Lattouf and Secretary, Department of Family and Community Services

[2004] AATA 961

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 961

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/534

GENERAL ADMINISTRATIVE DIVISION		)
Re		SALAM LATTOUF

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member

Date15 September 2004

PlaceSydney

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal that the Applicant does not qualify for a disability support pension at the date of her application, 7 July 2003.

[SGD] Ms R Hunt

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - qualification to receive – impairment - applicant had an impairment rating of 10 points at the date of application – less than minimum required of 20 points - chronic backache – further medical problems certified more than 13 weeks after date of application – insufficient detail with application – decision of the Respondent is affirmed

Social Security Act 1991 s 94(1)(a) & (b)

Social Security Administration Act 1991 s 4(1)

REASONS FOR DECISION

15 September 2004	Ms R Hunt, Senior Member
SUMMARY

1.      Mrs Lattouf, the Applicant, lodged an application for a disability support pension on 7 July 2003. With the application, Mrs Lattouf provided a medical certificate from her treating doctor. In the certificate, the only complaint which her doctor reported was chronic backache. At the request of Centrelink a medical adviser examined Mrs Lattouf for Health Services Australia (HSA) on 18 August 2003 and rated her impairment at 10 points. Her pension claim was then rejected and has been rejected at all stages of review including the decision of the Social Security Appeals Tribunal (“SSAT”) made on 7 April 2004. Mrs Lattouf appealed to the Administrative Appeals Tribunal (“the Tribunal”) and this Tribunal has affirmed the decision to refuse the claim for a disability support pension for the reasons set out below.

ISSUES

2.      The Tribunal must decide whether Mrs Lattouf had an impairment rating of at least 20 points at the date of her application, 7 July 2003. Alternatively, the Tribunal must decide whether Mrs Lattouf had an impairment rating of at least 20 points within 13 weeks of the date of her application, that is, from 7 July 2003 to 6 October 2003.

3.      Mrs Lattouf suffers from chronic backache and other complaints which have been diagnosed since she made her claim for a disability support pension. Apart from showing impairment Mrs Lattouf must demonstrate other matters which affect an entitlement to a disability support pension. However, the Tribunal has considered only Mrs Lattouf’s impairment rating as Mrs Lattouf has been refused the pension on the ground that she has not demonstrated the required impairment rating as at 7 July 2003 or from 7 July 2003 to 6 October 2003.

LEGISLATION

4. Section 94 of the Social Security Act 1991 (“the Act”) provides that a person qualifies for a disability support pension if he or she has a “physical, intellectual or psychiatric impairment” and meets certain other tests. The test which caused Mrs Lattouf’s rejection is set out in paragraph 94(1)(b), which provides that, if a person has an impairment rating of 20 points or more and has a continuing inability to work, he or she may qualify. The Respondent does not dispute that Mrs Lattouf suffers from impairments and satisfies the test in paragraph 94(1)(a). However, Mrs Lattouf must demonstrate that her impairment should have been rated as at least 20 points for paragraph 94(1)(b).

5.      Section 4(1) of the Social Security Administration Act 1991 provides that, where a person makes a claim for a social security payment and does not qualify on the day the claim is made, he or she may become qualified within the period of 13 weeks after the day on which the claim is made. This means that Mrs Lattouf might have demonstrated that she qualified during the assessment period ending on 6 October 2003.

EVIDENCE AND FINDINGS

6.      On 7 July 2003, Mrs Lattouf furnished to Centrelink a medical certificate from her treating medical practitioner, Dr Sidhom, dated 1 July 2003 which reported Mrs Lattouf’s “on & off backache” (T6 p25). The certificate gave the date of onset and date of diagnosis as 14 February 2004. The certificate mentioned no other impairment. Mrs Lattouf lodged her application for a disability support pension on 7 July 2003 on the strength of this certificate (T3 pp10-21). HSA then examined Mrs Lattouf and assessed her for chronic back pain finding 10 point impairment.  As her impairment was less than the minimum required 20 points, Mrs Lattouf was refused the pension.

7.      Mrs Lattouf then saw an orthopaedic surgeon, Dr Rosenberg, and several other medical practitioners about her health problems. Dr Rosenberg reported that she continued to suffer from significant back pain and from “subsequent bilateral knee pain” (T11 p45). This certificate was dated 28 October 2003, approximately 12 days after the expiry of the period within which Mrs Lattouf might have provided further medical reports in support of her claim.

