Said and Secretary, Department of Family and Community Services

[2004] AATA 468

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 468

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/708

GENERAL ADMINISTRATIVE  DIVISION		)
Re		IBTISAM SAID

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date13 May 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  J Handley

Senior Member

SOCIAL SECURITY – cancellation of Disability Support Pension – dominant hand injury in 1994 – symptoms presently in elbow, wrist and fingers – limited medical evidence – whether non-organic basis for impairment – applicant assessed against criteria in Impairment Tables – decision affirmed

REASONS FOR DECISION

13 May 2004 Mr J Handley, Senior Member      

1.      The applicant applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 28 May 2003.  The SSAT then reviewed a decision made by a Centrelink officer on 29 November 2002 to cancel disability support pension (“DSP”) that was then being paid to Mrs Said.

2.      The hearing was listed and proceeded before the Tribunal on 30 April 2004.  Mrs Said appeared without representation but was assisted by an interpreter who spoke the Arabic language.  Mr Meehan appeared on behalf of the respondent.

3.      The background to this application may be briefly summarised as follows.

4.      Mrs Said lodged an application on 4 July 2003.  An outreach discussion was conducted with a Conference Registrar in August 2003 where the pre-hearing processes of the Tribunal and the intended listing of a Stay application (which had also been made by Mrs Said) was discussed.

5.      The hearing of the Stay application was listed for 16 September 2003 but was adjourned at the request of Mrs Said when her sister advised the Tribunal that treatment was being undertaken.  The matter was relisted for 3 October 2003 but was again adjourned when Mrs Said wrote a letter advising that she would be unable to attend on that day because she was attending her doctors at the Austin Hospital and was then obtaining medical evidence in support of the appeal.  The matter was again listed for 24 October 2003 but she did not appear.  At a Preliminary Conference listed for 5 November 2003 the Conference Registrar received advice from Mrs Said’s sister that she had an operation “two weeks ago”.  The matter was listed for another Preliminary Conference on 3 December 2003 but Mrs Said did not appear.

6.      On 17 December 2003 the Tribunal arranged for the matter to be listed for a Directions Hearing, having regard to the apparent failure on the part of Mrs Said to proceed with her application.  A short time prior to the commencement of the Directions Hearing, the Tribunal received advice by telephone from a person who identified himself as Mrs Said’s husband requesting that the hearing be “cancelled” because his wife was not then well.  Arrangements were made to convene the Directions Hearing by telephone.  The hearing occupied 40 minutes.  An Arabic interpreter assisted throughout the hearing.

7. Mrs Said indicated, then, that she was having difficulty obtaining medical reports. It was learnt by reference to the T-documents that she had been treated by a number of doctors and it was suggested that she return to those doctors and request reports. I also indicated that I would ask the District Registrar to forward a letter to Mrs Said indicating the issues which were anticipated to be in dispute, namely, qualification under s94 of the Social Security Act 1991 (“the Act”), with extracts from that Section and from the Impairment Tables being appended to the letter. A letter in these terms was forwarded to Mrs Said on 17 December 2003 together with the appended extracts from the Act. The letter requested Mrs Said to immediately attend upon her doctors, to show them the letter and request that they assist her by provision of a report consistent with the qualification provisions of s94 of the Act. Mrs Said was requested to provide medical reports before 16 January 2004.

8.      On 2 January 2004, a certificate was received from Dr Grokop, who reported:

Ibtisam Said who has persistent undiagnosed pain in her right wrist middle finger and thumb.  I am in the process of arranging an appointment with a rheumatologist.  It will take about one month to see him and receive a report from him.

9.      The District Registrar wrote to Mrs Said on 14 January 2004 requesting the date of the appointment with the rheumatologist so that arrangements could be made for the relisting of the application.  There was no response to the letter and arrangements were made to list the application for hearing on 27 February 2004.  It was hoped, by that procedure that Mrs Said would focus on the anticipated date of hearing and ensure that medical evidence in support would be obtained.

10.     On 17 February 2004 Mrs Said’s sister advised that a report was anticipated but would not be available until April.  On 26 February 2004 Mrs Said’s sister advised by telephone that a specialist medical report would be available and collected on 28 April 2004 and a hearing was requested for Friday, 30 April 2004.

11.     The application was listed for hearing on 30 April 2004, being a Friday, as requested by Mrs Said.

12.     On that day Mrs Said appeared but without any medical evidence.  This was very disappointing having regard to the history of the application and more than an adequate opportunity having been given to her to obtain medical support.  She indicated that she had been treated by a neurologist, the name of whom she could not recall, who had advised that in his opinion she did not suffer from nerve damage but she suffered from muscle or ligament damage.  He arranged for Mrs Said to be referred to Dr Moran in Moonee Ponds and an appointment had been made for 5 June 2004.

