El-Khatib and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 164

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/589

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MAJIDA EL-KHATIB
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Dr J D Campbell

Date14 March 2002
PlaceSydney

Decision The Tribunal determines that the decision under review be affirmed.

[sgd] Dr J Campbell Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - claim - impairments - assessment - issue of 20 points or more under the impairment tables - continuing inability to work

Social Security Act 1991, sections 94, 100

REASONS FOR DECISION

Dr J D Campbell, Member

In this matter, Mrs Majida El-Khatib, ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 2 April 2001 which affirmed the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 21 January 2000, that the Applicant did not satisfy the qualifications for a disability support pension ("DSP"). This latter decision was reviewed by an authorised review officer and affirmed in a decision dated 15 September 2000.
A hearing was held before the Tribunal on 30 November 2001 at which the self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Mr George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Tribunal was assisted by an interpreter fluent in the Arabic language.
The following material was placed into evidence before the Tribunal:
Exhibit          Description    Date
T1-T17 p1-73 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
A1      Medical report by Dr Tadros       23 August 2001
A2      Medical report by Dr Doull re right knee 1 March 2001
A3      Medical report by Dr Doull re lumbar spine and left hip 9 August 2001
A4      Medical report by Dr Youssef       5 October 1999
A5      Medical report by Dr Tadros          30 November 2001
R1      Respondent's Statement of Facts and Contentions     5 October 2001
R2      Medical report by Dr Keen 4 September 2001

issues

The relevant issues in this matter are:
(a) whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the Impairment Tables in Schedule 1B; and if so
(b) whether the impairment is of itself sufficient to prevent the Applicant:

from doing any work within the next two years; and
from undertaking educational or vocational training or on-the-job training during the next two years; or
whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 94 and 100(3) and the Tables for the Assessment of Work-Related Impairment for Disability Support Pension ("Schedule 1B Impairment Tables").
background
The Applicant lodged a claim for DSP on 25 October 1999 in which she listed her disabilities as severe hip pain (unbearable) and severe back pain on the left side. The Applicant stated that these disabilities make it difficult to sit, stand, walk, lift, carry, bend and sleep, all the time. She also noted that she often has some difficulty with concentrating and caring for others. Sometimes she also has difficulties with reading, writing, speaking, interacting with others, remembering, breathing, managing personal affairs and caring for herself (T7).
In a report of an x-ray of the lumbar spine dated 3 May 1991, Dr Lachlan, a Consultant Radiologist, stated:
"…There appears to be a little narrowing of the L5/S1 joint space with shelving of the anteroinferior margin of L5; the appearances suggest probable early disc degeneration at this level…" (T4)
In a report of an x-ray of the right hip dated 26 February 1999, Dr Almosawi, a Consultant Radiologist stated:
"…There is mild narrowing of the joint space with marginal osteophyte formation… There is small tibial spine osteophyte formation…No other significant abnormality…" (T5)
In a report of an MRI scan of the right and left hip dated 1 October 1999, Dr Soper, a Consultant Radiologist, stated:
"…Summary: No evidence of avascular necrosis. There is an anterior labral tear with a few millimetres of separation involving the right hip joint and there is thinning and increased signal intensity within the femoral head articular cartilage superiorly on the right. No labral tear is demonstrated on the left. There is a left joint effusion…" (T6)
In a treating doctor's report dated 21 October 1999, Dr Tadros, a General Practitioner, described the Applicant's conditions in the following terms:
"(a) Painful right hip due to a tear of the anterior acetabular labrum - 5 years history of right groin pain causing her to limp. Treated with local steroid injections, NSAID's and local creams. Constant, long term and deteriorating.
(b) L5/S1 disc degenerative disease causing chronic low back pain. History of chronic low back pain and stiffness with no history of trauma. Treated with physiotherapy NSAID's and local creams. Long term, stable and constant." (T8, p37, 38).
Dr Tadros considered that the Applicant was unlikely to return to any form of full or part time work for more than two years, in that her work ability is affected in the following manner:

would be absent from work four or more days a month;
would be unable to work a full day because of endurance problems;
has substantially diminished dexterity;
is unable to lift, carry and move objects;
mobility would be constrained in some situations; and
may be distressed or have difficulty alternating between tasks (T8, p39, 40).

