Fanous and Secretary, Department of Family and Community Services

[2004] AATA 1084

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1084

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/377

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SAMIA FANOUS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Associate Professor John Maynard, Member

Date18 October 2004

PlaceMelbourne

Decision The decision of the Social Security Appeals Tribunal under review in these proceedings is affirmed.

(Sgd)  John Handley

Senior Member

DISABILITY SUPPORT PENSION – application made to Centrelink in March 2004 – rejected and affirmed by SSAT – subsequent claim for DSP made and accepted by Centrelink – whether applicant qualified at date of first claim or within 13 weeks – whether injuries diagnosed  treated and stabilised – refusal of medical treatment – whether that condition can in those circumstances be regarded as permanent ‑ decision affirmed

Social Security Act 1991 (Cth) s94

Social Security (Administration) Act 1999 (Cth) Sch2, Part 2, s4

Dragojlovic v Director-General of Social Security (1984) 52 ALR 157

Re Tlonan and Secretary, Department of Social Security (AAT 11595, 6 February 1997)

REASONS FOR DECISION

18 October 2004

Mr John Handley, Senior Member

Associate Professor John Maynard, Member

1.      On 3 March 2004, the Social Security Appeals Tribunal (“SSAT”) decided to affirm a decision previously made an officer of Centrelink to reject a claim made by her for disability support pension. (“DSP”).  The applicant applies in these proceedings (“the current claim”) to review the SSAT decision.

2. At the commencement of the hearing before this Tribunal on 6 October 2004 it was learnt that Mrs Fanous had made another claim (“the new claim”) for DSP in late August or early September 2004. By reason of a recent occupational therapy assessment by Christine Donald, Centrelink decided that Mrs Fanous presently does attract 20 impairment points under s94 of the Social Security Act 1991 (“the Act”) and is able to demonstrate that she has a “continuing inability to work”.

3.      Subject to acceptance of that opinion by an appropriately delegated Centrelink officer DSP will be paid to Mrs Fanous from the date of the making of the new claim.

4.      Having regard to that information and to a number of other comments of a private and personal nature found within the medical records that were lodged with the Tribunal concerning the current claim, we decided to stand down the hearing and have an informal conference with Mrs Fanous.

5.      We were concerned that the confidential nature of the issues that emerged from the medical reports were apparently of such a sensitivity that Mrs Fanous had not discussed those matters with her own doctor.  Indeed there was a reference in some of the medical material that she had preferred to speak with a priest.  There were other references in the medical material to Mrs Fanous rejecting a suggestion made to her by her doctors that she undertake psychiatric treatment.

6.      We preferred to be reassured that in the event that the current claim proceeded, that Mrs Fanous understood that she may be placed in a position where she would be asked to inform us of the confidential issues or in the event that she refused or declined we may not be in a position to have adequate evidence to make any findings in her favour.  Additionally, it was learnt that from October 2003, Mrs Fanous had been in receipt of Newstart Allowance.  In the event that she succeeded in the current claim the moneys paid to date would be brought into account in calculating any entitlement to DSP.  In those circumstances we discussed with Mrs Fanous whether she preferred to proceed at all with the current claim.  After some discussion she informed us that it was her preference to proceed.  All of the discussions above were conducted with an appropriately qualified Egyptian interpreter and in the presence of Ms Navarro who appeared on behalf of the respondent.

7.      When the matter proceeded Mrs Fanous (who was unrepresented) told us that she suffers from severe back and knee pain and depression.  She said that she has suffered from the back and knee pain for three or four years continuously.  She also suffers from a cough, her nose is blocked and that she had recently had nasal surgery and gall bladder surgery.  She said that she also suffered from an anaemia.  Mrs Fanous told us additionally that she has an “extra bone” at or about her right ankle which has been present for six or seven years and which causes her severe discomfort when she stands or places weight on her right foot.

