Hiatham Al Saifi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 541

[2012] AATA 541  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4622
Re	Hiatham Al Saifi
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton Dr H Haikal-Mukhtar
Date	17 August 2012
Place	Sydney

The decision under review is affirmed.

..............................[sgd]..........................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – whether claimed conditions fully diagnosed, treated and stabilised – whether claimed conditions attract rating of 20 points or more – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 26(1), 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) – s 42, Sch 2

CASES

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404

REASONS FOR DECISION

Senior Member A K Britton
Dr H Haikal-Mukhtar

August 2012

1. Mr Hiatham Al Saifi has applied to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal, to reject his claim for disability support pension (DSP).

2. To qualify for DSP Mr Al Saifi must have a physical, intellectual or psychiatric impairment, and an impairment rating of at least 20 points, resulting in a continuing inability to work (s 94 of the Social Security Act 1991 (Cth) (the Act)).

3. Mr Al Saifi claims that he has an impairment rating of at least 20 points and is unable to work. The Secretary agrees that Mr Al Saifi suffers from a number of medical conditions but contends they cannot be assigned an impairment rating as they have not been fully stabilised and treated, or attract an impairment rating of nil. Furthermore, the Secretary disputes that Mr Al Saifi is unable to work.

4. Whether Mr Al Saifi qualifies for DSP must be assessed by reference to the 13-week period following the date he made his claim, that is, 18 February 2011 to 20 May 2011 (s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth)). We will refer to this period as “the claim period”. Any change in Mr Al Saifi’s health after this period is irrelevant, “... except insofar as it may cast light on the position at the relevant time”: Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 252 per Gyles J.

   ASSESSMENT OF IMPAIRMENT

5. As noted, to qualify for DSP, Mr Al Saifi’s impairments must attract a total rating of at least 20 points as measured under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension contained in Sch 1B of the Act (the Tables). (The new Tables made under subsection 26(1) of the Act, contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011, active from 1 January 2012, are not applicable to this matter.)

6. Before an impairment rating can be awarded we must be of the opinion that the condition is permanent (Introduction to the Tables, par [5]). A condition will be accepted as being permanent if it has been diagnosed, treated and stabilised (par [5]). In determining whether the condition is fully diagnosed, treated and stabilised, we must consider (par [6]):

   ·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 2 years.

7. In this context, reasonable treatment is taken to be (par [6]):

   ·     treatment that is feasible and accessible ie, available locally at a reasonable cost;

   ·     where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

   It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

   In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:

   ·     evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

   ·     indicate why this treatment is reasonable; and

   ·     note the reasons why the person has chosen not to have treatment.

   CLAIM FOR DSP

8. In support of his claim for DSP, Mr Al Saifi provided to Centrelink a medical report dated 14 February 2011 prepared by his GP (since November 2009), Dr S Setrak. Dr Setrak stated that Mr Al Saifi suffered from a  neck and back condition, described respectively as a “C 3/4 disc prolapse with cervical spondylosis” and “L4/5, L5/S1, disc prolapse, lumbar spondylosis”. In his opinion, these conditions had the most impact on Mr Al Saifi’s ability to function.  In addition, Dr Setrak listed: depression, COPD [chronic obstructive pulmonary disease, with] polycythemia, colonic polyps [with] irritable bowel syndrome and GORD [gastro-oesophageal reflux disease] as “… other medical conditions that are generally well managed and that cause minimal or limited impact on [Mr Al Saifi’s] ability to function”.

   Claimed condition 1: Psychiatric condition

9. Of the conditions from which Mr Al Saifi suffers, in our opinion, his psychiatric condition probably had the most impact on his ability to function during the claim period.

10. Dr Setrak provided a diagnosis of depression and made no mention of Post-Traumatic Stress Disorder (PTSD) in his report dated February 2011. In a report prepared by psychiatrist, Dr Hecham Alhajali, bearing the date 14 January 2011 (sic) —Mr Al Saifi did not see Dr Alhajali until mid-2011 so the correct date must be 14 January 2012 — Dr Alhajali wrote that Mr Al Saifi suffers from “severe and chronic PTSD”. In Dr Alhajali’s opinion, over the next two years there was unlikely to be any considerable improvement in that condition. In an earlier report dated 23 July 2011, Dr Alhajali recommended a management plan that included medication, psychotherapy and various lifestyle changes. In September 2011, Mr Al Saifi came under the care of a counsellor.

