Helmi and Secretary, Department of Family and Community Services

[2004] AATA 1153

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2004/545

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHSEN HELMI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Associate Professor John Maynard, Member

Date5 November 2004

PlaceMelbourne

Decision The decision of the Social Security Appeals Tribunal under review in these proceedings is affirmed.

(Sgd)  John Handley

Senior Member

DISABILITY SUPPORT PENSION – application made on 14 October 2003 — rejected and affirmed by SSAT – whether applicant qualified on date of claim or within 13 weeks –whether injuries diagnosed treated and stabilised – decision affirmed.

Social Security Act 1991 (Cth) s94

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

5 November 2004  Mr John Handley, Senior Member
Associate Professor John Maynard, Member    

history

1.      The applicant Mr Helmi lodged a claim for disability support pension (“DSP”) with Centrelink on the 14^th of October 2003 with respect to injuries/illnesses described as back, neck, hypertension, diabetes, anxiety and sleep apnoea.

2.      Following a medical assessment on the 23^rd of October 2003, the claim was rejected on the 28^th of October 2003 on the basis that his total impairment rating was 15 points, which was less than the minimum 20 points required.

3.      The decision was reconsidered on the 24^th of December 2003 and affirmed.

4.      The decision was once more reconsidered, on this occasion by an authorised review Officer, and in a letter dated 9th February 2004, was again affirmed.

5.      On the 18^th of February 2004 the applicant appealed to the Social Security Appeals Tribunal (“SSAT”) against the decision to reject his claim. The SSAT decided to affirm the decision on the 31^st of March 2004.

6.      On the 8^th of May 2004 an application for review of the SSAT decision was lodged with the Tribunal.

evidence

7.      The applicant Mr Helmi was unrepresented at the hearing and his evidence was given with the assistance of an appropriately qualified Egyptian/Arabic interpreter present. Mr Helmi’s wife was also present and gave evidence. Ms King appeared on behalf of the respondent.

8.      Documents and exhibits were lodged consisting of; T documents, Centrelink documents, a report by Dr Rowais (who is the applicant’s doctor) dated 29^th of July 2004, a radiology report from Marina diagnostic group regarding both knees dated the 19^th of June 2004 and a work capacity assessment dated the 21^st of September 2004. Mr Helmi provided a plastic bag with containers of current medication. These were Neulactil, Natrilex, Daonil diabetic, Felodipine, Micardis, Cipramil and Citaloprin.

9.      Mr Helmi told us that he suffers from back pain and could not now bend down or stand up, but stated that at the time of the claim his back was aching and at that time he was able to stand and sit. He stated that the pain in his back extended into his legs, worse on the right leg involving the front of the leg to just under the knee. He stated that he did not mention this extension of pain to the doctor.

10.     With regard to his neck problems, Mr Helmi stated that when he made the claim his neck was aching and he could not move his neck to the right or to the left. In addition, he could not lift his neck and this restriction continues today. He was given treatment and exercise, which he did, and thought it improved slightly. The neck is stiff and painful in the morning. He stated that the pain in the neck, at the time of the claim, was present some of the time, but now has become permanent and present all the time.

11.     With regard to his diabetes, Mr Helmi stated that the medication and diet were keeping diabetes under control.

12.     With regard to the blood pressure, he stated that it was higher when he became depressed. At those times he feels dizzy and suffers headaches. He attends his local doctor, who increases the blood pressure medication.

13.     With regard to his depression and anxiety, Mr Helmi stated that this was present all the time. It was present at the time of the claim, but he was not seeing doctors at that time for this condition. Since making his claim, he has seen a psychiatrist (Dr Kochar) but did not have a report to submit to the Tribunal. He has been seen by Dr Kochar seven or eight times and first consulted him in February 2004. He is on medication now for the anxiety and depression.

14.     Mr Helmi also spoke of increasing pain and discomfort in his knees.  These injuries were not recorded in the claim form and have not been assessed. It would appear that there has been a deterioration in his knees.

15.     His employment up to seven or eight years ago was as a waiter in a restaurant. He left his job intending to take a position in a hospital. He stated that the restaurant work was not for him because he could not breathe properly due to his heart disease (and that he had a report to support this). He applied for a course in a hospital as a nurse assistant, but could not complete it because his health was deteriorating. He had difficulty walking and needed to sit down frequently. He speaks and reads English and has been in Australia for 30 years. He completed his high-school education in Egypt and has worked in the hotel and hospitality area. He stated that he was unable to work last year.

