Sinjer and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 768

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1209

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SAMIRA SINJER

Applicant

And

SECRETARY, DEPARTMENT OF

FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date29 August 2008

PlaceSydney

Decision The decision under review is affirmed.

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

Dr J D Campbell   Member

CATCHWORDS

Social Security - Disability Support Pension - cancellation - assessment of permanent impairments - diagnosed, treated and stabilised - continuing inability to work – impairment rating from permanent condition not satisfied – decision under review is affirmed.

Social Security Act 1991, section 94, Schedule 1B

REASONS FOR DECISION

29 August 2008 Dr J D Campbell, Member

1.Mrs Sinjer was born in Lebanon in 1957. Mrs Sinjer finished high school at age 18 and worked as a teacher for two years, prior to marriage. In 1986 Mrs Sinjer migrated to Australia where she again remarried in 1996. Mrs Sinjer has never worked in Australia and lives at home with her husband and two step children.

2.Mrs Sinjer was granted a disability support pension in 1993, with nominated disabilities of ovarian carcinoma, left shoulder pain and depression associated with illness. Mrs Sinjer’s disability support pension was reviewed in March 1996. At this time Mrs Sinjer’s ovarian carcinoma was considered cured, but other disabilities noted at that time were depression with symptoms of dizziness (no specific treatment or investigation) and back pain, with a CT scan of the lumbar spine on 23 November 1995 reported as demonstrating a posterior bulging or herniation of the L4/5 intervertebral disc with probable compression of the fourth lumbar nerve roots in the intervertebral foramina. Advanced degenerative changes were noted in the L5/S1 apophyseal joints with minor degenerative changes in the L3/4 and L4/5 apophyseal joints. The back pain was noted as being episodic, with exacerbation requiring bed rest and non steroidal medication (T14). The examining medical officer on 1 March 1996 noted Mrs Sinjer to have a normal gait and mobility with a less than 25 per cent loss of mobility (T14).

3.Mrs Sinjer was examined by Dr Guirgis on 19 March 1996. Dr Guirgis, an orthopaedic surgeon, reported that Mrs Sinjer complained of persistent lower back pain and stiffness, and described radiation down the left leg with pain and dysthaesiae of L5/S1 distribution. Dr Guirgis observed that movements of the lumbar spine were restricted to 50 per cent. Dr Guirgis considered that Mrs Sinjer was suffering from chronic mechanical derangement of the back caused by discopathic and spondylotic changes in the spine with irritation of the left L5/S1 nerve roots complicated by the onset of chronic spinal pain syndrome (T15).

4.On 25 March 1996 Mrs Sinjer was examined by Dr Ali, a psychiatrist. Dr Ali noted that Mrs Sinjer had recently lost her mother, and considered Mrs Sinjer was suffering from  dysthymic disorder, a grief reaction, a dependent personality profile and a sick role syndrome (T18).

5.Dr Abdalla completed a treating doctor’s report on 9 September 2005 (T23). Dr Abdalla nominated Mrs Sinjer’s condition to include:

·   treated cancer cervix, with continuing depression and dizziness treated with antidepressants

·   back pain, with pain to legs and neck pain, treated with analgesics and                   non- steroidal medications

·   gastro oesophageal reflux disease

·   cholecystectomy.

6.A CT scan of the lumbar spine undertaken on 11 November 2005 was reported as demonstrating “Degenerative changes. Broad based annular disc bulge noted at the L4/5 level with a prominent postero-lateral component on the left with possible impingement/irritation on exiting left L4 nerve roots”. (T24)

7.A medical assessment report was undertaken by Dr Ajdari, a Health Services Australia medical adviser on 12 November 2005 (T25). In his report Dr Ajdari detailed Mrs Sinjer’s conditions in the following terms:

·   Dizziness with vertigo – attacks occur two to three times a week, with   attacks improving after rest. Benign positional   vertigo. Needs neurologist review – temporary   condition

·   Depression/anxiety –     ongoing – does not enjoy life, upset, nervous, no   interest, lacks energy, not able to concentrate, low   mood – permanent condition – impairment rating   10

·   Cancer treatment review – mild abdominal symptoms no tenderness

·   Neck pain –   numbness and weakness right arm for two years.   permanent condition – impairment rating – Nil

·   Back pain –   associated left sided sciatic pain to left foot – loss   of one quarter range of movement – permanent   condition – impairment rating 5

8.On 3 April 2006, Dr Abdalla completed a further Treating Doctor’s Report (T28). In this report Dr Abdalla referred to Mrs Sinjer’s conditions as:

·   Back pain, neck pain, osteoarthritis, osteoporosis and disc lesion lumbar spine

·   Post surgical treatment for cancer assessment

·   Dizziness, anxiety depression, gastro-oesphageal reflex and hyperlipidemia – listed under conditions which are generally well managed and cause minimal or limited impact on ability to function

9.On 26 May 2006 Mrs Sinjer was examined by Dr Keen, a medical adviser with Health Service Australia. In his report (T29) Dr Keen detailed the following assessment of impairments arising from the nominated conditions:

·   Ovarian cancer –            in remission but requires hormone replacement   therapy -  impairment rating NIL.

