Melki and Secretary, Department of Family and Community Services
[2003] AATA 1070
•27 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1070
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N02/1701
GENERAL ADMINISTRATIVE DIVISION ) Re Ibrahim MELKI Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date27 October 2003
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
[sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision affirmed.
LEGISLATION
Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6), Schedule 1(B)
CASE LAW
Freeman v Secretary, Department of Social Security (1988) 87 ALR 506
Re Tlonan and Department of Social Security (AAT 11595, 6 February 1997)
REASONS FOR DECISION
27 October 2003
Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Social Security Appeals Tribunal (“the SSAT") dated 11 September 2002 (T2/3-15), which affirmed the decisions of the Secretary, Department of Family and Community Services ("the Respondent") dated 7 June 2002 (T36/197-198) and the Authorised Review Officer (“ARO”) on 19 June 2002 (T42/210-217) to cancel the Disability Support Pension (“DSP”) of Mr Ibrahim Melki (“the Applicant”).
BACKGROUND
2. The Applicant was born on 8 October 1958 and is presently 44 years of age. In 1989 he was injured in a motor vehicle accident as a result of which he was granted DSP in September 1993. On 4 March 1996 he was reviewed and his DSP was continued (T20/99-115). On 12 March 1998 he was again reviewed and again his DSP was continued (T25/130-147).
3. On 22 April 2002, after referral from Centrelink, the Applicant was examined by Dr M Gliksman on behalf of Health Services Australia (“HSA”). Dr Gliksman noted the Applicant’s presenting problems to be constant pain and stiffness in the lumbar spine with pain radiating into both lower limbs and stiffness and pain in the neck but no radiating pain. He also found that the Applicant was “fit to undertake full-time work of the nature of a shop assistant, for example, providing advice in a carpet shop or similar.” (T34/174/179)
4. On 6 May 2002, based on Dr Gliksman’s findings, Dr B Forssman from HSA conducted a file review and allocated 5 points for the Applicant’s thoraco-lumbar-sacral spine condition under Table 5.2 of the Impairment Tables at Schedule 1B of the Act and 5 points for his cervical spine condition under Table 5.1 (T35/180-196). He also commented that the Applicant was fit for full-time, light, sedentary work.
5. On 7 May 2002, the Respondent wrote to the Applicant to inform him of the decision to cancel his DSP (T36/197-198).
6. On 19 June 2002, following the Applicant’s request for a review, an ARO decided that the decision to cancel the pension was correct. (T42/210-217) The ARO agreed with the 10 points assigned by HSA and considered that the Applicant was fit for light, sedentary work.
7. Following the Applicant’s appeal to the SSAT that tribunal also affirmed the decision to cancel the pension on 11 September 2002. (T2/3-15) The SSAT found that the Applicant should be assigned a rating of 10 points under Table 5.2 for his back pain and 5 points under Table 5.1 for neck pain. The SSAT did not consider the question of the Applicant’s continuing inability to work.
ISSUE BEFORE THE TRIBUNAL
8. Entitlement to DSP is governed by section 94 of the Social Security Act 1991 ("the Act"), which provides as follows:
“94 Qualification for disability support pension
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
…
(i) the person has a continuing inability to work;
…
(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); …
…”
9. The requirements to be satisfied that establish a person has a continuing inability to work are set out at section 94(2) and (3) of the Act.
10. Insofar as section 94(1) is concerned, there was no dispute that the Applicant has a physical impairment is greater than 16 years of age and is an Australian resident. It was conceded by the Respondent that the Applicant suffers from back and neck pain and that there was limitation of movement in respect of each.
11. The issues in dispute in the current application, however, are whether the Applicant has an impairment of 20 points or more under the Impairment Tables and, if so, whether he has a "continuing inability to work".
12. The Tribunal had to consider if the Applicant was entitled to the DSP at the date of cancellation, namely 31 July 2002
APPEARANCES
13. A hearing was held before the Tribunal on 25 September 2003 at which the Applicant appeared without representation and the Respondent was represented by Ms Jane Green, an advocate from the Centrelink Service Recovery Team.
EVIDENCE: Documents
14. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.
