Helw and Department of Family and Community Services
[2001] AATA 66
•5 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 66
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/763
GENERAL ADMINISTRATIVE DIVISION )
Re IESHIEA HELW
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell , Member
Date5 February 2001
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
Social Security Act 1991, sections 94 and 100, Schedule 1B
REASONS FOR DECISION
Dr J D Campbell
Mr I Helw ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 17 April 2000, which affirmed the decision dated 1 June 1999 made by a Centrelink delegate of the Secretary to the Department of Family and Community Services ("the Respondent") to reject the Applicant's claim for disability support pension. This latter decision had been reviewed and affirmed by an authorised review officer and affirmed in a decision dated 17 December 1999.
A hearing was held before the Tribunal on 6 December 2000 at which the unrepresented Applicant presented oral evidence. The Respondent was represented by Mr Cox, an advocate from the Centrelink Advocacy and Administrative Law Team. The Tribunal was assisted by an interpreter in the Arabic language.
The following evidence was placed before the Tribunal:
Exhibit No. Description
T1 – T25 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1 Clinical report of Ms T Piira, clinical psychologist, dated 21 August 2000
A2 Dr G Swid, dated 14 August 2000
A3 Report Ms M Carollo, case worker, dated 24 July 2000
A4 Report Mr Y Toma, President Church Council, dated 18 June 2000
A5 Clinincal report of Ms T Piira, clinincal psychologist, dated 6 June 2000
A6 Orthopaedic report of Dr Lee, dated 13 September 2000
A7 Report to Ms J Gibbs, occupational psychologist , by Ms L Vracar, dated 19 September 2000
A8 Medical report Dr G Swid, dated 20 September 2000
A9 Radiological report, Dr Passfield, dated 13 November 2000
A10 Radiological report Dr Gudex, dated 16 November 2000
R1 Respondent's statements facts of contentions, dated 30 October 2000
Issues
The relevant issues in this matter are:
(a) whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in schedule 1B; and
(b) if so, whether the impairment is of itself sufficient to prevent the Applicant:
from doing any work within the next two years; and
from undertaking educational, vocational training or on-the-job training during the next two years; or
whether such training is unlikely (because of impairment) 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 ss94 and 100(3), and the tables for assessment of work-related impairment for disability support pension ("Schedule 1B Impairment Tables").
Background
On 12 April 1999 the Applicant lodged a claim for disability support pension "(DSP)" (T3, P18), attaching copies of various medical reports (T4 – T9). A treating doctor's report dated 31 March 1999 was also lodged (T10). A medical assessment report was undertaken on 20 May 1999 (T11). On 1 June 1999 a letter was forwarded by the Respondent to the Applicant rejecting the Applicant's claim for DSP as the Applicant's impairment rating had been assessed at five points (T13). A further treating doctor's report dated 4 August 1999 was lodged with the Respondent on 6 August 1999 (T15), with a further medical assessment undertaken on 16 December 1999 (T16). The decision to reject the Applicant's claim for DSP was reviewed by an authorised review officer and affirmed in a decision dated 17 February 2000 (T23). The decision was further affirmed by the SSAT in a decision dated 17 April 2000 (T2).
Applicant's evidence
The Applicant told the Tribunal that he was born in Iraq on 11 January 1953, leaving school at the age of 24 having obtained a diploma in radiography. The Applicant migrated to Australia on a refugee visa on 2 May 1995, having worked for many years as a radiographer in Baghdad. The Applicant stated that he married in 1980, has three children aged 18, 15 and five and that he lives in a church house, and is currently receiving Newstart Allowance.
The Applicant indicated that after he arrived in Australia, he tried unsuccessfully to have his qualifications recognised. He studied many courses; tried to get any work he could, and obtained limited benefit from two years on a community service program.
The Applicant indicated that he spends his days at home; reads books in the Arabic language; watches television in his bedroom; aggravated by the children, so much so that he sometimes hits his children; that he is unable to help his wife with the housework , but does do simple things around the house, and accompanies his wife shopping once a week. The Applicant indicated that he can walk 200 to 300 metres but stops because he is tired; that he can drive a car for about five minutes, but his daughter uses the car mostly. The Applicant stated that he is able to use public transport, but does not believe he is able to work.
