Talal Salim and Secretary, Department of Social Services

[2015] AATA 284

[2015] AATA  284

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4578
Re	Talal Salim
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	30 April 2015
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth); s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

CASES

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Professor R McCallum AO, Member

30 April 2015

INTRODUCTION

1. Mr Talal Salim, the Applicant, was granted the Disability Support Pension (DSP) in March 1995. However, in March 2012, his DSP was cancelled because he had travelled overseas longer than is permitted by the maximum portability rules.

2. On 19 June 2012 Mr Salim re-applied for DSP, but Centrelink refused his application. He sought review from an Authorised Review Officer (ARO), and then he appealed to the Social Security Appeals Tribunal (SSAT), both of whom affirmed the decision. Mr Salim now appeals to this Tribunal for review of the SSAT’s decision.

   THE LEGISLATION

3. The provisions governing eligibility for and payability of DSP are contained in the Social Security Act 1991 (Cth) (the SS Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

4. The criteria for DSP are set out in section 94 of the SS Act, which relevantly provides:

   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment;

   (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;

   ...

5. Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, I must find that that these impairments rate at least 20 points under the Impairment Tables which are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Finally, I must be satisfied that the Applicant has a continuing inability to work.

   The 13 week qualifying period

6. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. This clause is worded in a complex manner; however, it imposes by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Salim's eligibility for DSP in the 13 week period commencing on the day on which Mr Salim applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Salim qualified for DSP between 19 June 2012 and 17 September 2012.

7. This matter was heard before me on 26 March 2015, which is more than two years and eight months since

8. Mr Salim made his claim on 19 June 2012.

9. The operation of the 13 week period is explained in Re Fanning and Secretary, Department of Social Services [2014] AATA 447. Deputy President Handley said at [31]-[33]:

   [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.

   [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

   [33]…The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

10. Therefore, in determining the eligibility of the Applicant to receive DSP, I am confined to examining the Applicant's impairments during the 13 week qualifying period between 19 June 2012 and 17 September 2012.

    THE RESPONDENT’S CONCESSIONS

11. Paragraphs 27 and 28 of the Respondent's Statement of Facts and Contentions are as follows:

    27. The Respondent accepts that, within the claim period, the Applicant suffered from physical and psychiatric impairments, including:

    a. mental health conditions;

    b. multiple arthropathy/intervertebral disc disorder;

    c. right shoulder and upper arm disorder (rotator cuff syndrome);

    d. hyperlipidaemia/hypertension;

    e. gastro-oesophageal reflux disease (GORD);

    f. renal calculus; and

    g. vitiligo (skin disorder).

    28. Therefore, the Respondent accepts that subsection 94(1)(a) of the Act is satisfied.

12. At the hearing, the Respondent agreed that Mr Salim's multiple arthropathy and intervertebral disc disorder warranted an impairment rating of five points under Table 3 - Lower Limb Function.

    THE ISSUES BEFORE THE TRIBUNAL

13. It is agreed that Mr Salim has impairments which satisfy section 94(1)(a) of the SS Act. Therefore, the primary issue which I am required to decide is whether, pursuant to section 94(1)(b) of the SS Act, Mr Salim's impairments may be assigned a rating of 20 points or more under the Impairment Tables. If I find in Mr Salim's favour, I am required to further decide whether Mr Salim has a continuing inability to work, pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    The Impairment Tables

14. Section 94(1)(b) of the SS Act obliges me to decide whether the Applicant’s impairments rate 20 points or more under the Impairment Tables. As I have elaborated above, the Impairment Tables are found in the Determination, which also contains the rules for applying the Impairment Tables.

15. This requires a few words of explanation. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5]-[6] Senior Member Isenberg elaborates on the operation of the Impairment Tables as follows:

    [5]...The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

16. Importantly, impairments can only be assigned ratings under the Tables when the medical condition is permanent within the meaning of the Determination; and the impairment resulting from the condition is likely to persist for more than two years. At subsection 6(4), the Determination provides that a condition is considered to be permanent if it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.

17. Subsection 6(5) of the Determination provides that when deciding whether a condition is fully diagnosed and treated one must consider first, whether there is corroborating evidence of the condition; then the treatment or rehabilitation that has occurred in relation to the condition; and lastly, whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

18. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. Subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.

