Hassan and Secretary, Department of Family and Community Services
[2004] AATA 307
•25 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 307
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1195
GENERAL ADMINISTRATIVE DIVISION ) Re SALIME HASSAN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms J A Shead, Member Date25 March 2004
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Ms J A Shead
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – whether applicant has continuing inability to work
Social Security Act 1991 - sections 94; 100(3)
REASONS FOR DECISION
Ms J A Shead, Member 1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was a decision made by a Centrelink delegate of the Secretary of the Department of Family and Community Services (“the Department”) on 20 March 2002 (T10) to refuse a claim for disability support pension (T6) by Mrs Salime Hassan (“Mrs Hassan”), as reviewed and affirmed by an Authorised Review Officer (“ARO”) on 28 May 2002 (T25). On 11 July 2002 the Social Security Appeals Tribunal (“the SSAT”) affirmed that decision (T2).
2. A hearing was held before the Tribunal at which Mrs Hassan gave oral evidence to the Tribunal. An accredited interpreter in the Arabic language assisted the Tribunal during the evidence of Mrs Hassan. A departmental advocate, Ms Garcia, represented the Department.
2. The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T documents”, T1 – T26). The following exhibits were also tendered to the Tribunal:
Exhibit
Description
Date
A1
Dr Medhat Guirgis
10 December 2002
A2
Dr Shane Connolly
14 January 2003
R1
Amended Statement of Facts & Contentions
21 January 2003
R2
Dr David Keen
9 January 2003
R3
Dr K Attia-Solomon
29 May 2001
R4
Tables for the Assessment of Work-Related Impairment for Disability Support Pension
R5
Centrelink letter to Senior Medical Officer Health Services Australia
18 December 2002
3. By way of background, the Tribunal extracts the history of the matter from the SSAT decision:
“1. Mrs Hassan lodged a claim for disability support pension with Centrelink on 1 February 2002. She was examined by a Health Services Australia medical adviser on 22 February 2002 who found that she had an impairment rating of 5 points. On that basis, her claim was rejected on 20 March 2002. Mrs Hassan provided further medical information which was considered by the original decision-maker on 24 April 2002 who determined that the decision was correct. Mrs Hassan requested a review by an authorised review officer and on review, she affirmed the decision on 28 May 2002. Mrs Hassan lodged an appeal with the Social Security Appeals Tribunal on 11 June 2002.
2. The authorised review officer, in considering this appeal, noted that Mrs Hassan suffered from neck pain, back pain and leg pain. She discussed Mrs Hassan’s medical conditions by telephone on 27 May 2002 and following that discussion, agreed with the Health Services Australia medical adviser that Mrs Hassan’s neck pain attracted an impairment rating of 5 points under Table 5.1. She noted that a report from Dr Giurgis described Mrs Hassan’s limitations of normal movement in her back pain as 30% which contrasted with the findings of the Health Services Australia medical adviser that there was normal range of movement in Mrs Hassan’s thoracolumbar spine. This report of Dr Guirguis was provided subsequent to the initial rejection of Mrs Hassan’s claim. She preferred the findings of the Health Services Australia medical adviser and agreed that the correct impairment rating for Mrs Hassan’s back pain was 0 points under Table 5.2. In addressing Mrs Hassan’s leg pain, the authorised review officer noted the evidence from Dr Guirgus that there “was evidence of long and short saphenous varicosities, more so in the right leg then the left leg”. The Health Services Australia medical adviser didn’t consider that there
was evidence of venous insufficiency in Mrs Hassan’s leg, however on the basis of Mrs Hassan’s evidence that she had had an operation on her leg for her veins about eighteen months previously, the authorised review officer changed the impairment rating allocating 10 points under Table 4 for Mrs Hassan’s leg pain, thus giving a total impairment rating of 15 points. As this rating was still below the required 20 points, Mrs Hassan did not satisfy the requirements to qualify for the granting of a disability support pension.” (T2)
4. The SSAT did not alter that decision, for the reasons set out in paragraphs 22 to 26 of its decision:
“22. Under Section 94(1)(b) of the Act, a medical condition must attract a combined impairment rating of at least 20 points according to the Impairment Tables set out in Schedule 1B of the Act.
