Rahbar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 636 (22 July 2008)

Administrative Appeals Tribunal

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Rahbar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 636 (22 July 2008)

Last Updated: 22 July 2008

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 636

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/3222

GENERAL ADMINISTRATIVE DIVISION		)
	Re		FARDIN RAHBAR

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr R McRae, Member

Date 22 July 2008

Place Melbourne

Decision

The Tribunal affirms the decision under review.

...................[Sgd]......................
Dr R McRae
Member

SOCIAL SECURITY - disability support pension - ischaemic heart disease: myocardial infarction - lumbar back pain - continuing inability to work - whether able to work 15 hours per week - decision under review affirmed.

Social Security Act 1991 s 94(1) and (2)

Social Security (Administration) Act 1999 ss 36, 37, 41, 42, Sch 2 clause 3, 4(1)

A Guide to the Tables for the Assessment of Work-Related Impairment of Disability Support Pension paragraphs 4, 5, 6

REASONS FOR DECISION

Dr R McRae, Member

1. Mr Fardin Rahbar (the Applicant) seeks a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 21 June 2007. On 1 November 2006 the Applicant lodged a claim for disability support pension (DSP). On 6 February 2007 a Centrelink officer rejected the Applicant’s claim for DSP because he failed to satisfy s 94(1) of the Social Security Act 1991 (the Act). The Applicant sought review of that decision. An authorised review officer (ARO) affirmed the decision on 30 April 2007, as did the SSAT subsequently. Centrelink acts as the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).
2. The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the Act at the time of his claim on 1 November 2006, or within the subsequent 13 weeks (ending on 31 January 2007) (the relevant period). The Tribunal’s decision is that the Applicant was not entitled to DSP during the relevant period.
3. The Applicant was self-represented. He was assisted by an appropriately qualified Farsi interpreter. The Respondent was represented by Mr Michael Todd, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).

BACKGROUND

4. The Applicant is a 46 year old, married, Iranian man who migrated to Australia in 1995. He worked as a taxi driver in Adelaide and developed back pain from lifting heavy suitcases. He had a myocardial infarction in the setting of a history of diabetes mellitus on 22 October 2006 and a subsequent balloon angioplasty on 25 November 2006. The myocardial infarction caused the cancellation of planned back surgery. He ceased work in 2002 due to poor health. He has no other qualifications.
5. The Applicant lodged a claim for DSP on 1 November 2006 (T3). The supporting Treating Doctor’s Report (TDR) completed by the Applicant’s general practitioner (GP), Dr T Sein, on 2 December 2006 (T9). Dr Sein reported that he is not the Applicant’s regular GP at the clinic, but has seen him occasionally and knew him from 22 August 2005. He reported that the Applicant’s myocardial infarction of 22 October 2006 was stable and he was to have regular monitoring, including a cardiologist follow up. The impact was uncertain over the next 3 - 24 months. A second condition was left L2/3 and right L4/5 disc prolapse which causes pain in the low back sometimes shooting down ... legs. He was awaiting an operation postponed because of myocardial infarction. The impact was uncertain over the next 3 - 24 months. Dr Sein also stated that hypoandrogenism existed, with an uncertain improvement expectation. Diabetes mellitus, hyperlipidaemia, osteoarthritis (no joints were identified) and hypertension would be controlled with pills. A subsequent TDR from Dr Sein dated 28 February 2007 was essentially identical.
6. After Centrelink rejected the claim at first instance, the Applicant sought an internal review of the decision. Centrelink then had a job capacity assessment (JCA) conducted (T11). The JCA was conducted by Ms M Giannikopoulos, a registered nurse with Health Services Australia Limited, on 14 December 2006. She relied on the information in the TDR to develop and assign impairment point ratings according to Impairment Table 5.1 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables), in Schedule 1B of the Act. The JCA indicated that the Applicant had a temporary capacity for work of 0-7 hours per week to 12 June 2007; following which he was fit for light, semi-skilled work for 30+ hours per week. She assigned an impairment rating of nil points for the conditions of diabetes and osteoarthritis assessed as permanent. She identified the Applicant’s myocardial infarction, back pain, hypoangrogenism, and hypertension, as being temporary conditions and therefore unable to be assigned an impairment rating under the Tables. Based on that JCA, the ARO affirmed the decision to reject the claim.

