Ghalbouni and Secretary, Department of Employment and Workplace Relations
[2006] AATA 554
•27 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 554
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/75
GENERAL ADMINISTRATIVE DIVISION ) Re THERESA GHALBOUNI Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date27 June 2006
PlaceSydney
Decision The decision under review is affirmed. [SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – applicant in receipt of youth allowance – applicant injured in motor vehicle accident – periodic compensation payments - youth allowance cancelled – later claim for disability support pension – eligibility determined from date of claim – application for backdating of disability support pension – application denied – consideration of circumstances – decision affirmed
Social Security Act 1991 – sections 94, 540A, 666, Schedule 1B
Social Security (Administration) Act 1999 – sections 11, 12, 16
Burgess v Secretary, Department of Family and Community Services [2004] FCA 136
Re Burgess and Secretary, Department of Family and Community Services [2003] AATA 1062
REASONS FOR DECISION
27 June 2006 Rear Admiral A R Horton AO, Member BACKGROUND
1. Miss Theresa Ghalbouni (“the Applicant”) was injured in a motor vehicle accident on 18 January 2003. At that date, she was in receipt of Youth Allowance (“YAL”). With effect from 4 February 2003 she was granted periodic compensation from the Victorian Traffic Accident Commission (“TAC”) for loss of earnings, a situation that continued until February 2006 (that is a three year period). Her YAL payments were accordingly suspended and subsequently cancelled, being compensation affected payments. Thereafter, she was generally in receipt of the Low Income Health Care Card.
2. Miss Ghalbouni applied for the Disability Support Pension (“DSP”) in June 2005, basing her claim on injuries received, or resulting from, the motor vehicle accident. DSP was granted effective on 6 June 2005. On 18 August 2005, Miss Ghalbouni requested arrears of DSP back to the date of the accident, a request that was refused by Centrelink in the absence of policy discretion to do so. That decision was subsequently affirmed by an Authorised Review Officer (“ARO”) on 6 October 2005 and by the Social Security Appeals Tribunal (“SSAT”) on 7 December 2005.
3. Miss Ghalbouni applied for review by the Administrative Appeals Tribunal (“the Tribunal”) on 20 January 2006, and the matter was heard by me on 18 May 2006. Ms Ghalbouni was self represented (she is separately being assisted by Consolidated Lawyers in respect of matters with the TAC). Mr John Kenny, an advocate of the Services Recovery Team, Centrelink, represented the Secretary, Department of Employment and Workplace Relations (“the Respondent”). I took into evidence the (“T”) documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the exhibits listed below in these reasons for decision.
LEGISLATION
4. The relevant legislation in respect of the disability support pension is that at section 94 of the Social Security Act 1991 (“the Act”). In essence, it determines that a person is qualified for that pension if the person has a physical, intellectual or psychiatric impairment, that the impairment must be assessed as being of 20 points or more under the Impairment tables, and the person has a continuing inability to work.
5. The Impairment Tables are at Schedule 1B of the Act, and they define the appropriate ratings to be applied when considering the effect of various medical conditions as they relate to work related impairment. The introduction to those tables prescribes the issues that must be considered when using the tables. Relevant to this matter, the introduction to the Impairment Tables states:
“1. … The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is term work-related impairment ….
2.…These tables are function based rather than diagnosis based.
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence...
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence 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. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
6. … reasonable treatment is taken to be:
· treatment that is feasible and accessible ie, available locally at a low cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which caused it…. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used…”
6. The legislation in respect of the criteria for lodging a claim is provided in the Social Security (Administration) Act 1999 (“the Admin Act”), wherein it relevantly states:
“SECT 11
General rule(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
(2) Subsection (1) does not apply to a concession card for which a person is qualified under Division 1 of Part 2A.1 of the 1991 Act or under Subdivision A of Division 3 of that Part.