The Applicant indicated that the pain is situated in the posterior part of his neck, in the right and left shoulder and in the mid thoracic area and extending to his left upper arm, has worsened over the last three years; the pain was further aggravated following a car accident on 1 November 2000. Further, the Applicant told the Tribunal that he has the following symptoms:
pain in the lower back for many years, which has worsened over time with radiation down both legs;.
suffers headaches and does not sleep well;
developed difficulties in his relationship with his wife, causing interference with his sexual relationships; and
he has become irritable and prefers to be on his own.
In answer to questions in cross examination, the Applicant indicated that he has had difficulty working since his accident in 1985. For some time after the accident he undertook clerical duties in the radiology department for five hours a day (except on Thursday, when he worked four hours) but that he has not worked as a radiographer since his accident.
In further comment the Applicant indicated that his medical conditions have worsened over the last three years, that he likes to lie down a lot more and that his body shakes from time to time. The Applicant indicated that he had undertaken four full-time courses in English which he passed and enjoyed, and one introductory course in computers which he found of limited benefit.
Medical evidence
On 20 September 1996, Dr Shirtley, a consultant radiologist, reported on a plain x-ray of the cervical and thoracic spines in the following terms:
"Vertebral alignment is normal with normal flexion/extension movement in the cervical region. There is some narrowing of the C5-6 disc space with marginal osteophytic lipping consistent with degenerative spondylosis. There is minimal osteophytic encroachment of the neural joramina at this level on the left. No other bone or joint abnormality is detected." (T4, P62)
On 12 November 1996, Dr Gale, a consultant radiologist reported on a CT scan of the cervical spine in the following terms:
"The C3-C and C4-5 discs and neural structures are normal in appearance. At the C5-6 level there is minor posterior osteophyte development. This creates only minimal encroachment on the anteria aspect of the theca. There is left lateral osteophyte development at this level causing encroachment on the left neural exit foramen with moderate left formamenal stenosis. The C6-7 disc and neural strauctures are normal in appearance. No other abnormality is demonstrated." (T5 P63)
On 19 March 1997, Dr Shirtley, reported on a plain x-ray of the left hand and wrist in the following terms:
"There has been excision of the distal end of the left radius. This is presumably following the patient's previous trauma with a fracture. No other bony or joint abnormality is seen." (T6, P64)
On 10 August 1998, Dr Shirtley, , reported on a plain x-ray of the lumbar spine in the following terms:
"Some early degenerative spondylitic changes are noted in the lumbar spine at the L2-3, L3-4 and L4-5 levels with small marginal osteophytes present. The interverterbral disc spaces at all levels are well preserved. Both sacro-iliac joints outline normally." (T7, P65)
On 15 March 1999, Dr Shirtley, reported on an ultrasound examination of both shoulders in the following terms:
"The rotator cuff mechanism of both shoulders were studied using ultrasound with static and dynamic images obtained.
These films show some thickening of the suprsspinatus tendon on both sides when the tendon is placed on the stretch. In the relaxed position the tendons defined normally with no evidence of any tear. I see no evidence of any overlying bursitis and on abduction of the humerus there is a normal range of movement although the tendon on the left side moves with some difficulty under the acromion. The appearance here would be consistent with chronic tendonitis but without evidence of tear. This tendonitis would appear to involve both shoulders but is more severe on the left side than the right.
The remainder of the rotator cuff mechanisms of both shoulders define normally." (T9, P68)
On 2 November 1998, Dr Salmon, a consultant in pain management described the Applicant's pain symptomology in the following terms:
"Pain: He described a constant neck pain, which could become severe, sharp and piercing and was aggravated by lifting and use. It radiated from the right neck to the right shoulder and disturbed his sleep. It was associated with tingling and numbness in digits one to five with the left side more affected. He also had frontal headaches. Nothing seemed to relieve the pain.
Back pain was constant and when severe, was a sharp, hot burning sensation radiating to the posterior thigh, and to the medial right knee. This pain could wake him. There was episodic tingling and numbness of the feet. Nothing reduced this pain."
