Hussain and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 850

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 850

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5377

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SYED HUSSAIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal   Mrs Josephine Kelly, Senior Member

Date of decision                26 August 2008

Date of written reasons   23 September 2008

Place  Sydney

Decision The reviewable decision is affirmed.  

...................[sgd]........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Claim for -  Bilateral shoulder condition – Neck condition – Hypertension - Whether 20 points or more under Impairment Tables within 13 weeks from claim date – Medical evidence considered – Held bilateral shoulder and neck conditions permanent - Nil impairment points under Table 3, Table 5.1 and Table 20  – Not qualified for pension – Reviewable decision affirmed

Administrative Appeals Tribunal Act 1975, s 43

Social Security Act 1991, s 94, Schedule 1B

Social Security (Administration) Act 1999, Schedule 2

WRITTEN REASONS FOR ORAL DECISION

23 September 2008 Mrs Josephine Kelly, Senior Member      

1. At the conclusion of the hearing of this matter in Sydney the terms of the decision made, and a summary of the reasons for the decision, were stated orally. The Applicant requested written reasons for my decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975, which I provide below.

2.          Mr Syed Hussain lodged a claim for the disability support pension (DSP) on 23 August 2006 which was refused by the original decision-maker, the authorised review officer and the Social Security Appeals Tribunal (SSAT).  For the reasons that follow, I have decided that Mr Hussain did not satisfy the qualification criteria for DSP at the time of lodging his application or within 13 weeks thereafter (the qualification period): see Social Security (Administration) Act 1999, Schedule 2, paragraph 4.

3.          Mr Hussain is currently receiving DSP. As I made clear to him, my decision to affirm the rejection of his claim of 26 August 2006 does not affect the subsequent claim he made, which was accepted.    

THE ISSUES

4.          The issues in this are:

1.  Did Mr Hussain have an impairment rating of 20 points or more during the qualification period?

2. Did Mr Hussain have a continuing inability to work during the qualification period?

Did Mr Hussain have an impairment rating of 20 points or more during the qualification period?

5. Mrs Heggen, who appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary), accepted that Mr Hussain has a physical impairment and therefore satisfied the requirements of s 94(1)(a) of the Social Security Act 1991 (the Act).  On the evidence before me, I accept that is so.

6. Therefore, the first issue in these proceedings is whether Mr Hussain has an impairment of 20 points or more under the Impairment Tables (the Tables) in Schedule 1B the Act, as required by s 94(1)(b) of the Act.

7.          In his claim for DSP, Mr Hussain listed his medical conditions as:

(i)  rotating cuff disease including neck, shoulder and elbow injuries;

(ii)  high blood pressure; and

(iii)  high cholesterol.

8.          Dr Chen's treating doctor report accompanied the claim.  Dr Chen identified that Mr Hussain suffered from bilateral rotator cuff disease/shoulder pain which was likely to have a fluctuating impact on his ability to function for more than 24 months.  The doctor also wrote that Mr Hussain suffered from hypertension, hypercholesterolemia, rhinitis and gastro-oesophageal disease, all of which had a small impact on his ability to function.

9.          A registered nurse employed by Health Services Australia completed a Job Capacity Assessment on 30 August 2006.  She identified spinal disorder and hypertension as permanent conditions and allocated nil ratings under the Tables.  She identified the gastroenterological condition as a temporary condition.

10.        Mr Hussain relied on material from Dr A Frankel, Dr T Lo, Dr B Kurri, Dr Simone and Dr Tanswell.  Dr Tanswell's report was dated 26 May 2008 and stated that Mr Hussain had recently undergone coronary artery bypass surgery.  Mr Hussain also tendered reports from Dr Wallace, orthopaedic surgeon, who prepared medico-legal reports in 1997.   Mr Hussain also gave evidence about his activities and how they are affected by his various medical conditions, particularly his neck and shoulder.

