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

[2009] AATA 710

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2009] AATA 710

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0593

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSEPH TABLIE

Applicant

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

Respondent

DECISION

Tribunal   Senior Member Jill Toohey

Date of decision                8 September 2009

Date of written reasons   17 September 2009

Place  Sydney

Decision

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal varies the decision of the Social Security Appeals Tribunal made on 28 January 2009 by:

1. affirming the decision to reject Mr Tablie’s claim for disability support pension; and

2. varying the decision to grant Mr Tablie an exemption from the activity test until 10 May 2009 by extending the exemption to 8 March 2010.

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

Jill Toohey
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Qualification for – Claim for heart, back and neck conditions and depression and anxiety - Whether conditions eligible for impairment rating – Decision affirmed - Newstart allowance - Activity test exemption -  Whether eligible for further exemption – Decision varied

Social Security Act 1991, ss 94, 593, 601, 603C, Sch 1B

Social Security (Administration) Act 1999, ss 41, 42, Sch 2

WRITTEN REASONS FOR ORAL DECISION

17 September 2009 Senior Member Jill Toohey           

1.      These written reasons are provided at the request of the respondent.  They are based on the transcript of the hearing with the addition of relevant background and legislation, and amendments for clarity of expression.  The reasons for the decision have not been changed from those delivered orally at the conclusion of the hearing.

Background

2.      Mr Joseph Tablie emigrated to Australia from Lebanon in 1993.  He is now aged 36.  He is married and has four children.  He was a musician and a tiler in Lebanon.  He worked as a tiler in Australia for a time until 2006 when he stopped work on account of his medical conditions.

3.      In 2007 Mr Tablie was diagnosed with Wolff-Parkinson-White Syndrome, a heart condition that causes tachycardia, or heart palpitations.  He has suffered anxiety attacks from a young age.  Following the diagnosis of his heart condition, he became fearful of its symptoms and developed a panic disorder.  He now suffers from debilitating panic attacks that come on for no apparent reason several times each week.  In February 2008 he was diagnosed with depression with panic disorder.

4.      Mr Tablie asks the Tribunal to review two decisions made by Centrelink on 12 December 2008 and affirmed by the Social Security Appeals Tribunal (SSAT) on 28 January 2009:

(a)to refuse his application for disability support pension (DSP); and

(b)to grant him an exemption from the newstart allowance activity test for six months only, rather than for two years.

Disability Support Pension

5. In order to qualify for a DSP, Mr Tablie must meet each of the requirements in subs 94(1) of the Social Security Act 1991 (the Act). Relevantly, he must have:

(a)a physical, intellectual or psychiatric impairment which is of 20 points or more under the Impairment Tables in the Act; and

(b)a continuing inability to work.

6.      Not every impairment counts towards a rating on the Impairment Tables.  The condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”.  It must be permanent, meaning that it is more likely than not that it will persist for more than two years.  Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”. To be fully stabilised means it is unlikely to significantly improve, with our without reasonable treatment, within the next two years: Introduction to the Impairment Tables, Sch 1B to the Act.

7.      Centrelink and the SSAT accepted that Mr Tablie had physical and psychiatric impairments during the relevant period but they refused his claim on the ground that his medical conditions were not fully treated and stabilised and so could not be assigned a rating on the Impairment Tables.

8.      I have to decide if Mr Tablie qualified for DSP at the date of his application and for a period of 13 weeks thereafter, that is, from 4 November 2008 to 2 February 2009:  Social Security (Administration) Act 1999, ss 41, 42, sch 2 cl 4 (1).

9.        I accept that Mr Tablie has physical and psychiatric impairments.

10.     Although the relevant period is from 4 November 2008 to 2 February 2009, the medical reports from before that time, and since that time, help to understand what Mr Tablie’s conditions were during that period.

11.     From the medical reports, it seems to me quite difficult to separate Mr Tablie’s heart condition from his anxiety and depression. Nevertheless, dealing just with his heart condition, I have considered the medical reports that Ms Heggen, who appeared for the respondent, took the Tribunal through. The reports before November 2008, when Mr Tablie applied for the DSP, show quite a changing history.  Dr Nasser, cardiologist, reported on 23 November 2007 that Mr Tablie was on a waiting list for “repeat EP study/radio frequency ablation”.  On 17 May 2008 Dr Bateman, Mr Tablie’s general practitioner, reported that significant improvement could be expected in his heart condition. 

12.     I note that, on 4 November 2008, Ms Sarkis, psychologist, said that Mr Tablie’s heart condition had minimal impact on his ability to function but significant improvement was not likely.  However, Ms Sarkis is not a heart specialist and I do not give too much weight to what she says about Mr Tablie’s heart condition. 

13.     Centrelink documents show that, on 10 November 2008, at an interview for a job capacity assessment, Mr Tablie told the Job Capacity Assessor that he might need a pacemaker and might need further surgery.  By 20 January 2009, Dr Nassar reported in the same terms as previously although he did not refer to Mr Tablie being on a waiting list. 

14.     Based on the reports, I find that Mr Tablie’s heart condition was not fully diagnosed, treated and stabilised by 2 February 2009 and so could not be given a rating under the relevant Impairment Table.

