Nabeel Arkawazi and Secretary, Department of Social Services
[2015] AATA 358
•25 May 2015
[2015] AATA 358
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/5455
Re
Nabeel Arkawazi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S Webb, Member Date 25 May 2015 Place Canberra (by telephone) The decision under review is affirmed.
.................[sgd]..................................................
Mr S Webb, Member
CATCHWORDS
SOCIAL SECURITY – pensions – Disability Support Pension – impairment rating – whether conditions are permanent – requirement for 20 impairment points not met – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S Webb, Member
25 May 2015
Nabeel Arkawazi suffers from a number of ailments. He claimed Disability Support Pension (DSP). His claim was rejected by primary determination, on internal review and on review by the Social Security Appeals Tribunal (SSAT). Mr Arkawazi does not agree with these decisions and he applied to this Tribunal for review.
At the hearing, Mr Arkawazi represented himself. He does not speak much English. I was assisted by an interpreter in the Arabic language. He and his wife gave oral evidence.
The short facts are as follows:
(a)on 21 September 2013 Mr Arkawazi lodged a claim for DSP (T15);
(b)in the claim, Mr Arkawazi referred to having back, breathing, nerve and upper limb conditions (T15 folio 135);
(c)on 14 October 2013, Mr Arkawazi attended a Job Capacity Assessment conducted by an occupational therapist (T17);
(d)on 18 October 2013, Centrelink determined to reject Mr Arkawazi’s DSP claim (T18);
(e)on 23 July 2014, an Authorised Review Officer decided to affirm the decision rejecting his claim for DSP (T21);
(f)on 2 October 2014 the SSAT affirmed this decision (T2).
ISSUE
The issue to be decided is whether Mr Arkawazi’s claim for DSP should be granted.
It is important to note that in order to qualify for DSP Mr Arkawazi must meet the qualification requirements of s 94 of the Social Security Act 1991 (the Act) within the period of 13 weeks from the day after he lodged his claim. As his claim was lodged on 21 September 2013, it follows that for DSP to be payable to him, he must meet the qualification requirements before 21 December 2013. It is this period from 21 September to 21 December 2013 (the relevant period) that I must consider when reviewing the merits of his claim.
Mr Arkawazi says that he lodged an earlier claim for DSP and that it is unfair to limit the period in which his claim can be assessed. Under the Act, each claim is to be assessed on its merits. The Act does not permit payment of DSP to a claimant who does not qualify within the specified period of 13 weeks. The Tribunal does not exercise unfettered power and there is no discretion permitting it to consider Mr Arkawazi’s case generally. The Tribunal must confine itself to matters that are properly before it when applying the legislation and the law. I accept that Mr Arkawazi finds these processes frustrating. But I cannot do what he asks. In this instance, the decision rejecting the DSP claim Mr Arkawazi made on 21 September 2013 is properly before the Tribunal for review. The Tribunal has no jurisdiction to consider the merits of earlier or later claims he may have made.
There is a good deal of evidence concerning Mr Arkawazi’s medical conditions and his functional impairments outside the relevant period from 21 September 2013 to 21 December 2013. I will have regard to this evidence insofar as it is relevant to the assessment I must make.
IMPAIRMENTS
There is no dispute that Mr Arkawazi suffers from a number of impairments for the purposes of s 94(1)(a) of the Act. The precise nature and extent of his impairments is less clear.
I am reasonably satisfied that, during the relevant period, Mr Arkawazi had the following conditions:
(a)lower back pain radiating into the right leg – described on 27 August 2012 as fibromyalgia by Dr Rozario, a consultant rheumatologist (T5 folio 97);
(b)an Adjustment Disorder with depressed mood – diagnosed on 15 September 2012 by Dr Allam, treating psychiatrist (T6 folio 98);
(c)asthma – noted on 5 November 2012 by Dr Bahram, treating general practitioner (T8 folio 109); and
(d)right arm discomfort – noted on 5 November 2012 by Dr Bahram (T8 folio 109).
