Ghorayeb and Department of Family and Community Services - [2000] AATA 818

DECISION AND REASONS FOR DECISION [2000] AATA 818

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1865

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GEORGE GHORAYEB
  Applicant
           And    SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date14 September 2000
PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision of the Delegate of the Department of Family and Community Services dated 13 July 1999 as affirmed by the Authorised Review Officer on 16 September 1999 and the Social Security Appeals Tribunal on 16 November 1999, to refuse the Applicant Mr George Ghorayeb's claim for Disability Support Pension.

..............................................
Ms G Ettinger
Senior Member
Catchwords
Disability Support Pension – whether medical evidence supports claim – relevant period - June 1999 and three months thereafter – sections 94(1) and 100(3) of the SSAct 1991

Legislation
Social Security Act 1991 ss 94(1) and 100(3)

REASONS FOR DECISION

14 September 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Delegate of the Secretary, Department of Family and Community Services ("the Department") (T18) dated 13 July 1999 as affirmed by the Authorised Review Officer (T24) on 16 September 1999 and the Social Security Appeals Tribunal ("SSAT") (T2) on 16 November 1999, which refused the claim by the Applicant, Mr George Ghorayeb, for Disability Support Pension ("DSP").
The Applicant was self-represented and the Respondent Department was represented by its advocate, Ms A Alex. The Tribunal was assisted by Mr M. Mohammed, an interpreter in the Arabic language.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was:
·Whether the Applicant satisfied the criteria required by section 94(1) and 94(2) of the Social Security Act 1991 ("the SSAct") and thus, whether the Applicant was eligible for Disability Support Pension ("DSP").

LEGISLATIVE FRAMEWORK

The relevant legislation is this matter is the Social Security Act 1991 as current on 13 July 1999, in particular sections 94(1), 94(2), and 100(3) which follow, as relevant:
"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 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 years.
Note:For work see subsection (5).
…
94(5)In this section:
educational or vocational training does not include a program designed 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:
(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.
…
100(3)If:
(a)a person lodges a claim for a disability support pension; and
(b)the person is not, on the day on which the claim is lodged qualified for a disability support pension; and
(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is on the first day on which the person is qualified for the pension and is an Australian resident and in Australia
…"

PRELIMINARY MATTERS

I noted that it was not in dispute that the Applicant suffers physical impairment of his neck, right shoulder and lower back pursuant to section 94(1)(a) of the SSAct. Therefore, the issue to be decided by the Tribunal was whether the Applicant's impairment of the neck, right shoulder and lower back constituted a combined impairment rating of 20 or more in accordance with section 94(1)(b) of the SSAct, and calculated with reference to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension ("Impairment Tables") produced pursuant to Schedule 1B of the SSAct. If so, I had to decide whether the Applicant then met the conditions in section 94(1)(c) of the SSAct.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") (Exhibit R1) and the following other exhibits:
ITEM DATE NAME
Liverpool Hospital Neurophysiology Department – ECG Report 17 April 1997 Exhibit A1
Respondent's Statement of Facts and Contentions with Annexures A-J 4 August 2000 Exhibit R2

