Kahil and Secretary, Department of Family and Community Services

[2001] AATA 364

DECISION AND REASONS FOR DECISION [2001] AATA 364

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1519

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ABDALLA KAHIL  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member  

Date4 May 2001 

PlaceSydney

Decision      The decision under review is affirmed. 
  ……………………………….  
  Rear Admiral A R Horton AO
  Member
CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – Applicant ceased work on redundancy in 1999 – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 or more vide Schedule 1B – ability to undertake work – ability to undertake educational or vocational training

Social Security Act 1991 – ss 94(1), (2), (3), 100(3)

Re Pirie and Secretary, Department of Social Security (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Rear Admiral A R Horton AO, Member                   

1. This is an application for review of a decision dated 14 February 2000 by a delegate of the Secretary, Department of Family and Community Services ("the Respondent"), that Abdalla Kahil ("the Applicant") is not eligible for a disability support pension ("DSP").  That decision was affirmed by an Authorised Review Officer of the Respondent on 3 April 2000, and further affirmed by the Social Security Appeals Tribunal ("the SSAT") on 4 September 2000.  The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 28 September 2000.

2. At the hearing before the Tribunal on 29 March 2001, the Applicant was self represented, but was assisted by his daughter, Mrs Marianne Docherty.   Mr Bernard Slattery, advocate, appeared for the Respondent.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Exhibit No                          Description          Date
A1      Report Dr M Girgis   26 September 2000
A2      Letter Dr M Girgis    1 December 2000   

1. The Applicant gave oral evidence to the Tribunal, assisted by an interpreter fluent in the Arabic language.   Mrs Docherty also gave oral evidence.

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION

1. On 21 January 2000, the Applicant claimed the disabilities of osteoarthritis of the right and left knees, painful right heel spur and non-insulin dependent diabetes.   Following consideration and assessment by Health Services Australia ("HSA"), these conditions together with partial hearing loss, were accepted by the Respondent.

2. The issues before the Tribunal are whether the Applicant has a physical, intellectual or psychiatric impairment that is assessed at 20 points or more under the impairment tables in Schedule 1B of the Social Security Act 1991 ("the Act"), and if so, whether he has a continuing inability to work because of that impairment pursuant to the conditions in s 94(2) and (3) of the Act.

3. Documents taken into evidence have been listed at paragraph 3.  A further report from Dr Girgis dated 11 December 2000 was also before the Tribunal.   This report advised that the Applicant was suffering from depression, a condition not claimed in the matter before the Tribunal.   The report was not taken into evidence, nor the matter addressed further. 

4. Also before the Tribunal was a letter to the Applicant from a Customer Services Officer of Centrelink dated 19 March 2001, referring to a review of a pension payment claim, and a "re-assessment of medical conditions on 13 March 2001" at a second medical examination conducted by a HSA medical advisor.   The background to this letter is unclear, it seemingly relating to a later claim by the Applicant.   The Tribunal takes account of the attached medical report only so far as it provides clarification of medical conditions that are the subject of this review.  Following Re Pirie and Secretary, Department of Social Security (AAT 11505, 20 December 1996), the period of assessment in this matter, pursuant to subsection 100(3) of the Act, is from 21 January 2000 to 20 April 2000.

5. Section 94 of the Act states, relevantly:

   "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:

   (1) the person has a continuing inability to work;
   (2) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the health Department, stating the period for which the person is to participate in the system; and

   (d) the person has turned 16; and
   (e) the person either;

   (i) is an Australian resident at the time when the person first satisfies paragraph (c); or
   (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)      ….

   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 two year; 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 purposes of subparagraph (2)(b)(ii), if a person has turned 55, …"

6. Subsection 100(3) of the Act states:

   "If:       

   (a) a person lodges a claim for a disability support pension; and
   (b) the person is not, on the day on which the claim was lodged, qualified for a disability support pension; and
   (c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

   the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

"1.       …The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense.   For this reason, no specific adjustments are made for age and gender.  ...

2.        These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.  These Tables are function based rather than diagnosis based.  …

3.     These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …

4.     A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. … 

5.     The condition must be considered to be permanent.  ….
…

8.        In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. …"   

FACTS AND EVIDENCE

1. Mr Kahil was born in Egypt on 27 January 1948.   He migrated to Australia in October 1986.   He obtained an Electrical Trade Certificate in Egypt and worked there in that industry.   He gave evidence that this qualification has not been accepted in Australia nor would he be able to work in the industry due to his English language difficulties.   Instead he has worked as a cleaner, process worker and forklift driver both full and part time.   His last work was with Creannova Ink Pty Ltd at Ingleburn on a part time basis, the contract for this work concluding in December 1999.  He described other work (at Leppington Pastoral Company in 1999) as being in the nature of a general hand, responsible for feeding shredded paper onto a machine belt.   He generally sat, but had to stand to load the belt.   Lifting affected his knees, and he was affected by dust.

