Hares and Secretary, Department of Family and Community Services

[2004] AATA 383

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 383

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/983

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mohmoud Hares

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Dr J D Campbell

Date15 April 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Dr J D Campbell

Member

CATCHWORDS

Social Security – Disability Support Pension - Impairments – Assessment – Continuing Inability to work – Decision Affirmed

LEGISLATION

Social Security Act 1991 (Cth), Section 94, Schedule 1B.

REASONS FOR DECISION

15 April 2004  Dr J D Campbell, Member

1.      Mr Mahmoud Hares in this application seeks a review of the Social Security Appeals Tribunal’s (“SSAT”) decision dated 28 April 2003 which affirmed a decision dated 28 February 2002 made by an authorised delegate at Centrelink to cancel payment of Disability Support Pension (“DSP”) to Mr Hares, with the last date of payment being 11 April 2002.  This decision had been reviewed and affirmed by an authorised review officer (“ARO”) in a decision dated 26 September 2002.

Background

2.      Mr Hares was born in Tripoli, Lebanon on 18 September 1958, being the fourth child in a family of six children.  Mr Hares left school at the age of seven years, having attended school for some two years.  At this time his parents divorced, and he commenced cleaning duties in a hairdressing salon, graduating by the age of ten or eleven to tending to beards, shaves and haircuts for small boys.  Because of overindulgence in coffee, Mr Hares was unable to maintain a steady hand, and his services were dispensed with.  Mr Hares then worked in a number of activities, including working in a wood factory, undertaking cement rendering, working in clothing and as a plumber, sanding and spraying furniture and working as a proprietor in a juice and coffee bar.

3.      In December 1984 Mr Hares arrived in Australia, attended an English course, and obtained work as a labourer in a cardboard factory.  Mr Hares suffered an accident in 1986 some five months after commencing work in the cardboard factory, when in the early morning he fell on a broken step at Campsie Railway Station.  Mr Hares believes he fell down some 16 stairs causing injury to his neck and back.  Mr Hares was taken to Canterbury Hospital where he was assessed and discharged the same day.

4.      From the time of his injury Mr Hares was on Sickness Benefit Allowance until 1999 when he was granted DSP.  Mr Hares married in 1992 and he and his wife have three children.  Mr Hares travelled to Lebanon in 1995 and has two sisters and one brother residing in Australia.  Mr Hares is unable to read and/or write in either Arabic or English.  Following a review of his DSP in early 2002, Mr Hares was found to no longer meet the qualifications necessary and his DSP was cancelled with the date of last payment being 11 April 2002.  Following reconsideration in May 2002 and review by an ARO in September 2002 the decision to cancel Mr Hares’ DSP was affirmed.  On 28 April 2003 the SSAT affirmed the decision to cancel Mr Hares’ DSP.

Issues

5.      The relevant issues in this matter are:

(a)      From what impairments, if any, does Mr Hares suffer?

(b)      What is the appropriate assessment of these impairments at the time of the cancellation of his DSP or within 13 weeks of that date?

(c)       Does Mr Hares have a continuing inability to work?

6.      For reasons nominated later in this decision, the Tribunal finds that Mr Hares is unsuccessful, in that, while he suffers from particular impairments, assessment of these impairments has a combined impairment rating of 10 points.  Further the Tribunal considers that he does not have a continuing inability to work.  Accordingly the Tribunal concludes that Mr Hares did not qualify for DSP at the time of cancellation and as such affirms the decision of the SSAT dated 28 April 2002.

Consideration and findings

7.      In addressing the first issue, namely from what, if any, impairments does Mr Hares suffer, the Tribunal, having considered the evidence of Mr Hares and the many medical reports before it concludes that Mr Hares does suffer from the following particular impairments namely, cervical spondylosis, lumbar spondylosis, asthma and pain in both shoulders and left elbow, and a resolving Bell’s Palsy.

8.      In making such a finding the Tribunal has paid particular attention to the treating doctor’s report of 8 December 2001 and the Health Services Adviser’s report of 19 February 2002.  The Tribunal also considered later medical reports and radiological examination reports and in particular the reports of the treating doctor, the treating respiratory physician and the reports of the MRI scan of the cervical and lumbar spine dated 11 April 2003.  The later reports assisted the Tribunal in better understanding the nature of the impairments present at the operative time and during the operative period, namely the 11 April 2002 and for a period of 13 weeks thereafter.

9. The Tribunal therefore concludes that Mr Hares satisfies section 94(1)(a) of the Social Security Act 1991 (“the Act”).