16.     He has reported problems with sleep apnoea to his local doctor and a suggestion to attend the sleep clinic at Monash Medical Centre, was taken up and he will be attending there next week.

17.     Following questions from Ms King, Mr Helmi stated that the exercises initially helped with regard to his neck, but these did not help now because of the pain. He stated that with regard to his back, he could stand for 15 to 20 minutes at the time of the claim, but now, could only stand for five minutes. At the time of the claim, he was able to sit satisfactorily, but when he stood up, the pains started. He stated that last year and presently he does little at all except watch television. His wife brings meals to him. He reads Egyptian newspapers, and listens to tapes. He lives five minutes from a church and attends it on Wednesdays and Sundays. He does not visit friends, but occasionally visits neighbours. His wife drives him to and from church. He has difficulty sitting throughout the church service. He stated he has lost his appetite and lost weight.

18.     Mrs Helmi stated that her husband’s health had been deteriorating particularly over the last 12 months. He was frequently crying and depressed, he “doesn’t move”, and that she does everything for him. She receives a partner’s allowance through Centrelink.

19.     His local doctor Dr Rowais has moved to Flemington, and Mr Helmi travels from Narre Warren to see him there. He has been seeing him as his doctor for many years since he was living in St Kilda and is the only doctor he knows. Dr Rowais is also Egyptian.

20.     Ms King relied on the Statement of Facts and Contentions lodged prior to the commencement of the hearing and submitted that the applicant’s impairment rating totalled 15 points and that the applicant did not qualify for DSP at the date of claim or within 13 weeks (refer Social Security (Administration) Act 1999 Schedule 2). She also stated that given the deterioration in the applicant’s condition in the last 12 months since his claim, and both Dr Rowai’s and the rehabilitation consultant’s reservations about his current capacity to work, Mr Helmi may qualify for DSP now, if he were to lodge another claim.

the legislation

21. Section 94 of the Social Security Act 1991 (“the Act”) relevantly provides 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; 

(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;

(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. 

Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7. 

Note 2:for Impairment Tables see section 23(1) and Schedule 1B. 

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 within the next 2 years; and 

(b)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. 

Note:For work see subsection (5). 

94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

(a)the availability to the person of educational or vocational training or on-the-job training; or 

(b)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) . . .

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. 

94(6) . . .

conclusion and reasons for decision

22. For the purposes of s94(1) of the Act we are satisfied that Mr Helmi does have a physical, intellectual or psychiatric impairment. The issues in this application are whether Mr Helmi, at October 2003 or within 13 weeks, had an impairment of 20 points or more under the Impairment Tables for the Assessment of Work Related Impairment Schedule 1B of the Act and if he did, whether he had a continuing inability to work.

23.     For reasons which will follow we are not satisfied that at October 2003 or within 13 weeks, Mr Helmi did have an impairment of 20 points or more under the Impairment Tables. Because of this it is not necessary to make a finding as to whether Mr Helmi had any continuing ability to work as defined. In these circumstances it would not be necessary to make any finding as to  whether Mr Helmi was a resident as required under sub-section (1) (e) (although were we  to consider that issue we would have found that Mr Helmi was at all the relevant times an Australian resident).

24. Section 94 (1) refers to impairment of 20 points or more, but does not refer to an injury or illness being permanent. The reference is only one of impairment. However, the introduction to of the Impairment Tables found at Schedule 1B of the Act (paragraph 5) states that a condition “must be considered to be permanent”. This condition of permanence shall be found only when the condition “has been diagnosed, treated and stabilised” and then “it is more likely than not, they will persist for the foreseeable future. This will be taken as lasting for more than two years”.

25. Therefore, the focus of this review is to consider whether at October 2003 Mr Helmi had an impairment of 20 points or more having regard to the Impairment Tables and by reference to the introductory comments in Schedule 1B of the Act. In proceeding with this consideration, we are aware that Mr Helmi may have contemporary medical evidence that his conditions may be regarded as permanent. That is, those medical conditions may have now been diagnosed, treated and stabilised and may now be assessed as persisting into the foreseeable future and lasting for more than two years. However, the focus for this decision must be on Mr Helmi’s condition at the time of his application in October 2003 and within 13 weeks.

