Elshab and Department of Family and Community Services - [2000] AATA 534

DECISION AND REASONS FOR DECISION [2000] AATA 534

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1324

GENERAL ADMINISTRATIVE DIVISION     )
           Re      HANAN ELSHAB
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal DR J D CAMPBELL

Date30 June 2000
PlaceSydney

Decision The Tribunal affirms the decision under review

(Sgd) Dr J D Campbell ……….................................
Member

CATCHWORDS
Social Security – Disability Support Pension – Cancellation – Impairments – Assessment – Continuing inability to work.
Social Security Act 1991, sections 94, 100, Schedule 1B.

REASONS FOR DECISION

DR J D CAMPBELL

June 2000

Mrs Hanan El-Shab ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 24 June 1999, which affirmed the decision of the Centrelink Authorised Review officer dated 30 March 1999. This latter decision affirmed an earlier decision of the delegate of the Secretary of Family and Community Services ("the Respondent") dated 11 February 1999 to cancel the Applicant's disability support pension with date of effect being 18 March 1999.
A hearing was held before the Tribunal on 21 February 2000 at which the Tribunal was assisted by an interpreter fluent in the Arabic language. The self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Ms Schuster, an advocate from the Administrative Law section of Centrelink.
The following written material was placed in evidence before the Tribunal,
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T25 pp1 – 174
Medical Report Dr Assaad dated 12 November 1999 Exhibit A1
Respondent's Statement of Facts and Contentions dated 2 December 1999 Exhibit R1
issues
The relevant issues before the Tribunal are:
1.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, whether the impairment is of itself sufficient to prevent the Applicant.

from doing any work within the next 2 years; and
from undertaking educational or vocational training or on-the-job training during the next 2 years; or
whether such training is unlikely (because of the impairment) to enable the applicant to do any work within the next 2 years.

legislation

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 100(3) and the tables for the Assessment of Impairment for Disability Support Pension ("Schedule 1B Impairment Tables").
background
The Applicant applied for an invalid pension on 3 August 1987 (T9) on the grounds of a left utero-colic fistula and recurrent pyelonephritis (T11). The claim was granted on 30 March 1988 (T19) nominating further impairments of chronic diarrhoea, causing fatigue and weight loss and severe endometriosis (T18). A review of the Applicants invalidity pension was commenced and the treating doctor's report was received on 23 September 1997 (T21). Consequent to further medical examination and reports, the Applicant's disability support pension was ceased with date of effect being 16 April 1998 (T31). This decision was reviewed and affirmed by an authorised review officer on 27 May 1998 (T37). This latter decision was set aside by the Social Security Appeals Tribunal ("SSAT") where in their decision dated 17 August 1998, the Tribunal remitted the matter to Centrelink for reconsideration in accordance with particular directions (T39).
Following further medical assessment including referral for an orthopaedic examination the Applicant's disability support pension was cancelled, with the last pension payment to be made on 18 March 1999 (T47). This decision was later affirmed by the authorised review officer on 30 March 1999 (T50) and by the SSAT on 24 June 1999 (T2).
evidence – the applicant
The Applicant told the Tribunal that she was born in Lebanon on 1 June 1955, educated for a few years, leaving school at age seven or eight to spend her time at home, about which she remembers little, prior to being sent to learn sewing at age 15. In 1977, the Applicant came to Australia and married in 1979. She has three children aged 19, 17, 4 ½ at the time of the hearing with the eldest working, the next at school and all living at home. The Applicant informed the Tribunal that her husband has not worked for fifteen years as a result of the car company closing down for whom he worked as a labourer, she becoming sick and he commencing to look after the elder two children.
The Applicant stated that in 1984/85 she was admitted to hospital for removal of a left ovarian cystic mass; that at the time of the operation some bowel was removed and damage occurred to the left uterer. Further operations ensued which involved an attempt to fix the bowel difficulty, followed by a colostomy, a closure of the colostomy, and a left neptirectomy resulting in a cessation of the repeated attacks of pyclonephrities but pain and tiredness remained. Later she became pregnant and had a caesarean in 1995. A partial thyroidectomy was undertaken in 1998 resulting in pain in the neck and head, which lasted for two months.
In describing her current problems the Applicant detailed the following symptomatology for each of the nominated conditions:
(a) upper limbs:       Symptoms commenced after removal of kidney and involve intermittent occurrence of difficulty in lifting or raising arms. Further there is swelling of the fingers and she is unable to make a fist (occurs two to three times a week)
(b) lower limbs:        Some swelling of lower limbs on occasions. Sometimes unable to feel her right foot (numbness). Only has short periods of one to two days when there is no pain.
(c) shoulders:          Pain, intermittently in both shoulders, left more than right, had an x-ray two weeks ago which was reported as normal.
(d) low back: Pain, particularly when bends over to pick up something.
(e) knees:     Pain in both knees. Right more than left. Difficulty with walking and stairs. Ankle (R) swells on occasions.
(f) headaches:       Daily medication.

