Zreika and Secretary, Department of Family and Community Services

[2004] AATA 1068

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1068

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/377

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAMIH ZREIKA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Senior Member Mrs Josephine Kelly

Date21 September 2004

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal dated 13 January 2004 is affirmed.

[sgd] Mrs Josephine Kelly, Senior Member

REASONS FOR DECISION

21 September 2004 Senior Member Mrs Josephine Kelly      

1.        This is my decision in the matter of S. Zreika and the Secretary of the Department of Family and Community Services, proceedings number N2004/377.  The reviewable decision is that of the Social Security Appeals Tribunal on 13 January 2004 affirming the decision of the authorised review officer of 10 November 2003 affirming the decision made on 23 August 2003 to cancel Mr Zreika's disability support pension (“the pension”).

2.        Mr Zreika was born in Lebanon on 27 November 1950 and arrived in Australia in 1974.  He was granted an invalid pension in 1991.  With changes to legislation the invalid pension was replaced by the disability support pension.  There was a review of Mr Zreika's pension in 1998 when the decision was made to continue it with a further review to occur in five years.  In 1998, impairment for the purposes of the Social Security Act 1991 (“the Act”) was assessed according to percentage tables. More recent legislative changes have altered the system of impairment assessment to one of points.

BACKGROUND

3. Section 94 of the Act applies. Section 94 sets out the requirements for a disability support pension. Relevantly they are section 94(1)(a) which requires that the person has a physical impairment and section 94(1)(b) which requires that the impairment must be 20 points or more under the impairment tables. Those tables are set out in schedule 1B of the Act.

4. The principal issue in this case is whether Mr Zreika satisfies the 20 points requirement in section 94(1)(b).

5. The respondent, the Secretary of the Department of Family Community Services accepts that Mr Zreika has impairments to his neck, five points, and to his back, ten points. That is section 94(1)(a) is satisfied, but not section 94(1)(b). If the points requirement is fulfilled it would be necessary to consider whether Mr Zreika has a continuing inability to work as prescribed in section 94(2)(a) and (b) of the Act.

6.        In the medical and other information filled out by Mr Zreika for the review of his pension, he listed his disabilities, illness or injuries as diabetes, back pain/neck pain, heart problems and stomach ulcer (T22/75).  In the treating doctor's report of Dr Alameddin of 23 May 2003 (T23), the doctor listed Mr Zreika's conditions of lumbar spine discopathy and cervical spondylosis as conditions which have a significant impact on the patient's ability to function.

7.He listed the following conditions in the category “medical conditions which are generally well managed and cause minimal or limited impact on ability to function”: non insulin dependent diabetes mellitus, thoracic, heavy smoker, epicondylitis and trigger finger. 

8.        Apart from the thoracic condition which I assume refers to Mr Zreika's heart, there is no need to consider those matters further as there is no evidence that any points should be attributed to those conditions or to the stomach ulcer Mr Zreika referred to. 

9.        The conditions in issue are the diagnosis of a psychiatric condition by Dr Giurgis and later by Dr Benjamin, and any points that should be accorded to that condition, and secondly the status and impact of Mr Zreika's heart condition. 

10.      Dr Fred Nasser, Cardiologist, has seen Mr Zreika.  The Tribunal had the benefit of four reports from the doctor, dated 5 December 2003 and 25 March 2004 (exhibit R1) and 14 January 2004 and 2 March 2004 (exhibit A1). 

9.        On the evidence of Dr Alameddin, Mr Zreika's general practitioner, and Dr Nasser, Mr Zreika's heart condition is stable, he is angina free and there is no permanent impairment arising from that condition. 

10.      No points have been attributed to his condition by any doctor.  Accordingly, I attribute no points for impairment for the heart condition.

11.      I do not accept Dr Giurgis's diagnosis of depressive adjustment disorder and his attribution of ten points under table 6 (document T31).  Dr Giurgis is an orthopaedic surgeon, not a psychiatrist.  I note that Dr Alameddin did not list any psychiatric condition in his treating doctor's report dated 23 May 2003 (document T23). 

12.      Mr Zreika gave evidence that his previous doctor, Dr Choudhary, had been killed in a car accident more than two and a half years ago and his records were not available.   However, given Dr Alameddin's ongoing care, the absence of any reference to a psychiatric condition is significant.

13.      Dr Benjamin, consultant psychiatrist, first saw Mr Zreika on 15 March 2004.  The difficulty with Dr Benjamin's diagnosis is that it is based on an inaccurate history provided by Mr Zreika which included a three to four year history of increasing irritability, anxiety and social withdrawal and that he was prescribed Lovan, 20 milligram tablets which he took regularly over the past 12 months or so.

13.      The doctor's diagnosis was that Mr Zreika "most likely suffers with Chronic Adjustment Disorder with Depressed Mood.  The differential diagnosis of Major Depressive Disorder may also be considered".  It is clear from Mr Zreika's evidence and the report of Dr Alameddin of 23 August 2004, part of exhibit R1, that Mr Zreika was prescribed no medication for his depression before 17 November 2003 when he was prescribed Lovan.  That presciption, as Mr Zreika said, was as a result of Dr Giurgis's diagnosis in that doctor's report of 25 October 2003, not the result of Dr Alameddin's diagnosis.

14.      When Dr Alameddin saw Mr Zreika after receiving Dr Giurgis's report, he said,  according to Mr Zreika, "I'll put you on Lovan until you see Dr Benjamin".  It was Dr Giurgis, not Dr Alameddin, who referred Mr Zreika to Dr Benjamin.  Apart from Dr Benjamin's report being seven months after the date of cancellation of the pension, the Tribunal does not have confidence in the diagnosis of Dr Benjamin, given the inaccurate history provided.  The doctor assumes that the condition has been treated and has stabilised over a period of 12 months before he saw Mr Zreika and that is not correct.

15.      Further, assuming Mr Zreika has one of the conditions referred to by Dr Benjamin, I am not satisfied that there was any relevant impairment as of the date of cancellation of the pension and accordingly attribute no points to this condition.

16. Therefore, Mr Zreika's impairments total 15 points under the relevant tables arising from his lumbar and cervical spine conditions. Section 94(1)(b) of the Act is therefore not satisfied.

17. Accordingly, it is unnecessary to consider Mr Zreika's capacity to work under section 94(2).

18.      I affirm the decision under review, that is, that of the Social Security Appeals Tribunal of 13 January 2004.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mrs Josephine Kelly

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

Associate

Date/s of Hearing  20 September 2004
Date of Decision  21 September 2004      
Advocate for the Respondent   S Mantaring