Ibrahim and Secretary Department of Employment and Workplace Relations

[2007] AATA 1911

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1911

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200501564

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAWIA IBRAHIM

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date1 November 2007

PlaceSydney

Decision  The decision under review is affirmed.

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

Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - claim for disability support pension - application denied - disability support pension subsequently granted - claim for intervening period - issues of fully documented diagnosed condition which has been investigated, treated and stabilised – decision under review affirmed.

Social Security Act 1991 - section 94, Schedule 1B

Social Security (Administration) Act 1999 - Schedule 2

REASONS FOR DECISION

1 November 2007 Dr J D Campbell, Member

1.      Mrs Rawia Ibrahim (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’) on 24 May 2005. This claim was rejected by Centrelink (‘the Respondent’) on 15 June 2005. This decision was affirmed on internal review by an Authorised Review Officer (‘ARO’) on 19 September 2005. On 21 November 2005, the Social Security Appeals Tribunal (‘SSAT’) affirmed the decision that Mrs Ibrahim did not qualify for Disability Support Pension.

2.      At a resumed hearing on 23 August 2007 documents were tabled by the Respondent indicating that Mrs Ibrahim had been granted disability support pension, with date of commencement being 7 July 2006. Minimal documentation detailing either the claim or supporting material and reasoning that led to such a decision was before this Tribunal.

3.      The task remaining for the Tribunal is to assess whether Mrs Ibrahim was entitled to payment of DSP between 24 May 2005 and 6 July 2006.

issues

4.The relevant issues for the Tribunal to consider in this matter are:

(a)From what conditions did Mrs Ibrahim suffer at the time of lodgement of her claim on 24 May 2005 or within a period of 13 weeks from that date?

(b)Were such conditions fully documented and diagnosed? If so, had such diagnosed conditions been investigated, treated and stabilised?

(c)Are such diagnosed conditions permanent?

(d)What is the assessment (under Schedule 1B - Tables for the assessment of work-related impairment for disability support pension (‘the Impairment Tables’) of the Social Security Act 1991 (‘the Act’)) of the fully documented and diagnosed conditions which are permanent and have been investigated, treated and stabilised?

(e)Does Mrs Ibrahim’s nominated impairments, when assessed pursuant to the Impairment Tables of the Act, amount to 20 or more points?

(f)Does Mrs Ibrahim qualify for Disability Support Pension?

decision

5.For the reasons stated later in this decision, I find that:

(a)Mrs Ibrahim suffered from a number of impairments at the time of lodgement of her claim on 24 May 2005 or within a period of 13 weeks thereafter (‘nominated period’). Such impairments included: degenerative lumbo-sacral spinal disorder (spondylosis); degenerative changes rotator cuff right shoulder; bilateral carpal tunnel syndrome; depression; cervical spondylosis; hypertension; and chronic gastritis with reflux.

(b)Of the nominated impairments present in the nominated period, the following were considered to be fully documented and diagnosed, investigated, treated, stabilised and permanent: degenerative lumbo-sacral spondylosis; cervical spondylosis; hypertension; and chronic gastritis with reflux.

(c)The assessment of the nominated impairments considered to be permanent is:

i.degenerative lumbo-sacral spondylosis, 10 points;

ii.cervical spondylosis nil points;

iii.hypertension nil points; and

iv.chronic gastritis with reflux nil points.

(d)Therefore, the combined assessment of Mrs Ibrahim’s permanent impairments is 10 points.

(e)Mrs Ibrahim does not qualify for disability support pension as at 24 May 2005 as she fails to satisfy an essential qualifying requirement of 20 points under section 94(1) of the Act.

background

6.      Mrs Ibrahim was born in Lebanon in 1957 and experienced one year of schooling. She can read (weakly) but not write Arabic and is unable to read and/or write English. Mrs Ibrahim stated that she worked for 11 years as a textiles factory assistant in Lebanon, married in 1975 and had five children prior to immigrating with her husband to Australia in 1984.

7.      After arrival in Australia Mrs Ibrahim had a further five children with seven children still remaining at home. Mrs Ibrahim spoke of her husband having been a factory metal worker in 1991 or thereabouts and being granted a disability support pension some eight years past.

8.      Mrs Ibrahim detailed the nature of her impairments to the Tribunal in September 2006 (the first hearing day) in the following terms:

(a)  Neck: she has had problems for a couple of years, namely pain in her neck posteriorly extending to her shoulders. The pain varies in intensity and causes difficulty with neck movement.

