder was fully diagnosed, treated and stabilised and assessed it at 10 points under table 4 of the impairment tables. Table 4 is titled "Spinal Function".

13. Mr Fadel attended the hearing and gave evidence. The SSAT discussed the limitations flowing from his back and neck impairments as follows.

    [16]. ...Mr Fadel described his pain as constant, located low in his back and to the right, the pain radiating down to his right knee and associated with numbness and pins and needles in both feet and both hands. The pain is aggravated by prolonged sitting, standing and walking, being only able to sit for five minutes, stand for three minutes and walk for about 30 metres, the latter limited primarily by breathlessness rather than pain. The tribunal noted that Mr Fadel stood from a sitting position, unassisted other than by his walking stick, after 30 minutes of the interview. He denied suffering from significant neck pain but that his neck is very stiff, such that he has to turn his whole body to see a full range to the sides. Because of stiffness, he cannot sustain overhead activities. He continues to drive his car short distances, though most of the time he is driven by his family. He was driven by his son to the tribunal hearing from Bexley to the city, a distance unlikely to have been covered in less than 30 minutes. He can bend, which he demonstrated for the tribunal, with little apparent difficulty, to knee level. He is unable to bend to floor level, unless he bends his knees. However, having bent to knee level, he sometimes has difficulty arising, needing the assistance of a family member to help him stand from a bent position. He uses a walking stick not only for support but because he has a tendency to fall, and even at home he has fallen frequently. He sometimes uses a walking frame either instead of, or as well as, a walking stick.

14. The SSAT further held that Mr Fadel's anxiety and depression had not been fully diagnosed because under Social Security law, any mental health issue can only be fully diagnosed by a psychiatrist or a clinical psychologist. There was no evidence that Mr Fadel had consulted a psychiatrist or a clinical psychologist.

15. The SSAT accepted that Mr Fadel's diabetes had been fully diagnosed, treated and stabilised. However, as Dr Ismail had stated in his reports that it does not have a significant impact on function, the SSAT awarded it nil impairment points.

16. The SSAT commented on Mr Fadel's bilateral cataracts as follows.

    [30] The tribunal was hampered by the lack of documentation other than a medical certificate from the eye surgeon, Dr Dinehan, stating that Mr Fadel had undergone eye surgery on 12 December 2014. Given that Mr Fadel continues to drive in spite of a visual problem, and that Dr Ismail has reported that his cataracts are not having a significant impact on function, the tribunal was unable to award impairment points for cataracts because of a lack of adequate documentation as well as a lack of evident impact on function.

17. Finally, the SSAT commented upon Mr Fadel's ischaemic heart disease as follows.

    [33] The tribunal decided that it was unable to confirm, from lack of adequate documentation, that Mr Fadel's ischaemic heart disease had been fully diagnosed, fully treated and stabilised and therefore declined consideration of awarding impairment points for ischaemic heart disease.

18. As Mr Fadel's impairments were only awarded 10 points under the impairment tables he did not qualify for DSP.

    The JCA Report 18 August 2015

19. Mr Fadel has appealed to this Tribunal.

20. Subsequent medical material was forwarded to the Tribunal as follows. A letter from Hannah Burgess, social worker at St George Public Hospital, dated 4 August 2015, attaching discharge referral notes from the renal clinic; a  report of a lumbar spine CT scan by Dr Chu dated 14 July 2015; and  a report of a cervical spine CT scan by Dr Lim dated 15 July 2015.

21. On 18 August 2015, Mr Fadel undertook a further job capacity assessment , and the detailed report is dated 15 September 2015. The findings of the assessor are encapsulated in the following passage from the report.

    The assessment on 18/8/2015 considered Mr Fadel's permanent medical conditions at 6/11/2014 plus 13 weeks. Mr Fadel's neck and back pain were assessed to be fully diagnosed, treated and stabilised and assigned an impairment rating of 10 points under Table 4. His conditions of diabetes, depression and anxiety, ischaemic heart disease, cataracts and sleep apnoea were assessed as not fully diagnosed, treated and stabilised and impairment ratings were not assigned.

