Ibrahim and Department of Family and Community Services

[2000] AATA 774

DECISION AND REASONS FOR DECISION [2000] AATA 774

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1454

GENERAL ADMINISTRATIVE DIVISION          )        
           Re      MAHMOUD IBRAHIM       
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date1 September 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.          
  ….....................................
  Dr J D Campbell
  Member
CATCHWORDS
Social Security – Disability Support Pension – multiple conditions – assessment – continuing inability to work
Social Security Act 1991, sections 94, 100, Schedule 1B.

REASONS FOR DECISION

Dr J D Campbell, Member 

1. Mr M Ibrahim ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 23 August 1999, which affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 23 June 1999 that the Applicant no longer qualified for a disability support pension, and that the last payment would be made on 5 August 1999.  This latter decision was received and affirmed by an authorised review officer (ARO) on 27 July 1999.

2. A hearing was held before the Tribunal on 10 April 2000 at which an Arabic interpreter assisted.  The Applicant was self represented and was assisted in presentation by his daughter, Aziza Ibrahim and his brother, Joe Ibrahim.  All three gave oral evidence.  The Respondent was represented by Ms Buckley, an advocate from the Administrative Law Section of Centrelink.

3. The following material was placed in evidence before the Tribunal:
   Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T43 pages 1-172
   Medical Report of Dr N A Assaad dated 28 November 1999   Exhibit A1     
   Respondent's Statement of Facts and Contentions dated 15 December 1999       Exhibit R1     
   List of Computer Printouts Exhibit R2     

ISSUES:

1. 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:

   (i)doing any work within the next 2 years; and

   (ii)undertaking educational or vocational training or on-the-job training during the next 2 years; or

   (iii)such training is unlikely (because of the impairment) to enable the applicant to do any work within the next 2 years.

LEGISLATION:

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1)–(5) and 100(3) and the Tables for Assessment of Disability Support Pension (Schedule 1B Impairment Tables).
   BACKGROUND:

2. On 29 December 1994 the Applicant completed an application for a carer's pension in relation to looking after his wife, children and house (T7, page 37).  Following assessment this claim was rejected on 8 February 1995 (T9).  The Applicant submitted a further claim for a carer's pension on 10 October 1995, citing similar circumstances and this was rejected on 8 November 1995 (T15).

3. The Applicant submitted a claim for disability support pension on 4 March 1997 (T10) and following assessment a disability support pension was granted on 17 April 1997(T24).  A review of the Applicant's disability support pension was undertaken during the period 3 March 1999 to 23 June 1999, when a decision was taken by the Respondent to cancel the Applicant's disability support pension, in that the combined assessment of his various conditions was less than 20 points (T34).  This decision was affirmed on 27 July 1999 by an ARO (T40) and on 23 August 1999 by the SSAT (T2).
   EVIDENCE – THE APPLICANT:

4. The Applicant told the Tribunal that he was born in Tripoli, Lebanon in June 1956, being one of 16 brothers (middle order).  He married before he came to Australia in 1984. The reasons for leaving Lebanon included difficulty in finding work, war, being kidnapped and jailed and experiencing a lot of people being killed in front of him.  The Applicant stated that he had no formal education and he was taught some elementary reading skills by his brothers, but nevertheless is unable to read or write in Arabic or English.  The Applicant stated that he left his work in a steel fabrication factory in 1991 after experiencing a fall and apart from some part-time work in a fruit shop in Campsie in 1996/97, he has not worked, being forced to leave the fruit shop work because of increasing pain.  The Applicant told the Tribunal that his wife also suffers from a disc lesion in the back and that she had to cease work.  Further he stated that the family own the house in which they live, there being nine children.

5. The Applicant described his medical conditions and their clinical features to the Tribunal in the following terms:

(a) Rheumatism:  Right shoulder pain and is unable to carry anything because of the pain.  The pain becomes worse when arm is elevated.  He finds it difficult to sleep and wakes up because of numbness extending from right elbow to wrist.

Also with cold winds experiences lower back pain with radiation down both legs.  Is treated with medication and massage.

(b) Psoriasis:  Scaly lesions on back and mildly on his elbows.  Treated with Diprosone cream and Betamethasone cream.

(c) Thyroid Adenoma:  Surgically removed 2-3 years ago.  On hormone replacement therapy (Oroxine).

(d) Psychiatric Illness:  Unhappy with the world generally.  The oldest of eight brothers in Australia.  Does not like dealing with people because people are crazy.  May go for a walk in the backyard at night.  He does not sleep well at night.  "Two old men come to him at night, scare him and go."  Angry around the home, "much better if a person dies."  Spends his day watching TV, goes to sleep, wife may take him shopping, does nothing, wife will not let him do anything.  Eats normally.  Takes Luvox, 100 mgs, 1 tablet at night.