EVIDENCE OF THE APPLICANT – MR GEORGE GHORAYEB

Mr Ghorayeb, whose date of birth was 10 August 1956, gave oral evidence before the Tribunal. He told me that his main complaints were his neck, right shoulder and lower back, and that he also suffered migraines. He said that his General Practitioner, Dr S Hanna, had assessed his impairment at 20%. He also gave evidence that he had undergone an operation on his neck on 4 July 2000 to restore feeling to his fingers by removing "nerves between two bones". Referring to the 0 impairment assessment of the neck given by Dr Chew, Mr Ghorayeb said that he could not understand why he had to have an operation if indeed it was considered that he had no serious problems in the neck.
Mr Ghorayeb gave further evidence that his treating doctors had recommended that he undergo surgery on his right shoulder once he recovered from the operation on his neck. He said that he was scheduled to have this operation as there was "something missing from between the bone".
In respect of his lower back problems, Mr Ghorayeb said that although every day was different, generally if he stood for longer than half an hour, his back would become painful. He also said he could only walk for approximately 10 minutes at a time as his back pain caused problems in his legs, and that his back was very tender when he stood up from a seated position.
Mr Ghorayeb said that he used to drive a forklift but that he was no longer able to do so because of his injuries. He also said that in 1998 he had been employed by Sunbeam in a factory position but that his body was so painful that he could not continue despite being paid good wages. He said that since that time, he had not tried any further employment.
When cross-examined about his Centrelink application for DSP where he had written that he could drive short distances for 30 minutes, Mr Ghorayeb said that he did not drive every day but rather only when his family required something.
He also said that he tried to help his wife around the home by doing the dishes or light tidying or cleaning and helped with looking after his children. He also said that he could occasionally help his wife with the gardening by doing the lawn edges with an edger. When questioned, Mr Ghorayeb said that he was unable to carry anything heavy but that he could lift and carry light objects weighing less than five kilograms if he used both hands.
Under cross-examination, Mr Ghorayeb said that he wore a neck brace while watching television, but that he could not wear it for a long time as he has a short neck and the brace restricted his breathing. He also said that he could only sit for half an hour before his neck and back hurt.
When asked whether there were factors other than his injuries that affected his ability to work, Mr Ghorayeb nominated skills in writing, speaking and reading English.
MEDICAL EVIDENCE
There were a number of medical reports documenting the Applicant's injuries and impairments in evidence before the Tribunal which have been considered. A discussion follows.
medical evidence of dr s hanna - general practitioner
Dr Hanna, the Applicant's treating General Practitioner assessed the Applicant for the purposes of his claim for DSP on 3 June 1999 (T13). Dr Hanna opined (T13/73) that the Applicant suffered a "lumbar disc lesion… spondylitic (sic) change with disc protrusion … injury Rt shoulder with bursal tears." He said that the prognosis for the Applicant's injuries was long term, namely that it would persist for at least two years and would significantly affect his ability and capacity for work.
In support of his assessment, Dr Hanna provided a further medical report dated 20 March 2000 (Annexure D to Exhibit R2). He discussed therein results of various investigations carried out on Mr Ghorayeb. They included a bone scan of 25 February 1997; X-ray and CT scan of the cervical spine of 4 June 1997; ultrasound of the right shoulder of 27 June 1997; MRI of the thoraco-lumbar spine of 14 May 1998; and MRI of the right shoulder of 21 October 1998.
Dr Hanna also quantified his assessment of the Applicant's injuries in accordance with the Impairment Tables produced pursuant to Schedule 1B of the SSAct (Annexure D to Exhibit R2). He opined that:
"Table 5.1: Cervical Spine
Loss of normal range of movement and constant neck pain. (10 points)
Table 3: Upper Limb Function
Demonstrable evidence of loss of strength, mobility, sensation of non-dominant upper limb which causes moderate interference with hand function of manual handling.(5 points)
Table 5.2: Thoraco-Lumbar – Sacral Spine
Loss of one-quarter of normal range of movement as well as back pain. With standing for about 15 minutes and sitting or driving for about 30 minutes. (20 points)
Table 20: Miscellaneous or Pain
Severe pain with a decreased ability to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent of (sic) lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. (20 points)."

