Rachid and Secretary, Department of Employment and Workplace Relations

[2006] AATA 376

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 376

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2005/903

GENERAL ADMINISTRATIVE DIVISION )

Re ALIEH RACHID

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms G. Ettinger, Senior Member

Date19 April 2006 

PlaceSydney

Decision For the reasons given orally, the decision under review is affirmed.

[SGD] Ms G. Ettinger
  Senior Member

CATCHWORDS

SOCIAL SECURITY -  disability support pension – Applicant found to have less than 20 impairment points – Applicant does not qualify for disability support pension – decision affirmed.  

Social Security Act 1991 – Schedule 1B, ss 94(1), 94(2).

REASONS FOR DECISION

Ms G. Ettinger, Senior Member

Dr. M Thorpe, Member

1.      After the hearing of the above matter the terms of the decision and the reasons for that decision were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Although the oral reasons given may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as the reasons for the Tribunal's decision.

I certify that the preceding pages are a true copy of the decision and reasons for decision herein of Ms G. Ettinger, Senior Member.

Signed:         N Kinchin
          ..................................................................................………………………

Associate

Date of Hearing  13 April 2006

Date of Decision  19 April 2006

Counsel for the Applicant  Anastasia Toliopoulos

Representative of the Respondent           Alan Duri

O/N 24326
  [9.28am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2005/903
By SENIOR MEMBER ETTINGER
RACHID and THE SECRETARY, DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS
SYDNEY, WEDNESDAY, 19 APRIL 2006

SENIOR MEMBER ETTINGER   The matter concerns an appeal by Mrs Alieh Rachid.  The respondent is The Secretary, Department of Employment and Workplace Relations.

BACKGROUND
Mrs Rachid is a 47 year old woman who was born in Lebanon, and arrived in Australia in October 1986.  She was married at 17 and has had seven children, now aged between 31 and 17, of whom six live at home with their parents.  Mrs Rachid attended school for only two years in Lebanon and has not undertaken any other education.  Mrs Rachid's last employment was in an ice cream factory approximately 22 years ago, and she has not worked in paid employment since.  She has never attended an English course, and does not speak English.

Mrs Rachid has had a number of complaints, some of which have not been fully documented, investigated, diagnosed or treated and stabilised. She has had an impairment rating of 10 impairment points awarded pursuant to the Disability Tables in Schedule 1B of the Social Security Act 1991 for an injury to her right shoulder.   By the time of this hearing Mrs Rachid had also been examined by Dr Keen, Senior Medical Adviser of Health Services Australia, and Dr Harvey‑Sutton, an occupational physician with special qualifications in pain management.  There was also before us a Work Capacity Participation Assessment report of a rehabilitation consultant of Centrelink dated 20 March 2006.

In summary, although the medical evidence diverged at other points, both Drs Keen and Harvey‑Sutton agreed that Mrs Rachid could be assessed at a further five impairment points for her upper limbs, making a total of 15 impairment points, and as will be seen in the paragraphs that follow, after considering all the evidence, we agreed with those findings.  We also assessed Mrs Rachid for complaints relating to her lower limbs.  She did not press other complaints, including headaches.

We were very well assisted by an interpreter in the Arabic language, Mr Kassem, at the hearing of Mrs Rachid's appeal against the decision of The Department of Employment and Workplace Relations, and of the Social Security Appeals Tribunal, not to award her a Disability Support Pension.

We were mindful that to be eligible for Disability Support Pension, which we shall refer to as DSP, Mrs Rachid had first to pass the threshold 20 impairment points for either physical, intellectual or psychiatric impairment in the Impairment Tables. Physical, of course, was the relevant test for her. If she did reach the threshold, then we had to assess whether that impairment was of itself sufficient that she had a continuing inability to work pursuant to tests in section 94(2) of the Act.

THE ISSUES BEFORE THE TRIBUNAL
So we move then to consider the specific issues before the Tribunal.  Those issues are: 

·whether the applicant satisfies the criteria pursuant to section 94(1) of the Social Security Act 1991, which we shall refer to as the Act, in that she had a physical, intellectual or psychiatric impairment; 

·Secondly, consideration of Mrs Rachid's lower limbs, and whether her impairment is 20 points or more under the Impairment Tables in Schedule 1B of the Act; and if so,

·whether the impairment is of itself sufficient such that she has a continuing inability to work pursuant to the tests in section 94(2) of the Act; and if so

·whether Mrs Rachid is eligible for Disability Support Pension calculated on and from the date of her application and for 13 weeks thereafter.

