MERVAT ABOU-SINNA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICE AND INDIGENOUS AFFAIRS

[2009] AATA 513

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 513

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2008/2589

GENERAL ADMINISTRATIVE DIVISION		)
Re		MERVAT ABOU-SINNA

Applicant

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

Respondent

DECISION

Tribunal Ms Regina Perton, Member

Date6 July 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points – whether condition stabilised and treated – decision affirmed

Social Security Act 1991 s 94(1), s 94(2), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

6 July 2009 Ms Regina Perton, Member           

1.       Mrs Mervat Abou-Sinna is in her mid-fifties.  She suffers from visual and other physical problems.  She has been out of the paid workforce for a considerable period.  She has four children, the youngest of whom is now 16 years old. On 12 September 2007 Mrs Abou-Sinna applied to Centrelink for disability support pension (DSP).  On 21 November 2007 a Centrelink officer refused the application.  Mrs Abou-Sinna’s medical condition was assessed as having an impairment rating of less than 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  On 21 January 2008 an authorised review officer (ARO) reviewed the decision and confirmed that Mrs Abou-Sinna was not eligible for DSP.

2.       On 16 May 2008 the Social Security Appeals Tribunal (SSAT) affirmed the decision to refuse DSP on the basis that Mrs Abou-Sinna’s impairments did not rate 20 points under the Impairment Tables.  Mrs Abou-Sinna lodged an application for review of the SSAT decision with this Tribunal on 11 June 2008.

3.       The issue before the Tribunal is whether Mrs Abou-Sinna satisfied the requirements for DSP as at 12 September 2007 (the date of her claim) or within 13 weeks of that date.

Mrs Abou-Sinna’s Medical and Physical Condition

4.       At the hearing, Mrs Abou-Sinna said that her medical conditions are such that she cannot work and therefore she needs DSP.  She said that with her state of health, disabilities and time out of the workforce, no one would give her a job.  She said that younger people cannot get work and it was improbable that she could get a job given her restricted movement, poor eyesight, dizziness and depression.  She said that as a consequence, she has not been looking for work. 

5.       Mrs Abou-Sinna said that the medical reports obtained in relation to this and earlier applications for DSP indicate that her conditions are permanent.  The reports also describe the daily difficulties she faces as a result of those conditions.  She said scans had failed to show the underlying causes of her pain, for which she had been prescribed pain-killing tablets.  Mrs Abou-Sinna said that she is now suffering from depression and has seen a psychologist.

6.       Mrs Abou-Sinna described the particular difficulties she has with her legs and feet.  Her doctor referred her to a specialist at the Royal Melbourne Hospital but she had to wait a long time to see him.  She said that she has been told to obtain special footwear and orthotics which she cannot afford to buy.  Mrs Abou-Sinna said that she cannot walk as far as she used to.  She said that she has to push herself to walk and can only do so for about five minutes before the pain sets in.   She said that she cannot climb stairs without pain.

7.       Mrs Abou-Sinna said that she often wakes up during the night due to her pain.  She said that in the morning, it takes her a long time to get out of bed as she has to wait until the pain abates.  She said that she can no longer do the exercises she was recommended to do by a physiotherapist as they are too painful.  Mrs Abou-Sinna said that she cannot stand on one spot for very long.  The length of time she can stand or sit depends on the day and what she is doing.  She said that she often pushes herself despite being in pain.  She said that when she was examined by Dr Fraser, a rheumatologist, she hoped he would be able to diagnose the cause of her problems.  Mrs Abou-Sinna said that after undergoing Dr Fraser’s examination she felt worse and lay down for the rest of the day.  She said that Dr Fraser did not even look at her feet.   

8.       Mrs Abou-Sinna also described the pain and numbness she experiences in her elbow from time to time.  She said that the children do much of the housework.  She said that she had been given painkillers but had no other treatment for the elbow problems.

9.       Mrs Abou-Sinna said that she suffers from glaucoma and dry eye in her right eye, which suffered retinal damage.  She also suffers from dry eye and short‑sightedness in her left eye.  She now has problems wearing the contact lens she used to wear in her left eye, as it leads to redness.  She also has problems with both eyes being watery.  She complained that when she was sent to Centrelink’s nominated specialist, Dr Lazarus, he had suggested the wrong eye drops that could have caused damage.

10.     Mrs Abou-Sinna said that she still suffers from abdominal pain and dizziness.  She said that she also suffers heartburn.  She said she has been prescribed medication for these conditions. 

11.     Mrs Abou-Sinna had applied for DSP in January 2006.  She was unsuccessful. Her application for review was determined by the Tribunal in March 2007 (V200600804).  The Tribunal has taken the medical evidence prepared for that application into account but will not recount it in detail in these Reasons for Decision.  In the application for DSP currently under review, Mrs Abou-Sinna stated:

I am very sick.  I am getting sicker by the year and it’s getting worse.  I can’t do any work or study due to my sickness.  You have all my sicknesses in your records.  Nothing changed because it’s permanent….

