Elrich and Department of Family and Community Services

[2000] AATA 456

DECISION AND REASONS FOR DECISION [2000] AATA 456

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N1998/1137

GENERAL ADMINISTRATIVE  DIVISION       )      
           Re      OMAR  ELRICH   
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date9 June 2000 

PlaceSydney

Decision      The Tribunal affirms the decision under review.

(Sgd) J D CAMPBELL
  ..............................................
  Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - impairments - cervical spondylosis - right arm and shoulder pain – varicose veins - depression - lumbar spondylosis - diabetes mellitus - assessment - continuing inability to work.

Social Security Act 1991 - ss94 and 100, Schedule 1B

REASONS FOR DECISION

Dr J D Campbell, Member   

1. Mr Omar Elrich ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 20 July 1998, which affirmed the decision of the Authorised Review Officer of Centrelink dated 8 April 1998.  This latter decision affirmed the decision of a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") dated 16 September 1997 to reject the Applicant's claim for a Disability Support Pension.

2. A hearing was held before the Tribunal on 9 February 2000, at which the self-represented Applicant  presented oral evidence.  The Respondent was represented by Ms Schuster, an advocate from the Administrative Law section of Centrelink.  The Tribunal was assisted by an interpreter fluent in the Arabic language.

3. The following written material was placed in evidence before the Tribunal:
   Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Medical Report of Dr N A Assaad dated 8 September 1999 Respondent's Statement of Facts and Contentions dated 26 November 1999 Medical Report of file from Dr D Keen dated 26 October 1999 T1 – 28 P1 – 95 Exhibit A1 Exhibit R1 Exhibit R2
   ISSUES

4. The relevant issues in this matter are:

   (1)whether the Applicant has a physical, intellectual or psychiatric impairment that is 20% or more under the tables for the assessment of work-related impairment for disability support pension ("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 the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) (5) and subsection 100(3), and the pre 1 April 1998 Impairment Tables.
   BACKGROUND

2. The Applicant submitted a claim for Disability Support Pension which was received by the Respondent on 10 June 1997.  Medical reports were obtained in August and September 1997, and the Applicant's claim for Disability Support Pension was rejected on 16 September 1997.  Following further reconsideration on 24 September 1997, the matter was further reviewed by an Authorised Review Officer who, on 8 April 1998, advised the Applicant that his claim was rejected on the grounds that the Applicant's combined impairment rating was less than 20% and that the Applicant did not have a continuing inability to work.  Following the provision of further medical reports, the matter was reviewed by the Social Security Appeals Tribunal who found that while the Applicant did have a combined impairment rating of 20% or more, the Applicant did not have a continuing inability to work and that his claim for Disability Support Pension should be rejected (T2).
   APPLICANT'S EVIDENCE

3. The Applicant told the Tribunal that he was born in Lebanon on 9 September 1953, attended school from age six to 11, after which he learnt the trade of hairdressing by age 14.  Subsequently the Applicant stated that he commenced working as a barber, opened a salon for a year in the Emirates, married in 1972 and came to Australia in 1984 where, after some casual work, he obtained work as a hairdresser for three years.  The Applicant stated that he was married with six children, ages 17-27, with four still living at home.

4. The Applicant stated that in 1992 he was involved in a car accident with injuries to his right arm, back, neck and legs.  He stated that he was admitted to Bankstown Hospital for 12 hours, after which he was at home in bed for one week.  Subsequently, he tried to return to work but found it hard to do so, because of increasing pain in his right arm for which he was prescribed pain killers and physiotherapy, which did not help. 

5. The Applicant told the Tribunal that he tries every now and then to return to casual work but, in reality, he is unable to work.  He stated that he finds each day boring, and that he has an unusual sleep pattern which is erratic in length following his retirement to bed in the late evening.  During the day he finds he is unable to assist his wife with washing, cooking, house cleaning, bed making or shopping.  Further he finds that he is often argumentative and needs to go outside for fresh air.  He stated that he does not own or drive a car, does not visit clubs, visits and receives visits from his brothers and sisters, attends at the Mosque, is able to walk for five to ten minutes, and feels that he is not very fit although able to travel by public transport and walk up and down stairs.

