Shahbazi Asl and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1777

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1777

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/1645

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Behzad Shahbazi Asl

Applicant

And Secretary, Department of Employment and Workplace Relations

Respondent

DECISION

Tribunal Dr John Campbell

Date19 September 2007

PlaceSydney

Decision The decision under review is affirmed.

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

Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension – Whether date of commencement of DSP should be backdated  – Decision Affirmed

Social Security (Administration) Act 1999, s 12, cl 3(1) Schedule 2

REASONS FOR DECISION

19 September 2007 Dr John Campbell

1.      Mr Shahbazi Asl was born in the north of Iran in 1957. Mr Shahbazi Asl completed 12 years of schooling and two years of University in Iran prior to expulsion from University on religious grounds in 1983. Mr Shahbazi Asl married in 1986 and in February 2000, he, his wife and two daughters (born in 1987 and 1992) arrived in Australia from Turkey.

2.      In February 2003 Mr Shahbazi Asl was involved in a lift accident, which rendered him unconscious, with subsequent hospital investigation revealing a damaged lower spine. From this time onwards Mr Shahbazi Asl has experienced low back symptomatology, difficulties in coping and diabetes.

3.      On 5 April 2004, Mr Shahbazi Asl lodged a claim for Disability Support Pension (DSP). This was rejected, with the rejection decision affirmed by an Authorised Review Officer (ARO) on 30 August 2004.

4.      On 4 April 2005 Mr Shahbazi Asl lodged a further claim for DSP. This claim was rejected, with the decision affirmed upon review by the ARO on 16 August 2005.

5.      On 2 February 2006 Mr Shahbazi Asl lodged a third claim for DSP. This claim was granted on 20 March 2006 with date of effect being 2 February 2006. On 4 April 2006 Mr Shahbazi Asl requested back payment of DSP from 2003. The decision not to pay DSP back to 2003 was made by a Centrelink Officer on 6 July 2006, this decision being affirmed on review by an ARO on 14 August 2006 and on appeal by the Social Security Appeals Tribunal on 27 October 2006.

ISSUES

6.      The relevant issue in this matter is whether Mr Shahbazi Asl is entitled to a payment of DSP at a date earlier than 2 February 2006.

DECISION

7.      For reasons stated later in this decision, I find that Mr Shahbazi Asl is not entitled to the payment of DSP at a date earlier than the date of lodgement of his successful claim, namely 2 February 2006.

BACKGROUND

8.      Prior to his arrival in Australia on 17 February 2000, Mr Shahbazi Asl worked in Iran for 15 years in a family air-conditioning business. In 1999, he and his family fled to Turkey leaving behind his parents and eight siblings. Mr Shahbazi Asl and his family spent one year in Turkey prior to arriving in Australia on 17 February 2000. Mr Shahbazi Asl stated that neither he nor his immediate family were physically tortured prior to leaving Iran, but since leaving, a brother was said to have been killed by the Government in 2001, his mother died of a heart attack in 2001 and his father died in June 2007.

9.      Mr Shahbazi Asl stated that he separated from his wife in 2000, mainly because of her family’s interference. He stated that his two daughters lived with their mother, with one studying Medical Science at University (she is currently overseas for one year) and one still at school. Mr Shahbazi Asl stated that he continues to visit his daughters and that he has difficulty with securing accommodation after a leaking roof caused a ceiling to collapse at his previous place of residence.

10.     Mr Shahbazi Asl stated that essentially he has not been employed since arrival in Australia; that he has undertaken training courses in a meat factory (with no subsequent employment) and English courses at TAFE in September 2002/2003.

11.     Mr Shahbazi Asl described being involved in a lift accident in the city in February 2003 in which the lift descended uncontrolled for some metres resulting in him being rendered unconscious and on his own for three hours. On the next day, Mr Shahbazi Asl visited Concord Hospital because of back pain. Mr Shahbazi Asl stated that x-rays and a CT-scan were taken, with such investigations indicating damage to his lower lumbar spine and for which compensation is still being sought.

