Salameh and Secretary, Department of Employment and Workplace Relations

[2006] AATA 151

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 151

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/498

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NAJAH SALAMEH

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date23 February 2006  

PlaceSydney

Decision  The decision under review is affirmed.

[Sgd] Rear Admiral A R Horton AO, Member  

CATCHWORDS

Social Security – eligibility for disability support pension – application of section 94 of Social Security Act 1991 – permanent impairments – left foot pain and migraine – medical evidence - rating of impairments under Schedule 1B – total impairment rating nil points – requirement for 20 points not met – continuing inability to work not investigated – applicant not eligible for pension – decision under review affirmed.

Social Security Act 1991 – section 94, Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2 Part 2  

REASONS FOR DECISION

23 February 2006   Rear Admiral A R Horton AO, Member   

1. Mrs Najah Salameh lodged a claim for the Disability Support Pension (“DSP”) on 23 March 2004. An accompanying Treating Doctors Report (“TDR”) by Dr Shaukat Javed, her General Practitioner since 1990, diagnosed left foot pain originating from a motor vehicle accident some three years previously and migraines. An initial examination by Dr D Arad of Health Services Australia (“HSA”) for the Secretary, Department of Employment and Workplace Relations (“the Respondent”) confirmed these diagnoses and assessed each condition as having an impairment rating (under the provisions of section 94(1)(b) of the Social Security Act1991 (“the Act”) of 10 points. Whilst he assessed that the migraine would lead to a loss of efficiency during attacks on 40 to 99 days per year, he nonetheless considered Mrs Salameh to be fit for work at 30 hours or more per week.

2.      Because of this assessment, the Respondent referred the matter to Dr J Ying of HSA for further advice.  His report on the papers, dated 2 June 2004, was to the effect that the migraine was temporary, Mrs Salameh not being on migraine preventative or specific medication, yet to see a specialist and the condition not being well controlled, and hence an impairment rating could not be given. He further considered her temporarily unsuitable for full time work.   As the total impairment rating was therefore 10 points only for foot pain, the claim for DSP was rejected on 10 June 2004. 

3.      On questioning this rejection, Mrs Salameh was provided with a TDR for completion by a specialist.  There is no specialist report before me, the second TDR being provided by Dr Javed.on 2 August 2004.  As this document did not clarify the issue of fitness for work or whether the migraine condition was being optimally treated, a further file review was conducted by Dr R Au of HSA on 1 November 2004, his conclusion being that the migraine condition was improving but temporary and that Mrs Salameh was currently fit for light, unskilled work.  The original decision was by an Authorised Review Officer (“ARO”) on 10 December 2004 and by the Social Security Appeals Tribunal (“SSAT”) on 14 March 2005.

4. At a hearing before me on 20 January 2006, Mrs Salameh was self represented. Mr G Lozynsky, an advocate for Centrelink, represented the Respondent. Mr A Ghanem, an interpreter fluent in the Arabic language, assisted the Tribunal. I took into evidence the documents (“T docs”) provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975, two further reports from Dr Javed dated 11 June 2005 (Exhibit A1) and 11 August 2005 (Exhibit A2), the Respondent’s Statement of Facts and Contentions (Exhibit R1) and TAFE course details (Exhibit R2).

5. For the reasons given at the conclusion of this decision, I find that Mrs Salameh has impairments of left foot pain and migraine and that the total impairment rating for those conditions is Nil points. Accordingly she does not meet the criteria in section 94(1)(b) of the Act and hence is not eligible for the DSP.

LEGISLATION

6. Section 94 of the Act relevantly states:

“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;

(ii)        …; and

(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); or

(ii) …

(iii) …

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

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 within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note: For work see subsection (5).

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5)   In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

work means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.”

7.      The Impairment Tables are at Schedule 1B of the Act. They are function based and designed to assess impairment in relation to work. A rating can only be assigned after “comprehensive history and examination” and the condition must be fully documented, diagnosed, investigated, treated and stabilized, and considered to be permanent. Mrs Salameh must meet the criteria for the DSP between the date of lodgment of her claim and 13 weeks thereafter under Schedule 2 Part 2 of the Social Security (Administration) Act 1999 (“the Administration Act”).