The Applicant, in describing her everyday activities to the Tribunal, stated that she undertakes cooking and washing, sometimes makes the beds, but does not clean the bathrooms, nor do any gardening. The washing is hung out by either her daughter or husband, with the shopping shared between the latter and herself. She drives a car rarely, spends most of her time at home, visits relatives, sleeps well after medication, but feels fatigued a lot of the time. Finally the Applicant believed that she was not capable of working.
medical evidence:
In a treating doctor's report dated 23 September 1997, Dr Assaad described the Applicant's medical conditions and their clinical features in the following terms:
(a) Left Nephrectomy:      painful scars abdomen (1992).
(b) Thyroidectomy:           painful scar neck (1992).
(c)Cervical and Lumbar neck pain and chronic back pain unable to bend or Spondylosis:                lift heavy objects (1998).
(d)Osteo-arthritis              right knee pain unable to stand for long
right knee:periods of time, unable to squat (1998)
Dr Assad was of the opinion that the Applicant would be unable to return to any part time or full time work for more than two years and that her work ability in the next two years would be severely affected in all aspects (T21, pp58, 62, 63)
In a treating doctor's report Dr Hamad listed the Applicant's medical conditions and associated clinical features as:
(a)Recurrent Pyelonephritis this followed vesico vaginal fistula following appendectomy and oophorectomy in 1986. I understand the ureter was severed and had to be transplanted into the bladder in a second procedure. Renal infection developed during these procedures.
(b)Endometriosis: the patient was ill for months before it was found that a vesico vaginal fistula was present and a non functioning left ureter diagnosed. A vesico-colic fistula was also noted.

