Hafad Al Badri and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 45

[2013] AATA 45

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1375
Re	Hafad Al Badri
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	31 January 2013
Place	Sydney

The decision under review is affirmed.

..........[SGD]..............................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision affirmed

LEGISLATION

Social Security Act 1991 sections 27, 94(1), (2), (3), (4), (5), (6), Schedule 1B

Social Security (Administration) Act 1999 Schedule 2

Social Security and Other Legislation Amendment Act 2011 Schedule 3, section 4

REASONS FOR DECISION

Ms N Isenberg, Senior Member

Date    31 January 2013

DECISION UNDER REVIEW

1. On 8 November 2011 the Applicant, Mr Hafad Al Badri, made a claim for a disability support pension (DSP). This claim was rejected by Centrelink on 22 November 2011. While Centrelink, on behalf of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, agreed that the Applicant suffers from a number of conditions Centrelink did not accept that his various conditions attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Nor did Centrelink accept that he meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work. These requirements are set out in s 94 of the Act and are as follows:

   94Qualification for disability support pension

   (1)            A person is qualified for disability support pension if:

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

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

   (c)one of the following applies:

   (i)the person has a continuing inability to work;

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

   (d)the person has turned 16; and

   …

   (e)the person either:

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

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

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

   (A)is not an Australian resident; and

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

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

   (ea)one of the following applies:

   (i)the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Continuing inability to work

   (2)            A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases—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)in all cases—either:

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

   (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.

   …

   Severe impairment

   (3B)          A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   …

   (5)            In this section:

   work means work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible labour market.

   BACKGROUND

2. The Applicant was born on 1 January 1963.  He arrived in Australia from Iraq in 1996. 

3. On 1 November 2011, the Applicant contacted Centrelink about claiming DSP and on 8 November 2011 lodged a claim for DSP, supported by a treating doctor’s report (TDR) by Dr F Said.  The Applicant was reported to have lumbar and cervical disc disorder causing neck and back pain, diabetes, major depression and post traumatic disorder (“PTSD”), bilateral tennis elbow, hyperlipidaemia, gastro-oesophageal reflux disease (“GORD”), osteoarthritis, hearing impairment and bilateral carpal tunnel syndrome.  

4. On 21 November 2011 the Applicant attended a job capacity assessment and was given an impairment rating of nil points for his medical impairments.  He was found to have a work capacity of zero to seven hours per week until 1 February 2012, and a baseline work capacity of 15 to 22 hours per week for light less skilled work. 

   ISSUE BEFORE THE TRIBUNAL

5. Were the Applicant’s conditions fully diagnosed, treated and stabilised?

6. If so, between 1 November 2011 and 31 January 2012, did the Applicant have an impairment rating of at least 20 points under the Impairment Tables and a continuing inability to work?

   LEGISLATION

7. Section 94 of the Act sets out the qualification criteria for DSP. Sch 2, s 4(1) of the Social Security (Administration) Act 1999 (“Administration Act”) requires a claimant to be qualified for a social security payment within the period of 13 weeks after the day on which the claim was made.

8. Section 27 of the Social Security Act 1991 provides that the Tribunal, in reviewing the original decision or a later decision arising from the original one, must apply the Impairment Tables that were in force at the time the original claim for DSP was made.

9. The Applicant applied for DSP on 8 November 2011. At that time the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (1 January 2008 to 31 December 2011)(“Impairment Tables”) were in force. They were located in Schedule 1B of the Act. The Schedule 1B tables were repealed in December 2011 by Sch 3, s 4 of the Social Security and Other Legislation Amendment Act 2011. The current tables only apply to claims and review of claims made on or after 1 January 2012.

10. Before an impairment rating can be assigned under the Impairment tables, the requirement set out in the Introduction to the Impairment Tables (“the Introduction”) must be satisfied.  The main requirement is that an impairment must be fully diagnosed, treated and stabilised and permanent before an impairment rating can be assigned. 

