Dib and Secretary, Department of Family and Community Services

[2000] AATA 204

DECISION AND REASONS FOR DECISION [2000] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No   N1999/439

GENERAL ADMINISTRATIVE DIVISION          )          

Re      FOUAD  DIB          

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Dr J D Campbell, Member 

Date16 March 2000           

PlaceSydney

Decision      The decision under review is affirmed. 
  (Sgd) J D Campbell
  ..............................................

Member
CATCHWORDS
SOCIAL SECURITY  -  Disability Support Pension – further application – degenerative disease of thoraco lumbar spine – bilateral knee pain – right shoulder pain – assessment – ability to work

Social Security Act 1988 – s94

REASONS FOR DECISION

Dr J D Campbell, Member             

1. Mr Dib ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 23 February 1999 in which they affirmed the decision of an Authorised Review Officer of Centrelink dated 11 December 1998, who in turn had affirmed the decision of a delegate of the Secretary of the Department of Family and Community services ("the Respondent") dated 7 December 1998 not to grant the Applicant a Disability Support Pension.

2. A hearing was held before the Tribunal on 7 December 1999, with the Tribunal being assisted by an interpreter in the Arabic language.  The Applicant was self represented and presented oral evidence to the Tribunal, and the Respondent by Ms Schuster, a solicitor from the Administrative Law Section.

3. The Tribunal had placed before it in evidence the following written material:
   Documentation prepared pursuant to section 37 of the Administrative Appeals Act 1975 Medical Report of Dr Y Patel dated 12 August 1999 Medical Report of Dr Y Patel dated 24 August 1999 Medical Report of Dr Y Patel dated 9 September 1999 Medical Report of Dr G La Hood dated 24 August 1999 Medical Report of Dr R Taylor dated 11 May 1999 Medical Report of Dr E Berley dated 6 September 1999 Medical Report of Dr G Hamad dated 27 August 1999 Respondent's Statement of Facts and Contentions dated 9 September 1999 T1-T22 P1-150 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit A4 Exhibit A5 Exhibit A6 Exhibit A7 Exhibit R1

ISSUES

1. The relevant issues between the parties are:

   (1)Whether the Applicant has a physical, intellectual or psychiatric impairment that is 20 points or more under the Impairment Tables in schedule 1B of the Social Security Act 1991; and

   (2)Whether the Applicant has a continuing inability to work because the impairment of itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next 2 years; and either:

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

   (ii)because of the impairment, such training is unlikely to enable the Applicant to do any work for at least 30 hours per week at award wages within the next 2 years.

LEGISLATION

1. The relevant legislation in this matter is Social Security Act 1991 (hereinafter referred to as "the Act") and, in particular, subsections 94(1), (2) and (5).
   BACKGROUND

2. The Applicant lodged a claim for Disability Support Pension on 4 March 1998 (T4).  This was rejected on 22 May 1998 by the Respondent on the basis that the Applicant was not suffering from a permanent impairment (T13).  The Applicant lodged a further claim for Disability Support Pension on 18 September 1998 (T16), and it is the decision to refuse this claim that is before the Tribunal.
   APPLICANT'S EVIDENCE

3. The Applicant stated that he was born in Lebanon on 1 January 1945, experienced 5-6 years of education before being trained and working as a tailor for 15 years in Lebanon.  In 1970-71, the Applicant told the Tribunal, he came to Australia where he worked in a factory for 2-3 months as a labourer, before returning to tailoring in the City for many years, after which he returned to labouring activities in factories.  From 1994 until 1997, the Applicant stated he was in gaol, and during the last year while at Silverwater, he worked as a general labourer in a factory at Matraville on a work release program (ie from June 1996 to May 1997).  The Applicant informed the Tribunal that he has not worked since, because his back was too sore.

4. In describing his back problems, the Applicant stated that since June 1997 he has experienced pain across the lower back at the level of the belt line, that he wakes 3-4 times a night because of the pain, which has intermittently radiated into both thighs and to the knees.  The Applicant stated that he saw his local general practitioner, which he now does every two weeks, who referred him to a specialist orthopaedic surgeon, Dr Wong at Westmead Hospital.  Dr Wong sent the Applicant for physiotherapy, which he had on 6-7 occasions, with the Applicant stating he was prescribed:

   Dichohexal tablets – one twice a day
   Feldene which was discontinued because of stomach trouble
   Paradex – two tablets, three times a day
   Panadeine Forte – two tablets, four times a day.

5. The Applicant further told the Tribunal that he had had pain in the left shoulder for a long time and that it restricts particular movements which, on demonstration by the Applicant, involved some restriction of internal rotation and adduction, while demonstrating an ability to raise both outstretched arms to the vertical above his head slowly over time.  The Applicant also described a history of pain in both knees over time, while demonstrating an ability to undertake a "knee squat".