Dr Hamad considered that the Applicant was permanently unfit for any work (T23).
In a radiological report dated 4 February 1997, Dr Fitgerald, a consultant radiologist, stated that on reviewing a plain x-ray of the right knee the only abnormality seen was a minute osteophyte at the superior pole of the patella (T20, p56).
In a radiological report dated 6 November 1997, Dr Lo, a consultant radiologist reported that a plain x-ray of both the cervical and thoracic spines were normal (T24, p75).
In a medical officer report dated 8 December 1997, Dr Wright stated that he was unable to assess this case as the patient was a poor historian and the treating medical doctors clinical details of the Applicants conditions were insufficient (T26, p92).
In a medical report dated 16 February 1998 Dr Assaad stated that the Applicant had suffered from endometriosis since 1984 and that in February 1986 she had a left sided ovarian mass explored which was thought to be malignant. At operation the left ureter was injured, and a left sided nephrostomy was undertaken on 11 March 1986. On 21 March 1986 a procedure was undertaken to reimplant the left ureter into the bladder. A resulting uretero-colic fistula caused severe recurrent pyclonephritis for many years and on 1 December 1992 her left kidney was removed. Since then no further attacks of pyelonephritis. (T29, p96).
In a further radiological report on 25 March 1998, Dr Bennet, a consultant radiologist reported that no abnormalities were detected in plain x-ray films of the skull and cervical spine (T32, p101).
In a radiological report dated 31 August 1998, Dr Hunter, a consultant radiologist, opined there was mild mid and upper lumbar spondylosis present in the plain films of the lumbar spine. There was also minor anterior wedging at L1 (T41, p129).
In a medical assessment report dated 8 November 1998, Dr Rogers made the following whole person assessment of the Applicant:
"This 43 year old lady presents for Invalid Pension (IP) review. She was previously reviewed by HAS last year and given an impairment rating of 0. I did not have access to the original notes from the time she was granted an IP in previous years.
She had a left nephrectomy, cholecystectomy and a thyroidectomy. These conditions would not prevent employment. She did not mention any additional problems with recurrent urinary tract infections. In any case such a condition would also not prevent employment.
She now reports additional conditions, namely back and neck pain. She said that the neck pain started after she had a thyroidectomy some years ago but there are no particular exacerbating factors. She said that she had intermittent back pain for some years but this only troubled her this year.
She displayed normal range of movement on informal examination, although on formal examination she manifested moderate illness behaviour and refused to bend or squat. There were no signs of significant osteoarthritis in the knees as reported in the TDR. Straight leg raising was to 90 degrees bilaterally when sitting although when supine she would barely lift her straight legs off the couch. She did not bring any x-rays.
She said that her husband did all the housework. With all due respect, this would be fairly unusual from a socio-cultural point of view.
There are obviously major non-medical reasons why this lady would not be motivated to look for employment or have difficulty in finding suitable employment in the current labour market. However I am not able to take this into account.
Due to the major inconsistencies between informal and formal examination I would recommend an orthopaedic examination before a final recommendation is made." (T42, p146)
In a medical report dated 16 November 1998, Dr Barker-Whittle, a consultant surgeon, noted the Applicant's then current medications as tryptanol, sandomigran, anaprox, orudis, and panadene forte for severe headaches. Dr Barker-Whittle reported that the Applicant was able to walk for a half to one hour around the supermarket, but if requested to walk in a straight line she would have to rest after 10-15 minutes. Dr Barker-Whittle found negligible loss of cervical spine movement, with a full range of lumbar spine movement, although some discomfort at extremes of movement. Further he reported that the Applicant was able to squat slowly; nothing abnormal was detected in passive movements of hip, apart from some resistance at extremes of movement and no abnormality noted at examination of knees.
As a result of his examination Dr Barker-Whittle stated the following:
"This lady has undergone a lot of surgery in the last ten years, and from an Orthopaedic stand-point apart from age related osteoarthritic changes and the callous on her foot which would make walking difficult, with what she has presented to me I find it very difficult to make any definite Orthopaedic diagnosis. I think that the most likely diagnosis is that of just a basic chronic pain syndrome and depression brought about by multiple operations." (T44, p154)

And following a review of the x-rays:

"these only confirm my previous impression that this lady suffers from nothing more than age related osteoarthritic changes in her spine and knee, and that the main problem in this lady is something other than pain from a severely disabling orthopaedic problem." (T44, p156)

In a final assessment report dated 25 November 1998 Dr Menashi concluded that the total work related impairment was nil, that she was fit for work and there is no medical reason that would prevent her from training or rehabilitation (T46, p158).
In a medical report dated 20 May 1999, Dr Guirgis listed the Applicant's conditions as:
(a) neck pain and stiffness; and
(b) painful stiffness and heaviness of the shoulders and the right wrist; and
(c) severe migraines; and
(d) low back pain and stiffness; and
(e) painful stiffness and heaviness of the right knee.

At examination Dr Guirgis found there to be about a quarter loss of normal range of movement in both the cervical and lumbar spine, with chronic pain and dysfunction in the right arm. It was Dr Guirgis' opinion that the Applicant's clinical picture was consistent with:
"1. A generalised degenerative disorder including cervical and lumbar discopathy and spondylosis and active osteoarthritis of the shoulders, right wrist and right knee.
2. disabling migrainous headache attacks." (T51, p173)
In a medical report dated 12 November 1999, Dr Assaad made the following assessments of the Applicant's impairments:
(a) multiple abdominal scars with pain and impaired mobility of movement,
bending and lifting, rated as15 under table 20; and
(b) Cervical Spondylosis with neck pain and impaired mobility of
      the neck, rated as 5 under table 5.1; and
(c)Lumbar Spondylosis with chronic low back pain and impaired mobility of    the spine, rated as 10 under table 5.2; and
(d)Osteoarthritis right knee, chronic knee pain, impaired movements of the right knee and inability to squat, rated as 10 under table 4; and
(e) recurrent moderately severe migraine, rated as 10 under table 20; and
(f)chronic depressive illness, treated with counselling and medication, rated as 10 under table 6.    (Exhibit A1)

consideration and findings:

The Tribunal in considering this matter notes the following legislation, namely subsections 94(1) in part (2),(3),(4) and (5).
"94. 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 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 of 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.
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(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 enable the person to do work, have regard to the likely availability to the person to do working 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:
(i) that is for at least 30 hours per week at award wages or above;
    and
(ii) that exists in Australia, even if not within the person's locally
               accessible labour market."