11. A counsellor employed by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) wrote in a report dated 16 August 2010, that Mr Al Saifi had been referred to STARTTS in December 2009 and suffered from PTSD. The counsellor did not detail the treatment provided to Mr Al Saifi or proffer an opinion on whether his PTSD was fully treated and stabilised.

12. Despite the absence of any reference to PTSD in his GP’s report, the weight of evidence indicates that Mr Al Saifi probably suffered from that condition throughout the claim period. Even if accepted that the condition had been diagnosed, in our opinion, it could not be said to have been fully treated and stabilised in the claim period. While Mr Al Saifi had received some treatment (from STARTTS), it was not until about two months after the claim period that he was referred to a psychiatrist, and the recommended management plan commenced.

13. Even if, as Dr Setrak believed, the appropriate diagnosis was depression, we would arrive at the same conclusion. While Mr Al Saifi had received some treatment during the claim period, namely the anti-depressant Avanza and “psychotherapy” (see question 4 of the report of Dr Setrak, 14 February 2011), the condition in our view could not reasonably be said to have been fully treated and stabilised.

14. Mr Al Saifi’s psychiatric condition was not fully treated and stabilised during the claim period. Therefore it cannot be considered permanent and an impairment rating cannot be assigned.

    Claimed condition 2: Neck and back conditions

15. There is no dispute that Mr Al Saifi suffered from neck and back conditions in the claim period. The Secretary contends, however, that Mr Al Saifi has overstated the degree of functional incapacity resulting from these conditions, and furthermore that neither condition was fully treated and stabilised.

16. In his report of 14 February 2011, Dr Setrak wrote that the current treatment for Mr Al Saifi’s lower back and neck conditions included pain killers, NSAIDs [non-steroidal anti-inflammatory drugs] and physiotherapy. Mr Al Saifi admits that Dr Setrak recommended that he undertake gentle exercise on a routine basis for these conditions, but stated that he often did not follow this recommendation because his wife was unable to drive him to the swimming pool or physiotherapy, or he was simply in too much pain.

17. The weight of medical opinion is that a regular exercise program of some sort constitutes “reasonable treatment” in Mr Al Saifi’s case (see also the report of Dr Loretta Rozario dated 20 January 2012). That treatment was both feasible and accessible. We do not accept that Mr Al Saifi was unable to travel to obtain treatment or, as he claims, unable to walk on account of the pain. Being satisfied that Mr Al Saifi has not undertaken this treatment, we are unable to conclude that the condition is permanent and cannot award an impairment rating.

    Claimed condition 3: Chronic obstructive pulmonary disease

18. Mr Al Saifi was referred to respiratory physician Dr Anthony Johnson for assessment of complaints of shortness of breath in September 2011, i.e. after the claim period.

19. In a letter to Dr Menashi, dated 4 October 2011, Dr Johnson stated, “ [Mr Al Saifi’s] respiratory function tests show mild airflow obstruction. He has no cough …” In a follow-up letter, dated 23 February 2012, Dr Johnson wrote: “He is still mildly short of breath. He has no cough. He is on Ventolin as needed, which he does find helpful, so I have added Seretide 250/25 bd and asked to see him again in a few months’ time.”

20. The Job Capacity Assessor, in a report dated 30 April 2012, concluded in respect of Mr Al Saifi’s claimed Chronic Obstructive Airways Disease, “due to non-compliance with medication as reported by Respiratory Physician, Dr Johnson on 8/9/11, and exploration of reasonable treatment outside of period of consideration, this condition is not considered to be fully treated and stabilised”.

21. The reports before us prepared by Dr Johnson do not suggest that Mr Al Saifi was non- compliant. However, as revealed by the history above, Mr Al Saifi’s respiratory condition was not fully investigated or treated until sometime after the claim period. It follows that an impairment rating cannot be awarded.

22. We note that at the hearing, Mr Al Saifi volunteered that he had no breathing problems. When questioned further, he said that he had mild breathing problems, for which he used the puffer prescribed by his respiratory physician. When questioned at the hearing, he indicated that these symptoms did not impact on his functional capacity.

