Abou-Sinna and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1196

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1196

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600804

GENERAL ADMINISTRATIVE DIVISION		)
Re		MERVAT ABOU-SINNA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Regina Perton

Date30 March 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points – whether condition stabilised and treated – decision affirmed

Social Security Act 1991 s 94(1), s 94(2), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

30 March 2007 Regina Perton       

1.      Mrs Mervat Abou-Sinna is in her early fifties.  She suffers from visual and physical problems.  She has been out of the paid workforce for a considerable period.  She has four children, the youngest of whom is now 14 years old.  On 31 January 2006 Mrs Abou-Sinna applied to Centrelink for disability support pension (DSP).  Centrelink delivers services for the Department of Employment and Workplace Relations.  On 7 June 2006 a Centrelink officer refused the application.  Mrs Abou-Sinna’s medical condition was assessed as having an impairment rating of less than 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  On 22 June 2006, an authorised review officer (ARO) reviewed the decision and confirmed that Mrs Abou-Sinna was not eligible for DSP. 

2.      On 8 August 2006, the Social Security Appeals Tribunal (SSAT) affirmed the decision to refuse DSP on the basis that Mrs Abou-Sinna’s impairments had not yet been fully diagnosed, treated and stabilised as required under the Impairment Tables.  Mrs Abou-Sinna lodged an application for review of the SSAT decision with this Tribunal on 4 September 2006.

3.      The issue before the Tribunal is whether Mrs Abou-Sinna satisfied the requirements for DSP as at 31 January 2006 (the date of her claim) or within 13 weeks of that date.

EVIDENCE

4.      At the hearing, Mrs Abou-Sinna described the daily difficulties she faced.  She said that her eye condition is permanent.  The eye specialists have advised her that her vision cannot be improved by an operation.  She uses eye drops daily.  She is unable to read a computer screen effectively or read books.  Mrs Abou-Sinna described the physical pain she experiences all over her body.  She stated that this pain is permanent, with no medical treatment available apart from pain killers.  Her heels have been particularly painful.  She has sought podiatric treatment.  It was suggested that she try orthotics in her shoes but when she tried a pair prepared for her daughter who has the same size feet, they were ineffective in alleviating the pain in her feet and legs.  A physiotherapist gave her exercises to do, which she does regularly; but they have not improved her condition either.  Mrs Abou-Sinna said that she used to see the physiotherapist from time to time but it is too expensive to attend more often.  In any case, the physiotherapist was not particularly helpful.  Mrs Abou-Sinna can no longer wear shoes comfortably due to additional problems that have developed in her big toe.  Her footwear now consists of a pair of thongs.  

5.      Mrs Abou-Sinna said that it takes her a long time to get out of bed in the morning due to her pain.  She said that she cannot sit or stand for lengthy periods.  Her children have been trying to encourage her to walk with them in the nearby park but she finds it too difficult.  Mrs Abou-Sinna said that she tries to hide her pain as best she can.  In relation to the severe acne she suffers, she has experienced little relief from the use of prescribed creams.  Mrs Abou-Sinna said that because of her multiple medical conditions, she cannot undertake training or work.  She stressed that all her conditions are permanent and the pain she feels is getting worse.

6.      In her application for DSP Mrs Abou-Sinna listed the conditions from which she suffers as including an abnormal retina which affected her vision and was not operable, very high cholesterol and pain in her elbow, knee and heel.  She stated that she also suffered from dizziness, pain and headache.  She stated that she had no problem sitting but found it difficult all the time to walk, lift or carry.  She often found it difficult to read, write, attend appointments or manage her personal affairs. 

