George Youssef and Secretary, Department of Social Services

[2014] AATA 290

[2014] AATA 290

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5217
Re	George Youssef
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	13 May 2014
Place	Sydney

The Tribunal affirms the decision under review.

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Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – applicant does not satisfy requirement to participate in a program of support - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2

REASONS FOR DECISION

Ms N Bell, Senior Member

13 May 2014 

1. George Youssef claimed disability support pension in January 2013.

2. A Centrelink officer rejected Mr Youssef’s claim on the basis that he had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. That decision was affirmed on further internal review and by an authorised review officer including on the grounds that he had not participated in a program of support and did not have a continuing inability to work under the Social Security Act 1991. The decision was affirmed on review by the Social Security Appeals Tribunal.

3. Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s combined impairment is of 20 points or more under the impairment tables; and

   (c)the person has a continuing inability to work; and

   (d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.

4. The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr Youssef during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the impairment tables as they were during that 13 week period, that is, from 25 January 2013 to 26 April 2013. Similarly, his satisfaction of other eligibility requirements must also be assessed for that limited period.

5. Mr Youssef currently suffers from:

   (a)A spinal condition;

   (b)Hay fever; and

   (c)Depression.

6. It is not in dispute that Mr Youssef has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in his application.

   DOES MR YOUSSEF HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?

7. The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 6(4) that the condition is considered to be permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated and stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years.

8. Paragraph 6(5) of the Introduction 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 2 years. Paragraph 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years.

9. This means that, regardless of the range and progression of Mr Youssef’s conditions now, I must restrict my consideration to those conditions that were fully diagnosed, treated and stabilised during the period 25 January 2013 to 26 April 2013.

10. I will deal with each of Mr Youssef’s conditions in turn.

    Spinal condition

11. Mr Youssef suffers from upper and lower back pain. He has been diagnosed with a condition known as ‘DISH’ - diffuse idiopathic skeletal hyperostosis. Mr Youssef is said to have DISH ‘with referred pain’. It was diagnosed in 2010 by rheumatologist, Dr Peter Johnson. In the Medical Report form dated 6 March 2013, attached to the application for disability support pension, Dr Wadhera, Mr Yousef’s treating general practitioner, indicated that Mr Youssef’s current treatment included acupuncture, Mobic, Panadol Osteo and thoracic spine exercises. Unfortunately for Mr Youssef, Dr Johnson is of the opinion there is no specific treatment that can be administered to improve his condition. Furthermore, past treatment of non-steroid anti-inflammatory drugs (NSAID’s) proved to be ineffective for Mr Youssef.

12. On the condition’s impact on Mr Youssef’s ability to function, Dr Wadhera said that it restricts his sitting, standing, driving and bending and generally he has restricted spinal movements. He said the condition is likely to deteriorate and will persist for more than 24 months.

13. Mr Youssef was assigned an impairment rating of 20 points under the table by a job capacity assessment performed in May 2013 but this was later overturned by an assessment of nil points by Centrelink’s Health Professional Advisory Unit in July 2013.

14. Table 4 sets out the criteria in relation to the spine for an allocation of 5, 10 and 20 points respectively:

5

There is a mild functional impact on activities involving spinal function.

(1)    The person has some difficulty in:

(a)    activities over head height (e.g. activities requiring the person to

look upwards); or

(b)    bending to knee level and straightening up again without difficulty; or

(c)    turning their trunk or moving their head (e.g. to look to the sides or upwards).

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

over head 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).

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.

1. Mr Youssef is an engineer by qualification and works as a self-employed taxi driver for persons with a disability.

2. The job capacity assessor, “Natalie”, a registered psychologist, was aware of Mr Youssef’s work as a taxi driver.  However, she assigned the impairment rating on the basis of Dr Wadhera’s report of the condition’s impact on Mr Youssef. In her report of 27 July 2013, Natalie wrote:

   [Mr Youssef] reported that he is currently working as a taxi driver and is finding it very difficult to maintain his current employment due to impacts of this condition. He added that whilst he is driving passengers he is adjusting his chair 6-7 times a minute. He reported that it is painful when he turns his neck while driving and for this reason tries to avoid turning his neck whilst driving. He reported that it is very painful to do overhead activities and therefore avoids any overhead activities. He reported that he has to lay on the lounge while watching TV and he cannot sit upright. He reported that he can walk 5-10 minutes and then he needs to sit down and rest.