In addition, the following documents were tendered:
Exhibit
Document
Date
A1
Medical Certificate signed by Dr David W. Lam
8 July 2003
A2
Medical Certificate signed by Dr Lam
Undated
A3
Medical Certificate issued by Liverpool Hospital Intensive Care
24 June 2003
A4
Medical Report by Dr Tim Anderson
18 March 2003
EVIDENCE and SUBMISSION: the Applicant
15. The Applicant gave sworn evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.
16. The Applicant told the Tribunal that he was one of a large number of children and was 8 or 9 when his father died. He did not go to school and had to work to support younger members of the family. He worked as a delivery boy and then worked for a builder, steelfixing concrete. The lightest available work was to carry 50-kg bags of cement. As he got older he was expected to do even heavier work. As a result his body ”worked very hard” at a young age and as he has grown older that strain has shown.
17. When the Applicant came to Australia he was unable to write or speak English. He worked in his uncle’s carpet-laying business and after about 2-3 months had learned the trade. Mostly they worked in residential properties, rather than commercial properties.
18. After he and his wife married, the Applicant started his own carpet shop. He knew carpet laying was a hard job, and was already having some problems with his back at the time of the motor vehicle accident in 1989.
19. The Applicant told the Tribunal about his back, which is his major problem. He said the discs had been ‘squashed’ and that sometimes he is unable to walk even quite short distances - he demonstrated about 1.5 metres. He said he is unable to stand to go to the toilet.
20. The Applicant said the doctor advised him to walk around the block and that he is able to do so for only about 5-10 minutes.
21. The Applicant said that about 2-3 times a week he is ”unable to move”. This is affected by weather, pollution and temperature changes. ‘It’s like rheumatism’.
22. He said that while it took him 2 hours to travel to the Tribunal for the hearing he had broken his journey by stopping for 10 minutes on the way, as his back was ”getting dry”. He travels with the heater on in the car, but finds that if he has to move foreword or backward whilst driving his back pain is aggravated. The maximum he can travel is about one hour. His usual driving consists of driving his children to school – about 2-3 kms. He was able to travel once by train and once by car to Moree to the hot springs.
23. The Applicant told the Tribunal that if he sits for too long his back becomes sore and he lies down. He also said that if he lies down for too long it also becomes sore and that at night the pain wakes him so he tries to stretch his back.
24. The Applicant said his pain is alleviated by lying on one side and by ”hanging” to stretch his back. When he went to the physiotherapist he was ”stretched” and heat treatment was applied but this provided only temporary relief. He continued with this treatment for a year or two but has not been to the physiotherapist for about 10 years.
25. He massages his back himself to the extent that he can reach. He uses a hot water bottle and heat bags once or twice a day. He takes 2-3 Panadols per day as well as Panadeine Forte. Some days however he takes nothing. The Applicant said the Panadol makes him hungry and he has put on weight. He said that he has been advised to keep his weight down.
26. The Applicant said he has asked specialists to operate on his back but they all say they are unable to. The only advice has been to lose weight, walk around the block and swim. He said he did his best - he now has his weight under control - but nothing helps.
27. The Applicant said that he had obtained family passes to the local swimming pool and takes his younger children there. At the swimming pool he tried the spa but it was like ”being hit with a rock”. He found walking in the pool also to be unsatisfactory. He is not a ”swimming person”.
28. He was asked if he had attended a pain clinic. He said that Dr Lam, his GP, had sent him once but he waited 3-4 weeks for an appointment and then, on the day, could not sit and wait for his turn, so he left. He thought it would be unsuccessful – ”just like everything else”.
29. He took issue with the report of Dr Gliksman that he was ”acting” and had sought to contact the doctor to discuss that finding.
30. In relation to his neck he said that it is not too much of a problem. He said that he has so much pain in his back he does not notice his neck. He sleeps with 2-3 pillows. He said that while he can move his neck he can ”feel all the muscles’’ if he twists his neck.
31. The Applicant told the Tribunal that he also has problems with both shoulders.. He said he is affected if he wants to lift anything, swing his arms or if he puts pressure on his shoulders. He said he was capable of washing his hair as the shower warms his muscles.
