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

[2008] AATA 963

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4369

GENERAL ADMINISTRATIVE DIVISION		)
Re		FERIAL EL MASRI

Applicant

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

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date30 October 2008

PlaceSydney

Decision The decision under review is affirmed.

...................[Sgd]......................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision under review affirmed.

Social Security Act 1991 – section 94, Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

REASONS FOR DECISION

30 October 2008 Ms N Isenberg, Senior Member   

BACKGROUND

1.      Mrs El Masri claimed disability support pension (“DSP”) on 23 April 2007.  While Centrelink, on behalf of the Respondent, agreed that she suffers some medical problems, Centrelink did not agree that her various impairments attract the required impairment rating of 20 points under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Nor did Centrelink agree that she meets the other requirement of eligibility for DSP, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and are as follows:

(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)…

(i)the person has a continuing inability to work…

ISSUE BEFORE THE TRIBUNAL

2.      The main issues to be determined with relation to this matter are:

a) Whether Mrs El Masri has a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b)    Whether she has a continuing inability to work because of that impairment.

LEGISLATIVE FRAMEWORK

3. Section 94(2) of the Act provides that:

(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

4. Section 94(4) states that:

A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)is unlikely to need a program of support that:

(i)is designed to assist the person to prepare for, find or maintain work; and

(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)is likely to need such a program of support provided occasionally; or

(c)is likely to need such a program of support that is not ongoing.

5. Training activity is defined under section 94(5) of the Act to mean education, pre-vocational training, vocational training, vocational rehabilitation or work-related training (including on-the-job training), whether or not that activity is designed specifically for people with impairments.

6. Schedule 2, clause 4 of the Social Security (Administration) Act1999 provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim.  Therefore, I had to consider if Mrs El Masri became entitled to the DSP during the period 23 April 2007 and 23 July 2007.   

EVIDENCE

7.      The documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents") were tendered.

8.      Mrs El Masri gave evidence and was cross-examined on behalf of Centrelink.  I also asked her questions.  I asked her to specifically comment on her conditions during the relevant period, and not her current symptoms.  This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 19 FCR 342.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

Did Mrs El Masri between 23 April 2007 and 23 July 2007 have a physical, intellectual or psychiatric impairment of 20 points or more?

cervical spine

9.      Mrs El Masri gave evidence of suffering pain in the neck which radiates to her shoulders, into her arms and elbows and to her hands.  Her hands become numb, especially at night.  She is able, though, to cut vegetables and help with the cooking.  She is unable to hold her baby grandchild for long.  About 5 years ago, she started going to the chiropractor and went every 3-6 months up until a couple of years ago.  She had acupuncture and physiotherapy 3 times, but found that too painful and tiring.  Finally, the doctor said that there was nothing to be done except to take pain killers. 

10.     In his treating doctor’s report of 23 April 2007, Dr Malek, her GP, described the current symptoms of Mrs El Masri’s neck condition as severe pain and tenderness.  However, he did not indicate how the condition affected Mrs El Masri’s ability to function.  Dr Malek considered that the condition would last for more than 24 months and during that period would remain unchanged.

11.     In a later treating doctor’s report dated 13 August 2007, Dr Malek stated that Mrs El Masri had “broad disc bulge at C2/3, C3/4, C4/5 and C6/7”, but made no mention of loss of the range of neck movement. 

12.     On 30 April 2007, Mrs El Masri was assessed by Ms Liamakeros, a job capacity assessor with Centrelink.  Ms Liamakeros recorded that Mrs El Masri advised that she had been diagnosed with cervical spondylosis 4-5 years ago.  She found Mrs El Masri to have nearly full range of movement of the neck.