   A Contributing Assessor (Occupational Therapist) was consulted and advised to assign an impairment rating of 20 points under Table 4… based on the above information.

3. The reassessment was conducted on account of Mr Youssef’s ability to work as a taxi driver for people with disabilities. Mr Youssef told a Centrelink Authorised Review Officer that he is on-call for 10 hours a day, 7 days a week and must be on-call so as to maintain his licence as a “disabled taxi driver”. On the basis that he can work up to 70 hours a week, the Health Professional Advisory Unit found there was insufficient information on the impacts of the condition on Mr Youssef’s ability to function and did not assign it a rating.

4. The Secretary now contends that Mr Youssef should be assigned an impairment rating of five under Table 4.

5. Dr Medhat Guirgis, consultant orthopaedic surgeon, in a report dated 13 September 2013, assessed Mr Youssef’s spinal condition as attracting an impairment rating of 10 points under Table 4.

6. Dr Guirgis said that although Mr Youssef is on standby for at least 70 hours a week, his actual driving hours consist of between 10-15 hours per week. This was consistent with the evidence given by Mr Youssef to this Tribunal.  When pressed, Mr Youssef said he works “about 15 hours per week”.

7. Mr Youssef said to both the SSAT and to this Tribunal that he cannot sustain overhead activities. He said he can reach and grab a book overhead but he has great difficulty and cannot do it on a continuous basis

8. I find that Mr Youssef’s spinal condition attracts an impairment rating of 10 points under Table 4. I am not persuaded that Mr Youssef’s spinal condition has a ‘severe’ impact on him in light of the fact that he can work at least 15 hours per week as a taxi driver for people with a disability. According to Mr Youssef, the work requires him to be seated for up to 30 minutes, to bend forward in releasing the ramp from the vehicle for wheelchair occupants, and to turn his head while driving. He said he can bend to pick up an object from the floor.

9. While I understand that Mr Youssef performs these activities with pain and that he constantly shifts in his driver’s seat while driving, this places the functional impact of his spine condition in the ‘moderate’ range and attracts an impairment rating of 10 points under Table 4.  I note this is supported by the opinion of Dr Guirgis.

   Hay fever

10. Dr Wadhera listed ‘hayfever allergies’ as a second condition affecting Mr Youssef with a date of onset sometime in 1995. He describes its features as including an insidious onset but particularly worse in the spring time. His treatment includes desensitising injections against grasses and weeds since 2000.  Mr Youssef has also used nasal spray and Telfast. Dr Wadhera said frequent symptoms include sneezing, drowsiness, itchy eyes and blocked nose and somnolence.

11. I note that the Health Professional Advisory Unit assessed this condition under Table 1 as having no functional impact on Mr Youssef.  The relevant parts of Table 1 are as follows:

0

There is no functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)    has no difficulty completing physically active tasks around their home and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)          walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)        performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)    is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

1. I consider, on the basis of Dr Wadhera’s evidence and that of Mr Youssef, that a more accurate assessment is five points, given the somnolence produced by Mr Youssef’s medication for this condition.

   Depression

2. Mr Youssef commenced to see a psychologist in about November 2013. This, he said, was on the advice of Dr Guirgis. As this condition was not fully diagnosed, treated or stabilised at the time of Mr Youssef’s claim for disability support pension, I cannot consider his condition under the impairment tables.

3. It follows that Mr Youssef has an impairment rating of 15 points under the Tables. That is so even though I have no doubt that Mr Youssef encounters considerable difficulty and pain. Mr Youssef has a strong work ethic and he is to be commended for continuing to work despite the difficulties and pain he encounters.

4. Because he has an impairment rating of less than 20 points, Mr Youssef does not qualify to be paid disability support pension. It is not necessary for me to consider the question of continuing inability to work, although I note that Mr Youssef is currently working at least 15 hours per week.

   DECISION

5. The Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

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Associate

Dated 13 May 2014 

Date(s) of hearing	9 April 2014
Applicant	In person
Solicitors for the Respondent	S Thompson, Sparke Helmore