Obeid and Secretary, Department of Employment and Workplace Relations
[2005] AATA 993
•10 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 993
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/594
GENERAL ADMINISTRATIVE DIVISION ) Re Assaf Obeid Applicant
And
Secretary, Department of Employment and Workplace Relations
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date10 October 2005
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 –decision affirmed.
LEGISLATION
Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6), Schedule 1B
Social Security (Administration) Act 1999 –Schedule 2
REASONS FOR DECISION
Ms N Isenberg, Member
DECISION UNDER REVIEW
1.The decision under review before the Administrative Appeals Tribunal (“the Tribunal") was the decision of the Secretary, Department of Family and Community Services, (now administered by the Secretary, Department of Employment and Workplace Relations) (”Centrelink”) dated 25 June 2001 (T8) as affirmed by the Authorised Review Officer (“ARO”) on 7 September 2001 (T10) and the Social Security Appeals Tribunal (“the SSAT") on 22 April 2005 (T2), to reject a claim for disability support pension (“DSP”).
BACKGROUND
2.On 18 November 2004 Mrs Obeid lodged an application for DSP. (T29) In support of her claim she provided a treating doctor’s report (‘TDR’) from Dr Akladious, dated 2 November 2004. (T28) In his report, Dr Akladious diagnosed right knee pain, low back pain, migraines, hypertension and hyperlipidemia and indicated that the current impact of these conditions on Mrs Obeid’s ability to function is expected to persist for more than 2 years. (T28)
3.On 22 December 2004 Mrs Obeid was examined by Dr Chew of Health Services Australia (HSA). Dr Chew found that she had lower back pain with 25 per cent loss of range of movement, migraines and right knee pain for a total impairment rating of 10 points under Table 5.2. He also found that she has limited skills and would benefit from vocational training to prepare her for light sedentary work. (T33)
4.Dr. Sanki of ‘Superscan’ provided a medical report, dated 7 March 2005 in relation to an ultrasound of Mrs Obeid’s left leg. He noted that the sonographic features were consistent with the presence of a small haematoma between the tibia and fibula. A bulge was also seen in the region of the lateral meniscus. Dr Sanki opined that this may indicate the presence of pathology in the lateral meniscus. (T39)
5.Dr Akladious provided a further medical report, dated 13 July 2005, stating that Mrs Obeid suffers from low back pain, bilateral knee pain, migraines, hypertension and hyperlipidemia. He stated that “she suffers from 20-25 per cent of impairment which results in a continuing inability to work”.
6.In support of earlier applications for disability support pension the following evidence had been provided by Mrs Obeid:
·On 27 April 2001 Dr Akladious provided a TDR diagnosing low back pain, right hand pain, right shoulder pain, migraines and right knee pain. He indicated that Mrs Obeid could return to part-time work within 12-24 months and to full-time work within more than 2 years. (T3)
·On 9 May 2002 Dr Rowe provided a radiology report in relation to Mrs Obeid’s paranasal sinuses and petrous temporal bones, disclosing no major abnormalities. (T11)
·On 10 September 2002 Dr Connolly provided a radiology report in relation to Mrs Obeid’s lumbo-sacral spine, noting degenerative changes. (T12)
·On 27 May 2003 Dr Akladious provided another TDR, diagnosing low back pain, migraine headaches, right knee pain, hyperlipidemia and hypertension, and indicated that these conditions were likely to persist for more than 2 years. (T14)
·On 2 December 2003 Dr. Sacks provided an MRI report of Mrs Obeid’s right knee, noting a horizontal cleavage tear in the lateral meniscus body with a parameniscal cyst. Other areas of the knee appeared to be normal. (T21)
7.In respect of Mrs Obeid’s earlier applications for DSP, when Mrs Obeid was examined by HSA doctors, the following was reported:
·On 15 January 2001 Dr Chew found that Mrs Obeid has lower back pain with 25 per cent loss of range of movement, right dominant hand pain, migraines, right knee pain for a total impairment rating of 10 points under Table 5.2. He found that she was fit for light sedentary work. (T6)
·On 16 July 2003 Dr Lee allocated 10 points under Table 5.2 for her low back pain, 5 points under Table 21 for her migraines, nil points under Table 20 for her hypertension and nil points under Table 4 for her right knee pain, for a total impairment rating of 15 points. Dr. Lee found that she was fit to undertake training for light sedentary work. Her main barriers appeared to be non-medical in nature. (T17)
·On 30 December 2003 Dr Reilly allocated 10 points under Table 5.2 for her low back pain, 5 points under Table 21 for her migraines, nil points under Table 20 for her hypertension and her right knee pain was assessed as a temporary condition. Dr Reilly found that she was fit to undertake full-time light, sedentary work or training. (T24)
ISSUE BEFORE THE TRIBUNAL
8.The main issues to be determined with relation to this matter are:
a)Does Mrs Obeid have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so,
b)Does she have a continuing inability to work due to the impairment because:
· the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and either
· the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; or
· such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.
CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP
9.Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim has been lodged. Therefore, I had to consider if Mrs Obeid was entitled to the DSP by 17 February 2005.
APPEARANCES
10.A hearing was held at the Tribunal on 30 September 2005 at which Mrs Obeid was self-represented, but assisted by Mr Feisal Kassem, an accredited interpreter in the Arabic language. Centrelink was represented by Luke Carter, an advocate from the Advocacy and Administrative Law Team at Centrelink.
EVIDENCE
11.In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered by Mrs Obeid and these have been attached to the Tribunal’s file.
12.After explaining to Mrs Obeid the process of the hearing, I invited her to identify the conditions from which she suffered during the relevant period. She referred me to ‘the papers’. I brought to her attention the conditions to which the SSAT had referred, namely, low back pain, right knee pain, hypertension/hyperlipidemia and migraines. She also said that she suffered from a painful left knee and also pain in the palm of her right hand. I invited her to tell me about all of those conditions, but again she only referred me to the papers.
13.I observed that the SSAT appeared to have had some difficulty in relation to Mrs Obied’s migraines and indicated to the parties, that, in fairness, Mrs Obeid should have the opportunity to tell me about their frequency and severity. In answer to that question she told me that her migraines and her hypertension cause her to fall down. She said they make her tired, and after coming to the Tribunal she would need to lie down for 2 days and will require her daughter’s assistance. Other than that information, she again referred me to the papers.
14.I observe that Mr Obeid appears to have given more detailed evidence before the SSAT, and while it will not be reproduced in detail, I have taken it into account in coming to my decision.
CONSIDERATION OF THE EVIDENCE and FINDINGS
15.In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
16.Turning to the questions to be considered:
Did Mrs Obeid, by 17 February 2005, have a physical, intellectual or psychiatric impairment of 20 points or more?
17.Mrs Obeid’s claim for DSP was on the basis of her right knee pain, low back pain, migraines, hypertension and hyperlipidemia. These were the conditions identified by her treating doctor, Dr Akladious in his TDR dated 2 November 2004 (T28/ p160). These conditions varied only slightly from those identified by him in Mrs Obeid’s previous applications for disability support pension.
18.I note that Mrs Obeid told me that she also suffered left knee pain, but I observe that she had told the SSAT that it had only been for the 2 months before that hearing (which was in February 2005) that she had suffered from that condition. The ultrasound of her left leg dated 7 March 2005 (Exhibit 4) is the first available medical evidence in regard to this condition. There was no medical evidence before me from Mrs Obeid’s treating orthopaedic surgeon. In any event, Mrs Obeid’s treating doctor had not mentioned the condition in his TDR. In the absence of supporting medical evidence, I do not find “left knee pain” to be a permanent condition from which she suffered in the relevant period.
