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

[2008] AATA 166

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 166

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N 2007/0033

GENERAL ADMINISTRATIVE DIVISION		)
Re		AMIRA MASRI

Applicant

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

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date28 February 2008

PlaceSydney

Decision The decision under review is affirmed.   

.................[SGD]..................

Dr I Alexander

Member

CATCHWORDS

SOCIAL SECURITY- Disability Support Pension – physical, intellectual or psychiatric impairment – assessment of functional capacity- assignment of an impairment rating –– decision under review is affirmed   

LEGISLATION

Social Security Act 1991 – ss 94(1), 94(1)(a), 94(1)(b), Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

REASONS FOR DECISION

28 February 2008                Dr I Alexander, Member

INTRODUCTION

1.On 8 February 2006 Mrs Masri 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 1 December 2006 affirmed that decision. The decision by the SSAT is the subject of this review by the Administrative Appeals Tribunal (“AAT”).

2.Mrs Masri attended the AAT for a hearing on 7 February 2008 and was not legally represented but Mrs Masri had the assistance of an Arabic interpreter.

ISSUES

(i) qualifying period

3.In order to qualify to receive a DSP Mrs Masri must have satisfied the requirements of section 94(1) of the Social Security Act 1991 (“the Act”) at the time of her application or in the subsequent 13 weeks as determined by the Social Security (Administration Act) 1999, Schedule 2.

4.The qualifying period is 8 February 2006 to the 10 May 2006.

(ii) did mrs masri have a physical, intellectual or psychiatric impairment as pursuant TO SECTION 94(1)(a) of the act during the qualifying period?

5.In order to satisfy section 94(1)(a) of the Act, Mrs Masri is required to have a condition or conditions that could be assigned a rating under the Impairment Tables in Schedule 1B of the Act.

6.Mrs Masri’s oral evidence on this issue was unhelpful. At the hearing it was clear that her memory with regard to details referable to the qualifying period was uncertain. She also had some difficulty distinguishing between her present and past symptoms. This was not surprising considering that it had been two years since the time of her claim.  

7.Mrs Masri’s claim for DSP was supported by a treating doctor’s certificate from her general practitioner, Dr Gergis, dated 3 February 2006.  In this certificate Dr Gergis diagnosed atrial fibrillation with chest pain, multiple arthritis of both shoulders and upper arms, ‘hepatic cyst’ and carpal tunnel syndrome.  

8.In a letter dated 21 April 2005 Dr Nasser, cardiologist, noted that Mrs Masri suffered from paroxysmal atrial fibrillation, hyperlipidaemia, atypical chest pain and ‘hepatic cyst’.

9.In a report dated 24 March 2006, Dr Chara, Health Services Australia Medical Adviser, diagnosed atrial fibrillation, osteoarthritis and bilateral carpal tunnel syndrome.

10.Therefore the documentary evidence supports Mrs Masri claim that during the qualifying period she suffered several medical conditions, namely, paroxysmal atrial fibrillation, arthritis of the neck and shoulders, hyperlipidaemia, bilateral carpal tunnel syndrome and hepatic cyst. Whether an impairment rating could have been assigned to these conditions is not clear.

11.Schedule 1B of the the Act determines that at a rating can only be assigned after “a comprehensive history and examination” and that “the condition must be a fully documented, diagnosed condition which has been investigated and stabilised”.

12.The report of Dr Nasser provided sufficient evidence for me to be satisfied that paroxysmal atrial fibrillation and hyperlipidaemia were conditions that could have been assigned a rating under the impairment tables. Dr Nasser’s report included details of a comprehensive physical examination including the results of a treadmill exercise test, a biochemical lipid profile and a treatment program.

13.The condition of osteoarthritis is problematic. Dr Gergis’ report provided very little useful information. The report stated that Mrs Masri “gets severe pain in both shoulder & upper arms on and off” and that it “improves with Panadol”. There was no information about any investigations.

14.In his report Dr Chara diagnosed osteoarthritis affecting Mrs Masri’s neck, back, shoulders and arms and noted that her symptoms were well controlled with Panadol and Brufen. On examination he noted no evidence of pain and a full range of movement. He made no reference to any investigations and provided no explanation for his conclusion.

15.I am not satisfied that the condition of ‘osteoarthritis’ was a fully documented and diagnosed condition and therefore not able to have an impairment rating assigned.

