Sami Habashi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 232
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/0184
General Administrative Division )
Re: Sami Habashi
Applicant
And: Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent
DIRECTION
TRIBUNAL: Ms N Bell, Senior Member
DATE: 26 April 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The figure in paragraph 23 should read 15 hours, not 125 hours.
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Ms N Bell, Senior Member
[2013] AATA 232
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0184
Re
Sami Habashi
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
Decision
Tribunal Ms N Bell, Senior Member
Date 17 April 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Mr Habashi was first granted disability support pension on 11 May 2007 for neck and spinal conditions.
In August 2010, Centrelink commenced a review of Mr Habashi’s financial circumstances.
On 28 April 2011, Centrelink reviewed his eligibility for disability support pension and decided to cancel his pension on the basis that he could work more than 15 hours per week as indicated by Mr Habashi’s accountant on a business details form completed in December 2010. Mr Habashi applied for a review of the decision to cancel his disability support pension. The decision was affirmed, on further internal review, by an authorised review officer and then by the Social Security Appeals Tribunal.
Mr Habashi currently suffers from:
(a)cervical spinal and upper limb condition;
(b)lower back disorder;
(c)depression; and
(d)other conditions, including diabetes, hypertension and arthritis.
Issues
Section 94 of the Act provides for the following requirements for eligibility for disability support pension:
(i)a physical, intellectual or psychiatric impairment; and
(ii)an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and
(iii)a continuing inability to work.
It is not in dispute that Mr Habashi has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in this application.
Mr Habashi’s pension was first cancelled on 28 April 2011. Only the conditions suffered by Mr Habashi as at that date may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were as at 28 April 2011.
Do MR Habashi’s conditions attract an impairment rating of 20 points or more?
The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 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.
Paragraph 6 of the Introduction provides that when considering 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.
I will deal with each of Mr Habashi’s conditions in turn.
Cervical spine (neck) and upper limbs
There is no dispute that Mr Habashi has a cervical spine condition that is permanent. He also has an upper limb condition also permanent. The medical evidence suggests the symptoms in his upper limbs are caused by his neck condition. Several CT and MRI scans, nerve conduction studies and reports from orthopaedic surgeons and neurologists in 1997, 1998, 2006 and 2007 evidence the conditions as permanent.
Table 5.1 concerning the cervical spine employs range of movement as a measure of impairment:
TABLE 5.1 Cervical spine
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement.
TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTY Loss of three‑quarters of normal range of movement and constant neck pain.
THIRTY Loss of almost all movement, or complete ankylosis in position of function.
FORTY Ankylosis in an unfavourable position, or unstable joint.Mr Habashi’s general practitioners provided medical reports to Centrelink indicating some of the functional effects of Mr Habashi’s conditions. Dr Basta’s medical report to Centrelink dated 8 May 2011, reports, “his arm numbness and hand weakness have significant impact on his ability to function.” Three further medical reports provided to Centrelink from Mr Habashi’s other general practitioners, Drs Taluja and Kavallaris dated 20 June 2011 and 5 September 2011, and 2 September 2011 respectively, report similar conditions and functional effects to Mr Habashi. Dr Taluja adds that Mr Habashi reports daily headaches. Dr Kavallaris adds that Mr Habashi attended acupuncture treatment for his neck pain.
Michael Chalouhi, Occupational Therapist, provided a Functional Capacity Evaluation Report dated on 17 May 2011 after he saw Mr Habashi for assessment on 9 May 2011. He concludes a loss of quarter of normal range of movement according to Table 5.1 correlating to five points. The Job Capacity Assessment Report prepared by Ms Ramos dated 27 May 2011 relied on Mr Chalouhi’s assessment of quarter loss of normal range movement.
Mr Chalouhi recorded the range of movements of Mr Habashi’s cervical spine. Mr Chalouhi includes both the ranges provided during the formal examination and his observation of Mr Habashi’s movements outside of formal testing. They are:
Range of movement
Limitations were noted in the following movements:
Flexion: 15° (Client demonstrated outside of formal testing 30°)
Extension: 15°
Lateral flexion (left): 10° (Client demonstrated outside of formal testing 30°)
Lateral flexion (right): 10° (Client demonstrated outside of formal testing 30°)
Rotation left: 10° (Client demonstrated outside of formal testing 30°)
Rotation right: 10° (Client demonstrated outside of formal testing 30°)
Mr Chalouhi’s report included observations relating to some inconsistencies:
Throughout the assessment, there were some inconsistencies between client reported pain levels and observable effort and physical indicators. The client showed physical signs of pain and discomfort in some range of motion tasks which were not congruent with observable and physical indicators such as heart rate, blood pressure and other signs of exertion or discomfort. Discrepancies were more noticeable outside of formal testing such as greater neck and lower back mobility and greater seating tolerance and carrying capabilities which could indicate pain and avoidance behaviours may have affected the client’s overall participation in this assessment. This evidence would lead the assessor to believe the client could possibly perform better in most tasks than attempted. In consideration of these results, it would be unreasonable to assume the client is severely disabled as a result of his medical conditions but there definitely are limitations.