MS AZIZA IBRAHIM:

1. Ms Ibrahim, the Applicant's second eldest daughter and a graduate in communications from the University of Western Sydney, told the Tribunal that she had moved to live with her grandparents a few years ago because the Applicant was hard to live with.  She indicated that the Applicant always needed help, wanted attention all the time and wanted things done his way.  Further she stated that he does not do much around the house, is unable to concentrate, watches TV, likes being talked to and either herself or her mother would take him when they went out.  In her view, Ms Ibrahim concluded that her father has not been well over the last few years, with his brothers organising to massage him each evening.
   MR JOE IBRAHIM:

2. Mr Ibrahim, a police officer, aged 36 and brother of the Applicant told the Tribunal that he considered his brother a stressful and stressed person, who has got a lot worse over the last few years, as evidenced by continuing arguments with his wife and his continual complaint of joint pains.  Further it was Mr Ibrahim's contention that the Applicant has lost a sense of direction in his life.
   MEDICAL EVIDENCE:

3. On 19 February 1997, Dr Assaad in his treating doctor's report (T19) described the Applicant's medical conditions, their clinical features and the limitations they place on his ability to work in the following terms:

(a) Lumbar Spondylosis:  Chronic back pain and lumbar spondylosis since 1993.  Unable to lift or carry heavy objects or bend repeatedly.  Treated with analgesics.

(b) Diffuse Psoriasis and polyarthritis:     Developed psoriasis in 1993 and diffuse secondary polyarthritis in 1996.  Treated with analgesics and steroid cream.

(c) Right Carpal Tunnel Syndrome:         Developed in 1996, causing numbness of the right upper limb and weak right hand grip.

(d) Multinodular Thyroid Goitre:                Thyroidectomy in 1996.  On maintenance therapy with Oroxine.

(e) Chronic Depressive Illness:                Under treatment of Dr Ali (Psychiatrist).  On Tofanil medication.  Unable to concentrate.

1. On 17 October 1996, Dr Wong, a consultant radiologist, made the following comments in relation to a radiological examination of the lumbar spine:

   Alignment seems normal. Mild disc space narrowing is noted at the lumbosacral junction with marginal osteophytes.  The facet joints are preserved.  The S.I. joints are within normal limits.  Changes are consistent with L5/S1 degeneration.  (T16, page 65)

2. On 1 April 1997, Dr Arad, an Australian Government Health Service medical practitioner, in finding that the Applicant had a 24 percent combined impairment rating for his various medical conditions, summarised his clinical findings in the following statement:

   This client has last worked in the steel industry for four years.  He stopped in 1991 due to family problems.  He left school at age 9.  He has also worked as a baker.
   Mr Ibrahim suffers from back and multiple joints pains.  He is known to have a right carpal tunnel syndrome with reduced use of his right hand.  He was recently admitted for ischaemic heart disease for which he is currently investigated.
   Following today's assessment I find Mr Ibrahim unfit for his usual work in the steel industry due to the manual work involved.  Furthermore, due to the combination of his problems I find him unsuitable for any type of full time employment with no prospects of improvement within the foreseeable future.  However, once his ischaemic heart disease is stabilised and treated, I feel that he is capable of performing part time light low stress duties." (T22, page 102)

3. On 1 May 1997, a whole body bone scan of the Applicant was reported by Dr Patel, a consultant physician in nuclear medicine, in which he concluded:

   There are mildly active degenerative changes involving the hips, the right wrist, the medial compartments of both knees and the right ankle.  There is evidence of very mildly active degenerative change involving the lumbar vertebral bodies but there was no definite scan evidence of significantly active facet joint arthritis.  The possibility of bilateral Achilles tendonitis is raised.  This is likely to be worse on the right than on the left.  There was no scan evidence of significant synovitis.  (T26, page 115)

1. In a treating doctor's report dated 23 March 1999, Dr Assaad confirmed the Applicant's medical conditions as lumbar spondylosis, diffuse psoriatic arthritis, right carpal tunnel syndrome, thyroid adenoma and chronic depression and that all the conditions were long term.  Further Dr Assaad concluded that the Applicant was not fit to return to any kind of work for more than two years and that his work ability was seriously affected by the nominated medical conditions.  (T27)

1. In a medical assessment report dated 4 May 1999, Dr Rogers, an Australian Government Health Services medical practitioner, provided the following justification of her assessment:

   This man presents for DSP review.  He used to work in a steel factory and left for non-medical reasons.  He says that Dr Patapanian diagnosed "arthritis" as a cause of the joint pain in his elbows/shoulders, and the TDR reports "psoriatic arthritis".  However there were no clinical signs of inflammatory arthritis [and] a bone scan shows mild degenerative arthritis only which is not unusual for his age group.  Therefore I wonder if the medical evidence is correct.  He also reports back pain and his x-ray reports mention changes consistent and within normal limits for his age.  He also has a controlled thyroid condition and mild psoriasis that would not prevent work.  When asked how his condition affected his activities he produced only very general answers and at most all I could gather was that he avoided heavy lifting.  I did not ask leading questions as I felt this would influence his answers and produce unreliable results.  His wife does most of the work around the home, but this would be culturally based.  He says he watches TV most of the time.  I could not elicit any signs of a significant psychiatric disorder.  On formal examination he demonstrated a lot of pain behaviour and reduced his movements, but on informal examination he moved much more freely with no problems with transfers.  I think that there are major inconsistencies here both in the medical evidence and in the customer's presentation of disability.  Independent rheumatologist assessment is needed before a final recommendation is made.  (T29, page 138)

1. In a specialist medical report dated 20 May 1999, Dr Corrigan, a consultant rheumatologist, stated the following opinion:

   1.        Diagnosis

   This man has no evidence at all of any form of joint disease.  He does have psoriasis, but no evidence of psoriatic arthritis and no evidence of a clinical degenerative joint disease.  The joint restriction on formal testing is voluntarily produced and is due to a large functional overlay, and may be associated with his depression.

   2.       Prognosis

   The more likely prognosis is difficult because he obviously does not intend to work, but there is no reason on his joint examination and condition to prevent him from working.

   3.Severity

   The severity of the condition is that he has no joint disease, it cannot be severe.

   4.Evaluation for [h]is medical capacity for work

   I think that he could work full-time if he wants to, but he is determined not to work.  (T32, pages 145-146)

2. As a consequence of Dr Corrigan's report, Dr Fogg, a Health Services Australia medical adviser, concluded that the Applicant had a total impairment rating of zero points and that he was medically fit for a wide variety of full time work, light process work, caretaker, sales and that he is unlikely to be helped by rehabilitation.

3. In a specialist medical report dated 8 July 1999, Dr Ali, a consultant psychiatrist, stated that the Applicant had been treated for better adaptation for depressive symptomatology since 3 October 1996.  Dr Ali commented that the Applicant was depressed due to chronic illness and that his mood had been characterised mainly by despondency and panic attacks; his well-being by loss of confidence and feelings of inadequacy; his relationship to others by a short attention span and irritability; that the Applicant had not entertained suicidal impulses and that his past history was unremarkable in terms of psychiatric consultation or acts of violence.  Dr Ali concluded that the Applicant's disorder was fluctuating and recurrent with treatment best effected with anti-psychotics and mood stabilisers.  With effective treatment, Dr Ali considered that the Applicant's psychiatric impairment may be reduced from 30 percent to 15 percent under table 7 of the pre 1 April 1998 schedule 1B Impairment Tables.  Dr Ali considered the Applicant unlikely to benefit from a rehabilitation course, even if he were physically able to attend such a course for five days a week (T38).

4. In a further medical report, dated 28 November 1999, Dr Assaad nominated the following impairment ratings for each of the Applicant's medical conditions:
   (a)      Lumbar Spondylosis  10 points                   Table 5.2
   (b)      Psoriasis  20 points                   Table 18
   (c)       Carpal Tunnel Syndrome              10 points                   Table 3
              right wrist

(d)      Thyroid Adenoma  0 points  Table 19
(e)      Chronic depression  10 points                   Table 6
(Exhibit A1)
SUBMISSIONS:

1. The Applicant contends that he has particular disabilities and that the combined assessment of these disabilities is greater than twenty points.  In making such a contention the Applicant relies upon the medical opinion of Drs Assaad and Ali.  Further the Applicant contends that as a result of his disabilities he had a continuing inability to work and again relies upon the opinions of Dr Assaad and Ali.

2. The Respondent submitted that the proper assessment of the Applicant's disabilities results in a combined impairment rating much less than 20 points.  Further the Respondent contends, that in arriving at such a rating, the lumbar spondylosis and the psoriatic conditions ratings given by Dr Assaad are excessive.  Further the Respondent contends that the psychiatric condition has not been fully documented, diagnosed, treated and stabilised, and as such no rating can be given.
   CONSIDERATION AND FINDINGS

3. The Tribunal in considering this matter notes the following legislation, namely subsections 94(1) in part, and (2)–(5):

   94(1)    A person is qualified for disability support pension if:

   (a)the person has physical, intellectual or psychiatric impairment and

   (b)the persons 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;…

   94(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 of work in the person's locally accessible labour market

   94(4) For the purpose 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 psychological 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.

