Hayek and Secretary, Department of Social Services (Social Services second review)
[2015] AATA 778
•8 October 2015
Hayek and Secretary, Department of Social Services (Social Services second review) [2015] AATA 778 (8 October 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1266
Re
Samir Hayek
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 8 October 2015 Place Sydney The decision under review is affirmed.
...................[sgd].................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
8 October 2015
BACKGROUND
On 4 June 2014 Mr Hayek lodged a claim for disability support pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.
Mr Hayek’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.
In these proceedings Mr Hayek seeks review of the decision of the SSAT dated 6 February 2015 which found that Mr Hayek had a total impairment rating of 10 points under Tables 2 and 4.
At the hearing Mr Hayek was self-represented and assisted by an Arabic language interpreter.
ISSUES
In order to qualify for DSP, Mr Hayek must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 4 June 2014 and 3 September 2014 (the claim period).
Section 94(1) of the Act provides that 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;
…
The Respondent concedes, and the Tribunal accepts, that Mr Hayek suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The relevant conditions for consideration by the Tribunal are conditions involving spinal function (cervical spondylosis) and upper limb function (osteoarthritis of both hands and pain in the right shoulder) as well as a condition diagnosed as “migraine-related vertigo”.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),
·fully treated (paragraph 6(4)(b)),
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
The Respondent accepts, and the Tribunal agrees, that during the claim period all the relevant medical conditions were permanent for the purposes of the Impairment Determination.
The Respondent submits that Mr Hayek’s total rating under the Impairment Tables was 10 points so that he did not satisfy section 94(1)(b) of the Act.
Therefore, the Tribunal must decide whether during the claim period Mr Hayek had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
MEDICAL CONDITIONS
Upper Limbs
Mr Hayek told the Tribunal he has been working as a sole trader cleaning offices for about 15 years. For the last 10 years he has worked about 15 hours per week and continued to work until June 2015.
About seven to eight years ago he started to develop arthritis, one finger at a time, with his right dominant hand more severe than the left. He explained that recently he has been unable to move his right index finger and thumb and cannot make a fist. He also has had problems with his right shoulder.
In a letter dated 25 June 2013 Dr Spencer, specialist in rheumatic diseases, confirms that Mr Hayek has “advanced osteoarthritis in both hands and especially the basal joint of the left thumb”.
In a letter dated 19 July 2013 Dr Spencer notes that Mr Hayek complained of nocturnal pain in the right shoulder and that a recent ultrasound examination demonstrated a tear in the “supraspinatus”. On examination, however, Mr Hayek had a good range of pain free movement of the shoulder.
In a Centrelink Medical Report dated 29 May 2014 Dr Hanna, GP, lists “osteoarthritis” as the condition with most impact on Mr Hayek and describes the impact on ability to function as “cannot lift > 5kg, limited fine motor control both hands - cannot make a fist [with the right] hand.”
Dr Hanna also lists “pain [in] R shoulder” as a condition with significant impact and describes impact on ability to function as “cannot lift R arm above shoulder height. Cannot lift > 5kg”.
In a letter dated 7 July 2014 Dr Shenstone notes that X-rays of both hands confirm “nodal osteoarthritis and CMC joint degeneration particularly of the left thumb” and in summary states that Mr Hayek has “primary nodal osteoarthritis triggering the extensor tendons over the dorsal osteophytes of the IP joint of the right thumb, CMC joint arthritis with bone on bone crepitus … a tear of the right supraspinatus with impingement of shoulder movements and mild right lateral epicondylitis.”
In a Job Capacity Assessment (JCA) report submitted on 25 June 2014 the assessor noted the following :
Client reported difficulty carrying or lifting objects heavier than 5 kilograms in his right hand. He stated he could carry 2-3 kilograms heavier in his left hand. He stated he is currently working as a cleaner 15 hours per week, however experiencing some difficulty with heavier tasks. He reported having difficulty handling small objects (e.g. coins) due to hand, finger and thumb pain. He reported he can manage zippers and buttons, however occasionally asks for assistance with putting on jumpers/shirts. He stated he does not use a computer keyboard. He stated he remains capable of driving. He noted having difficulty reaching above shoulder or head height with his right upper limb.
