Sleiman and Secretary, Department of Family and Community Service S

[2004] AATA 41

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 41

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1877

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAOUDAT SLEIMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO

Date22 January 2004

PlaceSydney

Decision The decision under review is affirmed. 

[Sgd] REAR ADMIRAL A R HORTON AO

CATCHWORDS

SOCIAL SECURITY – disability support pension – review of SSAT decision that Applicant not qualified for disability support pension – permanent impairments of back and neck pain, gout, diabetes, abdominal hernia, hypertension and high cholesterol – condition of dizziness – diagnosis of depression - assessment of impairment ratings – combined impairment rating 15 points - work experience – inability to work not considered – decision that Applicant is not eligible for disability support pension affirmed

Social Security Act 1991 – s 94, Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2, Part 2

REASONS FOR DECISION

22 January 2004 REAR ADMIRAL A R HORTON AO       

1.      Mr Jaoudat Sleiman (“the Applicant”) is seeking review of a decision of the Social Security Appeals Tribunal (“the SSAT”) of 23 September 2002 which affirmed the decisions of an authorised review office (“ARO”) dated 24 June 2002 and a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) on 14 June 2002, that he is not eligible for the disability support pension (“DSP”).

2.      Mr Sleiman lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 5 December 2002.  On 8 January 2003, a Deputy President of the Tribunal granted an extension of time for this application. 

3.      At the hearing before the Tribunal, on 10 December 2003, Mr Sleiman was self-represented.  Mr J Larcombe, an advocate from the Administrative Law section of Centrelink, appeared for the Respondent.  The Tribunal was assisted by an interpreter fluent in the Arabic language.

4. The documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) were taken into evidence, as were two reports from Dr M Dagher dated 5 March 2003 (Exhibit A1) and 15 August 2003 (Exhibit A2), and a report by Dr M Guirgis dated 25 October 2003 (Exhibit A3).

BACKGROUND AND EVIDENCE

4.        Mr Sleiman was born in Lebanon in 1958.  He completed his schooling at about the equivalent of year 10 at age 15. He then worked as a panel beater, for which he has no formal qualifications, for “a few years and worked on and off during the civil war”.   He migrated to Australia in 1985 and, due primarily to a lack of English, found no work.  At some time thereafter, his wife had an accident and he became her carer.  In 1988 he was involved in a car accident, which did not result in any compensation claim.  Thereafter, he assisted his wife in the upbringing of his five children.  He stated that he has never worked in this country, and if he did, his only employment could be as a labourer.

5.      In 1988, at about the time of the car accident, Mr Sleiman started to have medical problems.  In 1995, he and his family returned to Lebanon, returning to Australia in 2001.  He is in receipt of Newstart Allowance, submitting periodic returns about every six weeks.

6.      On 23 April 2002, Mr Sleiman submitted a claim for DSP, listing illnesses of back pain, high blood pressure, diabetes and dizziness.  An accompanying Treating Doctors Report (“TDR”) of 29 May 2002 by Dr M Dagher, his general practitioner since December 2001, diagnosed neck pain and degenerative changes of the neck and lumbar spine, these conditions being treated by physiotherapy and analgesics. The TDR also diagnosed gout, non-insulin dependent diabetes, abdominal hernia, hypertension and cholesterol.   Dr Dagher noted Mr Sleiman’s usual occupation as labourer, and considered he would be unable to return to any kind of work for more than two years. In an undated later report, Dr Dagher also referred to “anxiety, stress due to health and family problems”.

7.      For the Respondent, Dr S Kotulski of Health Services Australia (“HSA”) completed a medical examination on 29 May 2002.  He diagnosed a cervical spine condition within normal limits of movement, and a thoraco-lumbar spine condition with up to a quarter loss of movement in flexion and extension.  He opined that Mr Sleiman exaggerates his pain condition on formal examination, and that X-rays show only mild degenerative changes and are essentially normal.   He further diagnosed gout, diabetes, hypertension and high cholesterol, all of which he considered to be adequately controlled by medication.  The condition of abdo-hernia was considered to be self-reducing and only effecting Mr Sleiman’s ability to lift heavy objects. 

8. Dr Kotulski assessed the combined impairment rating based on the Impairment Tables at Schedule 1B of the Social Security Act1991 (“the Act”) at 5 impairment points only, these being in respect of the loss of movement of the lumbar spine. He considered that Mr Sleiman is fit for full time light work, and that he would benefit from training for suitable duties.