11. Paragraph 4 of the Introduction deals with the requirement that the impairment be stabilised.  It provides that before ‘a rating can be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised’.

12. Paragraph 5 of the Introduction then states that the ‘condition must be considered permanent’.  It provides that after ‘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’. 

13. Paragraph 6 of the Introduction provides that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

    EVIDENCE

14. In addition to documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), the Applicant provided, in the course of his evidence, copies of medication packaging.  His wife also gave evidence.

    CONSIDERATION OF THE EVIDENCE AND FINDINGS

15. The Respondent relied extensively on the job capacity assessment report by Messrs Cavallaro and Chalouhi, dated 21 November 2011.  The assessment appeared to me to have been somewhat cursory. Further, there was no indication as to the skills of either assessor used in reaching their definitive views about the range of complex medical and psychiatric conditions the Applicant was reported by his treating doctor to be suffering, other than that they were registered occupational therapists.  Neither of the assessors were called to give evidence.  I have attached little weight to the report. 

16. The Applicant was asked to describe the condition he found to be most debilitating in relation to his ability to work.  He said that his back condition and his extreme exhaustion had the greatest effect on his ability to work.

    Did Mr Al Badri by 31 January 2012 have a physical, intellectual or psychiatric impairment of 20 points or more?

17. The Applicant gave evidence that he worked in a factory when he came to Australia for about three and a half years until he hurt his back.  He received a lump sum compensation payout and was unable to undertake any further work after the accident.  Some friends organised him some part-time work for a week or a month at a time, over a period of six to eight months, working up to 20 hours per week.  He last worked three to four years ago.  He said he was not getting work and in any event he was in pain.

18. The Applicant said he does not like staying at home because he finds it ‘suffocating’.  On a typical day he might go to the shopping centre, the doctor or to have a coffee.  He meets very close friends and they smoke a hookah.  He is unable to share his experiences with ‘just anyone’.  He spends a lot of time at the coffee shop, which is only four to five minutes away.  If his blood sugar is high he takes a water bottle and goes for a walk.

19. The Applicant said is unable to sit for long periods, although he sat at the hearing for two hours without complaint. However, he said he had been in pain after about one and a half hours of sitting.  He estimated he could stand for only 10-15 minutes.

20. He does not help around the home.  He said that if he were healthier he would help.  He takes the children to school sometimes.  He takes two of the children to karate lessons and sometimes to the pool or beach.  His wife said he plays no part in the children’s upbringing.

21. He goes shopping with his wife but he looks after the youngest child while his wife does the shopping.  He dislikes TV except for the news and prefers to read novels and poetry.

22. The Applicant said he can catch the train and drive short distances.  He has two mirrors to help see over his right shoulder and to reverse park.  He can dress himself if his neck is not too painful.  His hands do not prevent him turning door knobs and he can brush his teeth. 

23. As to a social life, it is mostly spent with his family.  He gets irritable and only his close friends understand.  He used to gamble and drink a lot but now finds it boring.

24. Mrs Al Badri said that her husband does nothing around the house because of his back and hands, and because he was told by his doctors to lift nothing heavier than two kilograms.  She has to do everything and they are always fighting – usually about money.

25. She said that when her husband’s blood sugars are elevated he faints, and about three months ago she needed to call an ambulance because he had fainted.  It had occurred on two previous occasions – about a year ago, and about eight months ago.  On one occasion he had spent two nights in hospital because he was thought to have had a stroke.

26. The Applicant was asked to discuss his conditions that most affect his ability to work.

    Back Condition

27. The Applicant gave evidence of suffering pain in the back and neck since a work accident in 2000.  He received compensation for several years.

28. He said that he has shooting pains to the left leg and, for the last eight to nine months, to both legs.  He has numbness and pins and needles in his toes, especially the left foot.

