Samir Bakhoum and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 523

[2012] AATA 523

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4712
Re	Samir Bakhoum
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

Decision

Tribunal	Senior Member K Bean
Date	8 August 2012
Place	Adelaide

The decision under review is affirmed.

...................[Sgd].....................................................

Senior Member K Bean

Catchwords

SOCIAL SECURITY – Pensions – Disability support pension – Qualification – Whether applicant has an impairment attracting at least 20 points under Impairment Tables – Impairment does not attract 20 points – Decision under review affirmed.

Legislation

Social Security Act 1991 (Cth) s 94

REASONS FOR DECISION

Senior Member K Bean

8 August 2012

introduction

1. The applicant, Mr Bakhoum, suffers from a number of significant medical conditions including a painful left shoulder which restricts his activities and his ability to work.  Accordingly, on 31 May 2011, he lodged a claim for disability support pension (DSP).  However that claim was unsuccessful and the decision rejecting his claim was subsequently affirmed by an Authorised Review Officer (ARO) and by the Social Security Appeals Tribunal (SSAT).

2. Mr Bakhoum has now sought review of the decision of the SSAT by this Tribunal, giving rise to these proceedings.

   legislation and Issues

3. In broad terms the issue before me is whether Mr Bakhoum was qualified for DSP as at the date of his claim on 31 May 2011,[1] or within 13 weeks of that date.[2]

   [1] T5/25.

   [2] Social Security (Administration) Act 1999, Schedule 2 at 4.

4. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the SS Act), which at the relevant time provided in part as follows:

   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;

   (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; and

   (f)  the person is not qualified for disability support pension under section 94A.

   Note 1:     For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2:     for Impairment Tables see section 23(1) and Schedule 1B.

   (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 independently of a program of support within the next 2 years; and

   (b)  either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   …”

5. The respondent does not dispute that Mr Bakhoum suffers a physical impairment by reason of his shoulder condition as required by s 94(1)(a), or that he satisfies the requirements of s 94(1)(d),(e) and (f). However the respondent contends that Mr Bakhoum does not suffer from an impairment which attracts a rating of 20 points or more under the Impairment Tables as required by s 94(1)(b). The respondent also contends that Mr Bakhoum does not have a “continuing inability to work” within the meaning of s 94(1)(c), and does not otherwise satisfy that provision.

6. Therefore the particular issues for my consideration which arise from s 94 are:

   (a)Does Mr Bakhoum’s impairment attract 20 points or more under the Impairment Tables?; and

   (b)If so, does Mr Bakhoum have a “continuing inability to work” within the meaning of s 94?

7. I propose to first address the question of whether Mr Bakhoum suffers an impairment which attracts 20 or more points under the Impairment Tables, before turning to the question of whether he has a continuing inability to work.

   As at the relevant time, did Mr Bakhoum have an impairment attracting 20 or more points under the impairment tables?

8. There is no dispute between the parties that Mr Bakhoum suffers from a number of medical conditions.  As alluded to above, he suffered an accident a number of years ago in which he badly injured his left shoulder.  He underwent an operation for this in February 2011, however unfortunately the outcome of the operation was not as good as had been hoped. 

9. A report from Mr Bakhoum’s treating Orthopaedic Surgeon, Professor Krishnan, dated 20 September 2011 states that the operation undergone by Mr Bakhoum involved a rotator cuff repair and “sub-acromial decompression”.  Professor Krishnan reported that although Mr Bakhoum had regained “very good range of motion of his shoulder” following the surgery, he had been left with persistent pain and apparently had also developed “secondary change in his AC joint”.[3] 

   [3] T9/49.

10. In addition, Mr Bakhoum has suffered from diabetes mellitus for at least 2 years[4].  He said during his evidence at the hearing that although he had been advised to take insulin for this condition, he had thus far declined to do so as he did not wish to become dependent on insulin.

    [4] Exhibit 2.

11. Mr Bakhoum’s general practitioner, Dr Sarkis, has also reported that he suffers from
    

    [5] Exhibit 3.

    [6] T4/17.

