Hallak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 942

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1512

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MOUHAMAD HALLAK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date22 October 2008

PlaceSydney

Decision The decision under review is affirmed

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

Dr I Alexander
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – functional capacity – impairment rating – cervical spine – lumbo-sacral spine – Applicant’s impairment rating did not reach 20 points – decision under review affirmed

Social Security Act 1991 – Section 94, Schedule 1B

REASONS FOR DECISION

22 October 2008 Dr I Alexander, Member    

1.      Mr Hallak was granted a Disability Support Pension (DSP) in March 1999. He left Australia in January 2005 and in April 2005 his DSP was cancelled. On returning to Australia in May 2006 he lodged a new claim for DSP which was restored on 8 May 2006 on the basis that he had been in receipt of DSP prior to his departure from Australia and pending the determination of his fresh claim.

2.      Following a review of the new claim Centrelink cancelled Mr Hallak’s DSP as from 13 July 2006 on the grounds that his impairment rating according to the Impairment Tables in the Social Security Act 1991 (the Act) did not reach the required threshold of 20 points.

3.      Centrelink’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 13 October 2006 and Mr Hallak seeks review of this decision in the current proceedings.

4.      Mr Hallak was not represented at the hearing on 11 September but was assisted by an Arabic interpreter.

ISSUES

5.      Section 94 of the Act sets out the requirements for DSP, and in order to qualify Mr Hallak needed to meet the following criteria on the date his DSP was cancelled on 13 July 2006:

·he must have had a physical, intellectual or psychiatric impairment (s 94(1)(a)) and;

·his impairment rating was required to be 20 points or more under the Impairment Tables (s 94(1)(b)) and;

·he must have had a continuing inability to work (s 94(1)(c)).

EVIDENCE

6.      On his claim form of 19 May 2006 Mr Hallak listed his disabilities as “lumbosacral disc” and “cervical spine disc”. 

7.      The Treating Doctor’s Report (TDR) provided by Dr Selim listed “lumbosacral disc lesion” and “cervical spine disc lesion” as conditions which had a significant impact on Mr Hallak’s function, but provided no assessment as to functional impairment .

8.      The report also listed “duodenal ulcer” and “depression” as conditions that were generally well managed and had minimal impact on ability to function.

9.      Mr Hallak’s oral evidence was that he had suffered pain in the neck and back since a car accident in 1992. The pain in his neck was present most of the time and often radiated to his head. The pain in his lower back occurs with lifting and when he stands or sits for more than half an hour, and intermittently radiates to the back of his legs.  Treatment for his pain includes ‘Celebrex’ and paracetamol.

10.     Mr Hallak claimed to suffer from depression for a “long time” and has been treated with antidepressant medication which he takes intermittently.  He said that the medication calms him down and makes him feel better when he is agitated or angry.  While he was overseas he had ceased the medication.

11.     Mr Hallak said that he has had intermittent problems with stomach pain sometimes associated with dizziness. His treatment includes oral ‘Zoton’ and occasional ‘Mylanta’.

12.     Mr Hallak also complained of intermittent problems with his left shoulder and left hip, for which he receives no treatment apart from occasional massage.

13.     Mr Hallak indicated that he did not require any assistance with personal care, was able to drive his car and could use public transport. He also indicated that he does not do any housework or gardening but does spend a lot of time transporting his wife and eight children who are aged between 2 to 19 years.

14.     On 16 October 2000 Dr Carrick performed an endoscopy and reported her findings as “duodenitis but no active duodenal ulcer” and “oesophageal ulceration and candidiasis at the lower end and in the mid-oesophagus”. Treatment   recommended included ‘Zoton’ daily and ‘Fungilin’ lozenges.

15.     The report of a CT scan of the cervical spine dated 12 July 2006 noted “mild degenerative disc disease in the upper cervical spine, which is not resulting in any significant canal or neural exit foraminal narrowing”.  A CT scan of the lumbar spine done on the same day revealed “degenerative disc disease and facet joint disease”.