12.     In a Treating Doctor’s Report dated 20 August 2007, Dr R F Johnson indicated that Mrs Abou-Sinna had one or more medical conditions which had a significant impact on her ability to function.  Condition 1 was described as Arthralgia in both elbows, both hips & both knees swollen tender.... [indecipherable].on both feet.  Dr Johnson stated that his patient had complained of pain and stiffness in her elbows, hips, knees and both feet for several months.  His description of her symptoms at that time was All her bones continually ache.  Pain…standing, walking, lifting & sitting.  Dr Johnson stated that his patient’s then current treatments were analgesics and NSAIDs (non-steroidal anti-inflammatory drugs). He stated that future treatment was possible surgery to both feet.  Dr Johnson stated that the condition would persist for more than two years but the impact on his patient’s ability to function would fluctuate.  Condition 2 was described as Pain in L UQ & Dizziness.  Dr Johnson stated that his patient had constant pains and dizziness for the previous month.  He stated that he had prescribed medication for the condition.  Future planned treatment was described as still for investigation.  He stated that Mrs Abou‑Sinna was in constant pain but that he expected that within the next 2 years the effect of the condition on her ability to function would somewhat improve.

13.     On 11 December 2007 Dr Johnson prepared a further Treating Doctor’s Report.  This time he described Condition 1 as arthralgia in both elbows, both hips, both knees, both ankles & toes.   He stated that Mrs Abou-Sinna had complained of pain and stiffness in those joints for several years. He stated that her current treatment consisted of analgesics, NSAIDs did not help and that she had been referred to a rheumatologist.   He did not provide any further information about other conditions mentioned in the earlier report.

14.     On 19 February 2008 a doctor from the Royal Victorian Eye & Ear Hospital (the Eye & Ear Hospital) prepared a medical certificate stating that Mrs Abou-Sinna was unfit for all work from 10 February 2008 to 20 May 2008.

15.     Dr Helen Steiner, an ophthalmologist at the Eye & Ear Hospital, prepared a report in late July 2008 in which she described the history of Mrs Abou-Sinna’s eye conditions:

She is a high myope (short-sighted).  She has had retinal detachment surgery and cataract surgery which was difficult, and has left her with permanently reduced vision in the right eye and requiring a contact lens.

She also has dry eye symptoms which cause her a lot of distress and make contact lens wear difficult for her.

At present her vision remains at 6/9 corrected in both eyes, with a strong short‑sighted correction.  She is unable to wear her contact lens due to discomfort.

….

I have referred Mrs Abou-Sinna to our Corneal Clinic with respect to her dry eye symptoms and to see if there is any option for refractive surgery also, in view of her contact lens intolerance.

16.     Dr Kevin J Fraser, rheumatologist, provided a report dated 23 December 2008 addressed to Dr Therese Paulson of Health for Industry.  Dr Fraser stated that he had examined Mrs Abou-Sinna on 18 December 2008.  He stated that she provided a rather vague history of her musculoskeletal complaints.  After setting out the results of his examination, he gave the following opinion: 

I don’t doubt that she has arthralgia, due to various conditions of a constitutional and/or degenerative nature.  However, in my opinion, it is by no means disabling.

The basis of the arthralgia is as follows.  There is evidence of mild lateral epicondylitis at the elbows.  The clinical signs suggest that her history of knee pain is due to mild patellofemoral osteoarthritis.  So far has [sic] her feet are concerned, the pes planus is associated with pronation deformities in both hind feet and perhaps mild left tibialis posterior tenosynovitis.  She might also have mild plantar fasciitis.  I am not convinced that the halluyx valgus deformities are symptomatic at present.

None of these conditions are unusual and as implied previously are due to constitutional factors and/or age related degenerative changes.

I do not consider that any of them are associated with any significant functional incapacity.

The lateral epicondylitis is so mild that I am not convinced that treatment is warranted.  However, it would not be unreasonable to try injection s of local anaesthetic and steroid.  The condition should not be considered permanent and most likely will resolve, with or without treatment.

Other than simple analgesics as necessary, such as she is already taking, and exercises to maintain quadriceps muscle tone she requires no treatment for the patellofemoral osteoarthritis.

The putative plantar fasciitis is also mild and once again I am not convinced that injections of local anaesthetic and steroid are warranted.  It would, however, be reasonable to try insoles and it might be possible to incorporate soft heel sections in custom-made insoles to stabilise the hind foot deformities.  The latter certainly don’t warrant surgery….

17.     Dr Fraser assessed Mrs Abou-Sinna under the Impairment Tables giving her nil points according to Table 3 for left and right upper limb functions and nil points for the right and left lower limbs under Table 4. 

