Ghassan Halabi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 250

[2012] AATA 250

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/2929
Re	Ghassan Halabi
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	30 April 2012
Place	Melbourne

The Tribunal affirms the decision under review.

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

Regina Perton, Member

Catchwords

SOCIAL SECURITY   disability support pension - whether 20 impairment points - whether condition stabilised and treated – decision affirmed

Legislation

Social Security Act 1991 s 94(1), s 94(2), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

Regina Perton, Member

30 April 2012

1. Mr Ghassan Halabi is in his late-fifties.  He suffers from a number of physical problems, some long standing and others recent.  Mr Halabi worked as a taxi driver until April 2010.  On 7 December 2010 Mr Halabi telephoned Centrelink, seeking to lodge a claim for disability support pension (DSP). Centrelink administers social security benefits for the respondent. He lodged the completed form on 9 December 2010.  His claim is deemed to have been lodged on 7 December 2010.  On 21 February 2011 a Centrelink officer refused the application.  Mr Halabi was assessed as having an impairment rating of less than 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).   On 11 April 2011 an authorised review officer (ARO) reviewed the decision and confirmed that Mr Halabi was not eligible for DSP.

2. On 27 April 2011 Mr Halabi lodged an application for review with the Social Security Appeals Tribunal (SSAT).  On 23 June 2011 the SSAT affirmed the decision to refuse DSP on the basis that Mr Halabi’s impairments did not rate 20 points under the Impairment Tables.  Mr Halabi lodged an application for review with this Tribunal on 21 July 2011.

3. The issue before the Tribunal is whether Mr Halabi satisfied the requirements for DSP as at 7 December 2010 or within 13 weeks of that date.

   MR HALABI'S MEDICAL AND PHYSICAL CONDITION

4. At the hearing, Mr Halabi told the Tribunal that he was still waiting for an operation at the Royal Melbourne Hospital to remove a colostomy bag that was inserted after bowel cancer surgery.  He said that he has been on the waiting list for the operation for 14 months.  Mr Halabi was originally told that the operation to remove the bag would be six months after its insertion.  He described the pain he has felt as a result and how it affects him physically and psychologically. 

5. Mr Halabi said that he had lodged the claim for DSP about a week after he was released from hospital.  He had been encouraged to do so at that time by the nurses and a social worker who helped him complete the form.  He said that he had a colonoscopy a few months before being diagnosed with rectal cancer and was in hospital for 15 days from 17 November 2010 following corrective surgery which excised the cancer.  A week after the operation, Mr Halabi spent six days in intensive care.  He was diagnosed with staphylococcus aureus while in hospital but that has now cleared up. 

6. Mr Halabi said that he had been working part-time until April 2010.  He had lost his driving licence for three months due to too many accumulated points following an accident. There was a subsequent court case involving an accident that took four years to come to hearing.  Mr Halabi said that his taxi licence was taken away following the court case.  He said that he had been feeling very tired before the cancer diagnosis.  He had not looked for any work because he felt unwell. 

7. Mr Halabi said that apart from the cancer, his blood pressure sometimes gets higher than it should be, despite medication. 

8. Mr Halabi was asked about various medical conditions he has suffered from over the years.  He said that his hyperlipidaemia is under control with medication.  Mr Halabi said his symptom from Gastro Oesophageal Reflux Disease (GORD) is heartburn and he takes medication to control it.  He has been taking medication for his hypertension for many years.  He sometimes feels dizzy if he gets up quickly.   In relation to his back, he said he continues to suffer pain.  He worked night shift at Visyboard for many years.  The job required repetitive movements which resulted in his back condition.    He is now thinking of having a back operation.  In relation to his heart condition, Mr Halabi said that he still has days when his heartbeat is very fast.  He said that he has also recently had a sleep study done in relation to sleep apnoea.  He said that he also suffers from depression and delirium.

9. The Tribunal was provided with several medical and related reports.  A medical certificate signed by Dr Craig Mills of the Royal Melbourne Hospital dated 6 December 1985 indicated that Mr Halabi had had major chest surgery and would be unable to follow his daily occupation for 12 weeks from 20 November 1985. 

10. Dr N Boyapati, Mr Halabi's general practitioner, prepared a report for Centrelink on 12 December 2001 in which he stated that Mr Halabi was suffering from lower back pain which was long term, hypertension that was permanent, and mitral valve replacement which was permanent.  The lower back condition was described as not being stable but the two latter conditions were stable.  At that time, he estimated that Mr Halabi could work 8 – 14 hours per week. 