9.      On 14 June 2002, the Respondent rejected Mr Sleiman’s claim for DSP.

10.     On 5 March 2003, some 10 months after the TDR referred to in paragraph 6 above, Dr Dagher provided a further medical report (Exhibit A1), in which he summarised the diagnosed conditions previously listed and including the condition of “anxiety, stress due to health and family problems”.   In particular, he noted that “over the last 4-6 months” Mr Sleiman’s condition had “worsened markedly”, a similar comment having been made in the earlier undated report (paragraph 6). .  He considered him unfit for any kind of work due to his medical problems.  In a later report of 15 August 2003 (Exhibit A2), the same summary of conditions is repeated, but with various impairment ratings being assigned.  In this later report, Dr Dagher makes the same comment in respect of a worsening condition “over the last 4 to 6 months” as made in the previous reports.  In effect this later report is virtually a repetition of the previous reports.

11.     One further report is before the Tribunal, that of Dr M Guirgis, Consultant Orthopaedic Surgeon, dated 25 October 2003.  Dr Guirgis assessed 20% restriction of movement of the cervical spine, and 30% of the lumbar spine, with no neurological deficits of the upper limbs, and assigned impairment ratings for these conditions.  He opined that the clinical picture is consistent with ongoing effects of post-traumatic mechanical derangement of the cervical and lumbar areas of the spine, this being caused by musculo-ligamentous sprain/strain with intervertebral disc involvement.  Dr Guirgis also reported symptoms and signs of chronic pain/anxiety/depression, the latter impacting on functionality, and he assigned an impairment rating for this condition.

12.     Mr Sleiman described his neck and back conditions as giving him the most problems and being the most painful.  He stated that at times he could hardly move and that he could not stand up or sit down for periods of more than about 25 to 30 minutes.  He has leg problems, resulting from back-radiated pain.  When asked by the Tribunal whether he needed to stand up or move around after siting for over an hour, he stated “no – I can take it”.   Mr Sleiman stated that he could alleviate the pain and discomfort when lying down.  Mr Sleiman told the Tribunal that he takes Profin (Prodeine?) (as recommended by Dr Guirgis in lieu of Indocid, medication recorded by Dr Dagher) or Voixx.   He was unable to obtain physiotherapy treatment at Auburn Hospital, as he is not a local. He was referred to Parramatta, which he found too difficult to visit as the facility has limited parking.  He can drive for short distances only, and because of his conglomerate of medical conditions, his concentration is limited.  

13.     His gout condition “comes and goes”, and some two to three weeks before the hearing, it was such that he could not walk.  He initially took Zyloprim but stopped after about a year, and is presently not on such medication.  This is at odds with the reports of Dr Dagher, who consistently refers to prescribing Zyloprim.  As regards his non-insulin dependent diabetes, he was taking Metformin (as confirmed by Dr Dagher), but he stated that more recently he has changed to Dixformin, taking tablets three to four times daily.  He considers the condition is kept under control, aided by special meals prepared by his wife.    

14.     Mr Sleiman spoke of periodic dizziness, which he ascribed both to a low level of sugar in the blood and an infection in the ear.  When this occurs he lies down.  He sometimes takes medication, but could not recall what that medication is.  Dr Dagher makes minimal reference to this particular condition.  Dr Dagher refers to treatment with Norvasc to control blood pressure. Mr Sleiman stated he now takes another form of medication, the name of which he could not recall, which keeps the condition under control.  His cholesterol condition is also kept under control with Lipitor.

15.     In respect of abdominal hernia, Mr Sleiman stated that it causes him much pain.  It “blows up” when he eats, leading to a full feeling however, by resting and pressing down he can minimise the problem.  A specialist has advised him to have an operation. There are no details relating to this before the Tribunal.  He thinks he needs an operation, but believes the waiting time would be in the order of seven months.

16.     Mr Sleiman stated these were the extent of his medical problems.  When subsequently asked whether he believed he suffered any stress, a condition suggested by Dr Dagher in his more recent reports and by Dr Guirgis, he answered in the affirmative, due to his medical conditions, and “the family growing up and having to look after them”.  He occupies his time taking his children to school, and watching television.  He does not read, as it makes him dizzy. He can walk reasonable distances, but needs to rest periodically.  He is able to use public transport.  He has no home duties, these being undertaken by his wife and children, other than occasionally using the self propelled lawn mower.  He is able to look after his personal care requirements, but attends a barber for his shaving needs. 

17. On completion of his evidence, Mr Sleiman stated he had no additional matters to put before the Tribunal, but he did voice his concern at the lengthy procedures involved in addressing his claim for DSP. The Respondent submitted that on the evidence, a combined impairment rating of 10 points only could be justified, this being in respect of the lumbar condition under Table 5.2. Even here, it was submitted that the report by Dr Guirgis, which assessed a loss of movement of 30% of the range, was well outside the eligible period of assessment. The conditions of gout, hypertension, diabetes and cholesterol were well controlled by medication. It was submitted that the hernia condition was not being treated and hence could not be rated, and there was no evidence of treatment or stabilisation of any anxiety condition. In summary, the Respondent submitted that Mr Sleiman did not meet the criteria in section 94(1)(b) of the Act, and further, whilst it was accepted that he could not undertake heavy labour, he can do full-time light work, without a need for formal training.