6. The Applicant informed the Tribunal that his back pain limits the amount of things he can do, nevertheless he described his ability to undertake the following activities:

   ·lives alone, separated from his wife who came to Australia a year after her husband;

   ·cooks his own meals, does the washing and most of the shopping with some help from his son;

   ·does not do any gardening and gets back pain after mowing the lawns;

   ·owns and drives a car – can drive without difficulty for 10-15 minutes;  and

   ·has no trouble with walking or stairs, but if he stands for 1-2 hours his back pain gets severe.

7. Further, the Applicant stated that his weight was stable, he visited friends some evenings but never clubs, that he likes working, particularly an outside activity and that he has not had any serious accidents and/or injuries.  Finally, the Applicant stated that each time he sees a doctor he talks of his "back pain", "shoulder pain" and "knee pain".
   MEDICAL EVIDENCE

8. Dr Patel in his three reports (Exhibits A1, 2, 3) states that the Applicant has a long history of low back pain, that x-rays and CT scan of lumbar spine has confirmed disc lesions, degenerative disc disease, and advanced degenerative changes in the facet joints.  Dr Patel notes that the Applicant has persistent back pain with sciatica, bilateral knee pains and left shoulder pain which, in his opinion,are impairments of a permanent nature, with an assessment of the impairments being greater than 20 points.  Further, it is Dr Patel's opinion that the Applicant is unfit for work, or undertaking educational or vocational training, for more than two years.

9. In his report dated 11 May 1999 of a CT scan of the lumbar spine, Dr Taylor, a consultant radiologist, opines as follows:

   "CT LUMBAR SPINE
   No plain x-ray available.  The lower 3 disc spaces were scanned.  No contrast used.
   The L3/4 disc has a slight generalised annulus bulge.  The exit foramina and facet joints appear satisfactory.  Minor endplate irregularity is noted at this level.
   The L4/5 disc has a mild generalised annulus bulge also.  The exit foramina are clear.  There are moderately advanced degenerative facet joint changes at this level bilaterally.
   The lumbo-sacral disc has a slight generalised annulus bulge.  This disc also contains gas, indicating degeneration.  The exit foramina are clear.  There are minor facet joint changes bilaterally.
   No other significant finding."   (Exhibit A5)

1. In a report dated 6 September 1999, Dr Berley reports upon an x-ray of the thoracic and lumbar spines:

   "THORACIC SPINE
   (EB/ph)
   Anterior osteophytes are noted in the thoracic region.
   There is a little anterior wedging of a few of the mid dorsal vertebral bodies possibly due to previous trauma or osteoporotic fractures etc..
   Some lateral osteophytes are noted in the lower thoracic region.  No other definite bony, disc or joint lesion can be seen in the thoracic region.
   However, there is narrowing of the C5/6 disc space with arthritic changes developing in this region.
   Full views of the cervical spine are therefore advised.
   LUMBAR SPINE
   Small anterior and lateral osteophytes are developing in the lumbar region.
   There is a little narrowing of the L3/4 and the L5/S1 disc spaces.
   No other definite bony, disc or joint pathology can be seen."   (Exhibit A6)

Dr Wong:

1. In a report dated 4 March 1998, Dr Wong, a consultant orthopaedic surgeon, states:

   "He has probable L5-S1 disc degeneration and lumbar back pain."   (T5 p20)

Dr La Hood:

1. In a treating doctor's report, Dr La Hood, on 15 September 1998 (T14), states that the Applicant has lumbar disc degeneration, that the condition is long term, deteriorating and likely to persist for at least two years.  Further, Dr La Hood concluded that the Applicant's impairment would severely affect the Applicant's ability to work (T14 p66).
   Dr Reading:

2. Dr Reading, a medical practitioner employed by Health Services Australia, attempted to interview and examine the Applicant on 1 October 1998 (T17)  Dr Reading reports that the Applicant became irate after about 15 minutes and refused to cooperate further, leaving the examination room with good mobility.
   Dr Casolin:

3. Dr Casolin examined the Applicant on 30 October 1998.  In his report Dr Casolin, a medical practitioner employed by Health Services Australia, described the Applicant's condition in the following terms (T18):

   Condition 1Lumbar Disc Degeneration: feels pain intermittently, across low back with radiation down both thighs to the knees

   ·worse when standing, can walk for longer than one hour – can drive for up to 1½ - 2 hrs.

   On examination:   lumbar flexion 70o 
     extension 15o
     lateral flexion 20o
     equal power lower limbs
     no abnormal reflexes.