(b)  Right Shoulder: Mrs Ibrahim stated that she has experienced pain in her right shoulder for three years and that this pain was of sudden onset when she was doing housework. She is unable to raise her right arm above her shoulder.

(c)  Wrists: she has had difficulty in carrying, for approximately one to two years, as it causes pain. She experiences pins and needles in both hands at night and at times this wakes her up. Mrs Ibrahim had an operation on her right wrist in July 2006, but still experiences pain and numbness in her hand. She is hesitant about having an operation on her left wrist.

(d)  Hypertension: present for six years with no symptoms. Mrs Ibrahim takes medication of one Avapro tablet per day.

(e)  Lower back: pain (constant in nature) from thoracic area to tail bone for 10 years. This pain worsened in 2003. Mrs Ibrahim said she keeps turning over at night because of pain. There is radiation of sharp pain to both legs now and then. Mrs Ibrahim takes medication of Indocid one tablet at night, Sodium diclofenac one three times a day, Glucosamine, Voltaren cream and capsules. In May and November 2005 Mrs Ibrahim saw Dr McKechnie, Neurosurgeon. She has also been treated with physiotherapy for two weeks at Canterbury Hospital, however Mrs Ibrahim said that this did not help her. Mrs Ibrahim said that she is able to walk for half an hour and sit and stand for half an hour. Medical reports state that her back is slowly getting worse.

(f)   Stress/Depression: commenced six years ago following the death of her mother. Mrs Ibrahim said that she cries easily and has minor arguments with her children. She also said that she uses sleeping pills. Medication for depression commenced after seeing Dr Soliman, Psychiatrist, in June 2006. Mrs Ibrahim now takes Epilim 100 mgs twice daily, Nirtazapine 30 mgs at night, Xanax 50 mgs half tablet twice a day, and Alprozaline one tablet twice a day. She stated that she feels irritated and more depressed now (than at the time of initial hearing in September 2006).

(g)  Stomach Ulcer: reported an eight year history of vomiting, acid reflux and upper mid line epigastric pain. Chronic gastritis associated with helicobacter infection is controlled with Pariet tablets 20mgs, one each night.

(h)  Knees: at a later hearing (August 2007), Mrs Ibrahim stated that she had experienced soreness in both knees when climbing stairs for the last two years. She also noted that she had been experiencing pain in her right foot area in the last few months.

9.      Mrs Ibrahim described her daily routine as rising at about 8am, making the bed, getting breakfast, getting dressed, washing some of the dishes, a little housework (some vacuuming), hanging out some washing (little) and visiting a few shops. She said that her children do most of washing, hanging out, vacuuming and sweeping. In May 2005, Mrs Ibrahim used to do all the cooking, but she was unable to lift heavy pots and pans and also has difficulty with light shopping. Mrs Ibrahim stated that until July 2006 she used to drive an automatic car to take the children to school and for shopping. Mrs Ibrahim stated that she watches some television and is usually in bed by 11pm.

10.     Mrs Ibrahim stated that she is unable to do gardening and has difficulty in using public transport. However, she stated that she came to the hearing by train and walked from Town Hall station to the Tribunal. Mrs Ibrahim detailed a limited social life (absence of in-laws, occasional visits from married sibling, no mosque, but travelled to Saudi Arabia for one month December 2006/January 2007).

consideration and finding

11.     I acknowledge that there has been three hearing days (part) in this matter. The initial hearing, in September 2006, was adjourned in order that I could be provided with an assessment of Mrs Ibrahim’s medical conditions, with particular emphasis on the musculoskeletal conditions including the lower back. At a further hearing, in April 2007, a further adjournment was ordered to allow Mrs Ibrahim to be examined by a female doctor, as the previous examining male medical officer had for whatever reason been unable to complete a spinal musculoskeletal assessment. Such an examination was completed by Dr Gibson, a Consultant in Occupational Medicine. Her findings were detailed in a report dated 24 July 2007 (Exhibit R6).

12.     Having regard to all the material in evidence, I conclude that Mrs Ibrahim was suffering from the following conditions at the date of application (24 May 2005) or within a period of 13 weeks thereof:

·degenerative lumbo-sacral spine disorder (spondylosis);

·degenerative cervical spine disorder (spondylosis);

·rotator cuff degenerative changes right shoulder;

·bilateral carpal tunnel syndrome;

·depression;

·hypertension; and

·chronic gastritis with acid reflux.