12.     In relation to his medical circumstances, Mr Shahbazi Asl described the following:

(1)Back injury: He complains of pain in lower back, which is always there, with the level of pain varying in intensity, and sometime with radiation down the right leg (almost every day). The pain has got worse over time, causing him on occasions, difficulty with sleeping. He takes pain medications everyday and gets some relief by walking. He is able to walk up to one kilometre and uses a walking-stick. He is able to sit for more than one hour. He can drive a car but the car was towed away by the Council in 2003. He can get relief by lying on the ground, while bending, lifting or being stressed tends to increase pain levels and requires him to alter his position.

(2)Depression: The last few months have been difficult because of accommodation difficulties and financial hardship. He has been receiving Newstart Allowance from February 2000 until February 2006. He now receives DSP. Life is hard and has been so since 2002, although not so much of a problem as before. He does not wish to lose control of his affairs and tries to cope. He mostly takes his medication. He does not avoid people, nor has he had thoughts of self harm. He has a normal appetite, no weight loss and not much variation in moods. He does admit to some difficulty in sleeping at night because of back pain and if he is worried. He felt tearful at loss of his brother. There is no avoidance of places with lifts. He tends to rise around 6am, watches television, reads newspapers, does his own cooking and returns to bed around 1 to 2am.

(3)Diabetes: He is a non insulin dependant diabetic diagnosed after the lift accident in 2003 and it is treated by oral medication.

BACKGROUND CLINICAL MATERIAL

13.     The following details are background clinical material contained within the section 37 documents.

(a)Depression

(1)     Mr Shahbazi Asl was provided with a medical certificate on 10 February 2003 by Dr Samadi stating that he was receiving medical treatment for depression from 10 September 2002 to 10 February 2003. (T4)

(2)     Mr Shahbazi Asl was provided with a medical certificate on 27 February 2003 by Dr Samadi stating that he was not able to attend work for three months because of depression. (T5)

(3)     A list of prescriptions for the first three months of 2003 by Dr Samadi indicated no medication for depression. (T9)

(4)     On 10 March 2004 Dr Samadi stated that Mr Shahbazi Asl had a prescriptive diagnosis of depression, with symptoms of feeling hopeless, and lethargic and with a lack of energy and tiredness. Dr Samadi believed that Mr Shahbazi Asl would be unable to concentrate at work and was treating him with anti-depressants and that he would somewhat improve over the next two years. Dr Samadi indicated that Mr Shahbazi Asl had been his patient since 11 June 2003. (T13)

(5)       Medical certificates were issued on

a.    30 March 2004 by Dr Atallah stating that according to Mr Shahbazi Asl’s medical records he suffered from low back pain and depression. (T14)

b.    5 April 2004 by Dr Samadi stating the Mr Shahbazi Asl suffered from depression and low back pain, that he was not fit for duties for the next three months, and that he suffered from severe headaches and practically lived on the streets. (T15)

(6)     On 5 April 2004 in a treating doctor’s report, Dr Samadi noted that Mr Shahbazi Asl was suffering from depression with the inability to concentrate having some impact on function; and that he was receiving counselling, with the condition well managed and causing minimal or limited impact on his ability to function. (T16; p40)

(7)     On 2 June 2004 Dr Keen, medical advisor with Health Services Australia in a medical assessment report details Mr Shahbazi Asl experiencing the onset of depressive symptoms following the deaths of his brother and brother in law in 2001. At examination, Dr Keen found Mr Shahbazi Asl suffering from some reduction in concentration and motivation, but nevertheless responding normally, spontaneous and with no psychomotor retardation. Dr Keen considered Mr Shahbazi Asl to be suffering from depression of mild to moderate severity and that no specialist assessment/treatment had been involved. Dr Keen considered the depression condition to be temporary in the absence of specialist assessment and treatment. (T18)

(8)     Further medical certificates in relation to Mr Shahbazi Asl were issued by Dr Samadi on 13 July 2004 for back pain and depression (T21) and on 15 July 2004 for low back pain and depression for 10 years being treated with AROPAX (T22) and on 31 March 2005 for depression – few years, feeling alone, lack of energy; non-insulin dependant diabetes – few years; low back pain – few years. (T31)

