Halabi and Secretary, Department of Family and Community Services

[2004] AATA 1323

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1323

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/194

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMED HALABI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date13 December 2004

PlaceSydney

Decision The decision, in so far as that part which is before the Tribunal, is affirmed.

…………………………..

Dr J D Campbell
  Member

CATCHWORDS

Social security – disability support pension – disabilities – whether Applicant suffers from physical, intellectual or psychiatric impairment – assessment – whether assessment of such impairments pursuant to the Schedule 1B Impairment Tables is 20 points – whether there exists a continuing inability to work – the decision, in so far as that part which is before the Tribunal, is affirmed.

Social Security Act 1991 - section 94 and Schedule 1B

Social Security (Administration) Act 1999 - Schedule 2

REASONS FOR DECISION

13 December 2004   Dr J D Campbell, Member

1.      Mr Mohamed Halabi (“the Applicant”) in this matter seeks a review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 21 January 2004 in so far as that decision affirmed the decision of Centrelink to reject Mr Halabi’s claim for Disability Support Pension (“DSP”) lodged on 20 August 2002.  The claim lodged on 20 August 2002 was rejected by an authorised delegate of the Secretary, Department, Family and Community Services (“the Respondent”) on 3 September 2002, with this decision being affirmed on review by an authorised review officer (“ARO”) in a decision dated 28 May 2003.

ISSUES

2.      The relevant issues in this matter are whether:

(a)Mr Halabi is suffering from physical, intellectual or psychiatric impairment; and

(b)Whether upon assessment of such impairments pursuant to the Schedule 1B Impairment Tables, Mr Halabi’s impairment is 20 points or more; and

(c)Whether Mr Halabi has a continuing inability to work.

DECISION

3.      The Tribunal, for the reasons nominated later in this decision finds that the Applicant did not meet the qualifications required for Disability Support Pension at the time of his application on 20 August 2002, or within a period of 13 weeks thereafter because his impairments on assessment were less than 20 points, and further that he did not have a continuing inability to work.

Mr Halabi’s Evidence

4.      Mr Halabi detailed the following matters to the Tribunal with the assistance of an interpreter.

·Born in Tripoli, Lebanon on 21 January 1968; left school at year 10 and worked as a panel beater in Lebanon.

·Came to Australia with his wife on 9 September 1997 and worked as a panel beater at Bankstown until 1999.

·In 1999 was involved in a motor vehicle accident, and since that time he has not worked, as he continued to suffer the effects of that accident.  Received a compensation lump sum of $40,000 in settlement.

·That he is married with three children aged seven, five and three and a half, and owns a 1989 Toyota Corolla car, which he drives, when he has not taken particular tablets.

5.      Mr Halabi described his daily activities in the following terms:

·Rises from bed between 6.00 and 11.00am, depending on whether he has to attend Mission Australia, which he attends on two mornings per week.  The latter place is a five minute walk from his home.  Mr Halabi enjoys walking.

·Tends to spend most of his time at home, although he does visit friends and parents-in-law as well as going shopping and to pay the bills.  In the morning he lays down for a little while, watches some television but does not go out at night.  On weekends he visits the parents-in-law.

·His wife does the housework, with Mr Halabi watering the plants, putting the garbage out and does a little shopping every day.  Mr Halabi has let his two pet birds go, and does not drink alcohol.  Mrs Halabi takes the children to school each day.

6.      Mr Halabi nominated his current health problems in the following terms:

(a)      Heart: He was walking in Tempe Park with his daughter when   he had a blackout and was taken to hospital (Royal Prince Alfred).    This happened about a year before he applied for his Disability Support                    Pension and he had similar events on three or four occasions.  The   medication prescribed for his heart problems stops the attacks, but he                does suffer some minor turns.

(b)      Dizziness and Headache:  Commences in the morning, takes tablets,                   stays home for four hours; is irritated by noise and may have to take   more tablets in the afternoon.  On some occasions has difficulty getting               to sleep, occasionally stays awake to 4.00am, but sleeps well after   getting to sleep.

MEDICAL EVIDENCE

Dr Tadros – Treating General Practitioner

7.      In a treating doctor’s report dated 26 July 2002 (T8), Dr Tadros described Mr Halibi’s medical conditions in the following terms:

(a)Atrial Fibrillation – causes recurrent syncopal attacks treated with Flecamide and Aspirin.  Such attacks commenced in 1999 and were likely to persist.