16.     An ultrasound examination of the left hip and left shoulder performed on the 27 July 2006 revealed an appearance “suggestive of chronic femoroacetabular impingement” and “probable tendinosis or a small partial thickness undersurface tear involving supraspinatus tendon anteriorly. Subacromial bursitis”.

17.     In a report written to Mr Hallak’s general practitioner dated 17 August 2006, Dr Maniam noted that Mr Hallak complained of neck pain, left shoulder pain, lower back pain since 1993 following a motor vehicle accident, and pain in the left hip for 4 to 5 years.

18.     On examination he noted that Mr Hallak was not in pain and that his stance and gait were normal.  Neck movements were satisfactory, lumbar spine movements were normal and there was some restriction in movement of the left hip but no neurological abnormalities. Examination of the left shoulder revealed some tenderness anteriorly but movements were satisfactory.

19.     Dr Maniam diagnosed degenerative disease in the cervical and lumbosacral spine, impingement in the left hip and supraspinatus tendinosis in the left shoulder. He recommended treatment with ultrasound guided cortisone injections and medication (‘Celebrex’). There is no evidence before me as to whether Mr Hallak did in fact have any injections.

20.     In a work capacity assessment report dated 20 June 2006 a psychologist examined Mr Hallak and assigned an impairment rating of 5 points for cervical spine disc lesion under Table 5.1 on the basis of a loss of ¼ normal range of movement (ROM). She also assigned nil points under table 5.2 for lumbo-sacral disc lesion on the basis of normal or near normal range of movement.

21.     It was not entirely clear how the assessor reached her conclusion as in the reasons for supporting the impairment rating she stated that the “customer demonstrated approximately ¼ loss in ROM of the thoraco-lumbar spine” with no mention of the cervical spine.

22.     In a Job Capacity Assessment Report dated 21 February 2007 a physiotherapist examined Mr Hallak and assigned 5 points under Table 5.1 for cervical spine function on the basis of a voluntary demonstration of ¼ loss of ROM by Mr Hallak at the time of the assessment. He also assigned nil points under table 5.2 for thoraco-lumbar spine function on the basis that although the customer demonstrated ½ normal loss of ROM in flexion and ¼ loss of ROM in extension there was no loss in rotation or lateral flexion, therefore, the whole rating of loss of ROM for the thoraco-lumbar spine was less than a ¼.

23.     In a report dated 12 July 2007, Dr Guirgis, Othopaedic Surgeon, noted that on examination he found 25% restriction of movements of the cervical spine and 35% restricted range of movement of the lumbar spine. He assigned an impairment rating of 5 points for the cervical spine under table 5.1 and 10 points for the lumbar spine under Table 5.2.

24.     Dr Guirgis also assigned an impairment rating of 10 points for depression and adjustment disorder under Table 6.

25.     In December 2007 Mr Hallak was reviewed by Dr Pillemer, orthopaedic surgeon, at the request of his then Legal Aid solicitor.

26.     Dr Pillemer’s report was not made available by Mr Hallak and in May 2008 a summons was issued by Centelink to produce the report.

27.     At an Administrative Appeals Tribunal direction’s hearing in June 2008 it was decided that litigation privilege applied to the report and it was not produced.  I can only infer that the report was not favourable to Mr Hallak.

CONSIDERATION

28.     It is clear from the evidence that Mr Hallak suffers from a number of medical conditions that have been diagnosed and treated and cause him some impairment.

29.     What is not so clear is whether these conditions have resulted in sufficient functional impairment, at the relevant date of 13 July 2006, to meet the requirements of s 94 of the Act in order to qualify for DSP.

30.     Schedule 1B of the Act provides various Tables to be used for the assignment of an impairment rating when assessing eligibility for DSP.

31.     The Introduction to Schedule 1B states that a rating can only be assigned to conditions that have been fully documented and diagnosed as well as being investigated, treated and stabilised.  In addition, the conditions must be considered permanent, which means lasting for more than two years and unlikely to show functional improvement with or without treatment within 2 years.