13.     Having regard to the history of this application I was not prepared to allow this application to be adjourned again.  Considerable delay has been incurred in completing the review of the decision made by the SSAT and I could not be confident that any further adjournment of the hearing would necessarily result in medical evidence being provided.

14.     In the circumstances I decided to proceed with the hearing.

15. Mr Meehan on behalf of the respondent indicated that the decision under review followed a review of continuing entitlement to DSP. The review officer was satisfied at 29 November 2002 that Mrs Said no longer qualified under s94 of the Act and in particular relied on an opinion by a medical officer from Health Services Australia (“HSA”) found at T6 and summarised at T6 page 31. In the body of the medical questionnaire, Dr Wassenaar found that Mrs Said suffered an impairment of 10 points under Table 3 of the Impairment Tables appended to the Act. He found that the injury suffered by Mrs Said was a “strained medial ligament of right thumb” and concluded that the injury caused “moderate interference with manual handling in dominant arm” (page 25).  In his summary at page 31 he concluded:

The TD [treating doctor?] appears to have taken her poor English into account in the work recommendation.  The client appears to have a strong belief that she is severely disabled and cannot “do anything”.  I feel this is a misperception.

. . .

I do not feel that the client’s condition prevents all work and thus regard her as currently fit for appropriate fulltime light work not involving repetitive use of the right arm.  She needs vocational rehabilitation including a functional capacity assessment. 

16.     An appeal was eventually lodged by Mrs Said against the decision of the Centrelink officer.  The SSAT made its decision on 28 May 2003, yet despite the decision made on 29 November 2002, Centrelink continued to pay DSP until 27 August 2003.  From that date Mrs Said has received Parenting Payment and Family Tax Benefit.  Mr Meehan conceded that an overpayment had been made in DSP but recovery would not be sought.

17. Mr Meehan submitted that the findings made by the SSAT should be affirmed. He submitted that Mrs Said did not achieve 10 impairment points and in those circumstances it was not necessary to assess whether she had a continuing inability to work within the meaning of s94 of the Act.

18.     Mrs Said said that she continues to suffer constant pain in her right arm.  She said that she has had persisting treatment including use of a laser, ointments, creams and pain killing medication.  Additionally she said that she had been treated with Cortisone injections.  She has attempted to rest her arm on doctors advice but has difficulty when writing and performing household work.

19.     In the absence of contemporary medical evidence and in order to determine whether Mrs Said attracted impairment points under Table 3 entitled “Upper Limb Function” I asked her a number of questions.  She said that she had been paid DSP from 1998 by reason of a right hand injury which occurred in 1994.  At that time Mrs Said was a resident of Jordan and suffered injury when a door was slammed against her right hand.  Principally she said she suffered pain and injury to the base of her right thumb but later she suffered pain in her wrist, lower arm and elbow.  She thought the subsequent pain and discomfort to be associated with the initial right thumb injury.  She was unable to explain the connection and said that doctors had not been able to give her any explanation.  She agreed that the doctors have indicated to her that she does not suffer nerve damage and that she continues to suffer from persisting ligament or muscle damage.  Over the last 12 months she said that her injury has become worse, especially with use.

20.     At the present time Mrs Said said that she has pain and discomfort on the outer side of her right elbow.  She said that she has “no problems” between her elbow and her wrist.  Mrs Said said that her right wrist becomes blue in colour in cold weather and has pain.  She said that Dr Grokop has given her a “special glove” to protect her wrist from cold weather.  She has pain and discomfort associated with writing, cutting food with a knife, lifting heavy items, washing dishes and mopping floors.  She says that she suffers weakness of grip and sometimes drops objects.  She said that her husband performs most of the housework and whilst she attends the supermarket with him, he pushes the trolley and lifts bags of groceries.  Mrs Said said that she has pain presently in the middle finger and right thumb of her right hand, particularly associated with gripping but has no discomfort or pain with the index, ring or little fingers of her right hand.

21.     Mrs Said is right hand dominant and presently is 37 years of age.  She was 27 years of age at the time of injury in 1994.  Mrs Said arrived in Australia in 1996 and has been a resident since.  She has not worked in Australia but was employed in Jordan in a factory which manufactured car seat covers.  She said that her job then was to trim excess thread and cloth and then package completed seat covers.

22.     The criteria under Table 3 attracting 10 impairment points is “demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and /or sensation of dominant upper limb which causes moderate interference with hand function or manual handling”.

23.     The criteria against 15 impairment points is “demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and /or sensation of non dominant upper limb which causes significant interference with hand function or manual handling”.