Mr Habashi contested Mr Chalouhi’s report and the methods of his examination and assessment. He said that he was only with Mr Chalouhi for about six minutes. He maintained that Ms Ramos spent the interview on the telephone discussing him with an unknown person.
Dr Guirgis, Orthopaedic Surgeon, provided a report dated 9 November 2011 after seeing Mr Habashi for the first time on 8 November 2011. He reported the range of movements of Mr Habashi’s cervical spine as follows:
Flexion 20 [N 45];
Extension 20 [N 45]
Right lateral flexion 20 [N 45];
Left lateral flexion 15 [45];
Right rotation left 40 [N80];
Left rotation 30 [N 80].
Dr Guirgis assigned an impairment rating of ten being for loss of half of normal range of movement and frequent/constant neck pain, from Table 5.1.
I prefer the assessment of Mr Chalouhi for the following reasons. Dr Guirgis’ report does not indicate whether he had seen Mr Chalouhi’s report, and does not indicate which other medical reports he had seen prior to examining Mr Habashi, other than general references to a CT scan and an MRI scan. The report does not include any detail as to how he conducted his examination of Mr Habashi and what clinical examinations he had regard to and how he arrived at his assessment of functional capacity according to the tables.
I note that Mr Chalouhi’s report is detailed and comprehensive. He outlines the reports he reviewed prior to the assessment and his method of assessment including detailing the performance of functional tasks Mr Habashi was asked to undertake in order to arrive at a functional assessment according to the Impairment Tables, including walking and lifting exercises.
I prefer the opinion of Mr Chalouhi and I consider that Mr Habashi’s neck condition attracts an impairment rating of five points.
I am also confirmed in this view by the many inconsistencies in Mr Habashi’s evidence. He said at first that he would go to the pizza shop for two or three days per week for all of its opening hours (11.30 – 2.00 and 6.00 – 9.00pm with 6.00 – 10.00 pm on weekends). Later he said he would only go to the shop once in many weeks. First he said he would always go with his wife. Later he said he would sometimes drive the 15 minute trip to get there. First he said he would spend all of his time sitting in a chair by the phone, answering it. Later he said he is incapable of sitting for more than 15 minutes and could not hold the phone in his hand. He said he was serving tables with his wife, taking orders on the phone and ordering supplies. This contrasted with his evidence that all he would do was “sit there”. It also contrasts with the details provided in December 2010 in a Business details Form which listed Mr Habashi’s duties of 15 hours per week as: pizza making, cleaning, ordering supplies, bookkeeping, and telephone orders. Mr Habashi said this form was completed by his accountant and that his accountant was wrong.
Mr Habashi also said that his wife dresses him, showers him and cuts up his food and has been required to do so because of his condition for the last “four or five years”. However, Mr Habashi said he made one or two pizzas when he was at the shop. I also note that Mr Habashi was able, in June 2012, to travel to Egypt for 20 days to visit family.
It is difficult to escape the conclusion that Mr Habashi was grossly overstating his symptoms.
Mr Mercurius gave evidence in support of Mr Habashi. However, his evidence was generally not relevant to the issues presented by the Impairment tables.
I will now consider the functional effects of his upper limb condition.
Table 3 concerns upper limb function and provides:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, 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.
THIRTY Unable to use dominant upper limb at all.Mr Habashi saw neurologist Dr Teychenne in February and March 2007. In his report dated 22 February 2007, Dr Teychenne provides a clinical history relating to Mr Habashi’s neck condition, which includes complaints of numbness since 1998, extending to his lower arms and hands and a car accident in 2000 resulting in increased neck pain. In the report of 1 March 2007 he writes that he also “suspects that he has a predominant bilateral carpal tunnel syndrome.”
Dr Nour, one of Mr Hasbashi’s general practitioners, in a report dated 11 April 2007 said the symptoms of his neck pain radiates to his shoulders and upper limbs and he experiences pins and needles in his upper arms. Dr Basta’s report of 6 July 2010 states he has “been getting parathesia of both arms”. Dr Basta’s medical report to Centrelink dated 8 May 2011, reports “chronic neck pain radiating to his back, numbness of both arms, weakness of both hands. Symptoms have been getting worse significantly over the last 2 years. At present he’s getting the symptoms on a daily basis.” Dr Basta also reports, “his arm numbness and hand weakness have significant impact on his ability to function.”