…SECT 12
Certain transfers between payments(1) Subject to subsection (3), if:
(a) a person is receiving an income support payment; and
(b) while receiving the payment, the person becomes qualified for another income support payment (the other payment); and
(c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
(2) Subject to subsection (3), if:
(a) a person who has been receiving an income support payment ceases to receive the payment; and
(b) immediately after ceasing to receive that payment, the person becomes qualified for another income support payment (the other payment); and
(c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
(3) The Secretary may only make a determination under subsection (1) or
(2) if the transfer is one that the Secretary could have determined should occur apart from this section.
…SECT 16
How to make a claim
(1) A person makes a claim for a social security payment or a concession card:
(a) by lodging a written claim for the payment or card; or
(b) by making the claim in accordance with subsection (7).
(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
(4) A written claim is lodged by being delivered:
(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b) to a person approved for the purpose by the Secretary; or
(c) in a manner, and to a place, approved for the purpose by the Secretary.
(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.”
7. Qualification for Youth Allowance is defined in Part 2.11 of the Act. Section 540A deals with the relationship between that benefit and a claim for the disability support pension.
EVIDENCE
8. Youth Allowance was granted to Miss Ghalbouni in 1998 at the age of 16 years. In her last years at school she worked as a sales assistant casual at Kmart, generally for one or two shifts a week. She continued working for Kmart after completing her Higher School Certificate in 2000, at the same time undertaking a TAFE course for a diploma in fitness and recreation which she expected to complete in 2003. She stated she had become a qualified personal trainer and she described her goal as eventually operating her own fitness studio working particularly with children.
9. Following the motor vehicle accident on 18 January 2003, Miss Ghalbouni was in Dandenong Hospital for “about a week”, the initial examination and CT scans indicating fractures through the left sacral ala and pubic rami. Miss Ghalbouni was then transferred to the Victorian Rehabilitation Centre for a further week, and then by air ambulance to St Josephs Hospital in Sydney, an option that was available and which suited her limited mobility. She remained in St Josephs for about a week, being on crutches on release. To assist in her recovery, she moved into her mother’s home. Resulting from the accident, she received weekly compensation of $245 per week from the TAC from 4 February 2003 for what she understood to be “loss of income”, such payments rising to $283 per week before ceasing after three years in January 2006.
10. As to her emotional condition following the accident, the death of her father shortly before the accident and illness of her mother also having some relevance, Miss Ghalbouni stated that she had, and continues to have, difficulty adjusting to the resultant restrictions. She continues to feel anger at the driver of the vehicle, who had previously been a friend. She has significant pain. She has had to give up her aspirations in respect of a future career, and the accident has impacted on her social life. Physically, her condition improved in the months following the accident, when she went from crutches to a walking stick, and to the best of her memory no longer required the walking stick from about mid-April 2003. However, there had been little if any real improvement in the subsequent months, and the opportunity to fulfil her ambition for a meaningful career has been forsaken.
11. Miss Ghalbouni gave evidence that, in the company of her sister, Ms Joslyn Roukos, she met with Centrelink staff on 14 March 2003. Relevant extracts of her evidence in respect of the discussions are (transcript page 22):
“……And then he just bluntly said your Youth allowance payment will be stopped and you are not entitled to any Centrelink benefits and I guess the reason I remember that really clearly because that is what stuck in my mind.
Do you recall whether he said you are not entitled to any other benefits… --- Any Centrelink benefits
…in response to you asking, do I have any other entitlements? --- No, I never got to ask that question because I took that to be true and left it at that.
…
Was any explanation given as to why you weren’t entitled? ---No there wasn’t. Again, we just, my sister attended that meeting with me, either she didn’t bother to ask after that because it is such a blunt remark that you assume he knows what he is talking about and he knows the system. …
Were you aware at the time that the disability support pension existed? ---No, I had no idea till I made that telephone call on 6 June 2005.”
12. The evidence on file in respect of that date is by way of a letter from Centrelink to Miss Ghalbouni confirming contact “about your intention to claim a payment or concession card”. However, the Respondent accepted that a meeting had occurred. A letter from Ms Roukos attests to a meeting which she states took place on 19 February 2003; the letter confirms the general thrust of the advice as noted in paragraph 11 above.
