Halloum and Department of Family and Community Services
[2000] AATA 368
•12 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 368
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1287
GENERAL ADMINISTRATIVE DIVISION )
Re HASSAN HALLOUM
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date12 May 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) DR J D CAMPBELL
..............................................
Member
CATCHWORDS
SOCIAL SECURITY ENTITLEMENTS - Disability Support Pension - application - multiple impairments claimed - assessment of impairments - 20 points or more - continuing inability to work.
Social Security Act 1991 - s94, schedule 1B
REASONS FOR DECISION
Dr J D Campbell, Member
Mr Hassan Halloum ("the Applicant ") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 3 August 1999 which affirmed the decision of an Authorised Review Officer of Centrelink dated 30 April 1999. This latter decision affirmed a decision dated 6 August 1998 by a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") to reject the Applicant's claim for the payment of a Disability Support Pension.
A hearing was held before the Tribunal on 11 January 2000, at which the Applicant was unrepresented. The Respondent was represented by Mr B Slattery, an advocate from the Administrative Law Section of Centrelink. The Applicant presented oral evidence to the Tribunal, which was assisted by the participation of an interpreter fluent in the Arabic language.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Medical Review and Treating Doctor's Report dated 21 January 1999 Medical report of Dr Onsy A Mattar, Consulting Psychologist, dated 30 April 1996 Medical report of Dr Maxine Walden dated 3 December 1999 Medical report of Dr Jane Roberts dated 8 December 1999 Respondent's Statement of Facts and Contentions dated 31 December 1999T1 – T33 PP1 – 122 Exhibit A1 Exhibit A2 Exhibit R1 Exhibit R2 Exhibit R3
ISSUES
The following issues were considered to be relevant in this matter:
(a)whether the Applicant has physical, intellectual or psychiatric impairments;
(b)whether upon assessment, the Applicant's impairments attain a combined rating value of 20 points or more; and
(c)whether the Applicant has a continuing inability to work in that the impairments alone:
(i)prevent the Applicant from undertaking any work for at least 30 hours per week at award wages, or above, within the next two years; and either
(ii)are sufficient to prevent the Applicant from undertaking educational, vocational or on-the-job training during the next two years; or
(iii)despite undertaking such training, the training is unlikely (because of the impairments) to enable the Applicant to do any work within the next two years.
LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) and (5) and the Schedule 1B tables for the assessment of work-related impairment for Disability Support Pension ("Impairment Tables") post 1 April 1998.
BACKGROUNDThe Applicant completed a claim for Disability Support Pension which was received by the Respondent on 26 June 1998 (T4). In the section marked "Work and medical details", the Applicant nominated his disabilities as headaches, shoulder pains, blocked nose and bleeding, dizziness, spinal pain, depression, insomnia and earaches (T5 p48). A treating doctor's report accompanied his claim (T6 p61). On 12 July 1998 the Applicant provided the Respondent with notice of a victim's compensation claim (T7) and on a subsequent date, a copy of an audiometric test dated 11 June 1998 (T8). Medical assessment of the Applicant was undertaken by Dr Thomas, an employed medical practitioner of Health Services Australia, on 13 July 1998 (T9). The Applicant's claim was rejected on 6 August 1998 (T15). Following receipt of further evidence from the Applicant (Cervical Spine X-Ray Report dated 3 December 1998 (T24 p100)), the Respondent undertook a further review and affirmed it's decision on 6 April 1999(T27 p104). Upon the Applicant requesting a further review the Respondent, again affirmed the earlier decision on 30 April 1999(T29 p108). The Social Security Appeals Tribunal also affirmed the decision on 3 August 1999 (T2).
EVIDENCE
Mr Halloum – the ApplicantThe Applicant told the Tribunal that he was born in North Lebanon on 4 May 1944 and was one of 11 children in a family. Further he stated that he had seven to eight years of schooling from which he learnt little and, at age 13, he left school because of his father's death. After leaving school, the Applicant worked as a labourer and a taxi driver in North Lebanon, before coming to Australia in 1974. The Applicant said he was married with six children and has worked in a variety of jobs since his arrival in Australia, including factory work, involving kitchen cupboards (few months), furniture (eight to nine years), and batteries (two to three years), with his last job being with Automatic Springs for nine months in 1991. He stated that he has not worked since 1991 and that movement in jobs occurred because he was either retrenched or the factory closed. Since he lost his last job, he has been looking for work, has visited the Commonwealth Employment Scheme ("CES") at Auburn, but considers he is unable to work, one of the factors contributing to this being his age.
