Estephan; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 371

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 371

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/516

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSNG, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And SALAM ESTEPHAN

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr I S Alexander, Member

Date7 May 2008

PlaceSydney

Decision The decision of the SSAT is affirmed, that Mrs Estephan satisfies the requirements for receipt of disability support pension at the date of her claim, under subsection 94(1) paragraphs (a), (b) and (c) of the Social Security Act 1991.

.....................[sgd].........................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility for – assessment of impairments – criteria for assessment – Impairment Tables – requirement that condition be diagnosed, treated and stabilised – applicant disabled by a number of conditions - chronic pain – neck, back, arms, migraine - incapacity of at least 20 points – decision under review affirmed

Social Security Act 1991; s 94(1)(a), (b), (c), Schedule 1B

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

REASONS FOR DECISION

7 May 2008 Ms Robin Hunt, Senior Member
Dr I S Alexander, Member

summary

1.      Mrs Salam Estephan, the applicant, suffers from a number of physical disabilities and associated pain. The Social Security Appeals Tribunal (SSAT) found Mrs Estephan satisfied the requirements for receipt of disability support pension (DSP) from the date of her claim, made on 8 March 2005. The SSAT then set aside a departmental decision refusing Mrs Estephan DSP. The Secretary applied to the tribunal for review of the decision of the SSAT.

2.      We have decided that Mrs Estephan satisfies subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act).  This means the decision under review is affirmed and Mrs Estephan qualifies for the disability support pension at the date of her application on 8 March 2005.

issue

3. We must decide if Mrs Estephan meets the requirements for disability support pension. To qualify, a person needs to satisfy section 94 of the Act. Under subsection 94(1)(a), regarding medical qualification, a person must have a physical, intellectual, or psychiatric impairment. Pursuant to subsection 94(1)(b), the person also must have an impairment rating of 20 points or more under the impairment tables contained in Schedule 1B of the Act. Further, the person also must have a continuing inability to work within the next two years (or to undertake training in place of work), pursuant to section 94(1) (c).

4. The Secretary concedes that Mrs Estephan suffered certain disabilities at the date of her claim but argued she did not satisfy subsection 94(1) paragraphs (b) and (c) at the time she made her claim on 9 March 2005 (or within 13 weeks of that date, to 8 June 2005).

analisis and findings

5.      We have before us several medical opinions and two claim forms completed by Mrs Estephan. She was not pursuing the first claim but Mrs Estephan’s counsel drew our attention to the information contained in that claim form for the review.

6.      The Secretary accepts that Mrs Estephan suffers from neck pain, right arm pain, left arm/elbow pain, back pain, ischaemic heart disease, dry eyes, migraines, diabetes, sleep apnoea, hypertension and high cholesterol. In her statement of facts and contentions, Mrs Estephan claims she suffers a similar range of problems, including diabetes, hypertension, generalised arthritis including the cervical spine, lumber spine, thoracic spine, shoulders and elbows, chronic iritis of the eyes, ischaemic heart disease and depression. Mrs Estephan is not relying on an impairment rating for all of her health problems in order to reach the required 20 points. She relies on generalised arthritis as the condition which entitles her to sufficient points for the pension.

The appropriate impairment rating

7.      Mrs Estephan contends that, on or about 9 March 2005, her generalised arthritis had stabilised, was permanent, and attracted 25 points under the impairment tables. She also claims she is and was unable to work for at least 30 hours per week at that time and at the present. If this is correct, she will meet the requirements for the DSP. She told us that, although she has poor English, she asked a person called Naheed Hakim to help her fill out the claim form and that the contents were as she instructed. Mrs Estephan said she had known Mrs Hakim for some time and often asked her for help with such tasks.

8.      In summary, the Secretary considers Mrs Estephan’s impairments, as they were in March 2005, warrant a total impairment grading of 10 points, which is not sufficient to qualify. Centrelink assessed her impairments at 5 points, for her cervical spine or neck problem under Table 5.1 of Schedule 1B of the Act, and another 5 points, for the thoraco-lumbar spine, under Table 5.2. In relation to the cervical spine, Mrs Estephan agreed that an impairment rating of at least 5 points was appropriate.

