Wahabzadah and Secretary, Department of Family and Community Services

[2004] AATA 395

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 395

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2003/1504

GENERAL ADMINISTRATIVE DIVISION		)
Re		ABDUL WAHABZADAH

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal MS N BELL

Date20 April 2004 

PlaceSydney

Decision The decision under review is affirmed.

[sgd]  Ms N Bell, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant reassessed by Health Services Australia – condition improved - applicant no longer qualifies under impairment tables – decision affirmed

REASONS FOR DECISION

20 April 2004 MS N BELL            

1.      Mr Wahabzadah (“the Applicant”), was born in 1972, and has been in receipt of disability support pension from 1998.  His entitlement to that pension was reviewed by the respondent in January 2003 after reports had been obtained by the Respondent from the Applicant’s treating doctor, Dr Wassef, and after he was examined by Dr Kotulski, a Health Services Australia medical adviser.

2.      The Applicant was assessed by the Respondent as having back pain and non-insulin dependent diabetes.

3. Section 94 of the Social Security Act 1991 provides relevantly:

Qualification for disability support pension

94(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.

Meaning of continuing inability

94(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 within the next 2 years; and

(b)       either:

(i)        the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)       if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)       the availability to the person of educational or vocational training or on-the-job training; or

(b)       if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4)  For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5)  In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"work" means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)       that exists in Australia, even if not within the person's locally accessible labour market.

4. The Respondent used the Impairment Tables referred to in section 94(1)(b) of the Act in making its assessment and it concluded that under those tables the Applicant attracted only 10 points in respect of his back condition and no points in respect of his diabetes. When the pension was granted in 1998, the Respondent had allocated 20 points under the Impairment Tables in respect of the Applicant’s back pain and leg pain and found that he had a continuing inability to work. The Respondent contends that the Applicant’s conditions have improved and that he no longer qualifies for the pension.

5.      In reaching its decision in respect of the Applicant’s back pain, the Respondent relied on the report of Dr Kotulski dated 23 January 2003, noted above, the report of Ms Joseph, Rehabilitation Consultant, dated 1 May 2003, and the report of Drs Reilly and Wong dated 21 February 2004 in response to the report of the Applicant’s other treating doctor, Dr Hanna.

6.      Dr Hanna had assessed the Applicant as attracting 20 points under table 4 of the Impairment Tables in respect of his back pain, 20 points under Table 19 in respect of his diabetes, 10 points under Table 20 in respect of the Applicant’s high blood pressure which Dr Hanna said gives rise to headaches, dizziness and lethargy and noted that he suffers from plantar fasciitis which prevents him from standing or walking for more than 15 minutes.

7.      The Applicant told the Tribunal that he suffers from sharp back pain on 5 or 6 days out of 7 and takes Panadeine Forte to relieve it.  He said his pain limits his ability to sit, walk and stand.  He said his back pain also affects his legs from his knees to his ankles.

8.      In respect of his diabetes, the Applicant said he takes medication prescribed by his doctor and saw a specialist about 4 years ago.  He said the last time he fainted was a week ago and when pressed said that when he “faints” he does not lose consciousness but becomes dizzy.  He said he did not go to see his doctor when this happened because he is used to it.  He said he came to the Tribunal alone, having caught the train from Mt Druitt.

9.      The Applicant said he last changed his dose of medication for diabetes about 1 month ago and feels some improvement as a result but he is not “100%”.  He said he tests his blood sugar levels 3 or 4 times per day and finds they are not constant.  He said when his levels fluctuate or he gets shaky he takes his medication or eats something and feels better.

10.     In relation to his blood pressure, the Applicant said he has been on blood pressure medication for a few months but does not like taking so much medication and avoids it if he can.  He said his blood pressure problems make him dizzy, shaky and drowsy and the medication helps him.

11.     In relation to his plantar fasciitis, the Applicant said he gets pain when he walks or stands for a long time but it is not a big problem compared to his back.  He sees it as being associated with his back problems.

12.     He said he spends an average day getting up at about 8.00 or 8.30 am, having breakfast, going for a walk, doing some exercise for his back for about 30 minutes, watching the news and reading.  He said his wife does everything in the home including caring for their 6 children and he doesn’t go out except to go to the mosque (where he sits on a chair rather than kneels) or to visit relatives.

13.     The Applicant said his pain is still not manageable when he takes Panadeine Forte but he has not attended a pain management clinic or considered surgery. 

14.     He said he can drive for short distances and wash and dress himself but cannot carry more than 5 kilograms.  He said he does help his wife with the cooking sometimes.

