Saadat and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 849 (5 November 2009)

Last Updated: 5 November 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4540

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MOHSEN SAADAT

Applicant

And

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

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 5 November 2009

Place Sydney

Decision

The Tribunal affirms the decision under review.

...................[sgd]......................
Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability support pension - Cancellation - Whether applicant had impairment rating of 20 points under Impairment Tables - Whether applicant had continuing inability to work - Impairment rating five points at time of cancellation - Applicant conceded no continuing inability to work - Decision affirmed

Social Security Act 1991, s 94, Schedule 1B

REASONS FOR DECISION

5 November 2009

Senior Member Jill Toohey

BACKGROUND

1. In February 2006 Centrelink granted Mr Mohsen Saadat a disability support pension (DSP) on the basis of his chronic lower back pain and pain in his right knee.
2. On 4 June 2008 Centrelink cancelled Mr Saadat’s DSP on the ground that he no longer satisfied the requirements in the Social Security Act 1991 (the Act) for the grant of a DSP. In particular, Centrelink decided that Mr Saadat’s impairment no longer met the 20-point rating required by the Act and nor did he have a continuing inability to work.
3. A Centrelink officer reviewed the cancellation decision at Mr Saadat’s request. The officer rated his impairment more highly but still less than the necessary 20 points, and he was not satisfied that Mr Saadat had a continuing inability to work.
4. The Social Security Appeals Tribunal (SSAT) rated Mr Saadat’s impairment slightly differently again but still less than the necessary 20 points. It did not consider it necessary to decide whether he had a continuing inability to work. It affirmed the decision to cancel the DSP.
5. Mr Saadat seeks review of the decision to cancel his DSP.

THE ISSUE

6. I have to determine whether the decision to cancel Mr Saadat’s DSP on 4 June 2008 was correct because he no longer qualified for a DSP.

THE STATUTORY FRAMEWORK

7. In order to qualify for a DSP, Mr Saadat must meet each of the requirements in s 94(1) of the Act.
8. Mr Saadat must have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act: s 94(1)(a) and (b).
9. To be rated according to the Impairment Tables, a condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. It must be considered permanent, meaning that once it has been diagnosed, treated and stabilised, it will more likely than not persist for more than two years. A condition is considered fully stabilised if significant functional improvement, with our without reasonable treatment, within the next two years is unlikely (see: Introduction to the Impairment Tables).
10. Mr Saadat must also have a continuing inability to work within the meaning of ss 94(2)(c) and 94(5) of the Act. When Mr Saadat was granted the DSP, it meant an inability to work for at least 30 hours per week. Amendments to the Act in July 2006 imposed the more restrictive requirement of inability to work for at least 15 hours per week.

THE DECISION TO GRANT MR SAADAT A DSP

11. Mr Saadat was granted a DSP in February 2006 following an assessment by Dr Naveed Shauket of Health Services Australia. Dr Shauket had been provided with a report from Mr Saadat’s treating doctor, Dr Nayef Kanawati, which noted lumbar discopathy, osteospondylosis, osteoarthritis of the knees and hearing loss as conditions affecting Mr Saadat’s ability to work, but otherwise gave few details.
12. Dr Shauket assessed Mr Saadat’s conditions as back pain and osteoarthritis of the knee and back, both of which he considered permanent. He noted that the back pain had only been treated by Mr Saadat’s GP, that treatment consisted only of analgesics and anti-inflammatory medication, and that he was not willing to see a specialist. Dr Shauket nevertheless accorded Mr Saadat’s lower back and right knee pain 10 points each on the Impairment Tables, giving him the necessary 20 points. He also thought Mr Saadat satisfied the requirement of continuing inability to work.

CANCELLATION OF DSP

13. On 15 April 2006 Mr Saadat completed a Medical Review form for the purpose of Centrelink’s review of his DSP. He listed his disabilities as:

“Lumbar disc pathology (lower back pain) Right leg weakness [and] numbness; Hypertension – migraine headaches; left hand OA – unable to move L fingers; hearing loss left ear; obesity (morbid); [Non-insulin-dependent diabetes mellitus]”.

He listed his treatment as anti-inflammatory medication and “physiotherapy (home exercise program)”.

14. A report from Dr Kanawati dated 8 April 2008 listed Mr Saadat’s medical conditions as lumbar discopathy, hypertension, hearing loss, migraine headache, osteoarthritis of the left hand and obesity. Dr Kanawati thought the functional impact of the first two conditions should last more than 24 months and would fluctuate; the others were generally well managed.
15. On 15 May 2008 Nicole Leroy, a Job Capacity Assessor employed on behalf of Centrelink, assessed Mr Saadat. She had Dr Kanawati’s report and material provided by Centrelink, including material provided by Mr Saadat to Centrelink.
16. Ms Leroy assessed Mr Saadat’s conditions as follows:

Hypertension: Fully diagnosed, treated and stabilised. Rating Nil as adequately controlled through medication.

Osteoarthritis of the left hand: Fully diagnosed, treated and stabilised. Rating 5 points.