2. He gave evidence that since 1999, he has subsequently looked without success for work, but has reservations that he could undertake any work even were it available.     He advised that he is in receipt of newstart allowance.

1. The Applicant lodged a claim for the DSP on 21 January 2000 (T3), the accompanying Treating doctor's report being completed by Dr M Girgis (T4). His disabilities were described as osteoarthritis right and left knees, painful right heel spur and non-insular diabetes mellitus.   Dr Girgis described the clinical features of   osteoarthritis of the knees as 'constant pain', to be treated by rest as required and medication.  He described the clinical features of the right heel spur as 'pain right heel especially on standing or walking', to be treated by rest and medication, and the clinical features of diabetes as 'tired and thirsty', to be treated by diet and diamicron tablets.   He assessed all these conditions as long term, with the osteoarthritis condition deteriorating, the spur condition fluctuating and the diabetes being stable.

2. Accompanying the Treating doctor's report was a report from Campbelltown Radiology dated 31 December 1999 (T5 at folio 29).   This reports states:

"There is minimal narrowing of both medial knee joint compartments with osteophytic lipping of the contiguous margins.   There are also smaller spurs from the upper and lower poles of both patellae, as well as the articular margin of both lateral tibial condyles.
Summary:      Osteoarthritis both knees"

1. Dr Girgis considered that the Applicant would be unlikely to be able to return to any type of full time work for at least 30 hours per week for at least two years, nor be able to work more than 20 hours per week for at least two years.   He considered the Applicant likely to be able to return to any kind of part time work within six months, but in a further examination some six weeks later (1 March 2000), changed this opinion to indicate that the Applicant would be unlikely to return to any kind of part time work for more than two years.

2. A medical examination and assessment of the Applicant was undertaken by Dr G Thompson of HSA on 10 February 2000 (T7).   He agreed with the diagnoses by Dr Grigis, and further assessed the condition of partial hearing loss.  He assessed the impairment rating for osteoarthritis of both knees and right heel spur under Table 4 at Nil points, on the basis that the applicant could 'walk over 500 metres'.  He noted 'difficulty on uneven surfaces'.  He further noted that the Applicant was able to garden and do work around the house, that he rarely took medicine and that the spur was asymptomatic.  He described the knees on examination as having no effusion and no bursitis.   

3. Dr Thompson assessed the impairment rating for diabetes under table 19 at 10 points, noting the condition had been detected only one month earlier and was 'unstable at present and needs medication'.  He noted the diet was controlled, but referred to poor sugar control.   He saw no evidence of diabetes related eye problems.   He accorded Nil points for partial hearing loss, which he calculated at 14.2% based on an audiogram of 9 February 2000.   

4. Dr Thompson assessed the total impairment rating at 10 points.   He stated the following in his "'whole person assessment":

   "This 52 year old man does casual on call work as a storesperson/labourer.   He has recently been diagnosed with diabetes and unstable sugars, and his medication is being titrated up.   He should not work at heights or be left unsupervised, otherwise this should not impair function.
   He has mild osteoarthritis of both knees and a heel spur but can function, despite these and usually he does not take medication for these.
   He has a partial hearing loss of 14.2% that does not impair function.   His doctor says he should be able to return to his labouring job in 6 months.  He is currently fit for light bench or process work.  He has the non medical problem of poor English skills."

5. The SSAT agreed with the HSA assessment of nil impairment points for osteoarthritis and right heel spur, but considered the correct loss of hearing to be 35.3%, warranting an impairment rating of 10 points under table 12. The SSAT considered that the Applicant's diabetes had not stabilised and hence no impairment rating (under paragraph 4 of the Introduction to Schedule 1B) could be allocated. Thus the total impairment rating was assessed at 10 points.

6. The later HSA Medical Assessment report dated 13 March 2001 was undertaken by Dr T Kanapathipillai.   As previously stated, this examination falls well outside the assessment period for this claim, but it does provide further description and clarification of the claimed conditions.   He considered that Nil impairment points were appropriate for osteoarthritis of the knees and right heel spur, his examination broadly reaching similar conclusions as the earlier examination, stating "'no signs of swelling or deformed knees…no wasting of muscles…knee movements full".

