KHALIL IBRAHIM and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 418
•5 July 2012
[2012] AATA 418
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4858
Re
KHALIL IBRAHIM
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 5 July 2012 Place Sydney The Tribunal affirms the decision under review.
......................[sgd]..................................................
Ms G Ettinger, Senior Member
Catchwords
Disability Support Pension – Applicant has conditions which have not yet been identified, treated and stabilised – does not meet impairment threshold – Applicant can work - therefore continuing inability to work not considered - decision under review affirmed.
Legislation
Social Security Act 1991 s 94, Sch 1B
Social Security (Administration) Act 1999 ss 41, 42, 36, 37, Sch 2
Administrative Appeals Tribunal Act 1975 s 37
Cases
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
Secondary Materials
A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension
REASONS FOR DECISION
Ms G Ettinger, Senior Member
5 July 2012
BACKGROUND
Mr Khalil Ibrahim came to Australia from Iraq in 2005. He told me he was a jeweller in Iraq, and attempted unsuccessfully, approximately two years ago, with his son, Salwan Ibrahim, to operate a jewellery business here. He said that the business closed in approximately 2010/2011, and that this has cost him a great deal of money. Otherwise, he says he has done community voluntary work, but has not worked in remunerative work in Australia.
Mr Ibrahim is almost 62 years old, and suffers a number of conditions, including asthma, gout, joint disease, back pain and neck pain, and chronic nasal obstruction. He applied for the Disability Support Pension (DSP), which was refused by Centrelink on 6 December 2010. Both the Authorised Review Officer, and then the Social Security Appeals Tribunal, (the SSAT), held that Mr Ibrahim did not satisfy the threshold impairment ratings for DSP pursuant to section 94 of the Social Security Act 1991 (the Act). He has exercised his rights to appeal to this Tribunal from the decision of the SSAT of 12 October 2011.
The period which applies in consideration of Mr Ibrahim’s claim is the date on which he applied for the DSP, being 23 September 2012 and within thirteen weeks of that date, being 22 December 2010.
I find that Mr Ibrahim did not meet the threshold 20 impairment points pursuant to the ‘Tables for the assessment of work-related impairment for disability support pension’ in the relevant period. Accordingly, it is expected that he can work, and I do not have to consider whether he has a continuing inability to work for 15 hours a week pursuant to section 94(1)(c) of the Act. I have affirmed the decision of the SSAT. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
I have to decide whether on 23 September 2010, or within 13 weeks of that date (being 22 December 2010):
a. Mr Ibrahim has a physical, intellectual or psychiatric impairment; and, if so
b. Whether Mr Ibrahim’s impairments attract impairment ratings of 20 points or more under the Impairment Tables under Schedule 1B of the Social Security Act 1991, (the Act); and, if so
c. Whether Mr Ibrahim has a continuing inability to work for 15 or more hours a week.
LEGISLATIVE ENVIRONMENT
The relevant legislation in this matter is the Social Security Act 1991, (the Act) and the Social Security (Administration) Act 1999, (Administration Act).
The Administration Act provides that the start day for a qualified pension claimant is the date of claim (ss 41, 42, Sch 2 cl 3). This means that qualification and impairment ratings must be determined as at the date of claim. A relevant exception is where the person is not qualified on the date of claim but will ... become qualified and becomes qualified within 13 weeks of lodging a claim, in which case his/her start day is the day he or she becomes qualified (Sch 2 cl 4(1)).
Pursuant to sections 36 and 37 of the Administration Act, DSP can only be granted to a person if the decision-maker is satisfied that the person is qualified, and that the pension is payable to the person.
Section 94 of the Act details the qualification for DSP, and states, as far as is relevant:
94 Qualification for disability support pension
(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
….
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
…
BACKGROUND
Mr Ibrahim attended the hearing with his adult son. We were assisted by Ms L Younes, a very competent interpreter in the Arabic language. The Respondent, Secretary, Department of Families, Housing, Community Services and Indigenous Affairs was represented by its advocate Ms B Salaji.
Mr Ibrahim’s application for DSP was accompanied by a report of Dr E Younathin dated 21 May 2010. Dr Younathin had diagnosed Mr Ibrahim with asthma, joint disease, degenerative joint disease, gout, back disease, and neck disease, chronic nasal obstruction, hypertension and little finger deformity. He described the conditions as follows, characterising the asthma as the condition with most impact, in the form accompanying Mr Ibrahim’s application for DSP.
