Habib and Department of Family and Community Services
[2001] AATA 143
•26 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 143
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1973
GENERAL ADMINISTRATIVE DIVISION )
Re ANWAR HABIB
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date26 February 2001
PlaceSydney
Decision The Tribunal determines that the decision under review be affirmed.
.
[sgn]Dr J D Campbell
Member
CATCHWORDS
Social Security – disability support pension – assessment – continuing inability to work
Social Security Act 1991
REASONS FOR DECISION
DR J D CAMPBELL , Member
Mr Anwar Habib ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 27 October 1999 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 19 April 1999 which rejected the Applicant's claim for disability support pension ("DSP"). This latter decision had been reviewed and affirmed in a decision made by an authorised review officer on 18 August 1999.
A hearing was held before the Tribunal on 30 October 2000, at which the self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Mr Lozynsky, an advocate form the Advocacy and Administrative Law Section of Centrelink. The Tribunal was assisted by an interpreter fluent in the Arabic language.
The following documents were placed into evidence before the Tribunal:
Exhibit No Description Date
T1-T26 pp1-108 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1 Medical report of Dr Matter to Dr Napper Undated
A2 Treating doctors report of Dr Matter 31 May 2000
R1 Medical assessment report of Dr Anjum 28 July 2000
R2 Respondent's statement of facts and contentions 21 October 2000
issues
The relevant issues in this matter are:
1. whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in schedule 1B; and
2. if so, whether the impairment is of itself sufficient to prevent the Applicant
from doing any work within the next 2 years; and
from undertaking educational or vocation training or on-the-job training during the next 2 years; or
whether such training is (unlikely because of the impairment) to enable the Applicant to do any work within the next 2 years.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2),(3),(4) and (5) and 100(3) and "Tables for Assessment of work related impairment for Disability Support Pension" (Schedule 1B Impairment Tables").
backgroundThe Applicant lodged a claim for disability support pension with the Respondent on 18 December 1998 in which he listed his disabilities as a severely injured left hand causing him to have difficulties driving his car on occasions and sometimes with lifting and carrying (T3, pp 47 and 48). In a treating doctors' report lodged on 18 December 1998 Dr Matter stated that the Applicant had two conditions, namely depression and a left hand injury (T9). It is stated in a file notation that the Applicant failed to attend for the medical assessment appointments on 9 December 1998 and 8 February 1999 (T11). A medical assessment report was conducted on 12 April 1999 with the Applicant found to have a 10 point impairment rating (T14). The Applicant's claim for DSP was rejected on 19 April 1999, and this was affirmed by the authorised review officer on 18 August 1999 and by the SSAT on 27 October 1999 (T2).
the applicant's evidenceThe Applicant told the Tribunal that he was born in Lebanon in 1955, was educated for three years and that he started work at age nine to ten in a mixed business. He worked in this position for three to four years. Short term employments in a butcher's shop and with a panel beater were followed by employment in a wood factory.
The Applicant stated that he came to Australia in 1976 and worked in a car factory, then in 1980 as a carpenter until the factory closed. This was followed by three to four years at Leylands. His next employment was in a factory producing lights, where he worked for a considerable time, and that was followed by work as a cleaner for two years prior to operating a restaurant for eleven months. His last employment was as a labourer in a refinery in Queensland, and it was there in 1997 he was injured at work when a heavy piece of metal fell on his left hand. The Applicant said that he did not immediately seek a medical practitioner's attention, but after a week the hand was painful and swollen. He stated that there were no fractures; that he was not operated on; that he received physiotherapy for a long period; that he received weekly incapacity payments and that he is still awaiting an outcome from his compensation case.
The Applicant told the Tribunal that he was married in 1979 and that he has four children, aged seven to 22; that his wife does not work and that he has two sisters and four brothers in Australia. The Applicant stated that he is left handed and cannot read or write in either English or Arabic. He gave further evidence that he is upset, and has been for a considerable period over the loss of his house in Campbelltown some five years ago and over his absence from the workforce.
The Applicant described his normal day as commencing mid morning, as he has difficulty with sleeping and tends to sleep in. He stated that he has his first meal at three to four o'clock in the afternoon and that he does visit his brothers and sits in the garages at his friends places. The Applicant further stated that sometimes he goes to the club; that he is usually in bed by eight o'clock and that he often wakes at 11 o'clock.
The Applicant stated that he spends a lot of time going from one doctor to another and that he has visited a psychiatrist every three to four weeks over the last two years. He is often irritable and gets angry with his wife and children, and that once he left home and went and stayed at a friends place for two weeks. He stated that he was drinking for the last two months and that he smokes a packet of cigarettes a day. The Applicant stated that he tends to forget a lot of things, that he was involved in a rear end collision in December 1998 and that he has had some neck problems since. The Applicant indicated that he does little around the house, no gardening, but that he does drive the car and that on good days he may do some shopping.
