Dannoun and Secretary, Department of Family and Community Service S

[2003] AATA 813

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 813

ADMINISTRATIVE APPEALS TRIBUNAL        N2002/1333

GENERAL ADMINISTRATIVE DIVISION

Re: Raja DANNOUN

Applicant

And: Secretary to the Department of Family and Community Services

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             19 August 2003

Place:            Sydney

Decision:The Tribunal affirms the decision under review.

. . . . . . . . .. . . . . . . . . . . . . . . .

P.J. Lindsay, Senior Member

©        Commonwealth of Australia          (2003)

CATCHWORDS

Social security – disability support pension – eligibility -- impairment rating - whether impairment of 20 points or more – decision affirmed

Social Security Act 1991 s.94, Schedule 1B.

Social Security (Administration) Act 1999 Schedule 2.

REASONS FOR DECISION

19 August 2003  P.J. Lindsay, Senior Member

1. The applicant, Ms Raja Dannoun, has applied for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 28 August 2002 that rejected her claim for the Disability Support Pension. The SSAT affirmed a decision by an authorised review officer at Centrelink dated 2 July 2002 (T13) that Ms Dannoun’s impairment rating was less than the minimum required to qualify for the Disability Support Pension. At the Tribunal’s hearing, the applicant, who was not represented, gave evidence with the assistance of an interpreter in Arabic. The respondent, the Secretary to the Department of Family and Community Services, was represented by its advocate Mr J Kenny. The Tribunal had before it the documents (T documents) lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2.      Ms Dannoun made a claim for Disability Support Pension on 14 May 2002 and listed her disabilities as “neck injury, hip injury & shoulder injury” (T4).  Submitted with her claim was a treating doctor’s report by Dr M Alalmeddin, who diagnosed cervical spine spondylosis, chronic anxiety disorder and gastro-oesophageal reflux.  In Dr Alameddin’s opinion, Ms Dannoun would not be likely to be able to return to part time or full time work of any kind for at least two years.  Dr P Chew of Health Services Australia examined the applicant on 14 June 2002.  Dr Chew assessed the range of movement of the cervical spine to be about ¾ of normal range, a minor loss of cervical spine movement, and so determined an impairment rating of five points under impairment table 5.1 (T7).  He considered Ms Dannoun to exhibit mild symptoms of chronic anxiety disorder, noting little evidence of anxiety at interview and no behavioural problems or cognitive difficulty.  He assessed nil points under table 6 for this disability.  In relation to the gastro-oesophageal reflux Dr Chew noted that Ms Dannoun has mild symptoms and has not consulted a specialist for seven years and thus it was rated nil points under table 11.1.  Centrelink notified the applicant on 17 June 2002 that the claim had been rejected because her permanent impairment rating was below the minimum 20 points required (T8).  On reconsideration, and without any additional medical evidence being furnished by the applicant, Centrelink again rejected the claim (T10).  Subsequently, an authorised review officer from Centrelink spoke with the applicant, who was assisted by an Arabic interpreter, and reviewed her claim.  On 2 July 2002 the authorised review officer affirmed the decision under review (T19). The authorised review officer also agreed with the opinion of Health Services Australia that the applicant was currently able to work more than twenty hours a week and, within six months, could work at least thirty hours a week.

3. An appeal to the SSAT was unsuccessful (T2). Pursuant to s.179 of the Social Security (Administration) Act 1999, Ms Dannoun seeks the Tribunal’s review of the SSAT’s decision.

evidence

4.      Ms Dannoun was born in Lebanon on 4 February 1958 and immigrated in February 1970.  She said she was educated in Lebanon to level 3 in secondary college.  In Australia she has worked in her sister’s hairdressing and beautician business.  She is married and has four children, aged 26, 23, 21 and 17.  She has not worked since she had children.  In her evidence at the hearing she said she currently receives Family Tax Benefit of about $300 per fortnight.

