MOHAMMAD SAID and SECRETARY, DEPARTMENT OF HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 727

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 727

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3492

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMMAD SAID

Applicant

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

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date24 September 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY- disability support pension- impairment tables- permanent blindness-other considerations- whether fully diagnosed, treated and stabilised- decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 – section 37

Social Security Act1991 – section 94, Schedule 1B

Social Security Administrative Act 1991- Schedule 2

REASONS FOR DECISION

24 September 2010 Ms N Isenberg, Senior Member

BACKGROUND

1.      Mr Said was born in Afghanistan in February 1956, and is aged 54.  He arrived in Australia on 30 October 2006, as the holder of a subclass 309 (Temporary) Provisional Spouse Visa.  He was granted a subclass 100 Permanent Visa on 5 January 2009.

2.      Mr Said lodged a claim for disability support pension (DSP) with Centrelink on 23 January 2009, but it was rejected on the basis that he was not residentially qualified.   

3. The decision to reject his claim was reviewed and affirmed by an Authorised Review Officer (ARO), but was made on a different basis, namely that Mr Said had permanent conditions of low back pain and blindness in the right eye, but that the ratings for these conditions did not total 20 points as required by section 94(1)(b) of the Social Security Act 1991 (the Act). Having come to that view, the ARO did not consider the issue of residential qualification. Mr Said sought review by the Social Security Appeals Tribunal (SSAT). That Tribunal found that Mr Said did not qualify for DSP, again because he failed to meet the requirements of section 94(1)(b) of the Act. The Tribunal expressed the view that Mr Said may have met the residential requirements, although it was not necessary for that Tribunal to decide that issue.

4.      Mr Said now seeks review by this Tribunal.

LEGISLATIVE SCHEME

5.Section 94 of the Act provides as follows:

94       Qualification for disability support pension

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;

(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

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)      is not an Australian resident; and

(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

…

94(2)    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years;

and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training-such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(3)    In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person-the availability to the person of work in the person's locally accessible labour market.

94(5)"work" means work:

(a)that is for at least 15 hours per week at award wages or above; and

(b)that exists in Australia even if not within the person's locally accessible labour market.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

6. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (the SSA Act) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, it is relevant to consider if Mr Said was entitled to DSP by 30 April 2009.

ISSUE BEFORE THE TRIBUNAL

7.      The issues to be determined in relation to this matter are:

(a)By 30 April 2009, did Mr Said have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables contained in Schedule 1B of the Act; and, if so;

(b)Did he have a continuing inability to work as a result of the impairment?

CONSIDERATION OF THE EVIDENCE AND FINDINGS

8.      In his application for DSP lodged on 23 January 2009, Mr Said listed his disabilities, illnesses or injuries as “Blind, depression get angry real quickly after his nose operation.”

9.      In support of the application, Dr E Gordon, Mr Said‘s treating general practitioner (GP), provided a Treating Doctor’s Report (TDR) dated 23 January 2009.  There he stated that Mr Said had ‘sudden onset blindness’ in the right eye and that he was diagnosed with this condition on 17 December 2008. 

Did Mr Said, by 30 April 2009, have a physical, intellectual or psychiatric impairment of 20 points or more?

10. Pursuant to section 94(1)(b) of the Act, a DSP claimant’s functional impairment point rating must be determined under the Impairment Tables, which are set out in Schedule 1B of the Act. The ‘Introduction’ to the Impairment Tables specifies that an impairment rating can only be assigned to medical conditions which have been ‘fully diagnosed, treated and stabilised.’  As discussed below, only Mr Said‘s back and eye condition are considered to be fully diagnosed, treated and stabilised.

Back condition

11.     Mr Said mentioned he had slipped on ice while he was in Russia at the end of 2006.  He said that after the fall he underwent two weeks, or three months, of physiotherapy in a Russian hospital (he gave both accounts in his evidence before the Tribunal). 

12.     He experiences pain in the back and left leg.  He said he is unable to stand for more than five minutes and also cannot walk for more than five minutes before experiencing sharp pains that force him to stop and rest.  He does not experience pain when sitting and mentioned that he has fallen down in the street.  He fills in his day by watching television and going to medical appointments.  He walks with his wife around the block or around a nearby park for about five minutes each day.  Prior to losing his sight in December 2008, he could drive, but only to the shops, which would take about 10 minutes.  He has had physiotherapy and an injection but nothing has worked. 

13.     When a CT scan of his back was conducted on 18 January 2008, it found that there was some developmental narrowing of the AP diameter at L3/L4, and at L4/L5 there was left paracentral disc protrusion and a minor disc bulge at L5/S1.