Asthma: Mr Ibrahim has a history of shortness of breath. Mr Ibrahim’s symptoms were noted to be wheezy chest, shortness of breath, chest discomfort and coughing. His treatment was Seretide and Ventolin. Dr Younathin added that Mr Ibrahim was not able to attend to his daily tasks because of his chest discomfort, wheeze and cough.
Joint disease; degenerative joint disease; gout; back disease; neck disease: Mr Ibrahim has a history of joint pain. Mr Ibrahim’s symptoms included history of joint pain, back pain, neck pain, limited movement. Mr Ibrahim’s treatments included pain killers and anti inflammatories.
Chronic nasal obstruction and loss of sense of smell: no treatment.
Little finger deformity: affects Mr Ibrahim’s grip; no treatment.
Hypertension: the medication prescribed for Mr Ibrahim’s hypertension was Avapro.
On 28 October 2010, Mr Ibrahim lodged a Medical Certificate completed by Dr Younathin, dated 27 October 2010. Dr Younathin stated that Mr Ibrahim has severe asthma, rib fracture, gout and degertaive (sic) back disease, and Mr Ibrahim’s treatment is rest and pain killers.
I moved then to consider the application of section 94 of the Act.
Section 94(1)(a): Whether Mr Ibrahim has a physical, intellectual or psychiatric impairment
The conditions Mr Ibrahim suffers as noted above, are, asthma, joint disease, degenerative joint disease, gout, back disease, and neck disease, chronic nasal obstruction, little finger deformity (not mentioned at the Tribunal hearing), and hypertension. I am satisfied from the evidence before me that Mr Ibrahim suffers impairment, both physical, (Dr Younathin and others), and psychiatric impairments, (Dr S Benjamin, psychiatrist), pursuant to section 94(1)(a) of the Act.
Mr Ibrahim told me that he takes a lot of medication, that he suffers pain in his back, and that he takes analgesic medication for his back pain twice a day. His evidence was that his sleep is disturbed, that he does not sleep much due to pain. He told me that he attempted suicide twice approximately a year ago due to his psychiatric condition. Mr Ibrahim told me when Ms Salaji asked him about the home exercises recommended for his back by a physiotherapist in September 2011, that he walks half an hour a day if he can, and agreed that it eased his pain somewhat when he could do it. He said that he could not do the other strengthening exercises which were recommended.
Mr Ibrahim said that he could not use the computer for more than 10 minutes at a time because of the pain in his hands. Mr Ibrahim told me that he suffered injuries in a motor vehicle accident in 2009, but that he could, in the relevant period, and can presently, dress himself and do some household chores. He said that he does not go shopping, and that his son and wife mow the lawn.
Mr Ibrahim told me at the hearing that he has a new condition, being numbness of the hands causing impaired movement of his hands. He believes that this condition arises from a compressed nerve in his neck. He tendered results of motor nerve conduction tests carried out on 14 May 2012 for carpal tunnel syndrome, and reported by Dr I Hanna, a consultant neurologist, (Exhibit A2). Dr Hanna concluded that changes observed and measured are consistent with the clinical diagnosis of mild to moderate severity bilateral sensory-motor carpal tunnel syndrome, right > the left side.
I am mindful that this condition has not been considered by the Respondent, nor the SSAT, neither does it appear that its onset was within the relevant period. I therefore do not have jurisdiction to consider any claim in that regard.
Section 94(1)(b): Whether Mr Ibrahim has a rateable condition
The Impairment Tables set out in Schedule 1B of the Act are designed to assess impairment in relation to work. The Tables give particular emphasis to the loss of a person’s functional capacity in comparison with a fully able person. Generally, the more a person’s impairment affects their ability to do work related tasks, the higher the impairment rating that will be assigned.
Paragraphs 4 to 6 of the Introduction to Schedule 1B of the Act set out a number of mandatory requirements that must be considered and satisfied before any impairment rating can be assigned to a condition (Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606). Paragraphs 4 to 6 state the following:
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. Schedule 1B Tables for the assessment of work-related impairment for disability support pension 708 Social Security Act 1991
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 if 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.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
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.
In this context, reasonable treatment is taken to be:
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.