On 12 November 1999, Dr Kanapathipillai, a Medical Adviser with Health Services Australia, detailed the following whole person assessment following his clinical examination of the Applicant and documentation thereof:
"…This 34 year old lady has been in Australia for nearly 15 years and has never worked in her life so far.
She is now being assessed for DSP with a history of right hip pain since the birth of her last child about one and a half years ago and chronic lower back pain since she had her fourth pregnancy 8 years ago. She is a mother of six children now. She has x-ray evidence of early degenerative disc space narrowing at L5/S1 level of her back and early signs of osteoarthritis in her right hip with some effusion in her left hip as well. MRI scan on her right hip done on 1.10.99 reveals a tear in the anterior part of the acetabular labrum (edge of the right hip joint).
Her pain in right hip is constant and in her back comes on with physical activity only. Her main functional difficulties are with walking for more than 5 minutes, bending over, lifting and doing heavy household chores like vacuuming, bending over to pick up clothes to hang on the line and scrubbing the bathroom. She could sit for about 2 hours and stand for about 40 minutes to an hour and a half.
She has a slow limping gait, with mildly restricted painful right hip movements. But she refused to do her spinal movements today saying that she cannot do it because of the difficulty in bending her right hip. However, she could transfer, take off her pants and put it back and sit up with legs stretched on the couch without significant difficulty or discomfort. She says that her left hip is also getting painful now.
As I could not assess her spinal movements today, I am of the opinion that she should be examined by an independent Orthopaedic specialist before a final decision could be made on her functional impairment or work capacity. She is referred for one today and her file could be completed with a file review after this report…" (T10)

In a report dated 23 December 1999, Dr Corrigan, a Consultant Rheumatologist and Rehabilitation Physician, detailed his opinion in the following manner following his examination of the Applicant:
"1. Diagnosis
This lady has a large functional overlay of her symptoms, and to her formal examination, and it is impossible to assess her problems. This would not be helped by her belief that she is faced with imminent surgery. The x-ray reports show minor degree of trouble only, and certainly there is no musculoskeletal condition present that would account for her marked symptoms.
2. Prognosis and severity of condition
The prognosis for these musculoskeletal symptoms at the present time is very good.
3. An evaluation of the above client's medical capacity for their usual work, or possible alternative work for 30 hours a week and if necessary for fewer hours a week.
The evaluation of her medical capacity is certainly a problem because of her needing to be at home caring for her children, but I certainly feel that she would be able otherwise to do alternative work for 30 hours…" (T12)

