SAMIRA EL ARJA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 768

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5779

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAMIRA EL ARJA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date7 October 2009

PlaceSydney

Decision The Tribunal varies the decision under review, by increasing Mrs El Arja’s impairment rating to 15 points. However, as Mrs El Arja still does not meet the requirements of subparagraph 94(1)(b) of the Social Security Act 1991, she was not eligible for disability support pension as at the date of lodgement of her claim or within 13 weeks thereafter. This means Mrs El Arja’s appeal is unsuccessful.

....................[Sgd]...................

Dr J D Campbell
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment – temporary or permanent – assessment of impairments – continuing inability to work – decision under review varied.

Social Security Act 1991 (Cth) s 94, schedule 1B

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

7 October 2009	Dr J D Campbell, Member
background

1.      The applicant, Mrs Samira El Arja, was born in Lebanon in 1958.  She completed year 10 at school prior to coming to Australia in 1978.  Mrs El Arja worked for 29 days in 1979 undertaking ironing activities in a manufacturing company.  Thereafter, Mrs El Arja has undertaken domestic activities for her husband and six children, with four of the children (aged 24, 20, 12 and 11) still residing at the current family address.  Mrs El Arja’s husband has been recently retrenched and has spent three months visiting in Lebanon.

2.      Mrs El Arja lodged an application for disability support pension (‘DSP’) on 17 June 2008.  In a treating doctor’s report dated 13 June 2008 lodged with the claim for DSP, Dr Noussair, a general practitioner, nominated Mrs El Arja’s medical conditions and impairments in the following manner:

·Thoracic and lumbar spondylosis with symptoms of back pain and stiffness since 2003, and an inability to stand or sit for a long time, lift heavy objects and activities involving repeated bending;

·Stress, anxiety and depression with symptoms of variable mood since February 2008.  Commenced on Efexor (antidepressant) and referred to a psychologist.  Is unable to concentrate, crying frequently and very anxious;

·Hypertension and reflux oesophagitis, both generally well managed and cause limited or minimal impact on ability to function.

3.      Mrs El Arja was assessed by Ms McLennan, a registered psychologist, on 25 June 2008.  In her job capacity assessment report of the same date, Ms McLennan considered that neither the musculo-skeletal condition nor the anxiety condition was fully diagnosed, treated and stabilised, while the conditions of hypertension and reflux oesophagitis were.  Ms McLennan assigned Mrs El Arja’s latter two conditions zero impairment rating points. Further, Ms McLennan considered Mrs El Arja to have a current temporary limitation in work capacity of seven hours for the next few months, with further work capacity within two years without intervention of 15-22 hours per week and with intervention of 23-29 hours per week.

4.      Mrs El Arja’s claim for DSP was rejected on 27 June 2008.  This decision was affirmed upon reconsideration on 4 July 2008, and again by an authorised review officer on 15 August 2008.  Further review was undertaken by the Social Security Appeals Tribunal on 15 October 2008, who, in affirming the decision, varied Mrs El Arja’s impairment rating to 10 points, in relation to the back condition.

issues

5.      The issues before the Tribunal are:

(a)Did Mrs El Arja suffer from a physical, intellectual, or psychiatric impairment at the time of lodgement of her claim or within 13 weeks thereafter?

(b)Did the assessment of all the impairments equal to, or exceed, 20 points?

(c)If so, did Mrs El Arja have a continuing inability to work?

mrs el arja’s evidence

6.      In oral evidence, Mrs El Arja confirmed that she had had a long history of low back pain with radiation to left hip and that medication had for a long time been celebrex one capsule a day.  Mrs El Arja confirmed that the back pain had worsened six to seven years ago, with the pain waking her twice during the night, but that she is able to slowly do the housework with some assistance from her children.

7.      Mrs El Arja stated that she prefers to be on her own, and has many worries about her domestic situation and her sons, particularly her second son, who was stabbed at age 16 and plays poker machines.  She is currently treated with Lovan and Aropax, and said that she noticed there was some improvement in her mood following eight to nine counselling sessions.