The above indicates that for a rating to be assigned, Mr Ibrahim’s conditions must be permanent, that is having been fully documented, diagnosed, treated, stabilised and likely to persist into the foreseeable future, being two years. Accordingly, conditions which do not fulfil these criteria are considered to be temporary.
I accept the Respondent’s submission that a nil impairment rating applied from a particular table does not necessarily indicate that the person suffers no symptoms or effects from a condition, only that the degree of functional loss experienced as a result of the condition is not of a sufficient severity to allow a particular rating level to be assigned.
The Guide to the Impairment Tables relevantly states:
Choice of ratings within a particular table:
If an impairment level appears to fall between two rating levels described within a table, the general approach is to choose the lower of the two ratings. The higher rating level should not be assigned unless the entire impairment descriptor at that level has been fully satisfied.
I moved then to consider Mr Ibrahim’s conditions.
Chronic post-traumatic stress disorder (PTSD) / chronic major depressive disorder
Mr Ibrahim’s evidence in connection with his psychiatric conditions was that he is tense and nervous due to his pain, and that he tried to commit suicide by going under a car on two occasions. He said that he did not consult a doctor or go to hospital as a result. I can only conclude therefore that although Mr Ibrahim may have had the intention of committing suicide, he was not physically hurt at the time.
I have noted that the documentary evidence suggests the first record for the condition of PTSD was recorded by Dr S Benjamin, a psychiatrist, on 20 January 2011. Dr Benjamin indicated that Mr Ibrahim has not seen a psychiatrist or psychologist in the past. Dr Benjamin stated that Mr Ibrahim’s presentation was consistent with the diagnosis of Exacerbation of Chronic Post Traumatic Stress Disorder ... The differential diagnosis of Chronic Major Depressive Disorder may also be considered. There is also a suggestion of Axis II diagnosis. Dr Benjamin prescribed Mr Ibrahim Cipramil and Neulactil medication. Dr Benjamin reported that Mr Ibrahim may also benefit from Cognitive Behaviour Therapy in the short term. Dr Benjamin was scheduled to review Mr Ibrahim after one month.
The SSAT noted that Drs Benjamin, and Younathin diagnosed PTSD and chronic depression, and that Mr Ibrahim had been prescribed medication for those conditions. The SSAT found that those conditions were not fully diagnosed, treated and stabilised by the relevant dates.
The Job Capacity Assessment Report dated 28 October 2010 noted that the psychiatrist’s report of 20 January 2011 confirmed Mr Ibrahim suffered chronic PTSD and Chronic Major Depression. The Assessor held that the condition was fully diagnosed, but noted it was not yet fully treated and stabilized. The psychologist carrying out the assessment which followed that of 28 October 2010, was held on 4 July 2011, and noted that Mr Ibrahim’s psychiatric conditions were permanent.
I am satisfied to find as the SSAT did. I take into account the evidence that Mr Ibrahim did not see a psychiatrist until January 2011, and am mindful that even though he may have suffered a psychiatric condition before that date, the diagnosis by Dr Benjamin was outside the relevant period for the grant of the DSP. Accordingly, I cannot find that Mr Ibrahim’s psychiatric conditions had become permanent by the relevant dates. Therefore, although I acknowledge Mr Ibrahim’s difficulties, and accept that he takes medication for his psychiatric conditions, I find that he cannot be assigned an impairment rating from Table 6 of the Impairment Tables. I rate him at 0 impairment points for his psychiatric conditions.
Gout
The evidence before me indicates that Mr Ibrahim takes medication to control his gout for which he was referred in 2005, to Dr L Rozario, a rheumatologist. Dr Rozario referred to Mr Ibrahim having been diagnosed with inflammatory joint disease mainly affecting his lower limbs in Jordan, a year previously. In 2006 Dr Rozario reviewed Mr Ibrahim, and opined that he suffered inflammatory joint disease, most likely due to gout.
In his medical certificate of 28 October 2010, Dr Younathin reported that he was treating Mr Ibrahim’s conditions of asthma, gout and degenerative back disease with rest and pain killers.
I noted that the SSAT included gout in the cluster of conditions it considered pursuant Table 20 to come to the impairment rating of 15 points.