14.     Dr C Castle, orthopaedic surgeon, in a report dated 21 May 2008, recorded that massage therapy had not assisted Mr Said, nor had a nerve root injection.  The pain is predominantly on the left, worse on prolonged standing and prolonged walking.  On examination, however, she found no tenderness, no pain on movement, no signs of nerve root tension, and Mr Said‘s reflexes and sensation were normal.  She considered that his S1 radicular pain was not adequately explained.

15.     In the medical report lodged with Mr Said’s DSP claim, dated 23 January 2009, Dr Gordon observed that no treatment was planned, and Mr Said was to continue taking medication, although this was not specified.  Dr Gordon considered the condition would persist for more than 24 months and would remain unchanged.  On 1 June 2009, Dr Gordon wrote that Mr Said‘s chronic back pain, with left sciatica, had been treated with steroid injections which had failed, and that no further treatment had been sought because of more pressing health issues.  I accept that Mr Said’s back condition is a permanent one.

16.     On 13 March 2009, Mr Said was interviewed by Dr Ali Sahebi, clinical psychologist.  Dr Sahebi reported that Mr Said was suffering from constant pain in his left leg.  Mr Said reported that he had no problems with his low back, due to treatment and physiotherapy.  Mr Said told Dr Sahebi that he was not able to stand up for a long time, but could walk and move around.  He was said to be walking every day as exercise to help reduce his pain.

17.     Mr Said told the SSAT that the pain in his lower back radiates down the outside of his left leg.  Any activity causes pain, including walking and standing.  His previous treatments included physiotherapy, creams and cortisone injections, but at the time of the SSAT hearing, he was having no treatment except for taking paracetamol occasionally for the pain.  Mr Said told the SSAT that the pain causes him to stop what he is doing and rest and the pain becomes worse when he stands for about three minutes, when he is carrying weights and when he bends or walks for about 20 to 30 minutes.  This of course contrasts with his evidence before me.

18.     When a Job Capacity Assessment (JCA) report was undertaken on 5 February 2009, the assessor, Ms Sardjono, considered Mr Said‘s back condition to be fully diagnosed, treated and stabilised.  The assessor rated Mr Said’s condition at 20 impairment points under Table 5.2 in respect of spinal function.  Assessment under Table 5.2, however, turns on having evidence as to the person’s loss of range of movement.  In this matter, there was no medical evidence at all about loss of range of movement, and I do not accept the assessor’s rating for this reason.

19.     Relevantly though, paragraph 8 of the Introduction to the Guide notes contained in the Impairment Tables, provide:

“In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.  For example, Table 5 should be used for spinal pathology.  However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.  Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment.  Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.”

20.     On that basis, I have decided that it is appropriate to apply Table 20, which provides:

Table 20       MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN.

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of Junction, by the use of more than one Table, must be avoided.

Rating            Criteria

…

TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEENModerate 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. Full­time work would still be possible.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work-related tasks.  Symptoms may cause prolonged absences from work.”

21.     I consider that, on his own evidence, Mr Said’s condition appropriately fits the descriptor for 10 impairment points under Table 20.  His condition did not, at the relevant time, prevent him undertaking personal self-care; he was able to travel to and from TAFE; he was able to attend TAFE classes three days per week.  Further, he walks every day for exercise to reduce his pain. 

Eye condition

22.     Mr Said gave evidence that he underwent a sinus operation on 17 December 2008.  He had been previously scheduled for the operation but it was cancelled due to another patient’s emergency.  He was re-scheduled, he said, at short notice, and did not have preliminary tests for hypertension and other relevant conditions.  He awoke from the operation feeling drowsy and his vision was blurred.  He was sent home and slept.  Upon awaking the next day, he found he could not see out of his right eye at all.  He was returned to the hospital by ambulance.  Urgent tests were undertaken and he was told, at that time, that he was permanently blind in the right eye and nothing could be done. 

23.     Dr A Forrest, Ear, Nose, and Throat (ENT) surgeon, in a report to Mr Said’s GP dated 24 December 2008, wrote that Mr Said had suffered a major complication of retinal artery thrombosis following Functional Endoscopic Sinus surgery.  He observed that the problem may have been related to hypertension, high cholesterol or high blood sugar.  Dr Forrest wrote that, at the date of review, one week after the surgery, there had been no improvement.  In another letter dated 24 February 2009, Dr Forrest wrote that the loss of vision was not specifically caused by the surgery.  He also wrote that the loss of vision severely handicapped Mr Said with any form of manual work.