EVIDENCE

8.      Mrs Salameh, born in Lebanon in 1960, married Adel Salameh in 1978, and arrived in Australia in 1988.  She is an Australian citizen.  She has 4 children ranging in age from 15 to 25 years.  She completed High School in Lebanon, and in about 1997, completed a “certificated” English language course of 2 – 3 months duration.  She has no other qualifications and has no work experience, devoting herself to her family responsibilities.   

9.      In February 2001, a car in which she was a passenger skidded in the rain.  She described panicking, and opening the door and putting her left foot outside. She stated she lost consciousness, and was subsequently taken by ambulance to Hornsby Hospital, suffering “loss of blood and skin from a deep laceration, requiring an injection and dressing.  She remained at the hospital for 6 hours.  There is no  report on this accident before me.

10.     She stated that her foot had never returned to normal.  Before the accident she was an active person, but now cannot stand for long and when sitting she needs to stretch her foot from time to time as it becomes numb.  She feels weak and tires easily.  She cannot travel alone in public; she gets fatigued, but travelled to the Tribunal by train, being assisted in the train and whilst walking, by her son.  In cross- examination, she stated she could walk for 3 to 5 minutes and than had to rest.  She can stand for about 15 minutes before needing to sit down.  The advice she has received from Dr Javed is to massage the foot and relax as much as possible, lying down and putting her foot up as necessary; on his recommendation she bought and uses a massage machine.  The pain is worse in hot or cold weather.  As to her ability to function, Dr Javed said  “fairly major impact” in his initial TDR and “cannot stand or walk too long” in the second TDR.

11.     For pain relief she takes Panadeine Forte and Mersyndol but I was unable to establish at what frequency.  She had previously taken Voltaren but I understand no longer.  Dr Javed makes no reference to any particular medication, merely stating analgesics.  Mrs Salameh stated that she had seen many doctors in respect of her foot pain, but there are no medical reports before me other than those from Dr Javed.   As to future or planned treatment, Dr Javed stated “don’t know” in his later TDR.

12.     She can undertake some housework, but cannot use a vacuum, nor can she be active in the garden.  Her children help her with domestic chores, and her friends and cousins visit to help and to check on her condition.  Her social life has been affected, but she sometimes visits friends.  She drives her automatic car, but only locally, sometimes to get small items from the local shops.        

13.      As to her condition of migraine, Dr Javed initially described the clinical features as “headaches” with treatment by analgesics.  His later TDR of 20 August 2004 is somewhat more fulsome, noting clinical features of headaches and nausea/vomiting with treatment by Mersyndol Forte, Inderal  and Voltaren, that Mrs Salameh had seen a specialist, and that the condition had a “major impact” and “(she) cannot think straight”.

14.      A diagnosis of migraine was accepted by the three HSA doctors.  As to the frequency of attacks, Dr Arad notes a history of an average of 24 attacks per year (since 1999) with an average duration of 2 to 3 days.  He saw no obvious neurological signs and considered the condition as permanent and unlikely to change during the next two years.  Dr Ying converts the frequency of attacks (from the data provided by Dr Arad) to severity 3 for 40 – 99 days per year.  As there was no migraine specific or preventative medication, and Mrs Salameh had yet to see a specialist, he considered the condition to be temporary. 

15.      The third HSA report (by Dr Au on 1 November 2004) resulting from a face to face examination, refers to daily headaches, shakes of the body and dizziness, with attacks lasting 2 to 3 hours.  He notes Mrs Salameh had not been hospitalised for this condition nor were details of any CT or EEG tests available.  He notes that Mrs Salameh saw a specialist neurologist 3 months earlier, who advised her to relax; he also notes the view of Mrs Salameh that her condition had since “improved a little”.  Dr Au records a severity of 2 – 3, and notes that Mrs Salameh stated that she was affected over 100 days a year, the attacks “lasting hours”.  He too, considered the condition to be temporary and improving. 

16.      In oral evidence, Mrs Salameh stated that her migraine was bad about twice a week, when she could not stand noise or light, and felt bilious.  In cross examination and in reference to the period in March 2004, she gave the frequency of migraines as once a week, sometimes twice.  At that time she took Mersyndol Forte (which also eased her foot pain), but consequent on seeing the neurologist in June or July 2004, she takes Inderal twice a day.  The specialist advised her that taken for a long time, such medication would ease the condition, and if that medication was not adequate, to see him again.  She indicated that whilst Dr Javed wanted her to obtain a second specialist opinion, she could not afford to do so. 