    Claimed condition 4: Colonic polyps

23. Mr Al Saifi had a colonoscopy performed in November 2011. He was found to have colonic polyps which were resected during the procedure and he was referred back to his GP. He has no symptoms from this condition and requires no treatment besides a repeat colonoscopy in three years. In the report dated 30 April 2012, the Job Capacity Assessor concluded: “this condition is adequately managed with medical intervention and specialist consultation for some time and is considered to be fully diagnosed, treated and stabilised.”

24. The colonoscopy was not performed until after the claim period.  That procedure in our opinion constituted “reasonable treatment”. Therefore the condition could not be said to have been fully treated and investigated during the claim period. It follows that a rating cannot be assigned.

    Claimed condition 5: Gastro-oesophageal reflux disease

25. Mr Al Saifi has gastro-intestinal symptoms well controlled by medication. He had a gastroscopy on 19 November 2010, which was normal except for some reflux oesophagitis. A hiatus hernia was noted. He is treated with a proton pump inhibitor (Nexium) and has few symptoms. (See the reports of Dr Setrak dated 14 February 2011 and Dr A Simring dated 19 November 2010.)

26. The Job Capacity Assessor, in the report dated 30 April 2012, considered this condition to be fully diagnosed, treated and stabilised and assigned an impairment rating of nil points under Table 11.1 for this condition, “nil rating – criteria: peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.” We agree with this finding and rating.

27. Similarly, for the condition of Irritable Bowel Syndrome, we agree with the Job Capacity Assessment Report, which assigned a rating of nil points under Table 11.1.

    Claimed condition 6: Ischaemic heart disease

28. In his report of 18 November 2011, Dr Setrak’s list of conditions from which Mr Al Saifi suffered did not include ischaemic heart disease. As noted by the Social Security Appeals Tribunal, Mr Al Saifi was investigated for possible ischaemic heart disease in March 2011 and discharged from further routine follow up by his cardiologist. The SSAT concluded that this condition was no longer an issue and therefore an impairment rating should not be awarded.

29. In his letter to Dr Setrak dated 1 March 2011, cardiologist Dr Henry Newman reported that Mr Al Saifi presented with “chest pains and palpitations” with “relatively localised left sided discomfort … associated with breathing difficulties”. In his letter to Dr Setrak dated 15 April 2011, Dr Newman stated: “Part of the package that I am prescribing for him is an absolute smoking cessation which I understand has taken place already, regular exercise and hopefully some degree of weight reduction.” He concluded: “I would like to return him to your further care”.

30. In his report dated 8 March 2012, Dr Setrak stated that Mr Al Saifi could not tolerate exercise due to “shortness of breath and chest pain”. In these proceedings, when questioned about his heart condition, Mr Al Saifi said that he now experiences mild chest pain on the left side of the chest, after 10 to 15 minutes walking in the garden, or when he gets tired or stressed, two to three times per week. He said he was still taking the medications prescribed by the cardiologist, and that if he stopped the medications he would get the chest pain. He said he had no palpitations and experienced mild breathing problems for which he takes his puffer. His answers to questions in these proceedings indicated that the condition did not appear to have any significant impact on his daily living.

31. As we understand it, Mr Al Saifi no longer asserts that ischaemic heart disease reduces his functional capacity. In any event, in our opinion the condition could not be said to have been fully investigated or treated in the claim period. There is no evidence to suggest that Mr Al Saifi had taken steps to implement two of the recommendations made by the treating cardiologist — weight reduction and moderate exercise — in the claim period.

    SUMMARY

32. We understand that Mr Al Saifi believes that he has been treated unfairly because he suffers from multiple health problems yet his claim for DSP has been refused. Parliament has set a high hurdle for persons seeking to qualify for DSP and requires not only that the person suffer from health problems which impact on their functional capacity or ability to work, but that the underlying conditions be permanent, that is, fully diagnosed, treated and stabilised. Not being satisfied that any of Mr Al Saifi’s conditions can be awarded an impairment rating, we must affirm the decision to refuse his claim for DSP.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr H Haikal-Mukhtar

................................[sgd]........................................

Associate to Senior Member A K Britton

Dated 17 August 2012

Date(s) of hearing	28 June 2012
Date final submissions received	20 July 2012
Applicant	In person
Solicitors for the Respondent	Ms J Maclean, Centrelink Program Litigation and Review Branch