23. The tribunal agrees that the correct impairment rating for Mrs Hassan’s neck pain is 5 points under Table 5.1 – Loss of one quarter of normal range of movement.
24. The tribunal considers that the correct impairment rating for Mrs Hassan’s back pain is 10 points under Table 5.2 - Loss of one quarter of normal range of movement as well as back pain or referred pain with many physical activities. In reaching this conclusion, the tribunal notes that Dr Guirgis has found a loss of normal range of movement of 30% and that on the evidence provided by Mrs Hassan and the findings of the Health Services Australia medical adviser, that this pain radiates down to both legs.
25. On the evidence before it, the tribunal considered that Mrs Hassan’s leg pain was a result of her back pain. The medical evidence is unconvincing that her varicose veins condition for which there is little evidence contributes a reason to allocate an additional impairment rating under Table 4. In this respect, the tribunal disagrees with the reasoning of the authorised review officer. Thus the tribunal finds that the correct impairment rating under Table 4 is 0 points.
26. Thus Mrs Hassan’s total impairment rating is 15 points. Therefore she does not satisfy Section 94(b) of the Act. This means she does not qualify to be paid disability support pension. It is therefore necessary for the tribunal to address the issue of whether Mrs Hassan has a continuing inability to work as required by Section 94(1)(c)of the Act.” (T2)
5. In the Application for Review to the Tribunal for review of the SSAT decision, Mrs Hassan’s reasons for the Application were:
“The decision to appeal is based upon the unfair and bias assessment of my degenerative back condition by the HAS doctor.
Assessment was made based on informed examinations, that are not proper indicators of back movement. Having been formally examined by Dr Guirgis, a bone specialist, 30% restriction of back movement with associated muscle spasm on exceeding that range was observed. This condition rated 10 points making my total points in excess of 20.
The pain in my back is the root cause of the pain experienced in my leg and restricts my functional capacity. Also my shoulder is giving me severe pain. I am grateful for your review of my decision to appeal.
Kind Regards, Salime Hassan.
I became depressed and I was referred to a psychiatrist (Dr K Soliman) and will see her on 10.9.2002.” (T1)
ISSUES BEFORE THE TRIBUNAL
6. The issues in this matter relate to whether or not Mrs Hassan is qualified to receive a disability support pension, and in particular:
(i)whether Mrs Hassan has a physical, intellectual or psychiatric impairment; and if so whether Mrs Hassan has an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”), as required by subsection 94(1)(b) of that Act; and if so,
(ii)whether Mrs Hassan has a continuing inability to work as required by subsection of 94(1)(c) of the Act because –
the impairment itself prevents her from doing any work for at least 30 hours per week at award wages within the next 2 years; and either
the impairment of itself is insufficient to prevent her form undertaking educational or vocational training or on the job training during the next 2 years; or
such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next 2 years.
LEGISLATION
7. The legislation relevant to the Tribunal’s determination of this matter is section 94 of the Act, which sets out the qualification for a disability support pension. It relevantly provides:
"94. Qualification for disability support pension
(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;
…
(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 form 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.
Note: For ‘work’ see subsection (5).
(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.
(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 the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
(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.…”
8. To qualify for a disability support pension all three subsections of section 94 of the Act must be satisfied.
9. In general terms, the impairment rating is determined under Schedule 1B of the Act and the “continuing inability to work” is determined by reference to subsections 94(2), (3) and (5) of the Act.
10. Also, pursuant to section 100 of the Act, the Tribunal has to consider the claimed conditions on the day on which the claim for disability pension was lodged and for a period of three months starting immediately after the day on which the claim was lodged. Section 100 of the Act (effective at the time of the original decision), deals with the commencement day for disability support pension and relevantly states:
“100. Early claim
…
(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 the first day on which the person is qualified for the pension and is an Australian resident and in Australia.”
EVIDENCE
11. Mrs Hassan told the Tribunal she had never worked. She had looked after her 4 children, now aged in their twenties. She lived with her husband who had suffered an injury to his hand. She understood he received a pension but did not know what kind.