9.      All assessments before us, including that of Dr Mark Burns, who was a witness for the respondent, and Dr Elias Matalani, who was a witness for the Secretary, and a Centrelink job capacity assessment report state Mrs Estephan was not able to work for up to 30 hours. However, the Secretary argued that some of Mrs Estephan’s health conditions were not permanent but were temporary or not fully investigated at the time of the claim, making it inappropriate to allot an impairment rating as required by the Introduction to Schedule 1B of the Act.

10.     Mrs Estephan gave oral evidence that she was unable to work when she lodged her claim. She said she had worked part time for a coffee factory up to the end of 2004. Since she ceased work, she had been in receipt of Newstart allowance from Centrelink. She had lodged a claim for disability support pension in November 2004, which was rejected. When she put in a new claim on 8 March 2005, Mrs Estephan said she had stopped work because of difficulty in carrying anything as well as shoulder pain. She explained that she had to fill up a scoop with coffee, weighing about five kilos, and carry the full scoop to put it in a machine. This involved carrying the five kilos up some stairs to the machine. She said “all of that that was causing or affecting the pain in my neck and in my back”.  She also had sore hands and said that, as the right hand hurt, she started to use the other hand, but then both hands hurt.

11.     Mrs Estephan consulted her general practitioner, Dr Susan Bishara, about her pain. Dr Bishara referred her to a physiotherapist and to a rheumatologist and prescribed pain killers. She saw a rheumatologist, Dr Loretta Reiter, in January 2005. Mrs Estephan said she continued to take Zoloft for depression. Mrs Estephan gave further evidence that she was experiencing migraines, probably two or three times a month, when she stopped work. She told us she had trouble doing household tasks such as hanging out the washing. Her daughter came to her unit to clean and cook meals for her. Mrs Estephan also said she could not sit to watch TV because of her neck and back but had to get up and move around. A friend helped her shop and carried bags for her. She also gave evidence she could not wash her hair. Mrs Estephan said a specialist, whose name she could not recall, had discussed with her possible surgery to her left arm but she had not gone ahead with an operation because the specialist could not guarantee a cure and she was worried about this.

12.     When questioned, Mrs Estephan agreed that her neck had become worse since March 2005. The pain had increased gradually. Her neck was painful when she applied for the pension but was worse now than when she saw Dr Matalani in June 2006 and Dr Burns in November 2007. As for her left arm, Mrs Estephan gave evidence that, in March 2005, it was troubling her a lot but not as much as the right arm. A doctor had suggested she take Panadol and Panamax. In January 2006, when she had an ultrasound of the left arm, swelling was worse than in March 2005.  In 2005, when Mrs Estephan stopped working, she said her right arm was hurting and swollen and she could not do anything with it. Her left arm became sore as well within weeks of ceasing to work.  

13.     The medical evidence before us is at odds but overwhelmingly evidentiary of spinal problems since at least 2 November 2004, when Dr Bishara reported on Mrs Estephan’s condition. Dr Matalani has allocated only 15 impairment points to Mrs Estephan, after rejecting most of Mrs Estpehan’s problems as warranting any assessment whereas Dr Mark Burns considered Mrs Estephan’s overarching problem was related to her arthritic condition and warranted in excess of the required 20 impairment points.

14.     We have material from a number of treating doctors and various radiological and other investigations conducted since 1999. Dr Bishara, on 2 November 2004, found severe disc pathology of the cervical spine, generalised joint osteoarthritis and a T6 crush fracture as well as dry eye syndrome. Dr Reiter, the rheumatologist, on 31 January 2005, thought Mrs Estephan’s pain likely associated with cervical spondylosis. Dr Shivani Prasad made a similar diagnosis on 22 March 2005 along with other conditions. Dr Paul Thomas, a Health Services Australia doctor, also referred to this condition, among others, on 1 April 2005, as did Dr Logan on 1 July 2005.

15.     For his report dated 22 June 2006, Dr Matalani took a history of Mrs Estephan’s complaints, analysed reports of treating doctors and specialists, and concluded that her right arm attracted 10 impairment points under Table 3 “due to moderate interference with hand function or manual handling in the dominant upper limb.” Dr Matalani thought assessment of Mrs Estephan’s left arm should await the outcome of surgery after a lapse of 6 months. He awarded a nil rating for Mrs Estephan’s cervical spine, although noting diagnosis of spondylosis and degenerative condition of the spine. He also assigned a nil rating to the thoracolumbar spine and lumbosacral spine under Table 5.2. He assessed nil points for several other conditions but in respect to migraine opined that “it would appear she may qualify for 5 points under table 5”. He expressed some reservations about the adequacy of treatment for migraine. In total, his assessment concluded 15 impairment points were appropriate.