In a discussion of his disabilities, the Applicant stated that he was hit on the head in his driveway in 1996, as well as being hit twice between the shoulder blades. As a result of this assault he was taken to Bankstown Hospital where he received 12 stitches for his scalp laceration, and remained in hospital for four days. On discharge, the Applicant stated he could do little for himself and he stayed home and tried to recuperate.
As a result of his assault the Applicant stated that, at the time of his claim, he suffered from the following disabilities and their nominated clinical features:
(a) headaches: (b) hearing: (c) tinnitus: (d) dizziness: (e) depression: (f) left arm: (g) right inguinal hernia: (h) cervical spine: On top of his head; occur every couple of days, sometimes daily; variable intensity; take a couple of tablets and/or massage; Not very good after accident; has difficulty with raised noise levels; sometimes has pain in ear and sometimes has drops in his ear; Some ringing two to three times per week for a few minutes; Not very often, controlled with medication; had an episode three days before hearing in which "everything is turning around"; difficulty sleeping, may get up at 3am, sit around to 5am – sit in backyard – lays down on couch; gets irritable when something is not right – this happens every day – he stated that he is not a criminal; tearful and seems to be only very sad or very happy; stated that he experiences panic attacks because of the earlier trouble with his neighbour; painful left elbow when lifting, with pain radiating to left wrist. The pain can be continuous especially when sleeping. Able to elevate his arms above his head; saw a doctor about a year ago. No continuing difficulties; neck movements are not restricted but has pain posteriorly and between the shoulders.
The Applicant, in describing his domestic environment and his activities, stated that it is a happy household with no problems, that he sometimes accompanies his wife shopping, drives a car, but not all the time, and rarely does any gardening or anything around the house. He stated he is able to walk for 10 minutes, cannot run, does not fix his car, visits the Mosque each Friday, does not watch much television and is unable to read either Arabic or English. Further, the Applicant stated that he has few friends, does not visit clubs, and sees his brother every one to two weeks.
In response to questions in cross-examination, the Applicant stated that he was seeing Dr Ali some three years before the accident in 1996, and that he may have seen him some six to seven times, with the initial appointment for 45 minutes and subsequent appointments for fifteen to twenty minutes. He has called Dr Ali four times but no-one knows when he is coming back. Further, the Applicant stated that he feels more comfortable with Dr Kanawati, who he sees every couple of weeks and who prescribes him medication for his headaches, ears and insomnia. Finally, he stated that he has not seen Dr Ghabrial for many months.
Medical EvidenceOn 11 June 1998, Dr Ghabrial, an ear, nose and throat surgeon, completed a treating doctor's report (t6) in which he described the Applicant's disabilities and their clinical features and treatment as:
(a) Cochlear and Vestibular Injuries Treatment: (b) Fractured Nose – Traumatic Deviation of Nasal Septum Treatment: . drop in level of hearing . tinnitus . giddy attacks Vasodilators, Cochlear sedatives . nasal blockage . nose bleeding . frontal and parietal headaches . dryness of mouth and discomfort back of throat Antibiotics and nasal decongestants.
In commentary, Dr Ghabrial stated that the Applicant cannot work in noisy places or do jobs that need balance and that the Applicant's work ability was significantly affected in all respects (T6 p58).
On 13 July 1998, Dr Thomas, a Health Services Australia medical practitioner, examined the Applicant and reported that the Applicant was alert and orientated and that he answered all questions through an interpreter. Further, the Applicant was considered to have a depressed mood but was reactive and had a good memory for short and long term events, and no evidence of psychotic features. Dr Thomas found the Applicant to have a full range of neck movements, shoulder and arm movements with good power in arms and hands. Dr Thomas, in noting the treating doctor's report on the Applicant's work ability concluded that, in his opinion, these responses were excessive (T9 p70).