(9)     In a treating doctors report dated 3 April 2005 (T32), Dr Samadi stated Mr Shahbazi Asl as suffering from depression for a few years, this being a prescriptive diagnosis in that Mr Shahbazi Asl felt alone and depressed. Treatment was by way of medication (not specified).  (T32)

(10)   On 4 May 2005, Dr Pant, a medical advisor with Health Services Australia detailed Mr Shahbazi Asl’s depressive symptoms as feeling alone and depressed since arrival in Australia and that such symptoms have been exacerbated by family conflict and financial difficulties. He had been treated with AROPAX 20mgs nocte, but that he had never seen a psychiatrist. Dr Pant noted that Mr Shahbazi Asl appeared depressed with flat affect, and considered that he would benefit from a specialist review. (T35)

(11)   On 8 September 2005, Dr Nielsen, issued a medical certificate stating that Mr Shahbazi Asl was suffering from low back pain with radiation to right leg, diabetes (diet controlled) and depression as evidenced by tiredness and poor concentration. (T43)

(12)   On 2 November 2005 Mr Shahbazi Asl was referred again to Health Services Australia (HSA) for a further medical assessment (T46). On 23 January 2006 HSA recorded that Mr Shahbazi Asl had not attended for 2 appointments (T49).

(13)   On 2 February 2006 in a further treating doctor’s report, Dr Samali detailed Mr Shahbazi Asl as having suffered from depression since arriving in Australia because of torture in Iran. Dr Samali further noted that Mr Shahbazi Asl had been seen by Dr Lee, a psychiatrist, in 2002. Dr Samali nominated the depressive symptoms as insomnia, stress, low mood and being financially under pressure with existing medication consisting of AROPAX 20mgs nocte. (T52)

(14)   In a medical assessment report dated 3 March 2006  Dr Shaukal concluded that Mr Shahbazi Asl had major depression with symptoms since 2000 which were exacerbated after being trapped in the lift. Symptoms included difficulties in coping with stress and difficulties in sleeping and maintaining focus. Dr Shaukal stated that Mr Shahbazi Asl had been seeing a psychiatrist and that he had had moderate regular symptoms. In such circumstances he concluded the depressive condition to be permanent, with an impairment rating of 10 points. (T55)

(15)   On 23 January 2007, Dr Stephenson provided a brief report in which she described Mr Shahbazi Asl as suffering major depression and post traumatic symptoms as a consequence of persecution and torture. She also considered him to be suffering a chronic pain disorder arising from a discogenic back condition (Exhibit A1).

(b)Low Back Pain

(1)     On 26 February 2004, a plain x-ray of the lumbo-sacral spine was reported as “There is a vague suggestion of an undisplaced crack fracture involving the left transverse process of L4”. (T11)

(2)     On 2 March 2004, a CT scan of L3/4 to L5 was reported as:

“No bony injury has been demonstrated. In particular, there is no suggestion of a fracture of the left transverse process of L4. There is slight to mild bulging of the posterior aspect of the L4/5 disc in the midline causing slight encroachment from the anterior aspect of the thecal sac…” (T12)

(3)     The treating doctor’s report of 10 March 2004 made no mention of low back pain and/or a low back condition (T13), although a certificate dated 30 March 2004 and 5 April 2004 does note such symptomatology. (T13 & T 14)

(4)     On 5 April 2004 a treating doctors report detailed that Mr Shahbazi Asl had been suffering low back pain and stiffness for a few years and that he has a mild disc herniation that prevented him from working. (T16)

(5)     On 2 June 2004, Dr Keen, a medical advisor with HSA, noted a history of back pain attributing this to a fall, treatment with NSAIDS, minor changes on a CT scan, mild loss of range of movement of thoraco-lumbar spine and no neurological signs. Dr Keen considered Mr Shahbazi Asl to have an impairment rating of 5 in relation to his thoraco-lumbar spine. (T18)