·   Back pain -   symptoms for several years walks about 30   minutes for exercise, osteoporosis, and mild   degenerative changes. One quarter loss of range   of movements of lumbar spine. Impairment rating 5   (Table 5.2)

·   Neck pain –   symptoms of many years, near normal range of   movement, impairment rating NIL (Table 5.1)

·   Gastroenterological –     symptoms four to five years, treated with reflux disease                Somac with some relief; mild symptoms,   impairment rating NIL (Table 11.1)

·   Dizziness –   episodic dizziness for several years, no specialist   review, treated with Stemetil; attacks occur one to   two times a week and last for about a half an   hour. Needs to sit down; impairment rating 5   (Table 21)

·   Depression –                   symptoms for years, cries readily, no specific   treatment; normal affect and interaction; mild   symptoms,  impairment rating NIL (Table 6)

·   Raised cholesterol –      treated with Lipitor, no symptoms, impairment   rating NIL (Table 20)

10.Mrs Sinjer’s disability support pension was cancelled on 26 May 2006 (T30).

11.In a phone interview on 23 June 2006, the Centrelink Authorised Review Officer noted the following (T31):

·   That Mrs Sinjer considered that her main conditions were dizziness, neck and back pain, plus problems with her hand and left leg.

·   That most days she would do a little housework, will sometimes go shopping; will sometimes walk or read in the garden; occasionally visits family and friends or they will come to visit her; that she did not drive due to her dizziness.

·   That she attended physio once or twice a week to ease her neck and back pain and that her husband does the grocery shopping.

12.The authorised review officer affirmed the decision to cancel Mrs Sinjer’s disability support pension on 26 June 2006, as Mrs Sinjer was no longer qualified as the total impairment rating was less than 20 points and that Mrs Sinjer did not have a continuing inability to work (T31). The Social Security Appeals Tribunal affirmed the decision on 7 August 2006 (T2).

issues

13.The relevant issues in this matter are:

(a) did Mrs Sinjer have an impairment rating of 20 points or more pursuant to       the Schedule 1B impairment Tables on the date her disability support pension            was cancelled (26 May 2006)?; and

(b) did Mrs Singer have a continuing inability to work on the date her disability      support pension was cancelled? (26 May 2006).

evidence of mrs sinjer

14.Mrs Sinjer detailed the following in relation to the various conditions and the impairments arising from such conditions. Mrs Sinjer indicated that the details provided related to a time of two years ago.

·   Dizziness – sometimes occurs everyday, more days than not:

- started many years ago

- sometimes occurs while standing/sitting

- no ringing in the ears

- getting worse

·   Neck – disc problem in neck for more than two years; affects her arm, with pain down right arm to fingers – osteoporosis

·   Shoulder joints – pain

·   Right knee – occasional pain

·   Lower back – disc problem and pain in back; pain down left leg every one or two weeks

·   Indigestion – medication, some pain

·   Depression – has experienced symptoms for a long time; feels sad, cries often, short tempered, not happy, hates herself at times, sometimes thoughts of self-harm, medication many years

·   Ovarian cancer – a long-time ago, no current problems

15.Mrs Sinjer detailed the following in relation to her social, personal and domestic activities:

-     rises about 7am to 8am; walks a bit around the house; returns to lay down; unable to do anything; occasionally reads papers and watches television; retires to bed around 11pm, awakes 2am – interrupted sleep.

-     husband helps her to dress and bathe; husband does all housework including cleaning, washing, cooking, gardening and shopping

-     goes out to see doctor only. Wife of stepson comes to visit, as does her brother on occasions. Returned to Lebanon 18 months ago for six weeks for funeral of her brother

-     does not believe she is able to work

subsequent medical evidence

16.Dr Guirgis in a report dated 27 July 2006 (T33) noted that Mrs Sinjer detailed a history of steady deterioration of her back problem, with acute exacerbations of low back pain with radiation down her left leg lasting for a few hours to a few days on each occasion which forced her to stay in bed. Dr Guirgis expressed an opinion consistent with his earlier opinion detailed earlier in this decision. It is noted in this report that he considered Mrs Sinjer to have an impairment rating of 20 points. For the back condition (Table 5.2) and 10 points for depression/adjustment disorder (Table 6).