On 17 January 2000, Dr Keen, a Senior Medical Adviser with Health Service Australia, conducted a full review, which included the report from Dr Corrigan. Dr Keen concluded that in the absence of significant musculoskeletal pathology and considerable overlay in the Applicant's presentation, the Applicant rates a 10 point combined impairment under Table 20 for her symptoms. It was not appropriate to rate the Applicant under the more functional-based Tables 4 and 5 due to difficulties in conducting a formal examination. Dr Keen considered the Applicant medically capable of all but the heaviest manual work (T13).
On 21 January 2000 the Respondent advised the Applicant that she was not qualified for DSP (T14). This decision was affirmed by an authorised review officer on 15 September 2000 (T17) and by the SSAT on 2 April 2001 (T2).
applicant's evidence
The Applicant told the Tribunal that she was born in Syria in 1965, left high school in year eleven at age 18, married in 1983, migrated to Australia in September 1985 and now has six children aged from 17 to 4 years of age, with all the children attending school. The Applicant stated that she did not work prior to her marriage and thereafter had been caring for her children. The Applicant further stated that her husband had not worked for five years and that he now receives a disability support pension, with the family relying upon family payments, rent assistance (as they do not own their own home), and disability support pension payments..
In relation to her disabilities, the Applicant stated that she had had low back pain for ten years, which she described as a severe pain in both the lower and upper back, though more on the right side. The symptoms were described as being worse with the last pregnancy and she was hospitalised in King George V. The Applicant described the pain as being there all the time and increases in severity for sometimes days or weeks at a time. The Applicant stated that one to two years ago, she could do the housework with help from the children and family, but now there are no days in which her back is free of pain. She describes her day as rising between 6am and 7am, with her daughter and son getting the breakfast, after which she does the dishes. She rests for 10 minutes in the morning, and is helped by her daughter to dress. She prepares lunch as much as she can, cleans the bath on occasions, is able to hang out the washing and makes her bed sometimes. She is able to do light work, but not able to stand for long periods and has difficulty with walking and bending. For four years the husband and the children have undertaken the vacuuming. The husband does the shopping. She has difficulty bending her legs, but she sometimes drives the car, which is automatic, for ten minutes. Her sleep is sometimes disturbed by back pain.
The Applicant stated that pain down her right leg commenced about eighteen months ago and that this has since increased. She has been prescribed analgesics (Panadol, Panadeine Forte, Cerebrex) and anti inflammatory drugs, and has experienced stomach troubles for which she was prescribed Zantac. She now takes tablets, one twice a day for her back and one twice a day for her arthritis. Further, the Applicant stated that she travelled by train to the hearing, had some difficulty with stairs and walked from Town Hall to Market Street.
In relation to her hip problems, the Applicant said they commenced with her last pregnancy, some four plus years ago. Pain was felt in both hips, more so in the right than the left. She was given an intra articular injection to the right hip which gave her some temporary improvement. She also experiences pain in both knees and ankles, and feels she has had a nervous problem the last six months.
In response to questions in cross-examination the Applicant stated that the medication does not seem to improve her problems, and that she did not continue with physiotherapy, because her son was sick at the time. The Applicant stated that the right and left knee pain was present before 1999, but gradually got worse. Further, the Applicant confirmed that in 1999 she was able to manage her own personal hygiene without assistance and that she was able to do housework for three hours daily. The Applicant also confirmed that she receives some assistance with cooking from her neighbours, that she helps her children with their homework, occasionally watches television, but does not participate in routine social activities.
other clinical evidence
In a report dated 5 October 1999, Dr Youssef, a Consultant Rheumatologist, after reviewing the Applicant with her MRI scan results of both hips, stated:
"…I think the news is relatively good as I was concerned there was something more serious than a tear. It is interesting that she does not remember any specific injury causing the tear. The treatment options include corticosteroid injection into the right hip and arthroscopic debridement of the tear…" (Exhibit A4)
In a report of a x-ray of the right knee dated 1 March 2001, Dr Doull, a Consultant Radiologist, commented that the right knee did not demonstrate any abnormality. (Exhibit A2).
In a report of both a plain x-ray of the lumbar spine and a plain X-ray of the left hip dated 9 August 2001, Dr Doull reported there was no abnormality in the left hip joint but there was disc space narrowing at L5/S1 (Exhibit A3).
In a report dated 23 August 2001, Dr Tadros detailed the Applicant's clinical history, his examination of 9 August 2001, and his opinion as to which disorders the Applciant was suffering:
"1. Chronic low back pain as a result of degenerative disc disease mainly affecting the L5/S1, level. This is running a chronic course and her back pain is likely to continue indefinitely.
2. Osteoarthritis of both hip joints with a tear of the anterior acetabular labrum on the right side. Analgesics, physiotherapy and the occasional steroid injection should provide some relief but in my opinion Mrs El-Khatib will eventually need a total hip replacement later in her life.
3. Osteoarthritis of both knees.
Again, the plan is to treat these conservatively at this age. Mrs El-Khatib continues to be unfit for work…" (Exhibit A1)
In a further report dated 30 November 2001, Dr Tadros advised that a bone scan examination of 2 November 2001 demonstrated active left knee arthritis and osteoarthritis of right knee and right L5/S1 intervertebral junction (Exhibit A5).
In a further report dated 4 September 2001, Dr Keen summarised his opinion, following a further file review:
"…In summary, these additional reports provide no new medical information and no new pathology to alter the previous HSA assessments of Ms El-Khatib's low back and hip condition. On reviewing the medical information, I would continue to regard an impairment of 10 for moderate regular symptoms of pain at these sites as appropriate under table 20, given the previously documented difficulty in using the functional tables (tables 4 and 5).
Finally, the report of Dr Tadros differs to the HSA assessment in 2 regards. Firstly, he notes additional diagnoses of osteoarthritis of both knees, and of both hips (not just the right hip). However, the radiological reports provide evidence only of mild right hip osteoarthritis, and do not support a diagnosis of left hip or of knee osteoarthritis. Secondly he considers Ms El-Khatib to be unfit for any work, contrary tot he opinion of Dr Corrigan. In this regard, I would prefer the opinion of the independent specialist rheumatologist as being more consistent with the relatively minor nature of the underlying pathology. Finally, I note the impairment ratings given by Dr Tadros. It is not made clear, but these would appear to be based on the AMA (American Medical Association) tables rather than those of the Department of Social Security (which do not differentiate between loss of use of the leg above the knee and that below the knee)." (Exhibit R2)

