Chaouk and Secretary, Department of Social Services (Social services second review)

[2015] AATA 793

Chaouk and Secretary, Department of Social Services (Social services second review) [2015] AATA 793 (12 October 2015)

Division	GENERAL DIVISION
File Number	2014/6539
Re	Zarouf Chaouk
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	12 October 2015
Place	Melbourne

The Tribunal affirms the decision under review.

...........[sgd].............................................................

Miss E A Shanahan, Member

SOCIAL SECURITY – cancellation of disability support pension – re-assessment of eligibility for pension – impairment points attracted less than 20 – most medical conditions not fully diagnosed treated and stabilised – failure to satisfy section s 94(1)(b) of the Social Security Act 1991 – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work – Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Miss E A Shanahan, Member

12 October 2015

1. Mrs Chaouk qualified for the disability support pension (DSP) on 2 November 1995 when she was aged 37. The conditions causing her incapacity were described as lumbar spine and joint pain and hyperthyroidism. After Centrelink reviewed her eligibility for the DSP, in accordance with s 63 of the Social Security Act 1991 (the Act), Mrs Chaouk’s DSP was cancelled on 15 November 2013. Centrelink is the service provider for the Department of Social Services.  

2. On 10 July 2013 Mrs Chaouk was notified of the review and directed to provide information from herself and her treating doctor in the form of completed medical review forms.  Based on these review forms, further medical evidence and a job capacity assessment, on 15 November 2013 the Department of Social Services found that Mrs Chaouk’s hyperthyroidism attracted 5 impairment points and her neck and back problems attracted 10 points under the Social Security (Tables for the Assessment of Work – Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). This did not meet the required impairment rating of 20 points and her DSP was duly cancelled.  The delegate’s decision was reviewed at Mrs Chaouk’s request and on 17 July 2014 an authorised review officer (ARO) affirmed the decision of November 2013. Mrs Chaouk lodged an application for review of this decision with the Social Security Appeals Tribunal (SSAT) on 16 September 2014.  On 10 November 2014 the SSAT affirmed the decision of the ARO.

3. The applicant lodged a further application for review of the SSAT decision by the Administrative Appeals Tribunal on 18 December 2014.

   BACKGROUND TO THE APPLICATION

4. Mrs Chaouk came to Australia from Lebanon as a refugee.  She is a devout Muslim. She does not speak English and is illiterate in Arabic.  She has never worked in a paid capacity.  Mrs Chaouk is married and her husband works.  She has two daughters, one of whom is in full-time employment while the younger daughter is at university.  

5. Mrs Chaouk performs household duties but is limited in her activity by pain in her lumbar spine, her neck, her shoulders and both knees. She requires assistance to perform the household duties including the cooking and this is essentially provided by her daughters.  She drives a motor vehicle and does not use public transport. She does a small amount of shopping for her family.

6. It is now clear that her previously diagnosed hyperthyroidism is fully controlled with medication and her thyroid function is entirely normal.  As such this condition does not attract an impairment rating and has not done so since she was rendered euthyroid.   Having rejected treatment with radioactive iodine, Mrs Chaouk has had an excellent response to medication.

7. Mrs Chaouk’s other conditions relate to the musculoskeletal system as she complains of pain in her neck, lumbar spine, both shoulders and her knees.  The treating general practitioner has attributed these symptoms to degenerative joint disease and advised that the treatment provided for these conditions over the past 15 years has been analgesics and physiotherapy as indicated. A further treating doctor’s medical report was provided on 10 October 2013 by Dr El Khoury who described the applicant’s knee and shoulder conditions as degenerative joint disease in the case of the knees and right shoulder rotator cuff syndrome.

8. The Centrelink review process has precipitated further investigation and specialist opinion relating to the multiple joint conditions.  An x-ray of Mrs Chaouk’s left knee has revealed minimal osteoarthritic changes.  Radiology of the right knee has revealed infra patellar bursitis and x-rays of the hips show mild early osteoarthritis.  An MRI of Mrs Chaouk’s cervical spine reveals degenerative changes of mild to moderate degree with some disc bulging at C4-5, C5-6 and C6-7.  There is also some foraminal narrowing.  An MRI of her right shoulder has shown degenerative changes in the acromioclavicular joint, tendinosis (wear and tear) of the supra and infraspinatus tendons and subacromial bursitis.  

9. All of these joint conditions have been assessed by the orthopaedic surgeon, Mr Widjaja; and none are considered to require surgical intervention. Rather, they should be managed with analgesia and physiotherapy.  Miss Rebecca Harford has provided physiotherapy treatment more regularly by since January 2013.  Mrs Chaouk’s back pain has not been fully investigated as only a plain x-ray has been performed.  This shows minor changes.  No specialist orthopaedic opinion has been provided in relation to her lumbar spine symptoms.

