Marouf and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1027

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1027

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/52

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAROUF MAROUF

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Ion Alexander, Member

Date29 January 2007

PlaceSydney

Decision The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY– disability support pension- physical, intellectual or psychiatric impairment – diagnosed condition – impairment rating – decision under review affirmed.

Social Security Act 1991- s94, Schedule 1B

Social Security ( Administration) Act 1999- Schedule 2

29 January 2007 REASON FOR DECISION

INTRODUCTION

1.      On 8 July 2005 Mr Marouf submitted a claim for a disability support pension (DSP). Centrelink rejected the claim and a subsequent appeal to the Social Security Appeals Tribunal (SSAT) heard on 6 January 2006 affirmed that decision. The decision by the SSAT is the subject of this review by the Administrative Appeal Tribunal (AAT).

2.      Mr Marouf attended the AAT for a hearing on 11 January 2007 and was not legally represented. His 18 year old daughter accompanied him.

3.      It was noted that at the SSAT hearing and at the time of his assessment by Dr Gibson, Mr Marouf had the assistance of an interpreter. This matter was raised with Mr Marouf but he firmly insisted that he was able to continue without such assistance. During the hearing it became clear that Mr Marouf was able to understand the proceedings and indeed able interact satisfactorily without the assistance of an interpreter.

4. Mr Marouf claimed impairment in several body systems. After having considered all the evidence I am not satisfied that at the time of the application or within the following 13 weeks Mr Marouf’s claimed impairments achieved an impairment rating of 20 points as required by section 94(1) of the Social Security Act 1991 (the Act).

5.      Therefore Mr Marouf has been unsuccessful in his claim and the decision of the SSAT is affirmed.

ISSUES

6.      Mr Marouf claims functional impairment in several body systems namely the spine (cervical and thoraco-lumbar), upper limbs, and gastrointestinal.  He also claims psychiatric impairment.

7. In order to qualify to receive a DSP Mr Marouf must have satisfied the requirements of s94(1) of the Act at the relevant time, that is, at the time of his application or in the subsequent 13 weeks: Social Security (Administration) Act1999, Schedule 2.

8.      The relevant time is 8 July 2005 to the 7 October 2005.

9.       Therefore the first issue to consider is whether during this time Mr Marouf had a physical, intellectual or psychiatric impairment as defined by the Act: s94(1)(a)..  That is, did he have a condition or conditions that could be assigned a rating under the Impairment Tables in Schedule 1B of the Act.

10.     The introduction to the Tables specifies that a rating can only be assigned to a condition that has been fully documented, diagnosed and has been investigated, treated and stabilised.

11.     If Mr Marouf did in fact have such a condition or conditions then the next issue is whether his impairment was rated as 20 points or more: s94(1)(b).

12.     If so, the final issue is whether Mr Marouf had a continuing inability to work: s94(1)(c).

MR MAROUF’S EVIDENCE

13.     Mr Marouf is a 51 year old man of Syrian descent who lives with his second wife and five children aged 18 years, 5 years, 4 years, 3 years and 3 months.

14.     Mr Marouf immigrated to Australia in November 1987. In Syria Mr Marouf had been a qualified surveyor.  During his first six months in Australia Mr Marouf worked for Marrickville Council. Over the next three years he worked full time as a site foreman for a demolition company. This was a physically demanding position that also required significant organising skills. From 1991 – 1997 he did not work regularly but attended several courses including decorative sign writing, English language and interpreter training. This period coincided with domestic conflict and he and his fist wife separated in about 1994 leaving him with carer responsibilities for some of his children. Between 1997 and 2000 Mr Marouf worked part time including about 18 months as an estimator for an excavation and demolition company. During this period he continued to care for his children and now had additional carer responsibilities for his sick elderly mother. In 2001 he travelled to Syria and remarried and returned to Australia in the same year.

15.     Mr Marouf has not been employed since 2000 and continued to care for his children and elderly sick mother who died in May 2005.

16.     On 26 November 2004 Mr Marouf was involved in a motor vehicle accident where he was the driver of the middle car in a “three car shunt”.  He was transported to Liverpool Hospital by ambulance and was discharged home on the same day.  Mr Marouf claimed that he had injured his neck, lower back and right shoulder but had tried to minimise the severity of his discomfort so that he would not compromise the discharge of his mother who was also in Liverpool Hospital at the time. He stated that there was pressure to send his mother to a nursing home but he wanted to care for her at home and felt that if he had complained of more severe symptoms the hospital would not have let him take his mother home.

17.     Mr Marouf claims that he has had continuing physical problems as a result of the accident. He complains of a variety of symptoms and difficulties with pain and mobility in his neck, lumbar spine and shoulders. Mr Marouf claims that he is significantly limited in performing normal domestic activities and requires assistance from his wife and family. This includes assistance with dressing and some aspects of personal hygiene. He stated that since the accident he has gained about 15 kgs in weight.

