Asswad and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1102

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/67

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ABDULMAJID ASSWAD

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly & Member Dr Max   Thorpe

Date of Oral Decision       20 February 2007

Date of Written Reasons 6 March 2007

Place  Sydney

Decision The reviewable decision of the SSAT dated 9 December 2005 is affirmed.

[SGD] Presiding Member
  Senior Member Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1.At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant and the Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – review of decision refusing claim for disability support pension – whether Applicant has an impairment of 20 impairment points – whether Applicant has continuing inability to work – held Applicant did not have an impairment of 20 points – reviewable decision is affirmed.

LEGISLATION

Clause 4, Schedule 2 Social Security (Administration) Act 1999

Section 94, Social Security Act 1991

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly & Member Dr Max Thorpe                    

1.      On 21 January 2005 Mr Asswad lodged a claim for disability support pension (‘DSP’) which was refused on 5 April 2005 because he did not have the requisite impairment rating of 20 points.  That decision was affirmed on internal review on 21 October 2005 and by the Social Security Appeals Tribunal on 9 December 2005.  Mr Asswad seeks a review of the decision.

2. An Applicant for DSP must qualify at the date of claim, that is, in this case, 21 January 2005 or, within 13 weeks thereafter, that is, by 21 April 2005 (see Clause 4, Schedule 2 of the Social Security (Administration) Act 1999). In these proceedings that period is highly relevant, particularly in relation to one of the conditions that Mr Asswad claims. The issues in this case are whether:

(1) Mr Asswad has an impairment that warranted an assessment of 20 points on the assessment table (see section 94(1)(b) of the Social Security Act); and

(2)       If so, whether he has a continuing inability to work (section 94(1)(c)).

3. The Secretary accepted that Mr Asswad has an impairment rating in respect of his lower back of 10 points being a loss of a quarter of the range of movement. So the first question for us to determine is whether Mr Asswad has other impairments that amount, in total, to 20 points under the tables so as to satisfy section 94(1)(b).

4.      We note the introduction to the impairment tables was set out comprehensively by Ms Eastman in her written submissions and in particular we note paragraphs 4, 5 and 6 which I will not quote in full but in part it says:

“For a rating to be assigned the condition must be a fully documented diagnosed condition which has been investigated, treated and stabilised. … The condition must be considered to be permanent.  Once the condition has been diagnosed, treated and stabilised it is accepted as being permanent if in the light of the 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 must be considered fully stabilised if it is unlikely that there will be any significant functional improvement with or without reasonable treatment within the next two years.”

5.      Paragraph 6 sets out various matters to take into account in determining whether there has been a fully diagnosed, treated and stabilised condition.

6.      Mr Asswad gave oral evidence in these proceedings and we take into account that he only achieved an equivalent of third class primary school education.  However, we found his evidence, his responses to questions, to be often quite general and in some ways unhelpful.  However, we have taken into account the evidence that he gave, we understand he gave it to the best of his ability, and we note that he had an interpreter to assist him on this occasion.

7.      Now, we first make a comment in relation to the report of Dr Davis.  We do not find this report particularly persuasive in this matter and I will give some examples of the reasons why.  Dr Davis set out the complaints made by Mr Asswad when he saw him and I note that Dr Davis's report was dated 12 May 2006, that is, more than 12 months after the relevant period during which Mr Asswad had to qualify.  For example, in relation to the cervical spine/upper limbs, Dr Davis reported that Mr Asswad told him there was numbness affecting his left upper extremity.  The complaints of these symptoms eventually resulted in him being referred for ECG studies and a diagnosis of ischaemic heart disease, for which he has subsequently undergone bypass procedures on five coronary arteries.  In relation to his right knee Mr Asswad reported developing pain in approximately 2001 which impacted upon his ambulatory tolerance and was also aggravated by climbing stairs or hills.  Then he goes on to his present complaints and provides a summary:

“Mr Asswad has continued to suffer with symptoms in his upper and lower spine as well as both upper and lower extremities, specifically his right knee as per the history above.  He describes weakness in his right hand and difficulty with holding or manipulating small or heavy objects due to numbness.”

8.      Then he goes on:

“He is unable to squat and he cannot travel for any prolonged distance without aggravation.”

9.      We note that there is no particular complaint in relation to his left upper limb at that point and then when it comes to the examination we note that Dr Davis found that:

“There was no assessable weakness in his upper limbs apart from some reduced grasp strength on the right side.”

10.     There is no specification as to the extent of that reduction in grasp.  Further, the doctor noted that, Mr Asswad on that occasion:

“was able to squat although this resulted in complaints of increasing pain in the right knee when maintaining this position and unsteadiness with poor balance when attempting to stand on his right leg alone.”