Mr Arkawazi’s evidence that each of these conditions persisted through the relevant period is supported by contemporaneous medical reports.
It follows that s 94(1)(a) is satisfied.
Mr Arkawazi gave evidence that he has suffered from intense occasional headaches following a motor vehicle accident in Iraq. This condition was reported on 4 January 2012 to Ms Brzezawski, a registered psychologist, in the course of a Job Capacity Assessment, who noted “Migraine” “Client described headaches following accident. He is awaiting further investigations” (T4 folio 94). It was also referred to by Ms Bostock, a forensic psychologist, in a report dated 12 June 2014 (T20 folio 175). I have found no contemporaneous medical evidence supporting the presence of the headache condition during the relevant period. It is possible that the condition was present, as Mr Arkawazi asserts, but this is not established by reliable evidence. I can go no further on this point.
I note in passing that even if I accepted that the headache condition was present during the relevant period, I am not able to conclude that it was ‘permanent’ at that time – there is simply no evidence before me concerning the diagnosis, treatment or stabilisation of this condition.
IMPAIRMENT RATINGS
Mr Arkawazi asserts that his impairments warrant a rating of 20 or more Impairment Points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Unfortunately for him, I cannot make that finding on the evidence.
I must apply the Impairment Tables according to the rules set out in Part 2 unless a rule is not consistent with the purposes of the Act. While there are difficulties applying some of the rules, as will appear, I am not persuaded that difficulties with the particular rules of present relevance give rise to inconsistency with the purposes of the Act.
A rating may only be assigned under the applicable Table where a ‘condition’ that is ‘permanent’ causes an ‘impairment’ that is likely to persist for more than two years.
For a condition to be ‘permanent’, it must be fully diagnosed, treated and stabilised and be more likely than not to persist for more than two years as set out in cl 6(4).
Low Back Pain/Fibromyalgia condition
The Secretary accepts, correctly, that this condition is permanent for the purposes of the Impairment Tables and the Act.
It does not follow, however, that an impairment rating can be assigned. First, it is necessary to establish that the impairment or impairments caused by this condition are likely to persist for at least two years.
Even though Mr Arkawazi’s low back condition is permanent and of long standing, the evidence of Dr Rozario is that:
He should be encouraged to increase his physical fitness and increase his activities. When he is next entitled could you please refer him for some hydrotherapy and an exercise and fitness programme. (T5 folio 97)
This evidence predates the relevant period by more than one year, but it strongly suggests that functional impairment may be reduced with further physical treatment and improved fitness. It is supported by the evidence of Dr Bahram on 5 November 2012 in respect of Mr Arkawazi’s low back condition – “Will refer to physiotherapy and hydrotherapy when needed” (T8 folio 104).
Mr Arkawazi informed me that he did not undertake any such treatment before the relevant period and that he does not believe that treatment of this kind is suitable for his condition. That may be so, but Mr Arkawazi’s opinion lacks medical support during or proximate to the relevant period. He asserted that he had undertaken seven or eight physiotherapy and Chinese massage sessions recently, but obtained no benefit. There is no objective evidence to support this assertion.
It appears to me that Mr Arkawazi has relied upon pharmacological treatment – Celebrex – to manage his low back pain symptoms. As he did not explore the treatment recommended by Dr Rozario, hydrotherapy and a fitness program, the question whether such treatment might reasonably be expected to reduce the extent of his impairment lies open. It can be inferred on the present evidence that Dr Rozario and Dr Bahram considered further treatment of this kind to be reasonable and likely to reduce the level of Mr Arkawazi’s functional impairment.
For this reason I am not able to find that impairments caused by Mr Arkawazi’s low back condition are likely to persist for at least two years.
This means that the impairments cannot be assigned an impairment rating.