18.     Mr Marouf claims that he can sit for only 20 to 30 minutes before experiencing pain and numbness, stand for only a few minutes and walk slowly for only 10 minutes before having to stop. He admitted to being able to drive a manual motor vehicle for about half an hour but has difficulties with parking.

19.     Mr Marouf is right handed and claims that he has difficulty in lifting as a result of limitation of movement in his right shoulder. He can use his fingers and wrist and has no apparent difficulty with writing. He claims that he has increasing symptoms in his left arm as a consequence of increased use to compensate for the limitations in his right arm.

20.     Following the accident in 2004 Mr Marouf was initially treated by his General Practitioner (GP), Dr Tadros, but in 2005 was referred to Dr Maniam for specialised assessment and treatment. Since then Mr Marouf has undergone numerous investigations and has had varied treatment for his physical complaints including physiotherapy, non-steroidal antiinflammatory medication and various oral analgesics. He has also had injections into the joints of both shoulders

21.     In mid 2005 Dr Tadros diagnosed depression and started Mr Marouf on anti-depressant medication. Mr Marouf was unable to remember exactly when the medication was started but thought it may have been in July 2005. He was subsequently referred to a psychiatrist who saw him on three occasions in late 2005. The psychiatrist confirmed a psychiatric diagnosis and suggested continuing the medication, which had been started by Dr Tadros but at a higher dose. Recently Dr Tadros changed the antidepressant medication and referred Mr Marouf to an Arabic speaking psychiatrist, Dr Younan who saw Mr Marouf on one occasion in early December 2006. Mr Marouf indicated that he thought the new medication had helped and that there had been some improvement in his symptoms.

22.     Since the accident Mr Marouf has also had intermittent difficulty with gastrointestinal symptoms, which he attributes to the anti-inflammatory medication he has been taking. His symptoms have been controlled with Nexium. More recently he complained of bleeding from the bowel and is on the waiting list for an endoscopy to be performed at Liverpool Hospital.

23.     In his evidence Mr Marouf indicated that he would like to work but feels he is unable to with his current level of impairment.

MEDICAL  EVIDENCE

24.     On the morning of 26 November 2004 Mr Mr Marouf was seen in the Emergency Department of Liverpool Hospital following his motor vehicle accident. The contemporaneous clinical records note that he complained of pain in the lower back and right shoulder. Physical examination revealed tenderness “over anterior right shoulder and over coccyx.” Xrays did not reveal any fractures and no diagnosis was made. Mr Marouf was discharged on the same day with a script for oral analgesia and to be followed up by his GP.

25.     A report of a cervical spine CT scan dated 12 January 2005 states: “There is minor degenerative change in the cervical spine and slight disc bulging at multiple levels. This causes an anterior impression on the thecal sac but there is no significant stenosis. At C7/T1 level, the disc protrusion is more prominent and does extend laterally, particularly on the right side. This may be causing some compression of the nerve root.”

26.     A report of an MRI scan of the cervical spine dated 21 February 2005 describes small central annular tears and disc bulges but no cord compression at three levels. There was no abnormality described at the C7/T1 level thus not confirming the reported abnormality described in the earlier CT scan. 

27.     The same report describes the findings of an MRI scan of the lumbar spine: “At L1/2 very small annular tear and small central disc bulge. No central or foraminal neural compression” and “minimal mid and lower lumbar spine facet joint hypertrophy.”

28.     A report of an ultrasound examination of the right shoulder dated 11 July 2005 states “There is bony pitting with a full thickness tear of the anterior to mid portion of the supraspinatus tendon. There is marked bursitis with a thickened bursa and blocking upon abduction.”

29.     A report dated 17 August 2005 states that steroid was injected into the subacromial bursa of the shoulder under ultrasound guidance. Presumably this was the right shoulder although it is not stated in the report.

30.     A report of an of an ultrasound examination of the left shoulder dated 8 November 2005 reveals a “large partial thickness articular surface tear “and “bursal thickening and a small effusion in the subacromial/subdeltoid bursa”

31.     A report dated 29 December 2006 states that steroid was injected into the subacromial bursa of the left shoulder under ultrasound control.

32.     The only evidence from Dr Tadros, Mr Marouf’s GP, is a brief note dated 12 September 2005 stating that Mr Marouf suffers from an injury to his right shoulder, cervical disc protrusion, lumbar disc lesion and depression.

33.     Dr Lim, Consultant Psychiatrist, provided a very brief report dated 8 December 2005 and noted that he had seen Mr Marouf on three occasions. Dr Lim considered that Mr Marouf’s mental state was due to his problems with pain and diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Lim considered the condition to be mild and stated that “its course will depend on the course of his bodily pains.”  Continuing treatment with antidepressant medication was recommended.

34.     Dr Maniam provided a report dated 20 December 2005. The report identifies Dr Maniam’s qualifications in surgery but does not provide any information as to whether he is qualified as an orthopaedic surgeon. He indicated that he had seen Mr Marouf over a 12 month period with the last visit on the 16 December 2005.