7. Dr Kanapathillai considered the Applicant to have "satisfactory blood sugar control with tablets" and indicated that the single medication taken when the disease was diagnosed had now increased to two types with more frequency.   He assessed the condition as permanent, but saw "'no significant functional limitations".   He assessed visual acuity as good.   In regard to partial hearing loss, he agreed with the calculated percentage loss of binaural hearing as calculated by the SSAT from the February 2000 audiogram.

8. The Applicant was somewhat reticent in his evidence, but told the Tribunal  that his knees 'hurt all the time'.  He subsequently modified this by stating that he takes panadol or panadein when he gets pain, "every couple of days".   He did not think he could work from home, as his knees would hurt, and as earlier noted, had reservations that he could undertake any work.   Because of the condition of his knees, he was no longer able to get on or off fork lift vehicles, equipment that he was licensed to operate and had done so in previous employment.  He stated that he could only walk short distances, and not from his home to the local shops.  When he had to travel, he infrequently drove, or was driven; he used public transport, and his daughter drove him to his local railway station to take the train to the city for this hearing.   He stated that he had walked from Town Hall station, but gave no evidence as to whether this was with difficulty or otherwise.   He stated that he had spurs on both feet, and could not put his feet on the floor when rising, describing the periodicity as "every once in a while".  

9. As regards his diabetes mellitus, the Applicant believed this condition was not under control, that he suffered from dizziness and blurred vision, and for that reason alone could not drive very much.   He confirmed he is on medication (diamicron and diabex).  

10. In response to a question from the Respondent as to whether he considered he could work again, the Applicant stated that he did not think so. The Applicant stated that this was due to a combination of the effects of all three claimed disabilities, osteoarthritis of both knees, right heel spur (he restated that he also had left heel spur), and diabetes.   In respect of forklift driving, he stated that he did not think he could do so anymore – at the time he had to stop driving a forklift, it was because of his knees – "he did not have diabetes" at that time.   The Applicant also referred to his hearing problems, more so in the right ear than the left.

11. The Applicant's daughter, Mrs Docherty, gave evidence to the Tribunal.   She lived in the family home until 1999, and subsequently sees her father on most days.  She considered that even were suitable work available, the Applicant's physical condition was such that he would not be able to undertake such work.   At the time of ceasing work his knees were getting worse, and 'he could not walk that much'.  In her view, his condition accorded with the criteria for 10 impairment points as defined in Table 4.  Mrs Docherty further opined that his diabetes was getting worse, that it interfered with his driving through dizziness and that he was now requiring more medication to stabilise the condition.   
    SUBMISSIONS 

12. In final submissions, the Applicant was reticent about making any further statement, considering that what needed to be said had been said.   The Tribunal accepted further comment from the Applicant's daughter on his behalf, she emphasising that in her opinion her father would not be able to return to work because of his medical conditions.   Mrs Docherty specifically referred to his previous occupation as a fork lift operator, saying that his knees would prevent him from undertaking such employment.

13. The Respondent submitted that whilst the Applicant has accepted physical impairments of osteoarthritis of the right and left knees, right heel spur and non-insulin diabetes, as diagnosed by Dr Grigis and confirmed by Dr Thompson of HSA, the degree of impairment is insufficient to meet the requirements of section 94(1) of the Act. He submitted that a total impairment rating of 10 points as assessed by the SSAT was the correct assessment. He summarised the Respondent's position thus:

    Knees and Right Heel Spur           The medical evidence, including that in the radiology report confirming osteoarthritis in both knees, does not support the claimed difficulties.  The Applicant last worked in 1999 and ceased such work when it was no longer available.  He disputed that the loss of function of the knees could be as rapid as implied in the later report by Dr Girgis (Exhibit A2).  On the evidence, an impairment rating of Nil under Table 4 remained appropriate, and there was no reason why the Applicant could not resume work, even should the Tribunal assess the loss of function at 10 points.  In that regard, the Respondent considered that the only condition in which any doubt as to the degree of impairment might be entertained, was that of osteoarthritis of the knees. 
    Diabetes Mellitus     The Applicant's diabetes condition was not diagnosed until January 2000, at about the time the claim was submitted.  The assessment by the HSA medical advisor noted that the condition had not stabilised. The Respondent considered that in accordance with the guidelines for the assessment of work related impairment, a rating under Table 19 could not be given, a position taken by the SSAT.
    Hearing        The Respondent accepted an impairment rating under Table 12 of 10 points, based on the recalculated percentage loss of binaural hearing of 35.3%.