According to Dr Hanna's assessment, Mr Ghorayeb's combined impairment rating exceeded the 20 points required for DSP pursuant to section 94(1)(b) of the SSAct.
Dr Hanna, in a later report dated 20 April 2000 (Annexure E of Exhibit R2), provided evidence of the Applicant's migraines. He said that the Applicant suffers from "attacks of his migraines about 3 times every week, with continuous mild headache the rest of the week, the attacks stay for at least 3 hours." Dr Hanna further opined that "Mr Hanna is sick and not fit for any work."
In respect of educational or vocational training, Dr Hanna said that Mr Ghorayeb would be unable to complete such training "… because of his back, neck and Right shoulder injuries, he can not sit or stand for long period. Also because of his headache he cannot concentrate."
medical evidence of dr p chew
Dr Chew, in providing a medical assessment of the Applicant on 12 July 2000 at the request of Centrelink in respect of his claim for DSP (T16), said that Mr Ghorayeb scored a combined impairment rating of 5 which was ascertained as follows:
"Low back pain. He is able to sit for 1 hour and walk for 10 to 20 minutes. No discomfort was observed during the 30 minutes of the interview when he was seated. He scores an impairment rating of 5 points for 25% loss of normal range of movement.
He is not able to lift or carry heavy objects. He is not suitable for work needing repetitive bending.
Neck pain. He was observed to move his neck well talking to the interpreter. He is also able to drive for 30 minutes. He has a near normal range of movement.
He scores an impairment rating of 0 points.
He is not suitable for work needing repetitive movement of the neck.
® Shoulder pain (Dominant) He still uses his ® upper limb effectively and maintained fine motor skills. He has some minor reductions of movement and power due to pain.
He scores an impairment rating of 0 points for this condition."
Dr Chew maintained that the Applicant, despite suffering impairments to his neck, right shoulder and lower back, was able to perform "light, sedentary work eg light sales work and office work". He also noted that although the Applicant's treating General Practitioner had assessed him as being unfit for any form of employment, "… the 3 specialists had all raised possibility of light work though suitable jobs may be difficult to locate."
medical evidence of dr p cook - medical adviser health services australia
Dr Cook, on 23 May 2000, provided a review of the opinions of Dr Hanna and Dr Chew as to the Applicant's impairment rating and work ability (Annexure H to Exhibit R2). As to Mr Ghorayeb's lower back pain, neck pain and shoulder pain, Dr Cook opined that:
"His low back pain was given an IR of 5 by Dr Chew as he had loss of ¼ range of movement. Dr Hanna states he has loss of ¼ range of movement and pain with standing for about 15 minutes and sitting for about 30 minutes. He incorrectly gives this an IR of 20. It should be 10 and I think that would be consistent with the other medical evidence available.
His neck pain was given an IR if 0 by Dr Chew as he had a nearly normal range of movement. He also states he is able to drive for 30 minutes and moved his neck normally during the interview. Dr Hanna assigned an IR of 10 with "loss of normal range of movement and constant neck pain". This seems to be a disagreement on his examination. As Dr Chew provides more detail I suggest accepting his assessment of IR 0.
Dr Chew gives his shoulder pain an IR of 0 as he had mild interference with manual handling. Dr Hanna says the interference is moderate and incorrectly gives an IR of 5 (it should be 10 for dominant arm). The only functional loss he describes is "some limitation of external and internal rotation". From the information provided it is difficult to say if his impairment is mild or moderate. If an opinion is required I would say mild, but there is inadequate evidence to be confident of this."

Dr Cook held that the 20 points given by Dr Hanna for pain from Table 20 involved the double counting of the individual injury tables outlined above and incorrectly applied.
According to Dr Cook, the combined impairment rating, having considered all of the available medical evidence, was a maximum of 10. However, he expressed this total with reservation, suggesting further medical evidence of the Applicant's conditions might be required.
Dr Cook further opined that the views of Dr Chew and Mr Ghorayeb's treating specialists regarding his capacity for light work were consistent with the medical evidence before him. However, Dr Cook stated that in respect of the Applicant's migraines, the medical information provided by Dr Hanna had not been canvassed in Mr Ghorayeb's application for DSP. He also said that there was insufficient medical evidence to assess the impairment rating of the Applicant's migraines.
medical evidence of dr v maniam - orthopaedic specialist
Dr Maniam, in his report dated 14 October 1997 (T7), which was provided for the purposes of the Applicant's workers' compensation claim, opined that the Applicant suffered significant problems including:
"1.Intervertebral disc protrusions at C5/6 and C6/7, with impingement of the corresponding nerve roots, namely C6 and C7.
2.Right shoulder impingement in abduction and internal rotation.
3.Acromio clavicular joint degenerative disease."

Dr Maniam assessed the Applicant's injuries, as involving 25% permanent impairment of the neck and 25% permanent impairment of the right arm at or above the elbow. These injuries, said Dr Maniam, were supported by the pathology presented by the Applicant and corresponded with the pain history taken. He said that:
"Clinical examination exhibits movement restriction in both these areas … In the investigative procedures, ominous signs are seen in the neck and in the right shoulder."