    Mr Fadel's baseline work capacity was assessed to be 8-14 hours per week. At the time of DSP claim (6/11/2014 plus 13 weeks), Mr Fadel was able to sit for 30 minutes. He had restricted neck movements and some reduction in the range of movement in his back. He had some difficulty sustaining overhead work. He had difficulty walking for more than 15 minutes and some difficulty standing for more than 3 minutes. He used a walking stick. He was able to drive for short distances. His work capacity was reduced due to pain symptoms associated with musculo-skeletal conditions and low mood which will impact on endurance and physical abilities in the work place.

    In consideration of the evidence available and relevant to the date of claim (8/11/2014 plus 13 weeks), Mr Fadel's permanent medical conditions were assessed to attract a total impairment rating of 10 points. His baseline work capacity was assessed to be 8-14 hours per week and his future work capacity was assessed to be 15-22 hours per week, A referral to a Stream C (formerly known as Stream 4) program was recommended to assist Mr Fadel to address his prevocational barriers.

    THE LEGISLATION

22. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

23. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Fadel's circumstances subsection 94(1) relevantly provides:

    (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;

    …

24. Put simply, I must be satisfied, first, that Mr Fadel has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mr Fadel has a continuing inability to work.

25. The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. It relevantly provides as follows.

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)     in a case where the person's impairment is not a severe impairment within     the meaning of subsection (3B) ...the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)       in all cases-the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)       in all cases-either:

    (i)        the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)       if the impairment does not prevent the person from undertaking a training activity-such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    …

26. This definition is complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) as follows.

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

27. This means that in Mr Fadel's circumstances, if any of his impairments are assessed at 20 points under one of the impairment tables, that impairment will be a severe impairment. If none of Mr Fadel's impairments are severe impairments, he will be required to have participated in a program of support.

28. "Program of support" is defined in subsection 94(5) as follows.

    (5) program of support means a program that:

    (a)       is designed to assist persons to prepare for, find or maintain work; and

    (b)       either:

    (I)        is funded (wholly or partly) by the Commonwealth; or

    (ii)       is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

    …

29. Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) (the POS Determination).

30. It is not necessary to set out subsections 5(1) and (5)2 of the POS determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP.

31. Finally, Mr Fadel's impairments must be sufficient to prevent Mr Fadel from doing any work independently of a program of support within the next 2 years.

    THE 13 WEEK QUALIFYING PERIOD

32. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Fadel's eligibility for DSP in the 13 week period commencing on the day on which Mr Fadel's claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Fadel qualified for DSP between 6 November 2014 and 5 February 2015.

33. In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

34. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.

35. Therefore, in determining the eligibility of Mr Fadel to receive DSP I am confined to examining Mr Fadel's impairments during the thirteen week claim period which is from 6 November 2014 to 5 February 2015.

36. The Date of this hearing was 11 February 2016 which means that just over one year has elapsed since the end of Mr Fadel's claim period.

    THE CONCESSIONS OF THE RESPONDENT

37. Paragraph 5.1 of the Respondents statement of facts and contentions is as follows.

    The Secretary accepts that the Applicant had impairments during the relevant period for the purpose of s 94(1)(a) of the Act arising from the following conditions:

    (i)        Back pain

    (ii)       Diabetes

    (iii)       Cataracts.

    THE ISSUES BEFORE THE TRIBUNAL

38. Given the Respondent's concessions, Mr Fadel complies with subsection 94(1)(a) of the SS Act as he has impairments. Therefore, the first issue which I am required to decide is whether any of the impairments of Mr Fadel have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

39. The second issue which I am required to decide is whether Mr Fadel has a continuing inability to work pursuant to subsection 94(1)(c)(i) and subsection 94(2) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mr Fadel's impairments do not attain an assessment of 20 points under the impairment tables.

    THE IMPAIRMENT TABLES

40. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Fadel are worth twenty points under the impairment tables. This requires a few words of explanation.

41. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

42. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

1. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

2. It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

   THE HEARING

3. Mr Fadel attended the hearing by telephone.

4. To assist the Tribunal, the Respondent handed up two documents. Mr Fadel consented to these documents coming before the Tribunal. The first document is a letter from Ms Christie McDonald who is a Case Manager of the Homeless Services YWCA NSW dated 2nd November 2015.