14. As regards the conditions of lower back pain and depression referred to in a further HSA assessment dated 13 March 2001 (referred in paragraph 8 above), the Respondent submitted that these conditions were not part of the claim under review and should not be considered further.

15. In summary, the Respondent considered that the only medical condition, about which there might be some doubt as to the impairment rating, was that of osteoarthritis of the knees.   Nonetheless, the Respondent considered Nil impairment points to be appropriate.   The Respondent further submitted that even should a total impairment rating of 20 points be determined, there was insufficient evidence to suggest that the Applicant had a continuing inability to work.
    ANALYSIS OF EVIDENCE AND FINDINGS

1. In respect of the matter under review, the Tribunal finds that Mr Kahil suffers from the physical impairments of osteoarthritis of the right and left knees, right heel spur, non insulin diabetes mellitus and partial hearing loss. The requirement of subsection 94(1) of the Act is thus met.

2. Subsection 94(1) (b) then requires the impairment rating under Schedule 1B of the Act to be 20 points or more. The conclusions drawn by the Tribunal as to the appropriate impairment ratings are as follows:

   Osteoarthritis of the Knees and Right Heel Spur          In the Treating doctor's reports of February and March 2000, Dr Grigis referred to clinical features of constant pain in both knees and pain in the right heel on standing or walking.  He saw the condition deteriorating and the treatment as rest and medication.   On the other hand, the HSA medical examiner, Dr Thompson, gave a rating of Nil under Table 4 in respect of both these conditions.  On medical examination, he considered that the Applicant could walk over 500 metres, and that the Applicant could and did undertake a number of domestic tasks. He also found that the knees showed no significant signs of stress and the spur was asymptomatic.  He stated that the Applicant 'rarely takes medication'.  A further assessment completed one year later by another doctor generally conforms to these observations.  In evidence, the Applicant was not very specific about the functional limitations resulting from these conditions.  He stated that his knees hurt all the time, but conceded that he only took medication when they hurt 'every couple of days'.  Other responses to questions were of a general nature, but indicating the belief that he could not work because his knees would not permit it.  The Tribunal pays due regard to the fact that Mr Kahil was obliged to respond through an interpreter, and due regard to the opinions put forward by Mrs Docherty. However, the Tribunal finds that an impairment rating of Nil under Table 4 remains the relevant assessment, given the absence of 'demonstrable' limitations as required for a higher assessment.
   Diabetes Mellitus Dr Girgis stated in both his reports that the condition was stable, treatment being diet and medication. Dr Thompson gave an impairment rating of 10 points under table 19, notwithstanding that the condition was assessed as being unstable, implying that the condition remained under investigation and that appropriate medication treatment was being determined. In accordance with the guidelines for the impairment tables as defined in Schedule 1B, the Tribunal is in accord with the Respondent's submission that this condition could not be rated. The Tribunal does note that the recent HSA assessment (13 March 2001), which was not taken into evidence, accords impairment ratings of Nil under Table 19 (Endocrine Disorders) and Nil under Table 13 (Visual Acuity). The Tribunal also observes that even were the condition eligible for an impairment rating under table 19, it could only be Nil or 20 points. There is no suggestion from any of the reports or from the applicant's evidence, that 20 points could be appropriate.
   Partial Hearing Loss           The Tribunal finds that an impairment rating of 10 points under Table 12 is appropriate, based on the audiogram of 9 February 2000.

3. The Tribunal therefore finds a combined impairment rating of 10 points, and accordingly the Applicant does not meet the conditions of subsection 94(1)(b) of the Act, which requires an impairment of 20 points.

4. As subsection 94(1)(b) has not been met, the Tribunal makes no determination as to whether the Applicant has a continuing inability to work, pursuant to the further requirement of subsection 94(1)(c), as further defined in subsections 94(2) and (3). But some comment is appropriate. Dr Girgis opined in his initial report that the Applicant was likely to return to part time work within 6 months; less than two months later he stated that a return was likely after more then two years. No reason for this change in expectation is evident. Dr Thompson considered him (T7 at folio 44) to be 'currently fit for light bench or process work'. Suffice that the Tribunal has reservations, on the evidence adduced at the hearing, that the Applicant could meet the conditions of subsection 94(1)(c).

5. For the reasons given above, the Applicant is not eligible for the DSP.   The decision under review is therefore affirmed.                   

   I certify that the 35 preceding paragraphs are a true copy of
   the reasons for the decision herein Rear Admiral A R Horton AO, Member

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

   Dates of Hearing  29 March 2001
              Date of Decision  4 May 2001   
              Solicitor for Applicant  Self represented
              Solicitor for the Respondent        Mr B Slattery