I noted that Dr Maniam made his assessment of Mr Ghorayeb utilising Tables appropriate for the workers' compensation jurisdiction rather than section 94 of the SSAct.
As to the Applicant's capacity to work; Dr Maniam said that although Mr Ghorayeb was unable to return to the level of physical activity required by his 'present' employment with Franklins Ltd supermarkets, he could be:
"…placed into a more lighter and sedentary position, that will not require for him to hold his upper limbs above shoulder height, lift weight more than 10kg, repetitive bending and prolonged sitting."

Dr Maniam provided a further report dated 26 July 1999 (Annexure A to Exhibit R2) for the purposes of the Applicant's claim for workers' compensation payments. In reviewing his earlier position, Dr Maniam opined that:
"The problems are two-fold. One that involving the cervical spine, where the C5/6 and C6/7 intervertebral discs have herniated, causing impingement on the right C6 and right C7 nerve roots and the second, an impingement of the right shoulder, due to a Neer type 2 acromion and bony outgrowth from the acromioclavicular joint and furthermore, a tear in the supraspinatus tendon."

Dr Maniam also assessed the Applicant's ongoing restrictions as including: "driving … bending … prolonged sitting … lifting heavy weights … nocturnal sleep."
medical evidence of dr p giblin - orthopaedic surgeon
Dr Giblin, in his report dated 12 March 1998 (T8), documented the Applicant's complaints as being:
"… principally of pain in the neck and right shoulder with some persisting discomfort in the mid lumbar area."
He assessed the Applicant's injuries as involving 22½% permanent impairment of the neck, 10% permanent impairment of the right arm at or above the elbow and 7½ % permanent impairment of the back.
I noted that Dr Giblin made his assessment of Mr Ghorayeb utilising Tables appropriate for the workers' compensation jurisdiction rather than section 94 of the SSAct.
Dr Giblin opined that while his condition was stable, the Applicant's impairments had reduced his ability to carry out his employment to his pre-injury capacity:
"I would assess him as being fit, only, for a job excluding heavy and repetitive usage of his upper limbs and excluding heavy labouring duties.
Specifically, his right arm is unfit to be used in a repetitive fashion in terms of heavy lifting, or using it at or above shoulder height.
His neck is not suitable for use in extension or rotation such as backing or reversing machinery or looking up at heights.
I suspect that his lumbar spine will also give trouble and be an increasing liability in terms of heavy repetitive bending lifting and twisting and as such, I would recommend that he be regarded as unfit for those types of occupational exposures."

medical evidence of dr p endrey-walder - orthopaedic surgeon

Dr Endrey-Walder, in his report dated 10 November 1998 (T11), assessed the Applicant as having 20% permanent impairment of the neck, 15% permanent impairment of the right arm at or above the elbow and 10% permanent impairment of the back.
I noted that the above assessment appeared to have been carried out using tables intended for workers' compensation claims and not with regard to the Impairment Tables relevant to section 94 of the SSAct.
Notwithstanding, I noted that he opined:
"Radiological investigations certainly highlight multilevel disc degenerative changes in relation to his cervical spine and, seeing that this gentleman was only 31 years of age when he gained his employment at Franklins, and that he had had no injury to his neck in the past, I would have to consider such spondylotic and disc degenerative condition a direct result of the nature and conditions of his work at Franklins …
Part of his right shoulder related symptoms may well be secondary upon his neck problem and possibly some nerve root irritation at the C5/6 or C6/7 levels, but there is bone scan evidence of quite significant active arthritic changes at the acromio-clavicular joint of the right shoulder, and on physical examination one can feel the grating elicited at this joint when the shoulder is rotated …
His lower back related symptoms have been present for more than a year, and are likely to be due to some early underlying disc degenerative condition ...
It is mainly on account of the multi-centric nature of his significant symptoms that this gentleman is quite markedly restricted in relation to his work capacity and, seeing that there is established degenerative and spondylotic condition underlying his symptoms, his long term prognosis will remain problematic."