29. He has ongoing pain and takes Voltaren and Brufen and other pain killers.  He takes Voltaren mostly – one or two tablets two to three times per week - and has taken them for years.  He takes Brufen every now and then, but finds it is not strong enough, so he ceased taking it four to five months or more ago.  The Applicant said he undertook some physiotherapy several years ago. He had sessions once a week over a short period of time but without success. He also applies heat packs to his neck and back. The Applicant said that about a year ago his neurosurgeon, Dr Darwiche, told him he needed an operation which would cost about $25,000 if done privately.  It would involve inserting plates and screws into his back but was not 100 per cent guaranteed to be successful. He is fearful of the operation, and so has not had or scheduled it. He has elected instead to remain on painkillers. He said in cross-examination that no exercise regime had been recommended to him simply because he was unable to undertake any exercise.

30. Dr Said, in his TDR dated 5 November 2011, stated that the Applicant was to have a follow up consultation with his neurosurgeon.

31. The Applicant has had a history of back pain dating back to about 2000, but there is no evidence to show that he sought reasonable treatment for his condition, such as rehabilitation or an exercise program, nor has he attended a pain management clinic.  The Applicant’s neurosurgeon has suggested an operation may improve his condition but this advice has been rejected by the Applicant.

32. In these circumstances the condition cannot be considered to be fully treated and stabilised as the Applicant has failed to consider reasonable treatment which may improve his condition and symptoms.

    Neck Condition

33. The Applicant gave evidence that there is a problem with the discs in his neck, and that they are particularly painful in cold weather.  The pain radiates to the right shoulder.  He said he was unable to lift his head up a lot.  The Applicant stated he has shrapnel in his head (as distinct from his neck), but it cannot be operated on or treated.

34. His treatment is to take the painkillers he takes for his back.  He intends to get a referral to have an injection into the shoulder.  However he is fearful of having the injection and thinks it would only provide temporary relief in any event.

35. Although the Applicant claims to have had neck pain for many years, he has not sought rehabilitation nor has he accepted the advice to have an injection to improve his condition.

36. Accordingly, the condition is not fully treated and stabilised.

    Psychiatric Impairment

37. The Applicant said that his psychological condition makes him extremely exhausted.  He is irritable and unable to tolerate being at home. 

38. He has been seeing a psychiatrist, Dr Ali, for two years – once per month or every 45 days.  He tells Dr Ali about his circumstances, and what he experienced in Iraq and how that impacts upon his life.  Dr Ali prescribes medication which he has varied over the time the Applicant has been under his care.  Currently he takes three different medications for his psychiatric condition: Axit, Venlafaxine and Largactil.  He uses the medication to help him sleep and avoid nightmares, and says it is ‘90 per cent’ effective.  When he wakes he is tired, even if he has slept soundly.  The daytime medication (Axit) helps him relax although it makes him feel ‘out of it’.  Without the medication he was extremely intolerant, even of children.

39. In his report of 3 November 2010 Dr Ali wrote that the Applicant was functioning at an average level of intelligence with no apparent evidence of psychosis, brain damage, or any other problems.  He found him to have post-traumatic stress disorder and considered he should be trialled on an SSRI antidepressant and be referred to an Arabic speaking counsellor.  At that time Dr Ali prescribed Lexapro 10mg to be taken each day.  

40. In his report Dr Ali states that the Applicant’s psychiatric condition “has been going on for some time and is as a result of the war experiences”.  The Respondent also observed that the Applicant was reported as having told the Social Security Appeals Tribunal (SSAT) that “he had been angry and nervous since ceasing work 3 years ago”. 

41. The Applicant was cross-examined at length.  He agreed that he had commenced suffering the condition only about one and a half years ago.  He felt he was disabled and he was unable to tolerate ‘anything’.  It was suggested to him that his condition was not due to his experiences in Iraq, and that his flashbacks were a natural phenomenon of aging.  He denied this to be the case and said that recent events in the Middle East had increased his number of flashbacks to the war in Iraq.  He said he was unable to talk about his experiences in Iraq.  He said that he had fled to the north and had hid in the mountain region because he disagreed with Saddam Hussein’s regime.

