Youhana and Secretary, Department of Family and Community Services
[2005] AATA 1104
•8 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1104
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1279
GENERAL ADMINISTRATIVE DIVISION
Re: FUAD YOUHANA
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Dr P.D. Fricker, Member
Date: 8 November 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) P.D. Fricker
Member
SOCIAL SECURITY - disability support pension; whether condition "permanent" at date of claim or within 13 weeks
Social Security Act 1991 s 94(1), Schedule 1B
Social Security (Administration) Act 1999 s 4, Schedule 2
REASONS FOR DECISION
8 November 2005 Dr P.D. Fricker, Member
1. This is an application by Fuad Youhana (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 20 October 2004, which affirmed a decision of an authorised review officer of Centrelink dated 10 September 2004 not to pay the applicant disability support pension.
2. At the hearing on 20 September 2005 Mr Youhana represented himself. Ms Navarro, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Family and Community Services (the respondent).
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T17). The following reports lodged by the applicants were also before the Tribunal;
· report by Dr Andrew Morokoff, dated 25 January 2005, and
· report by Ms Wendy Hall-Wiggins, dated 17 June 2005.
BACKGROUND
4. Mr Youhana immigrated to Australia from Iraq in 1992 at the age of 31. He had previously trained and worked as a radiographer. He worked part-time as a cleaner and later as a cleaning supervisor between 1996 and July 2004 when he was retrenched. In 2002 the applicant was diagnosed with a back condition. He claimed disability support pension on 11 August 2004. His claim was rejected by a delegate to the Secretary of the Department of Family and Community Services, on the basis of a medical examination performed by Health Services Australia on 16 August 2004, and medical reports from Mr Youhana's treating doctors that indicated that his medical condition was not stabilised.
5. The applicant lodged an application for review of the SSAT decision with the Tribunal on 15 November 2004.
6. The issue before the Tribunal is whether the applicant was qualified to receive disability support pension at the time he lodged his claim or within 13 weeks of the date of claim.
EVIDENCE
7. Mr Youhana told the Tribunal that after arriving in Australia in 1992 he undertook part-time studies in 3 subjects at RMIT but could not get funding to proceed with his studies. He also completed a 6 month, full-time English course. In 1996 he obtained work as a cleaner for 20 hours a week and later became a cleaning supervisor in the same firm, until it went into liquidation at the end of May 2004. The initial cleaning job was physically demanding but the later supervisory role was not, except on the small number of occasions that he was required to fill in for an absent worker. He said that at no time was more work available. He performed the same job as a cleaning supervisor working 20 hours a week with another company until the end of July 2004, when he was retrenched. He did not apply for any other work. On 11 August he claimed disability support pension.
8. Mr Youhana said that he had had a back problem since 2002. He suffered from low back pain that radiated down his left leg with some associated numbness in his left leg. The pain has never again been as severe as it had been in 2002. He indicated that his condition had waxed and waned up to the time that he was retrenched and claimed DSP, and continues to the present. He said that most of the time he had symptoms and that he was experiencing numbness in his left calf as he spoke to the Tribunal. He said standing aggravates his symptoms the most, making it difficult for him to stand in the one place for more than 5 to10 minutes; but he has no trouble walking. He said that he could sit for 30 minutes before needing to stand for a few minutes before resuming his seat. He did not alter his seated position throughout the 80 minute hearing but said that he experienced numbness in his left lower leg. He said that currently he would be able to perform his previous work as a cleaning supervisor. He said that he was not taking any medication for his condition. He no longer had physiotherapy and in 2003 had stopped doing the back strengthening exercises, which he had found beneficial after the initial episode of back pain. He said he did not know the reason he had ceased all treatment. He said that after considering back surgery earlier this year he had decided against having an operation after discussing it with his GP, Dr Catanchin, who told him that a 100% guarantee of cure could not be given.
9. Mr Youhana pointed out that he had had two MRI examinations and that he had experienced symptoms of back pain and sciatica since 2002 and on that basis his condition is a permanent one. He said he was keen to work to support his family.
CONSIDERATION OF THE ISSUES
10. Section 94 of the Social Security Act 1991 (the Act) sets out the qualifications 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.
Section 94(1)(a) of the Act provides that in order to qualify for disability support pension a person must have a physical, intellectual or psychiatric impairment.