10. Mrs Chaouk has undergone several job capacity assessments, the most recent of which was on 9 December 2013.  Only her spinal arthritis was considered to be fully diagnosed, treated and stabilised, with a recommended impairment rating of 10 points.  An impairment rating of five points was recommended for her hyperthyroidism on the basis that Mrs Chaouk complained of tiredness.  The assessor reported that the applicant suffered from depression and had done so for some seven years but had not been seen or assessed by a psychiatrist or clinical psychologist. This gave her a total impairment rating of 15 points.  Accordingly, Mrs Chaouk was considered ineligible for the DSP.

11. In November 2014 Mrs Chaouk was referred to a psychologist, Ms Lakkis.  Although treatment was commenced by Ms Lakkis, it was not continued as she is not a clinical psychologist as the guidelines require.  Mrs Chaouk then saw an Arabic-speaking psychiatrist on 15 January 2015, who recommended antidepressant medication.  She has been referred to a bulk-billing psychiatrist for ongoing psychotherapy and medication.

    EVIDENCE BEFORE THE TRIBUNAL

12. Mrs Chaouk was assisted by an interpreter in the Lebanese dialect of Arabic, and by her daughter who speaks English and Arabic.

13. Mrs Chaouk confirmed the symptoms from which she suffers and the limitations these place on her physical activity.  While she cannot carry a two litre container of milk she can hold it and pour from it.  She can dress herself but occasionally needs the help of her daughters.  Her current medication is Endep 10 mg daily, Voltaren 25 mg once or twice a day, Nexium and Carbimazole 5 mg daily for her hyperthyroidism. The Tribunal did note that the packet of Voltaren she brought with her had been dispensed in 2012.

14. It became apparent in the course of the hearing that Mrs Chaouk has never undergone a full physical examination.  This is due to her religious beliefs, which forbid her from undressing in the presence of a male other than her husband.  The Tribunal, a retired cardio-thoracic surgeon, advised her that she needed to see a rheumatologist, and observed that there are several female specialists in this field in Melbourne.

    RELEVANT LEGISLATION

    94Qualification for disability support pension

    (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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.

    SUBMISSIONS

15. Formal submissions were not made. The respondent relied on its Statement of Facts and Contentions.

    TRIBUNAL’S DETERMINATION

16. Mrs Chaouk satisfies s 94(1)(a) of the Act in that she has symptoms of pain relating to numerous joints and has recently been diagnosed with a depressive disorder.

17. The previously diagnosed hyperthyroidism is well controlled and has been for many years. Testing reveals that Mrs Chaouk now has normal thyroid function. This condition does not attract an impairment rating as it has no effect on her capacity for work.

18. The remaining conditions are not fully diagnosed, treated and stabilised and thus do not attract impairment ratings.  Mrs Chaouk’s knee and shoulder conditions have been investigated since her DSP was cancelled and the radiological findings are mild to moderate.  She has consulted an orthopaedic surgeon who has advised regular analgesia and mobilisation.  He reported that despite degenerative changes in her cervical spine of mild degree, Mrs Chaouk denied any neck pain.  An MRI of her lumbar spine is said to have been requested but no report was provided to the Tribunal.

19. It appears that Mrs Chaouk has not had a full physical examination to determine her restrictions.  Mr Widjaja has reported that the range of movement in both knees is normal and that her hip movement is limited only in internal rotation.  Treatment to date has been limited to short courses of physiotherapy, with some benefit. Mrs Chaouk’s analgesia is essentially supplied by over-the-counter products such as Panadol-osteo, glucosamine and vitamin D.

20. Mrs Chaouk saw a psychiatrist on 15 January 2015, who confirmed the diagnosis of depression and prescribed the antidepressant Endep. Mrs Chaouk has received some counselling from a psychologist.  She is currently awaiting an appointment with a treating psychiatrist.

21. Mrs Chaouk does not satisfy s 94(1)(b) of the Act, as none of her medical conditions other than hyperthyroidism are fully diagnosed, treated and stabilised. Therefore, they do not attract an impairment rating.

22. The Tribunal has advised her to obtain the opinion of, and treatment by, a female rheumatologist.

23. The Tribunal affirms the decision under review.

I certify that the preceding 232 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan,  Member

....[sgd]...................................................................

Associate

Dated   12 October 2015

Date of hearing	31 August 2015
Applicant	In person
Advocate for the Respondent	Julie Zhou - Department of Human Services