Elkassir and Department of Family and Community Services

[2000] AATA 652

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 652

ADMINISTRATIVE APPEALS TRIBUNAL  )

)              No       N1999/1524

GENERAL ADMINISTRATIVE DIVISION     )

ReSALMA ELKASSIR

Applicant

AndSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

TribunalJP Barber, Member

Date3 August 2000

PlaceSydney

Decision      The Tribunal sets aside the decision of the SSAT and remits the matter to the Respondent under section 42D of the Administrative Appeals Tribunal Act 1975 to arrange for a formal assessment of the Applicant's psychiatric and hearing problems and an assessment of the Applicant's capacity to engage in work pursuant to s 94 (1)(c) of the Social Security Act 1991.

..............................................
  MEMBER

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether the applicant's impairment was 20% or more at the time of the original decision - impairment of 10% found
Social Security Act 1991 - ss 94, 94(1), 94(2).

REASONS FOR DECISION

J P Barber, Member

1. This matter involves an application by Salma Elkassir ("the Applicant") for a review of the decision of the Social Security Appeals Tribunal ("the SSAT") made on 24 August 1999 which affirmed the decision of a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") and an authorised review officer ("ARO") to reject the Applicant's disability support pension ("DSP") claim.

2. At the hearing, the Applicant was self-represented and the Respondent was represented by Ms Susan Mantaring of the Administrative Law Section of Centrelink. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the Respondent's statement of facts and contentions (exhibit R1), with attachments (exhibit R2). In addition, a report from Kim Neville of Central Ear Services was tendered by the Applicant and admitted into evidence (exhibit A1).

3. The Applicant gave oral evidence at the hearing through an interpreter, Mrs Selmaan.

Background

1. The Applicant  was born on 20 July 1952 in Lebanon and came to Australia in July 1995 on a temporary visa.   The Applicant was injured in a motor vehicle accident on 25 February 1998 and was hospitalised at The Canterbury Hospital where she was assessed and x-rayed before being discharged.

2. The Applicant was subsequently admitted to Concord Hospital for severe back pain.  She was examined by Doctor Solomon and treated with analgesics and physiotherapy.

3. The Applicant was referred to an orthopaedic surgeon, Dr Loefler for examination on 22 April 1998.  Dr Loefler concluded that the Applicant was 'apparently in severe pain' and arranged for her to have a bone scan to exclude any undiscovered pathology.

4. On 5 May 1998 Dr Loefler saw the Applicant again and reported that the bone scan demonstrated an abnormality at L5 which was reported as a healing pars fracture.  Dr Loefler referred the Applicant for a CT scan in order to visualise the area in greater detail.

5. The Applicant again saw Dr Loefler on 19 May 1998.  In reviewing the CT scan, Dr Loefler concluded that there was no need for surgery or to brace the fracture and that the Applicant's symptoms would gradually improve.

6. Also on 19 May, the Applicant was granted permanent residence.

7. On 30 July 1998, Dr Rajendram wrote a report addressed to the Claims Officer, CTP Department of the NRMA summarising the treatments and outcomes of the examinations.  His final diagnosis was that the Applicant suffered from a fracture of the L5 pars interarticularis and soft tissue injuries to the neck and lower back.

8. On 22 October 1998, the Applicant was assessed by Dr Lewington, a rehabilitation and spinal physician.  Dr Lewington noted the Applicant's slow progress, her high level of disability and her strong pain focus. He remarked that if the Applicant spoke English, he would have enrolled her in an in-patient style of pain management program.  He reported that the had organised for the Applicant to have a TENS trial to help reduce pain and to facilitate a gradual increase in her level of physical activity.  He noted that the Applicant was on six to eight Panadeine Forte per day.

9. On 1 December 1998 the Applicant saw Dr Vote, an orthopaedic surgeon.  Dr Vote prepared a report of the consultation and examination on 10 December 1998.  In it he reported that it was virtually impossible to examine the Applicant as she resisted all movements of her lumbar spine.  He also reported that he thought that there was a very significant emotional factor involved in the Applicant's condition. He recommended that the Applicant use a lumbar brace and if there was not progress, he proposed injecting the Applicant with a local anaesthetic steroid.

10. On 11 December 1998, the Applicant's GP, Dr Rajendram requested that the Applicant be fitted with a brace.

11. On 14 December, Harry Touma of Hydroworks physiotherapy and hydrotherapy centre wrote to Dr Lewington reporting that the Applicant had reached a point where no further progress was anticipated because of reported aggravation of her symptoms.

12. The Applicant saw Dr Lewington on 4 February.  Dr Lewington reported that the Applicant's condition had deteriorated and that she was exhibiting marked pain behaviour.  Dr Lewington noted that pain management was the major issue facing the Applicant and recommended that she be referred to a pain clinic in a large public hospital.  He went on to note that in his opinion, her prognosis was not good.

13. On 1 April 1999, Dr J Ditton, a consultant in pain management saw the Applicant and reported marked pain behaviour and a refusal by the Applicant to flex or extend her spine during assessment.  Dr Ditton noted that the gross pain behaviour appeared to be abnormal illness behaviour.  He suggested arranging an MRI scan and referred her to Michael Jennings a psychiatric consultant.

14. On 6 April 1999, the Applicant applied for a Disability Support Pension.

15. On 18 May 1999, the Applicant was examined by Dr Phillips of Health Services Australia.  He reported that the Applicant refused to cooperate in a formal examination because of reported pain.  He noted that the report of Dr Ditton had noted abnormal pain behaviour and had arranged a referral to a psychiatrist.  Dr Phillips assessed the Applicant's condition as temporary (T17).