The SSAT noted that Mr Hayek was able to take a shower and wash his hair, does the shopping with his wife, can carry a shopping bag weighing about five kilograms but has to strap it onto his palm, has some difficulty with picking up heavy objects, is able to use a pen or pencil and can handle coins.
At the hearing Mr Hayek confirmed that the notes in the JCA and SSAT decision were correct except for the note about his ability to hold and use a pen and handle coins. He stated that he could only handle a pen and coins with significant difficulty.
On consideration of the descriptors in Table 2 and the evidence before the Tribunal, I have formed the view that, during the claim period, there was a mild to moderate impact on activities using hands and arms caused by Mr Hayek’s various upper limb conditions. The difficulty for Mr Hayek is that, in my view, the descriptors for the moderate impairment rating do not adequately allow for the particular impairment suffered by Mr Hayek in respect of the osteoarthritis in both his hands.
Subsection 11(1)(c) of the Impairment Determination provides that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned.”
It follows that during the claim period a rating of 5 points under Table 2 can be assigned.
Spine
An MRI scan of the cervical spine performed on 31 July 2012 is reported as showing:
1Multilevel spondylotic changes with canal stenosis of C4/5, C5/6 and C6/7 without cord compression.
2Moderate bilateral foraminal stenosis at C4/5. Mild bilateral foraminal stenosis at C5/6. Moderate to high-grade left-sided foraminal stenosis at C6/7.
Dr Spencer in his letter of 25 June 2013 notes that Mr Hayek recently had left C8 radiculopathy which “fortunately settled with time”. On physical examination he notes that there was restricted cervical and lumbar movement, but no signs of radiculopathy.
In a letter dated 3 September 2013, Dr McGee-Collett, neurosurgeon, confirms that Mr Hayek’s imaging studies show “widespread cervical spondylitic change” and that the left C6/7 foraminal stenosis was the likely cause of the now resolved left brachialgia.
In the JCA report the assessor notes the following:
Client reported restrictions in bending, twisting, lifting and carrying due to neck and back pain. He was observed to sit for the duration of the assessment (30 minutes) without noticeable signs of discomfort. He was observed to transfer from sit-to-stand without difficulty. He was observed to navigate 1 flight of stairs… Client reported he remains capable of driving. He reported some stiffness when turning his head, however can perform movements slowly.
The assessor recommended a rating of 5 points under Table 4.
On consideration of the descriptors in Table 5 and the evidence before the Tribunal I am satisfied that a rating of 5 points under Table 5 can be assigned.
Migraine- related vertigo
In a letter dated 27 July 2007 Dr Cremer, neurologist, notes that Mr Hayek has suffered vertigo “annually for the past 10-15 years, usually mid-year” which lasts for about four days. He also experiences “a throbbing migraine headache (without aura) every 3-4 months”.
In a letter dated 18 September 2007 Dr Cremer, after reviewing various investigations, concludes that Mr Hayek’s symptoms are consistent with a diagnosis of “migraine-related vertigo” and recommends treatment with Stemetil suppositories for nausea and Voltaren Rapid for headache. Dr Cremer also states that “[t]he infrequent nature of his symptoms makes daily preventative therapy unappealing”.
At the hearing Mr Hayek confirmed that he has continued to suffer episodes every 3-4 months, still takes Stemetil and Voltaren Rapid and usually recovers in three to four days. He now has to take oral Stemetil, as the suppositories are no longer available, and finds this oral form of the medication less effective. Recently, the episodes have become more frequent and occur monthly which he attributes to increased pain in his hands.
For present purposes I accept that during the claim period the “migraine-related vertigo” was a permanent condition for the purposes of the Impairment Determination. The evidence clearly suggests that the episodes occur infrequently and cause only temporary functional impact so that a rating of 0 points under Impairment Table 7 (Brain Function) would be appropriate.
DECISION
For the reasons set out above the Tribunal is satisfied that during the claim period Mr Hayek’s impairment was not 20 points or more under the Impairment Tables so he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ...................[sgd]................................................
Associate
Dated 8 October 2015
Date of hearing 16 September 2015 Applicant In person Solicitors for the Respondent Ms N Clarke, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Impairment Rating
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Constitutional Validity
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