CONSIDERATION AND DECISION

18. Section 94 of the Act prescribes the qualification for the DSP, stating relevantly:

“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)       one of the following applies:

(i)        the person has a continuing inability to work;

(ii)       …”

19. Subsection 94(1) further prescribes conditions in respect of age and residency qualifications, and subsections 94(2) to 94(5) prescribe the criteria in respect of work and training. Schedule 2 Part 2 of the Social Security (Administration) Act 1999, determines that the criteria must be satisfied within a period of 13 weeks from the day the claim was made.  In this matter, that period is from 23 April 2002 to 23 July 2002.  Medical evidence outside that period is only relevant in that it can contribute to an understanding of the relevant medical conditions.

20. On the evidence before it, the Tribunal finds that Mr Sleiman has impairments of the cervical and lumbar spines, gout, non-insulin dependent diabetes, hypertension, high cholesterol and abdominal hernia. Thus the criteria under subsection 94(1)(a) of the Act is met. The Tribunal does not accept the conditions of dizziness and anxiety, given that neither was diagnosed in the relevant eligible 13-week period, and neither is seemingly under treatment.

21. Loss of functional capacity in relation to work is assessed in accordance with the instructions for the use of the Impairment Tables at Schedule 1B of the Act, and by reference to the relevant Tables contained therein. Cervical and lumbar spine conditions are considered under Tables 5.1 and 5.2 respectively. In the former, Dr Dagher notes neck and shoulder pain resulting from degenerative changes and physical activity, and Dr Kotulski assesses a normal range of movement. Dr Guirgis assessed a restriction in range of movement of 20%, but no significant pathological features. Given that this assessment was made some considerable time after the eligible period, that Mr Sleiman is on medication for this condition, and that the Tribunal observed no obvious limitations in movement, an impairment rating of 0 points, which reflects normal or nearly normal range of movement, is considered to be appropriate and the Tribunal so finds.

22.     There is some medical consensus as to restrictions in the range of movement in the lumbar spine and to back pain and referred pain.   For the Respondent, Dr Kotulski assessed a loss of flexion and extension at about one quarter of the normal range of movement.  Dr Dagher, in his later reports, gives an impairment rating of 10 points, and Dr Guirgis found movement of the spine to be restricted by 30%, he also assessing impairment at 10 points.  The Tribunal finds an impairment rating of 10 points under Table 5.2 to be appropriate and to adequately cover associated pain.

23.     The condition of gout can be assessed under Table 19 for endocrine disorders.  On the evidence before the Tribunal this condition is “adequately controlled” and hence a nil impairment rating is assigned.   Table 20 is used for the assessment of impairment ratings in respect of miscellaneous conditions; it applies to the conditions of gout, hypertension and high cholesterol.  All these conditions are controlled by medications albeit that, contrary to the view of Dr Dagher, Mr Sleiman gave evidence that he is no longer on any medication to control gout.  The criteria for nil impairment points in Table 20 is stated as “controlled hypertension…minor symptoms which are easily tolerated and have no appreciable effect on the ability to work”, and the Tribunal accordingly finds for a nil rating for these conditions under Table 20.

24.     The hernia condition must be considered under Table 11.2 – Gastrointestinal.  In his claim for the DSP, Mr Sleiman did not list hernia as a disability or illness, the implication being that the condition was not one of concern.  Dr Dagher noted in his TDR that the condition awaited surgery, and in more recent reports at Exhibits A1 and A2, noted “recurrent pain” but, unlike other conditions, gave no assessment of an impairment rating.   Dr Kotulski diagnosed the condition as being self reducing, affecting Mr Sleiman’s ability to heavy lift, but suggested a nil impairment rating.   In oral evidence, Mr Sleiman considered the condition gave “much pain” but this could be minimised by resting and pressing down on the hernia.  The frequency of  “blow up” was unclear.  A discrete medical evaluation of this condition is not before the Tribunal, it is not being treated by medication, and nor has Mr Sleiman made any decision in respect of surgery.  On balance, it does not seem that the condition, as it presently exists, meets the 10 point criteria in Table 11.2 of “large abdominal hernia not easily reduced and resulting in persistent moderate symptoms” and hence a nil impairment rating is considered appropriate.

25. The combined impairment rating in respect of the impairments accepted by the Tribunal is 15 points, and the criteria of 20 points or more under the Impairment Tables pursuant to subsection 94(1)(b) of the Act is thus not met. That being the case, there is no requirement for the Tribunal to consider whether Mr Sleiman has a continuing inability to work.

26.     The decision of the Social Security Appeals Tribunal that Mr Sleiman is not eligible for the disability support pension is therefore affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         A. Krilis
  Associate

Date/s of Hearing  10 December 2003
Date of Decision  22 January 2004
Representative for the Applicant    self
Advocate for the Respondent        Ms Jane Green