7.      In a Treating doctor’s report dated 18 January 2006, Dr R F Johnson indicated that Mrs Abou-Sinna had one or more medical conditions which had a significant impact on her ability to function.  Condition 1 was described as Arthralgia in both elbows, both hips & both knees.  Dr Johnson stated that his patient had complained of pain and stiffness in her elbows, hips and knees for several months.  His description of her symptoms at that time was All her bones continually ache.  Pain with standing, walking, lifting, sitting.  Dr Johnson stated that his patient’s then current treatments were analgesics and NSAIDs (non-steroidal anti-inflammatory drugs), the latter apparently not helping.  He stated that he intended to refer Mrs Abou-Sinna to a rheumatologist.  Dr Johnson stated that the condition would persist for more than two years but the impact on his patient’s ability to function would fluctuate.  Dr Johnson’s letter of referral dated 5 September 2005 indicated that Mrs Abou-Sinna had been complaining of pain in her knees, elbows and feet for some 12 months but he had been unable to identify the reason for the pain and he was therefore seeking the specialist’s advice.  A report from Dr Tim Rutherford, Dermatology Registrar at the Royal Melbourne Hospital, dated 20 December 2005 indicates that Mrs Abou-Sinna’s severe acne required specified medication and also provides details of her very high cholesterol reading.  A report dated 22 August 2005 from the Royal Victorian Eye and Ear Hospital describes Mrs Abou-Sinna as having several eye problems and that she is not fit for work.

8.      On 23 March 2006, Dr Therese Paulson of Health Services Australia (HSA), who had examined Mrs Abou-Sinna at Centrelink’s request, referred her to an ophthalmologist for an opinion on her eye conditions.  On 26 May 2006, Dr Mark Lazarus, Eye Specialist, provided a report to Dr Paulson in which he stated that Mrs Abou‑Sinna had a 70 per cent loss of central vision in the right eye but no loss of central vision in the left eye.  He provided the following prognosis: 

5.0 Visual prognosis.

From an opthalmological point of view Mrs Mervat is a high myopic who had a retinal detachment and loss of the intra ocular lens in the right eye that has affected her vision.   The loss of vision in the right eye is a permanent condition, but further deterioration is unlikely to occur.  Improvement is unlikely to occur. 

9.      Dr Paulson provided an initial report to Centrelink on 23 March 2006 and a supplementary report after receipt of Dr Lazarus’s report.  After reporting on Mrs Abou-Sinna’s eye problems, Dr Paulson stated:

Her subjective musculoskletal symptoms (aches and pains in the elbows feet knees and hips) are acknowledged, but in the absence of any significant objective loss of function and given that the visual impairment is not severe I am of the view that this person’s medical conditions alone would not preclude light full-time work.  I acknowledge, however, that there are non-medical barriers to employment present. 

Suitable work would include office work, customer service in a light milieu car park attendant gatekeeper.

Main barriers to economic social participation: V01 limited employment history (stopped work 15-20 years ago) H01 physical limitations (limited to lighter work), V02 limited skills/experience in suitable work, V04 limited work goals, U01 motivation (lack thereof). 

Suggested intervention:  U61 personal support program (build confidence, assist in setting goals, hopefully lead to economic participation), V56 on the job training for light work E57 adult short courses vocational (to improve her skills base and broaden job options), V59 job seeking mainstream.

10.     In the letter dated 7 June 2006 refusing DSP, the Centrelink delegate advised Mrs Abou-Sinna that she had been assigned no points under the Impairment Tables for her visual impairment as she had reasonable vision in her other eye.  She received no points for her skin disorder as it did not limit her normal daily activities.  No points were awarded for her arthralgia as the pain in her knees, hips, feet and elbows were considered temporary conditions as the conditions had not been fully diagnosed, treated and stabilised.  

11.     Mrs Abou-Sinna challenged the delegate’s decision on the basis that her doctor had stated that she could not work.  On 22 June 2006, an ARO affirmed the decision on the basis of the same evidence that was before the delegate, but provided a more comprehensive explanation of the basis for the decision. 

12.     Mrs Abou-Sinna provided Centrelink with an undated report from Dr Beltz of the Royal Victorian Eye and Ear Hospital which appears to have been prepared in late March 2006.  Dr Beltz indicated that Mrs Abou-Sinna suffered from myopic retinal degeneration both eyes with reduced vision.  Dr Beltz indicated that Mrs Abou-Sinna had had multiple operations in her right eye and no further surgery was indicated.  He indicated that she had reduced mobility as a consequence of her visual problems.