35.     In his report Dr Maniam provided a relatively superficial history and listed various diagnostic studies.

36.     On physical examination of the cervical spine tenderness of the lower and the facet joints was noted.  A range of movements in various directions was also noted with no reference to the normal range. 

37.     Examination of the right shoulder revealed tenderness in the anterior superior aspect and the acromioclavicular joint.  Abduction was noted to be limited 90 degrees. It was not stated whether range of movement was assessed passively or actively.

38.     Examination of the lumbar spine revealed tenderness over L5/S1 and “Movements induced pain in forward flexion and extension and were managed to 40 degrees and extension to 25 degrees.” No reference to a normal range was made.

39.     In the report Dr Maniam did not make any real diagnosis with regard to the spine apart from noting some abnormalities found on investigation. He provided no real analysis of the implications of these abnormalities. He did however note that there had been an improvement in the cervical and lumbar conditions and now appeared to be stable. This would suggest that the claimed conditions were not stabilised during the relevant period.

40.     With regard to both upper limbs Dr Maniam diagnosed supraspinatis tears with bursitis and impingement. He noted that that the intense pain had subsided but that the movements had not been recovered. He indicated that a further period was required before making a decision as to whether arthroscopic surgery would be necessary. It follows that at the time of his report the upper limbs conditions could not be considered as fully treated and stabilised. In passing I note that at the start of the hearing Mr Marouf conceded voluntarily that the problems with his shoulders are ongoing and still require further treatment.

41.     Dr Gibson, Occupational Physician, provided a report dated 3 October 2006.  In her report Dr Gibson provided a reasonable history of Mr Marouf’s complaints and listed the various investigations done since 2004.  On physical examination Dr Gibson noted loss of one quarter of normal range of movement of the back and loss of one quarter of normal range of movement of the cervical spine.  On examination of the upper limbs significant reduction in movement of the right shoulder is described.  It is not stated whether the assessment of the range of movement of the shoulders was done actively or passively. Dr Gibson gave a rating of 5 points for the cervical spine, 10 points for the thoraco-lumbar spine and 0 points for upper limb function.

42.     There is no report from Dr Younan.

CONSIDERATION AND REASONS

43.     In coming to my decision I note particularly the requirements with regard to the assessment of impairment as set out in the introduction to Schedule 1B. It is clear that the assessment should be function based and not diagnosis based. However diagnosis cannot be ignored, as a rating can only be assigned to a fully documented, diagnosed condition which has been investigated, treated and stabilised and considered to be permanent.

44.     I also note that the assessment of the impairment must occur at the time of the application or with in the following thirteen weeks which in this case is between the 8 July 2005 and the 7 October 2005.  

45.     Apart from the diagnostic reports the quality of the medical evidence in this case has not been entirely satisfactory particularly with regard to the spinal conditions.  None of the medical practitioners have in fact made any real diagnoses. The doctors appear to have accepted all Mr Maurouf’s claims and attributed all his problems to the findings shown on the various scans. There has been no evaluation of these findings in relation to the claimed symptoms and no real assessment as to the significance of these findings from the perspective of treatment or prognosis. Therefore I am not satisfied that at the relevant time the claimed spinal conditions were eligible to be assigned an impairment rating.

46.     Furthermore in his report dated 20 December 2005 Dr Maniam clearly indicated that the claimed spinal conditions had improved and that they had become stable after the end the relevant period.

47.     With respect to the upper limbs I accept that Mr Marouf has diagnosed conditions. The problem with the right upper limb was diagnosed on the 11 July 2005. The evidence clearly demonstrates that this condition was not fully treated and stabilised during the relevant time.

48.      The condition in left upper limb problem was not diagnosed until November 2005 and therefore cannot be considered in this review.

49.     I accept that a depressive disorder was diagnosed in about July 2005. However, the evidence clearly demonstrates that although treatment was started during the relevant period the condition cannot be considered to have been fully treated and stabilised during that period.

50.     With regard to Mr Marouf’s gastrointestinal symptoms I note that as yet there is no diagnosed condition eligible for an impairment rating.

51.     For the aforesaid reasons I have decided that at the relevant time the impairment rating for Mr Marouf’s claimed conditions is zero points. It follows that Mr Marouf’s claim for a DSP is not successful as the requirements of s94(1)(b) have not been satisfied.

52.     It follows that the question of continuing ability to work does not need to be considered.

53.     In passing I note that there was some evidence before the tribunal, which would suggest that a future assessment of Mr Marouf’s claimed conditions may result in a more favourable impairment rating.

DECISION

54.     The Tribunal affirms the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I. Alexander, Member

Signed: ……......[Emily Gadsby].......................
  Associate

Date/s of Hearing  11 January 2007
Date of Decision  29 January 2007
Representative for the Applicant    Mr M Marouf, Self-represented
Solicitor for the Respondent          Ms P Sharma, Centrelink Legal Services