LEGISLATIVE FRAMEWORK
The relevant legislation is the Social Security Act 1991, in particular sections 94(1) and 94(2). Section 94 deals with qualification for Disability Support Pension and whilst I am not going to read out full sections of the Act, I am just going to say that a person is qualified for Disability Support Pension if that person has a physical, intellectual or psychiatric impairment, and the person's impairment is of 20 points or more under the Impairment Tables, and pursuant to various tests in section 94(2) the person has a continuing inability to work because of that impairment.

WHETHER MRS RACHID SATISFIES THE CRITERIA PURSUANT TO SECTION 94(1) OF THE SOCIAL SECURITY ACT 1991 IN THAT SHE HAS A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT
So we move then to consider whether Mrs Rachid satisfies the criteria pursuant to section 94(1) of the Social Security Act 1991 in that she has a physical, intellectual or psychiatric impairment; in her case, physical.

We were mindful that the Social Security Appeals Tribunal, which we shall refer to as the SSAT, considered many of Mrs Rachid's complaints, which were:

·complaints of pain and paresthesia affecting both upper limbs;

·pain in the right shoulder;

·intermittent pain and swelling affecting the lower limbs;

·pain in the right knee;

·headaches and memory problems.   

The SSAT found that Mrs Rachid had a total of 10 impairment points pursuant to Table 3 in Schedule 1B of the Act. This related to physical disabilities connected with Mrs Rachid's upper limbs, including her right shoulder.

When the matter came on for hearing before us, the parties' representatives, Mr Dawson for Mrs Rachid and Mr Duri for the respondent, told us that Dr Keen, the Senior Medical Adviser for HSA, had also allowed five points for Mrs Rachid's disabilities associated with her non-dominant upper limb, her left hand, so that there was agreement between the parties that she had a rating of 15 impairment points. 

What remained in dispute was Mrs Rachid's claim for further impairment for her lower limbs pursuant to Table 4 of Schedule 1B, the specific complaints being varicose veins and a meniscal tear of her right knee.

Mrs Rachid did not pursue any other complaints before us.

Now, in order to determine whether we agreed with the findings of the SSAT, whether we accepted Dr Keen and Dr Harvey-Sutton's assessment of five impairment points for the non-dominant left upper limb, and whether we indeed accepted that the applicant had an impairment rating of 15 points for her upper limbs, we also heard evidence from Mrs Rachid.  She gave evidence about her upper limb complaints, and we also considered the medical evidence before us in the T-documents, and other documents tendered to the Tribunal.  Mrs Rachid told us that her right shoulder has been bothering her for some seven to eight years, and that she can hardly lift her arm as a result.  She said that she cannot lift her arms to hang clothes on the clothes-line, that her daughter assists her with chores, including cooking, shopping, and washing her hair.  Mrs Rachid said that she has a driving licence, but has not driven for some six to seven years because she had two accidents five months apart, which she attributed to weakness in her hands, and pain in her shoulder.  She said that both were deteriorating, and although she had taken Neurofen and Panadeine Forte as analgesics, her doctor recommended she not take those medications due to her allergies and the medication she takes for those allergies.

She said that she had taken neither Neurofen nor Panadeine Forte for the past six months.  We noted that the medication Mrs Rachid takes for allergies consists of two non-prescription drugs which are sold only in pharmacies, being Phenergan and Claratyne, and that she uses cream for the rash on her hands.  Mrs Rachid also said that she had an injection for her shoulder some six years ago, but that that had not provided the expected long-term relief. 

Mrs Rachid said that the numbness in her hands commenced about three years ago, and that she also has problems with her wrists.  She said that as a result she cannot carry anything weighing over one to two kilograms and cannot squeeze her hands to make a fist, for example, recently when she was required to have blood taken for a blood test.  She said that the numbness in her hands may abate for one to two hours a day, and that it was worst when she got up in the morning.  Mrs Rachid explained that she had been given a splint which she described as a glove, but that this had not assisted, and that she does not use it now.  In summary, both the hand and shoulder problems are presently worse than previously and the pain constant, Mrs Rachid said at one point. 

There were various medical reports regarding Mrs Rachid's upper limbs before us.  Dr Mark Nabarro, who is a hand and microsurgeon, examined Mrs Rachid on 13 April 2005.  He said in his report at T18 that nerve conduction studies confirmed bilateral carpal tunnel syndrome, moderate on the right, and mild on the left.  He recommended splinting and anti-inflammatories, and opined that Mrs Rachid would benefit from a steroid injection, advising that she would need to rest her wrists following the injection.  This was rejected by Mr Rachid on the basis that Mrs Rachid could not rest due to the housework and dishwashing associated with looking after her large family. 

In a further report dated 26 August 2005, which is exhibit A2, Doctor Nabarro confirmed the findings of his earlier report, and opined that the pain in both Mrs Rachid's upper limbs was affecting her ability to perform housework.