SUBMISSIONS AND CONCLUSIONS

In deciding whether Mr Ghorayeb satisfied the requirements of section 94(1) of the SSAct during the relevant period and therefore, qualified for DSP from the time of his application on 9 June 1999 and for the three months following that date, I had to take into account the evidence, legislation, case law and submissions in order to make the correct and preferable decision.
Ms Alex submitted that pursuant to section 100(3) of the SSAct, the period upon which the Tribunal had to take into account in regard to Mr Ghorayeb's eligibility for DSP was from 9 June 1999 to on or about 9 September 1999. I agreed with the Respondent's position and understood it to mean considering the Applicant's medical condition and eligibility as at the date of his application for DSP and in the three months following.
Ms Alex submitted that the Respondent accepted that the Applicant suffered physical impairment, so that the only issues remaining to be considered by the Tribunal were whether the Applicant had a combined impairment rating of 20 or more (section 94(1)(b) of the SSAct), under the Impairment Tables set out in Schedule 1B of the SSAct, and if so, whether he had a continuing inability to work (section 94(1)(c) of the SSAct).
As discussed previously in these reasons, I accepted that there was no dispute that the Applicant suffered from physical impairments to the neck, right shoulder and lower back at the time of his application for DSP and in the three months following. I accepted also that he suffered pain from the physical impairments. I was therefore, satisfied that the Applicant fulfilled the requirements pursuant to section 94(1)(a) of the SSAct.
I turned my attention then to whether the Applicant's impairment rating reached a combined total of 20 or more calculated in accordance with the Impairment Tables and pursuant to section 94(1)(b) of the SSAct.
I was mindful of Ms Alex's submission that the legislation required a claimant for DSP to have his or her injuries fully documented, diagnosed, treated and stabilised at the time of the claim. In this respect, and in light of the concessions of the Respondent, I formed the opinion that the injuries the subject of his DSP claim had been sufficiently documented, diagnosed, treated and stabilised at the time of his claim for DSP. However I noted that according to Mr Ghorayeb, his condition had deteriorated by the time of the hearing, and he had been advised that he may have to undergo further surgical intervention on his neck and right shoulder. That may then be relevant to any future claim.
The Applicant submitted that he would "love to be able to work" and support himself and his family including two children aged seven and four. He told me that he was aware that he would receive more money by working than he would earn from income support payments. He said that he had tried to continue working with his injuries, but that after three years of pain and suffering he was unable to use his body (physically) any more.
Mr Ghorayeb also said that he had children of a former marriage whom he saw every second week, and whom he supported in the amount of $80. per week in child support. He had also paid a lump sum for child support at the settlement of his workers' compensation claim.
Mr Ghorayeb said that he suffered from pain throughout his body, namely, his head with migraines, his shoulder, neck and back. He also said that his right leg was painful but that it was not as bad. He also said that he was not exaggerating his injuries and was honest in his evidence to the Tribunal.
Mr Ghorayeb also submitted that physical impairments aside, his inability to read or write English affected his ability to find work, but that if anyone would give him the chance, he would be happy to do office work.
I noted Mr Ghorayeb's submissions and also the opinions of Dr Hanna in his report dated 20 April 2000 and material contained in the EEG report of the Neurophysiology Department of the Liverpool Hospital dated 17 April 2000 (Exhibit A1) regarding the Applicant's migraines. Whilst I accepted the evidence of the Applicant that he suffered migraines, I noted that any impairment from the migraines was not canvassed in either his application for DSP nor in the 'Treating Doctor's Report' in support of his application (T13). Further the date of the report did not fall within the three months period allowable pursuant to section 100(3) of the SSAct. Therefore, on this occasion, evidence of the Applicant's migraines was not relevant to the calculation of Mr Ghorayeb's impairment rating nor his ability for retraining or work pursuant to section 94(1) of the SSAct.
Ms Alex submitted that the Respondent accepted Mr Ghorayeb's impairment rating of ten for the back was correctly assessed, being one-quarter loss of movement in the back. She submitted that this was supported by the reports of the Applicant's treating doctors. In this respect, I noted that only Dr Hanna found that the Applicant suffered from one-quarter loss of movement in the back in accordance with the Impairment Tables.
As to the neck; I noted that the Applicant's treating doctors (other than Dr Hanna), relied on the permanent impairment tables relevant to workers' compensation claims in their assessment of the Applicant's ongoing disabilities. Dr Maniam assessed the Applicant's impairment in his neck as involving 25% permanent impairment. Dr Giblin's assessment was slightly lower, being 22½% permanent impairment, with Dr Endrey-Walder lower still, finding permanent impairment of the neck of 20%.
I have also noted that much of the medical evidence before the Tribunal regarding the Applicant has arisen primarily in connection with injuries he sustained during the course of his employment with Franklins, and for the purposes of his workers' compensation claim. It follows that many of the reports did not employ the appropriate criteria to render them relevant in assessing the Applicant's impairment rating for his claim for DSP.
Therefore, acknowledging Mr Ghorayeb's pain and his evidence regarding his restrictions, I was nevertheless required to consider the Applicant's impairment rating for DSP in light of the available and relevant medical evidence before me. I relied in particular on the reports of Dr Chew, Dr Hanna and Dr Cook.
impairment of the neck
Table 5.1 of the Impairment Tables sets out the criteria for the assessment of impairment of the cervical spine. It provides:
"NIL Normal or nearly normal range or movement.
FIVE Loss of quarter of normal range of movement.
TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTYLoss of three-quarters or normal range of movement and constant neck pain".
Dr Chew, in assessing the Applicant's impairment rating at nil, opined that the Applicant :
"… was observed to move his neck well talking to the interpreter. He is also able to drive for 30 minutes. He has a near normal range of movement."