5.      In November 1996 (T6) she was injured in a motor vehicle accident and later received compensation for injuries to her neck, shoulder and hip (T4-26). After the accident, Ms Dannoun suffered pain in her neck and her head which also causes her pain in the eyes.  The pain continues and she is pain-free on only one or two days a week.  Ms Dannoun does not drive and depends on her family for transport, whether for shopping or attending medical appointments.  She is unable to take public transport because she becomes dizzy while riding on the train.  She told the Tribunal that her neck and chronic headaches cause her the most pain.  When asked about her gastro-oesophageal reflux, Ms Dannoun explained that she gets pain in the stomach from taking her medication, especially Celebrex.  It is not a recent problem.  She has suffered pain in the stomach since she was 13 or 14.  Certain foods, including tomatoes and spicy meals, make the condition worse.  Ms Dannoun said that she has not consulted a doctor about the condition since 1995.  After investigations at the time, medications including Mopral and Losec were prescribed but she still suffers from what she called a stomach ulcer.  She finds that she has no symptoms at all in summer and at other times she takes Zantec only when suffering pain.  She agreed with Dr Alameddin’s assessment that the condition was intermittent.  She finds that bending forward helps the pain.

6.      Ms Dannoun provided the Tribunal with a number of medical reports.  A report dated 16 May 2003 by her G.P, Dr Alameddin was accepted in evidence as Exhibit A3.  Dr Alameddin referred to the injuries that Ms Dannoun received in the motor vehicle accident in November 1996 that included lower back pain.  At the hearing Ms Dannoun was reminded that her claim for Disability Support Pension did not refer to any impairment due to lower back pain.  Despite this, Ms Dannoun said she suffers from pain in the lower back that comes and goes, and is worst in the mornings.  Dr Alameddin noted that Aropax 20mg had been prescribed for Ms Dannoun’s chronic anxiety disorder and Parothiadene 25 mg for depression.  She has been advised to avoid recurrent bending of her neck but has been encouraged to commence daily activities according to her tolerance of pain.  In conclusion Dr Alameddin reported that Ms Dannoun currently suffers from muscular ligamentous sprain of the cervical spine, post traumatic stress syndrome and chronic anxiety and depression.  The prognosis was reserved and treatment required long term, conservative management.

7.      There were two reports by Dr S Benjamin of the Sydney Centre for Psychological Medicine. Ms Dannoun said that she consulted Dr Benjamin concerning her anxiety condition.   In the earlier report of 12 February 2003 (Exhibit A1) Dr Benjamin diagnosed Adjustment Disorder with Depressed Mood in addition to Chronic Pain Disorder.  Dr Benjamin was not sure whether there was irritation to Ms Dannoun’s cervical nerve root and suggested to Dr Alameddin that appropriate investigations be made.  Dr Benjamin changed her anti depression medication to Prothiaden 25mg and added Sandomigran 0.5mg.  At a subsequent consultation recorded in a report dated 22 April 2003 (Exhibit A2), Dr Benjamin noted that a CT scan of the cervical spine was unremarkable.  Ms Dannoun had presented with significant tension headaches causing depression, anxiety and irritability.  Dr Benjamin increased the dosages of her medication, suggested she see him again in a month and advised her to consult a neurologist.   The doctor concluded his report by stating that Ms Dannoun remained unfit for any work. Ms Dannoun told the Tribunal that due to difficulties in arranging transport, she has not yet been examined by a neurologist and has not had a follow up consultation with Dr Benjamin.

8.      Ms Dannoun explained that she had recently declined to attend employment programs that Centrelink had arranged because she said she must look after her husband, a diabetic.  She relies on her daughter, currently a candidate for the Higher School Certificate, for assistance with domestic duties including cooking and washing.  She said that if she enjoyed good health, she would like to work again, preferably by returning to hairdressing.  She is able to read and write in English and Arabic.

findings and consideration

9.      Ms Dannoun submitted that she has done all that Centrelink has asked of her and provided medical reports from the doctors who are treating her various illnesses.  It was submitted for the respondent that Dr Chew’s assessment of impairment ratings in respect of the applicant’s neck pain and gastro-oesophageal reflux were correct.  As for the remaining condition of Adjustment Disorder with Depressed Mood in addition to Chronic Pain Disorder, Mr Kenny submitted that Dr Benjamin is dealing with a condition that has not yet been fully diagnosed, treated and stabilised, and his reports summarise work in progress.  He noted that on the second consultation, Dr Benjamin increased the level of medication and advised Ms Dannoun to seek further evaluation by a neurologist.