16.     Dr Mark Burns saw Mrs Estephan on 22 November 2006 after referral from her solicitor and assessed her generalised arthritis as warranting 25 impairment points under Tables 3 and 5.  Dr Burns took a history of arthritis of neck, back and lower limbs and problems with both elbows. He found tennis elbow resistant to treatment on the right side and a large ganglion on the left side. He observed the ganglion went around the biceps tendon. In his report of the same date, Dr Burns wrote:

I believe that Mrs Estephan’s major problem at the current time is in fact her musculoskeletal condition. She has a progressive athropathy. It has involved not only her cervical spine and lumbar spine, but also her peripheral joints including her elbows, shoulders, and to a lesser exempt her knees. She is currently under the care of Dr Reiter sho had reported that her condition has been resistant to treatment to date. I note that Dr Mulligan is now of the belief that her chronic iritis may also be a manifestation of her arthropathy.

I do not believe that Mrs Estephan will be capable of returning to the workforce in an open capacity for at least 30 hours per week at the current time. I also do not believe that she will be likely to return to the workforce within the next two years. Her condition to date over the last two years has been resistant to treatment.

I also do not believe that it is likely that retraining will have any effect on her ongoing work capacity. She currently has significant pain and discomfort as well as blurred vision. I believe it extremely unlikely that she will ever be fit to return to the workforce in any capacity.

17.     Dr Matalani gave oral evidence to the tribunal, which we have summarised and commented on as follows:

§Overall, we considered  Dr Matalani’s  assessment of Mrs Estephan’s  various medical problems was rather superficial;  

§Dr Matalani conceded that his consultation was done without the assistance of an interpreter but thought this had not resulted in any difficulty. We observed at the tribunal hearing that Mrs Estephan required the assistance of an interpreter for many of the questions put to her and in order for her to answer accurately. This led us to doubt the accuracy of some of Dr Matalani’s conclusions as they may not have been based on correct information from Mrs Estephan;

§In Dr Matalani’s report, the medication history lacks detail. This is relevant to our consideration as he conceded in oral evidence that pain medication may significantly influence findings on physical examination, particularly where pain causes restriction of movement. He conceded he did not enquire the status of her usage around the time of the examination and this may influence the findings on physical examination; 

§On examination of the right arm Dr Matalani found demonstrated muscle weakness and concluded that Mrs Estephan had genuine symptoms in her right arm which were caused by her neck condition. Dr Matalani assigned an impairment rating of 10 points for this condition.

§On examination of the neck Dr Matalani found active range of movement to approximately 90% of normal in all directions and concluded that Mrs Estephan suffered a “consistent minimal loss in the range of movement in the vicinity of 10% of normal range”;

§In response to a question from the tribunal, we consider Dr Matalani did not provide a satisfactory explanation as to how he had determined the loss of range of movement of the neck was about 10%. We formed this view because Dr Matalani told us he did not make a measurement using any instrument but simply made an estimate.

§In his report, Dr Matalani noted that imaging investigation had confirmed significant cervical spondylosis and, although he diagnosed this condition, he awarded nil points for it;

§Dr Matalani asserted, both in his report and in oral evidence, that impairment and disability did not always correlate with the severity found on x-rays but he was unable satisfactorily to explain how, in Mrs Estephan’s case, her cervical spondylosis, which was severe enough to cause significant disability in her right arm, had not affected the range of movement in her cervical spine.

§Dr Matalani conceded that, in the course of his practice as an occupational physician, he did not treat patients with cervical spondylosis.

18.     We took these inconsistencies into account determining the weight to accord Dr Matalani’s opinion of Mrs Estephan’s condition. Overall, Dr Matalani did not impress us as having considered Mrs Estephan’s disabilities as comprehensively as Dr Burns. This was due in part to his not having an interpreter present during the physical examination and possibly missing nuances in Mrs Estephan’s oral history. We also attached less weight to his diagnoses due to his less rigorous examination, using estimation rather than measurement. We consider that Dr Burns has an advantage in practising in the area of arthritis in addition to practising than as an occupational physician. In our opinion, this gives him a professional edge in diagnosis and ability to comment on appropriate treatment as well as on whether stabilisation of a condition has been achieved. We preferred the medical opinion and evidence of Dr Burns for these reasons.