(6)     In a treating doctor’s report of 3 April 2005, the back pain condition was nominated as being present for a few years, of unknown aetiology with the lift injury precipitating symptoms of not very severe pain and stiffness in the lower back. (T32)

(7)     In a medical assessment report dated 4 May 2005, Dr Pant, a medical advisor with HSA, detailed a history of pain commencing with a lift injury some two years earlier. Dr Pant observed loss of a quarter the normal range of movements of the thoraco-lumbar spine with no obvious discomfort, although Dr Pant noted Mr Shahbazi Asl walked with the aid of an umbrella. Dr Pant considered that Mr Shahbazi Asl had an impairment rating of 10 pursuant to table 5.2 of the Schedule 1B Impairment Tables. (T35)

(8)     In a treating doctor’s report dated 2 February 2006, Dr Samali noted the history of a back injury on 25 February 2003 in a lift accident, treatment by an orthopaedic surgeon Dr Rozaria, at Concord Hospital. Dr Samali also noted a history of pain radiating to the legs and pins and needles in Mr Shahbazi Asl’s foot and that the pain increased at night. (T52)

(9)     In a medical assessment report 3 March 2006, Dr Shaukal detailed a history of low back pain since 2003, which radiated to both legs right more so than left. Dr Shaukal noted a loss of a quarter of the normal range of movements of the thoraco-lumbar-sacral spine, together with pain on lifting, walking and standing. Dr Shaukal concluded that Mr Shahbazi Asl had an impairment rating of 10 to table 5.2. (T55)

(c)Skin Condition

(1)Examination of all material revealed that Mr Shahbazi Asl was treated for a skin condition, namely Lichen Planus, by a dermatologist, Dr Lee, in March 2003 and that this condition would require ongoing treatment for six months (T6, T7 & T10).

(2)The history of skin disorder was noted by Dr Keen, a medical advisor with HSA, in his report dated 2 June 2004. Dr Keen noted that the treatment had ceased and that the condition had no effect on function and hence no impairment rating under table 18 could be given. (T18)

(d)Non-Insulin Dependant Diabetes

(1)This condition is first mentioned in a medical certificate issued by Dr Samadi on 31 March 2005, in which he indicated that the condition had been present for a few years. No mention of the condition is made in reports prior to this time, including reports of the treating doctor and Dr Keen, the medical advisor, on 2 June 2004 (T18).

(2)A mention was made of the condition in the treating doctor’s report of 3 April 2005 and in the medical advisor’s report (Dr Pant) of 4 May 2005. In the later report the condition is said to have been present for one year, that it was being treated with Diabex, one tablet twice daily; that the condition was controlled and that there was nil impairment rating for the condition pursuant to Table 19 of the Impairment Tables. (T35)

(3)In a report dated 2 February 2006 (T52), Dr Samali considered the condition had a mild impact on ability to function, while in his report of 3 March 2006 (T55), Dr Shaukal considered the condition well controlled, and in so doing assessed the impairment as nil pursuant to Table 19.

Legislation

14. Clause 3(1) of Schedule 2 of the Social Security (Administration) Act 1999 nominates that the start date normally for payment of a social security payment is the date on which lodgement of the claim has been made.

15. Section 12 of the Social Security (Administration) Act 1999 provides:

Certain transfers between payments

12(1)Subject to subsection (3), if:

(a)a person is receiving an income support payment; and

(b)while receiving the payment, the person becomes qualified for another income support payment (the other payment); and

(c)the Secretary determines that the person is to be transferred to the other payment; the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

CONSIDERATION AND FINDINGS

16.     I have been particular in detailing all the evidence that is before me in relation to Mr Shahbazi Asl‘s impairments. I note that a decision was made on 20 March 2006 that Mr Shahbazi Asl qualified for DSP as and from the date of lodgement of his claim on 2 February 2006.

17.     I further note that in making such a decision the decision maker considered the four nominated conditions, namely low back pain with radiation to both legs and a loss of a quarter the normal range of movement of the thoraco-lumbar-sacral spine, depression, a skin condition and non insulin dependant diabetes.

