ISMET PAKEL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 792

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 792

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6106

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		ISMET PAKEL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date15 October 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Kerry Breen

Member

SOCIAL SECURITY ‑ disability support pension – prostatism – other physical conditions ‑ impairment rating below 20 points.  

Social Security Act 1991 s 94(1)

REASONS FOR DECISION

15 October 2009 Dr Kerry Breen, Member

1.Mr Ismet Pakel, who is 52 years old, migrated to Australia from Turkey in 1981.  Mr Pakel suffers from a number of medical conditions.  He lodged a claim for disability support pension (DSP) on 4 August 2008.  He provided a treating doctor’s report (TDR) from his general practitioner, Dr A Ansari, dated 1 August 2008, in support of his claim.  Centrelink rejected the claim on 14 August 2008 because Mr Pakel did not score the necessary 20 impairment points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  Centrelink is the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).  An authorised review officer from Centrelink affirmed the decision.  Mr Pakel then sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 2 December 2008 the SSAT also affirmed the decision.  Mr Pakel now seeks review of the SSAT decision by this Tribunal.  

2.At the beginning of the hearing, Mr Pakel stated that he understood some English but asked to use an interpreter for the entire hearing.  He contended that his prostatism is his most disabling problem and renders him incapable of any work.  He is therefore entitled to DSP.

3.The Respondent contended that the conditions relating to Mr Pakel’s back and left shoulder had been medically assessed and were rated at a total of 10 points under Tables 5.1 and 5.2 of the Impairment Tables.  However, the prostate condition was not yet fully diagnosed, treated and stabilised, which is a pre-requisite for the assessment of the condition under the Impairment Tables.  Furthermore, a medical report by his treating general practitioner clearly stated that the prostate problem was generally well managed and ... cause(s) minimal or limited impact on ability to function.

4.Mr Pakel indicated that he did not wish to pursue any entitlement relating to health issues other than his prostate disorder.  However, for completeness, and to ensure that Mr Pakel, who represented himself, did not suffer a disadvantage by his emphasis on his prostate condition, I have duly considered his other health conditions. 

ISSUES

5.The issues to be determined are:

·From what permanent medical conditions does Mr Pakel suffer?

·What impairment ratings do his conditions attract?

·And, if the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

6.The relevant assessment period is from 4 August 2008 and the subsequent 13 weeks.

LEGISLATION

7.The relevant legislation includes s 94(1) of the Act and the Impairment Tables. Section 94 of the Act provides:

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;

…

8.The Introduction to the Impairment Tables provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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 2 years.

…

From what, if any, Permanent Medical Conditions does Mr Pakel Suffer?

9.From Mr Pakel’s claim form and from the evidence provided by his treating doctor, the diagnoses under consideration are prostatism, musculo-ligamentous strain of the cervical spine and left shoulder, musculo-ligamentous strain of the lumbar spine, anxiety and depression, epigastric pain and hypertension.  I will deal with each of these in turn. 

prostatism

10.Mr Pakel’s general practitioner, Dr Ansari provided two TDRs, dated 1 August 2008 and 8 September 2009.  The first report makes no mention of any prostate problems.  Mr Pakel provided the second report to the Tribunal at the hearing.  In this report, in answer to the question,  Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function? Dr Ansari noted Prostate problems (for which he prescribed Minipress).  He added May require an operation in the future.  Passing urine frequently.   In answer to the question, Significant improvement expected? Dr Ansari ticked the yes box. 

11.Mr Pakel stated that his prostate symptoms have troubled him for 5 to 6 years, that he gets out of bed up to eighteen times at night to pass urine and by day has a similar urinary frequency.  He sees a specialist every six months and stated that he has been told he may eventually need an operation.  He stated that he asked the specialist for a medical report for this application but the specialist advised him to obtain that from his general practitioner. 

12.In support of Mr Pakel’s evidence, a Job Capacity Assessor recorded his prostate symptoms at an assessment in October 2007. 

musculo-ligamentous strain of the cervical spine and left shoulder

13.In the TDR dated 1 August 2008, Dr Ansari listed musculo-ligamentous strain of the cervical spine and left shoulder as the first of two conditions which have a significant impact on the patient’s ability to function.  The report noted that this was linked to a motor car accident in 2003 and that x-rays showed moderate lower cervical spondylosis.  Dr Ansari reported that this condition currently affected Mr Pakel’s ability to function, as Patient cannot sit in one position.  He cannot do any lifting, pulling or pushing. 