As a result of his examination, Dr Thomas nominated an assessment for each of the following permanent conditions (T9 p48):
Vertigo Tinnitus Bilateral loss of hearing Deviated nasal septum Neck and shoulder pains Depression has to sit during episodes – lasts 10 minutes – occurs three times a week – well between episodes – severity two; intermittent – no independent functional impairment, but reduces hearing capacity in noisy environment; hears normal conversation well – states he has some difficulty in noisy environment; Audiogram results 13.7 binaural loss (T13 p85); intermittent headaches and nose bleeds causes no functional impairments; full range of movements and good functional abilities; sleeps poorly and concentration affected – maintains normal contact with family and friends (T9 p49). Assessment Table 21-4 10 points Table 20 Nil points Assessment Table 12 Nil points Table 20 Nil points Table 20 Nil points Temporary medical condition
As a consequence of his assessment, Dr Thomas considered that the Applicant has currently a capacity to work for 30 hours per week in light skilled, semi-skilled or less skilled categories of work and further that the Applicant's impairments do not prevent him or affect his ability to participate in an educational or vocational training program during the next two years.
Dr Thomas stated clearly that the Applicant's audiogram results, nominated as being performed by Dr Ghabrial's on 11 June 1998, (T8 p64) were not in conformity with Dr Ghabrial records, when he checked with Dr Ghabrial on 23 July 1998. At this time Dr Ghabrial stated that the Applicant had a 13.7 per cent binaural hearing loss, not a 93 per cent binaural hearing loss as represented by the audiogram results of 11 June 1998, a report for which Dr Ghabrial could offer no explanation as to how it came into existence (T13 p85).
A report dated 30 September 1998, was received from Dr Osman Ali by the Respondent which stated that the Applicant has a clear history of depressive disorder starting in 1995, in which he suffered from diurnal variation, negative moods and slowing down. Dr Ali concluded that, as a result of psychomotor retardation, the diagnosis was one of a major depressive disorder. In a further report of 20 August 1999, Dr Ali detailed a history which stated that the Applicant is depressed partly due to his chronic illness, that the Applicant's mood has been characterised by despondency and panic attacks, that his cognitive function was affected by periods of depression and that his well being has been disturbed with loss of confidence and frequent feelings of inadequacy. Dr Ali, on this occasion, made no definite diagnosis but concluded that the Applicant had a 30 per cent impairment rating under Table 6 of the Schedule 1B post April 1998 Impairment Tables, although enclosed with his report was Table 7 of the pre April 1998 Impairment Tables (T33).
In a report dated 30 April 1996, Mr Mattar, a consulting psychologist, stated that the Applicant was suffering from acute reactive stress, depression, phobic reaction to people and inability to relax, and also impairment to his memory and concentration (Exhibit A2).
In a report dated 3 December 1999 Dr M Walden, a consultant psychiatrist, stated that a mental state examination of the Applicant revealed no psychomotor agitation or retardation, no suicidal ideation and no features suggestive of psychosis, although the Applicant did describe some fluctuation in his mood and energy level. In Dr Walden's opinion, the Applicant's:
"… mental state examination was normal and not consistent with any psychiatric illness. In particular, I do not consider that he suffers from a depressive illness, an Adjustment disorder or Post Traumatic Stress Disorder.
There does not appear to be any particular restriction in Mr. Halloum's day to day activities. I do not think he has a psychiatric diagnosis and consider him fit for his usual work with a minimum of 30 hours per week, should he choose to do so." (Exhibit R1)
In a further treating doctor's report dated 20 January 1999, Dr Kanawati nominated the Applicant's disabilities as cervical and lumbar disability and severe depression, both conditions being stable with a guarded prognosis (Exhibit A1).
Dr T Ruut, a consulting radiologist, in a report on an x-ray of the Applicant's cervical spine dated 3 December 1998 stated:
"Longstanding degenerative changes are noted in the disc between C5, C6 and C7. There is disc space narrowing and osteophyte formation at these levels with some narrowing of the foramina on both sides with nerve root compression. The remaining cervical vertebrae and discs are normal.