5. The second is a Medical Report by Dr Ishrat Ali dated 9 September 2015 which is accompanied by a cover letter from Dr Ali dated 16 September 2015.

   The evidence of Mr Fadel

6. Mr Fadel gave sworn evidence over the telephone and he was assisted by an interpreter in the Arabic language. Mr Fadel said that his back and neck pain mean that he can hardly walk. He said that he had the ambulance over yesterday.

7. Mr Fadel said that his impairments are much worse now than they were in late 2014.

8. Mr Fadel said that he has an extra heart beat and gets palpitations. He said that his heart condition is much worse than in 2014.

9. Mr Fadel said that his diabetes is getting worse and he has problems with his legs.

10. Mr Fadel said that he had a second eye operation about six months ago for his bilateral cataract condition.

11. Mr Fadel said that currently he does drive but ‘not much’ and he occasionally drove for short distances in late 2014.

12. In relation to his depression, Mr Fadel said that he has been seeing Dr Ali for three or four months. He was unsure whether Dr Ali is a psychiatrist or a psychologist.

13. In cross-examination, Mr Fadel was asked about his trip to Lebanon in July 2013. Mr Fadel said that he went back to assist his elderly Mother who had broken her hip.

14. Mr Fadel was asked about his return flight from Lebanon to Australia on or about 23 October 2014. He said that he travelled with his daughter and that the flight was about 24 hours in length.

15. Mr Fadel said he was dizzy and asked to be excused from the remainder of the hearing. The Tribunal excused him and thanked him for his attendance by telephone.

    Consideration

16. The first issue which I am required to decide is whether any of the impairments of Mr Fadel have been fully diagnosed, treated and stabilised during the claim period.  If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

17. This is a difficult task because I am required to examine the impairments of Mr Fadel as they existed one year ago, that is in the period from 6 November 2014 to 5 February 2015.

18. In his evidence, Mr Fadel said that his back and neck pain, his heart condition and his diabetes have greatly worsened and that they were less severe at the close of 2014. I accept this evidence.

    Degenerative Back And Neck Condition

19. Having regard to all of the evidence, I find that Mr Fadel's degenerative back and neck conditions were fully diagnosed, treated and stabilised during the claim period. I note that the SSAT came to the same view.

20. I am thus required to give Mr Fadel's back and neck conditions an impairment rating under table 4 of the impairment tables.

21. The descriptors for 10 points, that is for a moderate impact under table 4 are as follows.

    10 There is a moderate functional impact on activities involving spinal function.

    (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)       the person is unable to sustain overhead activities (e.g. accessing items overhead height); or

    (b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)       the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)       the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

22. The descriptors for a severe impact under table 4 are as follows.

    20  There is a severe functional impact on activities involving spinal function.

    (1) The person is unable to:

    (a)       perform any overhead activities; or

    (b)       turn their head, or bend their neck, without moving their trunk; or

    (c)       bend forward to pick up a light object from a desk or table; or

    (d)       remain seated for at least 10 minutes.

23. Having regard to the evidence, I find that his back and neck conditions do not warrant a severe, that is a 20 point, impairment rating under table 4 of the impairment tables.

24. On 5 May 2015, Mr Fadel appeared in person before the SSAT. In paragraph 16 of its decision which is quoted above, the SSAT who observed Mr Fadel found that he  stood with the aid of a walking stick after sitting for 30 minutes. He also could bend to knee height. The SSAT noted that Mr Fadel continues to drive albeit for short distances.

25. In his evidence before this Tribunal, Mr Fadel stated that he did occasionally drive in late 2014 and that he was able to fly from Lebanon to Australia in October 2014.

26. Having regard to all of the evidence, I find that Mr Fadel's degenerative back and neck condition warrant a moderate impairment rating of 10 points under table 4 of the impairment tables.

    Anxiety and Depression

27. Dr Ismail wrote a Centrelink medical certificate dated 26 February 2015 where he said that Mr Fadel's anxiety and depression was temporary and likely to show considerable improvement within two years. Mr Fadel did not see Dr Ali until 2 September 2015 which is well beyond the claim period. Dr Ali stated in his report dated 9 September 2015 that "With regard to the overall management of the case I started him on Lexapro 10 mg a day which will be increased”. Having regard to the evidence, I find that Mr Fadel's anxiety and depression were not fully diagnosed, treated and stabilised during the claim period.