15.     The Applicant said he travelled to Saudi Arabia in 2003 to see relatives and to India in 2002 also to see relatives.  The plane trips were over 9 hours and he said he had some discomfort and back pain.  He confirmed that until May 2003 he had worked for 8 to 10 hours per week assisting customers at Woolworths but had to cease this work because of his back pain.  He said he took many breaks for his back when working.

16.     The Applicant said he does not consider himself fit for any work because of his medical conditions.  He also said he could not undertake any training because of his pain.  He said he was unable to finish the courses he had begun in mechanical engineering, literacy and numeracy and information technology.  All but one of these courses was done by correspondence.

17.     The first issue for the Tribunal to consider is whether the Applicant has 20 points under the Impairment Tables in respect of his physical impairments.  In relation to his back, I note that Dr Hanna has allocated 20 points under Table 4 while the Respondent has assessed him under Table 5.2.  I was referred by the Respondent’s representative to paragragh 8 of the Introduction to the Tables which says:

“8.  In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.  For example, Table 5 should be used for spinal pathology.  However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.  Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment.  Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.”

18.     I note that in document T21 Dr Kotulski assesses the Applicant as having a loss of one quarter of the range of movement in his back with pain.  No mention is made by Dr Hanna of either loss of range of movement or chronic or entrenched pain.  On this basis I conclude that the appropriate Table on which to rate the Applicant’s back condition is Table 5.2 which provides a rating of 10 points for:

“TEN

Loss of one-quarter of normal range of movement as well as back pain or referred pain:

·        with many physical activities and

·        with standing for about 30 minutes and

·        with sitting or driving for about 60 minutes.

          or

Loss of half of normal range of movement.”

19.     This section of the Table also refers to referred pain and would therefore canvass the hip and leg pain complained of by the Applicant.

20.     In relation to the Applicant’s diabetes, Dr Hanna states that his diabetes is poorly controlled.  Drs Reilly and Wong, however, noted that Dr Hanna has not referred the Applicant to a specialist or placed him on insulin, which would be done if his diabetes was not adequately controlled by medication.  The doctors also noted that the Applicant had no documented hypoglycaemic episodes and no end organ damage.  Dr Hanna appears not to be aware that the Applicant does his own blood sugar levels.  I agree with Drs Reilly and Wong that it is difficult to obtain a clear picture of the Applicant’s condition.  The relevant Table is Table 19 which says:

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
NIL	Thyroid 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.
TEN	Thyroid 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.
TWENTY	Diabetes 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.

21.     Only the first and second paragraphs appear to relate to diabetes mellitus and, given the absence of hospital admissions, documented hypoglycaemic episodes or end organ damage, the third paragraph has no application to the Applicant.  Therefore, the appropriate rating for the Applicant’s diabetes is nil.

22.     Dr Hanna said that the Applicant suffers from high blood pressure that occasionally gives him headaches, dizziness and lethargy but according to Dr Reilly has not prescribed medication.  However, the Applicant said that he takes medication for his blood pressure but does not know its name.  Table 20 provides as follows:

TABLE 20.MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (IE BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension.  Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used.  Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating

Criteria

NIL

Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN

Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.  There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN

Moderate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

TWENTY

More severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work-related tasks.  Symptoms may cause prolonged absences from work.

THIRTY

Very severe symptoms which lead to substantial difficulty with most daily tasks.  Assistance with elements of self-care may be required.  Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension - severe, uncontrolled

Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTY

Major restrictions in many everyday activities.  Capacity for self-care is restricted, leading to dependence on others.  No residual work capacity.

23.     There is no evidence to suggest that the Applicant has received “intensive therapy” for hypertension.  He thus does not attract a rating of 10 points.  Nor is there evidence that the Applicant‘s high blood pressure is as serious as described in the paragraphs that follow.  Accordingly, he attracts a rating of nil for that condition.

24.     The Applicant’s dizziness remains undiagnosed according to his treating doctor and so cannot be rated.  His plantar fasciitis is, on his own evidence far less painful than his back and has not been allocated a rating by any of the doctors whose evidence is before the Tribunal.

25. It follows that the Applicant has an impairment rating of 10 points under the Impairment Tables. He therefore does not satisfy the requirement in section 94(1)(b) of the Act and does not qualify to receive disability support pension. It is therefore unnecessary to consider whether he has a continuing ability to work.

Decision

26.     I affirm the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  22 March 2004
Date of Decision  20 April 2004
Representative for the Applicant               Self
Representative for the Respondent          George Lozynsky