Dr Phillipa Harvey-Sutton, who is an occupational physician with a Master's degree in pain management, produced a report dated 6 December 2005, which was before us as Exhibit A1.  Dr Harvey‑Sutton also gave oral evidence by telephone.  She referred to Dr Nabarro's report of carpal tunnel syndrome and Mrs Rachid's reports of worsening pain in her fingers and right shoulder.  Dr Harvey‑Sutton recorded Mrs Rachid as taking Digesic, Panadeine Forte and Neurophen Plus.  She referred to an ultrasound of the right shoulder dated 27 May 2003 which indicated Mrs Rachid had an intrasubstance partial thickness tear involving the anterior portion of the right supraspinatus tendon.  Dr Harvey‑Sutton also described an erythematous papular rash.  She opined that the rash was consistent with neurodermatitis of the upper limbs. 

Dr Keen, the Senior Medical Adviser for HSA who examined Mrs Rachid on 17 January 2005, and his report is at T10, and who commented on Dr Harvey‑Sutton's report in a subsequent report dated 22 December 2005, at Exhibit R2, also gave oral evidence before the Tribunal.  He relied on the finding of the partial right supraspinatus tear and Mrs Rachid's reports of shoulder pain, which he recorded as dating back two years.  He awarded 10 impairment points for the right shoulder.  As to the left, non-dominant arm, Dr Keen stated that there was a case for a rating of five impairment points, although in both cases he opined that there would be potential for improvement with surgical intervention.

We were not satisfied that either Dr Harvey‑Sutton or Dr Keen examined Mrs Rachid with sufficient precision in relation to Table 3 of the Impairment Tables in Schedule 1B of the Act. However there was no disagreement between them as to the impairment rating for the applicant's upper limbs and, as they relied on objective tests such as the results of an ultrasound for the shoulder, on complaint and nerve conduction studies, and on Dr Nabarro's examination of Mrs Rachid, and as the respondent did not oppose their findings in relation to the upper limbs, we were able to be satisfied that the applicant suffers a physical impairment of the upper limbs which can be rated at 15 impairment points.

WE NEXT CONSIDERED MRS RACHID'S COMPLAINTS IN HER LOWER LIMBS AND DECIDED WHETHER HER IMPAIRMENT IS 20 POINTS OR MORE, APPLYING THE TESTS IN TABLE 4 OF THE IMPAIRMENT TABLES IN SCHEDULE 1B OF THE ACT.
The applicant's evidence was that she has varicose veins in both legs, both above and below the knees, and also that she had an operation for those some six to seven years ago.  She said that there had been some relief after that, but that the veins had returned.  She had been prescribed surgical stockings, she said, but did not wear them because they were too tight. 

Mrs Rachid then told us about her right knee, which she says is swollen and painful. and which she reported as having been thus for a year and eight months prior to the date of the DSP application.  By contrast we noted that Dr Awada, Mrs Rachid's general practitioner, who diagnosed right knee pain, had recorded that intermittent right knee swelling and pain occurred following a varicose vein operation in September 1999.  Mrs Rachid told us that she cannot bend, cannot sit on the floor, must sit on a chair to pray rather than kneel, and can't manage stairs.  We noted from the evidence however that Mrs Rachid lives in a two-storey house.  She told us that she often sleeps downstairs and uses the stairs only once or twice a day, if at all.  She said that she does light duties at home, rests, and rarely goes out.  She says that the leg conditions have become worse in recent times, adding that at the time when she took Aspirin, it made her blood flow better than now, and alleviated the problem somewhat.

The applicant said that her leg conditions make her tired and make her legs feel heavy after five minutes of standing, so that she cannot work.  Notwithstanding counsel's questioning, we were not satisfied with the consistency of Mrs Rachid's evidence regarding pain, and pins and needles, and whether these sensations were constant or intermittent.

We were mindful of the medical evidence regarding Mrs Rachid's varicose veins and right knee. 

We have reports of Dr K. Hanel, a surgeon, prepared in 2005 and those were at T19 and Exhibit A3.  He recorded that Mrs Rachid had undergone excision of the long saphenous vein five or six years before he saw her.  He also said that mapping showed some residual veins with an incompetent branch in the popliteal fosse from saphenophemoral incompetence on the left, and a recurrent vein in the long saphenous system on the right, but with no communication with the groin.  He opined that Mrs Rachid was not a candidate for surgical treatment, and recommended she be treated with graduated compression stockings.

We noted however from her evidence that Mrs Rachid did not wear the stockings, and has not sought further assistance or advice about treatment for her varicose veins.  Mrs Rachid told us that standing or walking makes the pain from the veins worse, and nothing improves it.