42. He was asked whether he had consulted a psychiatrist before October 2010, which was the time he started seeing Dr Ali.  He thought he may have seen another psychiatrist in about 2000 but could not recall his name. 

43. He agreed he had returned to Iraq in 2004 because he had not seen his family since 1989.  He went again - to bury his mother – about 18 months ago.  It was suggested to him that he was prepared to return to Iraq notwithstanding his bad experiences.  He said it was now safe to return because of the change of regime and because the situation was calm.  Prior to regime change there was an outstanding sentence against him.

44. The Respondent submitted that little weight should be attached to the report of Dr Ali.  It was submitted that the medical evidence provides very little detail about the Applicant’s psychiatric condition for the Tribunal to be able to find that the Applicant meets the diagnostic criteria for PTSD in accordance with DSM-IV: if a person is suffering from PTSD, he must have been exposed to a traumatic event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or other and the person’s response involved intense fear, helplessness or horror.  The Respondent noted that when the Applicant appeared before the SSAT, he was said to have failed to describe any symptoms of PTSD. 

45. Other than the TDR, the only available medical evidence in relation to the Applicant’s psychiatric condition is that of Dr Ali, the Applicant’s treating psychiatrist.  Dr Ali diagnosed the Applicant with PTSD.  He did not, seriatim, address the diagnostic criteria. However, there is no evidence that that would cause me to reject the diagnosis by a psychiatrist, as the Respondent asked me to do, without the Respondent having supplied any medical evidence to the contrary.  The fact  that there was no evidence of psychosis – a consideration apparently given some weight by the SSAT - is not inconsistent with a diagnosis of PTSD.  Nor is it inconsistent with a diagnosis of PTSD that the Applicant did not experience symptoms until some years after the events which gave rise to the trauma underlying the condition.

1. Further, I accept that the condition is fully treated and stabilised.  The Applicant has been in Dr Ali’s ongoing care for about two years.  Dr Ali has adjusted his medication during that time.  I do not accept that continual monitoring of the effectiveness of medication for a long-term condition indicates that the condition is not fully treated or stabilised.

2. I turn then to consider the appropriate rating for the condition.  Table Six sets out the descriptions for various levels of functional impairment.  I consider the Applicant’s functional impairment to fall within the descriptor for a rating of 10, which is set out in Table Six of the Impairment Tables and is as follows:

   Moderate and regular symptoms and generally functioning with some difficulty.  (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (eg. short periods of absence from work).

3. In coming to this view I particularly took into account:

   ·the applicant goes nearly daily to the coffee shop unaccompanied.  He has been able to travel overseas on his own;

   ·from the evidence of his wife it appears that their relationship is strained.  However he maintains friendships with those whom he meets frequently for coffee;

   ·on the Applicant’s evidence he has difficulty concentrating, either because of his condition or because of his medication.  Dr Ali noted a history of anxiety, depressed moods, insomnia, irritability and poor concentration. Further, on the Applicant’s evidence, and that of his wife, he has difficulty coping with stress. These factors might affect work attendance, but would not, in my view, prevent full-time work.

   Bilateral Tennis Elbow

4. The Applicant said that Dr Darwiche had operated on his left elbow on 5 October 2011 and ‘fixed’ the nerves.  He was told not to lift anything heavy.  He has seen the doctor two to three times since and Dr Darwiche has recommended surgery to the other elbow. The Applicant is on the waiting list for this surgery. The waiting list is over six months long. However, before agreeing to that operation he wants to be confident that the surgery to the left elbow has had a good outcome.

5. The Applicant told the Authorised Review Officer, on 21 November 2011, that his doctor advised him not to lift or carry any objects greater than two kilograms with his left elbow for the six months following his surgery in October 2011. 

