Gossein (Frank) Allameddine and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 650
•26 September 2012
[2012] AATA 650
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2503
Re
Gossein (Frank) Allameddine
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr M Couch, MemberDate 26 September 2012 Place Sydney The decision under review is affirmed.
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Ms N Bell, Presiding Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – impairment rating – qualification for DSP – applicant does not meet requisite points – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr M Couch, Member26 September 2012
Mr Allameddine suffers from a wide range of medical conditions. He last worked in 2007 and claimed disability support pension on 15 February 2011. A Centrelink officer rejected Mr Allameddine’s claim on the basis that he had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. The officer also found that Mr Allameddine is able to work for at least 15 hours per week. This decision was affirmed on further internal review by an authorised review officer and the Social Security Appeals Tribunal.
Mr Allameddine currently suffers from:
(a)A spinal condition;
(b)A shoulder condition;
(c)A knee condition;
(d)Ischaemic heart disease;
(e)Depression;
(f)Hiatus hernia; and
(g)Substance abuse.
ISSUES
Section 94 of the Act provides for the following requirements for eligibility for disability support pension:
(i)a physical, intellectual or psychiatric impairment; and
(ii)an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and
(iii)a continuing inability to work.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr Allameddine during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 15 February 2011 to 15 May 2011.
It is not in dispute that Mr Allameddine has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in this application.
DOES MR ALLAMEDDINE HAVE AN IMPAIRMENT RATING OF 20 POINTS OR MORE?
We will deal with each of Mr Allameddine’s conditions in turn. We note that for a condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 5:
The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
Paragraph 6 of the Introduction provides that when considering whether a condition is fully diagnosed, treated and stabilised, one must consider:
What treatment or rehabilitation has occurred;
Whether treatment is still continuing or is planned in the near future;
Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
Spinal Condition
There is no dispute that this is a permanent condition. A whole body scan in 2004 referred to a history of Scheuermann’s disease with recent trauma and pain in the mid-thoracic region. The scan showed increased uptake at the T5/T6 and T8/T9 levels consistent with degenerative change. In February 2012 Dr Mark Ridhalgh, Orthopaedic knee and shoulder surgeon, reported that Mr Allameddine has “a chronic back condition with kyphosis which dates from his adolescence”.
Mr Allameddine has also had problems with his cervical spine for which he has had physiotherapy and had an upcoming appointment with a specialist.
Mr Allameddine said his back is aggravated by prolonged walking and sitting and that he obtains immediate relief from lying down. He also said it was particularly aggravated in 2012 when he attempted to do some tree lopping. There is no evidence of a limitation of range of movement.
Table 5.2 concerns spinal function and measures functional loss almost purely by reference to range of movement. The Table provides:
TABLE 5.2 Thoraco—lumbosacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TEN Loss of one‑quarter of normal range of movement as well as back pain 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.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three‑quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint.
In the absence of material to indicate a loss of range of movement, Mr Allameddine’s spinal condition attracts an impairment rating of nil under this Table.
Shoulder Condition
Mr Allameddine had a surgical repair of the left rotator cuff in 2002. A subsequent ultrasound showed post-surgical changes and a markedly abnormal appearance of the left supraspinatus tendon with considerable thinning. Dr Lee-Shoy reported in 2010 that Mr Allameddine has left shoulder arthritis.
Mr Allameddine said he has ongoing symptoms including pain on elevation. He said he avoids reaching to high shelves with his left hand and said he has pain with heavier tasks such as hanging heavier items of washing on the washing line. He also described painful locking on elevation or recovery from elevation. He demonstrated to the Tribunal restriction of active elevation of his left shoulder to 150 degrees, compared to a full range of elevation in his right shoulder.
Table 3 concerns upper limb function and provides:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
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.
FIVE Demonstrable 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.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non‑dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
The loss of strength and mobility demonstrated by Mr Allameddine together with the moderate interference, on elevation, with hand function and manual handling attracts an impairment rating under Table 3 of 5 points for a non-dominant upper limb.
Knee Condition
It is not in dispute that Mr Allameddine’s knee condition (both knees) is permanent. He has been under the care of Dr Ridhalgh since 1995. Dr Ridhalgh reported that he has undergone multiple arthroscopic procedures to both knees and that both have established osteoarthritis.
Mr Allameddine said he has difficulty with prolonged walking and needs to stop and rest seated during the 700 metre walk from the railway station to the doctors’ rooms he attends. He said he is unable to squat, kneel or climb a ladder or stepladder. He said he has significant pain and difficulty with descending stairs and had to move out of his mother’s two-storey house because of this. He said his knees swell from time to time with prolonged weight bearing.
Table 4 concerns lower limb function and provides:
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of function.
We consider that Mr Allameddine’s knees, assessed together as required by the Table, attract an impairment rating of 10 points. We consider that his restrictions are towards the more severe end of the 10 point category, but are not at present sufficiently severe to qualify for the 20 point category.
Ischaemic Heart Disease
Mr Alladdenine had a stent inserted in 2003 after a blockage in an artery. He has been treated with Lipidor and aspirin and has had both normal and abnormal stress tests following every two years. On 20 May 2011 Dr Donnelly reported that Mr Allameddine was to have another cardiac stress test and on 31 May 2011 Mr Allameddine told the Social Security Appeals Tribunal that he expected to have another angiogram. The results of this were not available. Dr Lee-Shoy reported in support of Mr Allameddine’s claim for disability support pension that he has no chest pain but has poor endurance and cannot stand for too long. Mr Allameddine said he gets angina when he goes shopping and at those times he takes a spray to deal with it.
Given the state of the evidence we are unable to conclude that Mr Allameddine’s ischaemic heart disease has been fully treated or, even if it were, what the measurement of his cardiovascular and/or respiratory function is. We have no results of Exercise ECGs or Respiratory function tests on which we could assess Mr Allameddine’s cardiovascular function according to Table 1. Mr Allameddine maintained that this information could not be obtained from his cardiologist. We must allocate nil points to this condition.
Depression
Mr Allameddine maintained that he has been depressed for more than 10 years. However, he took medication for just seven days because he found it turned him into a “zombie” and he has had counselling as a condition of parole and at the referral of Centrelink, but this has been intermittent. He is having no current treatment.
We do not consider this condition has been fully treated. It follows that it cannot be treated as permanent and cannot be assessed against the Impairment Tables.
Hiatus Hernia
Mr Allameddine said his hernia is controlled by medication and has no effect on him.
Substance Abuse
Mr Allameddine said he has not taken alcohol or drugs since 2000.
It follows that Mr Allameddine has a total impairment rating of 15 points. This falls short of the 20 points required by section 94(1)(b) of the Act.
Given this failure to meet an essential requirement for qualification, it is unnecessary for us to consider whether Mr Allameddine has a continuing inability to work within the meaning of the Act.
DECISION
The decision under review is affirmed
We note that Mr Allameddine tried to obtain additional medical information following the hearing and did provide many additional documents. However, he was unable to obtain information from his cardiologist that would allow us to assess his ischaemic heart disease against the Tables. Also no medical evidence was available as to whether he had any limitation of range of movement in his thoraco-lumbar spine or his cervical spine. In any future claim for disability support pension it may benefit Mr Allameddine to have this information available
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell and Member Dr Couch ....[Sgd]....................................................................
Associate
Dated 26 September 2012
Date of hearing 19 June 2012 Date final submissions received 6 September 2012 Applicant In person Solicitors for the Respondent Mr J Larcombe, Centrelink Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Qualification for DSP
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Impairment Rating
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Impairment Tables
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