In assessing this condition, in accordance with Table 5.2 of the Schedule 1B Impairment Tables, Dr Casolin considered that the Applicant had a 25% decrease in the range of this thoraco-lumbar movements, and that he had frequent pain with radiation of pain to both legs. This, in Dr Casolin's opinion, constituted a 10 point impairment rating, with continuing difficulties with heavy lifting, bending and prolonged standing.
           Condition 2       Left shoulder

Long history of pain in left shoulder, present when he was labouring, making him favour his right arm.

On examination:   normal power of left arm and normal range of movement of left shoulder.

Dr Casolin found that the Applicant, for this condition, had an impairment rating of zero under Table 3 for the reasons that the Applicant had normal power and range of movements in the left arm and shoulder respectively.  Dr Casolin further commented that the Applicant may have some discomfort when the left arm was raised.

1. In overall assessment of the Applicant's ability to work, Dr Casolin considered the Applicant able to carry through light work activities such as car park attendant, light process/assembly work, gate keeper, console operator (T18 p133), and further found that the Applicant was able to receive and understand instructions and communications.
   SUBMISSIONS:

2. In essence, it was the Applicant's submission that even though he would enjoy being able to work, he cannot do so because of the continuing and increasing pain in his low back, with radiation of pain to his thighs and knees.  This, together with his sore knees and painful left shoulder, is the Applicant's submission and that of his attending doctor, adequate and good reason for his inability to work and, hence, as the conditions mentioned are permanent, he should be granted a Disability Support Pension.

3. The Respondent contends that the Applicant's disabilities do not constitute, when properly assessed and in accordance with the appropriate Schedule 1B Tables, an impairment rating of 20 points or greater. Indeed the Respondent, in their submission, considers that the impairment ratings nominated by Dr Casolin for the low back and left shoulder conditions are correct and, for the pain in the knees, argues that there is insufficient medical evidence to support a diagnosis in relation to the knees and, further, as to what condition the Applicant is alluding to when he complains of pain in both knees.

4. The Respondent further submits that the Applicant does not have a continuing inability to work as, on the medical evidence from Dr Casolin, the Applicant is clearly able to do light work and/or alternatively, undertake educational or vocational courses over the next two years.  It is for these reasons the Respondent submits that the decision under review should be affirmed.
   CONSIDERATIONS AND FINDINGS

5. The Tribunal, in initial comment, does express a concern about the nature of much of the medical evidence in this matter.  The general and specialist reports are brief, lacking in examination detail and generalised on occasions when making an opinion.  In relation to the issue of bilateral knee pain, there is a considerable absence as to any clinical comment on its existence and/or cause in many of the medical reports and, particularly, by those from the treating general practitioner (Dr La Hood) and in the assessment undertaken by Dr Casolin.

6. In turning to the more definitive aspects of the medical issues surrounding the Applicant's claim, the Tribunal, in acknowledging the radiological opinions of Drs Taylor and Berley, the medical examination findings of Dr Casolin and considering the medical history as described by the Applicant and the medical history and opinions as stated by Drs Patel, Wong, Hamad, La Hood, Reading and Casolin, makes the following findings of fact:

   i)the Applicant has a degenerative disease process involving the thoraco-lumbar spine (Radiologist's Report, Dr Wong's opinion, Clinical History) which:

   (a)causes pain over the lower back with intermittent radiation to both thighs as far as the knees (Applicant's history);

   (b)has restricted the Applicant's range of movement of his thoraco-lumbar spine by a quarter (Dr Casolin's examination); and

   (c)restricts the Applicant in undertaking tasks requiring heavy lifting, prolonged standing or repeated bending;

   ii)the Applicant has a painful left shoulder over many years, but power in the left arm and the range of movement of the left shoulder are normal (Dr Casolin's examination);

   iii)the Applicant, while complaining of pain in both knees, has a singular lack of documented evidence as to what is the cause of the pain.  The Tribunal was not able to ascertain the nature or the extent of the condition, but was able to note that the Applicant could bend his knee, was able to drive a car for 1-2 hours, could walk without difficulty and appeared to have no impairment in the function of the lower limb.  The Tribunal is unable to make any more succinct finding than this; and

   iv)that the conditions of degenerative disease of the thoraco-lumbar spine, painful left shoulder and painful knees constitute impairments.

1. The Tribunal in further considering the matter details and the relevant subsections of section of the Act which must be met for the Applicant to succeed:

   "94    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.

   …

   94(5)   In this section:

   educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
   on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
   work means work:

   (a)that is for at least 30 hours per week at award wages or above; and

   (b)that exists in Australia, even if not within the person's locally accessible labour market."

1. It is evident from the Tribunal's earlier findings of fact that the Applicant has physical impairments which, in turn, allow the Applicant to satisfy subsection 94(1)(a) of the Act.