6. In response to questions asked in cross-examination, the Applicant confirmed that he had finished work in 1992, although he had been looking for work prior to his car accident.  Further the Applicant stated that he had not worked much during 1990, 1991 and 1992, and that he had received unemployment benefits during this period.  After the accident in March 1992, the Applicant returned to Lebanon in June 1992 because of family problems.  Further, he stated that he had been separated from his family, because of problems with his children, and when living alone he had attempted to do some light work, although he has some difficulty recalling events during the period he was living on his own (1992-1998).  He further responded that he did not believe he could be rehabilitated; that he had not received any courses or training since 1990, apart from an English course which lasted for nine months; and that his age is a barrier to his finding work.

7. The Applicant, in describing his various disabilities, made the following comments in relation to each of the nominated disabilities:

   (a)Neck Pain:               Commenced after car accident; posterior neck pain which radiates to head and eyes and to left and right shoulder; constant headaches; takes 4/5 Panadeine a day; went to Germany five years ago, to see doctors, but this was of no help.

(b)Right Arm Pain:      Pain in his right shoulder and right arm forces him to lie down and rest to relieve pain; no other disability with his right arm.

(c)Low Back pain:       Commenced two to three years ago; pain in lower back posteriorly; with intermittent radiation to his legs; not sure what triggers it, comes and goes; sometimes severe; getting worse.

(d)Legs:  Right Leg  -    unable to walk on right leg because of pain which commenced about a year ago; unable to kneel on right knee (pain).

Left Leg-    varicose veins causing him cramps.

(e)Diabetes Mellitus:    Not well controlled on oral medication; first diagnosed four years ago, after he came back from Germany – symptoms of thirst and polyuria; feels it is getting worse and does not want to have injections (does not like).

(f)Depression:             Tries to take life in his stride; tries to forget the problems he has; does not argue with people other than family; tries to be "a nice guy".

MEDICAL EVIDENCE

1. In a report dated 22 March 1996 (T3 p9), Dr Guirgis, a consultant orthopaedic surgeon, concluded that the Applicant's signs and diagnosis remains consistent with:

   "A)Chronic mechanical derangement of the neck and back caused by discopathic and spondylotic changes in the spine with irritation of the right and left lumbo-sacral nerve roots complicated by the onset of chronic spinal pain syndrome.

   B)Active supraspinatus tendonitis of the right shoulder.

   …"(T3 p9)

1. In a medical report dated 25 March 1997, Dr Goldberg, a consultant orthopaedic surgeon, concluded:

   "Mr Elriche's main problem relates to cervical spondylosis.  This is extensive and is not curable with surgery.  He requires intensive physiotherapy to his neck over several months.  He also has a classical overuse injury involving his elbow and forearm muscles and for this I believe he requires referral to a rehabilitation physician for some job retraining and maybe some ergonometric aids at work.  …
   I could not find any significant pathology in the shoulder."   (T4 p11)

1. In his treating doctor's report of 4 June 1997, Dr Assaad listed the Applicant's conditions and ascribed the following consequences to each condition:
   "a        Cervical & lumbar spondylosis & osteo-arthritis right shoulder         b        Rotator cuff syndrome right shoulder     c Right lateral epicondylitis      Right carpal tunnel syndrome          Osteoarthritis and de Quervain's disease right thumb d      Severe varicose veins left leg          Unable to bend or lift heavy objects Unable to abduct or move properly right shoulder    Unable to use right upper limb or right hand   Unable to stand for long periods of time."  ( T6 p15)          

1. Dr Assaad further opined that the Applicant, because of the various medical conditions, was not fit for any work of at least 30 hours per week, and not fit for any part-time work at that time and for more than two years in the future.