17.      Mrs Salameh has not attended any pain management clinic, nor is there any indication from Dr Javed that he had advised her to do so.  Further to earlier comments as to her daily life, she stated she cannot wake before 10 am daily due to the effects of her medication, and that she gets stressed at times because of her migraine and foot pain.

18.      As to her ability to work, Mrs Salameh stated that she had never worked, and had no relevant skills, and she was not interested in view of her age and her health.  She agreed in cross examination that she had been offered assistance at interviews with Centrelink 3 times in 2004, but declined each time.  As to educational or vocational training, the same situation applied – it would be prevented by her poor health.  As to when she might see herself in a position to consider work or training, she said maybe in 2 or 3 years, but it would depend on her health.

CONSIDERATION       

19.      The Respondent submitted that on the evidence before the Tribunal, whilst the impairments of foot pain and migraine were accepted, the requirement for a total impairment rating of 20 points or more could not be realized.  The foot condition might warrant 10 points under Table 4 of the Schedule as being permanent and agreed by all three HSA doctors, but a nil impairment rating for migraine under Table 21 was appropriate.  It was submitted that the opinions of Drs Ying and Au that the condition was temporary should be preferred to that of Dr Arad. 

20.      In respect of the migraine condition, the Respondent opined that in the period under review, that is for the period of 13 weeks from the date of claim of 23 March 2004, Mrs Salameh had yet to see a specialist, nor was she taking the medication (Inderal) specific to a migraine condition, as was subsequently prescribed by a specialist and which, on her evidence, was resulting in some improvement.  In effect, at that time the condition was not treated and stabilized as required under the criteria for impairment assessment.  

21.      The legislation is quite specific in that the period in which Mrs Salameh must meet eligibility criteria for the DSP is that from the date of claim for a further period of 13 weeks (that is to late June 2004).  In that time frame, I have some difficulty with the medical opinions before me.  In the matter of the left foot pain, there is no evidence of a “comprehensive history and examination” of the condition and in the absence of any specialist report or radiological examination, neither has the condition been “fully documented, investigated, treated and stabilized”.  My opinion thus accords with that of the SSAT.  I acknowledge that all medical opinion is that the condition is permanent and a rating under Table 4 can be applied, and indeed the Respondent accepts that situation.  But on the evidence before me and notwithstanding the oral evidence of Mrs Salameh, a nil impairment rating properly reflects the circumstances.  In making that finding, I observe that there has been no change in terms of further investigation and treatment in the period following that under review.

22.      The matter of the migraine condition is somewhat different, in that, in my opinion, the condition must now be considered permanent.  Mrs Salameh has been referred to, and examined by, a neurologist, and appropriate migraine specific medication/treatment implemented (as was considered necessary by Dr Ying).   That some improvement is occurring, as given in evidence, does not, in my view, negate the conclusion that the condition is stabilized.

23. However, the circumstances in the relevant period under consideration were quite different. There had been no specific intervention or prescribing of migraine specific medication. In effect, the criteria under the provisions of Schedule 1 B of the Act in respect of comprehensive examination, investigation and treatment had not been met. In the circumstances, I am unable to give an impairment rating for this condition.

24. Accordingly Mrs Salameh does not meet the 20 point criteria required under section 94(1)(b) of the Act, and is not eligible for the Disability Support Pension.

25.      I make no finding in respect of whether Mrs Salameh has a continuing inability to work.  That is a matter for consideration should she meet the 20 point criteria in any future claim.  Whilst I observe that she has never worked, nor undertaken any educational or vocational training (other than in secondary schooling and an English language course some years ago), this in itself has little relevance as to whether she may or may not be able to do so in the future.  It does seem to me, however, and this may well be understandable, that she has some difficulty in accepting that these conditions in respect of work or training should be a criteria for eligibility for the DSP.

26.      The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Associate

Date of Hearing  20 January 2006 
Date of Decision  23 February 2006
Representative for the Applicant               Mrs Salameh, Self-Represented   
Advocate for the Respondent                   Mr G Lozynsky, Centrelink