(b)Post traumatic cervicogenic headaches and dizziness – result from a whip lash injury to neck from a motor vehicle accident in June 1999. This was treated with analgesics, local creams, non-steroidal anti-inflammatory and Sandomigran, with condition likely to persist in the long term.

8.      Dr Tadros concluded that the Applicant was unfit to return to his usual occupation as a panel beater, but was fit to return to any kind of work (at least 30 hours per week) within six months with the Applicant (T8, p94)

·Likely to be absent from work on four or more days per month. 

·Able to persist at a task for between 20 and 90 minutes at a time; and

·The Applicant’s understanding being rarely affected by his impairment; and

·The applicant being able to communicate with diminished speed;

·With the Applicant being constrained in mobility and some reduction in dexterity in some situations; and

·The Applicant demonstrating some inappropriate behaviour for at least 15 minutes per day, with some distress or difficulty alternating between task; and

·The Applicant unable to lift, carry, and move objects.

9.      In a report dated 24 February 2000 (Exhibit A1), Dr Tadros detailed to the Applicant’s solicitor that Mr Halabi suffered a musculo ligamentous strain of the cervical spine, with the implication of discs at one or more levels and post traumatic cervicogenic headaches and dizziness as a result of a motor vehicle accident on 20 June 1999.  In that accident Mr Halabi was noted as hitting his head against the dash board, but while feeling dizzy after the accident, did not lose consciousness. Dr Tadros also reported the Applicant suffering a collapse in July 1999, with a subsequent EEG being described by Dr Tadros as normal.

10.     In a further report dated May 2004 (Exhibit A2), Dr Tadros reiterated the Applicant’s history since the motor vehicle accident in June 1999, while noting a further collapse by Mr Halabi in the park in October 2000.  Dr Tadros described Mr Halabi’s progress as slow since the accident, with the Applicant being recorded as complaining of dizziness, headaches, painful stiffness of the neck and numbness of the left upper limb.  Further, all such symptoms were recorded as being exacerbated by bending, lifting, prolonged standing and sitting as well as neck movements.  Dr Tadros also concluded that the Applicant was suffering from atrial fibrillation and that the Applicant was becoming increasingly anxious and depressed, which he concluded to be an Adjustment Disorder.

11.     In a further report dated 21 September 2004 (Exhibit A10) Dr Tadros, noting that the report had been written at the request of Mr Halabi, stated that he had not treated the Applicant’s psychiatric symptomology, as he believed, as the symptoms were reactive in nature, they would not respond to anti-depressants and that anxiolytic medication should be avoided in younger people. 

Royal Prince Alfred Hospital (RPA)

12.     In a report dated 15 October 2000, Dr Archer, a resident medical officer in RPA, records the Applicant as experiencing a syncopal attack that day and one a year earlier.  Dr Archer recorded the diagnosis as paroxysmal atrial tachycardia, and that referral to a cardiologist is indicated (Exhibit A3).

13.     In a report dated 11 February 2001, Dr Lee a resident medical officer at RPA, reported that Mr Halabi had been seen the previous day when he had presented with an episode of witnessed collapse.  No other diagnosis was made and the Applicant was referred to his general practitioner (Exhibit A4). 

Investigation

14.     A series of radiological and other investigations were undertaken on the Applicant, which reported the following:

(a)      On 24 August 1999, x-ray cervical spine and a cerebral CT scan were                  reported as normal studies by Dr Devadason – a consultant radiologist                  (Exhibit A5).    

(b)On 2 December 1999, a brain MRI scan was reported as showing  sinusitis by Dr Shnier – Consultant Radiologist (Exhibit A6), a MRI cervical spine examination on the same day was reported as showing minor        disc degeneration at C2/3 to C4/5, but with no significant disc bulging, herniation or canal stenosis (Exhibit A7).

(c)       An x-ray of the cervical spine taken on 21 June 1999, was reported as                  showing no evidence of bony injury by Dr Doull, a consultant radiologist                (Exhibit A8).

(d)      An EEG examination was performed on 5 August 1999 and was   reported as a normal record by Dr Pryor, a consultant neurologist   (Exhibit A9).

Dr C Reilly – Medical Adviser, Health Services Australia

15.     In a report dated 2 September 2002 (T9), Dr Reilly detailed a whole person assessment of the Applicant, following his examination:

“This 34-year-old man was seen today for Disability Support Pension New Claim.  He has previously worked as a panel beater and cleaner.