8.      Dr Douaihy also saw Mrs Lattouf and listed medical conditions suffered by Mrs Lattouf as well as certifying that she was unfit for work from 10 December 2003 to 10 March 2004 (T7 p29). The certificate was undated and the Centrelink stamped receipt date is illegible but Mrs Lattouf signed the release part of the certificate on 7 January 2004, well after the date for determination of her impairment rate fro the claim made in July 2003.

9.      Mrs Lattouf requested a review in November 2003 and supplied another certificate from Dr Nada dated 20 November 2003 (T13 p46). This certificate referred to treatment for an additional problem. The review officer did not change the previous decision and wrote to Mrs Lattouf that a condition must be fully diagnosed, treated and stabilised before it can be assigned an impairment rating.

10.     Next, Dr Medhat Guirgis, orthopaedic surgeon, reported on 1 February 2004 that Mrs Lattouf suffered a 5 point impairment for loss of ¼ normal range of movement in the cervical spine and a 20 point impairment for loss of ¼ normal movement in the lumbar spine and mentioned other problems (T17 p65). Dr Makram Girgis on 4 February 2004 reported “spinal disorder” as a permanent condition,  severe depression and other problems (T18 p67 and T19 p68). A second review of Mrs Lattouf’s application took place and an authorised review officer again affirmed the refusal decision. Dr Douaihy again supplied a certificate and listed Mrs Lattouf’s problems on 1 April 2004 (T21 p71). Mrs Lattouf provided more reports for the SSAT review (Attachments B1). These latter reports assessed Mrs Lattouf’s then disabilities after examinations made in 2004 and described current treatments.

DISCUSSION

11. The Respondent accepts that Mrs Lattouf suffers disabilities and that she satisfies paragraph (1)(a) of section 94 of the Act. However, the Respondent contends that Mrs Lattouf has never established that she has a 20 point impairment and so does not satisfy paragraph (1)(b) of section 94 of the Act. Further, by reference to section 4(1) of the Social Security Administration Act 1991, the time for establishing her claim expired on 6 October 2003. Mrs Lattouf may now be suffering from a 20 point impairment at the date of the Tribunal’s review. Several recent medical certificates supplied by Mrs Lattouf, refer to additional complaints Mrs Lattouf began to suffer at the end of 2003 or in 2004 some months after she made her claim.

12.     Mrs Lattouf has argued that Dr Medhat Guirgis did certify that she suffered from 20 point impairment on 1 February 2004. However, not only was this certificate too late for the July 2003 claim but it wrongly applied the impairment tables.  Dr Guirgis describes a loss of one quarter range of movement in the cervical spine and in the lumbar spine. He assigns 5 points for the loss of cervical spine function and 20 points for the loss of lumbar spine function. The impairment table provides that loss of one quarter range of movement in the spine together with back pain or referred pain is rated at 10 points. The table explains that “it is not intended to measure mobility of individual spine segments”. Therefore, Dr Guirgis’s certificate establishes only 10 point impairment.

13.     The various other certificates tendered by Mrs Lattouf describe her ailments and continuing treatment. Dr Mahoney’s certificate of 7 July 2004 (Attachment F) refers to percentages of impairment to Mrs Lattouf’s neck, upper right limb, back and knee but does not relate this to the impairment tables. Also, his certificate is given approximately one year after the application for disability support pension and too late for consideration of the claim made on 7 July 2003. Dr Guirgis on 8 February 2004 says in a further certificate that he understands that an orthopaedic surgeon has estimated Mrs Lattouf’s damage at 25 points. This appears to be an allusion to Dr Guirgis’s faulty certificate.

14.     None of the certificates supplied by Mrs Lattouf establishes that she suffered from 20 point impairment as at 7 July 2003 or within the time ending on 6 October 2004. It follows that Mrs Lattouf has not shown any entitlement to a disability support pension at the date claimed although it may be that she would qualify if she were to apply again now.

DECISION

15.     The Tribunal affirms the decision of the Social Security Appeals Tribunal that the Applicant does not qualify for a disability support pension at the date of her application, 7 July 2003.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member.

Signed:         ………………………………………...

Dates of Hearing25 August 2004

Date of Decision  15 September 2004

Representative for the Applicant        Self Represented
Solicitor for the Respondent               Ms Cheryl Collis, Centrelink