13.     After her hearing before the SSAT, Mrs Abou-Sinna wrote to the SSAT that day to inform them of a fall she had experienced some eight weeks earlier which she had forgotten to mention.  The fall resulted in Mrs Abou-Sinna hitting her head hard on the floor and caused her eyes to bleed for several weeks.  She stated that her vision was now worse as a result.  She also injured her foot which was now worse than before; as was her elbow.  She provided evidence of a visit to and prescriptions filled at the Royal Melbourne Hospital concerning her skin condition, cholesterol and other conditions.  She also provided evidence of appointments scheduled for September and October 2006 with a rheumatologist, a dermatologist and at the Royal Victorian Eye and Ear Hospital. 

14.     Mrs Abou-Sinna made a fresh application for DSP in late 2006.  She informed the Tribunal at the hearing that she is yet to hear from Centrelink about the outcome of that application.  Therefore, the Tribunal is unable to look at that application.  The Tribunal was provided with a copy of a Treating doctor’s report prepared by Dr Johnson on 27 October 2006.  Dr Johnson indicated that Mrs Abou-Sinna had been a patient of his practice since June 2003.  He described her conditions as chronic pain in knees, ankles  elbows with the date of onset being October 2004.  He stated that there had been a history of increasing pain and stiffness in those joints and that his patient found it hard to stand, walk or kneel.  He described the treatment undertaken which included medication, physiotherapy and strapping.  Dr Johnson indicated that the condition was likely to persist for more than 24 months and was likely to deteriorate.

CONSIDERATION OF THE ISSUES

15.     Section 94 of the Act sets out the criteria for a person to qualify for DSP. 

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;

…

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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years…

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

16. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states 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.

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.

…

17. When deciding whether a person qualifies for DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date. Therefore, the Tribunal must consider whether Mrs Abou-Sinna qualified for the DSP either on 5 January 2006 or at a date before 6 April 2006 (the relevant period).

18.     The Tribunal accepts that Mrs Abou-Sinna suffered from a number of medical conditions at the time she applied for DSP.  The respondent has conceded, and the Tribunal concurs, that some of Mrs Abou-Sinna’s conditions could be considered permanent during the relevant period, namely her visual impairment and skin disorder.  Unfortunately, because of the level of vision in her better eye with a contact lens in place, Mrs Abou-Sinna can be awarded no points for the visual impairment under the Impairment Table.  The skin condition, notwithstanding its impact on Mrs Abou-Sinna, does not impair her ability to work.  Therefore, she cannot be awarded any points under the Impairment Table for that condition.

19.     The doctors’ reports during the relevant period indicate that Mrs Abou-Sinna’s arthralgia had not been fully diagnosed, treated and stabilised at that time.  Dr Johnson provided information about additional attempts to assist Mrs Abou-Sinna with pain management through physiotherapy, strapping and by other means, since the relevant period.  His report during the relevant period suggested only medication as a treatment.  Mrs Abou-Sinna had a consultation with a rheumatologist in late 2006, well after the relevant period. 

20.     Based on the documentary evidence, the Tribunal finds that Mrs Abou-Sinna’s pain condition, which has now been diagnosed as chronic pain in her knees, elbows and ankles had not been fully treated and stabilised during the relevant period.  Therefore, the Tribunal is unable to assign a rating for these conditions under the Impairment Tables for the relevant period.   

21. Consequently, during the relevant period, Mrs Abou-Sinna did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, she does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). In the circumstances it is not necessary to consider whether Mrs Abou-Sinna satisfies s 94(2). The decision to refuse the claim for DSP lodged on 5 January 2006 was correct.

DECISION

22.     The Tribunal affirms the decisions under review.

I certify that the twenty-two (22) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Ursula Noyé

Clerk

Date of Hearing:  26 March 2007

Date of Decision:  30 March 2007
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr Martin Pike, Centrelink Legal Services Branch