In the first Job Capacity Assessment Report before me which was dated 17 September 2010, the assessor held that Mr Ibrahim’s gout was fully diagnosed, treated and stabilised. The following report dated 1 December 2010 found similarly, and recommended a 0 impairment rating. The assessor preparing the report of 8 February 2011 held that the gout was fully diagnosed, but that it had settled with medication, and that the Applicant was experiencing episodic fluctuations. He considered that Mr Ibrahim would improve with further specialist review and dietary compliance. The assessor preparing the report of 5 July 2011 also found that further treatment for the gout was warranted.
My assessment of the gout, based on the evidence of Mr Ibrahim and the medical evidence, is discussed further in the paragraphs below where I have grouped several of his disorders for purposes of the impairment tables.
Asthma and nasal obstruction
The medical report of Dr S Srikantha, a respiratory registrar dated January 2010, stated:
... the lung function tests performed at our laboratory shows normal spirometry and lung volumes with gas transfer factor being normal. There is no change in spirometry post inhaled bronchodilators. Clinical examination was unremarkable with no evidence of wheeze on auscultation with good air entry bilaterally.
... it is possible that he could possibly have some symptoms of asthma although the lung function tests are not suggestive of any significant airflow obstruction.
Dr Younathin’s medical report of May 2010 stated that Mr Ibrahim suffers from various conditions, including asthma. He reported Mr Ibrahim has symptoms of shortness of breath, wheezy chest, chest discomfort and coughing, and was being treated with Seretide and Ventolin. In October 2010, Dr Younathin reported that Mr Ibrahim’s conditions, including severe asthma, was being treated with pain killers and rest.
In the report which accompanied Mr Ibrahim’s application for DSP, Dr Younathin stated that Mr Ibrahim also suffers from other conditions, including chronic nasal obstruction and loss of sense of smell which were not being treated.
The SSAT stated that it was impossible to differentiate the individual functional impact of the conditions of joint disease, nasal obstruction, asthma, gout, and back and neck pain, and decided to apply Table 20. The SSAT observed that Mr Ibrahim requires a moderate intake of analgesics to relieve his pain, that his self-care and independence are unaffected, but that his symptoms cause him to have some difficulty in undertaking routine daily activities. It assigned an impairment rating of 15 points from Table 20.
The Job Capacity Assessments stated as follows:
·17 September 2010 – respiratory disorder – considered temporary as the ribs fractured in a motor vehicle accident were healing.
·1 December 2010 – respiratory disorder including chronic nasal obstruction onset unknown) – considered to be fully diagnosed and permanent yet not fully treated and stabilised.
·8 February 2011 – asthma and chronic nasal obstruction – considered permanent.
·5 July 2011 – respiratory disorder – permanent
The Respondent on the other hand, considered that Table 21 was more appropriate because certain of Mr Ibrahim’s conditions such as gout and asthma are intermittent. I did not find from the evidence that the conditions were intermittent. I found that they were diagnosed, treated and stabilised and permanent, but did not cause Mr Ibrahim particular impairment.
I agreed that Table 20 was the more appropriate table under which to consider the impairment arising from pain associated with Mr Ibrahim’s conditions. In his medical certificate of 28 October 2010, Dr Younathin reported that he was treating Mr Ibrahim’s conditions of asthma, gout and degenerative back disease with rest and pain killers. I have dealt with the rating in the paragraphs below.
Back pain and neck pain
Mr Ibrahim gave evidence about his back and neck pain. He also gave evidence of having been involved in a motor vehicle accident which occurred in 2009, and in which he fractured three ribs. He mentioned that he tried to walk for half an hour a day as recommended to him, but that he could not always do it as a result of the pain. He told me that he takes medication for his back and neck pain. Mr Ibrahim said that he could not sit for long because of the pain, and said that he could only use the computer for 10 minutes at a time.
Dr Younathin provided a medical report dated 21 May 2010, detailing Mr Ibrahim’s conditions including joint disease, back disease and neck disease, and mentioning the prescription of anti-inflammatory and analgesic medication for him. Dr Younathin also provided a certificate dated 27 October 2010 in which he stated that that Mr Ibrahim’s conditions, including degenerative back disease, were being treated with rest and pain killers.
The Job Capacity Assessment Reports held as follows:
·17 September 2010 – spinal disorder – experiencing back pain for a few years; has not sought treatment or discussed with GP.
