Tessine and Department of Family and Community Services

[2000] AATA 432

DECISION AND REASONS FOR DECISION [2000] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/138

DIVISION )          
           Re      IBRAHIM TESSINE           
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Cambell      

Date2 June 2000 

PlaceSydney

Decision      The Tribunal affirms the decision under review.

……………………………………
  Dr J D Campbell
  Member
CATCHWORDS
Social Security – Disability Support Pension – Application- Nominated Impairments – Assessment rejection of claim.
Social Security Act 1991, ss 94, 100, schedule 1B

REASONS FOR DECISION

John D. Campbell           
            Member                 

1. Mr I Tessine ("the Applicant") in this matter seeks a review of the decision, dated 11 January 1999, of the Social Security Appeals Tribunal which affirmed the decision dated 3 November 1998 of an authorised review officer of Centrelink.  This latter decision affirmed an earlier decision, dated 21 October 1998, made by a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Respondent") to reject the Applicant's claim for a disability support pension.

2. A hearing was held before the Tribunal on 8 February 2000 at which the self represented Applicant gave evidence.  The Respondent was represented by Ms Smith, an advocate from the Administrative Law section of Centrelink and the Tribunal was assisted by an interpreter in the Arabic language.

3. The following written material was placed in evidence before the Tribunal.
   Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – 18, pp1 – 66
   Medical Report Dr Sinnathamby dated 28 October 1999        Exhibit A1     
   Medical Report Dr Sinnathamby dated 9 August 1999           Exhibit A2     
   Letter to Applicant form Bensons dated 28 January 1998       Exhibit A3     
   Medical Report Dr M Baz dated 31 May 1999    Exhibit A4     
   Respondent's Statements of Facts and Contentions dated 7 September 1999      Exhibit R1  

1. The relevant issues in this matter are.

   (1) whether the Applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the tables for the assessment of work-related impairment for disability support pension ("the impairment tables") in schedule 1B of the Social Security Act 1991; and
   (2)  if so, whether or not the Applicant has a continuing inability to work because:

• the impairment of itself prevents the applicant from doing any work for at least 30 hours per week at award wages within the next 2 years; and either

• the impairment of itself is sufficient to prevent the applicant from undertaking educational or vocational training or on the job training during the next 2 years; or

• if the impairment does not prevent the applicant from undertaking educational or vocational training or on the job training, such training is unlikely (because of the impairment) to enable the applicant to do any work for at least 30 hours per week at award wages within the next 2 years.

LEGISLATION

1. The relevant legislation in this matter is the Social Security Act 1991 ('the Act') and in particular subsections 94(1)(2)(3)(4)(5), 100(3) and the Schedule 1B Impairment Tables post 1 April 1998.
   BACKGROUND

2. An application for disability support pension was received by the Respondent from the Applicant on 30 September 1998 (T4).  A treating doctor's report dated 17 September 1998 accompanied the Applicant's claim (T3).  An assessment of the Applicant's medical impairments was undertaken on 16 October 1998 (T8).  The Applicant's claim was rejected on 21 October 1998 on the grounds that the assessment of his impairments revealed a rating of less than 20 points and that he was considered fit for light duties (T11).  A further certificate was received form the treating doctor on 30 October 1998 (T12).  Upon further consideration the earlier decision was affirmed on 3 November 1998 (T17). This decision was affirmed by the Social Security Appeals Tribunal on 11 January 1999 (T1).
   EVIDENCE
   MR I TESSINE – THE APPLICANT

3. The Applicant told the Tribunal that when he came to this country he was in full health and that he is married and has six children.  He did not want to take money from the government and as a consequence he had worked for many years, despite having been advised that a greater amount of money would have been available to him from the department of social security.  The Applicant stated that he joined the workforce on 7 July 1977 and spent nine and a half years in the same job with the same company, until he had an accident at work for which he received compensation associated with continuing low back pain. The Applicant stated that after the accident he has wanted to return to work and has actively sought work from many employers and continues to do so (Exhibit A3).  In his opinion his low back impairment and his doctors instructions limiting him to light duties restrict his ability to find work as there are very limited light duties work opportunities available.  Further, the Applicant stated that his age, his lack of English and his other medical conditions (pains in neck and knees and numbness in fingers) deteriorating with age, limite his ability to obtain work, particularly when he is in competition with young non-handicapped people.

4. In response to questions from the Tribunal, the Applicant stated that he was born in  Lebanon in 1943, educated to the fifth grade and received a certificate at the age of 20 to 21.  Despite his family not being well off, the Applicant was trained as an upholsterer.  He came to Australia in 1977 and worked for Advance Furniture for nine and a half years.  In 1986 he was injured in an accident at work, while lifting a large sofa onto his work bench something happened to his back.  As a consequence of this accident he stopped working, received compensation in late 1988 / early 1989, and has never worked since.