submissions

The Applicant contends that she has particular impairments and a combined rating for these impairments under the Schedule 1B Impairment Tables is 20 points or more. Further, the Applicant contends that she has a continuing inability to work, and in making such contentions relies upon the radiological evidence and the opinion of Dr Tadros. It is the Applicant's contention that she qualifies for DSP.
The Respondent, while conceding that the Applicant satisfies section 94(1)(a) of the Act, submits that on proper assessment the combined rating for the Applicant's impairments under the Schedule 1B Impairment Tables is 10 points. Further, the Respondent contends that the Applicant does not have a continuing inability to work. The Respondent relies upon the radiological evidence and the opinions of Drs Kanapathipillai, Corrigan and Keen. It is the Respondent's contention that the Applicant does not qualify for DSP.
consideration and findings
In this matter the Tribunal observes that the Applicant has detailed a consistent history of her complaints over time and this is evidenced in all the clinical reports. The Tribunal further observes that there appears to be an issue as to the degree of severity of the Applicant's symptomatology. Dr Kanapathipillai was unable to obtain sufficient cooperation to complete a physical examination and Dr Corrigan was of the opinion that there was a large functional overlay of her symptoms, which makes it difficult to assess her disabilities.
The Tribunal, having examined all the evidence before it and while noting that section 100(3) details that consideration is to be given to the necessary evidential material prior to the lodgement of the application and for a period of three months commencing the day after lodgement, concludes that the Applicant had two impairments during the operative period, which are listed below. In so stating, the Tribunal does recognise that medical and other evidence detailed after the operative period may be utilised by the Tribunal to assist in a better understanding of the impairments during the operative period. The impairments found to exist during the operative period are:
(a) Degenerative Disc Narrowing of L5/S1
The Tribunal notes the x-ray evidence of such in both the x-ray taken in 1999 and the x-ray taken in 2001, and the history of pain as described by the Applicant. The Tribunal also notes any loss of function of the lumbosacral spine has not been detailed during the operative period for the reasons outlined earlier in these considerations. The Tribunal also notes that all the medical reports concur with the diagnosis, with the issue being the severity of the Applicant's symptomatology.
(b) Osteoarthritis of the right hip
The Tribunal again notes the MRI scan of both hips in October 1999, with a tear being noted in the anterior labrum of the acetabulum. The Tribunal also notes the Applicant's history of constant pain in the hip, which was relieved in part by intra articular corticosteroid injection. The Tribunal also again records the difficulties noted by the clinicians during their formal examination of the Applicant during the operative period.