13. In accordance with the conditions of compensation affected payments, Miss Ghalbouni’s youth allowance was suspended on that day, and cancelled the following day with effect from 5 March 2003. Prior to that decision, she had been receiving about $350 per fortnight in youth allowance plus a further “100 a fortnight or 180” in living away from home expenses. She stated that the TAC weekly compensation could not compensate for the loss of youth allowance and additional payments, and the loss of income from the Kmart casual employment, given also that she was contributing to her mother’s rent and bills and was incurring medical expenses. In evidence, she accepted that in broad terms the compensation from TAC was about the equivalent of Youth Allowance, but there were other factors such as a significant increase in medical cost. Suffice that she stressed she had financial problems.
14. File notes indicate that Miss Ghalbouni telephoned Centrelink on 6 June 2005 in respect of the Low Income Card. Her evidence was that her call was to ascertain whether she might be eligible for financial assistance, the advice being to apply for the DSP, which she formally did on 10 June 2005, her claim being accompanied by a Treating Doctor’s report by Dr Wafik Latif. A face to face Medical Assessment by Dr Himani Pant of Health Services Australia was completed on 13 July 2005, the recommended impairment rating being 50 points. Miss Ghalbouni was advised on 8 August 2005 of her eligibility for the DSP, the date of effect being 6 June 2005, the date of her telephone call. The Record of Decision notes acceptance of diagnosed and stabilised impairments and a 50 point impairment rating.
15. The following are relevant extracts from the conclusions of Dr Himani Pant (T47):
“…She has been severely debilitated since a MVA in 2003 which has caused the following:
1. (L) heripelines and very frequent (L) sciatica causing severe pain not relieved with medication. walking limited to 5 minutes only. She was unable to squat. Causes major interference to walking. IR 20
2. Back pain. Constant severe back pain, loss of ½ ROM, no relief from one year of secondary rehabilitation. She was extremely uncomfortable during the assessment and needed to be on the floor. IR 20.
3. Moderate depression since MVA with difficulties coping with disability. IR 10
IR 50 points - Unfit for all work - Review in 2 years.”
16. By letter dated 18 August 2005, Ms Ghalbouni requested arrears of DSP to 18 January 2003, the main thrust of her request being that she had not claimed a social security benefit following her accident because of the advice from Centrelink that she had no entitlement to any benefit. In response to Mr Kenny, she stated that other than in respect of the health card, in the period from February 2003 to June 2005, she had not inquired about getting any sort of payment from Centrelink
MEDICAL EVIDENCE
17. In evidence Miss Ghalbouni stated that at no stage had any doctor (nor her solicitors who she saw in respect of a compensation claim) suggested that she might pursue a claim for the DSP.
18. A report by Dr D Barrie on a CT scan taken on the day of the MVA refers to a “nondisplaced, sagittally oriented fracture through the left sacral ala….a tiny chip fracture involving the cranial portion of the right sacral ala…and fractures through the left superior and inferior pubic rami without diastasis of the pubic symphysms”, with the sacral ala fractures appearing stable (T4). A report by Dr T Mander-Jones of Rayscan Imaging at Burwood on 4 March 2003 refers to these fractures, but also identifies “healing fractures of the transverse processes on the left at L2, L3, L4 and L5 together with a mild scoliosis of the lumbar spine concave to the left” (T9), indicating that the later scans revealed lumbar injuries that were obscured in examination at the time of the injury.
19. Dr M Guirgis, by referral from her GP, Dr H Mina, examined Miss Ghalbouni on 26 March 2003. In a later report of 28 December 2004 to her lawyers, Dr Guirgis states Miss Ghalbouni “continued to complain of lower back pain and stiffness [after discharge from hospital] with good days and bad ones with repeated acute episodes. She also continued to complain of persistent radiation to the left sacroiliac joint and left buttock area. She described attacks of radiation down the back and outer border of left thigh and calf to the dorsum of her left foot and sometimes to the back of her left heel. She also continued to complain of shooting of the pain to the left groin and left hip areas” (T30).