Dr Salmon recommended therapy with tryptanol and transcutaeneous electronerve stimulation for his cervical pain which is almost certainly discogenic (T8, P67).
In a treating doctor's report (T10) dated 31 March 1997, Dr Swid described the Applicant's current conditions as:
(a) Cervical spondylosis, with disc lesion causing chronic neck pain, worse with activity – long term and deteriorating;
(b) Lower back spondylosis and osteophytes causing chronic low back pain worse with activity – long term and deteriorating;
(c) Chronic tendonitis left shoulder causing pain, worse with activity - long term and deteriorating;
(d) Left wrist pain following excision of distal portion of radius - long term and deteriorating; and
(e) Domestic difficulties.
Dr Swid believed the Applicant's work ability could be affected because of his disabilities in the following way:
absent from work for four or more days per month;
could only persist at one task for less than 20 minutes;
can only understand and follow instructions less than half the time;
communication requires frequent repetition;
has some reduction in dexterity;
may be distressed or have difficulty alternating between tasks; and
can only lift and carry with greatly reduced speed and coordination. (T10, P73)
Dr Swid was of the opinion that the Applicant would not work in any part-time or full-time capacity for more than two years.
In a medical assessment report dated 20 May 1999, Dr McCullurn, a Health Services Australia medical adviser, undertook a whole person assessment of the Applicant and made the following comments:
"The client is a 46 year old man who has not worked since arrival in Australia in 1995. In Iraq he worked as a radiographer.
He has had back and neck pains for many years. The neck pain is intermittent with radiation to both shoulders. Treatment is NSAIDs, Endep, pain management. The pain is aggravated by bending and prolonged flexion. He is able to walk >500m and drives regularly (taking his children to school daily). The back pain is intermittent with no radiation. He has normal range of cervical and thoracolumbar mobility on examination. Neurological examination of his lower limbs was normal.
He has bilateral shoulder pain. He also has left wrist pain. He had an operation on this wrist in 1986. He is unable to lift heavy objects. He is able to use his right upper limb efficiently for feeding, dressing and writing. He only has very mild interference with right upper limb function. He has mild-moderate interference with his ledt upper limb function.
His impairment rating is 5. He is fit for a wide range of light duties, eg lift attendant, call centre worker or light process worker." (T11, P86)
On 4 August 1999, Dr Salmon, in a treating doctor's report stated that the Applicant had the following conditions with the nominated clinical features:
(a) cervical spondylosis – neck pain radiating to right shoulder; long term and stable; and
(b) lumbar spondylosis – back pain radiating to left leg; long term and stable; and
(c) supraspinatus tendonitis – left shoulder pain and restriction left more so than right; long term and stable.
Dr Salmon considered that the Applicant was unfit for any type of full-time work for more than two years; was unfit for part-time work for 12 – 24 months and would not benefit from rehabilitation. (T15, P97)
On 16 December 1999, Dr Dark, a medical adviser, reported on a whole person assessment in the following terms:
"This 46 year old man last worked in 1994 as a radiographer in Iraq. He ceased work to come to Australia via Jordan.
He states that he was involved in a motor bike accident in 1985. Today he states that he has experienced intermittent neck pain "for three years - since 1996". This pain is aggravated by heavy lifting. It is relieved by analgesia. It radiates intermittently to his left shoulder.
On examination, he sits comfortably, mobilises easily and has a normal range of movement of his neck and lumbar spine. He has good strength in both upper limbs.
He complains of pain when elevating his left arm above his shoulder level. This warrants and impairment rating of 5.
He spends his days watching TV, reading, taking his children to school, writing poetry and short stories, and going shopping with his wife.