Assessment of Impairments

10.     In addressing the cervical spine impairment, the Tribunal, in noting Mr Hares’ history that his neck pain commenced after his accident in 1986 and involves pain in the back of his neck spreading to his shoulders and up into his head, causing headache, is mindful that Mr Hares states that the pain is continuous, but does not wake him during the night, with humidity and cold weather making it worse.  The Tribunal also notes the MRI report of the cervical spine dated 11 April 2003, which indicates spondylitic changes in the cervical spine.  The Tribunal also notes the treating doctor’s report of 8 December 2001, which while nominating the impairment, fails to record any loss of the normal range of movement of the cervical spine.  The report of Dr Ying, Health Services Advisor of 19 February 2002 describes the neck pain as mild and that Mr Hares had a normal range of movement of the cervical spine.  A further treating doctor’s report by Dr Mahony on 9 July 2002 adds nothing in terms of either the nature of impairment or a record as to the range of movements of the cervical spine at examination.  Subsequent reports by Dr Habib on 26 July 2003 record a loss of one third of the normal range of movement of the cervical spine, while Dr Milad’s report of 1 September 2003 does not record any range of cervical spine movements.

11.     As a consequence of this analysis, the Tribunal concludes that Mr Hares had a normal range of movements of the cervical spine at the time of cancellation of his DSP in April 2002.  In addressing the issue of assessment the Tribunal notes that determination of spinal impairments must be based on a demonstrable loss of function.  Table 5.1 of the Schedule 1B Impairment Tables details a nil rating for normal or nearly normal range of movement of the cervical spine. The Tribunal accordingly finds that Mr Hares has a nil rating for his cervical spine impairment.

12.     In considering Mr Hares lumbosacral spine impairment, the Tribunal notes that it is Mr Hares’ evidence that the low back pain commenced after the 1986 accident, that it is continuous and getting worse, although varying in intensity.  The pain is stated to radiate down both legs to the front of his thighs and to his calves since 1990.  Mr Hares stated that he has difficulty with bending, lifting and dressing.  Mr Hares is able to walk for 15 – 20 minutes, then rest and can walk for another 10 minutes.  Mr Hares is able to drive a car; does not assist with cooking, housework or gardening; goes shopping with his wife on occasions for 15 minutes and spends most of the day resting, while often feeling sorry for himself.  Mr Hares stated that the low back pain sometimes wakes him at night.

13.     The Tribunal notes the treating doctor’s reports (Dr Mahony) of both 8 December 2001 and 9 July 2002, in which he describes Mr Hares lumbar impairment in the following terms:

“low lumbar disc lesion at the L4/5 level with degenerate changes and bilateral L5 nerve root irritation”.

Dr Mahony does record Mr Hares’ symptomology as left leg and back pain, but does not record any movements of the thoraco-lumbarsacral spine.

14.     Dr Ying, Medical adviser, Health Services Australia, records Mr Hares’ symptomology relating to his low back impairment in her report of 19 February 2002, as mostly mild pain, sometimes severe with radiation to his bottom and down to his legs.  Dr Ying also records a more than three quarters range of movement for the thoraco-lumbar spine, and concludes that Mr Hares is unable to undertake heavy lifting and carrying. 

15.     The Tribunal also notes an MRI examination of the lumbar spine of 11 April 2003, which is reported as showing spondolytic changes in the lumbar spine and a broad based annular disc bulge producing a mild impression on the thecal sac and lateral recesses, but no significant canal or lateral recess stenosis at the L4-5 level.

16.     The Tribunal was also referred to a report by Dr Habib of 26 July 2003, which records Mr Hares back movements at 50% of the normal range.  Similarly a treating doctor’s report by Dr Milad of 1 September 2003, records the low back impairment, but makes no record of movements of the thoraco-lumbar spine.

17.     The Tribunal, in considering the various reports, has paid particular attention to those reports which have been prepared during the period leading up to cancellation and for a period of 13 weeks thereafter.  Having done so, the Tribunal defines Mr Hares low back impairment as pain in the lower back radiating to buttocks and both legs, but particularly the left leg, with pain being aggravated by sitting, standing and walking for various periods.  The Tribunal further finds that Mr Hares had a loss of quarter of the normal range of movement of the thoraco-lumbar-sacral spine, and in so doing relies upon the findings at examination by Dr Ying on 19 February 2002 – this being the only relevant recording of such movements in the many medical reports before the Tribunal, until Dr Habib’s report of 26 July 2003.