15.     Turning to Mr Tablie’s depression and anxiety, reports from Dr Younan, psychiatrist, and Ms Sarkis indicate that his depression is chronic and seems to be resistant to treatment.  But the main point about the relevant period when Mr Tablie applied for the DSP is that Ms Sarkis only referred him to Dr Younan on 24 January 2009 and clearly his condition was not fully treated and stabilised at that point.  Mr Tablie first saw Dr Younan on 27 January 2009.  Although this was within the relevant period, and although the Tribunal does not have a report from Dr Younan about what happened at that first appointment, Mr Tablie is still seeing Dr Younan and Ms Sarkis, and it is reasonable to infer that Dr Younan would have said that the depression and anxiety were not fully treated, diagnosed and stabilised by 2 February 2009.  There is no evidence before the Tribunal on the basis of which I would change the decision under review.  Mr Tablie’s depression and anxiety condition cannot be given an impairment rating.

16.     Mr Tablie’s neck and back pain is less clear. In his report of May 2008, Dr Bateman confirmed a diagnosis of “chronic pain in neck and generalised muscle pain” for which Mr Tablie was taking Panadol. The only impact on his ability to function was “reduced endurance”.  Mr Tablie has told the Tribunal he is still undergoing physiotherapy and it appears the condition still needs further investigation.  I am not satisfied, on the evidence before me, that Mr Tablie’s neck and back pain has been fully investigated, treated and stabilised.  It follows that it cannot be given a rating on the relevant impairment table. 

17.     I note that, in any event, both Dr Bateman and Ms Sarkis have reported that the neck and back pain have minimal or limited impact on Mr Tablie’s ability to function (although I note that neck and back pain is not Ms Sarkis’ area of expertise).  Even if Mr Tablie’s neck and back pain could be rated on the relevant impairment table, I accept Ms Heggen’s submission that it would be rated nil and would not qualify him for a DSP. 

18.     I am satisfied that the decision under review in relation to the DSP should be affirmed on the basis that Mr Tablie’s conditions could not be rated in accordance with the Impairment Tables. 

19.     Because it is not necessary to do so, I do not propose to deal with whether Mr Tablie had a continuing inability to work during the relevant period. 

Exemption from the activity test

20.     Mr Tablie is currently receiving newstart allowance.  Subsections 593 (1)(a) and (b) of the Act provide that, to qualify for newstart allowance, a person must:

(a)be unemployed; and

(b)must either satisfy the activity test or not be required to satisfy the activity test: subs 593(1)(a) and (b).

21. The activity test requires a person to be actively seeking employment and willing to undertake paid work, other than paid work that it would be unsuitable for them to undertake: subs 601(1) of the Act.

22. Not everyone is required to satisfy the activity test. By s 603C of the Act, a person may be exempt if they are:

(a)incapacitated for work (of at least eight hours) because of sickness or accident; and

(b)their incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c)the incapacity is, or is likely to be, temporary – that is, less than two years; and

(d)they would qualify for Newstart; and

(e)they have given the Secretary a medical certificate stating the condition and the period of incapacity; and

(f)the incapacity was not brought about in order to obtain an exemption.

23.     On 25 August 2008 Mr Tablie asked Centrelink to exempt him from the activity test on the ground that he could not work.  Centrelink initially rejected his application but, on 12 December 2008, an Authorised Review Officer decided to grant Mr Tablie an exemption for six months to 10 May 2009.  Centrelink was not satisfied, and the SSAT agreed, that there was sufficient medical evidence to establish that Mr Tablie would be incapacitated from work for at least eight hours per week beyond that date.

24.     I have decided that Mr Tablie should be exempt from the activity test for a further six months to 8 March 2010 for the following reasons.

25.      Mr Tablie has now been exempt since 13 November 2008, except for approximately one month, around May 2009, when he was in Lebanon.  On 13 August 2009 Dr Bateman certified him unfit to work eight hours per week from 13 August 2009 to 13 November 2009.  On 1 September 2009 Dr Younan reported that Mr Tablie’s response to treatment for depression has been very partial and disappointing, and Dr Younan expected that Mr Tablie’s chronic anxiety which comes with agoraphobia, and his depression, would continue to affect his ability to function for more than 24 months.

26.     Ms Sarkis reported on 28 July 2009 that Mr Tablie has been relatively unresponsive to pharmacotherapy and mildly responsive to CBT, which I take to mean cognitive behaviour therapy.  I note Ms Sarkis said in that report that Mr Tablie’s depression was in remission, but that is contradicted by Dr Younan’s later report.  Ms Sarkis reported that Mr Tablie’s physical health is slowly declining and it is likely his mental health condition will fluctuate in response to this. 

27.     It is quite probable, although everyone would hope not, that Mr Tablie’s depression and anxiety will continue for some time.  Based on these reports, it is more probable than not that he will be seeking a further exemption after 8 November 2009.  Taking all of that into account, including Ms Sarkis’ concern for his deteriorating condition, I am satisfied that, if Mr Tablie is still on newstart allowance after 13 November 2009, he will need to seek a further exemption and, on the basis of the latest medical reports, particularly that of Dr Younan and Ms Sarkis, would likely be granted one.  It is preferable that Mr Tablie should not have to worry about a further application for exemption within a very short time.

Decision 

28.     For these reasons the decision of the SSAT made on 28 January 2009 in relation to DSP is affirmed.  The decision in relation to the exemption from the newstart activity test is varied so that the exemption is granted to 8 March 2010.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

Signed: ……[sgd]……..…..

Steven Mulipola, Associate

Date of hearing:  8 September 2009
Date of oral decision:  8 September 2009
Date of written reasons:  17 September 2009
Representative for the Applicant:              Self-represented

Representative for the Respondent:         Centrelink Legal Services and Procurement