11. Dr Boyapati provided a medical certificate on 4 May 2001 stating that his patient was suffering from lower back pain and dizzy spells and would be unable to work with heights…lifting weights, bending from 4 May 2001 to 3 June 2001.  On 28 May 2001 Dr Boyapati issued a medical certificate stating that Mr Halabi was affected by mitral valve replacement, hypertension & now back pain and was unable to bend and lift weights from that day until 30 June 2001.  Fawkner Radiology provided a report on 1 August 2001 stating that there were Early changes of spondylosis …in the lower thoracic region where there is slight disc space narrowing….

12. A medical certificate prepared for Centrelink by Dr Boyapati on 23 April 2006 stated that Mr Halabi suffered from the permanent conditions of mitral valve replacement, hypertension and peptic ulcer disease.   His symptoms included being Tired,  Lethargic, Dizzy spells on and off and Heartburn under control.  Dr Boyapati expressed the opinion that Mr Halabi could work for  10 to 12 hours per week.

13. A Job Capacity Assessment Report prepared in 19 September 2006 by Sally Capper, registered psychologist, indicated that Mr Halabi was working 24 hours per fortnight as a taxi driver.  His capacity for work between 1 September 2006 and 1 December 2006 was estimated at 0 to 7 hours, and 8 to 14 hours per week from 2 December 2006 until 19 March 2007.  Mr Halabi’s future work capacity without intervention was described as being 8 – 14 hours per week but it was expected to increase to 15 – 22 hours per week with intervention.  He was referred to the Disability Employment Network. 

14. In a medical report prepared for Centrelink on 28 February 2009, Dr Boyapati stated that Mr Halabi had suffered from lower back pain since May 2001.  He stated that the back condition had the most impact on Mr Halabi.   Dr Boyapati indicated that Mr Halabi’s the pain was worse at various times and that he experienced it almost weekly. The current treatment was paracetamol and walking.  Past treatment had included back exercises, swimming, walking and paracetamol.  Dr Boyapati expected the condition to persist for more than 24 months and remain unchanged.  Mr Halabi’s pain was exacerbated by walking too long, lifting weights, recurrent bending and sitting too long.

15. The second condition reported by Dr Boyapati in the medical report dated 28 February 2009 was Rheumatic Fever – Heart Disease – Mitral Valve Replacement – on warfarin.  Dr Boyapati stated that Mr Halabi had suffered from rheumatic fever when he was 13 years old and had been hospitalized in Lebanon.  He had had a valve replacement in Australia in 1986.  Mr Halabi’s condition was described as stable.   He was taking warfarin and having blood tests at least monthly.    The impact of the condition on Mr Halabi was that At times he was tired and lethargic.  Mr Halabi also suffered from hypertension and hyperlipidaemia but these were well managed and had minimal effect on his ability to function.

16. A Job Capacity Assessment Report was prepared by Michelle Fox, registered psychologist and nurse in late March 2009 in relation to a DSP claim.  She allocated 10 points under the Impairment Tables for  Mr Halabi’s circulatory system conditions but none for his spinal condition.  She pointed out that Mr Halabi was then working 15 to 16 hours per week as a taxi driver.  He was assessed as having a work capacity of 23 to 29 hours per week.

17. Dr Ravinder N S Sandhu of the Royal Melbourne Hospital prepared a medical report on 2 December 2010.  Dr Sandhu stated that the condition with most impact on Mr Halabi was rectal cancer which had been diagnosed on 19 August 2010.  In relation to current symptoms, Dr Sandhu stated:

    No current symptoms as he has undergone surgical resection of tumour.

    Does have a stoma to manage at home.

18. Dr Sandhu indicated that Mr Halabi had undergone surgery on 17 November 2010 and would require ongoing surveillance colonoscopy.    He stated that the stoma would result in increased self-care, as regular changes were required and that there was a psychological impact.  The impact on Mr Halabi’s ability to function was expected to persist for 3 – 24 months and was expected to somewhat improve over the next two years. 

19. Dr Sandhu stated that a blood culture positive for staph. arreus in setting of mechanical aortic valve had been confirmed on 21 November 2010 but it was no longer significant as Mr Halabi was being treated with intravenous antibiotics.  The impact of this condition was expected to significantly reduce over the next 3 to 24 months.  Dr Sandhu stated that the treatment for his mechanical aortic valve was warfarin and that it had minimal impact on Mr Halabi’s ability to function.  Dr Sandhu’s  opinion was that Mr Halabi was unfit for work until 13 January 2011.