32. As to his knees he said that over the last 2-3 years he shakes when he walks and this is because his knees have been affected by the carpet-stretching machine.
33. The Applicant said that Dr Lam is going to send him to a specialist about his knees.
34. It was noted that Dr Lam had recorded that the Applicant had shortness of breath about 4-5 years ago. The Applicant said he was found to have nothing wrong with him despite testing. He said he has no problem unless he is smoking too much. Since he has lost weight, he no longer has a problem with breathlessness.
35. It was observed that he had recently been hospitalised. He said that he had been attacked in a holdup at his son’s shop and had been in hospital for 7-8 days with injuries to his face, neck and torso.
36. The Applicant told the Tribunal that as his sons grew older he advised them against going into the carpet-laying business but one persisted. The Applicant assisted his son in opening a shop and provides advice to him as necessary. He goes to the shop to assist if he ”has time”. Only the day before the hearing he had been there for half an hour.
37. He used to assist in check-measuring but has not done so for some time. He is unable to manage heavy samples, move furniture or take up carpet, as these jobs are too strenuous. He might show his son how to cut a difficult shape.
38. The Applicant also gave evidence about his role as a church deacon.
39. In conclusion he said that, as he was able to earn $75 per room, laying carpet and do several rooms a day, why would he prefer to be on DSP when he has 4 young children to support, and 3 older children also living at home.
SUBMISSION: Respondent
40. The advocate for the Respondent reminded the Tribunal that in reviewing a decision cancelling pension the Tribunal should confine itself to considering eligibility as at the date of cancellation (Freeman v Secretary, Department of Social Security (1988) 87 ALR 506.)
41. The Respondent contended that the medical evidence at the time of cancellation clearly indicated that the Applicant was no longer qualified for DSP.
42. The advocate for the Respondent conceded that the Applicant, on 31 July 2002, had back and neck pain and limitation of movement of each, and thus satisfied section 94(1)(a) of the Act.
43. Whilst the SSAT found on 11 September 2002 that the Applicant also suffers from chest and shoulder pain and lower limb pain it was the Respondent’s contention that, at the date of cancellation, those conditions had not been properly diagnosed, treated and stabilised as required by point 4 of the Introduction to the Impairment Tables which reads:
“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.,,”
44. As such, it was the Respondent’s contention that a rating cannot be assigned for those conditions.
45. Further, it was contended on behalf of the Respondent that the Applicant did not satisfy section 94(1)(b) of the Act as at 31 July 2002, because the medical evidence indicated that he did not have a combined impairment rating of 20 points or more under the Impairment Tables at Schedule 1B of the Act.
46. The Respondent contended that the maximum impairment rating which could be assigned to the thoraco-lumbar-sacral spine is 10 points under Table 5.2, as found by the SSAT. The advocate further relied on the reports of Dr Van Gelder dated 19 July 2002 (T44/220); Dr Mahony dated 12 August 2002 (T48/226-227); Dr Woo dated 16 August 2002 (T50/229) and Dr Anderson dated 18 March 2003 (Exhibit A4).
47. The Respondent contended that the appropriate impairment rating for the cervical spine condition was 5 points under Table 5.1. The Respondent relied on the medical report of Dr Forssman from HSA (T35, p185) which in turn was based on the report of Dr Gliksman of 22 April 2002. (T34/174-179). The reports of Dr Mahony of 8 August 2002 (T48/226-227) and Dr A Woo of 16 August 2002 (T50/229) were also said to support such a finding.
48. The Respondent contended therefore that the Applicant has a total impairment rating of 15 points under the Impairment Tables and thus does not satisfy the requirement for 20 points under subsection 94(1)(b). As such, the Applicant did not qualify for DSP at the date of cancellation.