8.      Mrs El Arja also spoke of her left and right shoulder problems and the pain and difficulty of movement involving the shoulders, together with headaches.  Mrs El Arja detailed that she had a prolapsed uterus, which increased her back pain. She said she was also being treated for hypertension, high cholesterol and oesophageal reflux, which she had been for many years.

legislation

9. Section 94 of the Social Security Act 1991 (‘the Act’) provides the qualification criteria for DSP. At the time of the original decision, the section stated, in part:

(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; …

(5)  In this section:

work means work:

(a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

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

consideration and findings

10.     Mrs El Arja has had her low back pain investigated, documented, diagnosed and treated, as evidenced by the reports of Dr Kahil, an orthopaedic surgeon, dated 2 March 2006, 13 March 2006, 26 April 2006, 27 September 2006, 18 October 2006, 29 November 2006 and 15 February 2007. Investigations included a whole body bone scan dated 6 March 2006 and an MRI of the lumbar spine dated 19 September 2006.  Diagnoses included degenerative changes in the lumbar spine and moderate bilateral facet joint changes in the lumbar spine. Treatments included CT guided epidural injections into the left L5/S1 and L4/5 exit foraminae, together with anti-inflammatory medication and some physiotherapy.

11.     There is also a report by Dr Cairns, a consultant orthopaedic surgeon, dated 7 July 2009, who considered Mrs El Arja as suffering from an age-related degenerative disorder of the thoraco lumbar spine. Dr Cairns, on physical examination, found Mrs El Arja to have a near normal range of movements of the thoraco lumbar spine.  While I note that his report is a consequence of an examination some 12 months after the lodgement of the DSP claim, I am satisfied that his report in so far as diagnostic opinion reflects an accurate definition of what impairments arising from particular skeletal conditions existed at the time of lodgement of the claim or within 13 weeks thereof.

12.     In light of the above evidence, I am satisfied that Mrs El Arja’s degenerative lower back condition has been fully investigated, documented, diagnosed and treated and as such the condition is, in my view, permanent.

13. In his assessment of the impairment arising from the thoraco lumbar sacral spine condition, Dr Cairns nominated a nil points impairment rating pursuant to table 5.2 of the Act, as he found Mrs El Arja to have a normal or near normal range of movement of the thoraco lumbar sacral spine.

14.     Further, Dr Cairns made reference to an x-ray examination of the cervical spine dated 29 May 2009, which demonstrated mild to moderate spondylosis and findings at examination of a loss of a quarter of the normal range of movement of the cervical spine.  While it is evidence that the x-ray changes are consistent with the degenerative process being present at the time of lodgement of the claim, there is no other evidence before me, other than complaints of widespread pain, which would allow me to conclude that there was any other impairment (other than pain) complained of or documented as at 17 June 2008 or within 13 weeks thereof.

15. While Dr Cairns has nominated a nil points impairment rating for the thoraco lumbar sacral spine and a five point impairment rating for the cervical spine, with both ratings being made pursuant to tables 5.2 and 5.1 respectively, I consider that on the material before me, and consistent with what was documented as to the status of the impairments at the time of lodgement of the claim or within 13 weeks thereof, that the appropriate table under which assessment should be made is table 20 of the Act.

16.     For a ten point impairment rating pursuant to table 20, I note that there must be mild to moderate symptoms which are irritating or unpleasant, but which rarely prevent the completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.  I consider this to be an appropriate assessment of Mrs El Arja’s pain arising from her degenerative spinal conditions involving both her cervical and thoraco lumbar sacral spine.  I would further conclude that to add a further five points for the loss of movement of the cervical spine would involve both a consideration of what was not in evidence during the assessment period and a double counting, even if it were to be a reflection of what existed during the assessment period.