18.     In addressing the issue of assessment, the Tribunal concludes that in the light of the medical evidence previously nominated and considered, the appropriate impairment rating for Mr Hares low back impairment is 10 points pursuant to Table 5.2 of the Schedule 1B Impairment Tables.

19.     In addressing Mr Hares bilateral shoulder pain and pain in the left elbow, the Tribunal observes that these were not matters much mentioned by Mr Hares at the hearing, nor are they mentioned in Dr Habib’s report of 26 July 2003, but were mentioned in Dr Milad’s report of 1 September 2003.  Nevertheless the Tribunal notes they were nominated in Dr Mahony’s treating doctor’s report of 8 December 2001 with clinical features of pain in shoulders and left elbows and a diagnosis of capsulitis of the shoulders and lateral epicondylitis of the left elbow.  Dr Mahony detailed similar opinions in his treating doctor’s report of 9 July 2002.

20.     Dr Ying in her report of 19 February 2002 details Mr Hares’ history of pain in right trapezius and sometimes right detoid, but no pain in shoulders or elbows.  At examination Dr Ying found no tenderness in either the shoulders or elbows, a full range of movement in the shoulder and elbow joints, and normal strength and digital dexterity of both hands.  Dr Ying also considered earlier radiological reports which showed nothing of significance. 

21.     The Tribunal, having noted an absence of pathology in the radiological report of the left shoulder on 19 January 1998, left elbow on 11 March 1998, left shoulder on 12 August 1998, and ultrasound reports of left shoulder of 12 August 1998 and right shoulder of 8 September 1998, concludes that at the relevant period, namely 11 April 2002 and for a period of 13 weeks thereafter, Mr Hares shoulder and left elbow impairments consisted of intermittent muscle soreness.

22.     In addressing the issue of assessment, the Tribunal concludes that Mr Hares has a nil points impairment rating pursuant to Table 3 of the Schedule 1B Impairment Tables, as there is no loss of function, movement, strength and dexterity of either upper limb.

23.     In approaching the issue of assessment of skeletal conditions, the Tribunal has been mindful that Mr Hares’ main complaint has been one of pain.  The Tribunal has been careful to assess the Mr Hares’ pain symptomology over time and the recording in detail of such by Doctors Ying and Mahony at the relevant period.  Again the Tribunal notes that only Dr Ying recorded an adequate assessment of pain symptomology. 

24.     The Tribunal in assessing the issue of pain symptomology has paid attention to Mr Hares’ description of the various pains, and it is clear that the most troublesome area was the lower back pain.  The Tribunal also noted Mr Hares’ medication history, which was noted by Dr Ying to be Naprosyn and Panadeine on 19 February 2002, while currently, that is at the time of the Tribunal hearing, he was being prescribed Panadeine Forte (one every four hours and two before lunch for the last six to seven months), Tramal 100 mgs once a day for the last six to seven months, Voltaren Gel applied two or three times a day, Somal 40 mgs, one tablet with lunch and Vioxx 25 mgs, one tablet a day, and Whitefields Ointment.

25.     Having reviewed the pain symptomology and the medication prescribed for same, the Tribunal concludes that at the time of the cancellation of the DSP and for 13 weeks thereafter, the evidence points to Mr Hares’ major pain disability as arising from his low back impairment.  Further the Tribunal concludes that that assessment under Tables 5 and 3 of the Impairment Tables is the appropriate method of assessment and does not underestimate the level of disability because of presence of chronic entrenched pain.  The Tribunal, in making such a finding has relied upon the documented findings of Dr Ying and Mr Hares’ evidence which clearly points to the low back pain as being the more significant pain problem, with even this varying in intensity in humid and cold weather conditions.

26.     In assessing Mr Hares’ asthma, the Tribunal notes that Mr Hares told the Tribunal that his asthma was currently reasonably well controlled with medication.  The Tribunal further notes that asthma as a condition was not mentioned in the treating doctor’s report by Dr Mahony on either 8 December 2001 or 9 July 2002, nor was it mentioned in Dr Ying’s report of 19 February 2002, nor in the report of Dr Habib of 26 July 2003 and Dr Milad’s undated report or Dr Gill’s report of 26 February 2004.