Dr Guirgis in his report of November 2011 assigned an impairment rating of five points under table 3.
Ms Ramos, Occupational Therapist and Job Capacity assessor, assigned a nil impairment rating under table 3. She reports:
An impairment rating of NIL was assigned as the client is able to use his dominant limb effectively and has mild interference with hand function or manual handling. The FCE report dated 17/05/2011 by Mr. M. Chalouhi, Occupation Therapist, stated that “the client was observed to carry an item unilaterally (weighing less than 200g) for 200m. The client dropped the item several times with reported weakness in grip strength or ability to grasp the bucket handle. This was found to be inconsistent with performance observed outside of formal testing such as carrying his bag of x-rays or prominent grip strength when shaking the hand of the assessor.” The client reported during the JCA interview that he carries a 10kg bag of onion for 10 metres when he and his wife go to the markets. The client was observed to srite [sic] with obvious difficulty in his grip. He reported that he is able to perform all self care activities independently.
I prefer the functional assessments of Ms Ramos and Mr Chalouhi and assign a nil rating.
Lower back
Mr Habashi has a lower back condition that is permanent. References to Mr Habashi’s lower back condition are found in reports by his general practitioners, Drs Nour, Basta, Taluja and Kavallaris. In the first reference by Dr Nour, in a report dated 11 April 2007, she states that Mr Habashi has pain in his lower back and refers to a lumbar CT scan. In a short referral letter to a specialist dated 17 February 2009, Dr Nour has listed “lumbar back pain” in Mr Habashi’s medical history. Similarly, Dr Basta, in a short referral letter to a specialist dated 6 July 2010 also lists “lumbar back pain.” Dr Taluja’s medical report to Centrelink dated 29 June 2011 refers to “lower back pain radiating to legs. Leg pains worse on walking more than 200 meters.” In the report of 5 September 2011, Dr Taluja reported, “Lower back pain and pain on bending pain radiating to legs.” In a letter dated 2 September 2011, Dr Kavallaris writes that Mr Habashi also attended acupuncture treatment for his neck and lower back.
Table 5.2 concerns spinal function and measures functional loss almost purely by reference to range of movement. The Table provides:
TABLE 5.2 Thoraco—lumbar‑sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating CriteriaNIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TEN Loss of one‑quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three‑quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable jointMr Chalouhi reported there were contrasts between Mr Habashi’s reported tolerance claim before the tests were made. For example he claimed he could not sit continuously for more than 20 minutes but was observed to sit for 47 minutes with “nil changes in posture, or complaints of pain or discomfort.” However, in summary, Mr Chalouhi found that Mr Habashi had loss of one-quarter of normal range movement in his lower back according to Table 5.2 with an impairment rating of ten.
Dr Guirgis in his report of 9 November 2011 states, “There was no deformity in the thoracic spine. The normal lumbar lordosis was lost. Tenderness was elicited over the lower 3 lumbar spines and spaces.” Dr Guirgis assigned an impairment rating of ten.
The assessment of Mr Chalouhi and Dr Guirgis are in agreement, I see no reason to disturb them. Accordingly, I assign an impairment rating of ten.
Depression
Mr Habashi maintained that he has been depressed for more than a decade.
There is no evidence of treatment of depression prior to the cancellation of Mr Habashi’s disability support pension on 28 April 2011. There is reference to “Depression, reactive” in the referral letters of Drs Nour and Basta on 17 February 2009 and 6 June 2010 respectively. No medical information exists relating to treatment. Mr Habashi has only been treated for depression since August 2011 when his treating doctor, Dr Aboud referred him to a mental health care plan. Mr Habashi has also been seeing a Psychiatrist under that plan.
I do not consider this condition has been fully treated. It follows that it cannot be treated as permanent and cannot be assessed against the Impairment Tables.
Other conditions
Mr Habashi referred to other conditions including hypertension, hernia, hyperlipidaemia, osteoarthritis of the knees and upper limb, mild hearing loss, obesity, and reflux. There is little medical evidence to suggest whether these conditions are permanent or that they have a functional effect on him. I note that Mr Habashi has been recently diagnosed with diabetes, but after the date on which his disability support pension was cancelled.
Decision
On the basis of the above conclusions, Mr Habashi does not meet the requirement for 20 points under the Impairment Tables. It follows that he does not qualify to be paid disability support pension. There is no need to examine his continuing ability to work.
The Tribunal affirms the decision under review.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell. .....[Sgd]...................................................................
Associate
Dated 17 April 2013
Date of hearing 6 February 2013 Advocate for the Applicant Ms A Awad Solicitors for the Respondent Ms J Maclean, DHS Program Litigation & Review Branch
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