11. It is clear from the evidence that Mr Youhana has a history of lumbar disc prolapse. Mr Tiew Han from the St Vincent's Health Neurosurgery Clinic provided a written report dated 3 June 2003 (T5). Mr Tiew Han wrote, "His MRI scan showed a focal disc prolapse at L5/S1 causing impingement onto the S1 nerve root". Dr Morokoff, Neurosurgery Registrar at the same clinic, provided a written report dated 25 January 2005. Dr Morokoff wrote, "His recent MRI scan does show significant disc bulge at L5S1...”. Although there is some variation in the severity of the pain described, and there are some inconsistencies between the reports with respect to timing, all the medical evidence points to Mr Youhana suffering from intermittent low back pain and sciatica, which first presented in 2002. I find that Mr Youhana suffers from lumbar disc prolapse resulting in symptoms of varying severity since 2002. Section 94(1)(a) is therefore satisfied.
12. Section 94(1)(b) requires that a person’s impairment is of 20 impairment points. Tables for the assessment of work related impairment for disability support pension are found in Schedule 1B of the Act. The Introduction to the Tables provides guidance as to how the tables are to be applied, and states in part;
4. …For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...
and further:
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. 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 2 years.
13. Mr Youhana made a claim for disability support pension on 11 August 2004. In the Treating Doctor's Report (TDR) dated 7 August 2004 that accompanied Mr Youhana's claim, (T6) his treating doctor, Dr Catanchin, completed a section headed “Clinical Features”. Beside “History” he wrote:
Since Sept 2002 unrelenting severe back pain. Assessed in St Vincent's Hospital. Disc bulge diagnosed, operation contemplated, improved.
Beside “Current symptoms” he wrote:
Intermittent back pain preventing him to (sic) sit, stand, walk for long periods.
The significance of the use of the word Since is resolved by Dr Catanchin’s letter of referral to the St Vincent's Neurosurgery Clinic dated 20 August 2004 (T13), where he wrote:
Thankyou for seeing Fuad Youhana, aged 44yrs, for an opinion and management. Fuad was assessed in your clinic in June 2003 for his L spine and sciatica. He enjoyed a reasonably pain free interval but over the last 2 weeks his pain came back and I wander (sic) whether there's been a deterioration in his disc prolapse.
The referral letter, written at the time of the claim, indicates that at that time Mr Youhana reported a recent recurrence of his symptoms after a pain free period. A report from the neurosurgeon who treated Mr Youhana for the initial episode of disc prolapse further confirms the status of Mr Youhana’s symptoms in the period between the initial episode and July 2004. On 3 June 2003 (T5) Mr Tiew Han wrote:
I reviewed this gentleman in the Neurosurgery Clinic today. His sciatica has completely resolved. He has the occasional back ache but this is not severe enough to warrant any analgesia.
14. The contemporary documents therefore indicate that, in August 2004, Mr Youhana reported a recurrence of symptoms, which prior to that time had been either mild or absent for some time.
15. Mr Youhana ceased work at the end of July 2004. On the claim form (T6) Mr Youhana indicated that he did not leave his work because of his disabilities, illnesses or injuries. He said at the hearing that he had worked part-time because he had been unable to obtain more work and confirmed that he left work because the company he had worked in for 8 years had gone into liquidation.
16. On 7 August 2004 Dr Catanchin (T6) indicated that the impact of Mr Youhana’s condition was expected to persist for 3 to 24 months and that the effect of the condition on his ability to function was uncertain as Mr Youhana may need an operation. In his report dated 16 August 2004 Dr Wong Shee was of the opinion that Mr Youhana’s condition had the potential to improve and that within 24 months he would be likely to have achieved a weekly work capacity of 30 hours per week. In a medical certificate dated 20 August 2004 Dr Catanchin indicated that Mr Youhana would not be likely to be able to work for at least 8 hours a week for more than 2 years.
17. I prefer the opinion of Dr Shee and Dr Catanchin’s earlier opinion, given that on the same day that he revised his prognosis, 20 August, Dr Catanchin, wrote a referral to the Neurosurgery Clinic at St Vincent’s Hospital (T13) indicating that Mr Youhana had a recurrence of his symptoms of only 2 weeks duration.