CONCLUSION: CERVICAL SPONDYLOSIS." (T24 p100)
SUBMISSIONS
The Applicant, while stating that he had had enough of doctors, contended that his impairments should have a combined rating of 20 points or more, that he had a continuing inability to work because of his impairments, and that his claim for Disability Support Pension should be granted.
The Respondent argued that the Applicant's combined impairment rating was less than 20 points and that he did not have a continuing inability to work and, accordingly, the Applicant does not qualify for payment for Disability Support Pension.
CONSIDERATION AND FINDINGSThe Tribunal, in considering this matter, notes the following relevant legislation, namely subsections 94(1) in part, (2), (3), (4) and (5):
"94 Qualification for disability support pension
94(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
94(2)A person has a continuing inability to work because of an impairment 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 2 years.
94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:(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."
The Tribunal notes that the date of receipt of the application in this matter was 26 June 1999, and in accordance with subsection 100(3) of the Act, the Tribunal must restrict its considerations to matters particular to the claim and for matters raised within three months of the date of receipt of the claim by the Respondent. While medical evidence and evidence from the Applicant and others as to the current status of his impairments may be presented in evidence, such evidence can only be of qualified assistance to the Tribunal, in that the Tribunal can only make use of such evidence where it has a particular bearing in assisting the Tribunal to better understand the nature of the impairments nominated, their clinical features and their assessment at the operative period.
In considering the Applicant's history, the treating doctor's report, the report of Dr Thomas, the reports of Dr Ali and the report of Dr Walden, the Tribunal finds, as a result of this evidence, that the Applicant has the following impairments with their associated clinical features at the relevant time in question:
(a) Vertigo: (b) Tinnitus: (c) Bilateral loss of hearing: (d) Deviated nasal septum: (e) Neck and shoulder pain: (f) Depression: occurs two to three times a week, episodes last 10 minutes, has to sit down during an episode, well between episodes; intermittent, no independent functional impairment, reduces hearing capacity in noisy environment; hears normal conversation well, difficulty in hearing in noisy environment, binaural hearing loss of 13.7; intermittent headaches and nose bleeds; pain in neck posteriorly and between shoulder blades, full range of movement of neck and upper limbs; sleeps poorly and concentration affected, maintains normal relationships, accompanies his wife shopping, happy household with few problems, mood variation.
As a consequence of the Tribunal's definition of the Applicant's impairments, the Tribunal further finds that the Applicant satisfies subsection 94(1)(a) at the relevant period of time.
In assessing each of the impairments, at the relevant period, the Tribunal has given consideration to the clinical features found to exist for each impairment nominated, and further to the assessments of Dr Thomas and Dr Ali (where relevant). Accordingly, the Tribunal finds for each impairment the following assessment:
(f) Vertigo: (g) Tinnitus: (h) Bilateral hearing loss: (i) Deviated nasal septum: (j) Neck and shoulder pain: (f) Depression: an impairment rating of 10 points using Table 21.4 in that the Tribunal considered this impairment to have a severity rating of 2 (Table 21.1), a short duration (Table 21.2), a severity level grading code of C (Table 21.3); an impairment rating of nil points under Table 20, in that there is no functional impairment; an impairment rating of nil points under Table 12 as binaural hearing loss is 13.7; an impairment rating of nil points under Table 20 in that there is no functional impairment; an impairment rating of nil points under Tables 3, 4, 5 and 20 as there is full range of movements of neck and limbs and good functional abilities; and an impairment rating of nil points under Table 6. In making such a finding, the Tribunal notes the clinical features of the depression as defined by the Applicant and those noted by Dr Thomas at the relevant time. Further the Tribunal, in noting that the Applicant had seen Dr Ali in 1995 and thereafter on six or seven occasions and had received medication (which he stopped) from Dr Ali at that time, and also by Dr Mattar in April 1996, is of the view that the clinical symptomatology so dramatically described in Dr Ali's reports is not consistent with the portrayal of his symptomatology concerning this impairment by the Applicant, Dr Thomas and latterly by Dr Walden. As a consequence the Tribunal concluded that the depressive impairment at the operative time period was causing very mild symptoms of minor mood variation and mind difficulty with concentration at the relevant time. Further, the Tribunal would comment that with the added opinion of Dr Walden, it would appear that the Applicant's impairment may well have been a continuum of an adjustment disorder, with depressive symptomatology, that was rapidly improving at the time that Dr Thomas formulated his opinion (and this is reinforced by the opinion of Dr Mattar in April 1996) and, accordingly, it could be equally argued that his decision to consider this to be a temporary condition and hence not award a disability rating was correct. In either circumstance, the Applicant's combined impairment rating does not increase.