8.      In answer to some questions from Ms Navarro, Mrs Fanous said that she continues to be employed by the Cabrini Hospital as a casual domestic attendant performing cleaning works on 1 to 2 days per week.  She said that she presently takes Zoloft medication for her depression and Celebrex medication for her back and knee pain, in lieu of Viox, which she had previously been prescribed but which had now been withdrawn.

9.      Mrs Fanous agreed that both Dr Youssef and a doctor at the Monash Medical Centre had suggested that she be referred to a psychiatrist but she had refused.

10.     In answer to some questions from us, Mrs Fanous said that she suffers continuous pain in the middle of her lower back.  She said that she also has referred pain into her right leg, extending through the front and the back of her thigh and ending at her knee.  In recent times she has noticed that pain is also extending into her right foot.  She said that the pain is exacerbated by movement and by prolonged periods of sitting.  She is unable to use public transport and when she is a passenger in a motor vehicle (she does not drive) she is unable to sit with her knees bent.

11.     Mrs Fanous said that most of her treatment has been conducted by Dr Youssef who had also referred her to Dr Ryan, a rheumatologist at the Monash Medical Centre, who in turn had referred her for physiotherapy and for hydrotherapy.  Mrs Fanous agreed that she had been referred to a psychiatrist, indeed, one of the doctors at the Monash Medical Centre had arranged an appointment for her but she did not attend.

12.     Mrs Fanous said that she is unable to perform any gardening at home because of her back and knee pains.  She performs limited housework but most of it is completed by her children.  The work that she undertakes at the Cabrini Hospital includes dusting, mopping and general cleaning duties.  She said that she is required to undertake vacuuming but her workmates know of her discomfort and they complete vacuuming for her without the knowledge of her supervisor.

13.     When asked to compare the extent of her injuries at October 2003 to the present time Mrs Fanous said that there was no change except she felt that as she was older there may have been some deterioration with increased severity of pain.

14.     In conclusion Mrs Fanous submitted that she has suffered for many years with back and knee pain and from stress.  She also said that she is tired.

15. Ms Navarro relied on the Statement of Facts and Contentions lodged prior to the commencement of the hearing and said that a report completed by Advanced Personnel Management on 6 October 2004 and lodged at the hearing on that day supported the contentions of the respondent namely, that at October 2003 and within 13 weeks of that date (see Sch 2, Part 2, s4 of the Social Security (Administration) Act 1999), the applicant did not qualify under s94 of the Act.

the legislation

16. Section 94 of the Act provides as follows:

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)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and 

(d)the person has turned 16; and 

(e)       the person either: 

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or 

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or 

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

(A)     is not an Australian resident; and 

(B)     is a dependent child of an Australian resident;

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

(A)     is not an Australian resident; and 

(B)     is a dependent child of an Australian resident; 

and the person becomes an Australian resident while a dependent child of an Australian resident. 

Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7. 

Note 2:for Impairment Tables see section 23(1) and Schedule 1B. 

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(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

(a)the availability to the person of educational or vocational training or on-the-job training; or 

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person’s locally accessible labour market.

94(4) . . .

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. 

94(6) . . .

conclusion and reasons for decision

17. For the purposes of s94(1) we are satisfied that Mrs Fanous does have a physical, intellectual or psychiatric impairment. The principal issues in this application were whether Mrs Fanous, at October 2003, had an impairment of 20 points or more under the Impairment Tables and if she did whether she had a continuing inability to work.

18.     For reasons which will follow we are not satisfied that at October 2003 Mrs Fanous did have an impairment of 20 points or more under the Impairment Tables.  We will not in the circumstances be required to consider whether there was any continuing inability to work as defined.  In those circumstances it would not be necessary to make any finding as to whether Mrs Fanous was a resident as is required by sub-section (1)(e) (although if we were to consider that issue we would have found that Mrs Fanous was at all relevant times an Australian resident).