11.        I understood Mr Hussain to rely on Dr Simone's assessments of impairment rating. Dr Simone provided the following impairment ratings.  In August 2007, 20 points for right shoulder (right rotator cuff and impingement),  and 20 for neck (cervical spondylitis and degeneration).  On 12 February 2008, Dr Simone gave a rating of 20 for rotator cuff tear with impingement; and a 20 rating for cervical spondylitis and degeneration.  Dr Simone referred to the treating doctor in relation to hypertension and high cholesterol.  On examination he found that the range of movement of the cervical spine was less than 30 degrees bilaterally, and worse to the left.  In his  report of 2 March 2008, Dr Simone assigned impairment points of 10 for upper limb function, 10 for cervical spine function,  and 10 or 15 with respect to Table 20. In his report dated 17 June 2008 , Dr Simone assessed ratings of 10 for upper limb function, 10 for cervical spine function and 10-15 for cardiovascular system.

CONSIDERATION

12.        The difficulty with Dr Simone's evidence is that he acknowledged in his letter dated 2 March 2008 that he would not comment on clinical findings during the qualification period because Mr Hussain's initial consultation at his practice was in July 2007.   Dr Simone wrote:

My assessment of your impairment is for the present time, without reference to your possible condition some 18 months ago.

13.        All the opinions Dr Simone has provided relate to times much later than the qualification period.  It follows that Dr Simone’s evidence does not assist me to determine what impairments Mr Hussain suffered during the qualification period.   Further, having assessed a rating of 20 for  rotator cuff tear in August 2007 and  February 2008, in June 2008 he assessed a rating of 10, apparently for the same condition.  Finally, Dr Simone did not always specify which tables he referred to when determining the rating.

14.        I accept that  Mr Hussain had heart bypass surgery in late 2007 or early 2008, however, that does not assist me to determine the relevant impairment rating during the qualification period in 2006.    I also accept his evidence that his heart condition has deteriorated since the qualification period.  However I have to assess which medical conditions he had and whether they resulted in permanent impairment during the qualification period.

15.        On behalf of the Secretary, the following was relied on particularly: the initial job capacity assessment of August 2006, a file review carried out by a registered psychologist on 23 January 2007, a job capacity assessment carried out on 1 March 2008 by a registered occupational therapist, with a contribution from a doctor, and a report from Dr Bornstein who saw Mr Hussain on 16 April 2008.   Dr Bornstein also gave evidence orally. He reaffirmed his written opinion that Mr Hussain demonstrated normal range of movement of the shoulders and had minimal or no difficulties with his neck. Mr Hussain challenged his observations and opinion.

16.        Having considered all the material before me, I accept the job capacity assessments carried out in August 2006 and March 2008, and the evidence of Dr Bornstein about his observation and assessment of Mr Hussain's range of movements of his neck, shoulders and arms in 2008, which are quite different from those reported by Dr Simone.  These assessments are supported by the evidence of Dr Chen and Dr Lim, consultant rheumatologist.  

17.        The conditions have to be permanent before a rating can be assigned, that is, fully documented and diagnosed, and must have been investigated, treated and stabilised.  I find that Mr Hussain had the following conditions which were permanent during the qualification period:

Bilateral shoulder condition  - nil points under Table 3 for each shoulder because it caused mild rather than moderate interference with his hand functioning or  manual handling.

Neck condition – nil points under Table 5.1 because the loss of range of movement was nearly normal and less than a quarter.

18.        Even if I assume that Mr Hussain's hypertension and high cholesterol were relevantly permanent conditions during the qualification period, there is no evidence that they were affecting his ability to function.  In particular I note Dr Chen's remarks quoted earlier.  On that basis I find that nil points should be allocated for hypertension under Table 20, as it was controlled.  I would also allocate nil points for high cholesterol under that Table.  There is no evidence that it was causing any symptoms.

19.        There is no evidence that the mild asthma and chronic sinusitis Dr Frankel referred to in his 11 October 2006 report were permanent conditions.

DECISION

20. Accordingly, I find that during the qualification period Mr Hussain had nil points under the relevant Tables. Accordingly, he did not satisfy the requirements for DSP in s 94(1)(b) of the Act. I affirm the reviewable decision made by the SSAT on 24 Septemer 2007. Mr Hussain has been unsuccessful.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: …….[sgd].………..

Steven Mulipola, Associate

Date of hearing:  26 August 2008

Date of oral decision:  26 August 2008

Date of written reasons:                 23 September 2008

Representative for the Applicant:  Self-represented

Solicitors for the Respondent:      Centrelink Legal Services