13.     In addressing the question of whether the conditions were fully documented and diagnosed, and whether such diagnosed conditions had been investigated, treated and stabilised at the date of claim (24 May 2005) or within a period of 13 weeks thereof, I make the following findings for the nominated reasons:

(a)  Degenerative lumbo-sacral spine disorder (spondylosis)

There is a longstanding and consistent clinical history of lower back pain with intermittent radiation to both lower limbs. There has been extensive radiological investigation, namely:

i.CT scan of the lumbar spine, dated 22 June 2005, reported as demonstrating L4-5 posterior disc protrusion producing bilateral sciatica, bilateral L5 pars defects and porotic wedging of L1 and L2 (Exhibit A13).

ii.MRI scan of the lumbar spine, dated 2 September 2005, reported as demonstrating ‘evidence of multilevel degenerative disc disease at L4/5 and L5/S1’, with a ‘small posterocentral disc herniation at L4/5’ (Exhibit A10).

iii.Other investigations performed included a bone scan on 5 December 2005, which was reported as showing changes consistent with moderate sacro-iliac and mild facet joint arthritis (Exhibit A2); a dexa line marrow density examination on 23 August 2006, demonstrated osteopenia L2-L4 (Exhibit A16); plain x-ray lumbar spine dated 31 August 2006, reported as demonstrating moderately severe panlumbar spondylosis with osteophytosis, with a grade one spondylolisthesis. (Exhibit A17).

iv.The clinical history of the lower back pain with intermittent radiation to both legs has been defined by Mrs Ibrahim consistently over time and is recorded in the treating doctor’s report of 24 May 2005 (Dr Assaad, T6), which also indicates earlier radiological investigations defining similar lumbar spine pathology.

v.Mrs Ibrahim was referred to Dr McKechnie, a Consultant Neurosurgeon, for assessment and treatment. Mrs Ibrahim stated she saw him in May and November 2005, and again in April 2006. While some investigations were performed (referred to earlier), all such investigation confirmed the earlier findings of the CT scan of the lumbar spine of 22 June 2005. A period of two weeks hospitalisation at Canterbury Hospital in November 2005 together with physiotherapy is reported by Mrs Ibrahim as being unhelpful. It is noted that Dr McKechnie considered Mrs Ibrahim unfit for full-time work on 16 April 2006, while at the same time suggesting Glucosamine and a trial of hydrotherapy.

vi.Having detailed the particulars of the investigation and treatment of Mrs Ibrahim’s lumbar spine degenerative disease (spondylosis), I am satisfied that the diagnosis, the investigation and fundamental treatment had been established by the date of claim lodgement (24 May 2005) or within 13 weeks thereof. In so stating, I note the clinical history of back pain since 1995 and the CT scan of the lumbar spine of 22 June 2005. While I note that other investigations were undertaken subsequently, such investigations were nothing more than confirmatory of the established condition. Further, while referral was made to Dr McKechnie, his activities as regards assessment, investigations and treatment were also of a confirmatory and supportive nature. It cannot be said that they either advanced the diagnostic endeavour, the treatment process, or in any way altered the stability of the underlying defined pathological process. It is my finding that Mrs Ibrahim had at the nominated time a degenerative disease process well established in her lumbar spine (lumbo-sacral spondylosis), that it had been fully documented, and adequately investigated, treated and stabilised, in so far as the nature of the condition is one of slow deterioration in the normal course of events.

(b)  Cervical Spondylosis

i.Radiological investigation (plain x-ray) of 18 December 1998 was reported as demonstrating C6/7 degenerative disease (Exhibit A22). A similar finding was reported from a similar examination on 23 April 2003 (Exhibit A12). Similar findings were also reported from a CT examination of the cervical spine on 5 May 2003 (Exhibit A15). 

ii.I note the clinical history described by Mrs Ibrahim in relation to her neck pain. In the light of the history and investigation, I am satisfied that Mrs Ibrahim’s neck pain complaints have been fully documented and diagnosed, with the diagnosed condition investigated, treated and stabilised as at the date of claim.

(c)  Rotator Cuff Degeneration Right Shoulder

i.I note the history provided by Mrs Ibrahim in relation to her right shoulder. I note the ultrasound report of the right shoulder dated 16 June 2003 (T4), which concluded that there was a ‘partial bursal surface tear subscapularis tendon and calcific rotator cuff tendinosis of the supraspinatus tendon’. I also note Dr Gibson’s opinion that further treatment of this condition (physiotherapy, subacromial steroid injection), would assist in regaining a full range of motion of the right upper limb. While this was an opinion stated in July 2007, it is evident that its application is appropriate at the time of the claim in May 2005. In such circumstances I am satisfied that while the right upper limb has been fully documented, diagnosed and investigated, I am not satisfied that it had been fully treated and stabilised at the time in question.