In contrast, Dr Hanna provided a more generous assessment of the Applicant's neck impairment. He found that:
"Table 5.1: Cervical Spine
Loss of normal range of movement and constant neck pain. (10 points)"

I was mindful that Dr Hanna's assessment provided little detail as to the extent of the loss of normal range of movement.
Dr Cook, in reviewing the assessments of Dr Chew and Dr Hanna, found that:
"His neck pain was given an IR if 0 by Dr Chew as he had a nearly normal range of movement. He also states he is able to drive for 30 minutes and moved his neck normally during the interview. Dr Hanna assigned an IR of 10 with "loss of normal range of movement and constant neck pain". This seems to be a disagreement on his examination. As Dr Chew provides more detail I suggest accepting his assessment of IR 0."

However, it appears from his review that Dr Cook did not have the opportunity to assess the Applicant personally. In this regard, I would agree with the comments of Mr Ghorayeb that an operation for a C5/6 anterior discectomy and fusion would probably not have been performed on his neck if he had demonstrated a normal or nearly normal range of movement. Furthermore, I noted the comments of his treating doctors regarding the Applicant's range of movement in the neck. Dr Maniam, in his report at Annexure A to Exhibit R2, opined that:
"The cervical spine movements were executed to a restricted range in the limit of forward flexion and extension."
Similarly, Dr Hanna said that the Applicant had "restriction on flexion and extension movements" and Dr Giblin recommended that the Applicant's neck was "not suitable for use in extension or rotation …" Dr Endrey-Walder found that the:
"Neck was straight and, while there was a moderate degree of restriction in extension, side to side rotation and flexion were not significantly restricted although he was clearly much discomforted at the limit of such movements."
I was not persuaded by Dr Cook's comments that because Dr Chew provided more detail regarding the Applicant's neck, that his rating should be preferred over the Applicant's treating doctors. Notwithstanding, I was also not satisfied that the Applicant suffered from an impairment rating of 10 as calculated by Dr Hanna. I found that from all the medical evidence and the evidence of the Applicant before the Tribunal, the Applicant suffered a significant injury to his neck, which has resulted in a considerable loss in the normal range of movement in the vicinity of one-quarter of the total range of movement. Thus, his neck condition should be properly quantified as involving an impairment rating of 5.
impairment of the back
Table 5.2 outlines the impairment ratings for injuries to the back based on demonstrable loss of movement. As relevant these follow:
"NIL Normal or nearly normal range or movement.
FIVE Loss one-quarter or normal range of movement.
TENLoss of one-quarter or normal range of movement as well as back or referred pain:

with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTYLoss of half of normal range of movement as well as back pain or referred pain."