19.     Dr Burns took a more thorough history, conducted more accurate measurements, using a goniometer, and explained his findings more convincingly by linking them to the actual examination. Not only did Dr Burns rely on goniometer measurements instead of mere observation, he also tested Mrs Estephan’s grip strength using a dynamometer. He had an interpreter present which suggests to us that he may have better understood Mrs Estephan’s information and responses to his questions on examination. His evidence was cogent and we found his overall assessment provided a convincing explanation for his diagnoses and opinion. We consider Dr Burns’ clinical assessment was better than Dr Matalani’s. Overall, his report was more comprehensive and his assessment of Mrs Estephan’s problems more precise. In particular, he took a much more detailed history of her use of analgesic and anti inflammatory information.

20.     Dr Burns noted Mrs Estephan started on some treatment which upset her, then changed medication and had been recommended another on which she had not yet started. From one point of view, an argument might be made that changes in medication suggest stabilisation of Mrs Estephan’s condition had not been achieved. However, we do not make such a finding as Mrs Estephan’s arthritis was ongoing and permanent in Dr Burns’s opinion at the time of her application: Schedule 1B of the Act. Changes in medication do not necessarily indicate lack of stabilisation but merely good ongoing management. Availability of new medication is not, according to the material before us, likely to effect a cure or result in major improvement to Mrs Estephan’s arthritis.

21.     The analysis of Dr Burns of problems in relation to Mrs Estephan’s upper limbs, neck and thoracic spine limitations was better, in our view, than that of Dr Matalani. Dr Burns talked about her grip and gave her 10 points under Table 3 in regard to grip whereas Dr Matalani did not go into this aspect. As to other ratings, Dr Matalani was not consistent, saying muscle weakness was related to cervical problems but then saying her cervical problems were not significant.

22.     Dr Burns, when asked how one might measure 10% loss in all directions, as Dr Matalani had done, said such an assessment and conclusion was not doable. A round figure assessment, when considering the range of problems, which Mrs Estephan’s history and evidence suggests is not uniform, makes us doubt the accuracy of this finding by Dr Matalani. Dr Burns noted the pain in her neck was aggravated by various movements of the neck. Mrs Estephan’s impairment in the back was mostly pain-related impairment in his view.

23.     We also note that Dr Matalani did not deal with the ganglion discovered in the left arm whereas,  whereas Dr Burns noted:

On the left side, she has been diagnosed as having a large ganglion which goes around the biceps tendons.  This has caused her pain and discomfort in both elbows and difficulty with lifting and carrying.

24.     When he looked at the impairment allocated its assessment under a table, Dr Burns explained he “obviously [tried to] get the most specific table in relation to the function and impairment.”  The history he obtained was not so much about restriction in movement, but more about pain in the neck and back. He explained that obviously would have an effect on her functioning, rather than a structural restriction in movement.  In his opinion pain was present, so when he assessed the relatively free range of movement in both Mrs Estephan’s neck and in her thoraco-lumbar spine, his points rating was dependent on pain suffered when Mrs Estephan performed flexions and extensions. He observed the degenerative changes in her neck and thoraco-lumbar spine were moderately severe.

25.     For the above reasons, on balance, we accept the opinion of Dr Burns and find that Mrs Estephan attracted an impairment rating of 25 points under the impairment tables on or about the date of her pension application on 8 March 2005. These impairment points were awarded on the basis of her permanent affliction of arthritis. As well, Dr Burns acknowledged other problems, including diabetes and ischaemic heart disease, had arisen in the last 12 months before his examination. As these afflictions were more recent, he did not rate them at the date of application.

26.     We agree with Dr Burns’s assessment that she attracted 10 points under Table 3 arising from her upper limb problems, including chronic tennis elbow on her right side, arthritis in her right shoulder and neck with associated decrease in manual handling an dexterity. Her evidence was that these problems existed when she ceased work around the time of her application. From Table 5.1 of Schedule 1B, her cervical spine and lumbar spine discomfort and loss of function, observed and rated by Dr Burns, attracted 5 points, with which we agree. From Table 5.2, her thoracolumbar spine attracts a further 10 points as assessed by Dr Burns, with whom we agree. This totals 25 points without taking into account a range of other disabilities from which Mrs Estephan suffers.