His total impairment rating is 5. He is fit for a range of light duties that do not involve lifting, especially lifting his left arm above his shoulder." (T6, P109)
Dr Passfield, a consultant radiologist, reported on 13 November 2000 of plain x-rays both shoulders, ultrasound both shoulders and CT lumbar spine in the following terms:
"ULTRASOUND BOTH SHOULDERS
No significant abnormality is detected. No tears are seen. There may be slight impingement of the supraspinatus tendon on the left on abduction.BOTH SHOULDERS
No significant bony abnormalities are detected. No previous bone trauma seen. No advanced degenerative change is detected.CT LUMBAR SPINE
CT lumbar spine shows no acute disc protrusion. No thecal sac compression is noted. There is mild generalised disc bulging seen at the L4/5 level, impinging slightly upon the anterior thecal sac, but no other significant abnormalities are seen." (exhibit A9)
In a report dated 6 June 2000 Ms Piira, a clinical psychologist concluded that the Applicant fulfilled the criteria for a diagnosis under DMS IV of adjustment disorder (chronic) with depressed mood, and that the Applicant should be assessed for a multi disciplinary pain management program to address both his pain coping strategies and a range of psycho-social problems. (exhibit A1)
In a request dated 20 September 2000, Dr Swid nominated the Applicant's conditions to include early Parkinson's disease and nominated the Applicant as having a combined impairment rating of 35 points. (exhibit A8)
Dr Lee, a consultant orthopaedic surgeon, in a report dated 13 September 2000, reported that the Applicant showed some signs of early Parkinsonism, mild degenerative changes of the lumbar spine, neck stiffness, and that movement of the shoulder was painful. (exhibit A6)
Ms L Vracar, a Centacare caseworker, in a report dated 19 September 2000, reported that the Applicant had experienced no improvement in his condition over the last two years, which included participation in the community support program and referral to the Pain Management Clinic (exhibit A7). A similar report was placed before the Tribunal from another Centacare worker, Ms M Carollo (exhibit A3).
Submissions
Applicant
The Applicant, relying on his own evidence, the radiological reports, the medical reports of Dr Salmon and Swid, the report of the clinical psychologist; Ms Piira, the report of the orthopaedic surgeon, Dr Lee and the inputs of the Centcase careworkers, submits that he has a number of disabilities and that upon proper assessment the combined impairment rating is greater than 20 points. Further, he contends that he has been unable to work and that he continues to have an inability to work, or undertake vocational training within a two year time frame. For the latter position the Applicant relies upon the medical reports of Drs Swid and Salmon. As such it is the Applicant's contention that he satisfies all the requirements nominated for the payment of a disability support pension.
RespondentThe Respondent contends that the Applicant does have particular disabilities and these include cervical and lumbar spondylosis with pain in neck, lower back and shoulders and that in relying upon the whole body assessments of Drs McCullum and Dark, the radiological evidence in total, the Respondent submits that the Applicant has a combined impairment rating of less than 20 points.
Further the Respondent contends that the Applicant does enjoy the capacity to undertake a wide array of light duty type employment within the next two years. Thus the Respondent's submission that the Applicant does not qualify for disability support pension as he fails to satisfy subsection 94(1)(b) and (c) of the Act.
Consideration and findings
The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) in part, (1), (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 work94(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 fo 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."
In further preliminary comment the Tribunal observes that subsection 100(3) of the Act states specifically that the prime focus for the Tribunal's deliberations must be material and evidence adduced for a period of three months commencing one day after lodgement of the claim for disability support pension. Material either prior to or after this period can only be used by the Tribunal in such circumstances that are permissive of the Tribunal gaining a greater appreciation of the disabilities that exist during the designated (operative) period.
The Tribunal notes that nominated conditions must be permanent, fully documented, investigated, diagnosed, evaluated, treated and stabilised before a rating can be assigned (paragraph 4, Introduction to the Schedule 1B in Impairment Tables).
The Tribunal, in recognising the task to be undertaken, and having noted all the evidence before it in this matter, makes the following findings of fact in relation to the existence of particular disabilities and their associated clinical features during the operative period.
(a) Cervical Spondylosis
pain in the neck posteriorly of varying intensity which intermittently radiates to both shoulders (more so to left);
radiological evidence of minor C5/6 posterior bulge with minimal encroachment on the anterior aspect of the theca. A left lateral osteophyte at this level is causing encroachment on the left neural exit foramen (T56, P63); and.
Normal range of movement of cervical spine (Drs McCullum and Dark).