    THE EVIDENCE OF MR SALIM

19. Mr Salim gave sworn evidence with the assistance of an interpreter of the Arabic language.

20. Mr Salim explained started receiving DSP in 1995 after he had been in a car  accident. He said he had broken his leg and that his head had hit the roof of the car.

21. Mr Salim said that he travelled to Jordan via Lebanon to receive medical treatment in 2011-2012 and that he was away from Australia for six months. He said that had he realised that this absence overseas would cause the cancellation of his DSP, he would have returned to Australia much earlier.

22. Mr Salim said that on the morning of the hearing in this matter, his wife dropped him off at Liverpool railway station. He travelled to Town Hall station and walked slowly to the hearing, but he said that his head was hurting. He had a walking stick with him.

23. Mr Salim said that he does drive a car to visit the doctor, but he only drives for about 15 minutes. He said that he found it difficult to sit for more than five minutes. He did sit for most of the hearing, which lasted one and a half hours. He stood up on several occasions, and there was a five minute adjournment.

24. Mr Salim said that his health has deteriorated over the last two years. He said that he sits at home most days and goes for occasional walks.

25. Mr Salim said that he has a mental illness, which he described as a stroke. He said that there is pain in his head. He said that sometimes he thinks of killing himself. He said that he does get angry, for example, with his three year old daughter.

26. Mr Salim said that he has a skin condition which has spread from his arms to the rest of his body. He said this skin disease is a result of his mental difficulties. It limits his social interactions. One of the reasons why he travelled to Jordan was to seek treatment for his skin condition.

27. Mr Salim said that he returned to Lebanon in 2014 because his mother had passed away.

    THE DOCUMENTARY EVIDENCE

28. The following documents are before the Tribunal: the Respondent's Statement of Facts and Contentions; the documents prepared by the Respondent for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents); the supplementary T documents; further documents from the Applicant dated February 2015; and a medical certificate from Dr Mustapha Alameddin. Most of these documents are medical reports and medical certificates which describe Mr Salim's medical history and treatment in detail.

    CONSIDERATION

29. The primary issue which I am required to decide is whether, pursuant to section 94(1)(b) of the SS Act, Mr Salim's impairments may be assigned a rating of 20 points or more under the Impairment Tables according to their effect on him during the claim period, from 19 June 2012 to 17 September 2012. I appreciate that more than two years have elapsed since then. In his evidence, Mr Salim said that his medical conditions have deteriorated over the last two years. I give greatest weight to the medical reports written during and around the claim period.

30. I shall now examine Mr Salim's impairments, having regard to his oral evidence and to the extensive medical evidence.

    Mental Health Conditions

31. Mr Salim does suffer from mental impairments, and there are before the Tribunal a significant number of medical reports which describe these impairments in some detail. I note the reports from his treating general practitioner, Dr Alameddin. These reports carefully describe Mr Salim's ongoing conditions of depression, anxiety, schizophrenia and post-traumatic stress disorder. However, I am required to decide whether these mental health conditions were fully diagnosed, treated and stabilised during the claim period.

32. The relevant table is Table 5 - Mental Health Function. The Introduction to Table 5 states:

    (a)The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    (b)Self-report of symptoms alone is insufficient.

33. Dr Pauline Byrne, a senior staff specialist psychiatrist at Liverpool Hospital, examined Mr Salim. In her report dated 4 October 2012, Dr Byrne described Mr Salim's history of mental illness. She referred Mr Salim for an MRI brain scan and suggested he change his medication.

34. I note in the report dated 16 November 2012, Stephen Wright, clinical nurse consultant in mental health, referred Mr Salim to an neuropsychologist. I also note in the report of Dr Muhamad Ziedni, clinical psychologist, dated 19 November 2014, Dr Ziedni wrote that Mr Salim had completed 10 weekly psychological sessions, and that his mental condition did indeed stabilise.

35. Having regard to all of the medical evidence, and especially the reports of Dr Byrne, Dr Ziedni and Mr Wright, it is clear that during the claim period Mr Salim's mental impairments had not been fully diagnosed or treated. Accordingly, I find that his mental impairments cannot be assessed under Table 5.

    Multiple arthropathy/intervertebral disc disorder

36. From the medical evidence before the Tribunal, and also from Mr Salim's evidence, I find that Mr Salim does suffer from arthropathy affecting his neck, lower back, left knee, right ankle, left wrist and right shoulder, as well as intervertebral disc disorder. The Respondent accepts that these impairments warrant five points under Table 3 – Lower Limb Function.