    “stress and anxiety”, “gastro-oesophageal reflux disease”, “high cholesterol” and “varicose veins of the lower limbs”.  However there is very little medical information before me in relation to these conditions.  Further whilst Dr Sarkis alluded to these conditions in a medical report form completed on 9 January 2012[5], in an earlier medical report form completed on 31 May 2011, she referred only to the shoulder and diabetes conditions[6].

12. The first question which arises therefore is which of the conditions suffered by Mr Bakhoum can potentially attract an impairment rating under the Impairment Tables, and I propose to address that question next, before turning to the question of what rating should be given to any conditions which can be given an impairment rating.

    Which of Mr Bakhoum’s conditions can be given an impairment rating?

13. The introduction to the Impairment Table outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition.  These include:

    (a)A condition must be a fully documented, diagnosed one which has been investigated, treated and stabilised;

    (b)The condition must be considered to be permanent;

    (c)Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than 2 years; and

    (d)A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.[7]

    [7] The Impairment Tables at Schedule 1B of the Act, at [4] – [5].  These Impairment Tables were subsequently repealed and replaced with respect to claims made from 1 January 2012:  Social Security and other Legislation Amendment Act 2011.

14. Turning first to Mr Bakhoum’s shoulder condition, Mr Bakhoum said in his evidence that he still had a great deal of pain in his left shoulder and some restriction of movement.  He said this restricted him significantly in what he could do and that he needed help with some daily activities.  He acknowledged that he was still working as a taxi driver, for approximately 8 hours per week, but said he could not work any more hours as a taxi driver because of the problems with his shoulder.

15. On the material before me there is no doubt, and the respondent did not dispute, that Mr Bakhoum’s shoulder condition is fully diagnosed, treated and stabilised and that it is also permanent.  It is accordingly clear that this condition gives rise to an impairment which can be given a rating under the Impairment Tables.

16. In relation to Mr Bakhoum’s diabetes condition, I accept that this has been fully diagnosed and that he is currently seeing an endocrine specialist in relation to the condition.[8]  I also accept that this condition has been present for more than 2 years and is “permanent” within the meaning of the Guide.  However I am not satisfied that during the relevant timeframe, Mr Bakhoum’s diabetes condition was “fully stabilised”. 

    [8] Exhibit 2.

17. The medical records suggest that as at August 2011, Mr Bakhoum’s diabetes was “poorly controlled” and in a conversation with the ARO, Dr Sarkis is reported as agreeing that as at 11 August 2011, Mr Bakhoum’s diabetes was “not fully DTS”.[9]  I also note Mr Bakhoum’s evidence at the hearing that although he had been advised to take insulin for the condition he had declined to do so.  In my view this supports a conclusion that even as at the current time, Mr Bakhoum’s diabetes condition has not been fully treated or stabilised and therefore cannot be given a rating under the Impairment Tables.

    [9] T8/47.

18. On the basis of the material before me, I am also unable to conclude that any of the conditions of “stress and anxiety”, “gastro-oesophageal reflux disease”, “varicose veins of the lower limbs”, or “high cholesterol” have been fully documented, diagnosed, investigated, treated and stabilised, or that any of them are necessarily permanent.  Therefore on the material before me, none of these conditions are capable of attracting a rating under the Impairment Tables.

19. It follows that in my view the only impairment suffered by Mr Bakhoum which attracts an impairment rating is his shoulder condition.  However in case I am wrong in concluding that Mr Bakhoum’s diabetes condition does not qualify for a rating under the Impairment Tables, in addition to assigning a rating for Mr Bakhoum’s shoulder condition, I will also consider what rating his diabetes condition would attract under the Impairment Tables if a rating could be assigned. 

    What is Mr Bakhoum’s rating under the Impairment Tables?

20. As foreshadowed above, before considering what rating should be given for Mr Bakhoum’s shoulder condition, I will first consider what rating could be given for his diabetes condition if that condition did attract an impairment rating.

    The diabetes condition

21. The applicable table in this regard is Table 19 relating to endocrine disorders, which provides as follows:

    TABLE 19. ENDOCRINE DISORDERS

    The effects of endocrine disorders eg. Diabetes mellitus on other body systems eg. the vascular and visual systems should be assessed from the appropriate tables and added together with values from this table.

