Salem Mansoor v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 287

Administrative Appeals Tribunal

WRITTEN REASONS [2011] AATA 287

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2308

GENERAL ADMINISTRATIVE DIVISION		)
Re		Salem Mansoor

Applicant

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

Respondent

WRITTEN REASONS

Tribunal Senior Member A K Britton

Date1 March 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – pensions – Disability Support Pension – physical and psychological conditions – whether documented, diagnosed, investigated, treated and stabilised – decision under review affirmed

WRITTEN REASONS (REVISED FROM THE TRANSCRIPT)

1 March 2011  Senior Member A K Britton

1.On 2 November 2009, Mr Salem Mansoor lodged a claim for disability support pension claiming spinal impairment of the lumbar and cervical spine, morbid obesity, impaired fasting glucose and osteoarthritis of the right knee. 

2.On 1 December that year, he purportedly amended his claim to include a number of psychiatric conditions to which I shall return.  It is plain from the material before me that Mr Mansoor suffers from a number of physical and psychological conditions of varying severity. 

3.Before moving to determine whether, separately or in combination, any render him unfit for work it is necessary to determine whether each claimed condition is, to use the language of the legislation, “fully documented, diagnosed and has been investigated, treated and stabilised”. 

4.For the purpose of that assessment the relevant period is 2 November 2009 until 1 February 2010.  As explained earlier this morning to Mr Mansoor, the legislation requires me to ask the questions outlined above in respect of the relevant period. That is, I am required to look back in time and, in effect, conduct a retrospective assessment.  There is some argument as to whether, at least in relation to the psychiatric conditions, they have been fully documented and diagnosed and, indeed, can properly form part of Mr Mansoor’s claim.  For current purposes I would accept that all of the psychiatric conditions are fully diagnosed and are part of Mr Mansoor’s claim.  The real issue, as I see it in this matter, is whether, throughout the relevant period, each condition had been fully investigated, treated and stabilised.

5.Before me in these proceedings are a number of medical reports in addition to the T documents. They include some recent medical reports obtained by Mr Mansoor which I have marked as exhibits in these proceedings.  I have also before me a number of medical reports provided by Mr Mansoor to Centrelink in September 2010.  They are the reports of Dr Sitrac of 11 August 2010, Dr Curran of 23 August 2010 and Dr Darvay, 8 September 2010.  I now look at the each of the conditions and ask has it been investigated, treated and stabilised?  I note that in determining that question the issue that must be addressed is whether reasonable treatment has been taken, that is, treatment that is feasible and accessible and treatment where a substantial improvement can reliably be expected.

6.Looking first at the spinal disorders suffered by Mr Mansoor, and it is convenient, in my view, to look at the cervical and lumbar spine together, there is no issue that Mr Mansoor suffers from a cervical and lumbar spine disorder.  That is confirmed by the objective evidence before me, including a recent CT scan performed in October last year.  As to the treatment that has been recommended for that condition, I note that in the medical report provided by the treater, Dr Sitrac, he recommended physiotherapy. In addition, I note that Dr Balsam Darwish, who saw Mr Mansoor in March 2009, recommended that Mr Mansoor continue with conservative treatment.

7.Mr Mansoor confirmed in evidence today that he understood that Dr Darwish had suggested, among other things, that he participate in hydrotherapy and light exercise.  In the relevant period, I could not be satisfied that that treatment option had been exhausted.  By his own admission, Mr Mansoor had not undertaken physiotherapy and had only undertaken five courses of hydrotherapy.  As with any condition of this nature, there may come a point in time where treatment in the form of light exercise is no longer useful.  However, I could not be satisfied that, as at the relevant period, that option had been exhausted and that reasonable medical treatment had in fact been undertaken.

8.Turning to the third claimed condition, osteoarthritis of the right knee, there is no argument that Mr Mansoor suffers from a serious right knee condition.  I note that in September 2010 Dr Shandray Darvay considered that a cortisone injection or possibly total knee replacement was warranted.  This is supportive of Mr Mansoor’s claim that he has experienced great problems with his knee and that has left him, to a significant extent, disabled.  However I am required to look at the relevant period.  In October 2009, an arthroscopy had just been completed.  Mr Mansoor was required to undergo rehabilitation.  While the evidence as to the rehabilitation undertaken throughout that period is scant, I could not be satisfied that the rehabilitation program had been completed at that time.  So even if I was of the opinion that Dr Darvay’s later opinion was irrelevant, I could not be satisfied that reasonable treatment had been undertaken at that time and the condition had been treated and stabilised.

9.In respect of the fourth and fifth conditions, which I will look at together, morbid obesity and impaired fasting glucose, the evidence is that for both conditions it has been recommended that Mr Mansoor lose weight and avoid certain foods.  His evidence today is that he has not taken on that advice and on that basis I could not find that those conditions had been fully treated as at the date of the relevant period. 

10.In respect of the psychiatric conditions, which are described as chronic depression, alcohol dependence, schizophrenia and post-traumatic stress disorder, I note that Mr Mansoor was first diagnosed with those conditions on 1 December 2009.

11.There is little information before me on the treatment undertaken.  However, the recent report prepared by the treating psychiatrist, a Dr Atiar Sulaman, dated 24 October 2010 sheds some light on this issue.  Read together with the report prepared by the Fairfield Pharmacy which Mr Mansoor attends, which is found at T21 of the T documents, it indicates that Mr Mansoor commenced antidepressant medication on 1 December 2009.  At its highest, Mr Mansoor’s case in respect of the treatment of his psychiatric conditions is that in the ninth week in the relevant period he had commenced seeing a psychiatrist and taking medication. In my view, it could not reasonably be argued that given the short period for which he had been receiving treatment, that any of those conditions had r been fully treated or stabilised.

12.There is nothing in the certificate provided by the treating psychiatrist, which is found at T14 of the documents, that he was of that opinion.  I have no reason to doubt what Mr Mansoor said to me today that it is his sincere wish that he could find himself in useful employment and that it is a source of great concern to him that he finds himself unable to work because of his health.  I accept what he says as true in that regard.  However, I can not be satisfied that, as at the relevant period, any of the subject conditions had been fully treated and stabilised and therefore, I must affirm the decision not to grant the disability support pension.  I note that this does not prevent Mr Mansoor making a fresh application and at that point treatment taken over the past two years can be taken into account.  Thank you for your attendance today.  Thank you, Madam Interpreter, Ms Higgins, and thank you, Mr Mansoor.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .............................[sgd].......................................
  Associate to Senior Member Britton

Date/s of Hearing   1 March 2011
Date of Decision   1 March 2011
Applicant Self-Represented            
Solicitor for the Respondent      Ms R Prasad, Centrelink Advocacy Branch