2. In considering the assessment of the Applicant's impairments under Schedule 1B of the Impairment Tables, the Tribunal, having established the existence of these impairments, will determine an assessment under the appropriate table:

   (a)Impairment Thoraco-lumbar Spine

   The Tribunal notes that Table 5.2 is concerned with spinal and hip mobility and finds that Table 5.2 is the appropriate table:

   "TABLE 5.2     THORACO-LUMBAR-SACRAL SPINE

   As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

   RatingCriteria

   NILNormal or nearly normal range of movement.

   FIVELoss of one-quarter of normal range of movement.

   TENLoss of one-quarter of normal range of movement as well as back pain or referred pain:

• with many physical activities and

• with standing for about 30 minutes and

• with sitting or driving for about 60 minutes.

  or
    Loss of half of normal range of movement.

  TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

• with most physical activities and

• with standing for about 15 minutes and

• with sitting or driving for about 30 minutes.

  or

  Loss of three-quarters of normal range of movement."

  The Tribunal, in having determined earlier findings of fact in relation to this impairment, finds that the Applicant has a rating of 10 points under Table 5.2, in that he has a loss of one quarter of normal range of movement as well as back and referred pain with some physical activities, with standing for 30 minutes and with driving for 1-2 hours.

  (b)Left Shoulder Pain

  The Tribunal, in the absence of defined pathology in the left arm and shoulder, and with the left shoulder having a normal range of movement, the Tribunal determines that Table 3 is the appropriate Table under which this impairment should be assessed:

  "TABLE 3.       UPPER LIMB FUNCTION

  All upper limb problems are assessed under the upper limb Table (Table 3).  Each arm is assessed separately.  Determination of upper limb impairments must be based on a demonstrable loss of function.

  RatingCriteria

  NILCan use dominant limb effectively and/or

  Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

  FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

  TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

  FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling."

The Tribunal having considered all the relevant material considers the Applicant to have a nil rating for this impairment for there is nothing in the Applicant's history or medical examination to indicate a demonstrable loss of strength, mobility, coordination, dexterity or sensation in the left upper limb.

(c)Bilateral knee pain

The Tribunal, already having found that there is a lack of clinical evidence as to both the nature, cause, and even existence of the bilateral knee pain, has concluded that thus it does constitute an impairment, and further determines that Table 4 is the appropriate Table under which assessment should occur:

"TABLE 4.       FUNCTION OF THE LOWER LIMBS

Table 4 is used to assess lower limb not spinal function (see Table 5).  Assess both limbs together.  Determination of lower limb impairments must be based on a demonstrable loss of functions.

RatingCriteria

NILWalks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following:  climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h).  Can walk further after resting.

TWENTYDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following:  climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50-25om or less at a time.  Can walk further after resting or

Unable to walk or stand but independently mobile using a self-propelled wheelchair."

The Tribunal, in noting earlier findings of fact, concludes that the Applicant has a nil rating under Table 4, as he has no difficulty with stairs and can walk without difficulty for an hour.

1. In summary finding, the Tribunal determines that the Applicant's three impairments have a combined impairment rating of 10 points and it is determined that the Applicant does not satisfy subsection 94(1)(b) of the Act.

2. Further, the Tribunal notes the diverse medical opinion as to whether or not the Applicant has a continuing inability to work.  The Tribunal notes the opinion of Dr Patel, which is unfortunately devoid of supporting reasons, and the opinion of Dr La Hood, the treating practitioner.  Further, the Tribunal notes the more detailed assessment undertaken by Dr Casolin and, in particular, issues where he nominates disagreement with Dr La Hood (understanding and communication).  Further, the Tribunal notes the absence of any mention of bilateral knee pain in Dr La Hood's report.  The Tribunal, in considering these various matters, finds that the assessment of Dr Casolin to be more thorough in history detail and clinical examination, and his opinions more consistent with his underlying findings.  The Tribunal, in placing reliance of Dr Casolin's finding, and having listened to the Applicant's history and his expressed desire that he would like to work if he could, finds that the Applicant could undertake work for 30 hours a week in a range of light work employments as nominated by Dr Casolin.  Further, the Tribunal finds that the impairments themselves will not prevent the Applicant from undertaking vocational, educational or on the job training during the next two years with such training enabling the person to do work within two years, the impairment notwithstanding.

3. In the Tribunal's concluding finding, it is evident that the Applicant does not satisfy subsection 94(2), and in so doing fails to satisfy subsection 94(1)(c) of the Act.  As a consequence of failing to meet subsections 94(1)(b) and 94(1)(c) of the Act, the Applicant does not qualify for Disability Support Pension.
   DETERMINATION

4. The decision under review is affirmed.

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Dr J D Campbell, Member

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  7 February 2000
   Date of Decision  16 March 2000
   Representative for Applicant                Applicant self-represented
   Representative for the Respondent     Ms H Schuster, Centrelink