32.     In Mr Hallak’s case the conditions that fulfil these requirements include the degenerative disease of the cervical spine and the degenerative disease of the lumbo-sacral spine.

33.     There is insufficient evidence before me to be satisfied that the symptoms Mr Hallak described with regard to his left shoulder and left hip could be considered as conditions that are fully documented, diagnosed and treated. Therefore, an impairment rating cannot be assigned.

34.     The cause of Mr Hallak’s current abdominal symptoms is not clear. The endoscopy done in 2000 did in fact not reveal a duodenal ulcer as claimed in the TDR of 18 May 2006. 

35.     There is no other evidence before me to support a conclusion that in July 2006 Mr Hallak had a diagnosable gastrointestinal condition.

36.     Furthermore, I note that there was no mention of any gastrointestinal condition in Dr Selim’s TDR dated 27 March 2003, or in a Centerlink Medical Assessment Report  by  Dr Verma dated 30 July 2003.

37.     The issue of Mr Hallak’s claimed depression is also problematic. The diagnosis appears to have been made sometime after his motor vehicle accident in 1993 and from the available evidence his treatment with antidepressant medication could best be described as erratic, with no apparent consistent medical supervision.

38.     Even If I did accept that the claimed condition of depression did fulfil the required criteria for the assignment of an impairment rating, Mr Hallak’s own evidence and the TDR would only support a rating of nil under Table 6.

39.     I note that Dr Guirgis assigned an impairment rating of 10 points under Table 6 for “depression/adjustment disorder”.

40.     Dr Guirgis did not provide a satisfactory explanation for his opinion and I note that as an orthopaedic surgeon his expertise is clearly not in the area of psychiatric disorders. Also, as I have already concluded above that the evidence only supports a rating of nil points, I have placed little weight on his opinion on this issue.

41.     On three occasions Mr Hallak had been assessed with an impairment rating of 5 points under table 5.1 with respect to his cervical spine condition on the basis of a loss of ¼ of the normal ROM.

42.     Also as Dr Maniam had noted in August 2006 that the neck movements were satisfactory, but did not say that they were normal, I am satisfied that the evidence supports a conclusion that the correct impairment rating for Mr Hallak’s cervical spine condition is 5 points.

43.     The assignment of an impairment rating for Mr Hallak’s lumbo-sacral spine condition is problematic as the evidence is somewhat inconsistent.

44.     In June 2006 a Job Capacity Assessor (JCA) assigned nil points despite having found a loss of ¼ normal ROM of the lumbo-sacral spine.

45.     In August 2006 Dr Maniam found the Mr Hallak’s lumbar spine movements were normal, whereas in July 2007 Dr Guirgis found restricted range of movement of 35% and assigned 10 points under Table 5.2.

46.     In February 2007 a JCA described a loss of ROM but found it to be less than a ¼ of normal and therefore assigned nil points.

47.     I can only speculate as to why there has been such variation in the assessments, and I will proceed on the assumption that the impairment rating for Mr Hallak’s  lumbo-sacral spine condition is 10 points under Table 5.2.

48.     It follows that Mr Hallak’s total impairment rating is only 15 points and, therefore, he has not reached the threshold of 20 points required by s 94(1)(b) and does not qualify for a DSP.

49.     As s 94(1)(b) has not been satisfied, it is not necessary to consider whether Mr Hallak has a continuing inability to work.

DECISION

50.     For the above reasons I have decided:

(i) On 13 July 2006 Mr Hallak’s impairment rating did not meet the requirements of s 94(1)(b) of the Act and therefore he was not qualified for DSP.

(ii) The reviewable decision is affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed:         ........................[sgd]........................................................
  Mr T Aviram, Associate

Date/s of Hearing  11 September 2008
Date of Decision  22 October 2008 
Advocate for the Applicant       Self-represented             
Solicitor for the Respondent     Ms S Mantaring, Centrelink Legal Services