5. The Applicant described his impairments to the Tribunal in the following terms.

   a)Low back:     From time of accident he has had pain in his lower back, with intermittent radiation (two to three times per day) down both legs to his feet.  He has difficulty with prolonged standing and sitting (greater than ten minutes).  He is able to walk some distance, having caught the train to the hearing from Fairfield and walked from Town Hall to Market Street.  Causes him difficulty with sleeping for it is painful when he is on his back.

   b)Neck:            Severe pain left side of neck for one and a half years.  Has numbness and pain in fingers, which in turn causes trouble with his elbows.  If he lies on his left side, gets pain in the neck and left shoulder.

   c)Knees:          Numbness in knees when walking.  Needs to sit and rest before starting to walk again.  Has walked with a shuffle since his accident.

1. The Applicant stated that he owns and drives a car but experiences some difficulties after about ten minutes with back pain and numbness in his fingers.  He has had some accidents in Lakemba and Liverpool.  Further the Applicant stated that it is his desire to do light duty work and that he had seen Dr Baz, who had assessed his impairments at 15 points.
   MEDICAL EVIDENCE

2. In his claim for disability support pension the Applicant stated that he had lower back pain and that his legs and knees hurt.  The disabilities in his opinion often caused difficulties in sitting, standing, walking, driving a car, using public transport and in lifting, carrying, bending, operating machinery and attending work all the time (T4, p29).

3. Dr Sinnathamby, the treating doctor, diagnosed the Applicant's condition as spondylitis of the spine with clinical features noted as pain in neck and lumbar region, which had been aggravated by an accident in 1997 (T3, p17). Dr Sinnathamby considered that the Applicant would be unable to work full days because of endurance problems, that he has substantially reduced dexterity, that he would not be able to alternate between tasks and would not to able to lift, carry or move objects (T3, p20).  Further Dr Sinnathomby concluded that the Applicant, while not been able to return to his job as an upholsterer for more than two years, would be able to return to any kind of full time work within 12  to 24 months (T3,p19).

4. As a consequence of medical consultation and examination of the Applicant, undertaken on 19 October 1998, Dr Jones, the examining Health Services Australian medical practitioner, made the following whole person assessment:

   "Mr Tessine is an alert intelligent 55 year old with normal physique who reports he last worked in 1986 in his trade as an upholsterer.  He ceased due to a work related back injury and he has not returned to work since that time.

   His doctor indicates that recent x-rays (May1998) show degenerative arthritis in the cervical spine.  Mr Tessine reports pain with carrying items in front of the body, or low back stiffness after prolonged sitting.  There were no remarkable objective findings on clinical examination.  He had normal postural change agility and normal spinal and neck range.  Upper limb examination was normal.  His doctor suggested that sustained repetitive activities with the upper limbs, would cause pain due to neural compression symptoms, although Mr Tessine did not describe this today.

   As he presents today his condition is consistent with light work capacity e.g. usher, taxi driver, office duties, welfare worker, manager, supervisor"  (T9, p53)

1. Further Dr Jones assessed the Applicant's spinal impairments as having a nil points rating under tables 5.1 and 5.2 and any upper limb impairment at a nil points rating under table 3 of the schedule 1B Impairment Tables (T8, p45). Further Dr Jones considered that at the time of his examination, the Applicant had a capacity for work other than in his previous employment as an upholsterer, in a range of light skilled, semi skilled or lesser skilled work categories (T8, p47).

2. In a series of brief medical reports dated 30 October 1998 (T12), 28 October 1999 (Exhibit A1) and 9 August 1999 (Exhibit A2), Dr Sinnathamby has detailed the Applicant's disabilities as:

• Sponylosis of cervical and lumbar spine  (T12) (Exhibit A2, A1)

• Arthritis of both knees and elbows  (Exhibit A2, A1)

• Loss of function lower limbs is assessed at 15%  (Exhibit A1)

• Loss of function of upper limbs with loss of function of hands is assessed at 20%  (Exhibit A1)

• Overall disability is greater than 20% (Exhibit A1)

1. Dr Baz, an occupational health physician, examined the Applicant on 27 May 1999 and in her report dated 31 May 1999, Dr Baz made the following comments:
   On examination

   "He walks with an awkward, hesitant, antalgic gait which appeared somewhat exaggerated.  He stands with the head held forward.  The lumbar lordosis is reduced.  Mild diffuse tenderness was present particularly in the upper cervical lumbar region."