4. The Tribunal, in considering this matter, is influenced in its deliberations by subsection 100(3) of the Act, which requires the Tribunal to focus its consideration on material leading up to the decision to cancel the disability support pension and for a period of three months thereafter. Material outside this operative period may be used when such material assists the Tribunal in gaining a better understanding of the clinical material which led to the making of the decision and other clinical material made available during the operative period.

5. In preliminary comment the Tribunal observes the significant variation in clinical opinion expressed in this matter.  Further the Tribunal notes that the history given by the Applicant to the Tribunal appears at variance with that recorded by Dr Ali, in so far as it relates to suicidal thoughts and history of past traumatic and violent events experienced by the Applicant.  While the former variance may be explainable by time, the latter, in the Tribunal's view, is a significant omission in Dr Ali's history.

6. In considering the evidence of the Applicant, his daughter and his brother, the Tribunal has formed a view of the Applicant as an unhappy, troubled and stressed individual, who causes stress to himself and others as evidenced by his irritability, his argumentative manner, his apparent inflexibility and his apparent lack of motivation to undertake any significant physical endeavour.  The Tribunal further noted evidence of psychiatric symptoms relating to sleep disorder, "two old men coming to scare him", general lassitude and decreasing social interaction.

1. The Tribunal, having considered the evidence of the Applicant and the various medical reports detailed earlier in this decision, finds that the Applicant has the following conditions with associated clinical features, with the following impact on the Applicant's inability to work:
   (a)      Lumbar Spondylosis:     Low back pain since 1996.  Uses analgesics. 

   Treated with massage.  Radiological evidence of L5/S1 degeneration; bone scan mild degenerative changes lumbar vertebral bodies.  No evidence of range of movement of thoracolumbar-sacral spine, as Applicant would not cooperate with examining doctors in squatting or bending.  On informal examination of range of movement, the Applicant's movements showed no marked restriction (T9, page 138).

In summary the Tribunal concludes that the Applicant has the condition of lumbar spondylosis (age and degenerative related) and that this causes the Applicant pain (treated with analgesics) and would prevent the Applicant from lifting or carrying heavy loads or undertaking repetitive bending in the workplace.  Thus, the Tribunal's opinion is that the evidence (radiological, bone scan) relating to the spondylosis does not support Dr Assaad's statement that it is severe spondylosis.  In turning to the assessment of this condition, the Tribunal, on the medical evidence before the Tribunal finds that the Applicant has a nil points impairment rating under Table 5.2, as there is no definitive evidence supporting an actual loss of thoracolumbar-sacral spinal movements.
(b)      Psoriasis:  Scaly skin lesions on elbows since 1998.

Occasional lesion on back.  Treated with Diprosone and steroid cream. Intermittent complaint of pain in multiple joints including right shoulder.  Treated with analgesics.  No radiological or nuclear medicine evidence or synovitis.  No evidence of psoriatic arthritis (Dr Corrigan).  No evidence of limitation of activity because of skin condition.

In summary the Tribunal concludes that the Applicant does have psoriasis, which responds to treatment and does not cause the Applicant any significant impediment to his work ability.  On the evidence available a diagnosis of psoriatic arthritis cannot be made, for in the Tribunal's opinion the radiological and bone scan material together with the opinion of Dr Corrigan are persuasive that such a condition does not exist.

In assessment of the skin condition the Tribunal observes that there is no limitation in the performance of the Applicant's normal daily activities because of the skin disorder and accordingly concludes that the proper assessment for the skin disorder is a nil points impairment rating under Table 18.  The Tribunal notes the impairment rating given by Dr Assaad for this condition, but is unable to understand the assessment in the light of the absence of clinical evidence nominated by Dr Assaad.

(c)      Carpal Tunnel symdrome     Causes intermittent pain and numbness,
           right wrist:  particularly in the night-time.

No demonstrated loss of function although some diminution in strength of right hand grip.

Normal range of movement and no muscle wasting.

On the evidence available to the Tribunal, it is concluded that the Applicant can use his right limb effectively and has mild interference only with hand function.  Accordingly, the Tribunal finds that the Applicant has a nil points impairment rating under Table 3 for this condition.

(d)Psychiatric disorder:          Evidence of symptoms of depression

since 1996 (Dr Ali); has been treated with anti-psychotic medication; sleep disturbance; "nightly visits from two old men"; irritability; decrease in social interactions; argumentative.

