Saleh and Department of Family and Community Services

[2001] AATA 68

DECISION AND REASONS FOR DECISION [2001] AATA 68

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2000/775

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      Saleh SALEH         
  Applicant
           And    Department of Family and Community Services    
  Respondent

DECISION

Tribunal       Dr JD Campbell, Member            

Date5 February 2001 

PlaceSydney

Decision      The Tribunal determines that the decision under review be affirmed.         
  ………………………………..
  Member
CATCHWORDS
Social Security - Disability Support Pension - Physical and Psychiatric Impairments - Assessment - Continuing Inability to work.
Social Security Act 1991

REASONS FOR DECISION

J D Campbell          

1. Mr Saleh Saleh ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 20 March 2000, which affirmed the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 17 November 1999 to reject the Applicant's claim for Disability Support Pension {"DSP").  This decision was also affirmed by an authorised Review Officer on 28 January 2000.

2. A hearing was held before the Tribunal on 22 January 2001 at which the self-represented Applicant presented oral evidence.  Mr Slattery, an advocate from the Advocacy and Administrative Law Section of Centrelink, represented the Respondent.  An interpreter fluent in the Arabic language assisted the Tribunal.

3. The following material was placed into evidence before the Tribunal:
   Exhibit No  Description              Date      
   T1-30 and P1-88 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
   A1      Radiological Report Dr Seefe       1 July 1999   
   A2      Radiological Report Dr Varnava   4 November 1999   
   A3      Radiological Report Dr Chan       18 February 2000   
   A4      Medical Report Dr Younan 12 May 2000
   A5      Bone Scan Report Dr Patel           15 February 2000   
   A6      Medical Report Dr Ayoub   14 November 2000 
   A7      Medical Report Dr Guirgis  12 September 2000
   A8      Medical Report Dr Manohar         24 December 1999           
   R1      Certificates of Achievement from TAFE – 2 courses in year 2000 – ESL Community Class; Education and Employment Options                   
   R2      Respondent's Statement of Facts and Contentions     30 October 2000     

legislation

1. The relevant legislation is the Social Security Act 1991 ("the Act") and in particular subsection 94(1)(2)(3)(4)(5) and (b), 100(3) and the Schedule 1B Tables for the assessment of work-related impairment for disability support pension ("Schedule 1B Impairment Tables").
   issues

2. The relevant issues in this matter are whether the Applicant:

   (a) has a physical, intellectual or psychological impairment; and
   (b) whether those impairments, if found to exist are assessed at 20 points or more under Schedule 1B Impairment Tables of the Social Security Act ("the Act); and
   (c) whether these impairments, if found to exist, cause the Applicant to have a continuing inability to work.

background

1. The Applicant lodged a claim for DSP on 26 October 1999 in which he stated that he had a pain in his lower back and his left knee and that he experiences difficulty all the time with standing, walking and using public transport; as well as with lifting, carrying, bending and working for others,  Further the Applicant stated that he often has difficulties with sitting, driving a car, concentrating and caring for himself, and sometimes has trouble remembering, understanding instructions, sleeping, breathing and managing his personal affairs (T3, p25).

2. A treating doctors report was completed by a consulting psychologist, Mr Mattar on 12 October 1999 in which the three conditions nominated were impaired concentration, stress and depression and some suicidal thoughts.  No clinical features were described, nor date of onset given, with the first two conditions considered to be stable and the third fluctuating.  Mr Mattar considered the  Applicant to have negligible work ability in that:

• he would be absent from work four or more days per week;

• he is unable to work full days because of endurance problems;

• he can understand and follow instructions less than half the time;

• he is unable to communicate;

• he is unable to travel  or move around independently;

• he has substantially reduced dexterity;

• his behaviour would place serious risk to the person's safety;

• he would not be able to alternate between tasks; and

• he is unable to lift, carry or move objects.

Mr Mattar considered that the Applicant is unlikely to return to any form of work for more than two years (T20).