13.     On 8 June 2007, Mrs El Masri provided a report from Dr Jones in relation to a CT scan carried out on her cervical spine.  There, Dr Jones reported that “[the] spinal canal is moderately stenosed at C5/6 because of posterior disc bulging”, and “[n]eurocentral joint arthropathy resulting in mild to moderate narrowing of neural foramina at that level’.  Dr Jones reported that there was only “slight posterior bulging at C2/3, C3/4 and C4/5…without any significant impingement” and “[l]ess prominent posterior disc bulging is shown at C6/7”.

14. Centrelink initially assessed Mrs El Masri’s neck condition at 0 points pursuant to Table 5.1 of Schedule 1B of the Act, but the authorised review officer and the Social Security Appeals Tribunal assessed her neck at 10 impairment points. The relevant impairment ratings of that Table provides:

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.

15.     To be assigned a rating greater than nil points under Table 5.1, a person must have at least one quarter loss of the normal range of movement of the cervical spine.  The clinical evidence, particularly that of Dr Jones, does not support the finding that Mrs El Masri has a functional loss of as much as ½ of the normal range of movement of her neck so as to attract a rating of 10 points.  In the face to face assessment, the job capacity assessor found her to have “normal or nearly normal range of movement” in her neck.  At the hearing, she appeared to me to be able to move her neck freely from side to side, to nod and to use her head readily, especially when making a point.

16.     I accept though that she may have some loss of the normal range of movement, but it is no more than ¼.  I, therefore, find that her neck condition attracts a rating of 5 impairment points.

lumbar spine

17.     Mrs El Masri gave evidence that she suffered from back pain, which gradually commenced about 2 years after she started having trouble with her neck.  Now she has pain in her low back which radiates down her right leg.  She is unable to stand or walk for more than about 10 minutes.  She is also unable to sit for long periods. 

18.     She spends her day watching TV.  She might go into the backyard for a little walk.  As a result, she has put on a lot of weight - Dr Malek noted obesity in a treating doctor’s report.  About 3 years ago, her son gave her a treadmill which she was only able to use – approximately 10 minutes a day – for about 6 months, on and off. 

19.     Mrs El Masri lives with her son and daughter-in-law and they do “everything” for her.  About once a week, her daughter might take her shopping, but she often has to sit down at the shops.  She is always driven everywhere, as she has been since she came to Australia 30 years ago.  (She has never in that time caught a bus or train.)

20.     In the treating doctor’s report dated 23 April 2007, Dr Malek described the current symptoms of her back as severe pain and tenderness.  Again, he did not answer the question as to how the conditions affected Mrs El Masri’s ability to function.  Dr Malek considered that the condition would last for more than 24 months and during that period would remain unchanged. 

21.     In his later treating doctor’s report, Dr Malek identified severe low back pain and describe the symptoms as “bilateral sciatical [sic] pain, reduced movement and tenderness”.  In describing how the condition affects Mrs El Masri’s ability to function, he noted that she was “unable to carry any [sic] duties”.  Dr Malek considered that the condition would last for more than 24 months and deteriorate during that period.

22.     Dr Jones reported that there was disc bulging at L4/5, which was “contributing to slight narrowing of the spinal canal”.

23.     The job capacity assessor, Ms Liamakeros, found Mrs El Masri to have a ¼ loss of the normal range of movement of the lower back.  It was recorded that Mrs El Masri told her that her lumbar spine condition had been diagnosed 4-5 years beforehand; that she was able to walk and stand for about 30 minutes before she experiences pain; and that she was, at that time, able to spend 10 minutes on the treadmill for exercise.  Ms Liamakeros noted Mrs El Masri was able to sit for 60 minutes throughout the assessment.

24.     Table 5.2 indicates that the relevant impairment ratings are as follows:

Rating  Criteria

…

FIVE                 Loss of one‑quarter of normal range of movement.

TEN                 Loss 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.

TWENTY       Loss 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.

25.     Centrelink did not dispute that Mrs El Masri has an impairment rating of 10 points under Table 5.2, as she has ¼ loss of the normal range of movement from her lower back as well as referred pain.  I agree with this assessment.

