El Ahmadieh and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 57

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/61

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NAJAH EL AHMADIEH

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell

Date22 January 2008

PlaceSydney

Decision The decision under review is affirmed.

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

Dr J D Campbell
  Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - right upper limb impairment - cervical spondylosis - assessment of impairments - continuing inability to work - decision under review affirmed.

Social Security Act 1991 – section 94, Schedule 1B

Social Security (Administration) Act 1999 – sections 41, 42, Schedule 2

REASONS FOR DECISION

22 January 2008 Dr J D Campbell, Member

1.      Mrs El Ahmadieh (the Applicant) lodged a claim for disability support pension (DSP) on 6 September 2005.  In her claim, Mrs El Ahmadieh detailed her impairments as “right shoulder affecting neck” (T20, p72), which caused her difficulty all the time with lifting, sleeping and some aspects of dressing (T20, p73).

2.      In a treating doctor’s report dated 17 September 2005 (T23), Dr Saha nominated Mrs El Ahmadieh’s medical conditions as injury to wrist and neck which occurred at work on 17 July 1998, and which required pin and plating of her right wrist.  Dr Saha noted that Mrs El Ahmadieh was only able to return to work on light duties, and has since required continuing physiotherapy and analgesics.  Dr Saha considered that the impact of this condition on Mrs El Ahmadieh’s ability to function would persist for more than 24 months, and he remained uncertain of Mrs El Ahmadieh’s ability to function within the next two years.

3.      Mrs El Ahmadieh’s claim was rejected by a Centrelink officer on 20 December 2005, because her impairment assessment was less than 20 points.  A review of this decision on receipt of further material (physiotherapist report of 16 January 2006, T28) by a different Centrelink officer affirmed the earlier decision on 17 July 2006 (T30).  Further, a review by an authorised review officer affirmed the earlier decision on 17 August 2006 (T32).  On 11 December 2006 the Social Security Appeals Tribunal affirmed Centrelink’s original decision (T2).

ISSUES

4.      The relevant issues in this matter are:

(a) Does Mrs El Ahmadieh have any physical, intellectual or psychiatric impairments?

(b) What is the assessment of Mrs El Ahmadieh’s impairments pursuant to the Schedule 1B Impairment Tables contained the Social Security Act 1991 (the Act)?

(c) Does Mrs El Ahmadieh have a continuing inability to work?

(d) Does Mrs El Ahmadieh qualify for DSP pursuant to section 94 of the Act?

DECISION

5.      For reasons stated later in this decision, I find that:

(a) Mrs El Ahmadieh has the following physical impairments:

(i) right upper limb impairment, involving pain, difficulty in elevating right arm above the horizontal level of the shoulder, together with loss of grip strength and some digital dexterity in the right hand; and

(ii) cervical spondylosis.

(b) Assessment of the two nominated impairments are:

(i) 10 points pursuant to Impairment Table 3 for the right upper limb impairment; and

(ii) as the cervical spondylosis, not being fully diagnosed, treated and stabilised, cannot be considered to be permanent during the claim period, no assessment has been made for this impairment pursuant to Impairment Table 5.1.

(c)  Mrs El Ahmadieh does not have a continuing inability to work.

(d) Mrs El Ahmadieh does not qualify for DSP, as her impairment rating under the Impairment Tables is less than 20 points, pursuant to subsection 94(1)(b) of the Act.  Further, Mrs El Ahmadieh does not have a continuing inability to work: subsection 94(1)(c) of the Act.

BACKGROUND

6.      Mrs El Ahmadieh was born in Beirut, Lebanon in 1947. She left school at age 12, having completed six years of education, to help her mother.  Mrs El Ahmadieh was married in 1967 and migrated to Australia with her husband in 1970.  Mrs El Ahmadieh commenced work a few months after her arrival, as a machine operator with some packaging activities at Visy Industrial Packaging.  Mrs El Ahmadieh remained with the same firm for 23 years until February 2005, at which time the firm closed and she was made redundant.