·1 December 2010 – spinal disorder – degenerative joint disease of back and neck onset 2006 - fully diagnosed not yet fully treated and stabilised – recommended 0 impairment rating.
·8 February 2011 – arthritis (fully diagnosed), musculo-skeletal disorder (little finger deformity, permanent), fractures and crush injuries as a result of the MVA in 2009, no treatment;
·5 July 2011 – musculo-skeletal disorder, pain, arthritis – held to be permanent, yet not fully diagnosed, treated and stabilised.
The SSAT considered Mr Ibrahim’s pain from his asthma, back pain, neck pain, nasal obstruction and gout by applying Table 20, and assigning a rating of 15 impairment points. I find that Table 20 is the appropriate table to apply to deal with the pain and any functional impairment arising out of Mr Ibrahim’s conditions of asthma, back pain, neck pain, nasal obstruction and gout.
A nil rating in Table 20 would mean Mr Ibrahim had only minor symptoms which are easily tolerated arising from those conditions. I do not think a nil rating applies. A rating of ten impairment points would arise if Mr Ibrahim’s conditions caused him mild to moderate symptoms which are irritating or unpleasant, may cause loss of efficiency in daily activities, but rarely prevent completion of any activity. I am satisfied on the basis of the medical evidence and Mr Ibrahim’s evidence that his conditions cause him more impairment than ten points.
The rating of fifteen impairment points arises when conditions cause moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible. … . I agree with the findings of the SSAT, and assign a rating of 15 impairment points to Mr Ibrahim for the above named conditions.
I note for the sake of completeness that Mr Ibrahim tendered the report of an MRI scan of the whole spine carried out on 26 May 2012 (Exhibit A1), which indicated the Applicant has certain problems in his spine. That investigation was carried out well outside the period in 2010 relevant to Mr Ibrahim’s claim, and the results cannot be considered in assessing his eligibility for the DSP for which he has applied.
Hypertension
In May 2010, Dr Younathin diagnosed hypertension and prescribed Avapro for Mr Ibrahim, stating that the hypertension caused headache. Mr Ibrahim also takes Lipitor.
The Job Capacity Assessment Reports held as follows:
·17 September 2010 – hypertension, circulatory system - diagnosed – permanent very limited functional impact.
·1 December 2010 - permanent – minimal functional impact – recommended 0 impairment rating.
·8 February 2011 – permanent.
·5 July 2011 – permanent – treatment since onset five years ago.
I am satisfied that hypertension should be assessed pursuant to Table 20 which includes assessment for various miscellaneous conditions. I am satisfied that the SSAT’s assessment of 0 points for Mr Ibrahim’s hypertension is correct, as the condition appears to be controlled by an appropriate dose of medication, and has been so since its onset at least five years ago. It does not cause Mr Ibrahim functional problems, and I find a 0 impairment rating is the appropriate one for the hypertension.
Little finger deformity
I am mindful that Dr Younathin opined that the condition is not treated, and that it affects Mr Ibrahim’s grip. The evidence did not indicate any demonstrable evidence of loss of function pursuant to Table 3. I noted it was also mentioned in a Job Capacity Assessment Report of 8 February 2011.
I am satisfied from the evidence, and agree with the SSAT and the Job Capacity Assessment Reports that there is no impairment rating pursuant to Table 3 to be assigned for the little finger deformity.
Section 94(1)(c): Whether Mr Ibrahim has a continuing inability to work for 15 hours or more per week
In summary, whilst Mr Ibrahim suffers various conditions, I find that he does not have an impairment rating of 20 points or more, and hence that he does not satisfy the tests in section 94(1)(b) of the Act.
Accordingly Mr Ibrahim is held to be able to work, and I do not have to consider whether he has a continuing inability to work for 15 hours or more a week. I am mindful that in the reports of the Job Capacity Assessments in the documents provided under sec 37 of the Administrative Appeals Tribunal Act 1975, various suggestions are made to accommodate Mr Ibrahim’s problems, and would be content to see those implemented to assist him.
DECISION
The Tribunal affirms the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ...............[sgd]...................................................................
Associate
Date of Hearing 13 June 2012
Date of Decision 5 July 2012
Applicant Self represented
Respondent’s Advocate Ms B Salaji, Department of Families, Housing, Community Services and Indigenous Affairs
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