14.In his 8 September 2009 TDR, Dr Ansari gave an identical report and again indicated that he expected this condition to persist for more than 24 months and  expected it to deteriorate. 

15.Centrelink arranged a job capacity assessment for Mr Pakel on 8 August 2008.  The Job Capacity Assessor (the assessor) accepted that this condition was fully diagnosed, treated and stabilised.  By applying Table 5.1 of the Impairment Tables, the assessor recommended an impairment rating of nil points. 

musculo-ligamentous strain of the lumbar spine

16.In his TDR dated 1 August 2008, Dr Ansari listed the condition of musculo‑ligamentous strain of the lumbar spine as the second condition with a significant impact on the patient’s ability to function.  He noted X-rays showed lumbar spine-lumbar spondylosis and disc space narrowing at L5/S1 level with a CT scan showing no significant disc prolapse.  He reported Mr Pakel’s symptoms as Backache with pain down the legs. 

17.The assessor accepted that this condition had also been fully diagnosed, treated and stabilised.  By applying the Table 5.2 of the Impairment Tables, the assessor recommended an impairment rating of ten points. 

anxiety and depression

18.In both TDRs, Dr Ansari noted anxiety and depression was generally well managed and that cause(d) minimal or limited impact on ability to function.  He reported that the condition led to inability to concentrate; he noted that the condition was being treated with antidepressants; and he ticked yes in answer to the question Significant improvement expected?

pain in the epigastric area

19.Again, in both TDRs, Dr Ansari listed Mr Pakel’s condition of pain in the epigastric area under the heading of generally well managed and that cause minimal or limited impact on ability to function; and he indicated that significant improvement was expected. 

hypertension

20.Dr Ansari reported that Mr Pakel was on medications for hypertension and he regarded this condition as generally well managed and that it caused minimal or limited impact on ability to function. 

FINDINGS OF FACT

21.Based on the above evidence, I am satisfied that at the time of his claim, Mr Pakel suffered from a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act. The relevant conditions (musculo-ligamentous strain of the cervical spine and left shoulder, musculo-ligamentous strain of the lumbar spine, anxiety and depression, epigastric pain and hypertension) had been fully investigated, treated and stabilised and were likely to continue for at least two years. Therefore, these conditions are permanent and assessable under the Impairment Tables.

22.I am also satisfied that Mr Pakel suffers from a long-standing prostatic condition.  While it may be long-standing, based on the medical reports and Mr Pakel’s evidence that surgery may yet be required, I am not able to conclude that this condition has been fully investigated, treated and stabilised.  It is clear to me that Mr Pakel’s symptoms of prostatism are of great concern to him.  However, I must also pay due heed to the more recent report of his treating doctor.  It is clear that Dr Ansari turned his mind to the prostatic condition, its severity and its impact on Mr Pakel’s functional capacity.  This report assesses the prostate condition as one which is generally well managed and that cause(s) minimal or limited impact on ability to function.  Based on the available evidence, I conclude that the prostate condition does not warrant an impairment assessment at this time. 

23.Therefore, the total impairment assessment for those of Mr Pakel’s conditions which have been fully investigated, treated and stabilised is 10 points. As a result, Mr Pakel does not satisfy s 94(1)(b) of the Act. As Mr Pakel does not does not satisfy s 94(1)(b) of the Act, and therefore cannot satisfy s 94(1), I do not need to consider whether he had a continuing inability to work under s 94(1)(c) of the Act. Therefore, Mr Pakel does not qualify for DSP.

24.Mr Pakel may have been disadvantaged by the alleged refusal of his specialist to provide him with a medical report regarding the prostate condition.  However, it is not possible for me to speculate on whether such a report may have supported the contentions Mr Pakel made to the Tribunal.  It is of course open to Mr Pakel to seek additional medical reports and make a new application for DSP. 

25.As I have determined that on the date of his claim and in the subsequent 13 weeks Mr Pakel had an impairment rating of 10 points, he does not qualify for DSP under s 94 of the Act. 

DECISION

26.I affirm the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

signed:   Olympia Sarrinikolaou

Clerk

Date of hearing:  25 September 2009

Date of decision:  15 October 2009
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr P. Carson, Centrelink Legal Services Branch