20. Dr Guirgis diagnosed injuries resulting from the MVA as generally in accord with those earlier referred to, as well as “post-traumatic mechanical derangement of the thoracic area of the spine including small posterior intervertebral disc protrusions at the T7 – T8 and T8 – T9 levels. There was MRI evidence of dilatation of the central canal of the thoracic cord…” His clinical findings relevantly included “Normal lumbar lordosis was lost. There was no sciatic listing. Guarding of the paraspinal muscles was demonstrated on stance… Tenderness was elicited over the left sacroiliac joint and over the T6 to S1 spines and relevant spaces… The left hip was clinically normal... There was no deformity [of the thoracic spine]. Tenderness was elicited over the T6 – 12 spines and relevant spaces… There was guarding of the paraspinal muscles…” (T30).
21. Dr Guirgis noted that injury was treated conservatively and that surgical treatment was not indicated at that stage (December 2004) but should be considered if the clinical condition deteriorated. He had referred Miss Ghalbouni to a neurosurgeon for selective nerve root block, which gave a poor response, a result confirmed by Miss Ghalbouni, who also stated that no surgery had been performed on her injuries.
22. The earliest documentation by Dr Mina is that of a medical certificate dated 3 March 2003, in which she notes “involved in a car accident with fractures pelvis still on crutches”. A further medical certificate for the two month period commencing 25 June 2003, refers to “multiple injuries in a car accident and anxiety and depression”. A third medical certificate dated 27 November 2003 notes “to attend anxiety and depression program”. A subsequent certificate of 18 August 2004 records Miss Ghalbouni as being fit for “suitable duties only” due to “anxiety and depression – pelvic pain and lower back pain …office work 3 – 4 hours /day 3 – 4 days per week” and a further certificate of 8 December 2004 gives a similar opinion. The final certificate from Dr Mina before me is that of 22 February 2005 which again refers to “anxiety and depression – pelvic and lower back pain”. The most recent GP report, prior to the claim in June 2005 for the DSP, is that Dr W Latif on 30 May 2005. He refers to chronic pain syndrome and reactive depression, the conditions not being relieved by conventional treatment, his recommendation being to pursue alternative medicine treatment.
23. Dr R V Jackson, consultant orthopaedic surgeon, provided a medical assessment and report on 16 December 2003, the referral having made by the TAC. He notes Miss Ghalbouni had been undertaking physiotherapy twice a week until approximately a month before seeing him. He stated she has had no improvement in the last five months. He described her clinical status as symptomatic, noting “she describes a high level of symptomatology, with relatively low degree of pain and stiffness in her neck and upper back”, the major problem being “lower back, hips and pelvis”. From documentation provided by Miss Ghalbouni he noted displaced but healing fractures of the pubic rami on the left, the left side of the sacrum and L2 to L5 transverse processes. No other significant abnormalities were observed.
24. Dr Jackson did not think Miss Ghalbouni fit to resume work as a sales assistant primarily due to non organic factors influencing physical symptomatology. He further notes persistent chronic pain and that Miss Ghalbouni “alleges severe physical disabilities…” He considered she could cope with light selected duties at least on a part time basis. Based on her views, he considered that further physiotherapy was not required, but he supported admission to a pain management clinic.
25. Dr S M Smith, treating psychiatrist of Miss Ghalbouni, provided a report to the TAC on 21 October 2003. He notes that his initial examination of Miss Ghalbouni was on 12 March 2003, following referral by Dr Mina (on 5 March 2003 at exhibit A4). He records (at T20):
“It was my opinion following my initial examination that Ms Ghalbouni presented with a diagnostic criteria for an Adjustment Disorder with Depressed and Anxious Mood. There were also features of a Post-Traumatic Stress Disorder although she did not demonstrate diagnostic criteria for that condition”
26. Dr Smith gave his diagnosis in October 2003 as Chronic Adjustment Disorder with depressed and anxious mood and Chronic Pain Disorder. He considered Miss Ghalbouni required ongoing psychotherapy with appropriate medication. At that time he did not think she could return to work but anticipated that she would be able to do so in time, with a graded re-integration. Two later brief reports confirm his diagnosis of a psychiatric condition and an unfitness to return to work.