2. In a letter dated 8 August 1997, Dr Sinnathamby confirmed that the Applicant had developed pain in the neck and both arms and had been treated extensively with physiotherapy and analgesics.  Further it was confirmed that the Applicant had been seen and treated for depression by Dr Ali, a consultant psychiatrist.  Dr Sinnathamby considered that the Applicant is not fit for any work (T12 p44).

3. As a consequence of his examination on 8 August 1997, Dr Jones, a Health Services Australia medical practitioner, concluded that the Applicant had the following conditions and nominated the following impairment assessments:
   (a)      Multi site pain neck, spine, right arm       and thumb  (b)   Multi site upper limb dysfunction with carpal tunnel syndrome in dominant limb  (c)         Varicose veins left leg – no significant functional impact  (d)   Psychiatric opinion – referred for psychiatric opinion    5% under Table No 6   10% under Table No 6   0% under Table No 4         

Dr Jones considered that the Applicant had the capacity to undertake work for 30 hours per week or more in both light and moderate semi skilled or lesser skilled work categories.  Further, such return to work would be assisted by the provision of a vocational rehabilitation program (T13).

1. In a report dated 3 September 1997, Dr Lovell, a consultant psychiatrist, opined that:

   "Mr Elrich has no psychiatric diagnosis.  …
   At times he is irritable but mostly appears to enjoy life.  …
   There is nothing psychologically which precludes him from working full time." 
   (T17 p73/74)

1. In a report dated 9 September 1997, Dr Ellis, a Health Services Australia medical practitioner, confirmed a combined assessment rating of 15% and opined that the Applicant:

   "… is fit for light work where he does not have to stand all day and no heavy lifting or use of force with his arms."   (T18 p75)

1. In a radiological report dated 14 May 1998, Dr Li, a consultant radiologist, concluded that the Applicant had degenerative lumbar spondylosis (T24 p85).

2. In a further treating doctor's report dated 27 May 1998, Dr Assaad listed the Applicant's medical conditions and their associated clinical features as follows:

   (1)Cervical and lumbar spondylosis:  neck pain, bilateral brachialgia, low back pain, bilateral sciatica.  Commenced in 1996.

   (2)Rotator Cuff Syndrome right shoulder:  unable to move right shoulder - constant pain right shoulder.  Commenced in 1996.

   (3)Diabetes Mellitus: headache, dizziness, polyuria and polydispia.  Commenced in 1998  (T25 p87).

3. In commentary upon the Applicant's workability, Dr Assaad opined that the Applicant would be absent from work for at least four or more days a month, that he would be unable to work full days because of endurance problems, that he can understand and follow instructions less than half the time, is unable to communicate, is unable to travel or move around independently, has substantially diminished dexterity, would not be able to alternate between tasks, would be unable to lift, carry or move objects and that his behaviour would pose serious risk to both the person's safety and the safety of others (T25 p90).

4. In a medical report dated 8 September 1999, Dr Assaad detailed the following impairment rating for the following nominated conditions:

5. Cervical Spondylosis    (2)          Osteoarthritis of the right shoulder with rotator cuff impairment of the right shoulder   (3)     Peripheral neuritis affecting both upper limbs   (4)           Peripheral neuritis affecting both lower limbs    (5)     Lumbar spondylosis     (6)           Diabetes Mellitus     5% under Table 5.1 (loss of one quarter of the normal range of movements of the neck.   15% under Table 25 (severe painful distressing symptoms)     10% under Table 3    10% under Table 4    10% under Table 5.2 (loss of one quarter range of movements of thoraco lumbar spine).   10% under Table 24 (not well controlled on oral medication).   (Exhibit A1)           

1. In a file assessment medical report, Dr Keen, a senior medical adviser at Health Services Australia, makes the following observations and conclusions as to the Applicant's impairments and their ratings:

   (1)     Cervical Spondylosis  5%        Table 5.1

   (2)     Right arm pathology  10%     Table 3

   (3)     Varicose Veins  0%        Table 4

   (4)     Depression  0%        Table 7

   (5)     Diabetes mellitus  10%     Table 24

   (6)     Lumbar Spondylosis  5%        Table 6     (Exhibit R2)

SUBMISSIONS

1. The Applicant contends that he has multiple impairments and that the combined assessment rating for these impairments is equal to or greater than 20%.  Further, the Applicant contends that the medical evidence provided by his treating general practitioner clearly nominates that he has a continuing inability to work.  Accordingly the Applicant submits that he meets all the requirements nominated for the payment of a Disability Support Pension.

2. The Respondent concedes that the Applicant has an impairment of 20% under the Impairment Tables but contends that the medical evidence and opinions of Drs Jones and Keen are to be preferred to that of the treating doctor, Dr Assaad.  It is the Respondent's contention that Dr Assaad's assessments and impairment ratings are inflated, involve double counting and involve consideration of impairments that have arisen subsequent to the decision under review and the operative period inherent in the application for Disability Support Pension.

3. As a consequence the Respondent contends that the Applicant does not have a continuing inability to work and again relies upon the opinions of Drs Jones and Keen, while noting that Dr Assaad's assessment of the Applicant's work ability is not consistent with the assessment of the Applicant's mood, communication and ability to move independently as described by Dr Lovell, and as such is not a good indication of the Applicant's work ability.
   CONSIDERATIONS AND FINDINGS

4. In preliminary comment the Tribunal, in acknowledging subsection 100(3) of the Act, recognises that the operative period for primary consideration in this matter commences with the lodgment of the application and continues for a period of three months commencing the day after lodgment. Any material that relates to the Applicant's medical conditions that exist during the operative period must be the focus of the Tribunal's attention, with any material falling outside of the operative period being used by the Tribunal in circumstances which allow an increased understanding of the conditions that existed during the operative period.

5. The Tribunal further comments that much evidence has been adduced in this matter which falls outside the operative period.  While some of this material is undoubtedly of assistance in enhancing the Tribunal's understanding of the nature and extent of the medical conditions which existed during the operative period, much more has to do with existence of conditions and their increasing severity (diabetes mellitus, peripheral neuritis) that have occurred at a much later time and certainly outside the operative period.  These conditions, their clinical features and the assessment of their impairment ratings are not in issue in this matter and undoubtedly will be properly considered should a further application for Disability Support Pension be made.

6. In furthering consideration of this matter, the Tribunal notes subsections 94(1), (2), (3), (4) and (5) of the Act, with the relevant subsections being listed in part as follows:

   "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% or more under the Impairment Tables; and

   (c)   the person has a continuing inability to work; and
   …

   Meaning of continuing inability

   94   (2)   A person has a continuing inability to work if the Secretary is satisfied that:

   (a)   the person's impairment is of itself sufficient to prevent the person from doing:

   (i)  the person's usual work; and
                  (ii) work for which the person is currently skilled;

   for at least 2 years; and

   (b)   either:

   (i)the person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or

   (ii)the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled.

   94   (3)   In deciding whether or not a person has a continuing inability to work under subsection (2), the Secretary is not to have regard to:

   (a)   the availability to the person of work in the person's locally accessible labour market (unless subsection (4) applies to the person); or

   (b)   the availability to the person of educational or vocational training.

   94   (4)   For the purposes of subparagraph (2) (b) (ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to equip the person to do work, have regard to the likely 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;
   '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. In considering what conditions existed during the operative period, the Tribunal places particular weight on the medical reports of Drs Assaad, Jones, Lovell and Sinnathamby, where such reports have been written and relate to conditions said to exist or existing during the operative period.  Further the Tribunal draws assistance from the medical reports of Drs Guirgis and Goldberg in so far as they relate to conditions said to exist or existing during the operative period.  Finally the Tribunal places weight on the evidence of the Applicant where it relates to conditions said to exist or which did exist during the operative period.  The Tribunal also noted the later reports of Dr Assaad, the radiological report of Dr Li and the opinion of Dr Keen, but while appreciating their intent, found their usefulness of increasing limited value, the more their compilation was removed in time from the operative period, particularly where they were dealing with new conditions and/or the further consequences of degenerative disease or conditions.