18.     I note that only two of the conditions attracted an impairment rating, namely the low back pain condition, which attracted 10 points pursuant to Impairment Table 5.2; and depression, which attracted 10 points pursuant to Impairment Table 6. I note that the skin condition was not considered a condition at this stage, while the non insulin dependant diabetes attracted a nil impairment rating pursuant to Impairment Table 19, as the condition was well controlled.

19. I note that the decision maker at that time concluded that Mr Shahbazi Asl had a continuing inability to work, and in so finding further concluded that Mr Shahbazi Asl qualified for DSP pursuant to section 94 of the Social Security Act 1991.

20.     In noting these findings, which are not subject to review in this matter, I observe that Mr Shahbazi Asl’s depressive condition was said to have been reviewed by a psychiatrist prior to lodgement of the Application. I can find no material which necessarily supports such a conclusion, in that the only name nominated was Dr Lee, and it would appear that he was a specialist dermatologist, not a psychiatrist.

21.     Further, the psychiatric opinion by Dr Stephenson in January 2007 refers to psychiatric conditions arising as a consequence of torture. Mr Shahbazi Asl denied on two occasions during the hearing that he had ever been subject to physical torture.

22.     Finally, in noting the evidence of Mr Shahbazi Asl as to symptoms nominated and his approach to conforming to a medication process, I would suggest that Mr Shahbazi Asl’s depressive disorder would benefit from further specialist psychiatric evaluation and treatment.

23.     In light of the above and consequent to a careful and longitudinal analysis of the available clinical material, including the evidence of Mr Shahbazi Asl, I conclude that there is an absence of material clinical evidence which would either persuade or permit me to find that Mr Shahbazi Asl qualified for DSP at a date earlier than has been granted. In particular I am unable to discern any clinical evidence which would suggest to me that the decisions taken in relation to his two earlier applications for DSP, namely 5 April 2004 and 4 April 2005, were other than correct and more so consistent with the available evidence. Further, I have noted clinical evidence obtained subsequent to these two decisions, but again I conclude that such evidence does not assist in providing a basis to alter the earlier decisions.

24.     In so finding, I observe that the material provided by the treating doctor was often scant and indeed, on occasions, non existent as to clinical detail. Further, I observe that over time such material did little to convey any sense of a particular condition’s impact on function or indeed any sense of clinical progress, one way or the other.

25. Finally in addressing section 12 of the Social Security (Administration) Act 1999, I acknowledge that within section 12(1) lies a power to backdate a claim for another income support payment, if a person, who is currently receiving an income support payment, becomes qualified for another income support payment.

26.     Mr Shahbazi Asl was receiving Newstart Allowance up and until he was found to be qualified for DSP and from 2 February 2006.  In my earlier finding at paragraph 23, I concluded that Mr Shahbazi Asl did not qualify for DSP at any date earlier than 2 February 2006. In such circumstances, I conclude that I am unable to make a determination that would transfer the payment of DSP to Mr Shahbazi Asl to a date earlier than his date of lodgement on 2 February 2006.

27. I note that section 12(3) of the Social Security (Administration) Act 1999 may also impose particular difficulties in this matter in circumstances where my findings as to fact may have been different. Such difficulties arise from the circumstances that two earlier claims for DSP were denied and in both cases Mr Shahbazi Asl elected not to pursue any appeal beyond the level of the Authorised Review Officer, thereby creating particular difficulties for the ultimate decision maker in complying with the rules in regard to the date of effect. I shall not pursue this matter further, as it is not necessary to do so in the light of my earlier findings.

28.     In conclusion, Mr Shahbazi Asl is unsuccessful in his appeal to have his DSP back dated to a date earlier than 2 February 2006.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell

Signed:         .........................[sgd].......................................................
Lyn Hespe                Associate

Date/s of Hearing  23 July 2007
Date of Decision  19 September 2007
Solicitor for the Applicant          Self-Represented
Solicitor for the Respondent     Pankaj Sharma