1. On 16 November 1999, Dr Keen, a medical adviser at Health Services Australia prepared the following medical assessment report as a consequence of having examined the Applicant:

   "This 37-year-old male has a history of a low back injury lifting a container at work some years ago, and then more recently 4 years ago of a blow to his knee when he fell at work. He has been treated with surgery to his knee soon after the injury, and since then with physiotherapy and analgesia.
   He reports considerable disability arising from these accidents, and considerable limitation of function. However, there appears some exaggeration abd inconsistency of findings on examination (for example, today he actively resisted bending his knee more than half way, but specialist reports from July note full movement ranges), and the reported functional losses appear out of keeping with the relatively minor pathology. It was also difficult to obtain precise details of his symptoms and limitations.
   As a result, it was difficult to obtain an accurate impairment rating, but this is considered to be 20 at most. Mr Saleh should avoid work requiring heavy lifting and repeated bending, as well as lengthy weight bearing, but should be capable of more sedentary duties within these restrictions, and for appropriate retraining. A rehabilitation program should assist his return to the workforce." (T22, p 68)

2. Further Dr Keen considered that the Applicant was fit for work in light sedentary and/or semi sedentary activities, and that his work ability was affected in the following manner:

• his mobility would be constrained in some situations; and

• his ability to lift, carry and move objects would be done at a greatly reduced speed, coordination and with difficulty. (T22, p66)

1. The Applicant's claim for DSP was rejected by the Respondent on 17 November 1999 (T23).  This decision was affirmed by the Authorised Review Officer on 28 January 2000 (T28) and by the SSAT on 20 March 2000.
   applicant's evidence

2. The Applicant told the Tribunal that he was born in Beirut in 1962 and enjoyed two years of primary education, before coming to Australia in February 1972.  In Australia he experienced some difficult family circumstances, which interfered with his education and caused his return to Lebanon for a year in 1974.  On his return to Australia in 1975, difficulties with schooling continued and he went to "Beverly Hills School to learn English".

3. The Applicant stated that he commenced work at age 16, working in successive jobs as a press operator for 18 months; as a welder for three and a half years, as a chef for two years, and as a cleaner at the airport for three years.  Following his marriage in Lebanon in 1986 and his return to Australia in March 1987, the Applicant worked as a tailor for three months, and was unemployed for six months prior to commencing as a cleaner at Qantas for seven months, and then as a catering assistant for seven and a half years.

4. The Applicant stated that in 1995 he injured his back at work while attempting to stop a food console falling upon a fellow worker.  The pain was located centrally in his lower back and the Applicant was off work for two months prior to returning to work on light duties.  While undertaking these duties, he received an injury to his left knee, which required operative intervention.  The Applicant stated that he has not worked since the injury and that he received a compensation settlement in 1998, after which he went overseas for a period of five and a half months, with the trip being interrupted because of the robbery of his house.

5. The Applicant informed the Tribunal that he lived with his wife and six children ,aged one to 15 in housing commission accommodation at Campbelltown. The Applicant stated that he does not have many friends; that he has five brothers and seven sisters in Australia; that he enjoys going out with his wife and children; that he goes shopping with his wife under sufferance; that both he and his wife drive the family car; and that he neither frequents clubs nor drinks alcohol, although he does smoke on occasion.

6. The Applicant indicated that he rises each day at about 7am, and sits with the children before they go to school.  After that he may meet with the neighbours or alternatively help his wife undertaking some vacuuming, hanging clothes on the line and cooking (not too often).  Further he may assist his eldest daughter in mowing the lawn.  The Applicant indicated that the remainder of the day is spent watching television, laying down, collecting the children from school and retiring to bed between 8pm and 10pm, depending on whether the back pain is severe. Sleep is sometimes difficult because of back pain.

7. The Applicant indicated that he is able to use public transport; that he can walk 10 to 15 minutes on even ground (about one kilometre); that he can sit for one hour; that he can stand for 30 minutes; that he can drive for one hour; that he has difficulty climbing stairs; that he can lift up to five kilograms; and that he is able to carry slowly and his ability to bend is variable.

8. The Applicant stated that his two main conditions were his lower back pain and his painful left knee.  The Applicant described his lower back pain as being central, with no radiation and of variable intensity from day to day, with one episode of severe pain per week and one episode of less severe pain per week.  For the remainder of the time, the Applicant said his back pain is tolerable.

9. The Applicant stated that his left knee is more uncomfortable in winter months or when he has to walk up stairs.  As regards medication, the Applicant indicates that he takes about six panadeine forte tablets per week.

10. In regards to his psychiatric condition, the Applicant indicated that he no longer sees Mr Matter and is to see Dr Younan again shortly.  He stated that he occasionally gets anxious, but everything is much improved, although he sometimes becomes irritable with the children.

