Haider Al-Habboby and Secretary, Department of Social Services
[2013] AATA 879
[2013] AATA 879
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3027
Re
Haider Al-Habboby
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 9 December 2013 Place Sydney The Tribunal affirms the decision under review.
..........[Sgd]..............................................................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – continuing inability to work requirement – participation in a program of support - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss, 94, 94(1), 94(2), 94(3B), 94(3C)
REASONS FOR DECISION
Ms N Bell, Senior Member
9 December 2013
Mr Al-Habboby, claimed disability support pension on 2 November 2011. A Centrelink officer rejected Mr Al-Habboby’s claim on the basis that he had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. The decision was affirmed on further internal review and by an authorised review officer and the Social Security Appeals Tribunal.
Mr Al-Habboby currently suffers from:
(a)depression and anxiety;
(b)bladder neck problems;
(c)tension headaches;
(d)Gastric reflux; and
(e)Other conditions including neck and lower back pain.
ISSUES
Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s combined impairment is of 20 points or more under the impairment tables; and
(c)the person has a continuing inability to work; and
(d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr Al-Habboby during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the impairment tables as they were during that 13 week period, that is, from 2 November 2011 to 1 February 2012. Similarly, his satisfaction of other eligibility requirements must also be assessed for that limited period.
It is not in dispute that Mr Al-Habboby has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in his application.
DOES MR AL-HABBOBY HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 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.
Paragraph 6 of the Introduction provides that when considering 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;
Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
I will deal with each of Mr Al-Habboby’s conditions in turn.
Depression and Anxiety
There is no dispute that Mr Al-Habboby suffers from depression and anxiety.
Mr Al-Habboby was treated by psychologists in 2010 and 2011 (for six sessions and three sessions respectively) and was prescribed antidepressant medication. However, he only commenced to see a psychiatrist, Dr Allam, in 2013 and his medication was significantly increased.
It is clear that this condition affects him significantly. That is apparent from the reports of Mr Metry, psychologist, Mr Abaie, psychologist, Dr Morris, psychiatrist and others. However, given the commencement of psychiatric treatment and increased medication well after the relevant 13 week period, I cannot conclude that Mr Al-Habboby’s diagnosed condition was fully treated and stabilised in the 13 weeks following his claim. It follows that it cannot be assessed under the Impairment Tables and cannot be counted towards the required 20 points.
Bladder Neck problems
There is no dispute that Mr Al-Habboby suffers from bladder neck problems that give rise to frequency of urination.
The report of Dr Mitterdorfer, urologist of 16 August 2011, notes that Mr Al-Habboby was commenced on a low dose of Minipress and it is hoped this will resolve the condition. Mr Al-Habboby said he continues to see his urologist every six months.
Dr Ismail, in a report of 9 December 2011, stated that Mr Al-Habboby’s condition is fully treated and stabilised, but gives no basis for this assertion.
Mr Al-Habboby said the Minipress gives him headaches and dizziness and that he discussed surgery with Dr Mitterdorfer about one year ago, but has decided against it because it will make him infertile. No medical report relating to side effects of medication or surgical options was available.
There is insufficient medical information as to the effects of and available treatment options for this condition to determine whether it is fully treated and stabilised. It follows that it cannot be assessed under the Impairment Tables.
Gastric Reflux - GORD
Mr Al-Habboby’s treating general practitioner, Dr Ismail, classed Mr Al-Habboby’s gastric reflux as generally well managed and causing minimal impact on his ability to function. No other medical evidence was available in relation to this condition. This level of impact attracts no impairment rating under the Tables.
However, Mr Al-Habboby said that in recent times he has been more disturbed by the condition and has found blood in his stool. He said his general practitioner has referred him to have some investigations.
The condition is not fully treated and stabilised, given that investigations are yet to be undertaken. Any advance of the condition since the relevant 13 week period cannot be assessed under the Tables, in any event.
Mr Al-Habboby’s condition has not yet been treated and stabilised. It follows that it cannot attract an impairment rating.
Tension Headaches
Mr Al-Habboby’s treating general practitioner, Dr Ismail, classed Mr Al-Habboby’s tension headaches as generally well managed and causing minimal impact on his ability to function. No other medical evidence was available in relation to this condition. This level of impact attracts no impairment rating under the Tables.
Other Conditions
Mr Al-Habboby said he suffers from neck, shoulder and lower back pain following a motor bike accident in 2008. He said he had some physiotherapy soon after the accident and now takes Panadeine Forte.
The only medical evidence in relation to this condition was a report of Dr Maniam, orthopaedic surgeon, dated 26 August 2009 that said Mr Al-Habboby suffers neck pains radiating into his left shoulder and lumbar spine. He was found to have no areas of tenderness, no restriction of range of movement and no malalignment.
No other information was available and no mention of this condition was made by Dr Ismail, Mr Al-Habboby’s general practitioner. I cannot, on the basis of this information, conclude that the condition is fully treated and stabilised. In any event, I do not have an assessment that establishes a loss of range of movement, a necessary feature for the allocation of points under the tables relating to spinal function.
It follows that Mr Al-Habboby does not have an impairment rating of at least 20 points. On this basis alone, his claim for pension must fail. It is unnecessary to consider the other requirements for eligibility.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ........[Sgd]................................................................
Associate
Dated 9 December 2013
Date of hearing 25 October 2013 Date final submissions received 18 November 2013 Applicant In person Solicitors for the Respondent K Martini, DHS Program Litigation Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Eligibility Criteria
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Pension
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Impairment Rating
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