27. A number of medical reports resulted from examinations/assessments carried out at the time of the formal application for the DSP in mid 2005 or later. As such, their value is limited in that they may not be reflective of the circumstances or extent of disability that might have been present in 2003 and 2004, and comment as to the situation in those earlier years may, of necessity, be based on history or previous observations. For completeness, however, relevant comments or opinions are identified where they seem appropriate.
28. Dr N Ingram provided a psychiatric assessment to the TAC on 14 June 2005. I note the history taken is that given by Miss Ghalbouni that she was able to “walk a bit more easily in the last six months”, that she tried to avoid painkillers, that she undertook home duties where they did not exacerbate her pain, that she is able to drive, and that she has had difficulty studying because of poor concentration. An impairment assessment was undertaken by Ms J McKenzie on 14 June 2005, Miss Ghalbouni confirming that such an assessment had been carried out for TAC. She understood Ms McKenzie was an orthopaedic surgeon. What appears to be a summary of that assessment by Ms J Beggs, probably for TAC, is before me (Exhibit A4). The summary indicates that Ms McKenzie was of the opinion that injuries had stabilized; in considering impairment assessment, the document also draws on the opinions of Dr Guirgis and Dr Grant, and notes that in the opinion of the latter, her psychiatric condition had not stabilised. Suffice that in the absence of any authority for the preparation of this document, and also observing its relevance to the date of the formal DSP claim, rather than the period under consideration, I give it no weight.
29. Finally, Dr Guirgis and Dr Smith, both treating doctors, provided further brief reports in March 2006 (Exhibits A2 and A3 respectively). Dr Guirgis opines that Miss Ghalbouni’s physical injuries were permanent in nature from the time of the accident, and would continue to impact on her ability to function. Dr Smith opines that a psychiatric condition developed within the first month of the accident, that the condition was quickly stabilised, although gradually improvements would be expected in time, albeit with fluctuations, but that the condition should be considered diagnosed, treated and stabilised within the first month of the accident.
SUBMISSIONS
30. Throughout the hearing, Miss Ghalbouni was articulate and well prepared. This was particularly evident in her final submissions. It is convenient to summarise the major issues upon which Miss Ghalbouni relied in order to support her contention that eligibility for, and hence payment of, DSP should be backdated :
- That as of 14 March 2003, a date she considered to be appropriate, her medical conditions had been fully documented, diagnosed, investigated, treated and stabilised, thus meeting the guidelines for assigning impairment ratings pursuant to the provisions under section 94 of the Act for eligibility for the DSP.
- That date accorded with the cancellation of the Youth Allowance. More importantly, it acknowledged that the extent of the lumbar injuries had not been identified earlier, due to bruising, but it then took into account that she was seeing Dr Mina (who had diagnosed pain and insomnia and prescribed medication) and who in turn referred her to Dr Smith for psychiatric assessment. He saw her on 12 March 2003. The date also took account of the diagnosis and opinions of Dr Guirgis who saw her but two week later. Suffice that both their reports diagnosed significant medical conditions.
- Subsequent examinations by Dr Smith confirmed a severe and ongoing psychiatric and chronic pain condition and an inability to return to work, conditions later confirmed by Dr Jackson and Dr Ingram. That a continuation of physiotherapy proved to be of no real value was further proof of the ongoing adverse conditions, as was the referral to a pain management clinic. Her own evidence again confirmed the extent of her disabilities which had arisen solely from the MVA, and which prevented her from returning to work in any capacity.
- Drawing on the opinions of Dr Guirgis, no intervention was required in respect of the physical injuries and none have been carried out. Dr Guirgis stated that the types of fractures were “stable” and this is a term used in the brief description of such fractures at Exhibits A4 and A5. Thus she argued that they met the “stabilised” criteria in the guidelines, there being no requirement for the condition to be “fully stabilised” as suggested by the Respondent.
