Markus and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 306

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 306

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2535

GENERAL ADMINISTRATIVE DIVISION		)
Re		Amir MARKUS

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Dr I S Alexander

Date10 May 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

.....................[SGD].......................

  

Dr I S Alexander

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – impairment tables – documented disease – diagnosed disease – treated disease – investigated disease – stabilised disease – insufficient evidence during qualification period – unable to assign impairment rating – decision under review affirmed.

Social Security Act 1991 (Cth) s 94, Schedule 1B.

Social Security (Administration) Act 1999 (Cth) cl 3 and cl 4 of Schedule 2.

REASONS FOR DECISION

10 May 2011 Dr I S Alexander   

1.      In this application Mr Markus seeks review of the Social Security Appeals Tribunal’s (SSAT) decision of 28 May 2010 affirming an earlier decision by Centrelink to reject his claim for Disability Support Pension (DSP) which had been lodged on 21 December 2009.

2.      At the hearing on 15 April 2011 Mr Markus was not represented but did give oral evidence and was assisted by an Arabic interpreter.

ISSUES

3.      Mr Markus claims that he suffers from several medical conditions that cause him sufficient impairment to qualify for DSP.

4.      The conditions, as listed by Dr Menashi in a medical report dated 17 December 2009, included chronic lower back pain, right shoulder pain (subacromial bursitis), multi-nodular thyroid goitre, nodules in the lung (bronchiectasis), peptic ulcer with Helicobacter pylori (H. pylori) infection, depression, anxiety and dizzy spells.

5. Section 94 of the Social Security Act 1991 (the Social Security Act) sets out the criteria for qualification for DSP.

6. Relevantly s 94(1) states interalia that:

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

…

7. There is no dispute that Mr Markus satisfies s 94(1)(a).

8. Therefore the issue before the Tribunal is whether the impairment suffered by Mr Markus as a result of his various medical conditions satisfies s 94(1)(b) and if so whether he has a continuing inability to work as per s 94(1)(c).

9. Clause 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Social Security Administration Act) provides that the assessment for DSP must occur within a period of 13 weeks after the day on which the claim is made (the qualification period) which in this case is between 21 December 2009 and 22 March 2010.

10. The introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) at Schedule 1B of the Social Security Act states that the tables consist of “system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance” and that for a rating to be assigned to the medical condition it must be considered to be permanent, that is, “the condition must be a fully documented, diagnosed condition, which has been investigated, treated and stabilised”.

MR MARKUS’ MEDICAL CONDITIONS

Lower Back Condition

11.     The respondent concedes that Mr Markus suffers from chronic lower back pain but contends that the correct impairment rating is 10 points.

12.     The medical evidence before the Tribunal provides no useful assessment of the loss of functional capacity in respect of Mr Markus’ chronic lower back pain.

13.     The report of Dr Conrad dated 28 November 2008 is unhelpful as he provides no explanation as to how he reached his conclusion in respect of permanent impairment.

14.     On 27 January 2010 a Functional Capacity Evaluation (FCE) was performed by an accredited exercise physiologist. This evaluation was directed at Mr Markus’ lower back pain and right shoulder pain.

15.      On the issue of an impairment rating the physiologist concluded that “on the basis that the results of the FCE are inconsistent and inaccurate, it is not appropriate to assign these conditions impairment ratings under system specific tables. Table 20 is therefore utilised, and an impairment rating of ten is assigned”.

16.     Mr Markus’ evidence in respect of his symptoms with regard to his lower back was also unhelpful as I found it to be somewhat confused and unconvincing.

17.     I am satisfied on the evidence before me that an impairment rating of 10 points with regard to the lower back condition is appropriate.

Right Shoulder Condition

18.     In respect of his right shoulder condition Mr Markus’ evidence was again unconvincing. He complained of symptoms and impairments which did not appear to be consistent with the purported diagnosis of subacromial bursitis.

19.     On 10 November 2006 an ultrasound of the right shoulder was reported as showing features consistent with subacromial bursitis but was otherwise normal and showed no particular abnormality during dynamic assessment.