    Diabetes Mellitus

28. Having regard to the evidence, I find that Mr Fadel's diabetes mellitus was fully diagnosed, treated and stabilised during the claim period. In his reports, Dr Ismail stated that the diabetes was well managed and did not greatly impact upon Mr Fadel. However, owing primarily to his diabetes Mr Fadel was admitted to St George Hospital on 24 July 2015 and discharged on 31 July 2015. I note this hospitalisation was more than five months after the end of the claim period. In the discharge notes which are before this Tribunal, it appears that the diabetes is a longstanding impairment. Apart from neuropathy,  it appears that the diabetes did not then greatly impact upon the functioning of Mr Fadel. The report stated as follows.

    We hope that his neuropathy  will improve as BSLs stabilise and also have him on pregabalin to assist with pain management.

29. I note that in his evidence Mr Fadel said that his diabetes has worsened.

30. Having regard to all of the evidence, I find that during the claim period the diabetes did not affect Mr Fadel in undertaking activities. Accordingly, I assess it at nil points under the impairment tables.

    Ischaemic Heart Disease

31. There is very little evidence about the existence of Mr Fadel's ischaemic heart disease. The discharge notes from St George Hospital dated 31 July 2015 state as follows.

    During his admission, he underwent cardiac screening. A MIBI was performed which demonstrated no ischemia and resting ejection fraction of 58%. His TTE showed mild concentric LV hypertrophy with hyperdynamic function, mildly dilated LA and aortic root, no significant valvular abnormalities and mild pericardial effusion.

32. I find that during the claim period Mr Fadel's ischaemic heart disease was not fully diagnosed, treated and stabilised. Indeed, the St George Hospital procedures did not show any ischaemic heart disease. It is therefore likely that Mr Fadel did not have ischaemic disease during the claim period.

    Bilateral Cataract

33. There is little evidence of Mr Fadel's bilateral cataract situation during the claim period. He did have one cataract operation in December 2014. However, in evidence before the SSAT and before this Tribunal, he said that he occasionally drove his car.

34. I note that Mr Fadel had a second cataract operation several months ago.

35. Having regard to the limited evidence of this condition before me, I find that Mr Fadel's bilateral Cataract condition was fully diagnosed, but that it was not fully treated and stabilised during the claim period. Accordingly, it is not assessable under the impairment tables.

    Sleep Apnoea

36. In his report dated 19 January 2015, Dr Ismail stated that Mr Fadel suffered from sleep apnoea. At the job capacity assessment interview on 18 August 2015, Mr Fadel denied that he suffered from sleep apnoea.

37. I find that there is insufficient evidence to show that Mr Fadel suffered from sleep apnoea during the claim period. In any event, there is no evidence that this condition was fully diagnosed, treated and stabilised during the claim period.

    Conclusion

38. I find that Mr Fadel's Degenerative back and neck condition was fully diagnosed, treated and stabilised during the claim period. This condition has a moderate effect on Mr Fadel and warrants an assessment rating of 10 points under table 4 of the impairment tables.

39. I further find that Mr Fadel's anxiety and depression, ischaemic heart disease and sleep apnoea were not fully diagnosed, treated and stabilised during the claim period.

40. I also find that Mr Fadel's diabetes was fully diagnosed, treated and stabilised during the claim period, but that as it then did not affect the activities of Mr Fadel it warranted an assessment of nil points under the impairment tables.

41. Finally, I find that Mr Fadel's bilateral cataract condition was fully diagnosed during the claim period. However, it was not fully treated and stabilised and could not be assessed under the impairment tables.

42. As Mr Fadel's impairments only attract 10 points under the impairment tables, he does not comply with subsection 94(1) paragraph (b) of the SS Act and does not qualify for DSP.

43. It is therefore not necessary for me to examine whether Mr Fadel has a continuing inability to work pursuant to subsection 94(1) paragraph (c) subparagraph (I) and attendant provisions of the SS Act.

    DECISION

44. The decision under review that Mr Fadel does not qualify for disability support pension is affirmed.

I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member

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

Associate

Dated 23 February 2016

Date(s) of hearing	11 February 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services