11. The Applicant told the Tribunal that he had always enjoyed work and that he did not enjoy sitting around at home.  Further he would enjoy the opportunity to work and be retrained for such work, provided his particular physical impairments were recognised and allowances made.  He was pleased to have attended and received certificates at TAFE in 2000 for the two courses undertaken.
    medical evidence

12. Dr A Smith, a consultant orthopaedic surgeon, in a series of reports between 9 October 1996 and 1 July 1999 details the chronological history of his treatment of the Applicants work place injuries involving his lower back and left knee.  In his report of 1 July 1999 Dr Smith comments that in relation to the left knee there is some wasting of the quadriceps, some effusion and normal movements with some patello femoral crepitus.  In relation to the lumbar spine there is a restriction in lumbar movements. Dr Smith also commented that x-rays of the left knee of 1 July 1999 demonstrate patello femoral osteoarthritic and some ostearthritic change in the lateral compartment, while x-rays of the lumbar spine demonstrate some disc space narrowing at L.5.-S.1 with retrolisthesis. (T18, p49 and exhibit A1)

13. A radiological examination of the lumbar spine on 25 September 1999 was reported on by Dr Meyerson, a consultant radiologist, in the following terms:

    "The appearances are consistent with the presence of disc pathology at the L3/4 and L4/5 levels. No other significant abnormality was noted". (T19, p49)

1. A radiological examination of the lumbar spine was conducted on 4 November 1999 and Dr Varnava, a consultant radiologist, reported:

   "Degenerative changes predominantly of the L4/5 disc space and of the L4/5 and L5/S1 facet joints" (exhibit A2)

1. A radiological examination of the left knee on 18 February 2000 (exhibit A3) and a bone scan on 15 February 2000 (exhibit A5) confirmed earlier radiological investigations.

2. In a report dated 14 November 2000, Dr Ayoub, the treating general practitioner,  nominated the back and left knee conditions already outlined and added further conditions of left lateral epicondylitis, headaches and chronic pain syndrome and adjustment disorder (exhibit 6).

3. In a report dated 12 May 2000, Dr Younan, a consultant psychiatrist, concluded that the Applicant had an adjustment disorder with a depressed and irritable mood (exhibit A4).

4. In a report dated 24 December 1999, Dr Manohar, a consultant in rehabilitation medicine stated:

   "Examination of the lumbosacral spine today reveals spinal forward flexion fingertip to ground distance is 500mm. He has pain in the lumbosacral spine extending up to the mid dorsal spine. There is tightness over the sacrospinalis. He can tip toe walk, heel walk and squat well.
   Examination of the left knee reveals the knee flexion and extension are good. There is a 10 degree lag." (Exhibit A8)

1. In a report dated 12 September 2000, Dr Guirgis, a consultant orthopaedic surgeon, confirmed the diagnosis in relation to the Applicant's lumbosacral spine and left knee and opined:

   "In my opinion Mr Saleh is fit for light duties not involving heavy lifting, repeated bending, prolonged standing or prolonged walking. He should also avoid walking on uneven ground, climbing ladders or frequent negotiation of steps." (exhibit A7)

submissions
applicant:

1. The Applicant contends that he has particular physical and psychiatric impairments, which when assessed under the Schedule 1B Impairment Tables indicate an impairment rating of 20 points or more.  Further the Applicant contends that he has a continuing inability to work because of the impairments, and that this is not likely to alter in the foreseeable future.  In making such a contention the Applicant relies upon the medical opinions of Drs Ayoub and Younan.
   Respondent:

2. The Respondent concedes that the Applicant does have the physical impairments of lumbar spondylosis and osteoarthritis of the left knee and that the assessment of these two impairments under the Schedule 1B Impairment Tables is 20 points or more.  The Respondent does not accept that the Applicant had a permanent psychiatric condition at the operative time, and further notes that the report of Dr Younan is in May 2000, that this report indicates the existence of adjustment disorder and that it indicates no date as to time of onset, with the consultation and opinion being under taken well outside the operative period.

3. The Respondent further contends that the Applicant does not have a continuing inability to work and in so stating relies upon the medical opinions of Drs Keen and Guirgis.

considerations and findings

1. In preliminary comment the Tribunal observes that subsection 100(3) of the Act details specifically the time frame to which the Tribunal should focus its attention. This time frame commences with the lodgement of the claim for disability support pension and continues for a period of three months commencing the day of the lodgement. Clinical or other evidence outside the nominated time frame (operative period) may be used by the Tribunal to better understand the clinical evidence nominated within the operative period.