18. According to the evidence he gave at the hearing, the symptoms Mr Youhana was reporting in August 2004 represented a less severe recurrence of a previous condition that had substantially resolved in the past with conservative treatment. I find the medical opinion in August 2004 that the condition had the potential to improve to be the only logical one.
19. Dr Andrew Morokoff, of the Neurosurgical Outpatient Clinic at St Vincent's Health, where Mr Youhana was referred for management of his condition, provided further medical opinions in a report dated 12 October 2004 (T16). Dr Morokoff wrote:
There are no focal neurological signs however the pain is severe enough to prevent him from sleeping and to prevent him from working as a cleaning supervisor. He has an MRI scan from 2002 which shows a broad based L5/S1 disc prolapse which is no doubt the cause of his sciatica however at that stage was deemed mild enough not to warrant any operative intervention. His current exacerbation of the sciatica is certainly severe enough to prevent him working at this stage for an indeterminate amount of time. We have arranged for him to have further imaging with an MRI to assess if there has been any exacerbation of his L5/S1 disc prolapse.
This report indicated that at October 2004 Mr Youhana's prognosis was uncertain, the length of time the exacerbation would prevent him from working being indeterminate. The report also clearly indicated that further investigation was to be undertaken. I find that in October 2004 Mr Youhana's condition required further investigation in order to determine appropriate treatment options.
20.On 25 January 2005 Dr Morokoff wrote:
…I have discussed with him today the options and offered him a lumbar diskectomy, which would have a good chance of relieving his sciatic pain. I have also mentioned the risks of not making his pain any better or indeed making it worse with a small potential for nerve root injury leaving him with numbness or weakness of his foot or ankle. He is in agreement with us putting him on the waiting list for surgery and he will contact our waiting list officer to definitely confirm that he wants to go ahead and when.
The report demonstrates that Mr Youhana was offered, and at that time was considering, surgical treatment. I also note that according to Mr Youhana's evidence he has not undertaken any conservative treatment of his condition despite his having had a successful resolution of the previous episode while receiving physiotherapy and performing back strengthening exercises.
21. Since January 2005 Mr Youhana has indicated that he does not intend to go ahead with the surgical option and I accept that he may have reasonably held reservations about having an operation. Though he was asked, Mr Youhana did not explain why he is currently having no treatment for his condition. This leaves open the question whether his condition has now improved to a degree that it no longer warrants treatment or if it has not so improved, why no conservative treatment options are being pursued.
22. Although it has been established in the past that Mr Youhana suffers from a lumbar disc prolapse, it is the impairment associated with the exacerbation of the condition experienced in 2004 that is relevant.
23. I find that, before 25 January 2005, investigation of the exacerbation of Mr Youhana's back condition had not been completed. At that time active treatment options were still being considered and there was no evidence of alternative conservative treatment modalities, such as had been used after a previous episode, having being undertaken. His condition, being the impairment related to the exacerbation, could not then be said to have been fully investigated, treated and stabilised during the preceding period. It follows that a rating in the form of impairment points could not be assigned to his condition.
24. The date at which entitlement is assessed or the period within which entitlement is assessed is found at Schedule 2 Section 4(1)(a)(d) and (2)(a) of the Social Security (Administration) Act 1999:
Start day—early claim
4.(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
4.(2) For the purposes of subclause (1), the following provisions have effect:
(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
…
25. This appeal concerns Mr Youhana's qualification for DSP at the date of claim in August 2004 or within 13 weeks as referred to in the Administration Act. Having regard to the medical evidence and Mr Youhana's evidence as discussed above I cannot be satisfied that at the date of claim, 11 August 2004, or within 13 weeks of that date his condition could have been found to be permanent in the sense that within that period it had been fully investigated, treated or stabilised. I failed to be satisfied on the evidence that the condition was considered to have been fully stabilised in that there was unlikely to be any significant functional improvement, with or without reasonable treatment within the next 2 years.
DECISION
26.The Tribunal affirms the decision under review.
I certify that the twenty‑six [26] preceding paragraphs are a true copy of the reasons for the decision of:
P.D. Fricker, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 20 September 2005
Date of decision: 8 November 2005
Advocate for the applicant: Self‑represented
Advocate for the respondent: Ms K. Navarro, Centrelink
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