Sharafdine and Secretary, Department of Social Services (Social services second review)

[2016] AATA 685

Sharafdine and Secretary, Department of Social Services (Social services second review) [2016] AATA 685 (6 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6291
Re	Adam Sharafdine
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	6 September 2016
Place	Sydney

The decision under review is affirmed.

.................................[sgd].......................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – claim rejected by Centrelink – whether impairments permanent – whether impairments fully diagnosed, treated and stabilised – impairment tables – upper limb condition awarded 5 points under Table 2 – spinal condition awarded 10 points under Table 4 – lower limb condition not fully treated and stabilised – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) sub 94(1)(b)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

6 September 2016

1. On 25 March 2015, Mr Adam Sharafdine lodged a claim for the disability support pension.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Sharafdine did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 22 September 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Sharafdine did not satisfy sub 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 26 November 2015, Mr Sharafdine applied to the General Division of the Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 11 August 2016. Mr Sharafdine attended the hearing in person. He was represented by an advocate and assisted by an interpreter of the Arabic language.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth) (Administration Act), to qualify for the disability support pension, Mr Sharafdine must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 25 March 2015 and 24 June 2015 (the claim period).

8. The Respondent concedes and the Tribunal agrees that Mr Sharafdine suffers medical conditions that cause impairment and therefore, he satisfies sub 94(1)(a) of the Act at the time of his claim for disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Mr Sharafdine had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in s 94(2) of the Act.

   Does Mr Sharafdine have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in para 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·     has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·     has been fully treated; and

    ·     has been fully stabilised; and

    ·     is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.

13. The claim form completed by Mr Sharafdine on 25 March 2015 sets out his disabilities as ‘left knee problem – need surgery, lower back problems, neck pain’.

14. The medical report for disability support pension completed by Mr Ayouby (Chiropractor) on 26 March 2015 lists the following medical conditions:

    ·     spondylolisthesis;

    ·     high cholesterol.

15. There is also medical evidence before the Tribunal indicating that Mr Sharafdine has a left shoulder injury.

16. Relying on all the medical evidence before me, I consider Mr Sharafadine’s medical conditions for the purposes of his claim for disability support pension are as follows:

    ·left shoulder – upper limb condition;

    ·lower back – spinal condition;

    ·left knee – lower limb condition; and

    ·high cholesterol.

17. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Upper limb condition

18. Mr Sharafdine suffered two workplace injuries in June 2001 and September 2001 involving over-extension of the left shoulder while carrying a 20 kg bag.

19. Following the first injury, Dr Vijay Maniam (General Practitioner) reported on 20 August 2001 that an x-ray of the left shoulder showed no abnormalities and no evidence of a ‘rotator cuff tear or tendinosis… [or] subacromial bunching’.

20. A further report by Dr Maniam dated 10 December 2001 noted that Mr Sharafdine had attended his surgery since 24 July 2001 seeking treatment for ‘chronic pains in the neck, left shoulder and left forearm’. An ultra-sound of the left shoulder was normal and Dr Maniam instituted a conservative treatment of physiotherapy, analgesics and anti-inflammatory medication.

21. On 4 December 2002, Dr Maniam reported that an MRI of the left shoulder showed oedema of the supraspinatus tendon. However, there were no significant abnormalities in the neurological signs in the upper limbs.

22. I note that there is no further medical evidence in relation to this condition after 2002.

23. During the Tribunal hearing, Mr Sharafdine described numbness and weakness in his left shoulder and arm since his injuries in 2001. He is unable to lift his left arm and cannot pick up or carry items with his left arm. He uses his right arm/hand to do activities such as washing his hair, removing items of food from the fridge or starting the lawn mower. He drives his daughter to childcare and his wife to do the grocery shopping, but relies on his wife to carry the groceries and undertake all household chores such as cooking and cleaning. He has difficulty with doing up buttons and any activity that requires the use of two hands/arms.

24. Based on the evidence before me, I am satisfied that Mr Sharafdine’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. I am satisfied that the relevant Impairment Table is Table 2 – Upper Limb Function, which defines the upper limb as extending from the shoulder to the fingers. In accordance with the information at Table 2 – Upper Limb Function, Mr Sharafdine’s upper limb condition has a mild functional impact on activities using hands or arms and I assign an impairment rating of five points for Mr Sharafdine’s upper limb condition.

    Spinal condition

25. Mr Sharafdine has back pain which is linked to his injuries. On 10 December 2001, Dr Maniam reported that investigative tests revealed his ‘vertebral alignment is normal… mild loss of disc height at C5/6 and C6/7’, and he had a ‘mild disc bulge at C5/6… and moderate generalised disc bulge at C6/7’.