2. In turning to a consideration of what medical conditions existed during the operative period, the Tribunal observes that all the medical opinions nominate the physical conditions of degenerative disease of the lumbosacral spine with facet joint  arthritis and osteoartritis of the left knee.  It is the Tribunal's finding that these two physical conditions exist. Further having considered the x-ray evidence, the evidence of the Applicant and the opinions of the various doctors contained within the decision, the Tribunal finds that the Applicant has a 10 points impairment rating under Table five of the Schedule 1B Impairment Tables for his lumbosacral impairment, in that he has a loss of one quarter of normal range of movement as well as back pain with many physical activities, with standing for 30 minutes and with driving for 60 minutes.  Further the Tribunal finds that the Applicant has a 10 points impairment rating for his osteoarthritis left knee under table four of the Schedule 1B Impairment Tables in that he has a demonstrable loss of strength, mobility, stability and balance as evidenced by the limitation of his ability to walk (10 to 15 minutes) and his difficulty with climbing and sitting.

3. In considering the issue of his psychiatric condition, the Tribunal notes that the treating medical report of Mr Mattar alludes to particular symptoms, makes no mention of a diagnosis, and nominates ongoing psychotherapy as the treatment regime.  The Tribunal also notes the evidence of the Applicant and the report of Dr Younan in May 2000, some months outside the operative period.  In turning to Table six of the Schedule 1B Impairment Tables, the Tribunal notes that an adjustment disorder should be considered as a temporary disorder in the first instance, and that the table is issued for assessment of permanent disorders.  Even if the Tribunal were to recognise the existence of a permanent adjustment disorder, it is evident that any assessment under table six would be a nil points rating, for there is no evidence of any symptomatology during the operative period, which would allow a higher rating, for Mr Mattar's report is entirely devoid of any significant clinical detail.  In summary it is the Tribunal's finding that the Applicant's psychiatric condition had not been during the operative period fully diagnosed, documented, treated and stabilised and as such no impairment rating can be given.

4. As a consequence of the Tribunal's findings of physical impairments with a combined impairment rating of 20 points, the Tribunal concludes that the Applicant satisfies subsection 94(1)(a) and 94(1)(b) of the Act.

5. The Tribunal in turning to a consideration of whether or not the Applicant has a continuing inability to work, notes subsection 94(2) which states:

   "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."

1. In considering the Applicant's situation, the Tribunal notes the evidence contained within the treating clinician's report of Mr Mattar and in particular his assessment of the Applicant's work ability.  It is the Tribunals conclusion that the assessment is not compatable with what the Applicant has stated in evidence and certainly is inconsistent with the clinical reports of Drs Keen and Giurgis.  In overall assessment of Mr Mattar's report, the Tribunal finds little which is of merit and which assists the Tribunal in the issue under consideration.

2. The Tribunal considered the Applicant to be a straight forward and credible witness, and accepted at face value that he does not enjoy sitting at home not working.  Further the Tribunal accepts the evidence of the Applicant as to the nature and frequency of his back and left knee pain, and what he can and cannot do, and what he has done in relation to his continuing education at TAFE.

1. As a consequence, the Tribunal, having noted the opinions of Drs Keen and Guirgies, accepts that they are considered opinions on the Applicant's ability to work and relies upon them in finding that the Applicant does have a capacity to undertake work for 30 hours per week at award wages or above in light sedentary or semi sedentary work activities.  That is to say the Tribunal finds that the Applicant's impairments do not prevent the Applicant from doing any work within the next two years.  In coming to such a finding, the Tribunal did consider the reports of Drs Ayoub, Smith, Manohar and Younan, but observed that none expressed an opinion of the Applicant's likely ability to work at the relevant period.

2. Further the Tribunal finds that the Applicant's impairments do not prevent the Applicant from undertaking educational, vocational or on the job training during the next two years, with such training assisting the Applicant to work within the two year time frame.  In essence such training is not unlikely (because of the impairments) to enable the Applicant to do any work within the next two years.

3. In summary the Tribunal, in acknowledging the frankness, age and desires of the Applicant, finds that the Applicant, while satisfying subsection 94(1)(a) and (b) of the Act, failed to satisfy subsection 94(1)(c)(i) of the Act in that he failed to satisfy subsection 94(2) of the Act, and in particular subsection 94(2)(a) and (b)(i) or (ii). Accordingly the Applicant does not qualify for DSP in relation to the application under review.
   determination

4. The Tribunal determines that the decision under review be affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate

Date/s of Hearing     22 January 2001
Date of Decision  5 February 2001
Solicitor for the Applicant             Self-represented
Solicitor for the Respondent        Mr B Slattery