The TDR states that the client has atrial fibrillation resulting in syncopal attacks.  The client states that in 1999 he fainted and was taken to hospital where the atrial fibrillation was discovered.  He is seeing a cardiologist and currently takes Flecamide and Aspirin.  The specialist has told him that the “electrical wiring” in his heart is probably the cause of the cardiac arrthymias, but is currently only using medication to treat this.  The client says that he has called an ambulance 1-2 times in the last 6 months for ‘difficulty breathing and numbness in the hands’.

The client also states that he gets headaches and dizziness as a result of a motor vehicle accident in 1999.  He says that the headaches are constant and is currently taking Sandomigran.  He says that when he bends down and stand up he feels “faint” and that this occurs once every two days.

The customer drives a car and spends his days looking after his pet birds.

On examination, the client had dirt under his fingernails and callous marks.  He was able to move his head freely during the interview.  He had a pulse of 72/minute and was currently in sinus rhythm.

This client’s total impairment rating is 15 and he is fit for full-time light, sedentary work.  He should avoid working near water and heights, and should not operate machinery or drive a car for work.  He would benefit from English lessons and vocational assessment”.

Dr P Cook – Medical Adviser, Health Services Australia

16.     In a report dated 28 July 2004 (Exhibit R1) Dr Cook detailed Mr Halabi’s condition as:

(a)      atrial fibrillation with occasional syncopal and an impairment rating of 5                 points pursuant to Table 21.

(b)      chronic pain syndrome with moderate symptoms. An impairment rating                  of 10 points pursuant to Table 20.

(c)       anxiety/adjustment disorder, for which no treatment had been given,   nor had he been referred to a psychiatrist. Considered the condition to             be temporary and not stabilised.

17.     Dr Cook considered that the Applicant would be fit to work as a cleaner for 30 or more hours per week within 6 to 24 months, while needing to avoid working in dangerous situations.  Dr Cook also considered that the Applicant would benefit from vocational rehabilitation assistance.

Consideration and Findings

18.     The Tribunal notes the statutory framework, namely sections 94 and Schedule 1B of the Social Security Act 1991 and Schedule 2 of the Social Security(Administration) Act 1999, within which this matter is to be considered.  As a consequence the Tribunal observes that the impairments that are relevant to the consideration of this matter are these impairments which were present at the time of the lodging of the claim for DSP on 20 August 2002 and/or those impairments which are found to exist within a period of 13 weeks after the lodgement of the claim.  The Tribunal also observes that later medical reports, that is those reports made after the relevant period can be of assistance to the Tribunal in helping the Tribunal to better understand the nature and effect of an impairment existing during the relevant period.  The Tribunal notes, however, that the subsequent development of further impairments, are not matters which can be considered as part of the determination of the claim made on 20 August 2002.

19.     Following a review of all the material in evidence before the Tribunal, the Tribunal concludes that the Applicant was suffering from the following impairments during the relevant period:

(a)      atrial fibrillation

(b)      chronic headaches (pain) and dizziness

20.     While the Tribunal notes Dr Tadros’s reports of May 2004 and September 2004, and Dr Cook’s report of 24 July 2004 all refer to a psychiatric impairment, the reporting of such a new impairment is outside the relevant period and as such will not be further considered in this decision.  Such an action is further reinforced by a clear inference drawn from the nominated reports that the impairment, if it exists, had not been diagnosed and treated by a psychiatrist, and hence could not be considered to be stabilised in terms of being adequately assessed and diagnosed pursuant to the requirements of the introductory comments to the Schedule 1B Impairment Tables.

21.     Nevertheless the Tribunal concludes, that because of the two impairments found to be existing during the relevant period, the Applicant satisfies section 94(1)(a) of the Act.

22.     In addressing the issue of assessment of the impairments pursuant to the Schedule 1B Impairment Tables, the Tribunal notes that the Applicant’s atrial fibrillation is under treatment with medication, and that during the relevant period, his syncopal attacks were two to three times a year (major) with some other minor attacks.  In assessing the evidence before the Tribunal, the Tribunal concludes that a fairer assessment is to be made by utilising Table 21 – Intermittent conditions, as any assessment under Table 1 – Loss of cardio vascular function, would result in an unfair appreciation of the Applicant’s intermittent condition.  In turning to the assessment pursuant to Table 21 the Tribunal notes that the Applicant describes major syncopal attacks as becoming infrequent (two to three times a year), that when such an attack occurs he is indeed unconscious and that it lasts from 30 minutes to four hours.  This equates to level six (seventy) pursuant to Table 21.1, medium (duration) pursuant to Table 21.2, a grading code of I pursuant to Table 21.3 and an impairment rating of 5 pursuant to Table 21.4.