24.     The criteria against 20 impairment points is “demonstrable evidence of major loss of strength, mobility, co-ordination, dexterity and /or sensation of dominant upper limb which causes significant interference with hand function or manual handling or unable to use non dominant upper limb at all”.

25.     Dr Grokop certified on 17 August 1998 that Mrs Said had a partial tear of the ulnar collateral ligament with chronic inflammation of right middle finger and soft tissue injury of right elbow.  He then certified that she was unfit for work and would be unlikely to be able to work for at least 30 hours per week within the next two years.

26.     Dr Boyden a rheumatologist who was treating Mrs Said reported to Centrelink on 3 December 1998 that X-rays, bone scan and nerve conduction studies did not reveal any abnormality and some relief from pain was achieved by medication.  He received a history of elbow pain but could not offer an explanation for it.  He suggested occupational therapy with Commonwealth Rehabilitation Service and whilst he thought Mrs Said would not be fit for repetitive manual work it was his opinion that she was fit to undertake work within two years.

27.     Dr Poulson a medical officer with HSA reported in September 1998 that Mrs Said did suffer an impairment of 20% under Table 3 but apparently reserved opinion as to capacity for employment until he obtained the opinion of Dr Boyden (T17 pages 79 and 84).

28.     Dr Grokop provided further medical material to the respondent in September 2000 and again certified that Mrs Said would not be fit to resume employment involving at least 30 hours per week within the next two years.

29.     On 25 October 2000 Dr Lane a medical officer with HSA assessed Mrs Said as attracting 20 impairment points under Table 3 and certified that she would be unfit to return to full time work for at least two years (t17 pages 65 and 66).

30.     On 19 May 2003 Dr Grokop provided a certificate to the respondent certifying the injury as an “undiagnosed right finger thumb wrist and elbow with pain and stiffness”.  He concluded:

Despite numerous treatments including tablets and creams IBTISAM SAID’s condition has not improved in the past three years ie she did not benefit from any treatments in the past 3 years.

CONCLUSION AND REASONS FOR DECISION

31.     The opinions expressed subsequent to the report of Dr Boyden of 3 December 1998 suggest that there is a non organic basis for Mrs Said’s pain, discomfort and limitation of use.  Dr Boyden then reported that there was no evidence of injury upon X-ray, bone scan or nerve conduction studies.  In her evidence at the hearing on 30 April 2004 Mrs Said confirmed that she had been advised that nerve damage has not occurred and injury is confined to muscles or ligaments.

32.     I note that Mrs Said suffered a traumatic incident in 1994 and I am at a loss to comprehend in the absence of bone or nerve damage why the injury persists on an organic basis.

33.     I note that the SSAT Members who heard the appeal against the Centrelink decision (of which one is medically qualified), decided that there was “very little objective evidence of impairment” and the complaints and symptoms “appear to be out of proportion to the objective medical evidence”.

34.     There is no evidence at all of any non organic cause for the complaints suffered by Mrs Said.  Had there been such evidence, for example, from a psychiatrist, psychologist or therapist, perhaps 20 impairment points could have been achieved.

35.     On the evidence as presently understood I am at a loss to understand what the injury presently is but even assuming it has a ligamentous or muscular basis, it does not attract 20 impairment points against the criteria found within Table 3.  Mrs Said does have discomfort with use of her right hand and wrist with some elbow pain which apparently causes a loss of strength, mobility, co-ordination, dexterity and sensation but on the evidence heard on 30 April 2004 at the hearing moderate interference with hand function or manual handling (refer Table 3) is suffered.

36.     Whilst Mrs Said does have some discomfort in writing, use of kitchen implements, using a mop, washing dishes and lifting and some restriction in grip, I could not, on the evidence heard on 30 April 2004, nor from reading the medical material lodged, make a finding that there is “significant interference with hand function or manual handling” as those words appear against the criteria of 20 impairment points.

37.     It follows that I am unable to find that Mrs Said does have 20 impairment points or more under the Impairment Tables.  It is not therefore necessary to consider whether the applicant has a continuing inability to work.

38.     At the conclusion of the hearing I indicated to Mrs Said that in the event that she was of the belief that her condition was deteriorating and subject to advice from her doctors she may consider making another application for DSP.  I would add, having now completed this review, that in the event that such an application is made and subject to the opinions of her doctors, that consideration be given to treating the emotional factors which appear to be contributing to her discomfort and should a new claim be made, reports should be obtained in support of such factors.

39.     In the circumstances the decision under review is affirmed.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr J Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  30 April 2004
Date of Decision  13 May 2004
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr S Meehan