Spinal disorder: On the basis that Mr Saadat had participated in only about five physiotherapy sessions and had been referred by Dr Kanawati for further treatment to try to improve function, condition not fully diagnosed, treated and stabilised and so not rateable.

Hearing loss: On the basis of Mr Saadat’s advice that he had not undergone any hearing tests or specialist review, condition not fully diagnosed, treated and stabilised and so not rateable.

17. Ms Leroy noted that Mr Saadat had referred pain in his legs but, as Dr Kanawati’s report did not refer to right knee pain, she did not assess this. Nor did she assess Mr Saadat’s headaches as he had not included them in the Medical Review form. She though he could work for 15 to 22 hours per week.
18. Centrelink now say the decision to grant the DSP in 2006 to Mr Saadat was not correct.
19. The SSAT noted that Dr Shauket had concluded that Mr Saadat’s back and knee conditions were permanent even though he had only been seen by his GP and not by any specialist. The SSAT expressed the view that this was inconsistent with the Impairment Tables and that Dr Shauket’s conclusions were not supported by any medical evidence.
20. I agree that there does not appear to a basis for Dr Shauket’s assessment.
21. In any event, for the following reasons, I find that Mr Saadat was not entitled to a DSP on 4 June 2008 and that the decision to cancel his pension was correct.

MR SAADAT’S IMPAIRMENTS

22. Medical reports confirm that Mr Saadat suffers from lower back pain, right knee pain, osteoarthritis of the left hand, hypertension, hearing loss and headaches. Reports refer, in passing, to his obesity but it does not appear to have been dealt with as a condition itself. For the reasons below, nothing turns on this.
23. Centrelink does not dispute, and I am satisfied, that Mr Saadat had the above physical impairments on 4 June 2008 and so satisfied s 94(1) of the Act.
24. In the course of these proceedings, a question has arisen as to whether the major depression, for which Mr Saadat has been treated for some time, is a relevant psychiatric impairment. This is dealt with below.

CONSIDERATION OF IMPAIRMENT RATINGS

25. Centrelink say that, based on the medical evidence, the only conditions that are permanent, and can be rated, are Mr Saadat’s osteoarthritis of the left hand, hypertension and headaches; that his lower back pain, right knee pain and hearing loss cannot be rated because they have not been fully treated and stabilised.
26. Mr Saadat maintains that Ms Leroy interviewed him for only about five minutes and that her assessment cannot be relied upon. Although she could not recall the particular interview, Ms Leroy gave oral evidence that, on average, her interviews take 15 - 20 minutes and, based on the material she had to consider and her report, she could not possibly have completed an interview with Mr Saadat in five minutes. I accept her evidence and am satisfied that she spent adequate time with Mr Saadat to complete her task.

Hypertension

27. Mr Saadat gave evidence to the Tribunal that his hypertension is controlled as long as he does not get angry or upset. This is consistent with Dr Kanawati’s report and not disputed by Ms Leroy. On the basis that his hypertension is controlled, I find that it was correctly rated as Nil points under Table 20.

Osteoarthritis of the left hand

28. Mr Saadat’s left hand was seriously injured in a bomb blast in Lebanon and has lost much of its strength and function. Dr Kanawati supports him in this regard and Ms Leroy does not dispute his report.
29. I find that Mr Saadat’s “demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation ... causes moderate interference with hand functions or manual handling” and is properly rated five points under Table 3.

Lower back pain

30. A CT Lumbar Sacral Spine report from May 2008 concluded that Mr Saadat had spinal canal steniosis at the L3/4 and L4/5 disc levels associated with potential for entrapment of exiting nerve roots bilaterally, and an apparent left sided intervertebral disc prolapse with the potential for left sided nerve root impingement. However, the level of clinical involvement could not be clarified without further tests or an MRI.
31. Dr Kanawati reported that Mr Saadat’s current treatment plan for his lower back included an exercise program and that his planned future treatment was hydrotherapy and physiotherapy.
32. Mr Saadat told Ms Leroy and the Tribunal that he does not exercise on account of the pain. He disputes that Dr Kanawati referred him for physiotherapy or other treatment but says he would attend hydrotherapy, physiotherapy and a pain management program if referred.
33. There is no doubt that Mr Saadat suffers from a painful lower back condition. I note that Dr Shauket considered in 2006 that the condition was permanent but I prefer the opinion of Ms Leroy that it was not fully diagnosed, treated and stabilised in May 2008 and so could not be rated. Dr Shauket’s assessment was conducted two years earlier and his assessment is questionable in several respects. Further, Dr Kanawati reported in April 2008 that Mr Saadat was to undergo further physiotherapy in an effort to improve his lower back. I find that Centrelink’s decision in this regard was correct.