(d)  Bilateral Carpal Tunnel Syndrome

i.I note Mrs Ibrahim’s clinical history regarding the symptomatology arising from both wrists. I note the conduction studies undertaken on both wrists on 30 March 2005, and the results which indicate abnormalities ‘consistent with bilateral carpal tunnel syndrome, moderate - severe on the right and very mild on the left’. I note that an operation on the right wrist was undertaken in July 2006, and that the result would appear less than favourable.

ii.Clearly the documentation and diagnosis of the bilateral wrist condition has been fully established by appropriate investigation. I would also observe that while there is no compulsion to undergo operative intervention to establish the treatment and stability profile, where there exists an intention to have operative intervention, it clearly follows that further treatment is to occur, and clinical stability will not eventuate until such an event has occurred. In the circumstances where Mrs Ibrahim has given evidence at the Social Security Appeals Tribunal to the effect that she intended to have both wrists operated on, and indeed did have the operation performed on the right wrist in July 2006, it would be inappropriate for the bilateral wrist condition to be considered treated and stabilised at the date of claim.

(e)  Hypertension

i.I note the clinical history and the treatment prescribed for Mrs Ibrahim’s hypertension. I am satisfied that the condition has been fully documented and diagnosed, with the diagnosed condition having been investigated, treated and stabilised, as evidenced by the absence of any symptoms arising from the condition. I also note an absence of any evidence of significant hypertensive recordings.

(f)   Chronic Gastritis with Reflux

i.I note the clinical history given by Mrs Ibrahim in relation to her stomach condition. I note the investigations undertaken at the Centre for Digestive Diseases in July/August 2003 (Exhibit A18). I note the diagnosis defined by that Centre as Chronic Gastritis associated with acid reflux. I am satisfied that the stomach condition has been fully documented and diagnosed and that the condition has been investigated, treated (Pariet tablets) and stabilised (some symptoms remaining).

(g)  Depression

i.I note Mrs Ibrahim’s six year history of depressive symptoms and the absence of any complaints of depressive symptomatology in the claim lodged on 24 May 2005 (T5). I note that Dr Assaad makes no mention of depressive symptoms in the treating doctor’s report of 20 May 2005 (T6). I note the work capacity/participation assessment report of 1 June 2005 (T7), in which the assessor notes ‘mild but regular symptoms’ with ‘minimal interference with every day functioning’ and not requiring treatment with either medication or counselling. I note the comment in the SSAT decision of 21 November 2005 that Mrs Ibrahim takes Xanax and this relieves her symptoms. I further note the treating doctor’s report of 21 June 2006 (Exhibit R5), in which Dr Assaad notes that Mrs Ibrahim presented in February 2006 with multiple depressive symptoms. I note that Dr Assaad referred Mrs Ibrahim to a psychiatrist, Dr Soliman, on 7 June 2006, who considered that Mrs Ibrahim was severely depressed and introduced therapy involving a number of medications (Exhibit A6).

ii.I am satisfied that at the time of claim lodgement on 24 May 2005 or within 13 weeks thereof, there is sufficient documentation to support a mental health diagnosable condition. I note from the material in evidence, that a diagnosis of depression or depressive disorder was evident before February 2006, when Dr Assaad referred Mrs Ibrahim to a psychiatrist because of deterioration in her condition at that time. Nevertheless I conclude, in the absence of necessary clinical material, that Mrs Ibrahim’s mental health condition at the nominated period, while poorly demonstrated had not been fully treated and stabilised.

(h)  Knees

i.In September 2007, Mrs Ibrahim complained of pain in both knees and difficulties with climbing and descending stairs for two years. I note x-ray reports of the left knee dated 9 May 1996 and 22 August 1997, which demonstrate early degenerative changes in the left knee joint (Exhibit A20, A21). Dr Gibson, in her report of 24 July 2007, noted that plain x-rays of both knees performed on 6 June 2007 were unremarkable, a situation consistent with her examination of both knees (Exhibit R6).

ii.In such circumstances, I am unable to find that any significant condition or complaint existed in Mrs Ibrahim’s knees at the time of lodgement on 24 May 2005 or within 13 weeks thereof. At best there is some evidence pointing towards some early degenerative changes in the left knee.

are the conditions nominated permanent

14.     In addressing this issue I am reminded that the permanency question relates to the clinical situation at the date of claim (24 May 2005) or within a period of 13 weeks thereof. I have been particular in detailing my reasoning as to the clinical diagnosis, documentation, investigations, treatment and stability of each condition earlier in this decision. I shall deal with each condition briefly.