23.     In designating such an impairment assessment of 5 points, the Tribunal is mindful that this indeed may be a generous assessment, in that the definition of the Applicant’s intermittent attacks since being placed on medication may be nowhere as severe, or of such duration or as frequent as detailed in the assessment.  The Tribunal notes that the minor attacks of which the Applicant complains would not attract such a rating, even if they were determined to be of disturbed cardiac rhythm in origin.

24.     In addressing the issue of chronic headaches (pain) and dizziness, the Tribunal notes that the appropriate table is Table 20.  The Tribunal in noting the symptomology as described by the Applicant, concludes that such symptomology is mild to moderate in nature, and while irritating and unpleasant, do not prevent the Applicant from carrying through any particular activity, including walking, shopping, talking with friends and in-laws, during a day (a medication issue).  The Tribunal further notes that the reports of all doctors in this matter indicate that the Applicant, subject to restrictions of lifting and carrying and not being exposed to dangerous situations, would be able to complete work related tasks with minimal interference and little loss of efficiency in undertaking usual daily activities.  The Tribunal also notes the nature and dose of the Applicant’s medication and concludes that such medication is consistent with mild to moderate symptomology.  The Tribunal does note that Dr Tadros was of a view that the Applicant’s impairments would cause some work absence, while Doctors Riley and Cook are of the opposite opinion.  The Tribunal, in preferring the opinion of the latter two doctors, concludes that an objective assessment of the Applicant’s pain condition, in the absence of demonstrated significant neck or brain organic pathology is congruent with the reasoning and analysis as indicated by Doctors Reilly and Cook.

25.     Pursuant to Table 20 of the Schedule 1B Impairment Tables, the Tribunal concludes that the impairment rating for the chronic headache and dizziness is 10 points.

26.     In summary the Tribunal finds that the Applicant’s impairments are assessed at a total impairment rating of 15 points.  As a consequence the Tribunal concludes that the Applicant fails to satisfy section 94(1)(b) of the Act and as such does not qualify for a Disability Support Pension.

27.     In addressing, for the sake of completion , the Applicant’s continuing inability to work issue, the Tribunal notes that at the relevant period both Dr Reilly in her report of 2 September 2002 and Dr Tadros in his report of 26 July 2002 considered that the Applicant was able to return to work for 30 hours per week immediately or within six months respectively.  While Dr Tadros in a medical certificate dated 13 November 2002 indicated that the Applicant would be able to return to work for eight hours per week, his subsequent reports in May and September 2004 are silent on the Applicant’s ability to work. The Tribunal concludes that at the relevant period the Applicant was able to work for 30 or more hours per week within the next two year period and in so finding relies upon the reports of Doctors Tadros and Reilly of July and September 2002 respectively. 

28.     The Tribunal is mindful that both Doctors Reilly and Cook considered that the Applicant would benefit from vocational rehabilitation and that the Applicant has engaged in attendance at a TAFE English course.  Further the Tribunal notes that there is no evidence before the Tribunal which would indicate that the Applicant would be prevented from undertaking such vocational training.  Likewise the Tribunal observes that there is no evidence before the Tribunal that would allow the Tribunal to conclude that such training would be unlikely, because of the impairment to enable the Applicant to do any work over the next two years.

29.     The Tribunal, consistent with the findings made in the two previous paragraphs, concludes that the Applicant fails to satisfy subsection 94(2)(a) (inability to work 30 or more hours within the next two years).  Further the Applicant fails to satisfy subsections 94(2)(b)(i) and (ii) of the Act.  The Tribunal concludes that the Applicant fails to satisfy subsection 94(1)(c) of the Act in that the Applicant fails to satisfy subsection 94(2), namely that he has a continuing inability to work.

30.     The Tribunal concludes that the Applicant’s claim for Disability Support Pension should be disallowed, as he has failed to satisfy qualifications nominated in subsections 94(1)(b) and (c) of the Act.

Determination

31.     The decision, in so far as that part which is before the Tribunal, is 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:         Neil Glaser
  Associate

Date of Hearing  12 October 2004
Date of Decision  13 December 2004
Representative for the Applicant    Self represented         
Advocate for the Respondent        Mr Luke Carter