As a consequence of the Tribunal's findings, the Applicant has a combined impairment rating for all his impairments of 10 points. As this is less than the 20 or more points necessary, the Tribunal finds that the Applicant does not satisfy subsection 94(1)(b) of the Act.
For completeness, the Tribunal, in considering whether the Applicant has a continuing inability to work, again notes the history and clinical features of the impairments as described by the Applicant, Dr Ghabrial, Dr Thomas, Dr Ali and Dr Walden, and finds that, at the relevant period of time, the Applicant's impairments did not prevent him from undertaking work at 30 hours per week at award wages or above in a variety of light skilled, semi-skilled or lesser skilled capacities. In arriving at such a finding, the Tribunal has given weight to the nature and extent of the Applicant's impairments and the opinion of Dr Thomas where he states:
"Spoke well today, had good mobility & strength in hands/arms & was able to hear normal conversation well. Has vertiginous attacks only 3 times a week for ten minutes a time (total 30 minutes a week). This would not prevent appropriate work." (T9 p75)
Further, in arriving at such a finding, the Tribunal noted that Dr Ghabrial stated that the Applicant's impairments only affected his ability to work in the following circumstances:
"Can't work in noisy places.
Can't do jobs that need balance." (T6 p59)
The Tribunal found that Dr Ghabrial's assessment of the Applicant's work ability appeared to be both in conflict with his earlier statements (noted above) and the observations and opinions of Dr Thomas (referred to in paragraph 30), and further seemed to portray an unreal assessment of the Applicant's work limitations. It is for these reasons, that the Tribunal placed little weight on Dr Ghabrial's opinion as to the Applicant's work ability.
Similarly, the Tribunal had particular difficulty with Dr Ali's assessment and opinion (T33) for, on the evidence given to the Tribunal by the Applicant, it is evident that Dr Ali's report is concerned with matters and assessments in 1995 and visits by the Applicant on six and seven occasions thereafter. There is no evidence that the report, although dated 20 August 1999, has particular significance to the operative period in question and, accordingly, the Tribunal was not in a position to place any weight on the report, particularly in the light of a further report by another consultant psychiatrist, Dr Walden, who on 3 December 1999 reported that in her opinion there was no evidence of any psychiatric illness in the Applicant (Exhibit R1).
It is for these reasons that the Tribunal has found that the Applicant's impairments are not of themselves sufficient to prevent him from undertaking work within the next two years.
Similarly, the Tribunal concludes that for the very same reasons enumerated in relation to the Applicant's ability to work, his impairments are not of themselves sufficient to prevent him undertaking educational, vocational or on-the-job training during the next two years. Further, such training (because of his impairments) is likely to enable the Applicant to do work within the next two years.
As a consequence of the Tribunal's findings in relation to the Applicant's ability to work, the Tribunal finds that the Applicant does not satisfy subsection 94(1)(c)(i) in that the Applicant has failed the continuing inability to work test nominated in subsection 94(2) in that he has failed to satisfy either subsection 94(2)(a) or 94(2)(b)(i) or (ii). Finally, the Tribunal finds that the Applicant has failed to satisfy the qualifications for Disability Support Pension in that subsections 94(1)(b) and (c)(i) have not been met.
DETERMINATIONThe Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate of Hearing 11 January 2000
Date of Decision 12 May 2000
Solicitor for the Applicant Applicant unrepresented
Advocate for the Respondent Mr B Slattery, Centrelink
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