12. In evidence as to how her conditions affected her, Mrs Hassan told the Tribunal that about 4 to 5 years ago she started to have back pain and did not know what caused the pain. She stated it travelled down her right leg and she complained she could not feel her leg. Also Mrs Hassan said she had experienced abdominal pain over the last 15 years.
13. Mrs Hassan denied that she could do anything around the house. She told the Tribunal she needed someone to assist her showering. Her daughter and daughter-in-law did the household cooking although her children often ate outside the home. Mrs Hassan told the Tribunal that when the pain was severe she would sit down. Her doctor had advised her to walk around. She could walk for about 10 minutes at a time and then needed to lie down.
SUBMISSIONS
14. Except to say she was in pain and wanted it to be taken into consideration, Mrs Hassan did not make any further submissions in support of her Application for Review.
15. On behalf of the Department, Ms Garcia conceded that Mrs Hassan had permanent conditions including back pain, neck pain and leg pain that satisfied section 91(1)(a) of the Act. It was also conceded that those conditions warranted the following impairment ratings and for reasons summarised as follows:
Condition
Table
Rating points
Summary
Neck pain
5.1
5
Health Services Australia medical adviser found ¼ loss of range of movement, and that was agreed by Dr Guirgis (Exhibit A1).
Low back pain
5.2
10
On the evidence of Mrs Hassan, the report of Health Services Australia, and Dr Guirgis who opined loss of 30% of the normal range of movement in the lower back and pain that radiates down both legs but more painfully down the right leg (Exhibit A1).
16. Concerning the leg pain, it was contended it is the result of the back pain and not separately assessable.
17. Concerning the abdominal pain, the Department relied upon Health Services Australia Dr L Law’s opinion of 22 February 2002 that Mrs Hassan had a hysterectomy and that Mrs Hassan had no symptoms (T9).
CONSIDERATION OF THE ISSUES
18. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and the legislation.
19. Mrs Hassan gave evidence and was cross-examined.
20. The Tribunal is only able to consider the condition disclosed in Mrs Hassan’s original claim for disability support pension. The Tribunal considered the conditions claimed as considered by the SSAT that is neck pain, back pain, and abdominal pain (T5/48).
21. Having reviewed the material and heard the oral evidence of Mrs Hassan, the Tribunal accepted the impairment ratings submitted on behalf of the Department as set out in paragraphs 15, 16 and 17.
22. Dr Guirgis opined the lower leg function warranted 10 points from table 4 (T13) however the Tribunal noted from the report of Dr Law:
“Informally on examination she had a normal gait and walked an average pace. There was no limitation to her back movements or evidence of unsteadiness or loss of balance. On formal examination however, she refused to bend for the fear of falling over (after casually observing that she was able to bend forward in the chair to pick up her medications form her bag). Her right knee flexion was markedly restricted. There was no evidence of any knee deformity or swelling. She had also been sitting in a slouched position with her truck leaning towards her left side. There appears to be a certain amount of exaggeration of her symptoms as evident by the marked inconsistencies between casual observation and formal testing. There does not appear to be any significant functional impairment related to her back or legs.” (T9)
23. Given the inconsistency between the informal observations by Dr Law and the formal examination of Dr Guirgis, and having regard to the opinion of Mrs Hassan’s general practitioner Dr Nosir at T6, the Tribunal was not prepared to accept Dr Guirgis’s opinion concerning the leg condition.
24. Mrs Hassan’s combined impairment rating is 15 points.
CONCLUSION
25. The Tribunal’s determination in relation to Mrs Hassan‘s claim is that at the time of the claim for disability support pension she did satisfy the requirements of subsection 94(1)(a),however she did not satisfy the requirements of 94(1)(b).
26. Accordingly, in all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act1975, the Tribunal determines that the decision under review is affirmed. This means that the decision under review is unchanged.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.
Signed: Neil Glaser
AssociateDate of Hearing 28 January 2003
Date of Decision 25 March 2003
Representative for the Applicant Mrs Hassan (Self-represented)Advocate for the Respondent Ms A Garcia
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