7.      Mrs El Ahmadieh detailed the history of a work injury in 1998, when she slipped, fell over and fractured her right wrist and has since experienced continuing problems with her neck and right shoulder.  Mrs El Ahmadieh stated that she was off work for five months following the work injury, and it was not until late 1999 that she was able to return to full time work, albeit on light duties.  Mrs El Ahmadieh indicated that she has tried to get other jobs suitable to her work limitations of no heavy lifting, and an inability to write and/or read English, but with an ability to read and write Arabic.

8.      Mrs El Ahmadieh stated that she divorced her husband in 1981/82 and now lives alone.  She drives an automatic car and averages 5,000 kilometres per year.  She usually commences a normal day around 6.30am, reads an Arabic paper, with the remainder of her day spent doing housekeeping, preparing meals, shopping, visiting friends and watching television.  Her only restriction in physical activities was to do with the avoidance of heavy lifting.

9.      Mrs El Ahmadieh described her physical symptomology in the following terms:

·experiences pain in her right wrist with lifting and/or twisting.  She has treatment from a physiotherapist and was averaging one Panadeine Forte tablet a day to control pain in 2005.  Currently, she is prescribed Tramol SR100;

·experiences no problems with right elbow;

·experiences and has experienced pain in her right shoulder since the work injury when elevating the right arm above the level of the right shoulder;

·experiences tightness in her neck which is associated with tension and straining of right shoulder; and

·is able to walk for 10-15 minutes, and has no problems with bending and/or sleeping.

CONSIDERATION AND FINDINGS

10. Mrs El Ahmadieh lodged her claim for DSP on 6 September 2005. In accordance with sections 41 and 42 and Schedule 2, clauses 3 and 4(1) of the Social Security (Administration) Act 1999, qualification for DSP must be determined as at the date of claim or within 13 weeks of such lodgement, with the commencement date being the date qualification is satisfied within the claim period.  In the circumstances of this matter, the claim period commenced on 6 September 2005 and ceased on 5 December 2005.  Material subsequent to the end of the claim period may be considered, but only in circumstances where it is of assistance in achieving a better understanding and clarification of the impairments that existed in the claim period.

Cervical Spine Condition

11.     In addressing Mrs El Ahmadieh’s cervical spine condition, I note the report of the radiological examination of 21 November 2006, in which no degenerative change is observed and the neural exit foramina are patent (T36).  A CT scan of the cervical spine on 23 March 2007 is reported as demonstrating no significant abnormality (Exhibit A3), while an MRI scan of the cervical spine on 12 April 2007 is reported as demonstrating mild spondylotic change, uncovertebral foraminal encroachment at the right C6 foramen, some bilateral perineural cysts of the C8 and T1 nerve roots, and no significant central canal stenosis (Exhibit A4).

12.     I note that Dr Fung, consultant neurologist, reviewed Mrs El Ahmadieh with the knowledge of the radiological findings to hand.  Dr Fung concluded that Mrs El Ahmadieh’s symptoms are likely to be referred pain from her right shoulder, rather than due to neuropathic pain.  Dr Fung did not think any further neurological investigations or treatment was required (Exhibit A1).

13.     I further note the health assessment report of Ms Prasad, a registered nurse, dated 27 October 2005 (T25) in which she observed Mrs El Ahmadieh to move her neck without restriction, and that on both formal and informal examination of her cervical spine there were either none or minor restriction of the cervical spine range of movements (T25, p105).

14.     Finally, I note the job capacity assessment report undertaken by Ms Jah Jah, a registered psychologist, dated 22 May 2007 (Exhibit R5).  I note the symptoms experienced by Mrs El Ahmadieh, as recorded by Ms Jah Jah, to include tightness mainly on the right side (neck) and this may be associated with her right arm disorder.  Ms Jah Jah noted that Mrs El Ahmadieh reported that she was able to turn her neck from side to side.