Dr Chew assessed the Applicant's impairment rating in respect of the back as follows:
"Low back pain. He is able to sit for 1 hour and walk for 10 to 20 minutes. No discomfort was observed during the 30 minutes of the interview when he was seated. He scores an impairment rating of 5 points for 25% loss of normal range of movement.
He is not able to lift or carry heavy objects. He is not suitable for work needing repetitive bending."
Dr Hanna, again provided a more generous assessment of the Applicant:
"Table 5.2: Thoraco-Lumbar – Sacral Spine
Loss of one-quarter normal range of movement as well as back pain. With standing for about 15 minutes and sitting or driving for about 30 minutes. (20 points)."
Dr Cook found that, in reviewing the medical evidence, Mr Ghorayeb's back impairment should be properly assessed as follows:
"His low back pain was given an IR of 5 by Dr Chew as he had loss of ¼ range of movement. Dr Hanna states he has loss of ¼ range of movement and pain with standing for about 15 minutes and sitting for about 30 minutes. He incorrectly gives this an IR of 20. It should be 10 and I think that would be consistent with the other medical evidence available.

I am persuaded by the comments of Dr Cook and find that Mr Ghorayeb injuries to his back constituted an impairment rating of 10.
right shoulder impairment
Table 3 outlines the impairment ratings for loss of upper limb function. It provides, as relevant:
"NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
…"
Dr Chew assessed the Applicant's upper limb function as follows:
"® Shoulder pain (Dominant) He still uses his ® upper limb effectively and maintained fine motor skills. He has some minor reductions of movement and power due to pain.
He scores an impairment rating of 0 points for this condition."
However, Dr Hanna in his assessment, applied the criteria for an impairment rating of five without any further detail, in respect of the Applicant's non-dominant upper limb. In this respect, I noted that the Applicant sustained an injury to his right (dominant) upper limb and not his non-dominant limb as recorded by Dr Hanna.
Dr Cook found that there was not sufficient evidence as to the extent of the Applicant's upper limb impairment. He opined that:
"Dr Chew gives his shoulder pain an IR of 0 as he had mild interference with manual handling. Dr Hanna says the interference is moderate and incorrectly gives an IR of 5 (it should be 10 for dominant arm). The only functional loss he describes is "some limitation of external and internal rotation". From the information provided it is difficult to say if his impairment is mild or moderate. If an opinion is required I would say mild, but there is inadequate evidence to be confident of this."

Without further evidence to verify the extent of Mr Ghorayeb's loss of function in the right upper limb, I felt unable to accept an impairment rating of 10. Therefore, while I accepted that Mr Ghorayeb has ongoing problems with his right shoulder and has associated pain, I was unable to assign an impairment rating other than nil.
I have also noted Dr Hanna's assessment included a reference to Table 20, which provides for miscellaneous conditions including pain. He opined that the Applicant suffered:
"Severe pain with a decreased ability to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent of (sic) lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. (20 points)."

Notwithstanding, I was mindful of the comments of Dr Cook when he said:
"Dr Hanna also gives him 20 points for pain on table 20. This is double counting and is an incorrect use of the tables."
In this respect, I noted that the introduction to Table 20 clearly states that "double counting of a particular loss of function, by the use of more than one Table, must be avoided," and agree with Dr Cook that the impairment rating of 20 was incorrectly assigned by Dr Hanna.
Therefore, in assessing the relevant medical information before me, I was satisfied that the maximum impairment rating that could be assigned to the Applicant was a rating of 15.
I therefore decided on the evidence before me of Dr Cook and to a lesser extent, Dr Chew, that whilst I was sympathetic to the pain Mr Ghorayeb has reported, together with his evidence of significant impairment in his neck, back and right shoulder, he did not meet the 20 impairment points required by section 94(1)(b) of the SSAct. As Mr Ghorayeb did not therefore meet the requirements of section 94(1), he was not eligible for DSP pursuant to his present application. I therefore was in the position of having to affirm the decisions of the Department, Authorised Review Officer as well as the SSAT.
If I am in error and in the alternative, if the Applicant's combined impairment rating did meet or exceed the 20 points required by section 94(1)(b) of the SSAct, I moved to consider the indicia in section 94(1)(c) of the SSAct. As the parties raised the Applicant's capacity for work, I have, for the sake of completeness, considered from the evidence before me whether the Applicant demonstrated a continuing inability to work pursuant to section 94(1)(c) of the SSAct. What that means is defined in section 94(2) of the SSAct which as relevant follows.
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
(c)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 years.