17.A CT scan of the cervical spine dated 30 October 2006 is reported as demonstrating no disc prolapse or significant central canal stenosis, with no critical foraminal stenosis (T36).

18.Mrs Sinjer was examined on the 18 June 2007 by Dr Dowla, a consultant neurologist. In her report (Exh.A1) Dr Dowla concluded: “I could not find any evidence of vestibular disorder to explain her dizziness. It is likely to be functional in origin. There is also quite a significant element of anxiety.”

19.Mrs Sinjer was again examined on 6 September 2007 by Dr Dowla and on this occasion in relation to complaints of paraesthesia and numbness in her right hand and occasionally to the left hand for one year. In her report (Exh.A2) Dr Dowla concluded: “I suspect her symptoms are anxiety related. I have commenced her on Cipramil.”

20.Mrs Sinjer was again examined by Dr Guirgis on 20 June 2007. At this time Dr Guirgis concluded that Mrs Sinjer’s assessment of impairments arising from her lumbar spine (20 points) and depression/adjustment disorder (10 points) remained unchanged. Dr Guirgis considered that there was a new impairment arising from cervical spine spondylosis which he assessed at 5 points pursuant to Table 5.1 (Exh.A3).

21.A report dated 7 July 2007 by Mr Metry, a consultant psychologist detailed that Mrs Sinjer had been referred for psychological assessment and treatment. Mr Metry considered Mrs Sinjer was suffering from a major depressive disorder and that he was treating Mrs Sinjer with cognitive behavioural therapy (Exh.A4).

22.Mrs Sinjer was examined by Dr Westmore, a consultant psychiatrist on 7 September 2007. In his report (Exh.A5), Dr Westmore concluded that Mrs Sinjer suffers from either a dysthmic disorder, a chronic adjustment disorder or a major depressive illness. Mrs Sinjer may also have some dependent personality traits. Dr Westmore considered that Mrs Sinjer had an impairment rating of 10 pursuant to Table 6 arising from her psychiatric condition. Dr Westmore also stated that Mrs Sinjer’s psychiatric condition had not been adequately treated as it would appear that she had only been treated with an antidepressant (Luvox, one tablet a day) for the last three months. Dr Westmore did not think that Mrs Sinjer’s condition could be considered to be fully stabilised, and that there may be some significant functional improvement within two years if she was more aggressively treated with antidepressants and possibly a mood stabilising medication.

23.A job capacity assessment report was undertaken by Mr Duong, an occupational therapist, who was assisted by Ms Pheiffer, a psychologist on 27 July 2007. In his report dated 8 August 2007, (Exhh.R2), Mr Duong concluded that Mrs Sinjer had an impairment rating of 15 arising from two permanent conditions, thoraco lumbar spondylosis and vertigo. Mr Duong concluded that Mrs Sinjer had a current capacity for work of 15 - 22 hours per week without intervention, and a future capacity for work of 30 plus hours per week with intervention.

consideration and findings

24.The significant issue in contention is whether at the date of cancellation, namely 26 May 2006, of her disability support pension (DSP), Mrs Sinjer did or did not qualify for the payment of such a pension. To qualify for DSP, Mrs Sinjer must satisfy the criteria nominated in section 94 of the Act, and in particular:

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)  the person has a continuing inability to work;

25.I have been particular in detailing the evidence I have had placed before me. I acknowledge that the material available up to the time of cancellation (26 May 2006) is the material that is relevant to a determination in this matter. In relation to subsequent material, it is my opinion that any relevancy that may exist can only be considered in circumstances where the future material (detailed after the cancellation date) is of assistance in understanding the circumstances existing at the time of cancellation.

26.It is evident, and I so find, that Mrs Sinjer suffered a number of physical and psychiatric impairments at the date of cancellation. Such impairments arose from the following clinical conditions; lumbar spondylosis, depressive disorder, dizziness/vertigo, gastro oesophageal reflux disease, hyperipidemia, osteoporosis, neck disorder, carcinoma of ovary (treated). I find that Mrs Sinjer satisfies the requirements of section 94(1)(a) of the Act.

27.In addressing the assessment of Mrs Sinjer’s impairments under the Schedule 1B Impairment Tables, being Tables for the Assessment of Work Related Impairment for Disability Support Pension, I note the following contained within the introduction:

·The tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical condition on normal function as they relate to work performance.