It was the Applicant's opinion that his various conditions have worsened since his car accident; that he has had a refraction error of his eyes (myopia) and a peptic ulcer some fifteen years ago. He currently take the following medication:
Naprosyn 500 ½ tab three times a day
Tramal ½ tab as required
Largacil 25 mgs ½ tab …as required
Zoloft 100 mgs ½ tab twice a day
The Applicant also stated that his workers compensation claim, which is in progress, involves both the injuries to his left hand and his psychiatric condition.
medical evidence
In a medical review and treating doctor's report lodged with the Respondent on 21 October 1998, the Applicant described his medical condition as a finger joint injury. This commenced on 6 May 1997 and it restricts him from performing tasks with both hands appropriately, but that he expected to be able to commence work in six to 12 months (T4). In a treating doctor's report Dr Matter describes the Applicant's condition as a chronic pain syndrome left hand and cervical spine, with the condition being considered temporary but deteriorating. Further the Applicant would be fit for work in three to six months (T5).
In a report dated 18 November 1998 Dr Manohar, a consultant in rehabilitation medicine made the following comments:
"Anwar Habib returned to see me today.
He tells me that he had increasing pain the peri-anal region. He developed a peri-anal abscess [sic] and was seen by his family physician and later operated on by Dr Greenberg in Bankstown. He has recovered from this.
He still complains of left wrist and finger pain. It extends up into the left shoulder. He says that all activities aggravate the pain.
He tells me that he has difficulty in activities involving a firm handgrip.
There is slight post traumatic synovitis of the fingers.
Now it is largely a question of reconditioning him back to the work situation."
(T8, p64)
In a treating doctor's report dated 17 December 1998, Dr Matter describes the Applicant's medical conditions as:
(a) depression – commenced June 1997 and the Applicant obsessed with pain. Condition considered temporary but fluctuating;
(b) left hand injury - tendon injury and chronic pain. Commenced May 1996. Condition considered long term and deteriorating. (T9)Dr Matter considered that the Applicant's work ability would be affected to perform any form of work over the next two years in the following ways:
absence from work four or more days a months;
inability to work full days because of endurance problems;
minor limitations with movements;
substantially diminished dexterity;
inability to lift, carry or move objects;
inappropriate behaviour for at least 15 minutes per day; and
distress or difficulty alternating between tasks.
Dr Matter considered that the Applicant would not be able to return to any form of work for at least two years and that the Applicant would not benefit from vocational training or rehabilitation (T9).
In a whole person assessment report dated 12 April 1999, Dr Morris stated:
"This 43-year-old man last worked in April 1997 as a labourer (welder's assistant). He stopped when his left hand was injured after a heavy piece of metal landed on it. He did not require hospital treatment but was later referred to a rehabilitation specialist and underwent physiotherapy. In the past he has done factory work and cleaning. He was schooled in Lebanon to age 10.
He still experiences left finger and wrist pain, which is referred, up his arm. He is left-handed. His main difficulties are with heavy lifting and tasks requiring strong grip. He does not do any housework but he could identify no difficulties with hand function at home. He can hold a carton of milk with his left hand. Examination revealed mildly impaired grip strength on the left with possible functional overlay.
The depression began at the time of the accident. He has recently started seeing Dr Ali and taking anti-depressants but he was unsure which. This condition is therefore temporary.
Late last year the customer had a peri-anal abscess drained. He seems to have recovered and now has only occasional symptoms.
The total impairment rating is 10. The customer is temporarily unfit for work due to his depression, which should be reviewed in 6 months after appropriate treatment. When this improves he should be able to manage light full-time work such as static security guard, car park attendant or caretaker."
(T14, P87)
In a treating doctor's report dated 31 May 2000 Dr Matter described the Applicant's medical condition as:
(a) depression - variation in mood, poor memory and confusion and poor cognition function; commenced March 1998; long term and deteriorating;
(b) mechanical back pain and lumbar spine – low back pain and stiffness associated with sciatica and pins and needles; long term and deteriorating. (Exhibit A2)In a whole person assessment report dated 28 July 2000, Dr Anjum summarised his findings in the following terms:
"This 45 years old male customer last worked 3 years ago as labourer and stopped for medical reasons (left hand injury at work, fully resolved).
Based on the examination today, he remains temporarily unfit for work due to depression and anxiety.
The condition has been classified as temporary as it is expected to improve to good functional level within the short term.
He is seeing a psychiatrist and is compliant for medications.
The predominant symptoms are markedly reduced concentration and psychomotor retardation.
A review is recommended after six months to assess progress." (Exhibit R2)
submissions: the applicant
The Applicant submitted that his two impairments when appropriately assessed would have a total impairment rating of 20 or more points. Further in relying upon the opinion of Dr Matter, the Applicant contends that he does have a continuing inability to work and that as he satisfies the necessary requirements nominated in subsection 94 of the Act he is entitled to be granted a DSP.
submission: the respondentThe Respondent contended that the appropriate assessment of the Applicant's impairments is 10 points, and in so stating relies upon the opinions of Dr Morris and Dr Manohar, as he does when contending that the Applicant does not have a continuing inability to work. In summary the Respondent contends that the Applicant has been correctly assessed in both his total impairment rating and his ability to work and as such fails to qualify for a DSP.
consideration and findingsIn preliminary comment the Tribunal notes that subsection 100(3) directs the Tribunal's attention to a particular period commencing the day after the lodgement of the claim and continuing for a period of 90 days ("operative period"), with evidence adduced during this period as to the nature of effect of an applicant's impairments being of prime consideration. Evidence adduced and relating to impairments before or after this time can assist the Tribunal, but only where it allows for a better understanding of the nature and effects of the impairments existing during the operative period.