18.     Dr Mark G Lazarus, eye specialist, examined Mrs Abou-Sinna on 27 October 2008 at Centrelink’s request.  He was provided with Dr Steiner’s report.  He provided reports dated 12 November 2008, 11 February 2009 and 16 February 2009.  Dr Lazarus provided details of his examination.  His visual prognosis was:

From an ophthalmological point of view Mrs Abou Sinna has had a right retinal detachment that that [sic] has affected her right central vision.  The reduction in central vision is a permanent condition, but further deterioration is unlikely to occur.  Improvement is unlikely to occur. 

19.     Dr Lazarus assessed Mrs Abou-Sinna under the Impairment Tables, giving her 5 points under Table 14 for a loss of stereoscopic vision.

20.     Mr Michael Bond, orthotist, provided a report dated 3 April 2009.  He stated that Mrs Abou-Sinna had been referred by the Orthopaedic Department at Royal Melbourne Hospital for custom made orthotics to manage several painful conditions of her feet.  He stated that the orthotics cost $359 and that an application had been made to the Victorian Aids & Equipment Program for the maximum grant of $200, which means that Mrs Abou-Sinna would need to contribute the remaining $159.  He stated that she was seeking funding through Centrelink for that amount.

Did Mrs Abou-Sinna qualify for DSP?

21.     Section 94 of the Act sets out the criteria for a person to qualify for DSP. 

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:

(i)     the person has a continuing inability to work;

…

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 independently of a program of support within the next 2 years; and

(b)either:

(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years…

(ii)     if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

22. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

…

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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.

…

23. When deciding whether a person qualifies for DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date. Therefore, the Tribunal must consider whether Mrs Abou-Sinna qualified for the DSP either on 12 September 2007 or at a date before 12 December 2007 (the relevant period).

24. The Tribunal accepts that Mrs Abou-Sinna suffered from a number of medical conditions during the relevant period. Centrelink conceded, and the Tribunal concurs, that some of Mrs Abou-Sinna’s conditions meet Schedule 1B requirements during the relevant period, namely loss of right central vision & glaucoma, patellofemoral osteoarthritis, pes planus associated with pronation deformities in both hind feet and hallux valgus deformities. However, the conditions of dizziness and depression had not been diagnosed, treated and stabilized and so do not meet the Schedule 1B requirements.

25. The specialist doctors who examined Mrs Abou-Sinna were asked to assign points under the Impairment Tables for those conditions in which they had expertise. Dr Fraser agreed with Dr Johnston, Mrs Abou-Sinna’s general practitioner, that she suffered from arthralgia and other conditions. However, notwithstanding the pain she experienced, Dr Fraser was of the opinion that her level of disability was such that no points could be awarded under Schedule 1B for the lower limbs.

26.     Dr Lazarus, while acknowledging the difficulties Mrs Abou-Sinna has experienced in her right eye in particular and the myopia in her left eye, determined that no points could be awarded when taking her corrected vision into account. 

27.     Centrelink provided the Tribunal with reports from Job Capacity Assessors (JCAs) who awarded Mrs Abou-Sinna points under the Impairment Tables and  commented on her ability to work or to retrain.  On 6 October 2008, Krista Patti recommended that Mrs Abou-Sinna be awarded 10 points in relation to visual loss but none for her other conditions.  She commented that Mrs Abou-Sinna would be able to work with vocational rehabilitation assistance.  On 29 January 2009, Steven Barrascosa prepared a report giving the opinion that Mrs Abou-Sinna should be awarded 10 points in relation to visual acuity based on Dr Steiner’s report but nothing for function of the lower limbs.  He assessed that Mrs Abou-Sinna could be assisted by rehabilitation to enable her return to the workforce. 

28.     The number of points allocated by various assessors based on the medical evidence has ranged between nil and 10.  No points have been allocated by previous assessors for arthralgia and upper and lower limb problems. The Tribunal is of the view that Dr Fraser has expertise in relation to arthralgia and functions of the lower and upper limbs and concurs with his opinion that those conditions should be given nil points.  The Tribunal is unable to assign a rating for depression or dizziness as they had not been diagnosed, treated and stabilized at that date.  Mrs Abou‑Sinna’s problems with her feet have yet to be fully treated given that personalised orthotics have been recommended as likely to provide assistance. 

29. Regardless of whether Mrs Abou-Sinna is awarded nil points or 10 points for her eye problems, she did not, during the relevant period, have an impairment rating of 20 points or more under the Impairment Tables. As a result, she does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). In the circumstances it is not necessary to consider whether Mrs Abou-Sinna satisfies s 94(2) of the Act. The decision to refuse the claim for DSP lodged on 12 September 2007 was correct.

DECISION

30.     The Tribunal affirms the decision under review.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of;

Ms Regina Perton, Member

Signed:     Dianne Eva           

Clerk

Date of Hearing:  22 June 2009

Date of Decision:  6 July 2009
Advocate for applicant:                 Self‑represented
Advocate for respondent:             Mr T Noonan, Centrelink Legal Services Branch