Adjustment Disorder with Depressed Mood
The evidence of Dr Allam, Dr Bahram, Ms Bostock and Dr Philips, treating psychiatrist, is that Mr Arkawazi’s Adjustment Disorder condition may benefit from further interventions and treatment.
On 15 September 2012 and 11 January 2013, Dr Allam recommended that Mr Arkawazi:
-Not stay at home long to avoid ruminating on bad things
- To try to find part time job (T6 folio 98 and T10 folio 118)
On 5 November 2012, Dr Bahram reported “Need psychological counselling and anger management” (T8 folio 107). I note that on 7 October 2013, Dr Bahram reported that she was not able to make an assessment of Mr Arkawazi’s then psychological condition as “Patient is back from an 8 month holiday just recently” (T16 folio 156).
On 12 June 2014, Ms Bostock recommended that “Mr Arkawazi undergo psychological therapy” (T20 folio 178).
On 27 February 2015, Dr Philips reported that Mr Arkawazi “will also need CBT/supportive psychotherapy” (ST4 folio 272).
Mr Arkawazi told me that he does not consider talking to be suitable treatment for his psychiatric disorder. The present evidence does not establish that he has undertaken psychological counselling, cognitive behaviour therapy or supportive psychotherapy at any time before, during or after the relevant period.
For this reason I am compelled to conclude that Mr Arkawazi’s Adjustment Disorder condition has not been fully treated or stabilised.
That being so, it is not ‘permanent’ for the purposes of the Impairment Tables and the Act, and it cannot be assigned an impairment rating.
Asthma
There is no dispute that Mr Arkawazi’s asthma condition is permanent and well managed by prescription medications delivered using a puffer. That is consistent with his evidence on this point.
Unfortunately, there is only scant evidence of the functional impact of Mr Arkawazi’s asthma condition.
On 7 October 2013, Dr Bahram reported “Asthma (not confirmed)” in answer to the question “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?” (T16 folio 160). This is consistent with her earlier report on 5 November 2012 “Asthma – on medication – stable” in respect of the same question (T8 folio 109).
Doing the best with this evidence, it is probable that Mr Arkawazi’s asthma has minimal impact on his ability to function as assessed under Table 1 – Functions requiring Physical Exertion and Stamina. The present evidence is not sufficient to determine whether this equates to ‘no functional impact’ warranting a rating of 0 points or to ‘mild functional impact’ justifying a rating of 5 points.
Even if Mr Arkawazi’s asthma-caused impairment is assigned 5 points, it does not assist Mr Arkawazi’s case. To meet the requirements of s 94(1)(b) of the Act he requires 20 points.
Right upper limb
Mr Arkawazi explained to me that the right upper limb condition and related pain was the result of a fractured arm requiring the temporary insertion of a plate. This is confirmed by the evidence of Dr Al Samail, general practitioner, which reveals that the plate was removed on or about 17 February 2014 (T19 folio 172). Mr Arkawazi confirmed this, although he could not be sure of the date.
It follows that his right upper limb condition was temporary and not ‘permanent’ for the purposes of the Impairment Tables and the Act during the relevant period. It cannot be assigned an impairment rating.
Conclusion
Thus, in summary, on the question of impairment rating, the only impairment that can be assigned an impairment rating is that caused by Mr Arkawazi’s asthma. At the highest this may support a rating of 5 points.
That being so, it follows that the requirement of 20 impairment points under s 94(1)(b) is not met.
This means that Mr Arkawazi does not meet the qualification requirements for a DSP pursuant to the claim he lodged on 21 September 2013 and the decision under review must be affirmed.
It is not necessary to proceed further to consider other qualification requirements in respect of a continuing inability to work or participation in a program of support.
DECISION
The decision under review is affirmed.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member .....................[sgd]...............................................
Associate
Dated 25 May 2015
Date of hearing 27 April 2015 Applicant In person Solicitor for the Respondent Ms R Kougellis, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Permanent Impairment
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Continuing Inability to Work
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