Tansa Khattar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 936

[2012] AATA  936

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1844
Re	Tansa Khattar
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	10 December 2012
Date of written reasons	25 January 2013
Place	Sydney

Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal:

1. Affirms part of the decision made by the Social Security Appeals Tribunal on 11 April 2011 (the reviewable decision) namely, that the Applicant does not have a rateable impairment as assessed under the Impairment Tables (Schedule 1B of the Social Security Act 1991 (Cth)) in respect of hypertension and right shoulder condition.
2. Remits to the Respondent for reconsideration the balance of the reviewable decision and notes that the Respondent has undertaken to request the Health Professional Assessment Unit of the Department of Families, Housing, Community Services and Indigenous Affairs to provide an opinion on whether the Applicant’s “cardiac condition” was diagnosed, treated and stabilised during the claim period and, if so, the rating to be awarded under the Impairment Tables.

..................[SGD]......................................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECUTIRY — Disability support pension — Cardiac condition — Whether fully stabilised —Unclear evidence — Referred to Health Professional’s Assessment Unit — Remitted to Social Security Appeals Tribunal

LEGISLATION

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Senior Member A K Britton

21 Decemebr 2012

EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. Mr Khattar seeks review of the decision made by the Social Security Appeals Tribunal which affirmed an earlier decision made by an Authorised Review Officer to reject his claim for disability support pension. The relevant period, for the purpose of the assessment, is between 17 November 2011 and 16 February 2012. To qualify for the disability support pension, the decision-maker, in this case, the Tribunal, must be satisfied that Mr Khattar meets the criteria for a disability support pension which, in short, are: that his impairments are permanent and either individually, or in combination, attract a rating of at least 20 points under the Impairment Tables (Schedule 1B of the Social Security Act 1991 (Cth) (the Act)) (the Tables). In addition, he must have a continuing inability to work.

2. There are, in essence, three conditions Mr Khattar relies upon for the purpose of his claim: hypertension, a shoulder condition (variously described), and a number of cardiac conditions. In my view, neither the hypertension nor the shoulder tear are rateable conditions under the Tables. In respect of the hypertension, I agree with the finding made by the Social Security Appeals Tribunal and by the many job capacity assessors that have assessed Mr Khattar, that that condition is diagnosed, stabilised and fully treated. However, the consensus of medical opinion is that fortunately, in terms of Mr Khattar’s health, the condition does not have any significant impact on his functional capacity and therefore assessed under the Tables, attracts a rating of nil.

3. In respect of the second condition, a full thickness tear of the right shoulder, I note that a diagnosis, to that effect, was given by GP, Dr Rodi on 23 January 2012. The evidence indicates that within the claim period, the condition had not been fully treated or stabilised and, therefore, cannot be rated under the Tables.

4. The focus of our discussion today is the collection of cardiac conditions which Mr Khattar suffers. He has been under the care of cardiologist, Associate Professor David Richards, for five years. In that period has had two heart attacks, most recently in November 2012.

5. A question arises in these proceedings as to whether Mr Khattar’s diagnosed cardiac condition(s) (within the claim period) was the cause of his shortness of breath or dyspnoea on mild exertion. Mr Khattar’s evidence, which is consistent with the history he has given to his cardiologist and which I accept, is that he finds himself out of breath when he walks relatively short distances (up to 10 metres), is unable to push a shopping trolley, requires help with carrying shopping bags, and can no longer undertake more strenuous tasks, such as mowing the lawn.

6. The reason I have decided to remit the matter to the Secretary on terms to which I will return, is because there is a lack of clarity in the medical evidence before me. Dr Rodi is of the view that the dyspnoea is caused by Mr Khattar’s coronary artery disease and achieves a rating of 20 to 30 points. (It is unclear what Table Dr Rodi used in reaching that opinion.) In contrast Associate Professor Richards, wrote in his report of 14 August that:

   “It is my view that neither coronary artery disease nor mild mitral regurgitation or his medical therapy accounts for dyspnoea on mild exertion.”

   Read together with the earlier report provided by Associate Professor Richards dated 10 January 2012, which indicates that there were no electrocardiographic changes to suggest significant myocardial ischemia, this raises the question as to the underlying cause of Mr Khattar’s exercise intolerance.

7. Given this apparently conflicting medical opinion and Mr Khattar’s reduced means and inability to obtain further medical evidence, I am grateful for the offer made by the Secretary to refer the documents provided to the Tribunal to an appropriately qualified specialist within the Health Professional Assessment Unit for the purpose of obtaining an opinion about the nature of Mr Khattar’s heart condition during the claim period and, whether as Dr Rodi apparently believes, coronary artery disease is the cause of Mr Khattar’s exercise intolerance or, as Associate Professor Richards believes, it is not the cause.

8. For these reasons I have decided that the best decision is to remit the matter to the Secretary. The Secretary is requested to refer the documents provided to the Tribunal to the Health Professionals’ Assessment Unit and, if necessary, request further information from Dr Rodi and Associate Professor Richards and, once the Unit provides a report, make a new decision.

9. Mr Khattar if the new decision is to uphold the earlier decision to refuse your claim for disability support pension, you can come back to the Tribunal. I strongly suggest you have a careful look at the report prepared by the Health Professionals’ Assessment Unit before doing so. If the report says essentially “I agree with Dr Richards”, there is probably no value in proceeding with your application in the Tribunal.

10. I will make one comment which might assist future decision-makers in understanding my reasons for decision. The job capacity assessors who have considered Mr Khattar’s cardiac conditions have consistently stated that – and I am referring to the report that was produced on 1 December 2011 by Ms Sarah Brzezawski, starting at page 105 of the T documents. At page 106, she says this, in relation to the cardiac condition:

    “Given the recent exacerbation (heart attack on 7 November 2011), this condition is not yet considered to be stabilised.”

    Words to that effect were picked up by subsequent assessors. The basis for that view has apparently come from the treating doctor’s comment in the initiating medical report (at page 73 of the T documents):

    “….. cardiac state is an unknown quantity at this time.”

11. It is somewhat unclear and inconsistent with some other comments made by Dr Rodi, but it seems to me that during the claim period, Mr Khattar’s cardiac conditions, as known, were fully treated. There is no evidence that there has been any material change in the treatment he has received and I suspect that the reason for the job assessor’s comment was because the term “fully stabilised” has been read to mean, for the purpose of the Tables, “not to deteriorate within the next two years”. In my opinion this puts the test too high. Paragraph 5 of the Tables states:

    “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 two years.”

12. Put simply, a fully treated condition that is expected to deteriorate, within the next two years, on my reading of the Tables, is one that is “fully stabilised”.

13. These are the reasons for my decision. 

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

..................[SGD].....................................................

Associate

Dated 25 January 2013

Date(s) of hearing	10 December 2012
Applicant	In person
Solicitors for the Respondent	Program Litigation and Review Branch, DHS Legal Division