Further, in giving consideration to the issues raised in this matter the Tribunal is mindful that by virtue of subsection 100(3), the Tribunal must focus its attention to issues, matters and evidence at the time the decision was made to cancel the disability support pension and for a period three months thereafter (operative period). Material and matters that lie outside the operative period can be used by the Tribunal to assist the Tribunal to gain a better understanding of what impairments actually exist, their clinical features and how they interfere with the individual's ability to work during the operative period.
The Tribunal in general comment appreciates the degree of operative intervention experienced by the Applicant over a period of years, but also notes that following the removal of the left kidney in 1992 there has been no stated reoccurence of intermittent pyelonephritis. The Tribunal, after a careful consideration of the Applicant's evidence, the special reports of Drs Assaad, Hamad, Rogers, Barker-Whittle, Guirgis and the radiological reports concerning the skull, cervical spine, thoracic spine and right knee makes the following finding of fact as to what medical conditions and associated clinical features existed at the operative period:
(a)cervical spondylosis:    characterised by intermittent neck pain posteriorly and neck stiffness (Applicant).
(b)lumbar spondylosis:     characterised by intermittent low back pain and stiffness particularly when bending (Applicant).
(c)upper limb condition:    intermittent difficulty in raising or lifting arms. Intermittent swelling of fingers and is unable to make a fist for one to two days a week (Applicant).
(d)shoulder condition:      characterised by intermittent pain in both shoulders, left more so than right (Applicant).
(e)lower limbs condition: characterised by pain on most days, with occasional swelling of lower limbs and numbness in right foot (Applicant).
(f)knee condition:              characterised by pain in both knees, right more so than left. Difficulty with walking and stairs (Applicant).
(g)headache:  characterised by headache and on daily medication.
(h)abdominal and neck    characterised by pain and tenderness along sites
surgical scarring condition: of surgical scars (Applicant, Dr Assaad).
(i)depressive condition:   characterised by sleep difficulties, response to
circumstances including pain (Applicant, Dr Baker- Whittle, Dr Assaad).