We also had before us the reports of Drs Harvey‑Sutton and Keen as well as their oral evidence in regard to Mrs Rachid's lower limbs.  We were not satisfied that either had examined Mrs Rachid in sufficient detail in regard to her lower limbs in order for us to be satisfied that she had the 10 impairment points she sought by reference to Table 4 in the Impairment Tables.

Dr Harvey-Sutton said in her oral evidence that unlike an athlete, Mrs Rachid would not benefit from arthroscopic examination of her knee and that once pain appeared to persist, a central sensitisation had occurred in a person such as the applicant.  She accepted from Mrs Rachid's accounts of pain and restriction, and her own observations of the applicant, that she should be rated at 10 impairment points.  She also said that no particular treatment would make a difference, and that was therefore not indicated for the varicose veins.

Dr Thorpe of the Tribunal asked Dr Harvey-Sutton whether it was not presumptuous to diagnose central sensitisation if she had not excluded underlying pathology by the appropriate radiology or arthroscopy by an orthopaedic surgeon.  Dr Harvey-Sutton agreed emphatically and without further trying to justify her statement.  We therefore gave very little weight to Dr Harvey‑Sutton's opinions about Mrs Rachid's varicose veins and the effect of those upon her.

Dr Keen stated in his report, in which he reviewed Dr Harvey‑Sutton's report, that both the applicant's varicose veins and the possible right meniscal tear were fairly common conditions, and did not usually result in significant functional loss.  Mr Dawson correctly pointed out that Table 4 stipulated moderate, not significant, functional loss, and of course our assessment has been based correctly on Table 4 and the words as used in that Table.

We were mindful of Mrs Rachid's accounts regarding her leg and right knee pain.  We noted from her evidence that she has not taken analgesic medication for some time, and she did not, and does not wear the stockings prescribed by Dr Hanel.  We noted from the report of Dr Awada, Mrs Rachid's general practitioner - the report is at T6, page 24 - that she has had intermittent swelling and pain with walking and climbing stairs following her varicose vein operation in September 1999.  We noted also that Dr Sekel diagnosed a medial meniscal tear in the right knee.

The only objective evidence we have before us regarding a problem with the right knee was a report of an X-ray at T9, dated 13 January 2005, taken for reported pain on walking and bending which showed no right knee effusion, no focal bone or joint abnormality, no chondrocalcinosis or loose body or any other significant finding.  That does however not exclude underlying medial meniscal pathology.  We were mindful that Dr Harvey‑Sutton was satisfied that Mrs Rachid co-operated during her examination, but also of Dr Keen's report at T10, page 89, where he wrote:

She is difficult to examine with reluctance to undertake active formal movements.  However, based on the objective pathology, while she is restricted in more manual handling or very physically active jobs, she would not be restricted on medical grounds from lighter or some sedentary work.  There are significant non-medical factors in her incapacity.

We noted also that notwithstanding her conditions, Mrs Rachid disclosed when questioned that she travelled to Lebanon for seven weeks two and a half years ago.  She said that in Lebanon she mainly stayed at home with her husband's family, and went out only by car.  However, long journeys as necessitated for travel to and from Lebanon put in doubt the level of physical disability Mrs Rachid wants us to accept she has.  One of the reasons Mrs Rachid gave, for example, when cross-examined about whether she could undertake a basic English course was that she cannot sit for long without suffering pain.

We were unable to find from the medical evidence that Mrs Rachid's lower limb conditions have been sufficiently investigated, diagnosed or treated and stabilised.  She has not had arthroscopic examination of her knee.  She has not worn the stockings prescribed by Dr Hanel for her varicose veins and she has not taken advantage of the possibility of having injection sclerotherapy.

The tests conducted by Drs Keen and Harvey‑Sutton did not specifically deal with demonstrable loss of strength, mobility, stability, balance, co-ordination and/or sensations such as to cause us to be satisfied to the requisite standard that Mrs Rachid has moderate interference with walking and either climbing, squatting, sitting or kneeling, or that pain or claudication restricts her walking as specified in Table 4.

We were mindful that the Impairment Tables are set out in Schedule 1B of the Act where the introduction states:

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, particularly where the nature or severity of the 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 two 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 two years.

…

We find that Mrs Rachid has not satisfied the tests for Table 4 of the Impairment Tables, and find that any impairment of her lower limbs does not rate above zero impairment points. Accordingly, because we have found less than 20 impairment points, we do not need to consider her in relation to section 94(2) of the Act: that is, whether the impairment is of itself sufficient that she has a continuing inability to work.

DECISION 
Accordingly, the decision under review is affirmed.

Ms G Ettinger
Senior Member

_____________________________