26.     On balance, I consider that it is appropriate to allocate 10 impairment points in respect of Mrs El Masri’s lumbar spine under Table 5.2.

stomach problems

27.     Mrs El Masri told me that about 7 years ago, her stomach became swollen and she was taken to the medical centre, and later to her own doctor.  It was suspected that she had a problem with her gall bladder.  Tests showed nothing.  She had ulcers and there was some suggestion that her stomach condition was pre-cancerous.  She was given large amounts of antibiotics.  After about 2 years, the condition returned, but not as severely.  She has had an endoscopy and must annually have a “breath test” to assess the level of bacteria present. She indicated that she is required to take medication for life.  She was due to see a specialist, but has not done so.  She thought the condition was brought on by heavy use of pain killers.  Consequently all she can now take for her pain is panadol – usually 2 every 4 hours.

28.     Dr Malek also identified her as suffering from “gastro-oesophageal reflux”.  He described the current symptoms as abdominal pain and heart burn, but again, when asked to describe how the condition impacts on Mrs El Masri’s ability to function, he failed to provide an answer.  Dr Malek considered the condition would last for more than 24 months and fluctuate during that period.

29.     Ms Liamakeros noted that Mrs El Masri was diagnosed with abdominal pain 7-8 years ago.  Mrs El Masri told her that she was currently managing the condition with medication and that there was significant improvement.  Ms Liamakeros considered the condition had not stabilised and it was therefore considered to be temporary.

30.     It must be noted that the Respondent considers that this condition should be assessed under Table 20.  However, it appears that Table 11.1 is more appropriate, as it assesses impairments resulting from conditions affecting the upper part of the gastrointestinal tract and includes conditions affecting the stomach, which tend to result in symptoms such as upper abdominal pain and sometimes fatigue. In addition, the Guide to the Tables for the Assessment of Work-Related Impairment for DSP states that a common condition assessed under this Table is reflux oesophagitis.

31.     The relevant part of Table 11.1 provides that:

Rating   Criteria

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.

32.     As Mrs El Masri was considered to have ulcers and/or been suffering from gastro-oesophageal reflux, she must be considered to have continuing frequent symptoms despite optimal treatment in order for her condition to attract a rating of more than nil points under Table 11.1.  Given Dr Malek’s view that the condition would last for more than 2 years (but fluctuating during that period), I accept that the condition is permanent.  However, Mrs El Masri apparently told Ms Liamakeros that she was currently managing the condition with medication and that there was significant improvement.  I therefore consider that no impairment points should be allocated under this Table.  I note that even if Table 20 were applied the condition would still attract a rating of nil.

depression

33.     Mrs El Masri told me she is very stressed, especially as Centrelink wants her to complete “programs”, presumably in respect of the newstart allowance she presently receives.  She also said she is getting forgetful and is always tired.

34.     In response to a question that asked about “medical conditions which are generally well managed and cause minimal or limited impact on ability to function”, Dr Malek identified depression.

35.     Mrs El Masri told Ms Liamakeros that her depression was diagnosed 4-5 years ago, and reported no current treatment.  She told me she has not been referred to a psychiatrist, although she has seen a psychologist who told her there was nothing wrong with her and that she needed to have less stress in her life.

36.     As her condition has not been fully diagnosed, treated and stabilised, it cannot attract a rating under the impairment Tables. 

combined impairment

37. Mrs El Masri’s overall impairment rating is therefore 15 points. This falls short of the 20 points or more required under section 94 of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is, therefore, not necessary for me to consider whether she has a continuing inability to work.

DECISION

38.     The decision under review is affirmed. 

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ...................[Sgd].........................
  Ms Radhika Prasad, Associate

Date of Hearing        20 August and 13 October 2008
Date of Decision  30 October 2008
Appearance for Applicant               Self-represented

Advocate for the Respondent        Mr Ken Bullock, Centrelink Legal Services