20.     Apart from a single ultrasound guided injection of corticosteroid into the subacromial bursa on 14 December 2006 and some occasional physiotherapy there is no clear evidence of ongoing medical assessment or treatment.

21.     Mr Markus’ current general practitioner, Dr Abdulrahim, in a report dated 14 December 2010 stated that Mr Markus has pain and restriction of movement of the right shoulder and will require referral to an “orthopaedic specialist for further assessment and management”.

22.     In my view the evidence before me points to a conclusion that during the qualification period Mr Markus’ right shoulder condition was not fully diagnosed treated and stabilised.

23.     It follows that an impairment rating could not have been assigned.

Thyroid Condition

24.     The report of a thyroid ultrasound performed on 3 July 2009 noted that Mr Markus suffered from a “multinodular goitre with deviation and retrosternal extension”.

25.     In August 2010 Mr Markus had a total thyroidectomy and is now on thyroid hormone replacement therapy.

26.     Clearly an impairment rating could not have been assigned during the qualification period.

27.     Furthermore following his definitive treatment the impairment rating would have been nil.

Lung Condition

28.     A CT scan of the neck and chest performed on 13 July 2009 showed “a cluster of calcified nodules” and “bronchiectasis” in the left lower lung.

29.     On 16 February 2010 Dr Abdulrahim referred Mr Markus to Liverpool Hospital for specialist assessment. 

30.     In her report of 14 December 2010 Dr Abdulrahim noted that Mr Markus was seen on one occasion at Liverpool Hospital in the Department of Respiratory Medicine and was advised to stop smoking.

31.     There is no other information with regard to nature of Mr Markus’ lung condition.

32.     In his oral evidence Mr Markus indicated he was to be reassessed after his thyroidectomy but had some difficulty in getting another appointment. He now has an appointment in May 2011.

33.     Clearly Mr Markus’ lung condition was not fully diagnosed, treated and stabilised during the qualification period and therefore an impairment rating could not be assigned.

Peptic Ulcer

34.     Following a gastroscopy on 14 August 2009, Dr Simring, Consultant Gastroenterologist, diagnosed “H. pylori; duodenal ulcer; gastritis/duodenitis” and prescribed relevant medication.

35.     The result of a C14-Urea breath test performed on 19 April 2010 was reported as being consistent with the presence of H. pylori in the stomach.

36.     In her report of 14 December 2010 Dr Abdulrahim noted that following further treatment with triple therapy antibiotics a subsequent breath test showed that the H. pylori infection had been cleared.  She also noted that Mr Markus now requires only intermittent treatment with Nexium tablets and has no impairment from his stomach condition.

37.     Clearly it was not appropriate to assign impairment rating for this condition during the qualification period.

Depression and Anxiety

38.     It is not clear from the material before me when depression and anxiety was actually diagnosed.

39.     In her letter of 14 December 2010 Dr Abdulrahim states that the conditions were diagnosed in 2008 but there is no evidence of any regular treatment until about May 2010 when Mr Markus commenced regular counselling with a psychologist.

40.      In his oral evidence Mr Markus stated that during 2010 Dr Abdulrahim started him on antidepressant medication and indicated that there had been some improvement in his symptoms.

41.      The evidence before me clearly indicates that Mr Markus’ depression and anxiety were not fully diagnosed, treated and stabilised during the qualification period and therefore an impairment rating could not be assigned.

“Dizzy Spells”

42.     There is insufficient evidence before me to make any determination in respect of Mr Markus’ claim of frequent “dizzy spells”.

DECISION

43. For the reasons set out above, I am satisfied that during the qualification period Mr Markus’ impairment rating was 10 points which means that s 94(1)(b) of the Social Security Act was not satisfied and Mr Markus was not eligible for DSP.

44.     The decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I S Alexander

Signed:         ...............[SGD]............................................................
  Associate

Date/s of Hearing  15 April 2011
Date of Decision  10 May 2011
Applicant  Self-represented
Solicitor for the Respondent     Glenda Heggen, Centrelink Advocacy Branch