The Tribunal also studied the report of Dr Ali, and concludes that Dr Ali has not made a definitive diagnosis, when he states that the Applicant is being treated for better adaptation for depressive symptomatology.  Further the Tribunal observes the inconsistencies in clinical history between what the Applicant has told the Tribunal and what Dr Ali has recorded in his report.  Further the Tribunal notes the infrequent and intermittent nature of the clinical contact between the Applicant and Dr Ali, and further the suboptimal therapy for his condition when considered against the medication nominated as optimal by Dr Ali.  The Tribunal also notes the statements made by Dr Assaad and Dr Rogers.
In this matter the Tribunal is of a view that the Applicant may well have a psychiatric illness, with this opinion arising from an assessment of the Applicant's evidence to the Tribunal.  As to what the psychiatric diagnosis may be is a matter for further specialist psychiatric opinion, the results of which may be available at some time in the future.  On the evidence available to the Tribunal during the operative period, including the report of Dr Ali, and the Tribunal's assessment at the time of the hearing, it is evident that the Applicant has a psychiatric disorder which has not been diagnosed, treated and stabilised.  While the Tribunal recognises that the Applicant may have certain depressive symptoms, a thorough clinical psychiatric history has not been documented, a recognised psychiatric diagnosis by a psychiatrist has not been established and a continuing program of counselling/medication has not been undertaken.  Accordingly it is the Tribunal's finding that an impairment rating under Table 6 cannot be given, as there is insufficient clinical information and assessment available.  Dr Ali's report is of little assistance in helping the Tribunal establish evidence of a permanent psychiatric disorder, as his comments would seem to point to an adjustment response to his other conditions and as such are of a temporary nature.
(e)      Thyroid Adenoma:         Removed in 1996.  On Oxoxine hormone replacement
  therapy.  No impairment to general functioning.

The Tribunal notes that there is agreement between the medical opinions on the assessment of the impairment.  Accordingly the Tribunal finds that the Applicant has a nil points impairment rating under Table 19.

(f)Pain:  The Applicant has complained of low back pain for eight years; of pain in shoulders and elbows (right greater than left) and right wrist for four years.  Treated with analgesics, massage, anti-inflammatories.

The Tribunal is aware that pain symptomatology is normally assessed in terms of the underlying medical condition which causes it, but in this matter the nature of the pain (apparently related to degenerative condition) and the location over a number of joints makes it appropriate for the Tribunal to assess it under Table 20.  In this regard it is the Tribunal's finding that the Applicant has mild to moderate symptoms which are irritating and unpleasant, but which rarely prevents completion of any activity, but does cause loss of efficiency in daily activities.  As a consequence the Tribunal finds that the Applicant has a ten point impairment rating under Table 20 for pain in multiple joints, including his back.

1. As a result of its findings in relation to each impairment, the Tribunal concludes that the Applicant has a combined impairment rating of 10 points under the Schedule 1B Impairment Tables. Thus, while the Tribunal does find that the Applicant has satisfied subsection 94(1)(a) of the Act, the Tribunal further finds that as the Applicant's impairments have a combined impairment rating of less than 20 points, the Applicant fails to satisfy subsection 94(1)(b) of the Act.

2. For the purpose of completion, the Tribunal will consider whether the Applicant has a continuing inability to work.  In so doing, the Tribunal notes the Applicant's limited work experience and his various disabilities, as well as the medical opinions expressed by Drs Assaad, Corrigan, Rogers and Fogg.  While Dr Assaad has opined that the Applicant's various impairments place very significant limitations on the Applicant's work ability, the Tribunal, in the light of the various other medical opinions nominated and as evident in its own findings as to impairment ratings, concludes that the Applicant's impairments do not prevent him from working now or within the next two years.  Further it is the Tribunal's finding that the Applicant's impairments do not prevent him from undertaking educational, vocational or on-the-job training programs within the next two years, with such training not being unlikely (because of the impairment) to enable him to do any work for at least thirty hours per week at award wages within the next two years.

3. The Tribunal concludes by finding that the Applicant has failed to satisfy subsection 94(1)(c)(i) in that he has failed to satisfy subsection 94(2)(a) and either subsections 94(2)(b)(i) or (ii).  It is the Tribunal's finding that the Applicant fails to qualify for a disability support pension.
   DETERMINATION:

4. The Tribunal affirms the decision under review.

   I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Dr J D Campbell, Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  10 April 2000
   Date of Decision  1 September 2000

   Solicitor for the Applicant           Self represented
   Advocate for the Respondent    Ms Marion Buckley