General comment

"Sponylosis of the cervical and lumbar spine has been diagnosed.  Mr Tessine describes weakness and numbness affecting the upper limbs.  There is no clinical evidence of nerve root involvement and no clinical findings supporting the weakness nor altered sensation in the upper limbs.  Neurological examination of the upper and lower limbs is normal. Reduced movement was observed in the cervical and, to a greater extent, the lumbar region.  Inconsistency in the examination was noted to include the markedly reduced straight leg raising test, full, easy seated straight leg raise and negative slump test.  This inconsistency together with the chronic work hardening changes, and dirt on the hands indicates that Mr Tessine is probably able to maintain a reasonable level of activity.
He also describes pain in the heels and right knee.  There is no clinical evidence of any significant disability affecting the knee.  There are no x-rays available.  Given the history of heavy work in the upholstery industry it is possible he has some degenerative changes in the right knee.  He describes pain in both heels but there was no tenderness elicited at this examination.  The history he gives would be consistent with calcaneal spurs although again there are no x-ray report available to confirm the diagnosis."

Assessment

"Cervical spine:
there is loss of about ¼ normal range of movement.  Table 5.1 allows an impairment rating of 5.

Thoracolumbar spin:
There is loss of about ¼ normal range of movement and pain is reported  with standing for 30 minutes.  Table 5.2 allows an impairment rating of 10.

Upper Limb function:
He reports loss of strength and sensation in the dominant and non dominant upper limbs. He describes mild interference with hand function and manual handling.  There was no objective evidence of altered sensation or reduced power.  Table 3 allows a nil impairment rating.

Lower limb function:
Walking is limited by back pain, as well as report of right knee and heel pain.  The knee and heel pain have not been investigated and diagnosed and I do not consider an impairment rating can be applied, under these Tables, for these symptoms.  The limitation due to spinal function is not assessed using Table 4."

Ability to work

"With regard to other work, he states he cannot work as a taxi driver because he cannot drive more than 10 minutes, and he needs better language skills. He agreed he could do a light duty job, but notes there are none available.
I consider he remains fit for alternative, lighter work which could be undertaken in a factory process environment.  If he were to improve his English skills, other occupations, such as carpark attendant, ticket collector or retail work, would be suitable."   (Exhibit A4)

SUBMISSIONS

1. The Applicant, in acknowledging that he would like to undertake light duty work, was clearly contending that it was his belief that because of his impairments, his age, his absence of spoken English, and the other restrictions arising from his impairments, he would not, as he has been, be able to secure a light duty job in the current work place.

2. Further the Applicant contended that he has a degenerative process in both his cervical and lumbar spine, that this has been aggravated by his injuries at work and in motor vehicle accidents and that the impairments, coupled with other conditions of pain in both knees and arms, are permanent impairments, which on assessment have a combined rating greater than 20 points.  Further for the reasons already nominated in paragraph 16 the Applicant contends that he has a continuing inability to work.  As such it is the Applicant's contention that he satisfies all the requirements for a disability support pension.

3. The Respondent submits that the Applicant's medical disabilities have been poorly itemised, diagnosed and assessed and that Dr Sinnathamby's reports are of little assistance in coming to a clear understanding as to what conditions the Applicant suffers from, their degree of severity and chronicity and the restrictions which arise.  Further the Respondent submits that Dr Sinnathamby's assessment of the nominated impairments do not allow any appreciation of how and to which tables Dr Sinnathamby referred in arriving at his opinion.

4. It is the Respondent's submission that Dr Jones has provided more reliable, more understandable and a more correct ennunciation of the Applicant's disabilities, and that reliance should be placed on his report.  Accordingly it is the Respondent's contention that as the Applicant does not satisfy subsections 94(1)(b) (combined assessment rating of 20 points or more) and that as he does not have a continuing inability to work (subsection 94(1)(c) not satisfied) the Applicant does not meet the requirements for a disability support pension.
   CONSIDERATION AND FINDINGS

5. The Tribunal in considering this matter notes the following relevant legislation, namely subsection 94(1) in part, (2)(3)(4) and (5)

   "94  Qualification for disability support pension
   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.
   …

   94(2) A person has a continuing inability to work because of an impairment if     the Secretary is satisfied that:

   (a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

   (b)  either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training –such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

   94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to

   (a)the availability to the person of educational or vocational training or on-the-job training; or

   (b)  if subsection (4) does not apply to the person – the availability to the person of work in the person's locally accessible labour market.

   94(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

   95(5)In this section:

   educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

   On-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments

   Work means work:

   (i)that is for a least 30 hours per week at award wages or above; and

   (ii)the exists in Australia, even if not within the person's locally accessible labour market."

6. Further the Tribunal notes subsection 100(3) of the Act, which limits the Tribunal's consideration to the circumstances and impairments which exist at the date of claim and for a period of three months commencing the day after the day of lodgement ("operative period"). Material, either earlier or later can only be utilised by the Tribunal to the extent that it affords the Tribunal a better appreciation of the nature and effect of the permanent impairments existing during the operative period.