15.     In considering the later clinical material which has been presented in this matter, together with Mrs El Ahmadieh’s description of her symptomology over time, and Dr Saha’s treating doctor’s report and subsequent report of 19 May 2007 (Exhibit R6), I conclude that Mrs El Ahmadieh has a physical impairment of the cervical spine, namely cervical spondylosis.  As detailed earlier, I conclude that Mrs El Ahmadieh had this physical impairment during the claim period.  In so finding, I have placed weight on her clinical symptomology as she described occurring during the claim period, and the later radiological findings (MRI scan) and opinion of Dr Fung.  While such later findings and opinions are outside the claim period, they do allow for a better understanding as to the status of the cervical spine impairment during the claim period. 

16. In turning to the issue of assessment of the condition pursuant to the Impairment Tables contained in Schedule 1B of the Act, I consider that Mrs El Ahmadieh’s cervical spondylosis impairment was not permanent during the claim period. For a condition to be considered permanent, it must first be accepted to be a fully documented and diagnosed condition which has been investigated, treated and stabilised. Dr Fung’s report indicates by the very diagnosis made, namely cervical spondylosis, that the impairment was of a degenerative nature and would continue to worsen over time. That is, the condition had not stabilised. Further, Dr Fung concluded that no further investigation and/or treatment was indicated in July 2007, this being almost 20 months and many investigations subsequent to the end of the claim period.

17. While it may be considered somewhat academic, I also conclude that Mrs El Ahmadieh’s cervical spine condition was not fully diagnosed during the claim period. In support of such a finding, I point to the MRI scan finding of the cervical spine of April 2007 and the report of Dr Fung of July 2007, at which time the first concise opinion is given. In such circumstances, I conclude that the cervical spine impairment was not permanent during the claim period and, as such, no assessment should be made pursuant to the Impairment Tables contained in Schedule 1B of the Act.

18.     I further note the assessment made by Dr Mackenzie in her medical assessment report of 5 December 2005 (T26).  Dr Mackenzie noted that Mrs El Ahmadieh had complained of intermittent neck pain since 1998, associated with stiffness and numbness of her right shoulder, but with no loss of range of movement of the cervical spine.  Dr Mackenzie concluded that Mrs El Ahmadieh assessed a nil points impairment rating for the cervical spine impairment pursuant to Impairment Table 5.1.  I also observe that Ms Jah Jah is of a similar opinion in her job capacity assessment report of 11 May 2007.

19.     Even if the cervical impairment was considered to be permanent during the claim period, I note that any assessment of that impairment is nil points pursuant to Table 5.1, as neither Dr Mackenzie nor Ms Jah Jah observed any loss of the normal range of Mrs El Ahmadieh’s cervical spine movements.

Upper Limb Impairment

20.     In addressing the right upper limb, while noting that Mrs El Ahmadieh is right handed, I observe that the material in evidence before me indicates that Mrs El Ahmadieh has two separate right upper limb impairments, namely a right shoulder impairment, which prevents Mrs El Ahmadieh from elevating her right arm above shoulder height, and continuing problems with the right wrist, causing some difficulties with grasping and digital dexterity.  Both impairments are clearly a consequence of the work injury in 1998 and had been long in existence prior to the commencement of the claim period.

21.     In furthering the analysis, I note the health assessor’s report of Ms Prasad of 27 October 2005, in which she notes Mrs El Ahmadieh to have a moderate loss of dexterity consistent with the difficulties of doing up shoe laces, and moderate loss of grip strength consistent with having difficulty in gripping moderately heavy objects.  Such difficulties were noted to be associated with right hand pain which increases on exertion, together with frequent stiffness and numbness in the right wrist.

22.     Dr Mackenzie, in a medical assessment report dated 5 December 2005, and while noting the earlier findings of Ms Prasad, concluded that Mrs El Ahmadieh had a moderate loss of both digital dexterity and grip strength of the right and dominant hand.  Further, in oral evidence, Dr Mackenzie, in acknowledging that a right shoulder impairment was present, concluded that Mrs El Ahmadieh had a moderate loss of right arm movement.

23.     Dr Ho, in a report dated 14 February 2007 (Exhibit A2), in reporting upon an ultrasound examination of the right shoulder, concluded that Mrs El Ahmadieh had mild right bicep tendonitis, together with a full thickness tear of the supraspinatus tendon, mild thickening of the subacromial bursa and mild degenerative changes in the acromioclavicular joint.