- The receipt of misleading information from Centrelink on 14 March 2003 – her evidence being that she was informed that she had no entitlement to any Centrelink benefits – prevented her from applying for the DSP at that time. Even had this been premature in terms of the adequacy of supporting medical documentation, further investigation would have taken place.
- Had she been transferred to Youth Allowance Incapacitated, which her medical condition and inability to continue study at that time warranted, or to Sickness Allowance, then she could have later transferred to the DSP in accordance with the provisions of section 12(1) of the Admin Act.
- The report from Dr Jackson in December 2003 accepts her statement that her condition had not improved for some five months. This indicated that that the early estimation by medical staff that a return to work within about 6 months had not been fulfilled, it being made before the full extent of her injuries were known. Miss Ghalbouni submitted that the opinion by Dr Jackson that she had a potential to return to her pre-accident employment was vague and open to prognosis.
- As to a psychiatric condition (and chronic pain), she considered the initial report by Dr Smith established evidence of a condition which impacted on her ability to function, later reports establishing the permanency to date of that condition.
- Finally, the claim by the Respondent in the Statement of Facts and Contentions (Exhibit R1) that a claim for the DSP in March 2003 would have been premature could not be made in the absence of investigation.
31. Mr Kenny submitted for the Respondent that whilst primary rehabilitation had begun by March 2003, secondary treatment and rehabilitation had barely begun, and whilst she was suffering physical impairments, it would not have been possible to have assigned ratings. Amongst other comments on the medical evidence, the Respondent’s Statement of Facts and Contentions referred to radiology reports in March 2003 describing the fractures as “healing”, and that whilst the initial diagnosis by Dr Smith noted features of PTSD, his later diagnosis of October 2003 referred primarily to Adjustment Disorder which was not necessarily a permanent condition, and in any event, the proposed treatment suggested it was not stable. Nor was it feasible to suggest it had been diagnosed, treated and stabilised in the month following the accident. The report by Dr Jackson in December 2003 saw a potential to return to pre-accident employment, and recommended further treatment, and Dr Ingram opined in June 2005 that medication should be reviewed and symptoms had not yet stabilised. Hence a claim for DSP in early 2003 would have been premature.
32. It was further submitted that it was inappropriate and not in accordance with social security law to attempt to relate the final outcome back to the point in time at which treatment and rehabilitation had commenced. Hence in this instance the normal requirement for a written claim should apply.
33. In oral submission, Mr Kenny suggested that the only occasions when the DSP could be backdated to point of an accident or injury would be when that injury left a person manifestly incapacitated, citing quadriplegia as an example. He accepted that Miss Ghalbouni may well have been advised that she had no entitlement to any benefits in March 2003, but considered it would have been imprudent and irresponsible by Centrelink staff to raise expectations at that time. In terms of the meaning of the descriptive word “stable”, Mr Kenny submitted that its use in the medical context of the condition of a fracture could not necessarily follow in the wider and more complete context which might include the state of healing, pain relief, treatment and mobilization, implicit in the guidelines for assessing impairment ratings. As to the situation in March 2003, when the Applicant considered her condition would have warranted eligibility for the DSP, Mr Kenny observed that the lumbar condition had only just been identified let alone a full diagnosis being in place. He considered that the earliest possible time that an effective claim might have been realistically considered was after the pain management clinic.
34. He submitted that the medical reports as to a psychiatric condition showed that PTSD was a temporary condition and, as suggested by Dr Ingram, there was still instability in the psychiatric condition in mid 2005. Finally, Mr Kenny submitted that contrary to the view of Miss Ghalbouni, neither Sickness Allowance nor Youth Allowance Incapacitated would have resulted in a higher payment rate and hence, as with Youth Allowance, she would not have been eligible for any payment given the circumstances of her compensation payments.
CONSIDERATON OF ISSUES
Was Miss Ghalbouni eligible for Sickness Allowance or Youth Allowance Incapacitated?