19. Section 94(1) in its reference to an impairment of 20 points or more does not refer to an injury or illness being permanent. It refers only to impairment. However the introductory chapter to the Impairment Tables found at Schedule 1B of the Act (paragraph 5) states that a condition “must be considered to be permanent”.  Permanence shall be found only when a condition “has been diagnosed, treated and stabilised” and then “it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years”.

20. The focus therefore of this review is to consider whether at October 2003 Mrs Fanous had an impairment of 20 points or more in the light of the assessment criteria against the applicable Tables and by reference to the introductory comments in the introduction to Schedule 1B of the Act. In proceeding with this review we are of course aware that there has been a recent finding by the Department that Mrs Fanous has qualified – subject to approval by an authorised delegate – for DSP. This is because on contemporary medical evidence the respondent is now satisfied that the conditions suffered by Mrs Fanous may be regarded as being permanent, that is, those conditions have now been diagnosed, treated and stabilised and they have been assessed as persisting into the foreseeable future and lasting for more than two years.

21.     In a report completed by Dr Youssef on 1 July 2004 he indicated that Mrs Fanous had then provided him with a history of low back pain for the preceding five years extending into both thighs.  He obtained a history of the pain then deteriorating with affect upon daily activities and on sleep.  He also noted that Mrs Fanous had informed him that the pain is aggravated by standing, bending and repetitive movement.  He found that a CT scan of the lumbar spine showed a grade 2 L4 on L5 spondylolisthesis with an L4 spondylosis but without evidence of nerve root compression.  An ultrasound of the right knee disclosed a supra patella bursitis.  He referred Mrs Fanous to Professor Ryan at the Monash Medical Centre and pain killers, anti-inflammatory medication and anti-depressants were prescribed.  Dr Youssef offered a prognosis of her back injury becoming worse with age, that he would advise against returning to manual work involving lifting, bending or repetition and whilst he thought Mrs Fanous “might be a candidate for a pension allowance” he thought that she might benefit by retraining into office work. 

22.     In a medical certificate/questionnaire completed by Dr Youssef on 22 November 2003 – that is within 13 weeks of the date of claim – he recorded that the applicant suffered from “relapse of major depression” evidenced by mood swings, crying, insomnia, lack of interest and poor motivation, a history of a paracetamol overdose and a past history of post natal depression.  He intended to refer Mrs Fanous to a psychiatrist and recorded that the “current impact of this condition on the patient’s ability to function is expected to persist for more than 3/24 months”.

23.     With respect to the back injuries Dr Youssef referred to the symptoms, the CT result and the referral to Professor Ryan and concluded that those injuries are likely to impact upon the ability of Mrs Fanous to function for more than 24 months and would deteriorate.  With respect to the depression, Dr Youssef certified that he expected the condition to fluctuate within the next two years.

24.     In another questionnaire completed by Dr Youssef in October 2003 (T8) he referred to “neck and shoulder pain” and “problems with right foot”.  Details with respect to those injuries were not contained within that questionnaire or in another questionnaire at T9 although we note from other medical information on file that X-rays of the right shoulder and neck were reported as normal.  We can find nothing filed with respect to the applicant’s right foot.

25.     The right knee was found at X-ray to have normal joint space with slight degenerative changes at the patello-femoral joint (T3).

26.     In a questionnaire completed at the request of Centrelink by an “Assessor”, a rehabilitation consultant identified as “Glen”, reported on 29 October 2003.  He made a finding of 10 impairment points under Table 5.2 with respect to the back injury but has not referred at all to the depression or any other injuries.  It would appear that the focus of his assessment was the applicant’s capacity to work.

27.     On balance we are satisfied that at October 2003 it was then probably appropriate to assess the applicant’s back injury under Table 5.2 at 10 impairment points.  This is because Mrs Fanous could then demonstrate satisfaction of the criteria against such an assessment, being either loss of one quarter range of movement together with back pain or referred pain with physical activity with standing for 30 minutes and with sitting or driving for about 60 minutes.  Alternatively she may then have been able to demonstrate loss of half normal range of movement.  It may be that beyond a period of 13 weeks of that date she could have attracted a greater impairment under Table 5.2 but our focus only is on the condition of Mrs Fanous at October 2003.