7. In turning to the medical evidence the Tribunal notes the comments made by the Applicant in his claim for disability support pension and further the diagnoses of cervical and lumbar spondylosis, made by Dr Sinnathamby, as a result of his examination and radiological investigations.  The Tribunal further notes the findings of Dr Jones that the Applicant has no loss of range of movement of either the cervical or lumbar spine.  As a result of considering these opinions and findings, the Tribunal finds that the Applicant did have the permanent impairments of cervical and lumbar spondylosis at and during the operative period. Reports from Dr Baz in May 1999 and Dr Sinnathamby in August and October 1999 confirm that these impairments are continuing and there is evidence both from the Applicant's history to the Tribunal and from the reports that there may be increasing symptomology as the degenerative process continues.  This increasing symptomology is noted by the Tribunal to lay well beyond the operative period under consideration.

8. In relation to the pain in both knees, and the pain in the left shoulder with numbness and pain in fingers and pain in the left elbow, the Tribunal finds that there has been inadequate investigation of this symptomology, with no radiological investigation and an absence of a definitive diagnoses, let alone stabilisation and continuing treatment.  Further the Tribunal notes that the symptomolgy regarding the knees, elbows and fingers was not in prominence during the operative period as evidenced by the statement of the Applicant in his claim and in the accompanying treating doctors statement.  Similarly the Tribunal notes that Dr Jones found at examination normal function of the upper limbs.  Having considered this material the Tribunal finds that at the operative period there was neither defined a permanent impairment of either the upper limb or knees, that is a condition or conditions which has been diagnosed, treated and stabilised.  Further the Tribunal notes that in the reports of Dr Baz in May 1999 and Dr Sinnathamby in August and October 1999, that this may be increasing symptomology associated with the nominated conditions in the knees, elbows, left shoulder and fingers, but again this is well outside the operative period, with any consideration being undertaken in a further application if lodged.

1. As a consequence of the Tribunal's findings that the Applicant has the permanent impairments of cervical and lumbar spondylosis, the Tribunal finds that the Applicant satisfies subsection 94(1)(a) of the Act

2. In considering the issue of assessment, the Tribunal again notes the history of the Applicant at the time of the claim, the report of the conditions and their clinical features nominated in the treating doctors report and finds that the Applicant, as he had a normal or nearly normal range of movement (Dr Jones) of his cervical spine, has a nil rating under table 5.1.  Similarly the Tribunal finds that he had a nil rating for the very same reason under table 5.2 for his thoroacolumbar spondylosis.  It is the Tribunal's finding that his knee condition, left shoulder and the condition involving his upper limbs should not be rated as the conditions had not been properly investigated, diagnosed and stabilised at or during the operative period.

3. The Tribunal again notes the later reports of Drs Baz and Sinnathamby and their respective assessments.  The tribunal is unable to place any weight  on the assessments of Dr Sinnathamby, as the Tribunal is unable to appreciate what tables he is using, while further any supporting detail is both scant and at times variable. Again the Tribunal must state that both assessments fall well outside the operative period under consideration, and at best can only assist if a further claim for disability support pension was to be made by the Applicant.

4. As a consequence of the Tribunal's finding that the Applicant's permanent impairments of cervical and lumbar spondylosis have both a nil points rating under tables 5.1 and 5.2 of the Schedule 1B Impairment Tables (post 1 April 1998), the Tribunal further finds that the Applicant does not satisfy subsection 94(1)(b) of the Act.

5. In considering whether the Applicant has a continuing inability to work, the Tribunal, gave weight to the following reports:

   a)  of the treating doctor -  that the Applicant, despite work restrictions imposed as a consequence of his permanent impairments, while not being able to return to his previous job as an upholsterer, would be able to return to any kind of full time work within 12 to 24 months (T3, p19); and
   b)  to the report of Dr Jones - where it is stated that the Applicant had at the time of his examination a capacity for work, other than in his previous employment as an upholsterer, in a range of light skilled, semiskilled, or less skilled work categories (T8, p47)

6. The Tribunal finds that the Applicant at the operative period did not have a continuing inability to work, in that the Applicant:

   a)  was able to return to work in a range of light skilled, lesser skilled and semiskilled work categories during the operative period; and
   b)  was not prevented by his impairments form undertaking educational or vocational or on-the-job training during the next two years; and
   c)  that such training is likely (despite his impairments) to enable the Applicant to do work within the next two years.

7. As a consequence of the Tribunal's findings, the Tribunal concludes that the Applicant fails to satisfy subsection 94(1)(c) of the Act and that the Applicant's claim for disability support pension on this occasion has been correctly rejected.
   DETERMINATION

8. The Tribunal affirms the decision under review.  

   I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  8 February 2000
   Date of Decision  2 June 2000
   Solicitor for the Applicant         Self represented
   Solicitor for the Respondent    Adele Alex