Kazzi and Secretary, Department of Social Services (Social services second review)

[2017] AATA 3

Kazzi and Secretary, Department of Social Services (Social services second review) [2017] AATA 3 (6 January 2017)

Division:GENERAL DIVISION

File Number(s):      2015/4034

Re:Jean Kazzi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  Mrs J C Kelly, Senior Member

Date:6 January 2017

Place:Sydney

The decision under review is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple conditions – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – spinal condition awarded 10 points under Table 4 – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

6 January 2017

INTRODUCTION

1. The criteria for determining whether a person qualifies for a disability support pension are narrowly defined and are concerned with function.  The Tribunal has no discretion.  On the evidence before it, the Tribunal has no alternative but to affirm the reviewable decision.

2. The criteria do not permit the decision-maker, including the Tribunal, to take into account the fact that the applicant’s treatment for the condition, which rates 10 points under the Impairment Tables, suppresses his immune system with the consequence that he has to avoid mixing with people to minimise the risk of infection.  If his temperature rises to 38 degrees, he must go to hospital immediately.  The applicant is on a priority list at his local emergency centre so that he is attended to immediately.

3. In the Tribunal’s opinion, that circumstance, together with the applicant’s illiteracy and his work history as a farmer and labourer, which involved hard physical work that he no longer has the capacity to do, mean that there is no reasonable likelihood that he will ever find suitable employment. However, until the applicant can satisfy the functional criteria in the Impairment Tables, he will be in limbo, having to continually struggle to satisfy the criteria for newstart allowance.  The Tribunal understands the applicant’s intense frustration with the system, but cannot assist him. 

   BACKGROUND

4. On 29 January 2015, the applicant, Mr Kazzi, lodged a claim for thedisability support pension.

5. The claim was rejected by Centrelink, both initially and on review, on the basis that the applicant did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

6. On 16 July 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision rejecting the applicant’s claim because he did not satisfy s 94(1)(b) of the Act and so he did not qualify for thedisability support pension.

7. On 16 July 2015, the applicant applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

8. The matter was heard in Sydney on 29 June 2016.  The applicant attended the hearing in person.  He represented himself with the assistance of his son. The Tribunal was assisted by an interpreter in the Arabic language.

   RELEVANT LEGISLATION AND ISSUES

9.       Section 94(1) of the Act provides that a person qualifies for thedisability support pensionif:

(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)the person has a continuing inability to work as defined in s 94(2) of the Act.

1. To qualify for thedisability support pension, the Social Security (Administration) Act 1999 (Cth) requires the applicant to satisfy the requirements of s 94 of the Act on the date he makes his claim or within 13 weeks of lodging the claim, that is between 29 January 2015 and 30 April 2015 (the claim period).

2. The Respondent concedes and the Tribunal accepts that the applicant had impairments during the claim period and therefore satisfied s 94(1)(a) of the Act.

3. It follows that the determinative issues in this matter are whether, during the claim period, the applicant had:

   ·an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b); and

   ·a continuing inability to work as defined in s 94(2) of the Act.

   THE TRIBUNAL’S CONSIDERATION AND FINDINGS

   Evidence before the Tribunal

4. The evidence before the Tribunal included two sets of documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”. The respondent’s Statement of Facts and Contentions was also before the Tribunal.

   Does the applicant have medical conditions that can be rated at 20 points or more under the Impairment Tables?

5. The Social Security (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (the Impairment Tables) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’.

6. Paragraph 6(4) of the Impairment Tables provides that a condition is permanent if it:

   ·has been fully diagnosed by an appropriately qualified medical practitioner; and

   ·has been fully treated; and

   ·has been fully stabilised; and

   ·is more likely than not to persist for more than two years.

7. The Impairment Tables describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment.

8. Clause 8 of Part 2 of the Impairment Tables provides symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.  

9. Based on the evidence before the Tribunal, the applicant’s medical conditions that are relevant to his claim for thedisability support pensionare:

   ·Back condition;

   ·Psoriasis;

   ·Gout;

   ·Hypertension; and

   ·Hyperuricemia.

10. Following is my consideration of each of those medical conditions in accordance with the Impairment Tables.

    The back condition

11. The respondent accepts that the applicant’s back condition was permanent for the purposes of cl 6(3) of Part 2 of the Impairment Tables.  The back condition encompasses the cervical and lumbar spine.  The condition has been variously described in the evidence before the Tribunal, including as “Ankylosing Spondylitis + DISH” (diffuse idiopathic skeletal hyperostosis).

12. Table 4 – Spinal Function – is the relevant Impairment Table.  The question for determination is whether the appropriate rating under Table 4 is 10 or 20 points:

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

1. The Tribunal has taken into account all the evidence before it, including the evidence of the applicant and his son at the hearing about the applicant’s functional limitations.  The hearing was held about 15 months after the end of the claim period.  Because the applicant has to satisfy the statutory criteria during the claim period, the Tribunal finds that the reports made by the applicant during the claim period to relevantly qualified people and their assessments at that time, are more reliable than evidence given 15 months later.  The Tribunal does not criticise either the applicant or his son in making that finding.  Contemporaneous records are just more reliable than memory.