35. The criteria for eligibility for Sickness Allowance are prescribed in section 666 of the Act and are presented in a more readable form on the Centrelink website. In essence, the applicant must be over 21 years of age and be employed or in receipt of a benefit, Youth Allowance not being one of those benefits. At the time of her accident, Ms Ghalbouni was under 21 and hence not eligible. After she turned 21 (in June 2003) she would not have been eligible as she was not employed.
36. As to Youth Allowance Incapacitated, a person receiving Youth Allowance who becomes ill or injured may continue to receive those payments while he or she is temporarily out of work or unable to study. However, this is a compensation affected payment, and is subject to reduction, to the point of extinction depending on the circumstances, should the person be receiving workers compensation or third party compensation payments. Miss Ghalbouni became ineligible for Youth Allowance on receipt of periodic payments from TAC; the calculations leading to that decision by Centrelink have not been challenged. Accordingly those same calculations would have applied to Youth Allowance Incapacitated, and hence Miss Ghalbouni had no eligibility for that allowance.
Was Miss Ghalbouni eligible for the Disability Support pension prior to her formal claim on 6 June 2005?
37. I have identified with some detail and fulsomely, the available medical evidence. But before considering that evidence, it is appropriate to look at the impairment rating given when the circumstances of Miss Ghalbouni were considered after she had lodged her claim for DSP in June 2005. Her impairments were considered to be permanent at that time, and to have resulted from the motor vehicle accident in January 2003. If those impairments in June 2005 were judged to be worthy of a 50 point impairment rating pursuant to Schedule 1B of the Act (this being well in excess of the required 20 points under section 94(1)(b) of the Act), which is the case, and she had a continuing inability to work (or study) for the next two years, could not it be argued that a similar impairment rating might have been appropriate and relevant at an earlier stage, perhaps back to early 2003?
38. Such an argument was not pursued by Miss Ghalbouni, but I put it to Mr Kenny during his final submissions. His position was that the allocated points, 40 being for physical impairment and 10 for psychiatric conditions, could not be assigned “right back at the start” given that considerable time would ensue before the conditions were properly examined and identified, investigated, treated and stabilized. He referred to such medical treatment and procedures as physiotherapy, counseling, specialist psychiatric counseling, hydrotherapy and pain management clinic, which took time to work through. Again, the time to achieve physical mobility needed to be recognized. He opined that it was not possible to assign an impairment rating in hindsight.
39. I am in agreement with those views, such a position being supported by the medical evidence before me, and particularly that relevant to the period under consideration. That medical evidence must provide the framework upon which a decision can be made as to whether Miss Ghalbouni’s condition was such prior to June 2005 that the provisions of section 12(2) of the Admin Act might be implemented. As acknowledged by Miss Ghalbouni, the injuries to her lumbar spine did not become apparent until some two months after the accident, and the extent of those injuries became the subject of further investigation and subsequent treatment. Such treatment for her physical injuries continued well into the future, and took the form of physiotherapy, hydrotherapy, referral to a neurosurgeon for nerve root block and finally the pain management clinic. I take account of the evidence of Miss Ghalbouni that at various times she ceased these treatments, but that in itself merely supports the contention that treatment took place over a reasonably lengthy period of time in an effort to resolve the difficulties and in effect to achieve stability. In respect of the latter, I cannot agree with her contention that her fractures were “stable” from the outset, the use of this word in that context failing to address the full implications and whether longer term stability was to be realized.
40. Dr Guirgis examined Miss Ghalbouni at an early stage and his report (to Miss Ghalbouni’s lawyers in December 2004 in respect of whole person impairment) addressed both the physical injuries he observed in March 2003 and his views some 18 months later. At that time (December 2004) he did not suggest that the condition of Miss Ghalbouni was such that eligibility for DSP had been, or might be considered – and here I observe that Dr Guirgis is well versed in the criteria for such benefits - and in respect of Miss Ghalbouni’s ability to work or return to study, he only stated “the patient remains unfit for activities which would require applying stresses to the back and left leg”.