24.     On 29 December 2008,, the ENT Registrar of Royal North Shore Hospital, wrote to Centrelink advising that Mr Said would require ongoing review by ophthalmologists to assess his recovery.

25.     In his medical report of 23 January 2009, Dr Gordon wrote that the condition would remain unchanged.

26.     Dr M Kuzniarz of the Sebban Eye Centre wrote to Dr Gordon on 8 April 2009.  In this correspondence he wrote that Mr Said was complaining of intermittent pain in the right eye, with itchiness, for which drops were prescribed. 

27.     Ms Sardjono, the Job Capacity Assessor, reported on 5 February 2009 that she considered the condition to be permanent condition, with no treatment available. 

28.     Table 14 of the Impairment Tables included in Schedule 1B of the Act provides as follows:

“Table 14.          MISCELLANEOUS EYE CONDITIONS

Visual Disturbance   Rating

Loss of stereoscopic vision in absence of squint

Permanent (eg blind in one eye)   5  ”

29.     There was no evidence that the condition is likely to improve.  The relevant rating is five impairment points.

Emotional disturbance: is it permanent?

30.     As discussed in paragraph 9 above, an impairment rating can be only assigned to medical conditions which have been fully diagnosed, treated and stabilised.  It is necessary therefore to consider if it is appropriate to rate Mr Said’s emotional condition.  

31.     As mentioned earlier, in his DSP claim lodged 23 January 2009, Mr Said listed this disability as: "Blind, Depression get angry real quickly after his nose operation".

32.     As early as 24 December 2008, Dr A Forrest reported that Mr Said was ‘understandably very angry and confused’ and blamed the surgery for his loss of vision.  Mr Said told me that he was shocked to discover that he had become blind following the operation, and was further shocked to learn that the condition was permanent.  He was getting distressed and was irritated with his family.  He asked his GP, Dr Gordon, to refer him to a counselor.  He was sent to Dr Sahebi, who, as mentioned in paragraph 15 above, first interviewed Mr Said on 13 March 2009 and provided a report dated 18 May 2009.  There he wrote that Mr Said had been referred for assessment and counseling.  He had reported constant headaches, sleep problems, dizziness and lack of concentration.  Dr Sahebi assessed Mr Said using the mood, anxiety and adjustment disorder modules for Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), and considered the findings indicated depressed mood and symptoms of Post Traumatic Stress Disorder (PTSD).  His mental examination showed minimal facial and body movements with flat affect; he was co-operative; his thought process was normal; and he showed a lack of interest in socialisation and recreational activities.  He found Mr Said to be sad, disappointed, depressed, scared and anxious about the future.  The plan for treatment of Mr Said was cognitive behavior therapy (CBT) including stress reduction, muscle relaxation and attention control techniques.  He wrote that he intended to work with Mr Said to help him adjust to his new condition and to be positive.

33.     Dr Sahibi’s later report of 25 March 2010, records Mr Said’s condition as having deteriorated: ’He is very agitated, upset, passive aggressive and tense’.  He was said to be ‘desperately' looking for ways to improve his lifestyle and be able to help his family financially and emotionally.  He was also said to perceive himself as a problem for himself and his family.  This is consistent with Mr Said’s evidence and the evidence of his wife.  He was said to be depressed because of the effect his blindness had on his mobility.  He is worried about the sight in his other eye and is anxious about the future.  In his final report, dated 25 August 2010, Dr Sahibi wrote in similar terms.  He observed that he had commenced CBT therapy with Mr Said.

34.     Mr Said stated that he had had four or five appointments for CBT in 2009 and about the same this year.  This consists of counseling, instruction as to exercise and relaxation.

35.     Mr Said has recently been prescribed an anti-depressant.  He has also recently been referred to a psychiatrist, who he is scheduled to see for an initial consultation on 23 September 2010.  

36.     Centrelink referred Mr Said to Dr K Walker, consultant psychiatrist, who provided a report dated 6 May 2010.  He found Mr Said to be depressed and angry and also assessed him to have problems with concentration, lack of interest, lack of self-esteem and lack of sleep.  Dr Walker considered Mr Said to have an adjustment disorder with mixed mood, which began after the loss of his vision, but did not consider the condition was likely to persist for more than two years.  He observed that Mr Said is receiving counseling but no other treatment, although anti-depressants would be likely to lead to an improvement in Mr Said's condition.  Dr Walker considered Mr Said to currently have an impairment rating of 10 points under Table 6 of the Impairment Tables in the Act, for adjustment disorder, with mixed anxiety and depressed mood, but was unable to assess his condition as at the qualification period.  