(b) Lumbar Spndylosis
Intermittent pain in lower back with intermittent radiation down both legs;
Radiological changes of mild degenerative changes; and
Normal range of thoraco lumbar movements
(c) Pain right and left shoulders
Intermittent pain, radiology normal. Ultrasound examination demonstrates some thickening of supraspinatus tendon and some slight impingement pain on elevating left arm above shoulder;
Normal strength in both upper limbs;
Some limitation of function of left upper limb and left wrist.
No limitation of function of right limb.
As a result of the Tribunal's findings, the Applicant satisfies subsection 94(1)(a) in terms of the physical impairments nominated.
The Tribunal in assessing the impairment rating for each nominated impairment makes the following finding giving reasons for each such finding:
(a) Cervical Spondylosis
Nil points impairment rating under Table 5.1 of the Schedule 1B impairment tables as there was a normal or nearly normal range of movement;
(b) Lumbar Spondylosis;
Nil points impairment rating under Table 5.2 of the Schedule 1B impairment tables as this was a normal or nearly normal range of movement; and
(c) Upper Limb Impairment
Five points impairment rating under Table 3 of the Schedule 1B impairment tables, because of mild interference with left upper limb function arising from pain on elevation of left arm above shoulder level and the sequelae of the left wrist operation. No significant impairment of right upper limb.
It is to be noted that the Tribunal has not considered either the diagnosis of depression, or the tentative diagnosis of Parkinson's disease, as both diagnoses have come into play post the operative period by the better part of the year and both require further investigation to confirm the diagnoses, and to treat and stabilise the condition. A similar comment relates to the issue of adjustment disorder, with the further requirement that for such an impairment to be considered, it must be considered a permanent impairment.
The Tribunal has, however, noted that the Applicant does have an established impairment of chronic pain of variable intensity in his neck, back, lower back, and shoulders, and as such finds that such symptomology encompassed within this impairment of pain is appropriately assessed at 10 points under Table 20 of the Schedule 1B impairment tables. In arriving at such a finding, the Tribunal has accepted the evidence of the Applicant that he is able to walk for 200 to 300 metres, care for his own personal hygiene, assists his wife with shopping, use public transport and drive a car. Further the Tribunal noted and preferred the opinions of both Drs McCullum and Dark over those of Drs Salmon and Swid, principally on the grounds that particular clinical details of history and examinations were listed in their reports, underpinning the elements of their opinions.
As a consequence of the Tribunal's findings, the Tribunal concludes that the Applicant has a combined impairment rating of 15 points during the operative period and thus fails to satisfy subsection 94(1)(b) of the Act.
Further in relation to the Applicant's work ability the Tribunal finds that he does not have a continuing inability to work for the following reasons:
(a) the opinions of Drs McCullum and Dark are in the Tribunal's view more detailed in terms of clinical history and examination, which in turn permits the Tribunal a better basis on which to understand their opinions. In so stating, the opposite is to be observed with the reports of Drs Swid and Salmon, with opinions being made with little supportive evidence nominated;.
(b) the evidence of the Applicant that he undertook full time courses in English tuition and computers and that he coped with and enjoyed the former, while being disappointed with the latter course; and
(c) that both Drs McCullum and Dark worked through the effect of the Applicant's work ability as a result of his impairments and were able to nominate a range of light semi-skilled and lesser skilled activities that were appropriate to the Applicant's work capacity.
As a consequence the Tribunal finds that the Applicant does not have a continuing inability to work pursuant to subsection 94(1)(c), as it considers that:
(a) the impairments of themselves will not prevent the Applicant from doing any work within the next two years; and
(b) neither will the impairments of themselves prevent him from undertaking educational or vocational or on-the-job training during the next two years; nor in the circumstances where such training has occurred, such training is not likely (because of the impairments) to prevent the Applicant from doing any work within the next two years.In summary the Tribunal finds that the Applicant does not qualify for disability support pension on the application, as he has failed to satisfy subsection 94(1)(b) and (c) of the Act as defined by subsection 94(2).
DeterminationThe Tribunal affirms the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: .....................................................................................
Associate
Date/s of Hearing 6 December 2000
Date of Decision 5 February 2001
Applicant Unrepresented
Advocate for the Respondent Ms A Alex
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