1. As a result of these considerations the Tribunal finds the following findings of fact, namely during the operative period the Applicant had the following medical conditions with nominated clinical features:
   (a)      Cervical Spondylosis      (b)     Lumbar Spondylosis       (c)     Right Shoulder Pathology        (d)         Right Upper Limb pathology     (e)      Varicose Veins Left Leg    (f)           Depression   Posterior neck pain, with radiation to head and to right and left shoulder (Applicant).  No loss or minimal loss of normal range of movement of cervical spine (Dr Jones).   Central low back pain.  Radiological evidence of lumbar spondylosis (Dr Li).  Pain intermittently radiates to both legs (Applicant).  No or minimal loss of normal range of movement of thoraco lumbar spine.   Pain in right shoulder forces him to rest (Applicant.); inability to abduct or more right shoulder properly (Dr Assaad); normal range of movement right shoulder and non tender (Dr Goldberg).  Ultrasound and x-ray right shoulder were normal (Dr Goldberg).   Pain in right shoulder, lateral epicondyle, forearm and hand, resulting in an inability to use right upper limb or right hand at times because of pain.   Present, but do not cause interference with function of the limb.   Arguments within family; history of reactive depression following motor vehicle accident.  No evidence of psychiatric disorder (Dr Lovell).

1. As a consequence of finding such facts, the Tribunal determines the impairment rating for each condition under the appropriate Schedule 1B Impairment Table:

   (a)the Tribunal, in considering the conditions of lumbar spondylosis, cervical spondylosis and painful right shoulder, notes that at the operative time the main clinical feature was pain, that this pain was chronic and that there was radiation, albeit intermittent, to the right shoulder and arm.  It is the Tribunal's finding that the Applicant has an impairment rating of 10% under Table 6, there being in existence chronic pain in a combination of joints.  Further the Tribunal finds that, at the operative time, the Applicant had an impairment rating of nil percent under Tables 5.1 and 5.2, there being normal or nearly normal range of movement of the cervical and thoraco-lumbar spine respectively; and

   (b)in relation to the right upper limb, the Tribunal finds that the Applicant has a 5% impairment rating under Table 3, there being shoulder, elbow and wrist pain, with minor loss of dexterity and grip strength.  As the right arm is the dominant arm, a further 5% is added, making the combined impairment rating for the right upper limb impairment 10%; and

   (c)the varicose veins in the left leg, while causing some inconvenience, do not interfere with the Applicant's ability to walk 500 metres or to climb or descend stairs.  The Tribunal finds that the Applicant has a nil impairment rating for this condition; and

   (d)in relation to psychiatric conditions the Tribunal finds that the Applicant has a nil impairment rating under Table 7 in that the Applicant has minimal symptoms present at the operative period, with any symptoms being related to every day worries and problems.  The report of Dr Lovell clearly nominates the lack of any psychiatric disorder.

1. The Tribunal has not considered the conditions of diabetes mellitus and peripheral neuropathy, for both conditions have been diagnosed subsequent to the operative period.

2. The Tribunal, as a consequence of the findings that the Applicant has a number of physical impairments and that the combined assessment rating of these impairments is 20% under the Impairment Tables, finds that the Applicant satisfies subsections 94(1)(a) and (b) of the Act.