11.     We do not consider that Dr Davis took into account the disparities between his examination and the complaints made by Mr Asswad.  In particular we note that when it came to the submissions in this case and during the course of the proceedings Mr Colborne who appeared for Mr Asswad did not rely on assessments made by Dr Davis in respect of two parts of Mr Asswad's body, including the left upper limb for which Dr Davis had assessed an impairment rating of five under table 3.  Mr Colborne acknowledged that that condition had probably arisen as a result of the cardiac condition and was no longer pressed essentially.

12.     The other matter that in the course of proceedings was not pressed was Dr Davis's rating for the cervical spine, a loss of one-quarter of normal range of movement for which he just gave five impairment points under table 5.1.  The evidence by Mr Asswad on the day of the hearing was somewhat different.  He really did not complain about pain in the neck which was not otherwise than what he talked about numbness and pain in his right hand particularly.  So, given that Mr Colborne has not relied on two aspects of this report, that reinforces our conclusion that Dr Davis's evidence is not of great assistance in this matter and we prefer the evidence of Dr Gibson as a consequence.

13.     Coming back to the particular claims that were made with respect to the right lower limb, Dr Davis gave 10 points based on "poor balance and stability with moderate interference with walking, squatting and kneeling".  In relation to the doctor's finding in relation to walking, I note that during his evidence Mr Asswad said:

“Walking does not hurt me but if going up stairs in my house will hurt me.  Has been hurting me going upstairs.  Pain is very light but if I am going upstairs I feel a lot of pain.”

14.     So there are inconsistencies, apparently, between the reports of Mr Asswad to, Dr Davis and his reports, as we find and I've referred to later, to other doctors, more particularly during the relevant claim period if I can call it that.  With respect to the right lower limb the respondent contends that at the time of the lodgement of Mr Asswad's claim or within 13 weeks thereafter as I have previously described the element of permanency in relation to his claim was not fulfilled and any condition was too intermittent and/or insufficiently treated or not stabilised.   

15.     I have already referred to Mr Asswad's evidence in relation to walking and his going upstairs.  I note Dr Pan's report of 25 February 2005 during the relevant period records that Mr Asswad's intermittent right knee pain had no impact on his ability to function, that he had a full range of movement and walks without difficulty.  Dr Pan assigned the functional impact of the Applicant's right knee condition as permanent with a nil point rating.  Dr Meagher's report of 10 July 2005, which was after the relevant period but before the reports of either Dr Gibson or Dr Davis, recorded that Mr Asswad's right knee pain was having no impact on his ability to function, that the applicant has weeks without difficulty, and assigned an impairment rating of nil points.

16.     We have Dr Gibson's report of 18 July 2006 and also her supplementary report of 18 October 2006 in relation to that condition.  She says that there is no definitive diagnosis and it is yet to be established and qualified by reference to other available medical reports, indicating that a review was to be undertaken.  We note that in her supplementary report Mr Asswad advised her that the onset of right knee pain had been over the few weeks prior to the assessment. “He advised that this problem restricted his walking to about 30 minutes and he was experiencing some discomfort when climbing stairs” and significantly from our point of view he planned to visit his general practitioner and obtain a referral to orthopaedic surgeon Dr Kirsch, and then the doctor goes on:

“Given this problem is one of recent onset, no investigation has been undertaken and no treating doctor assessment performed.  The right knee condition could not be regarded as being stabilised and thus was considered temporary so could not be assessed for impairment purposes.”

17.     We, with respect, on the basis of those medical reports, consider that it is inappropriate and particularly as of the claim period, to allocate any points in respect to that right knee pain or the right lower limb.  With respect to the right upper limb Dr Pan records that Mr Asswad described only mild symptoms.  He had full use of his right hand although the condition was permanent, and Dr Meagher in his report, again July 2005, reported that the applicant had full use of his right hand, no restriction in terms of the work related work impairment and assigned an impairment rating of nil points.  Dr Gibson when she saw Mr Asswad observed him to have normal upper limb power and she gave no points pursuant to table 3 and I just refer to the comments I have made in relation to Dr Davis's assessment of only a slight loss of strength compared to the finding that he put in his assessment.  Accordingly, we allocate nil points in respect to the right upper limb.

18.     With respect to ischaemic heart disease, hypertension and anxiety, those conditions were not pressed before us.  Ischaemic heart disease: the evidence available indicates that that condition has been addressed by surgery and there should be no rating.  Perhaps I need go no further because those conditions were simply not argued before us. 

Decision

19.     On that basis we find that the reviewable decision should be affirmed for the reasons that we have given.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly

Signed: Ms P Nimmagadda
       Associate

Date of Hearing  19 February 2007                 
Date of Oral Decision  20 February 2007
Date of Written Reasons  6 March 2007
Representative for Applicant   Legal Aid Commission of NSW
Counsel for the Applicant   Mr Craig Colborne
Representative for the Respondent          Australian Government Solicitor
Counsel for the Respondent  Ms Kate Eastman