37. I agree with the Respondent that these impairments have a mild functional impact on Mr Salim's activities. Mr Salim does have some difficulty in walking distances, and he uses a walking stick as an aid. The impairments therefore attract five points under Table 3.

    Skin Condition  

38. From the medical evidence and from the evidence of Mr Salim, I find that he did suffer from vitiligo (that is, a disease of the skin) during the claim period. In his evidence before me, Mr Salim said that after treatment in Sydney for his skin disease was unsuccessful, he sought further treatment in Jordan. He explained that his vitiligo has spread from his two arms to the rest of his body and that it is itchy. He also said that he couldn't go out in the sun much. I note the report of Dr Abraham dated 25 September 2014 where it is concluded that Mr Salim’s skin disease does impact upon his functioning. It does require treatment three times a week and it does impact on his personal relationship.

39. I have come to the conclusion that Mr Salim's vitiligo was fully diagnosed, treated and stabilised during the claim period and is therefore assessable under Table 14 - Functions of the Skin. I have found it difficult to assess the impact which Mr Salim’s vitiligo has on his daily life. On reflection, however, I find that Mr Salim's vitiligo has a mild impact on his functioning, and therefore attracts five points.

    Rotator cuff syndrome

40. The Respondent accepted that Mr Salim did suffer from rotator cuff syndrome in his right arm during the claim period. There is not a great deal of medical evidence about this impairment.

41. Mr Salim's general practitioner, Dr Alameddin, discussed his rotator cuff syndrome in his reports of 24 July 2012 and 11 March 2013. He concluded that Mr Salim suffered from rotator cuff syndrome in his right shoulder and that this condition was generally well managed, and caused minimal or limited impact on his ability to function and significant improvement was expected. However, in his subsequent medical report dated 2 September 2014, Dr Alameddin said that the rotator cuff syndrome affected Mr Salim significantly, though the doctor did not provide details concerning the functional impact of this condition.

42. On the evidence before me, I find that Mr Salim's rotator cuff syndrome was not fully diagnosed, treated and stabilised during the claim period. Therefore, I am unable to assign this condition an impairment rating.

    Hypertension

43. I find that Mr Salim's hypertension (high blood pressure) was fully diagnosed, treated and stabilised during the claim period. From the medical evidence concerning Mr Salim's hypertension, which is not detailed, I find that it appears to be well managed. Given the insufficiency of the evidence, I am unable to assign it an impairment rating.

    Hyperlipidaemia

44. I find that Mr Salim did suffer from hyperlipidaemia during the claim period. In his report of 24 July 2012 – as well as in three other reports − Dr Alameddin held that Mr Salim's hyperlipidaemia was generally well managed and noted that significant improvement was expected. I therefore find that Mr Salim's hyperlipidaemia was not fully diagnosed, treated and stabilised during the claim period and that it therefore cannot be assigned an impairment rating.

    Gastro-oesophageal reflux disease (GORD)

45. From the medical evidence, I find that Mr Salim does suffer from GORD and that it was fully diagnosed, stabilised and treated during the claim period. The only medical evidence concerning this impairment is from Dr Alameddin, who writes that the disorder is well managed. Accordingly, I find that Mr Salim's GORD to be assessed at nil points under Table 10 - Digestive and Reproductive Function.

    Renal calculus

46. From the medical evidence, I find that Mr Salim does suffer from renal calculus. Dr Alameddin stated in his reports that this impairment was generally well managed and had a minimal impact on the functioning of Mr Salim, and that improvement is expected. Accordingly, I find that Mr Salim's renal calculus was not fully diagnosed, treated and stabilised during the claim period.

    CONCLUSION

47. In sum, I find that Mr Salim's impairments are assessable at 10 points under the Impairment Tables. As his impairments do not rate 20 points, I find that Mr Salim does not satisfy section 94(1)(b) of the SS Act.

48. As I have found that Mr Salim does not satisfy section 94(1)(b), it is not necessary for me to decide whether Mr Salim has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

49. I have considerable sympathy for Mr Salim. In evidence before me, he said that had he known that the length of his stay in Lebanon and Jordan would lead to the cancellation of his DSP, he would have returned to Australia earlier. Mr Salim has not worked for 20 years and the evidence before me suggests his conditions have conditions have continued to deteriorate since the claim period. I trust that Centrelink will offer him appropriate advice and assistance.

    DECISION

50. The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 30 April 2015

Date of hearing	26 March 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services