Hearing loss

34. Mr Saadat’s hearing loss had not been fully treated at the relevant time. He did not have a hearing test until 12 September 2008. A report of that date from Connect Hearing confirms he has profound sensorineural hearing loss in his left ear and moderate to severe sensorineural hearing loss in his right ear.
35. Mr Saadat now wears a hearing aid, although he finds it gives him headaches to wear it outdoors, and Centrelink have indicated that it would be appropriate for him to apply again for a DSP. For reasons which are not clear, he has not done so.
36. In any event, on the basis that Mr Saadat’s hearing impairment had not been investigated and treated at the relevant time, I find that Centrelink’s assessment in this regard was correct.

Knee pain

37. Mr Saadat told the Tribunal that he had knee pain before he came to Australia as a result of the same explosion that injured his left hand. I accept his evidence.
38. Dr Kanawati’s report does not refer to knee pain and Mr Saadat did not mention it among the six disabilities he listed for the Medical Review form which he signed on 15 April 2008. He says it is not referred to in Ms Leroy’s report because she did not ask him about it.
39. I accept that Mr Saadat completed the Medical Review form with the help of a friend and that English is not his first language, and that allowances may have to be made for the manner in which he completed this form. However, he has not seen a specialist about his knee and the only treatment consists of deep heat and a knee support that he wears.
40. Mr Saadat’s right knee needs investigation and may need treatment. For this reason, I find the decision that it could not be rated was correct.

Headaches

41. Mr Saadat did not include headaches in the list of disabilities in the Medical Review form and Ms Leroy did not consider them in her assessment.
42. Dr Kanawati noted that Mr Saadat suffered from migraine headaches and that significant improvement was expected. Mr Saadat told the Tribunal that he does not suffer from migraine; he has normal headaches and Dr Kanawati must be lying.
43. I note that, according to the SSAT decision, Mr Saadat told that tribunal that he gets a headache when he gets angry; he had had headaches of this type about three times in the previous six months; they eased after about half an hour with Panadeine Forte.
44. Headaches do not appear to have been taken into account in the decision to cancel the DSP but, given the apparent difference of opinion between Dr Kanawati and Mr Saadat, I think it reasonable to conclude that they are not fully diagnosed. In any event, based on Mr Saadat’s evidence about their occurrence and that they ease fairly quickly with regular medication, they could not be considered more than minor symptoms which are easily tolerated and have no appreciable effect on ability to work. On this basis they would rate Nil points on Table 20 of the Impairment Tables.

Obesity

45. Mr Saadat is a large man and overweight. He says his weight affects his back pain and his ability to function. In response to questioning at the hearing, he said he would accept a referral to a weight management program.
46. Although obesity is mentioned, in passing, in some reports, it does not appear to have been treated as an impairment for the purposes of Mr Saadat’s DSP. In any event, on the basis of his evidence that he would accept a referral to a weight management program, I find that it was not at the relevant time a fully treated and stabilised condition and could not have been accorded a rating on the Impairment Tables.

Depression

47. In the course of this application, medical reports were produced to the Tribunal from Mr Saadat’s current treating doctor, Dr Guirguis, and from Mr Onsy Mattar, a clinical psychologist, indicating that Mr Saadat has suffered from, and been treated for, major depression for many years.
48. Centrelink submitted that Mr Saadat’s depression could not be taken into account in this review because it first came to light well after the decision to cancel Mr Saadat’s DSP. However, the reports were ambiguous as to the date of its onset and its severity and so the Tribunal sought further information from Dr Guirguis.
49. Although her earlier reports suggested otherwise, Dr Guirguis has clarified, and Mr Saadat does not dispute, that he was diagnosed with depression in October 2008 and was referred for counselling on 27 January 2009. In a letter dated 9 February 2009 to Dr Guirguis, Mr Mattar reported that he had seen Mr Saadat and would keep her informed about his progress.
50. On the basis that, on 4 June 2008, Mr Saadat’s depression was not a fully documented, diagnosed condition which had been investigated, treated or stabilised, I am satisfied that it was not a rateable condition according to the Impairment Tables.

CONTINUING INABILITY TO WORK

51. Because Mr Saadat’s impairment does not meet the necessary rating on the Impairment Tables, it is not necessary to decide whether he also has a continuing inability to work. I note, however, that at the conclusion of the hearing, Mr Saadat volunteered that he could work for 15 hours each week, for example as a security officer or fork lift driver, but no one will employ him. He said it is difficult enough at his age and no one wants to employ someone with his disabilities.

CONCLUSION

52. I find, on the evidence before me, that Mr Saadat’s rateable conditions at the relevant time were osteoarthritis of the left hand and hypertension, the combined rating of which was five points. None of his other conditions was fully diagnosed, treated and stabilised at the relevant time and so could not be rated. It follows that Mr Saadat’s impairment did not meet the necessary 20 point rating on the Impairment Tables at the relevant time and that the decision to cancel his DSP was correct.

DECISION

53. The decision made on 4 June 2008 to cancel Mr Saadat’s pension was correct and the decision under review is affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

Signed: .........[sgd].........

Steven Mulipola, Associate

Dates of hearing: 2 September 2009; 30 October 2009

Date of decision: 5 November 2009

Representative for the Applicant: Self-represented

Representative for the Respondent: Centrelink Legal Services and Procurement