16. On 19 May, Centrelink rejected the Applicant's claim for DSP on the grounds that her condition was temporary (T19, p72).

17. On 11 June 1999, an ARO reviewed the decision to reject the Applicant's DSP claim and determined that the condition 'is only temporary' (T21,p75).

18. Also on 11 June 1999, the Applicant was examined by a psychiatrist Dr Michael Jennings.  Dr Jennings gave a guarded prognosis and diagnosed the Applicant as having a Chronic Pain Disorder and also a Chronic Adjustment Disorder with Anxiety.   He suggested that the Applicant increase her dose of Tryptanol from 25mg to 50 and then 75mg daily (Appendix C to Respondents Statement of Facts and Contentions).

19. An appeal to the SSAT was heard on 24 August 1999.  The Tribunal affirmed the original decision (T2).

20. The Applicant lodged an appeal to the Administrative Appeals Tribunal ("the Tribunal") on 28 September 1999 (T1).

21. At the hearing, the Applicant tendered a report to Dr Rajendram from Central Hearing Services.  While Dr Rajendram indicated that the Applicant had suffered some hearing loss, he did not apply a rating under the Impairment Tables.

Applicable Legislation and Issues

1. The qualifications for DSP are set out in s 94(1) of the Social Security Act 1991 ('the Act"). Section 94(1) provides in part:

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;

...

1. The term "continuing inability to work" is further defined in s 94(2):

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.

1. There is no dispute that the Applicant has a physical impairment. The issues for the Tribunal are whether the Applicant's physical impairments should be assessed at 20 points or more under the Impairment Tables set out in Schedule 1B of the Act, and if so, whether the Applicant has a "continuing inability to work".

The Applicant's Evidence

1. The Applicant presented to the Tribunal in a distressed state, which she put down to the chronic pain that had been reported in the various medical reports before the Tribunal.

2. The Applicant reported that she has great difficulty sleeping and is always tired.  She told the Tribunal that she cannot be left alone as she has to be assisted to dress, put on her brace and to go to the toilet.  She said that she cannot walk without experiencing pain.

3. The Applicant reported that after the accident she had noticed that she had developed a hearing problem.  She said that she had been referred to an assessment service by her general practitioner after she reported dizziness, but that she had lost the referral and had not spoken to her general practitioner about the hearing problems until recently.

4. The Applicant also spoke of the problems she had experienced as a result of her lack of English.  She told the Tribunal that the pain clinic experience had been of little use as she had not understood the instructions or the advice offered.

The Respondent's Submission

1. The Respondent contends that the original decision to reject the Applicant's DSP on 19 May 1998 was correct, as were the decisions of the ARO and the SSAT.

2. The Respondent submitted a report of a file review undertaken by Dr Phillips of Health Services Australia of 20 December 1999, in which it was acknowledged that the Applicant's pain was "permanent" and that it warranted a rating of 15 points under Table 20 for Chronic Pain Syndrome.  Dr Phillips reported that she did not think that the evidence points to a medical cause as the Applicant's major barrier to work.

Consideration of Evidence And Findings of Fact

1. The evidence before the Tribunal reveals that the Applicant has suffered injuries as a result of a motor vehicle accident and that she experiences severe chronic back pain.  Her activities of daily living are severely constrained and she reported that she requires constant care from her de facto husband.  The Applicant's doctors have, since December 1998, indicated that the pain condition is likely to be affected by the Applicant's emotional or psychiatric condition.

2. The Applicant has been treated for her emotional condition with Tryptanol since mid 1999.  It was increased in July 1999 after examination by the psychiatrist Dr Jennings, who diagnosed her condition as Chronic Pain Disorder and Chronic Adjustment Disorder with anxiety.  This condition was identified on 11 June, that is, within three months of her application for DSP.  While treatment was commenced, there was nothing further before the Tribunal to indicate the effects of the treatment  so the condition could not be said to have been stabilised.  A rating for the condition could thus not be made at the time of the hearing.

3. Dr Phillips (Health Services Australia) report of 20 December 1999, which acknowledged that the Applicant's pain was "permanent" rated the condition at 15 points under Table 20 for chronic pain syndrome.  The symptoms evidenced by various medical practitioners and their reports of the Applicant's disability suggest a rating of 20 points is more appropriate than one of 15.  Table 20 states:

FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities.  Self care is unaffected and independence is retained.  Symptoms may have a mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work related tasks.  Symptoms may cause prolonged absences from work.

1. The psychiatric condition and the hearing loss need to be assessed as does the Applicant's capacity to prevent the person from doing any work within the next two years as required by s 94 (1)(c) of the Act.

2. On the grounds that the Applicant's condition, as judged by Table 20, warrants a rating of 20 points rather than 15 as suggested by Dr Phillips, the decision of the SSAT is set aside. The matter is remitted to the Respondent under section 42D of the Administrative Appeals Tribunal Act 1975 to arrange for a formal assessment of the Applicant's psychiatric and hearing problems and an assessment of the Applicant's capacity to engage in work pursuant to s 94 (1)(c) of the Act.

   I certify that this and the 38 preceding pages are a true copy of the decision and reasons for decision herein of Member J P Barber.

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

   Date of Hearing  22 March 2000
   Date of Decision  3 August 2000
   Self represent Applicant          Ms Salma Elkassir
   Advocate for the Respondent  Ms Susan Mantaring