26. Dr Maniam also reported on 4 December 2002 that a MRI of the cervical spine on 20 November 2002 showed Mr Sharafdine at C4/5 and C5/6 had ‘small posterior central disc protrusions’, and at C6/7 ‘a large protrusion with disc space narrowing’.

27. Mr Sharafdine undertook further testing in 2013–2014, which confirmed degenerative changes, L4/5 small to moderate broad based posterior disc bulge, central canal stenosis and spondylolisthesis. In a medical report dated 3 July 2013, Dr Maniam diagnosed the changes at L3/4 and L4/5 as ‘significant and there are moderate to severe central canal stenosis’. Dr Maniam reported on 21 January 2014 that the changes in Mr Sharafdine’s back condition were severe. He further recommended that in the long term, Mr Sharafdine would have to submit to decompressive operation with foraminotomy, with CT guided epidural injections in the interim.

28. Mr Sharafdine told the Tribunal that he did not want to have the operation. Rather, he has sought to alleviate his spinal condition by undertaking chiropractic sessions with Mr Ayouby twice a day, five days a week. Due to the cost, Mr Sharafdine has had to reduce his number of chiropractor sessions. Mr Ayouby, in his medical report dated 26 March 2015, reported that ‘if treatment ceases, within two weeks, [Mr Sharafdine] is limited in walking and general function due to lower back pain’.

29. During the Tribunal hearing, Mr Sharafdine spoke about having chronic pain in his lower back. He described pain when sitting for periods of time and problems undertaking household chores. However, he also talked about traveling to Lebanon in 2015 (twice) and in March 2016. When asked about how he undertook the flights between Australia and Lebanon, Mr Sharafdine said he walked around on the plane and took pain medication. I note that undertaking these flights required Mr Sharafdine to be able to sit for more than 10 minutes.

30. I am satisfied that Mr Sharafdine’s spinal condition was fully diagnosed, fully treated and fully stabilised at the date of the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Mr Sharafdine’s condition had a moderate functional impact on activities involving spinal function at the date of the claim period and I assign an impairment rating of 10 points.

    Lower limb condition

31. Mr Sharafdine suffers from a left knee condition which causes pain. In his claim for disability support pension dated 25 March 2015, Mr Sharafdine stated that he ‘cannot stand for even short periods’ and ‘cannot walk because of knees’.

32. On 13 November 2014, Mr Sharafdine had an MRI on his left knee which confirmed a meniscus tear. Consequently, Mr Sharafdine was placed on a 12 month waiting list at Hornsby Hospital from 16 December 2014.

33. Mr Sharafdine told the Tribunal that he had surgery on his left knee at Hornsby Hospital in September 2015. I note, however, that this surgery took place after the claim period.

34. For the purposes of this review, I am satisfied that Mr Sharafdine’s lower limb condition was fully diagnosed, but not fully treated and not fully stabilised during the claim period. For this reason, Mr Sharafdine’s condition cannot be considered permanent during the claim period and cannot be rated under the Impairment Tables.

    Other conditions

35. The medical report for disability support pension completed by Mr Ayouby on 26 March 2015 outlines that Mr Sharafdine has high cholesterol that is managed by medication.

36. Mr Sharafdine told the Tribunal that he has had high cholesterol for approximately 15 years, which is controlled by medication and diet. As there is no evidence before the Tribunal to show that Mr Sharafdine’s cholesterol condition causes any functional impairment, I do not assign an impairment rating to this condition.

37. At the Tribunal hearing, Mr Sharafdine said that he suffers from ‘shortness of breath’ and ‘heart problems’. He disclosed that he was admitted to Liverpool Hospital in 2000 for a ‘heart attack’ and told the Tribunal that he takes medication for blood pressure.

38. However, there is no medical evidence before the Tribunal to support Mr Sharafdine’s claim about his heart condition. As the Impairment Tables Determination requires a condition to be ‘fully diagnosed by an appropriately qualified medical practitioner’, I cannot determine that this condition is permanent for the purposes of Mr Sharafdine’s claim for disability support pension.

    CONCLUSION

39. For the reasons set out above, I am satisfied that Mr Sharafdine did not meet the requirements of sub 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.

40. As I find that Mr Sharafdine did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

41. If Mr Sharafdine’s circumstances change, he is entitled to submit a new application for disability support pension at any time.

    DECISION

42. The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[sgd]..........................................

Associate

Dated 6 September 2016

Date(s) of hearing	11 August 2016
Advocate for the Applicant	Omar Jamal
Solicitors for the Respondent	Department of Human Services