26.     A report completed on the 12^th of October 2003 by Dr Rowais, indicates that Mr Helmi suffers from neck and low back pain, diabetes mellitus, hypertension, hypercholesterolaemia, obstructive sleep apnoea, and anxiety and depression.

27.     In a further report of the 29^th of July 2004, Dr Rowais indicates a knee condition which is also mentioned in a radiologist’s report of 10^th of June 2004. However the knee condition was not a diagnosed condition at the time of the claim in October 2003, or within 13 weeks of the claim. It therefore cannot be considered for the purposes of this appeal.

28.     We agree with the respondent that Mr Helmi’s low back pain, neck pain, diabetes mellitus, hypertension, and hypercholesterolaemia have been fully diagnosed, treated and stabilised and therefore qualify as medical impairments for the purpose of assigning a rating under the impairment tables.

29.     The anxiety and depression and the obstructive sleep apnoea had not been fully investigated and treated at the time of the application or within 13 weeks and cannot be assigned an impairment rating.

30.     With regard to the back and neck pain Dr Rowais assessed the back pain, as the result of severe systemic arthritis, diffuse interstitial spinal hyperostosis (DISH), spinal spondylosis which caused difficulty in bending, lifting, walking, pushing, standing and manipulating.

31.     Dr. N Rose an examining medical Officer issued a report on the 23^rd of October 2003 (T-documents p50) stating that Mr Helmi’s neck movements were limited to between one quarter and one half on formal examination. His back movement was restricted by about one quarter. It was assessed that the referred pain may be from his back and that his lower limbs otherwise appear normal with good muscle tone. Dr Rose gave an impairment rating of 10 for the back (and an impairment of 5 for the neck) stating that the total impairment was 15 and the main impairment relates to the back.

32.     Under the impairment rating in Table 5.2 we find an impairment rating of 10 points for the back condition. We make this finding on the basis of the opinion Dr Rose expressed at October 2003 as opposed to the opinion of Dr Rowais expressed in a report of 29 July 2004.

33.     Under the Impairment Table 5.1 for the neck we find an impairment rating of 5.  We make this finding for the same reasons expressed above.

34.     With regard to the diabetes mellitus, this is adequately controlled and under Table 19 of the Impairment Table attracts no impairment rating points.

35.     With regard to the hypercholesterolaemia and hypertension, Dr Rowais and Dr Rose identified an abnormality on the echocardiogram (T5 p34). Dr Rowais was of the opinion that it indicated a further condition of cardiomyopathy, however Dr Rose ascribed the abnormality to hypertension. There was no evidence given to us to support either of these contentions. The hypertension and the hypercholesterolaemia are both being controlled with medication. Under Table 20 of the Impairment Tables no impairment rating points are attracted.

36.     With regard to the sleep apnoea, although Mr Helmi has been advised by Dr Rowais to have it assessed, this condition has not been fully investigated or treated and therefore cannot be assigned a rating.

37.     With regard to the depression and anxiety, there was no evidence that it was being treated or that Mr Helmi had been assessed by a psychiatrist until February 2004. Therefore no impairment rating can be made because at October 2003 the depression and anxiety was not then diagnosed, treated and stabilised.

38. We find the total impairment rating to be 15 points, which is less than the 20 points required under the Act as a minimum. Mr Helmi therefore does not qualify for DSP.

39.     Because of the impairment rating of 15 points, which is less than the 20 points required, the “continuing inability to work” as defined in the Act does not require a decision by us.

40.     It would appear that the evidence presented to us on the day of the hearing, from Dr Rowais and a Work Capacity/Participation Assessment Report dated 21^st September 2004 indicates that Mr Helmi may have a number of disabilities, which could now be regarded as permanent and which would attract at least 20 impairment points.

41.     The effect of this decision is to find that the decision that was made by the SSAT to reject the applicant’s claim for DSP should be affirmed and that Mr Helmi is not entitled to DSP from 14^th October 2003. However as stated above, this does not prevent Mr Helmi from submitting a new claim for DSP.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Associate Professor John Maynard, Member

Signed:         Holly Weston
  Associate

Date of Hearing  14 October 2004
Date of Decision  5 November 2004
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms E King