24.     Further, I note the treating doctor’s report of Dr Saha, and the work history detailed by Mrs El Ahmadieh, in which she described returning to work on light duties full-time in late 1999 and remaining doing such work until redundancy in February 2005.

25.     Following consideration of all the material, I am satisfied that Mrs El Ahmadieh had impairments to her right upper limb at the time of claim, during the claim period and continuing.  Further, the physical impairments arising from the right shoulder impairment and the right wrist impairment include a moderate loss of movement of the right arm, a moderate loss of dexterity of the right hand, and a moderate loss of the ability to grasp heavy objects.

26.     Finally, after examination of all the material before me, I conclude that the right upper limb impairments were permanent at the time of claim and during the claim period, with later ultrasound examinations of the shoulder confirming the shoulder impairment. 

27. In considering the issue of assessment, I note that the appropriate table is Table 3 in Schedule 1B of the Act, concerning upper limb function. Table 3 provides:

Rating            Criteria

NIL               Can 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.

28.     Clearly the clinical evidence in this matter establishes that Mrs El Ahmadieh has a physical impairment involving loss of strength, mobility and dexterity in her dominant right upper limb, which causes moderate interference with hand function and manual handling.  In such circumstances, I would assess Mrs El Ahmadieh’s right upper limb impairment as having a 10 point impairment rating.

29.     In so finding, I acknowledge the impairment rating of 10 points as concluded by Dr Mackenzie and Ms Jah Jah.  I further note that a 20 point impairment rating involves a finding of significant interference with hand function or manual handling – a circumstance which is not consistent with the circumstances and clinical material in evidence in this matter.

30.     While I have concluded that Mrs El Ahmadieh did have the physical impairments of cervical spondylosis and impaired function of the right upper limb at the time of claim and during the claim period (thereby satisfying subsection 94(1)(a) of the Act), I find that the composite assessment of such impairments is 10 points.  In such circumstances, Mrs El Ahmadieh does not satisfy subsection 94(1)(b) of the Act, and therefore fails to qualify for DSP.

Continuing inability to work

31.     While there is no necessity to go on and consider subsection 94(1)(c) of the Act (continuing inability to work), I would note that all the evidence in the material before me clearly suggests that Mrs El Ahmadieh does not have a continuing inability to work.  In so stating, I note that Mrs El Ahmadieh continued to work (albeit on light duties) with her impairments following her work injury until redundancy in February 2005, and that the activities of daily living impeded by her impairments included an inability to carry a 10 kilogram weight upstairs and mow lawns.  I acknowledge the opinion of Dr Mackenzie that Mrs El Ahmadieh is able to undertake light, less skilled work, both with and without intervention, with nominated interventional barriers of physical limitations, chronic pains and limited skills.  Similarly, I note the opinion of Ms Kreig, a physiotherapist, in a report dated 16 January 2006 (T28) which suggests that work restrictions applicable to Mrs El Ahmadieh would include no repetitive or heavy lifting (greater than five to seven kilograms), no repetitive overhead work, and avoidance of sustained posturing, particularly cervical flexion, for over 20 minutes.

32.     Finally, I note the job capacity assessment reports of Ms Isbell of 8 December 2006 (T37) and Ms Jah Jah of 22 May 2007 (Exhibit R5).  Both reports indicate that Mrs El Ahmadieh has a current work capacity of 30 hours per week in light, less skilled work and a future capacity of 30 hours per week with mainstream intervention to assist in finding suitable employment.

33.     In such circumstances, I conclude that Mrs El Ahmadieh does not have a continuing inability to work, and thereby fails to satisfy subsection 94(1)(c) of the Act.

DECISION

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell

Signed:         ........................[sgd]........................................................
  Associate

Date of Hearing  23 November 2007
Date of Decision  22 January 2008
Representative for the Applicant               Self-represented      
Representative for the Respondent        Ms P Lee, Centrelink Legal Services