(a)  Degenerative lumbo-sacral spine disorder (spondylosis) - condition was permanent, and will progressively deteriorate. Treatments prescribed are supportive and palliative (analgesics, anti inflammatory).

(b)  Cervical Spondylosis – condition permanent.

(c)  Rotator Cuff Degeneration Right Shoulder – condition not permanent, as further physiotherapy may well reduce the nominated impairment.

(d)  Bilateral Carpal Tunnel Syndrome - condition not permanent as evidenced by intention to have operative intervention, which occurred in July 2006.

(e)  Hypertension – condition permanent.

(f)   Chronic Gastritis with Reflux – condition permanent.

(g)  Depression – some symptoms of depression/anxiety complained of. Treatment with Xanax noted. Deterioration late January 2006, when referral to a psychiatrist occurred and multiple therapies commenced. Condition not permanent.

(h)  Knees – no definable condition apparent.

assessment

15.     The following assessments are made pursuant to the Impairment Tables and are particular to the period commencing 24 May 2005 and for a period of 13 weeks.

(a)Lower back impairment (lumbar sacral spondylosis) – Pursuant to Table 5.2, 10 points, in that there is a loss of one quarter of normal range of movement of the thoraco-lumbar-sacral spine, together with back and referred pain associated with many physical activities (such as lifting and bending) with standing for 30 minutes and with sitting or driving for 60 minutes.

In making such a finding, I am mindful of Mrs Ibrahim’s symptomatology at the time and the nature of the radiological findings at that time in comparison to later radiological reports. I was also assisted by Dr Gibson’s report, this being the only report before me which attempted to define the range of movements in the spine and measure such. I accept that there is a 26 month gap in time frames, but for the reasons already expressed, I do not believe that the range of movement would have significantly differed to the point of being normal or near normal at 24 May 2005. Certainly Mrs Ibrahim’s pain symptomatology with movement was recorded at that time.

(b)Cervical Spondylosis – Pursuant to Table 5.1, nil rating as there was no recorded loss of range of movement of cervical spine. I note that Dr Gibson on 24 July 2007 recorded a normal range of movement.

(c)Rotator Cuff Degenerative Right Shoulder – nil rating assessed as condition assessed as not permanent (further treatment to occur).

(d)Bilateral Carpal Tunnel Syndrome – nil rating assessed as condition assessed as not permanent (operative intervention intended).

(e)Hypertension – nil rating pursuant to Table 20 as the hypertension is controlled.

(f)Chronic Gastritis with Reflux – nil rating pursuant to Table 11.1 as mild symptoms continues even with treatment.

(g)Depression – nil rating assessed pursuant to Table 6 in that while Mrs Ibrahim had mild but regular symptoms, which while causing some subjective distress, caused minimal interference with her every day activities. I considered that the condition was not permanent, in that future treatment and stabilisation had yet to occur at the nominated period.

(h)Knees - no rating assessed as no definable condition.

overal assessment

16. Having assessed all Mrs Ibrahim’s impairments considered existing at 24 May 2005 or within 13 weeks thereof, I find that the combined assessment of such impairments is 10 points. In such circumstances, I conclude that Mrs Ibrahim fails to satisfy section 94(1)(b) of the Act in that her composite assessment of 10 points was less than the required 20 points.

DETERMINATION

17.     I find that Mrs Ibrahim’s claim for disability support pension lodged on 24 May 2005 must fail in that Mrs Ibrahim failed to satisfy one of the necessary qualifying criteria, namely a combined impairment assessment of more than 20 points.

18.     In such circumstances I conclude that the decision under review be affirmed, with Mrs Ibrahim not entitled to payment of disability support pension between 24 May 2005 and 6 July 2006.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         .........................[sgd]........................................
  Keelyann Thomson, Associate

Date/s of Hearing     4 September 2006, 19 April 2007, 23 August 2007

Date of Decision   1 November 2007
Solicitor for the Applicant          Self-Represented
Solicitor for the Respondent     George Lozynsky