49. For completeness, with regard to whether or not the Applicant had a continuing inability to work, the advocate for the Respondent referred the Tribunal to subsections 94(1)(c), 94(2) and 94(5) of the Act. Dr Forssman, relying on Dr Gliksman’s findings had indicated that the Applicant was fit for light, sedentary full-time employment. (T35/196). In relation to the medical reports of Dr Van Gelder dated 19 July 2002 (T44/220); Dr Mahony dated 12 August 2002 (T48/226-227); Dr Woo dated 16 August 2002 (T50/229) and Dr Anderson dated 18 March 2003 (Exhibit A4) provided by the Applicant, it was the Respondent’s contention that their assessment of the Applicant’s continuing inability to work overwhelmingly concentrates on factors other than medical considerations. For example, Dr Anderson discussed the Applicant’s lack of motivation, whilst Dr Van Gelder discussed the effects of being on DSP for over 12 years. Dr Woo considered that the Applicant was not fit for any physical work requiring bending and lifting.
50. In summary, it is the Respondent’s contention that the decision to cancel the Applicant’s DSP was correct and should be affirmed.
51. Ms Green added that if the Applicant’s circumstances have changed in such a way that new conditions have arisen or his condition has deteriorated since the date of cancellation then it would be appropriate for him to lodge a new claim.
FINDINGS
52. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.
53. The first task for the Tribunal was to be satisfied that the Applicant’s condition was one, which could properly be described as “permanent” so as to attract a rating at all.
54. Points 5 and 6 of the Introduction of the Impairment Tables at Schedule 1B , amplify point 4 to which the advocate for the Respondent referred:
“5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible ie, available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
· evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.”
55. It was therefore to be determined whether the Applicant’s conditions had been diagnosed, treated and stabilised, so as to ascertain which of the Applicant’s complaints could be taken into account in determining, as at the date of cancellation, his entitlement to DSP.
56. While the advocate for the Respondent had conceded, and the Tribunal agreed, that the Applicant’s conditions in relation to his back and neck were permanent, the same could not be said for the Applicant’s other conditions: his shoulders, knees and his breathlessness.
57. As to breathlessness, this had disappeared when the Applicant lost weight and modified his smoking. Hence that ‘condition’ was no longer an issue.
58. As to his shoulders, there was no diagnosis before the Tribunal as to the nature of this problem, although Dr Mahony, orthopaedic surgeon, in his report of 8 August 2002 suggested the Applicant had referred pain in his shoulders from his neck. However he found no abnormality of significance and suggested that limitations in range of movement were due to guarding. Similarly Dr Woo, orthopaedic surgeon, reported on 16 August 2002 that the Applicant had a restricted range of movement of the shoulders. Dr Lam reported having injected the left shoulder but was silent in relation to the right.
59. As to the knees the Applicant has, on his own evidence, yet to be investigated by a specialist for that condition.
60. Applying Point 4, referred to above, the Tribunal could not be satisfied that the Applicant’s shoulder and knee conditions, if any, had been fully documented, diagnosed and investigated, treated and stabilised.
61. There was ample evidence before the Tribunal, however that the Applicant suffers from long-standing problems associated with his back and neck.
62. The Tribunal also finds that the Applicant’s conditions have been extensively treated. In coming to this view the Tribunal was mindful of the decision in Re Tlonan and Department of Social Security (AAT 11595, 6 February 1997):
“… investigated, treated and stabilised.
…
… That is to say, [treatment] should not be limited to medical treatment in the sense of surgery or the prescription of medication. In its context, the word “treatment” refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling. What amounts to the treatment in any particular case will depend on the individual circumstances of that case.
…
… If a condition is not cured, or at least does not respond, to reasonable methods of treatment or if the side effects of the treatment are such that they are not tolerable or are harmful, the condition can still be said to have been treated. What are reasonable methods of treatment and what side effects are harmful or intolerable so that the treatment should not be pursued are questions of fact to be determined in each case. …”
63. The medical evidence in relation to the long history of the Applicant’s back and neck was canvassed in great detail in the decision of the SSAT and need not be repeated here. However it should be said that because the Tribunal must evaluate the Applicant’s condition at the date of cancellation of pension, more weight should be placed on the evidence closer to that time than that which is now some years old.