16.Furthermore the limited medical evidence available would suggest that if impairment could have been assigned the rating would have been nil.

17.On the condition of bilateral carpal tunnel syndrome Dr Gergis again provided no useful information. Dr Chara noted that the condition had been confirmed by nerve conduction studies and that Mrs Masri was awaiting the opinion of an orthopaedic surgeon.  

18.I note that on 10 November 2006 Mrs Masri had an operation on her right wrist and in her oral evidence indicated that she was on the waiting list for an operation on the left wrist.

19.It is clear that the condition of carpal tunnel syndrome, although diagnosed during the qualifying period, had not stabilised and therefore an impairment rating could not have been assigned.

20.In their reports Drs Nasser and Gergis both indicated a diagnosis of ‘hepatic cyst’ but provided no useful information with regard to the nature of the so called cyst or its significance.

21.The report of a CT scan of the abdomen dated the 23 September 2005 noted “small cavernous haemangiomas of the liver but all lesions have benign features only. There is fatty change within the liver”.

22.For the above reasons I find that during the qualifying period Mrs Masri did suffer an impairment with the meaning of section 94(1) of the Act in that that she suffered medical conditions that could have been assigned a rating under the Impairment Tables.

23.I also find that the medical conditions that could have been assigned a rating under the impairment tables were paroxysmal atrial fibrillation, hyperlipidaemia and ‘hepatic cyst’.

(iii) Did Mrs Masri’s Impairment, as a result of her medical conditions, achieve a rating of 20 points or more under the impairment tables as required by section 94(1)(b) of the Act?

24.There is no medical evidence or any evidence from Mrs Masri that would support a conclusion that during the qualifying period she had suffered any impairment as a result of her hyperlipidaemia or ‘hepatic cyst’.

25.Therefore, I find that the impairment rating for these conditions is nil.

26.In her oral evidence Mrs Masri stated that she had suffered from intermittent heart palpitations for 17 years, had been admitted to hospital on a number of occasions and during this time had been treated with various medications by Dr Nasser, cardiologist, who saw her every 6 months.

27.Mrs Masri claimed that she suffered frequent episodes of palpitations sometimes daily,  that they would last for up to one hour and were associated with pain in the chest, fatigue and some breathlessness. During these episodes she would require assistance to sit or lie down and would often take sublingual Anginine.

28.In his report of 21 April 2005 Dr Nasser noted that Mrs Masri complained of “occasional intermittent episodes of brief palpitation which lasts for less than one minute” and that these episodes occur every one to two months.

29.Dr Gergis provided no information with regard to these episodes.

30.Dr Chara in his report of 24 March 2006 noted that Mrs Masri had suffered an episode three days prior to the consultation and that the previous episode had occurred about one month prior to that.

31.Dr Chara assigned an impairment rating of 5 points under Table 21 on the basis that the severity level of the episodes was three (Table 21.1), that the episodes lasted up to four hours (Table 21.2) and that they occurred on more than 20 days but less than forty days per year (Table 21.4)

32.The SSAT assigned an impairment rating of 10 points in response to Mrs Masri’s  evidence that she suffered weekly episodes of palpitations.

CONSIDERATION

33.In making my decision in this matter I note that, with regard to the claimed frequency of the palpitation episodes, there are significant inconsistencies between Mrs Masri’s oral evidence at hearing and the documentary evidence.

34.I have already commented above that Mrs Masri appeared to have difficulty in distinguishing between her past and present symptoms and I am satisfied that this reflects a genuine difficulty in recalling past details and perhaps may indicate a more recent deterioration in her condition.

35.I note that Dr Nasser had been treating Mrs Masri for many years and would have been familiar with the severity of her condition and that Dr Chara saw Mrs Masri shortly after she had submitted her claim.

36.Therefore I place greater weight on the documentary evidence of Dr Nasser and Dr Chara and conclude that the correct impairment rating during the qualifying period would have been 5 points.

37.It follows that the requirements of section 94 (1) (b) of the Act were not satisfied.

DECISION

38.For the above reasons I find that that at time of her application, Mrs Masri did not qualify for a DSP.

39.The decision of the SSAT is affirmed.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed:         ............................[SGD]...............................................
  Ms G.A.Tena, Associate

Date of Hearing:  7 February 2008
Date of Decision:  28 February 2008
Appearance for the Applicant:  Self-Represented
Solicitor for the Respondent:     Ms A Garcia, Centrelink Legal Services