Ms Alex submitted that it was not disputed that the Applicant could not return to his previous duties as a forklift driver. She said however, that the weight of the medical evidence before the Tribunal supported the contention that the Applicant could perform light duties in certain capacities. She directed my attention to the medical reports of Dr Chew, Dr Maniam and Dr Giblin in support of her submission.
Ms Alex submitted that Dr Chew, in his assessment of the Applicant for Centrelink, indicated that he was able to perform light, sedentary work for 30 hours per week (T16).
Similarly, Ms Alex submitted that the Applicant's treating orthopaedic surgeon, Dr Maniam had assessed Mr Ghorayeb as having the capacity to work. I noted that Dr Maniam stated at T7 that:
"… this man will have to be removed from his present work activity and placed into a more lighter and sedentary position that will not require for him to hold his upper limbs above shoulder height, lift weight more than 10kg, repetitive bending and prolonged sitting."

I noted that Dr Maniam further opined in his report dated 26 July 1999 that:
" … he will have difficulty in returning to his pre-injury duties. However a supervisory or administrative position could be offered to see if he could cope with these activities …"
Dr Giblin also assessed the Applicant as being fit for light duties. I have noted his comments at T8, that:
"… I would assess him as being fit only, for a job excluding heavy and repetitive usage of his upper limbs and excluding heavy labouring duties."
I accepted the assessments of the abovenamed doctors that Mr Ghorayeb could work with the restrictions I have outlined below.
In contrast, I have noted the comments of Dr Hanna, Mr Ghorayeb's treating General Practitioner, that he was unable to perform any form of work due to the continuing disabilities he suffers to his neck, right shoulder and lower back. While I recognised that Dr Hanna has treated the Applicant since 1997, I was not satisfied that Mr Ghorayeb was unable to perform any work, particularly, in light of detailed evidence from his treating specialists.
I was cognisant that Mr Ghorayeb has difficulties in reading and writing in the English language. However, I accepted the medical evidence before me, including the evidence of his specialists, that he was fit for light or sedentary duties where he was restricted from the following:

Prolonged sitting or standing;
Lifting or carrying objects in excess of 10 kg;
Repetitive twisting or bending;
Repetitive movement of the neck
Repetitive overhead work;
Driving.

Pursuant to the legislation, I was not able to take into account the availability of work or other conditions of the market for work.
Bearing these restrictions in mind, I found that from the medical evidence before me, the Applicant did not demonstrate a continuing inability to work pursuant to section 94(1)(c) of the SSAct, and thus, was not eligible for DSP at the time of his application in June 1999, and three months beyond.
Therefore, the correct and preferable decision was to affirm the decision of the Department and the SSAT to refuse the Applicant's claim for DSP.
Notwithstanding, I would also remind the Applicant that if he feels his condition has deteriorated further, additional medical evidence may be useful in assisting him if he wishes to lodge another claim for DSP in the future. I would also recommend that the doctors providing an assessment be advised to use the correct tables to assess the Applicant's impairment rating, namely the Tables for the Assessment of Work-Related Impairment for Disability Support Pension produced pursuant to Schedule 1B of the SSAct.
DECISION

The Administrative Appeals Tribunal affirms the decision of the Delegate of the Department dated 13 July 1999 as affirmed by the Authorised Review Officer on 16 September 1999 and the Social Security Appeals Tribunal on 16 November 1999, to refuse the Applicant Mr George Ghorayeb's claim for Disability Support Pension.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  15 August 2000
Date of Decision  14 September 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Self-Represented
Counsel for the Respondent    N/A
Solicitor for the Respondent    Ms A Alex