2. The Tribunal has taken into account and given greatest weight to the report of Dr Patapanian, rheumatologist, dated 25 January 2015 and the Job Capacity Assessment carried out on 20 February 2015.

3. The applicant has been a patient of Dr Patapanian since 12 March 2014. Dr Patapanian diagnosed the applicant with Ankylosing Spondylitis and DISH at that time and commenced treatment of Voltaron 50 mg bi-daily.  On 1 November 2014 the applicant commenced treatment with Remicade, intravenously every six weeks.  Remicade is a Tumor Necrosis Factor blocker.

4. In his report dated 25 January 2015, Dr Patapanian provided the following information and assessments.  Ankylosing Spondylitis and DISH has a significant impact on the applicant’s ability to function.  The doctor’s writing is sometimes difficult to decipher.  Following is what the Tribunal understands he wrote. The applicant’s symptoms were “severe generalised spinal pain + stiffness PRIOR TO [sic] Remicade; now moderate generally; occasionally severe.” The applicant suffered morning stiffness and marked restriction of spinal movement.

5. Dr Patapanian described the impact of the back condition on the applicant’s functioning as follows: 

   Attempted physical work will result in pain and unable to partake in work requiring heavy lifting or repetitive/forceful use of upper limbs.  Morning stiffness permanent.  Ongoing pain.

6. Dr Patapanian’s opinion was that that impact would persist for more than 24 months, remain unchanged within two years, and that the current therapy had stabilised the applicant’s symptoms but not eliminated them. He considered that the symptoms had plateaued.

7. In his report of 23 January 2016, Dr Patapanian carefully considered Table 4 and concluded that the applicant fully qualified the criteria for moderate functional impact, that is, a rating of 10 points.  He also found that the applicant satisfied criteria (a) and (b) of the severe functional impact, but did not satisfy criteria (c) and (d).  Dr Patapanian wrote: “His disability nevertheless is clinically overt, severe and permanent, intrusive and almost certainly progressive”.

8. The Tribunal finds that the appropriate impairment rating for the back condition is 10 points.

9. As indicated in the introduction to this decision, the Tribunal accepts the following evidence of the applicant and his son. The Remicade treatment suppresses the applicant’s immune system. He can no longer mix with people.  For example, the applicant cannot worship at his church.  If his temperature rises to 38 degrees, he must go to hospital immediately.  The applicant is on a priority list at his local emergency centre so that he is attended to immediately. The effect on the immune system is corroborated by Dr Patapanian in his report dated 23 January 2016 and information published by the manufacturer of Remicade.[1] 

   [1]Janssen Biotech Inc, Important Safety Information (28 January 2016), Official Website for REMICADE© (infliximab) <>

   The Tribunal also accepts that the applicant’s son undertook an on-line business course that the applicant was supposed to do, but could not because he is illiterate in both Arabic and English.  The applicant was given the choice of doing the course or going home. The respondent submitted that doing the course was “negotiated”.  The Tribunal does not accept that the applicant thought he had a choice.  The respondent acknowledged that literacy is not a test for continuing inability to work. It appears that the applicant will continue to face such frustrations while he does not satisfy the criteria for disability support pension.

   Other conditions

10. In his 25 January 2015 report, the only other condition Dr Patapanian addressed was “mild generalised osteoarthritis” which he indicated was well managed and caused minimal or limited impact on the applicant’s ability to function. The Tribunal finds that this refers to conditions which are distinguished from the back condition. The Tribunal accepts Dr Patapanian’s assessment. 

11. The Tribunal finds that the conditions of psoriasis and seborrheic dermatitis, gout, hypertension, and hyperuricemia are all fully diagnosed, treated and stabilised and generally well managed.  Those findings are based on the medical evidence, including:

    ·the Health Summary Sheet from the applicant’s general practitioner, printed out on 11 February 2015;

    ·the Job Capacity Reports, particularly that of 20 February 2015;

    ·the applicant’s reports recorded in contemporaneous documents; and

    ·the applicant’s  and his son’s evidence at the hearing.

12. There is therefore no rating for the above conditions.

13. The applicant told the Tribunal that he had infection in his kidneys, chest and neck area.  He showed the Tribunal an area of his lower back where he says there is an infection which will not go away.  The applicant also said that he had an X-ray of his leg four or five months before the hearing and had been referred to a specialist who talked about removing a bone.  The applicant said that he suffers pain in the bone down to his heal. 

14. Those matters were not included in the application for disability support pension and there is no medical evidence before the Tribunal about them. Accordingly, the Tribunal is not able to assess them according to the statutory criteria.

    CONCLUSION

15. For the reasons set out above, the Tribunal is not satisfied that the applicant met the requirements of s 94(1)(b) of the Act during the claim period because his impairments were not 20 points or more under the Impairment Tables.

16. It is therefore not necessary to consider whether the applicant had a continuing inability to work.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 6 January 2017

Date(s) of hearing:	29 June 2016
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services