37.     Mr Said was critical of the report of Dr Walker.  Mr Said stated that Dr Walker provoked him and he lost his temper.  He said he asked him embarrassing and inappropriate questions.

38.     Paragraphs 4, 5 and 6 of the Introduction to the Impairment Tables, explain the extent to which adequacy of treatment and the stability of a claimant’s condition are particularly relevant considerations in the application of the Impairment Tables.  It must be reiterated that, according to paragraphs 4 and 6 of the Introduction, for an impairment rating to be assigned, “the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.”  Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”, as stated in paragraph 6.

39.     Paragraph 5 of the Introduction also requires that the claimant’s condition must be “permanent”, in the sense of being more likely than not to persist for the foreseeable future, before it can be assigned a rating.  However, in accordance with paragraph 4 and 6, a diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned.  A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years, as provided by paragraph 5.  A consequence of this stability requirement is that a diagnosed condition may be permanent, in the sense that it is “more likely than not that it will persist”, and yet not be “stabilised”.  This will be the case where the impairment related to the condition may be such that significant functional improvement within two years is not regarded as unlikely.

40.     Dr Gordon's medical report on 23 January 2009, lodged with Mr Said's claim for DSP, did not mention depression as a condition.  Mr Said told the JCA assessor on 5 February 2009 that he had been depressed since his sinus operation, but was not interested in counseling.  There was little evidence about the condition at the time of the qualification period.  Mr Said saw a psychologist for the first time on 13 March 2009, and a treatment plan for Mr Said was developed using CBT for mood management, stress management, changing his attitudes and accepting the reality of his blindness.  That CBT has still not concluded.  He has only recently been referred to a psychiatrist but has not yet had a consultation; consequently his condition has not been diagnosed by a psychiatrist.  At the relevant date, he had not commenced taking any anti-depressant medication which, in the opinion of Dr Walker, consultant psychiatrist, would be likely to lead to an improvement.  It is only in the last couple of weeks he has commenced medication.  I find that Mr Said's adjustment disorder (“depression”) cannot be assigned an impairment rating because it was not fully diagnosed, treated and stabilised at the time of the qualification period. 

Other conditions: are they permanent?

41.     Dental: Dr R Janusic, dental surgeon, provided a report dated 2 June 2009.  There he wrote that Mr Said required several fillings, root canal treatment and a denture plate.  Treatment had commenced.  His dental condition is not a permanent one.  While his dental conditions may be diagnosed, there is no evidence that they have been treated and stabilised.

42.     Headaches: Mr Said gave evidence that from the time he became blind there has been a pain in his forehead that feels like the skin is being stretched.  He said he thought they were to do with his depression and when he gets angry.  His headaches reduce the time he can spend learning English at TAFE.  He was taking paracetamol for the headaches.  When Mr Said first consulted Dr Sahebi in March 2009 he reported constant headaches.  Dr Walker wrote that he took a history of headaches from Mr Said but noted that Mr Said could not quantify those headaches.  There was minimal medical evidence about Mr Said’s headaches.  It was unclear if they are associated with his psychiatric condition, or are related to his nose, eye, or dental problems, or are unrelated to any of those conditions.  At this stage, it cannot be said that his headaches have been fully diagnosed, treated and stabilised.   Mr Said’s headaches cannot, at this stage, be rated.

43.     Dizziness, sleep problems, lack of concentration: Mr Said also reported to Dr Sahibi that he had sleep problems, dizziness and lack of concentration.  No other medical evidence was available.  These conditions cannot, at this stage, be rated because they have not been fully diagnosed, treated and stabilised.

Combined impairment

44.     Taken together Mr Said’s combined impairment rating does not exceed 20 impairment points.  

45.     It is therefore unnecessary for me to consider the remaining questions of whether Mr Said had a continuing inability to work because of his impairment. 

Other observations

46.     Mr Said, of course, is not precluded from making another claim for DSP. He also may consider it appropriate to obtain further opthalmic advice as to causation of his blindness, rather than merely accept that of doctors associated with the hospital where the operation, which immediatley preceded the blindness, was conducted. 

DECISION

47.     The decision under review is affirmed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: .....................................................................................
           Associate:  B. Dhanasar

Date of Hearing  1 September 2010
Date of Decision  24 September
Representative for the Applicant                  Mr M Said (Self)   
Solicitor for the Respondent   Ms G Heggen