3. In considering the issue of the Applicant's continuing inability to work, the Tribunal, in noting the nature of his impairments and the nature of his usual work, concludes that the Applicant would have difficulty with repetitive bending and lifting and with repetitive use of the right hand.  The Tribunal further notes that both Dr Assaad and Dr Jones are of the opinion that the Applicant will not be able to return to his usual work of hairdresser for two years.  The Tribunal agrees with this opinion and so finds.

4. It is noted by the Tribunal that Dr Assaad, in his report of 27 May 1998, is of the opinion that the Applicant has a very limited, if any, work ability.  Particular comments that the Applicant is unable to communicate, can understand and follow instructions less than half the time, is unable to travel and move around and that his behaviour would cause serious risk to himself and others in the workplace, convey to the Tribunal a picture of an individual with a very serious list of impairments.

5. The Tribunal, in assessing the credability of Dr Assaad's opinions, turns to the medical opinions expressed during the operative period and the history of his impairments as explained to the Tribunal by the Applicant.  Firstly the Tribunal notes the conclusions reached by Dr Assaad, in his treating doctor's report of 4 June 1997, that the Applicant, because of his various medical conditions, was not fit for any work of at least 30 hours per week or any part-time work now and for at least two years.  Dr Assaad does not provide any reasoning for his conclusion nor, in the Tribunal's opinion, is there a satisfactory description of the clinical features of each condition and their consequences detailed in his treating doctor's report, to allow the Tribunal to form a similar conclusion.

6. Dr Jones, in his report of 8 August 1997, details specifically with the clinical features of each impairment and his clinical findings at examination.  Further, where he was in doubt, he sought the advice of a consultant psychiatrist, Dr Lovell, who in his report of 3 September 1997 found the Applicant to have no psychiatric diagnosis with there being nothing psychologically which prevented the Applicant  from working full-time.  As a result of this input and his own opinion, Dr Jones considered that the Applicant had the capacity at that time to undertake work for 30 hours per week or more in both light and moderate semi-skilled or lesser skilled work categories.  Further, Dr Jones was of the opinion that the Applicant's return to work would be assisted by the provision of a vocational rehabilitation program.

7. Finally the Applicant, in his presentation to the Tribunal, detailed the clinical history of each of his impairments, placing an emphasis on deterioration over time.  Moreover, the Applicant, while nominating the nature of his activities on a normal day, did not portray a picture of himself as portrayed by Dr Assaad in commenting upon his work ability.  The Applicant told the Tribunal that while he did little around the house, he was able to travel by public transport, walk for 10 minutes, climb and descend stairs, and that he "takes things as they come", with any arguments being internal to the family.

8. The Tribunal, after much consideration, finds that the Applicant does not have a continuing inability to work, in that he is able to undertake work at the operative time for which he was currently skilled.  Further the Tribunal finds that the Applicant's impairments are not of themselves sufficient to prevent him from undertaking educational or vocational training during the next two years and that such training is likely to equip the Applicant to do work, within the next two years, for which he may be currently unskilled.  In making such a finding, the Tribunal has placed weight and preference upon the medical opinions provided by Drs Jones, Goldberg, Lovell and Li.  Further, the Tribunal has found the opinions of Dr Guirgis and Dr Assaad to be wanting in terms of providing sufficient clinical detail to allow and support the opinions expressed to be understood and followed.  Further the Tribunal is explicit in stating that Dr Assaad's treating doctor's report of 4 June 1997 does not provide the Tribunal with an opportunity to understand the clinical basis for his ultimate conclusions as to the Applicant's work capacity.

9. As a consequence of the Tribunal's findings that the Applicant does not have a continuing inability to work, in that the Applicant has not satisfied subsections 94(2)(a)(ii) and (b)(i) or (ii) of the Act, the Tribunal finds that the Applicant does not meet the criteria for Disability Support Pension.
   DETERMINATION

10. The Tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

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

Date of Hearing  9 February  2000
Date of Decision  9 June 2000
Solicitor for the Applicant                Applicant was self-represented
Advocate for the Respondent        Ms H Schuster, Centrelink