The Tribunal, in considering the evidence of the Applicant, and the various medical reports nominated earlier in this decision finds that the Applicant had the following medical conditions during the operative period together with the associated clinical features:
(a) injury to his left hand: commenced following a work injury in May 1997; complaints of pain in fingers and with some radiation to left arm and shoulder; some diminution in dexterity and experiences difficulty from time to time when lifting with left hand; Dominant hand and mildly weakened left hand grip (Drs Morris, Manohar);
(b) peri-anal Abscess: Temporary condition – successfully drained.
(c) depression: commenced after workplace injury; difficulty with memory, irritability and difficulty with sleeping; some impairment of cognition function (Drs Morris, Matter); is under care of psychiatrist (Dr Napper).
In assessment of the particular impairments nominated, the Tribunal notes that the reports of the treating doctor, Dr Matter, are of minimal assistance to the Tribunal in that there is insignificant clinical detail as well as variable commencement dates for the impairments, with one date for the left hand being before the actual injury (T9). Nevertheless the Tribunal , in acknowledging the evidence presented by the Applicant and the medical reports of Drs Morris and Manohar, makes the following assessments:
(a) injury to his left hand: 10 points under Table 3 of Schedule 1B Impairment Tables arising from loss of grip strength of dominant limb, with some resulting loss of digital dexterity;
(b) peri-anal abscess: temporary condition and hence no rating given;
(c) depression: the Tribunal notes that Dr Matter believes this commenced after the work place injury, although it is not mentioned by either him or Dr Manohar in their reports of October 1998; further in the treating doctor's report, Dr Matter believes it to be a temporary condition, and similarly Dr Morris is of the same opinion, and likewise Dr Anjum, in July 1999; the Tribunal also notes that the Applicant is attending Dr Napper, a psychiatrist on a regular basis and that his depression is also an element in his compensation claim.
In summary the Tribunal concludes that there is inadequate documentation of the psychiatric illness in the operative period, and further that the condition at that time was considered to be a temporary condition by both Drs Matter and Morris. Accordingly the Tribunal finds that the psychiatric condition was not considered to be permanent at the time and as such no impairment rating given.
As a consequence of the Tribunal's assessment of the Applicant's impairments, the Applicant has a total impairment rating of 10 points.
Section 94 of the Social Security Act 1991 sets out the qualification for disability support pension. It reads 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;…
94. (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
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.
94. (3) In deciding whether or not a person has a continuing inability to work because of impairment, the Secretary is not to have regard to:
the availability to the person of educational or vocational training or on-the-job training; or
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) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.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.In applying the Tribunal's earlier findings against the legislative framework outlined, the Tribunal concludes that the Applicant:
(a) does satisfy subsection 94(1)(a) of the Act by virtue of the existence of his physical and psychiatric impairments; and
(b) does not satisfy subsection 94(1)(b) of the Act in that his total impairment of 10 points assessed under the Schedule 1B Impairment Tables is less than the 20 points required.In considering whether the Applicant has a continuing inability to work, the Tribunal, relying upon the opinions of Drs Manohar and Morris, finds that:
(a) the Applicant's impairments are not preventing him from doing any work within the next two years; and
(b) the Applicant's impairments do not prevent him from undertaking educational or vocational training or on-the-job training within the next two years; and
(c) that such training is not unlikely (because of the impairments) to enable the Applicant to do any work within the next two years.In arriving at the finding that the Applicant does not have a continuing inability to work, the Tribunal did take into account the Applicant's desire to work, his concerns about his ability to work and also the opinion of Dr Matter. As regards the latter, the Tribunal placed significantly less weight on Dr Matter's opinion. He considered the Applicant's psychiatric condition to be temporary, and yet believed that the Applicant did not require vocational and/or rehabilitation training. He also believed that the Applicant was unfit for every form of work for at least two years. In essence the Tribunal had difficulty in understanding this opinion in the light of the facts stated by Dr Matter, and hence a preference for the opinions of Drs Manohar and Morris.
In conclusion the Tribunal finds that the Applicant does not qualify for a disability support pension as he has failed to satisfy subsection 94(1)(b) and (c) of the Act.
determiniationThe Tribunal determines that the decision under review be affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate of Hearing 30 October 2000
Date of Decision 26 February 2001
Self- represented Applicant
Representation for the Respondent MrG Lozynsky
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Continuing Inability to Work
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Impairment Rating
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Disability Support Pension
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