19.As to her right hand injury, I observe that her treating doctor did not identify this condition in his report in respect of the present application. The treating doctor had mentioned right hand and shoulder pain in a TDR in association with an earlier application for disability support pension (T3/12). Although at the time he thought the condition was likely to persist for at least 2 years, he did not mention it in his later TDR of 27 May 2003 (T14), nor, as already noted, in the TDR in support of the present application. Even in an up-to-date report by him dated 13 July 2005 tendered in these proceedings (Exhibit 1), no mention was made of that condition. In those circumstances, and in the absence of evidence from Mrs Obeid, I do not find “right hand injury” to be a permanent condition from which she suffered in the relevant period.
20.Before the SSAT Mrs Obeid mentioned that she suffered gastro-oesophageal reflux. The treating doctor had mentioned that condition as the reason for his prescription of a medication, in his list of prescriptions dated 7 April 2005, which is again outside of the relevant period. There was no other evidence in relation to that condition in any of his treating doctor’s reports. Mrs Obeid did not mention that condition before me. I do not find “gastro-oesophageal reflux” to be a permanent condition from which she suffered in the relevant period.
21.Each of the conditions identified by the treating doctor was considered in turn.
Low Back Pain
22.There did not appear to be any dispute in the medical evidence that Mrs Obeid suffers from a 25 per cent loss of range of movement in her lower back: See the reports of the treating doctor dated 13 July 2005 (Exhibit 1) and Dr Chew’s repot of 22 December 2004 (T33). Mrs Obeid also suffers pain on standing and driving, in accordance with Table 5.2.
23.I accept that the weight of the medical evidence supports the view that during the relevant period, Mrs Obeid’s low back condition was consistent with an impairment rating of 10 points under Table 5.2.
Right Knee Pain
24.Dr Chew in his report dated 22 December 2004 (T34) states that Mrs Obeid has had a painful right knee for the last 3-4 years. An MRI scan showed a meniscus tear and arthroscopy was recommended but declined. Mrs Obeid has difficulty walking up stairs and needs to climb stairs slowly. Her gait is normal. She is able to walk for 10-15 minutes. Dr Lee makes similar findings in his report dated 16 July 2003. (T17).
25.The radiological evidence appears to show that, whilst there are problems with the lateral meniscus region, the other parts of the knee appear to be normal.
26.In my view, the SSAT correctly considered the condition not to be assessable because the recommended treatment has not been pursued.
27.In those circumstances I do not rate the condition.
Hypertension/Hyperlipidemia
28.Dr Lee in his report dated 16 July 2003 (T17), states that Mrs Obeid was taking Coversyl and Lipitor 20mg at the time of her examination. He found that her condition is controlled with medication and has no complications. He therefore allocated a nil impairment rating under Table 20 for this condition.
29.Although Mrs Obeid told me that her hypertension (as well as her migraines) causes her to fall over, the medical evidence does not support this contention. The treating doctor had said that hypertension (and migraines) causes her to lose concentration (T28/159).
30.I find that the weight of the evidence supports a rating of nil points under Table 20 for this condition, because the condition is controlled by medication.
Migraines
31.The SSAT had some difficulty reconciling Mrs Obeid’s evidence before it with the available medical evidence, especially that of her treating doctor. Because of this concern I specifically invited her to tell me about the frequency and severity of her headaches. No cogent information was forthcoming.
32.The treating doctor wrote in the TDR (T28/159) that the condition causes loss of concentration. In his updated repot (Exhibit 1) he repeated that view.
33.The medical evidence suggests that her symptoms are moderate. The medication that she takes, namely Panamax, Panadol and Stemetil, regulates the condition adequately.
34.In my view the weight of the medical evidence supports a finding that this condition is properly rated under Table 20, and that a rating of nil points is appropriate.
35.Taken together Mrs Obeid’s combined impairment does not exceed 20 impairment points.
36.Having come to that view it was not necessary for me to consider the remaining questions associated with whether Mrs Obeid has a continuing inability to work because of the impairment.
DECISION
The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER
Signed: .....................................................................................
Niamh Kinchin, AssociateDate/s of Hearing 26 September 2005
Date of Decision 10 October 2005
Representative for the Applicant Self-represented
Representative for the Applicant Luke Carter
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