10.     To qualify for the Disability Support Pension, a person must satisfy the following requirements of the Social Security Act 1991 (the Act):

Qualification for disability support pension

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;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

…

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 within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note: For work see subsection (5).

11.     The Tribunal finds that Ms Dannoun suffers from the following conditions: neck pain, gastro-oesophageal reflux and Adjustment Disorder with Depressed Mood in addition to Chronic Pain Disorder. 

12.     The introduction to the tables used for assessing work related impairment found in schedule 1B of the Act states that:

4. … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. … 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. …

On the basis of Dr Alameddin’s treating doctor report and the assessment of Dr Chew, the Tribunal finds that the neck pain, including the pain radiating into the head, and gastro-oesophageal reflux have been investigated, treated and stabilised.  Consequently the conditions may be assessed in accordance with the impairment tables in Schedule 1B of the Act.  The Tribunal does not accept that Ms Dannoun has a physical impairment resulting from the injury to her lower back that she suffered in the motor vehicle accident.  The Tribunal prefers the evidence of Dr Chew contained in his assessment of whole person impairment (T7) and Dr Alameddin (Exhibit A3 and T3) to that of the applicant in relation to that condition.

13.     Taking the neck pain first, the Tribunal accepts that Dr Chew found only a minor restriction of movement in the cervical spine under table 5.1 which states: 

TABLE 5 SPINAL FUNCTION
Determination of spinal impairments must be based on a demonstrable loss of function.
TABLE 5.1 Cervical spine

Rating  Criteria

NIL   Normal or nearly normal range of movement.

FIVE   Loss of quarter of normal range of movement.

TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTY Loss of three-quarters of normal range of movement and constant neck pain.

…

Dr Alameddin reported (Exhibit A3) that there was pain on flexion, extension and lateral rotation but did not quantify any restriction of movement. Ms Dannoun’s evidence does not lead the Tribunal to conclude that the five point rating assessed by Dr Chew is inappropriate.  The Tribunal also takes into account Dr Benjamin’s conclusion that the CT scan of the cervical spine was unremarkable. The Tribunal is satisfied on the evidence, overall, that a rating higher than five points is not warranted.

14.     As for the gastro-oesophageal reflux, the Tribunal notes that Ms Dannoun takes medication only when in pain, which is not constant.  She agreed that the condition is intermittent.  Further, the Tribunal notes that Dr Alameddin’s report of 16 May 2003, apparently prepared to assist Ms Dannoun in her application for the Disability Support Pension, merely mentions her chronic gastritis and only then as a “past medical illness”. Taking into account Ms Dannoun’s evidence at the hearing, the Tribunal is satisfied that her symptoms were accurately described by Dr Chew as mild.  Dr Chew’s rating of nil points was made under impairment table 11.1:

TABLE 11.1   Gastrointestinal: Stomach, Duodenum, Liver and Biliary Tract

NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.

TEN Nausea and vomiting: moderate symptoms despite optimal treatment

Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment

Past gastric surgery with moderate dyspepsia and dumping syndrome

Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.

…

There is no evidence, however, of a different impairment rating and accordingly, the Tribunal finds that the applicant’s level of impairment should be assessed at nil points.

15.     Ms Dannoun’s Adjustment Disorder with Depressed Mood in addition to Chronic Pain Disorder has been diagnosed recently.  Dr Benjamin’s treatment has altered since diagnosis in February 2003.  He has advised Ms Dannoun to consult a neurologist for further evaluation.  She has not yet done so.  She has not been reviewed by Dr Benjamin despite his making arrangements to see her in a month after the April consultation.  At this juncture, the Tribunal finds that the condition has not been investigated, treated and stabilised.  Therefore it is not a permanent condition and an impairment rating cannot be assigned.

16.     For the above reasons the Tribunal finds that Ms Dannoun does not satisfy s.94(1)(b) of the Act since she her impairment rating is less than 20 points.  Ms Dannoun therefore cannot satisfy s.94(1) and thus it is not necessary for the Tribunal to determine whether she has a continuing inability to work as required by s.94(1)(c).  The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of:

P.J. Lindsay, Senior Member

Signed: C. Gregson .......................................................................................
  Associate

Date of Hearing  11 August 2003
Date of Decision  19 August 2003
Applicant  Self-represented
Respondent’s representative    Centrelink