41. In Dr Guirgis’ more recent report of 28 March 2006 (A2) which he provided to Miss Ghalbouni, he noted her injuries “as expected improved gradually… At no point was she expected to make a full recovery… She is permanently unfit for activities that would require applying stresses to the lower back and left leg…. in the following weeks of the road traffic accident Theresa’s injuries were considered to be permanent in nature. It was anticipated from the beginning that the injuries would continue to impact on her ability to function”. But he makes no suggestion that these injuries, and her ability to resume work or study, would have met the DSP criteria in the period under consideration. Nor did Dr Jackson in his report to the TAC in December 2003 provide an opinion that might lead me to consider she met the DSP criteria at that time, although he did not consider her fit to return to work as a sales assistant.
42. Dr Smith has been seeing Miss Ghalbouni since 12 March 2003, his opinion at that time being that she had an Adjustment Disorder with depressed and anxious mood, and features, but no diagnostic criteria, of PTSD. In October that year he confirmed his diagnosis of Chronic Adjustment Disorder and that she was unfit for work, but would be able to do so in time. He noted ongoing psychotherapy with appropriate medication. His most recent report (A3) of March 2006 states that the psychiatric conditions of Miss Ghalbouni were “quickly stabilised” and as he expected, and observed, gradually improved over time with fluctuations. In his opinion, the conditions were diagnosed, treated and stabilised within the first month of the MVA.
43. I have some difficulty with this latter opinion in respect of the timing. Dr Smith first saw Miss Ghalbouni almost two months after the accident, so it cannot said that that condition had been diagnosed, let alone treated and stabilised prior to his first examination. Nor had Dr Mina made any observations in that first month. Further, whilst Dr Smith saw features of PTSD in his first examination, such a condition was apparently not present thereafter. At no point does Dr Smith refer to the condition of Miss Ghalbouni in such a way that an inference can be drawn that she was meeting, from a psychiatric or chronic pain perspective, the precise and stringent requirements defined in section 94 of the Act in respect of eligibility for PTSD.
44. I do not believe that the evidence before me is such as to support the contention of Miss Ghalbouni that arrears of the disability support pension from 14 March 2003 to 6 June 2005, or for any other intervening period, can be paid. Miss Ghalbouni gave evidence that her mother has been in receipt of the DSP for some years, but she was not aware of the circumstances or detail of that pension at the time. In any event, I have not taken this into consideration in reaching my decision.
45. In reaching my decision, I have taken account of the matter of Re Burgess and Secretary, Department of Family and Community Services [2003] AATA 1062 and Burgess v Secretary, Department of Family and Community Services [2004] FCA 136 wherein a similar issue in respect of the power of the Tribunal to backdate DSP was considered. The Tribunal in that matter concluded that it did not have the power to backdate the DSP and hence arrears to Mr Burgess were not payable. On appeal to the Federal Court, Wilcox J found that whilst some subsections of section 12 of the Admin Act were not easy to follow, he set aside the Tribunals decision and found that “Mr Burgess may not be able to demonstrate that he was entitled to the DSP before 16 April 2002. However, he is entitled to have that issue determined on its merits”. The subsequent decision, by Agreement, of that Tribunal is not relevant to the matter before me.
46. Accordingly, the decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member.
Signed: A. Garcia
AssociateDate of Hearing 18 May 2006
Date of Decision 27 June 2006
Representative of the Applicant self representedAdvocate for the Respondent Mr J. Kenny
Below is a table listing the exhibits tendered during the Hearing of the proceedings and referred to above in these reasons for decision:
Exhibit No.
Description
A1
Report from Dr Guirgis to CRS Australia dated 21 August 2003.
A2
Report of Dr Guirgis dated 28 March 2006.
A3
Letter from Dr Selwyn Smith dated 15 March 2006.
A4
Documents provided by Miss Ghalbouni to the Tribunal on 17 May 2006.
A5
Extract describing spinal injuries.
R1
The Respondent’s Statement of Facts and Contentions dated 9 May 2006.
0
2
0