6. Accordingly, I consider the Applicant’s left tennis elbow, by 31 January 2012, not to be fully treated and stabilised. 

7. In relation to his right tennis elbow he has not yet undergone the recommended surgery.  The condition therefore cannot be considered to be fully treated.

   Hyperlipidaemia

8. In the job capacity assessment the condition’s onset was recorded as being five years ago and the Applicant is on medication for this condition. 

9. Dr Said listed the condition as being generally well managed and causing minimal or limited impact on the Applicant’s ability to function.  Somewhat at odds with this view, the Applicant told the Authorised Review Officer on 21 November 2011 that he was taking medication and trying to manage and control his diet in order to reduce his fat and sugar intake.  He was going to see the endocrinologist in February 2012 to discuss a special diet for this condition as well as his diabetes.

10. While his condition may be sufficiently well-controlled in the Applicant’s GP’s view, that the Applicant’s condition requires revision by a specialist leads me to the view that the condition has not yet stabilised and therefore cannot be considered to be permanent.

    Carpel Tunnel Syndrome

11. The Applicant said that he suffered numbness in his wrists.  He also suffers pins and needles in the two outer fingers of both hands, especially when he sleeps on his hands or when his hands are tired.  He has shrapnel in his left hand but has done nothing about it.

12. Dr Said listed the condition as being well managed and causing minimal or limited impact on the Applicant’s ability to function.  However he suggested an operation for both hands.  In the report of Dr Rail, dated 7 October 2010, the Applicant’s EMG showed evidence of bilateral carpal tunnel syndrome of a mild type.

13. The Applicant was reported as having told the job capacity assessors that he takes medication (Voltaren) for his condition and is planning to have surgery in the future. However, surgery has not been scheduled.

14. I consider the condition is not treated and stabilised and therefore not permanent.

    Osteoarthritis of Knees

15. Dr Said indicated that the Applicant was suffering from pain in multiple joints but, other than his back, neck, elbows and wrists, at the hearing the Applicant complained of no other joint pain.  There was no evidence of the Applicant undertaking any general pain management program. 

16. The Applicant was reported as telling the Authorised Review Officer that he was taking pain killers, Voltaren and fish oil tablets as recommended by his treating doctor, but had not sought any other treatment.  His treating doctor also suggested walking more in order to assist with his condition.  His evidence did not suggest an effort to increase walking.

17. The Applicant was recorded as having told the SSAT that he thought he had had X-rays of the knees but said he never had physiotherapy.

18. It is likely that his joint pain medication could mask other joint pain, but in the absence of medical evidence or complaint by the Applicant this condition was not considered to be permanent.

    Itchy Ear/Hearing Impairment

19. The Applicant said he had suffered inflammation of the left ear which he thought had affected his hearing.  He said if he focuses he can hear.  He has no need of hearing aids.

20. Dr Said wrote that the Applicant was going to follow up with the specialist regarding his hearing impairment.  By the time of the job capacity assessment in November 2011, the Applicant was reported to have recently commenced medication and ear drops to treat a virus which was affecting his hearing.  He confirmed he was to be referred to a specialist for a follow up consultation. This has not occurred.

21. No hearing test results, or an audiogram to show the extent of his hearing loss, were provided.  In the absence of such report, the condition cannot be considered to be fully treated and stabilised.

    Overall Impairment

22. None of the Applicant’s impairment rating was 20 or more points. His level of impairment cannot therefore be considered to be severe: s 94(3B) of the Act.

23. Further, his combined impairments also fall short of the 20 points or more required under s 94(1)(b) of the Act. Failure to meet this requirement results in a failure to qualify for the DSP. It is therefore not necessary for me to consider whether the Applicant has a continuing inability to work.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Isenberg.

..............[SGD].......................................

Associate

Dated 31 January 2013

Date(s) of hearing	21 December 2012
Applicant	In person
Solicitors for the Respondent	Centrelink Program Litigation and Review Branch