27.     As Dr Burns pointed out, she may well have a rating for migraine but it has not been necessary for us to go further into this additional condition. We further note that Dr Burns was emphatic that Mrs Estephan’s major problem was musculo-skeletal and resistant to treatment over the last two years, as at his reporting date of 22 November 2006. Dr Reiter, the treating specialist, in January 2005, reported that her condition had been so resistant.  Dr Burns also stated he believed her arthritic disabilities would continue for the next two years.

28.     There is no argument from the Secretary that Mrs Estephan had 10 impairment points rating for her loss of function in the right arm. We further note that Dr Matalani awarded a further 5 points under Table 21 for migraine, meaning that, at worst, Mrs Estephan was short of 5 points on any assessment before us. In view of Dr Burns’s detailed assessment, we have no doubt Mrs Estephan attracts at least 25 points based on her arthritic condition and its effects on various limbs and sections of the spine, bringing her over the required impairment point level of 20 point.

29.     We are satisfied that all of Mrs Estephan’s relevant conditions had been fully diagnosed, treated and stabilised before they were assigned impairment ratings by Dr Burns. This is a prerequisite to impairment points being assigned under any of the Tables in Schedule 1B of the Act: Harris v Secretary, Department of Education, Employment and Workplace Relations (2007) 158 FCR 252 (Gyles J).

Work capacity

30.     The various assessments of Mrs Estephan’s work capacity at the date of her application overwhelmingly indicate that she was unable to work at the time, or into the future. Dr Matalani considered Mrs Estephan’s maximum work capacity was 20 hours per week. This falls short of the 30 hours expected under subsections 94(5), 94(2)(a) and (b)(ii) at the date of application. The relevant hours to establish work capacity as at March 2005 was 30 hours per week. We note this has since been reduced to 15 hours pursuant to section 94(5).

31.     Dr Burns considered she could not work for at least 30 hours and his reference to two years before, as well as the current time, November 2006, and thereafter, indicates he considered Mrs Estephan could not work during the application period and continuing. He thought her blurred vision also would impede her work capacity and that she would be unable to return to wok at any time.

32.     A job capacity assessment made on 1 August 2006 found Mrs Estephan’s current capacity for work was 0-7 hours per week; future capacity for work without intervention was 0-7 hours per week and with intervention, 8-14 hours per week. The work assessment report noted that several of Mrs Estephan’s conditions were permanent, including her arthritis. None of these assessments indicates that Mrs Estephan could work 30 hours per week in the next 2 years. While the assessor thought her work capacity might possible improve with pain management strategies and changes to medication, we do not agree, as there is no sufficient medical opinion to indicate any prospect of interventions achieving a result which would enable 30 hours of work in the relevant period. Certainly, Dr Burns does not think so.

33.     In our opinion, the best evidence we have about work capacity is Dr Burn’s assessment, which we accept for the same reasons as we prefer his impairment rating assessment. The work assessment in the job capacity assessment report, that Mrs Estephan’s prospects may improve, was based on flawed medical opinion, Dr Matalani’s, with which we disagree. In any case, the job capacity report speaks of 0 to 7 hours work and 8 to 14 hours at a time when 30 hours was the test.

34. On balance, taking all these matters into account, we are satisfied that Mrs Estephan could not, at the time of her application in March 2005, work the requisite hours, if at all. There was also no prospect of improvement in the next two years. There was no evidence for the Secretary’s submission that Mrs Estephan had a continuing ability to work or to undertake training activity. She therefore satisfies the test under subsection 94(1) (c).

decision

35. The decision of the SSAT is affirmed that Mrs Estephan satisfies the requirements for receipt of disability support pension at the date of her claim, under subsection 94(1) paragraphs (a), (b) and (c) of the Social Security Act 1991.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr I S Alexander, Member.

Signed: ............[sgd]...................

Steven Mulipola, Associate

Date of hearing:  10 March 2008

Date of decision:  7 May 2008

Solicitor for the Applicant:             Centrelink Legal Services

Counsel for the Respondent:        Ms E Wood

Solicitor for the Respondent:        Legal Aid Commission