    Rating  Criteria

    NILThyroid disease, Acromegaly, Cushing’s disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget’s disease, Osteoporosis, Addison’s Disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.

    TENThyroid disease, Acromegaly, Cushing’s disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget’s disease or Osteoporosis which is incompletely controlled or treated eg. symptomatic Paget’s disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.

    TWENTYDiabetes mellitus or Addison’s Disease not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ damage.

22. Having regard to the terms of this table, as I am satisfied that Mr Bakhoum’s diabetes mellitus would not attract a rating of 20, and the 10 rating is not applicable to diabetes mellitus, I am satisfied that this condition would attract a nil rating under Table 19.

    The shoulder condition

23. Turning to the rating attracted by Mr Bakhoum’s shoulder condition, the applicable table is Table 3 relating to upper limb function, which relevantly provides as follows:

    TABLE 3.      UPPER LIMB FUNCTION

    All upper limb problems are assessed under the upper limb Table (Table 3).  Each arm is assessed separately.  Determination of upper limb impairments must be based on a demonstrable loss of function.

    Rating  Criteria

    NILCan use dominant limb effectively and/or

    Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

    FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant  upper limb which causes moderate interference with hand function or manual handling.

    TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

    FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

    TWENTYDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

    Unable to use non-dominant upper limb at all.

    THIRTYUnable to use dominant upper limb at all.

24. As Mr Bakhoum is right handed and his shoulder condition relates to his left shoulder, the ratings which are potentially applicable under Table 3 are ratings 5, 15 and 20 insofar as they relate to his non-dominant upper limb.

25. There is limited medical evidence before me as to the appropriate rating to be given to Mr Bakhoum’s shoulder condition, and Dr Sarkis did not address this question in her letter of 25 January 2012, notwithstanding having been asked to do so in the respondent’s letter of 10 January 2012.[10]  However the material before me does include notes made by the ARO on 11 August 2011, when the ARO recorded the following in relation to a conversation with Dr Sarkis:

    “Discussed shoulder disorder with particular reference to Table 3 - after reading ratings to Dr Sarkis agreed that 5 points best reflects current position.”[11]

    [10] Exhibit 2.

    [11] T8/48.

26. Also relevant to the question of the applicable impairment rating is Mr Bakhoum’s evidence at the hearing that whilst his left shoulder remained extremely painful he was able to use it, including to pick up light objects, and he was also able to drive. 

27. In light of this evidence, I do not consider it to be open to me to conclude that Mr Bakhoum is or was at the appropriate time, “unable to use non-dominant upper limb at all” and therefore a rating of 20 cannot be given.  I note that a rating of 15 could potentially be given, however the evidence before me, including Dr Sarkis’ opinion as reported by the ARO, suggests that a rating of 5 is more appropriate. 

28. I have accordingly concluded that Mr Bakhoum’s left shoulder condition attracts an impairment rating of 5 under the Impairment Tables.  For completeness however, I note that even if a rating of 15 was given, this would not be sufficient for Mr Bakhoum to qualify for DSP, as in order to qualify for DSP he would need a total rating of 20.

    conclusion

29. For the reasons given above, I have concluded that Mr Bakhoum’s only rateable impairment, that related to his left shoulder condition, attracts a rating of 5 under the Impairment Tables and attracted that rating during the relevant period.  As a claimant must have an impairment attracting at least 20 points under the Impairment Tables in order to qualify for DSP, it is clear that Mr Bakhoum does not qualify for DSP and his claim was correctly rejected.

30. In these circumstances, because Mr Bakhoum does not meet the impairment rating requirement, it is unnecessary for me to proceed to consider whether he has a “continuing inability to work” within the meaning of s 94 of the SS Act.

31. As Mr Bakhoum did not qualify for DSP at the date of his claim or within 13 weeks of that date, I am obliged to affirm the decision under review.

    decision

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of

..................[Sgd]......................................................

Administrative Assistant

Dated  8 August 2012

Date of hearing	20 June 2012
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Program Litigation and Review Branch