The Tribunal also concludes that at the time the claim was lodged and during the three month operative period, there is insufficient clinical material available to allow the Tribunal to find that other impairments existed. Detailed issues pertaining to the left hip, both knees, and a psychiatric impairment all post date the defined period, as does, in the Tribunal's view, an increase in the patient's symptomatology, as evidenced by what she could do at the time of the hearing and what she was able to do from October to December 1999.
As a result of its findings, the Tribunal concludes that the Applicant, by having the nominated impairments, satisfies section 94(1)(a) of the Act.
statutory framework
Section 94 of the Social Security Act 1991 ("the Act") sets out the qualification for DSP. It reads as follows:
"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;
…
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 likely (because of the impairment) to enable the person to do any work within the next 2 years.
94. (3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)       the availability to the person of educational or vocational training or on-the-job training; or
(b)       if subsection (4) does not apply to the person- the availability to the person of work in the person's locally accessible labour market.
…
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."
…
Section 100 of the Act sets out the commencement date for DSP and relevantly states at subsection 100(3):
"100. (3) If:
(a) a person lodges a claim for a disability support pension; and
(b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."
In addressing the assessment of the impairments under the Schedule 1B Impairment Tables, the Tribunal again notes the absence of detailed formal examinations of the hips and the lumbosacral spine, and reasons for this, during the defined period. The Tribunal, in the absence of such evidence, is unable to make any assessments under Table 4 - Function of the Lower Limb or Table 5.2. - Spinal Function Thoraco-lumbar-sacral spine. The Tribunal does note the assessment made by Dr Tadros in his report of 23 August 2001, but finds that such an assessment is well after the operative period as defined by section 100(3) and is clearly not an assessment done under the Schedule 1B Impairment Tables.
The Tribunal notes the Applicant's symptomatology during the relevant period, of low back pain and constant pain in the right hip and right inguinal region and the episodic nature of increased pain, together with the details provided by the Applicant as to the limitations her impairments imposed on her activities at the relevant period. In so noting, the Tribunal concludes that the Applicant's impairments should be assessed under Table 20 of the Schedule 1B Impairment Tables, which relevantly states:
"…Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating            Criteria
NIL                Controlled hypertension
  Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. Malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
…"
The Tribunal in assessing the Applicant's impairments, as demonstrated by the expression of pain symptomatology, concludes that the Applicant has 10 points rating under Table 20. The Tribunal believes such a rating is appropriate in light of the Applicant's clinical history at the relevant period and the stated loss of ability to do particular activities during October to December 1999.
The Tribunal concludes that as a result of the Applicant having a combined impairment rating of 10 points, the Applicant fails to satisfy section 94(1)(b) of the Act.
In addressing the issue of continuing inability to work, the Tribunal notes the opinion of Dr Tadros in October 1999, but observes that there is insufficient clinical detail documented for the Tribunal to understand the effect which Dr Tadros suggests the Applicant's impairments will have on her work ability. Further, the Tribunal notes that there is insufficient clinical detail documented to support Dr Tadros' conclusion that the Applicant would not benefit from vocational work training or rehabilitation.
The Tribunal notes the opinions of Drs Kanapathipillai, Keen and Corrigan and in particular reflects upon the opinion of Dr Corrigan that there is no marked musculoskeletal condition present and that the Applicant should be able to do alternative work for 30 hours per week. The Tribunal also notes the opinion of Dr Youssef where he states on 5 October 1999 (Exhibit A4):
"…I think the news is relatively good as I was concerned there was something more serious than a tear…"

The Tribunal accepts the opinions of Drs Kanapathipillai, Keen and Corrigan in relation to the Applicant's ability to work because they are consistent with the radiological evidence and clearly take into account issues relating to both the Applicant's clinical history and the functional overlay in relation to symptomology. The Tribunal has already concluded that it found Dr Tadros' report of October 1999 wanting for lack of clinical detail documented to support the opinions expressed, in relation to effect on work ability and vocational training and rehabilitation.
In summary, the Tribunal concludes that the Applicant does not have a continuing inability to work for the reasons that:

the nominated impairments do not prevent her from doing any work during the next two years;
the nominated impairments do not prevent her from undertaking educational or vocational training or on-the-job training during the next two years; and
despite having been able to undertake such training, such training (because of the nominated impairments) is not unlikely to prevent the Applicant from doing any work within the next two years.

For the reasons already nominated, the Tribunal finds that the Applicant fails to satisfy any of the elements nominated within section 94(2) of the Act. As a consequence of the Applicant failing to satisfy sections 94(1)(b) and 94(1)(c)(i) of the Act, the Applicant fails to qualify for DSP.
determination
The Tribunal determines that the decision under review be affirmed.
I certify that the 44 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  30 November 2001
Date of Decision  14 March 2002
Representative for the Applicant   Self
Advocate for the Respondent     Mr Lozynsky

[2002] AATA 164

14 March 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairments

Assessment

Continuing Inability to Work