APPLICANT’S SUBMISSIONS

7. The Applicant stated that his health was deteriorating. His 22 year old son, who was competent in English, had read and explained the SSAT decision to him. He had no new evidence about his eligibility for DSP during the relevant period but just wanted someone to review the decision.

RESPONDENT’S SUBMISSION

8. The Respondent conceded that the Applicant has a physical impairment, but submits that impairment fails to rate 20 points or more under the Impairment Tables. The Respondent further submitted that the Applicant did not have a continuing inability to work 30 or more hours per week during the qualification period. The Respondent also submitted that there was no impairment that would have prevented the Applicant from undertaking educational or vocational training.

LEGISLATION

9. Section 94(1) of the Act provides that:

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) ...

10. Chapter 1 of the Guide to the Tables for the Assessment of Work-Related Impairment of Disability Support Pension provides that:

Work is defined in section 94(5) of the Social Security Act 1991. For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

11. Paragraphs 4, and 5 of The Introduction to the Impairment Tables provide that:

...

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. (emphasis added)

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.

...

FINDINGS

12. The Applicant claimed DSP on 1 November 2006.
13. Dr Sein performed a reasonably contemporaneous medical assessment. Ms Giannikopoulos embraced Dr Sein’s findings and conclusions in performing her JCA. Dr Sein stated in his TDR that the diabetes mellitus would be managed with pills. It is thus taken to be non-insulin requiring. Dr Sein’s statement of the impacts on ability to function referred to recognised symptoms of each condition and referred to what the Applicant might be prone to in the future. The most significant of these that might have impacted on work capacity was weakness, although no muscle group was identified and none was suggested to be present during the relevant period.
14. The Applicant had a physical impairment of diabetes mellitus which is permanent and was reasonably assigned nil points. With respect to osteoarthritis, the Tribunal notes the comments of Ms Giannikopoulos. However, the Tribunal cannot identify any evidence related to its diagnosis, other than Dr Sein stating osteoarthritis exists. There is no evidence of investigation of any joint. The Tribunal has difficulty in identifying the basis of Ms Giannikopoulos considering it to be a permanent condition. It was assigned nil points and thus has no impact on the determination of points. It was expected that the myocardial infarction would improve with medical management over the next two years. It is appropriate to have considered it to be a temporary impairment. It was expected that the lumbar disc prolapse would improve with surgical management over the next two years. It is appropriate to have considered the lumbar disc prolapse to be temporary. It was expected that hypoandrogenism would improve with medical management over the next two years. It is appropriate to have considered hypoandrogenism to be temporary. It was expected that hypertension would improve with medical management over the next two years. It is appropriate to have considered hypertension to be temporary.

CONCLUSION

15. The Applicant satisfies s 94(1)(a) of the Act in that he had ischaemic heart disease, non-insulin dependant diabetes mellitus and two lumbar disc prolapses during the relevant period. However, these conditions did not attract 20 impairment points as required by the Act.
16. The Tribunal concludes that, at the time of his claim for DSP and in the following 13 weeks, the Applicant did not satisfy the requirements necessary to qualify for DSP.

DECISION

17. Accordingly, the decision to reject the claim for DSP was the correct decision. The Tribunal affirms the decision of the SSAT made on 21 June 2007.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr R McRae, Member

Signed: ..................[Sanjiv Shah]....................

Associate

Date of Hearing 19 March 2008

Date of Decision 22 July 2008

Advocate for the Applicant Self Represented

Advocate for the Respondent Mr M Todd, Centrelink Legal Services