28.     The relevant psychiatric impairment is to be found under Table 6 but upon the admitted evidence of Mrs Fanous and upon the report of Dr Youssef, that condition could not then be found to be permanent. 

29.     Refusal to receive medical treatment in some circumstances does not necessarily negate a finding that the relevant conditions still attract impairment points (Re Tlonan and Secretary, Department of Social Security (AAT 11595, 6 February 1997)). In Mrs Fanous’s case she did not attend the appointment to see a psychiatrist seemingly due to embarrassment and fear which may be related to cultural reasons. Dragojlovic v Director-General of Social Security (1984) 52 ALR 157 refers to possible acceptable scenarios in which a person may reasonably refuse to receive medical treatment as “a person who actually cannot, for fear, or religious beliefs, for example, or for some other reason of a genuinely compulsive nature”. The report of Christine Donald (refer paragraph 2 earlier) seems to accept Mrs Famous should come under this category as demonstrated in her observation “Depression. Permanent – diagnosed, treated and stable. Treatment accessed considered reasonable and condition considered stabilised as much as possible. Due to cultural reasons customer does not want to disclose information to a male health worker. Further to this she has significant anxiety associated with seeing a psychiatrist and using an interpreter to communicate. It would seem reasonable not to force this issue as it could aggravate and increase depression symptoms”.

30.     The problem however remains that at the date of claim and 13 weeks afterward it could not then be said her depression was permanent. Apart from the lack of evidence at that time, the indication as noted by Dr Youssef (refer earlier) was that she had had a “relapse” and that it was considered by him to persist not permanently but for “more than 3/24 months”. Therefore failing to see the psychiatrist may not preclude an attraction of impairment points in Mrs Fanous’s case, however the points cannot be attracted as it could not be found at the date of claim nor 13 weeks afterward that the condition was permanent.

31.     Upon the radiological evidence impairment points would not have been found against the right foot, neck or shoulder injuries.  The nasal and gall bladder illnesses which apparently have existed for some time were not the subject of the claim for DSP and had not been assessed.  Accordingly those conditions could not then have been found to have been permanent.

32.     Accordingly Mrs Fanous would not have been able to demonstrate 20 impairment points at October 2003.  She would not then or within 13 weeks of that date been able to demonstrate qualification for DSP.  It is therefore not necessary for us to consider her capacity for work at that time.

33.     It would appear from the medical evidence provided to us on the day of the hearing that Mrs Fanous had now been considered to have a number of impairments which are regarded as being permanent.  Having regard to the content of the assessment completed on 6 October 2004 we would agree with those conclusions.  It is our view that upon a review of the medical evidence, having heard Mrs Fanous in evidence and having read the contents of the report of 6 October 2004 that a finding of a permanent back and psychiatric injury alone can be made which in combination would attract 20 impairment points.

34.     It would also appear that the Assessor on behalf of the respondent is satisfied that Mrs Fanous by reason of the recent assessment does have a “continuing inability to work”.

35.     It would appear in those circumstances that she will now qualify for DSP.

36.     However we must again stress, as we did at the hearing, and in conference with Mrs Fanous, that the assessment presently of qualification for DSP cannot be transferred retrospectively to October 2003 when her first claim for pension was made and subsequently rejected.

37.     The effect of this decision is to find that the decision made to reject the claim for DSP in October 2003 should be affirmed.  The decision subsequently made to find entitlement to DSP based on a subsequent claim will not be affected or disturbed by these findings.  That is to say, subject to acceptance of the Assessor’s report by an appropriately qualified Centrelink delegate, Mrs Fanous will become entitled to receipt of DSP from the date of the most recent claim.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Associate Professor John Maynard, Member

Signed:         Holly Weston
  Associate

Date of Hearing  6 October 2004
Date of Decision  18 October 2004
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms K Navarro