64. In addition, the Tribunal notes that some of the evidence (eg that of Dr Mahony and Dr Woo) slightly post-dates the decision under review. Having regard to the close proximity to the date of the decision under review, the Tribunal was prepared to accept that those reports were sufficiently contemporaneous so as to reflect those doctors’ views had they been consulted immediately prior to the decision under review. The report of Dr Anderson, however, dated 22 March 2003, being further removed in time from the time of decision-making, is of less weight.
65. In relation to the Applicant’s thoraco-lumbar-sacral spine, the advocate for the Respondent accepted the findings of the SSAT. That tribunal had reflected the assessment of Dr Forssman (which had been based on the view on Dr Gliksman). The Tribunal agrees that, based on the reports of Dr Van Gelder dated 19 July 2002 (T44/220); Dr Mahony dated 12 August 2002 (T48/226-227); Dr Woo dated 16 August 2002 (T50/229) and Dr Anderson dated 18 March 2003 (Exhibit A4 ) that the appropriate rating is 10 points under Table 5.2 as follows:
“TABLE 5.2 Thoraco – lumbar-sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
…
TENLoss of one-quarter of normal movement as well as back pain or referred pain:
· with many physical activities and
· with standing for about 30 minutes
· with sitting or driving for about 60 minutes
or
Loss or half of normal range of movement
…”
66. The Applicant’s own account at the hearing was that his back is his major problem. The Tribunal accepts his evidence that his condition varies from time to time, especially as it is affected by factors such as the weather.
67. Sometimes he is unable to walk even quite short distances, and demonstrated about 1.5 metres. He said he is unable to stand to go to the toilet, but the reasons for this are unclear, especially given his evidence that he is able to work, presumably with some standing, in his son’s shop. It is also inconsistent with his evidence that he is able to walk around the block, albeit for only about 5-10 minutes.
68. The Applicant can drive and travel, he said, for only about an hour. He was, however, able to travel some distance to Moree.
69. He no longer receives any treatment for his back other than self-massage and heat treatment. His medication varies and on some days he takes none at all.
70. Although the Applicant expressed concern that Dr Gliksman believed he was exaggerating his symptoms the Tribunal observed that Dr Mahony also expressed the view that there had been ‘guarding’.
71. In all the circumstances the Tribunal finds that the most appropriate rating is that of 10 impairment points.
72. In relation to the Applicant’s cervical spine the Tribunal finds that a rating of 5 impairment points under Table 5.1 is appropriate:
“TABLE 5.1 Cervical spine
Rating
…
FIVE Loss of quarter of normal range of movement.
…”
73. This finding is supported by the medical report of Dr Forssman from HSA (T35, p185) which in turn was based on the report of Dr Gliksman of 22 April 2002. (T34/174-179). The reports of Dr Mahony of 8 August 2002 (T48/226-227) and Dr A Woo of 16 August 2002 (T50/229) were also consistent with such a finding.
74. The Applicant’s evidence was that his neck is not overly troublesome, compared to his back. His evidence was to the effect that while he can move his neck there is some pain associated with doing so. Again the Tribunal observed that Dr Mahony had expressed the view that there had been ‘guarding’ in relation to movement.
75. The Applicant therefore does not achieve the 20 impairment points required by section 94(1)(b). Having come to this view it was unnecessary to consider if the Applicant has a ‘continuing inability’ to work.
76. In this regard, however, the Tribunal noted the observation of Dr Van Gelder:
“Mr Melki is unlikely to be fit for work in the foreseeable future because he has been an invalid pensioner for twelve years, he has no confidence in his ability to return to work, he hasn’t responded to any treatment so far and he expresses an attitude of futility of medical treatment and he has no transferable skills. With regard to medical treatment there is no clear indication for surgery on his history, examination or previous MRI scan report. Conservative treatments haven’t been successful. Mr Melki says he knows there is no solution.”
77. On the basis of its observations of the Applicant and his evidence the Tribunal formed the view that this was likely to be a fair assessment of the Applicant’s overall condition, noting in particular the reasons Dr Van Gelder felt the Applicant would not be able to return to work.
DECISION
78. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: A. Krilis
AssociateDate of Hearing 25 September 2003
Date of Decision 27 October 2002
Representative for the Applicant Self - RepresentedAdvocate for the Respondent Ms Jane Green
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