27.     However the Tribunal notes there are three reports before the Tribunal from Dr Tam, a consultant respiratory physician.  These reports dated 3 August 2000, 10 March 2001 and 6 August 2003 all record Mr Hares has asthma, that smoking and obesity are compounding factors and that the asthma varies in intensity from acute to quiescent.  Further Dr Tam recommends that Mr Hares remain on Seretide as long term preventative treatment in each of the reports, with the notation that Mr Hares is not persisting with this medication in his report of August 2003.  Further the three reports present clear evidence that Mr Hares does not have significant irreversible lung disease, with Dr Tam considering Mr Hares to have minimal smoking related emphysema (report dated 3 August 2000).

28.     As a consequence of these three reports and Mr Hares evidence, the Tribunal concludes that the treatment of the Mr Hares’ asthma is still being addressed at the time of cancellation of the DSP in April 2002.  As such it is inappropriate for the Tribunal to make any assessment as to Mr Hares’ asthma, because while diagnosed, it has not been optimally treated with further functional improvement occurring if the Seretide medication was taken on a continual basis.

29.     In addressing the impairment of Bell’s Palsy, the Tribunal notes the history of onset and the gradual improvement of symptoms over time, albeit some minor signs of the new impairment remaining.  The Tribunal finds that this condition is a temporary condition and as such no impairment rating can be assessed.  Further the Tribunal would consider it unlikely that any residual disability from the Bell’s Palsy is likely to cause any ongoing functional impairment of significance.  Finally the Tribunal notes that the onset occurred some months after the decision was taken to cancel the DSP.

30. In summary the Tribunal concludes that following an assessment of all Mr Hares’ impairments, the total impairment rating is 10 points pursuant to the Schedule 1B Impairment Tables. As such the Tribunal finds that Mr Hares does not satisfy section 94(1)(b) of the Act and accordingly does not qualify for a DSP at the time of cancellation in April 2002.

31.     Finally the Tribunal observes the various medical opinions as to whether Mr Hares has a continuing inability to work.  Dr Mahony, in treating doctors’ reports dated 8 December 2001 and 9 July 2002 considers Mr Hares unfit for any kind of work for more than two years and that he would be unlikely to benefit from training, education or rehabilitation to the extent of being able to work at least eight hours per week within the next two years.  The Tribunal notes that no reason is specifically stated by Dr Mahony to support his opinion.

32.     Dr Ying in her assessment of 19 February 2002 considers Mr Hares not able to work in his previous labouring type job for more than two years, but is able to return to work forthwith for more than 20 hours per week, and is able to return to face to face study for at least 15 hours per week.  Dr Ying believes Mr Hares  would benefit from educational, vocational and on the job training, and that any work or educational activity should recognise his restrictions relating to repetitive bending, lifting or carrying of heavy objects, and the need to have flexibility of movements and postures.  Other medical reports by Dr Habib, Dr Milad and Dr Gill are of little assistance in carrying the issue further. 

33.     On 14 May 2003, a Work Capacity Participation Assessment Report was made by a Centrelink Psychologist, which clearly detailed Mr Hares’ barriers to economic and social participation, the interventions necessary to help overcome the barriers, and detailed the recommendations which would assist.  The Psychologist considered that Mr Hares could undertake light, less skilled and semi-skilled work for thirty hours or more within two years and these activities would be assisted by educational, vocational and on-the-job training.

34. Having considered the various reports, the Tribunal concludes that Mr Hares does not have a continuing inability to work as defined by subsections 94(2) and (5) of the Act, in that the his impairments are not of themselves sufficient to prevent him from working at least 30 hours per week at award wages or above within the next two years, nor do the impairments prevent Mr Hares from undertaking educational, vocational or on-the-job training during the next two years. In so finding the Tribunal relies on the earlier finding as to total impairment rating, the opinion of Dr Ying, and the Centrelink Psychologist, while placing much less weight on the opinion of Dr Mahony, in the absence of any detailed reasoning as to his opinion.

35. In summary the Tribunal concludes that Mr Hares fails to satisfy section 94(1) (c) (1) of the Act in that he does not have a continuing inability to work as defined by sections 94(2) and (5) of the Act at the time of cancellation. Mr Hares fails to qualify for DSP at the time of cancellation, because the Tribunal has found that he neither satisfies section 94(1)(b) nor section 94(1)(c)(i) of the Act, with the notation that failure to satisfy either would result in failure to qualify for DSP.

Determination

36.     The 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 Sydney

Signed: A. Krilis       
  Associate

Date/s of Hearing  12 March 2004
Date of Decision  15 April 2004
Counsel for the Applicant         Self represented
Counsel for the Respondent     Mr Luke Carter