20. Tina Hristovska, psychologist and DSP assessor, undertook a Job Capacity Assessment on Mr Halabi on 14 December 2010.  The rectal cancer condition which had been diagnosed in August 2010 was not considered to be fully treated and fully stabilised.  The manual aortic valve was fully diagnosed, fully treated and fully stabilised. Ms Hristovska awarded no points  for any of the conditions under the Impairment Tables.

21. On 6 March 2011 Dr Boyapati prepared a medical report concerning DSP.  The condition with the most impact was Colorectal Adenocarcinoma – laparoscopic assisted ultra low anterior resection & loop ileostomy.  The current symptoms were described as Pain around the colostomy wound and areas is hard & tender to touch.   The current treatment was colostomy bags.  The future treatment was colostomy reversal.  Dr Boyapati indicated that her patient was Unable to self care especially with colostomy bags....  Mr Halabi’s wife assisted him.  The condition was expected to impact on Mr Halabi’s ability to function for more than 24 months and its effect on him to fluctuate. 

22. Other conditions cited in Dr Boyapati’s report were the aortic valve replacement, in relation to which his condition was stable while he was taking warfarin and having regular blood tests.  The condition made him tired and lethargic.  He also had problems and bled heavily from cuts due to the warfarin.  According to Dr Boyapati, Mr Halabi’s hypertension, hyperlipidaemia, GORD and back pain. were generally well managed and having a  minimal or limited impact on his ability to function.

23. On 14 April 2011 Dr Boyapati provided a medical certificate to Centrelink stating that Mr Halabi was unfit for work until 13 July 2011 on account of his colorectal adenocarcinoma, his aortic valve replacement with the taking of warfarin with regular blood tests and hypertension.  A similar medical certificate was issued on 26 July 2011 stating that Mr Halabi would be unfit for work until 13 October 2011.

24. Between 2 September 1997 and 29 March 2010 Mr Halabi declared earnings from employment as a taxi driver for numerous fortnights.  Centrelink records show that the last occasion on which he did so was for the fortnight commencing 29 March 2010.

    DID MR HALABI QUALIFY FOR DSP?

25. Section 94 of the Act sets out the criteria for a person to qualify for DSP. 

    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;

    …

    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 independently of a program of support within the next 2 years; and

    (b)       either:

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

    (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. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

27. …

    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.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

    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 2 years.

    …

28. When deciding whether a person qualifies for DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date. Therefore, the Tribunal must consider whether Mr Halabi qualified for the DSP either on 7 December 2010 or at a date before 8 March 2011 (the relevant period).

29. The Tribunal accepts that Mr Halabi suffered from a number of medical conditions during the relevant period. Centrelink conceded, and the Tribunal concurs, that some of Mr Halabi’s aortic valve replacement, hypertension, hyperlipidaemia, GORD and back pain met Schedule 1B requirements during the relevant period, in that they were fully documented, diagnosed conditions which had been investigated, treated and stabilised. However, Mr Halabi’s colorectal adenocarcinoma and resulting loop ileostomy could not be considered permanent during the relevant period; nor could the staphylococcus aureus, depression or delirium. Therefore, these conditions did not meet Schedule 1B requirements during the relevant period.

30. The respondent submitted that the only condition attracting points, namely 10 points, was the heart condition that required the aortic valve replacement.  The hypertension, hyperlipidaemia and GORD were under control and well managed and caused minimal or limited impact on Mr Halabi’s ability to function.  In relation to the back pain, the respondent contended that no points should be allocated given Mr Halabi worked for many years with the condition which waxed and waned.  As for the staphylococcus aureus, the condition was considered temporary and hence attracted no points.  There was no medical evidence that Mr Halabi was being treated for depression or delirium during the relevant period. 

31. The number of points allocated by the job capacity assessors based on the medical evidence has ranged between nil and 10. Regardless of whether Mr Halabi was awarded nil points or 10 points, he did not, during the relevant period, have an impairment rating of 20 points or more under the Impairment Tables. As a result, he does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). In the circumstances it is not necessary to consider whether Mr Halabi satisfies s 94(2) of the Act. The decision to refuse the claim for DSP lodged on 7 December 2010 was correct.

    DECISION

32. The Tribunal affirms the decision under review.

I certify that the preceding 32  (thirty‑two) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member.

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

Administrative Assistant - Legal

Dated 30 April 2012

Date of hearing	1 March 2012
Applicant	In person
Advocate for the Respondent	Mr C Munro
Solicitors for the Respondent	Program Litigation and Review Branch, Department of Human Services - Centrelink