·In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.

·A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric disorder is unclear appropriate investigation should be arranged.

·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 persist for more than two years.

·To assess 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 treatment is likely to lead to   significant functional improvement within two years.

28.In considering an assessment of the impairment arising from each condition nominated earlier, I make the following findings and detail reasons for so finding:

(a) Cervical spine: At time of cancellation only   symptom was of pain in neck,      right arm plus numbness and weakness. Both Health Services doctors reported a normal or nearly normal range of movement of cervical spine; a CT scan of 30 October 2006 did not define particular cervical spine pathology. Impairment rating: NIL (Table 5.1)

(b) Lumbar Spondylosis: At time of cancellation complaint of low back pain with episodes of radiation of pain down left leg every one to two weeks, able to walk 30 minutes for exercise. CT scan demonstrates degenerative changes in lower lumbar spine. Loss of one quarter normal range of movement (Drs Ajdaru and Keen). Dr Guirgis noted a 50 per cent loss of normal range of movement two months after cancellation date and again a year later. The assessments by Drs Ajdari and Keen are both consistent and more relevant in terms of being made prior to cancellation date, condition permanent, Impairment rating 10 points (Table 5.2).

(c) dizziness: Episodic once to twice a week for a half hour duration. Treatment with rest and Stemetil. Despite a suggestion that neurological opinion was required, this was not undertaken until June 2007. Not a condition which at the date of cancellation was a condition, which had been diagnosed, investigated treated and stabilised: not permanent. In June 2007, neurologist considered condition to be functional in origin. Condition not considered permanent. Impairment rating: no allocation as underlying condition not fully diagnosed, treated and stabilised.

(b) Depression: Long history of depressive symptoms. Psychiatric assessment in 1996. Severity of condition not established and treatment less than optimal and condition not stabilized prior to cancellation date. Post cancellation, I note the commencement of cognitive behavioural therapy and the use of antidepressant medication on a regular basis, albeit not at an optimal level. Condition (Dr Westmore) not considered permanent. Impairment rating: no allocation as underlying condition not fully diagnosed, treated and    stabilised.

(e) Osteoporosis: diagnosed by bone scan. No impairment apparent.         Condition permanent. Impairment rating: NIL (Table 19).

(f) Gastro Oesphageal reflux disease: Treated with Somac, with mild residual       symptoms. Condition permanent. Impairment rating NIL (Table 11.1).

(g) Cancer Ovary: Primary operation and therapy 1988, later a small nodule         removed. Annual Review with no symptomatology for many years. Condition permanent. Impairment rating: NIL (Table 20).

(h) Hyperipidemia: Treated with Lipitor, nor functional impairment, condition         permanent Impairment rating NIL (Table 20).

29.In summary I find that an assessment of Mrs Sinjer’s impairments arising from permanent conditions is 10 points at the time of cancellation. Such an assessment has been made pursuant to the Schedule 1B Impairment Tables. In the context of such a finding, I further conclude that Mrs Sinjer did not satisfy section 94(1)(b) of the Act at the date of cancellation and as such did not qualify for DSP at that date.

30.Finally in addressing the issue of whether Mrs Sinjer had a continuing inability to work at the date of cancellation, I note that Dr Ajdari in November 2005 considered that Mrs Sinjer had a capacity to work 15-29 hours per week within 24 months both with and without intervention. Dr Keen in his assessment of May 2006 considered that Mrs Sinjer had a current  capacity to work 30 or more hours per week with the assistance of vocational and/or on the job training, as her medical condition would not prevent work. I further note Dr Guirgis opinion of 27 July 2006, in which he considers that Mrs Sinjer’s impairments would prevent her from undertaking her usual type of work or any other similar type of work, with the some impairments limiting Mrs Sinjer capacity to undertake training for the foreseeable future.

31.I find it unnecessary to conclude a view on Mrs Sinjer’s capacity to work at the time of cancellation in the light of my earlier findings in relation to overall impairment assessment.

32.I conclude by affirming the decision under review, namely that Mrs Sinjer did not satisfy all the qualifications nominated in section 94 at the time her DSP was cancelled on 26 May 2006and in particular section 94 (1)(b). 

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.  

Signed:         ...............[sgd]..............................................................
  Associate

Date of Hearing  15 July 2008
Date of Decision  29 August 2008  
Appearance for the Applicant        Self-represented
Advocate for the Respondent        Mr K Bullock, Centrelink Legal Services