The Tribunal in assessing the range of conditions nominated observes that pain is a predominant symptom in all the conditions. In noting the nature of the pain complaint, the Tribunal finds that the Applicant has a 10 point impairment under table 20 of the Schedule 1B Impairment Tables, in that the pain is of a mild to moderate nature, with such symptoms being unpleasant, rarely preventing completion of any activity, but possibly causing a loss of efficiency in daily activities. In making such an assessment the Tribunal has acknowledged the Applicant's statements as to her daily activities, where she is able to cook, wash, make beds, participate in shopping and visit relatives.
In assessing the cervical spine condition, the Tribunal in noting the radiological reports, the physical examination of Dr Barker-Whittle and that of Dr Guirgis, as well as the clinical history nominated by the Applicant as to onset and symptomatology, finds that the Applicant has a nil points impairment under table 5.1. In making such a finding the Tribunal accepted the clinical findings found at examination by Dr Barker-Whittle that the Applicant had a normal or nearly normal range of movement of the cervical spine. While noting the findings of both Drs Guirgis and Assaad, the Tribunal was of the opinion that both doctors failed to support their conclusions with a detailed listing of their clinical findings, which therefore left the Tribunal in a position where the conclusions could not be tested, and as such were of minimal assistance to the Tribunal.
In relation to the lumbar spondylosis, the Tribunal, having considered the Applicant's history, the radiological reports, the clinical examinations of Drs Barker- Whittle and Guirgis and the assessment of Dr Assaad, finds that the Applicant has a nil points impairment rating under table 5.2. In so finding, the Tribunal in noting the findings of Dr Barker Whittle at clinical examination and in particular the range of thoraco-lumbar-sacral spinal movements as being a nearly normal range of movements, prefers this opinion to that of Dr Guirgis, in that once again Dr Barker-Whittle lists the clinical findings which allows him to draw the conclusions that he has done, while with Dr Guirgis there exists no clinical documentation to indicate as to how he arrived at his conclusion. The Tribunal also notes that Dr Assaad's assessment is nominated without listing the base clinical findings to establish his nominated loss of movement, and that Dr Guirgis assessment has been undertaken using earlier impairment tables.
In relation to the upper limb condition, the shoulder condition and the lower limb condition, the Tribunal, having already noted that pain was a symptom intermittently associated with these conditions, finds that for each of these conditions, (leaving aside the issue of pain which has been considered under table 20), a rating cannot be assigned, as a complete history and examination has not been fully documented nor have the conditions been investigated and diagnosed, treated and stabilised. In further comment the Tribunal also notes the absence of full clinical documentation in the reports of Drs Guirgis and Assaad and the absence of a definitive orthopaedic condition in the report of Dr Barker-Whittle for the condition.
The Tribunal finds that the Applicant has a nil points impairment rating under table 4. In so finding, the Tribunal has considered the Applicant's history as to the difficulties she experiences with her knees, the radiological findings of minimal abnormality in the right knee and the clinical examination of Dr Baker-Whittle in which he was unable to detect any clinical abnormality. The reports and opinions of Drs Guirgis and Dr Assaad were of little assistance to the Tribunal in that both reports lacked adequate clinical documentation to support their opinions.
The issue of the headaches, have in the Tribunal's view been considered in the context of pain under table 20. While the Applicant is being treated with sandomigrain, the Tribunal is of a view that the nature and cause of the headaches have not been fully investigated, documented, diagnosed, treated and stabilised, for the condition to be established as a diagnostic entity and an impairment assessment made, separate to the consideration that has been given under table 20.
The Tribunal in noting that the Applicant has had many surgical interventions over a fifteen year period, and that this, coupled with the continuing issue of intermittent multi-site pain may well have precipitated a depressive condition in the Applicant, finds that the depressive condition has not been adequately documented, investigated, diagnosed and treated. The only evidence before the Tribunal is that the Applicant takes trypanol for sleeping and she is receiving some counselling (Dr Assaad, Exhibit A1). The Tribunal notes that these comments are made well outside the operative period, and certainly depression never appeared as a nominated medical condition in the reports of Dr Assaad dated 16 February 1998, Dr Rogers dated 8 November 1998 and Dr Guirgis dated 20 May 1999. The Tribunal finds that the medical condition of depression was not documented and diagnosed, treated or stabilised at the operative period and hence no impairment rating can be given.
As a consequence of the Tribunal's findings that the Applicant does have particular physical impairments and that the assessment of these impairments under the various Schedule 1B Impairment Tables results in a combined impairment rating of 10 points, the Tribunal concludes that the Applicant, while satisfying subsection 94(1)(a) of the Act, fails to satisfy subsection 94(1)(6) of the Act.
In completing an analysis, the Tribunal is further of the view that after consideration of the medical reports of Drs Assaad and Hamad, as the treating doctors in September 1997 and October 1997 respectively, the medical history as defined by the Applicant and the medical reports of Drs Rogers, Barker-Whittle, Guirgis, and Menashi, that the Applicant's impairments do not prevent her from working full time in a range of suitable employments, and certainly do not prevent her from undertaking educational, or vocational or on-the-job training programs. In reaching such a finding, the Tribunal found the workability report of Dr Assaad contained within his report of September 1997 as unhelpful, for once again the scanty clinical documentation did not allow the Tribunal to understand how he arrived at his opinion as to the Applicant's work abilities. The Tribunal also found little value in the report of Dr Hamad as it appeared to relate to past impairments. The Tribunal in considering the reports of Drs Baker-Whittle and Guirgis did receive some assistance in that they did help in clarifying the nature of the underlying orthopaedic conditions and the limitation they imposed on the Applicant's movements and ability to lift and/or bend. It is the Tribunals conclusion that the Applicant's impairments and their effect on the Applicant's work ability and capacity were put into proper context by the reports of Drs Rogers and Dr Menashi respectively.
As a consequence the Tribunal finds that the Applicant does not have continuing inability to work in that she has failed to satisfy subsection 94(2)(a) and either of subsections 94(2)(b)(i) or (ii).
The Tribunal concludes that the Applicant does not satisfy the criteria for a disability support pension.
determination
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
Signed:         .....................................................................................
  Associate
Date of Hearing  21 February 2000
Date of Decision  30 June 2000
Representative for the Applicant                Self Represented
Representative for the Respondent        Ms H Schuster