17.     In addressing the bilateral shoulder pain, I note the ultrasound report of 14 November 2008 shows a left-sided retracted full thickness tear in the distal subscapularis tendon.  I further note that Dr Cairns examined both shoulders and detailed Mrs El Arja as demonstrating painful restriction of movement, which he considered attributable to age-related degenerative changes involving the soft tissue structures about the gleno humeral joints bilaterally. Dr Cairns assessed a nil points impairment rating in relation to the right shoulder and a five point impairment rating in relation to the left shoulder, with both assessments being made pursuant to table 3.

18. Table 3 of the Act provides for the following relevant ratings:

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.

FiveDemonstrable 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.

19.     While the date of the ultrasound fell outside the assessment period, I consider the information derived from such an investigation, while of assistance in confirming the existence of a degenerative process in the left shoulder, did add little to either the definition or treatment of the underlying condition, and as such I am satisfied that the condition in relation to both shoulders has been adequately documented, diagnosed and treated during the assessment period.  In such circumstances, I conclude that in pursuance to table 3, Mrs El Arja had a nil points impairment rating for her right shoulder and a five point impairment rating for her left shoulder during the assessment period.

20.     In addressing the assessment of impairments arising from Mrs El Arja’s mental health condition, I observe that the condition was of relatively recent onset (February 2008) and that medication had initially been instituted, followed by psychometric testing and psychological counselling. I note that Mr Mattar, a consulting psychologist, in his report of 15 December 2008, stated that psycho-education and counselling is ongoing, and that Mrs El-Arja in her oral evidence stated that she was receiving benefit in terms of improvement of her depressive condition as a result of her counselling.  I would observe that there is a number of domestic stressors that may interfere with such progress.

21.     Having considered all the material before me, I conclude that Mrs El Arja’s psychiatric condition could not be considered a permanent condition during the assessment period as the condition had not been fully treated. In such circumstances, no assessment pursuant to table 6 should be undertaken.

22.     In considering the hypertension, I note that it is a fully documented, diagnosed and treated condition.  I observe no evidence in the material before me of any impairment arising from the hypertension condition; therefore, it can be considered to be controlled hypertension, attracting a nil impairment rating pursuant to table 20.

23. In addressing the condition of reflux oesophagitis, the material before me details a condition which is permanent, and with treatment there are a few mild symptoms which have a minimal impact on Mrs El Arja’s ability to function. I therefore conclude that Mrs El Arja has a nil points impairment rating pursuant to table 11.1 of the Act.

24. I would also note that hypercholesterolemia and uterus prolapse were two further conditions in evidence before me. I note the former condition is being treated and is essentially without symptoms. Any assessment pursuant to table 20 must result in a nil points impairment rating. In relation to the latter condition, there is some evidence of the condition being present and as having been treated during the claim lodgement period (plain x-ray thoracic spine and left hip dated 28 September 2007). I would observe that such treatment is of a non-surgical nature with the issue of surgical remedy not addressed in the material. In such circumstances, I consider the condition not fully treated and thus not permanent. Accordingly, no assessment is made pursuant to table 22 of the Act.

25. In summary, I conclude that the total impairment rating for impairments arising from Mrs El Arja’s permanent conditions is 15 points. In such circumstances, I conclude that Mrs El Arja does not satisfy subparagraph 94(1)(b) of the Act and therefore was not qualified for DSP at the time of lodgement of her claim on 17 June 2008 or within 13 weeks thereafter. Further, in light of such a finding, I consider it unnecessary to proceed to a consideration of Mrs El Arja’s continuing inability to work pursuant to subparagraph 94(1)(c) of the Act.

decision

26.     The Tribunal varies the decision under review, by increasing Mrs El Arja’s impairment rating to 15 points. However, as Mrs El Arja still does not meet the requirements of subparagraph 94(1)(b) of the Social Security Act 1991, she was not eligible for disability support pension as at the date of lodgement of her claim or within 13 weeks thereafter. This means Mrs El Arja’s appeal is unsuccessful.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: ..........................[Sgd].........................
  Associate: Jennifer Wong

Dates of Hearing  25 May and 4 September 2009
Date of Decision  7 October 2009
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Mr M Nicoletti, Centrelink Legal Services