Tissine; Secretary, Department of Family and Community Services a Nd
[2004] AATA 265
•15 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 265
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1948
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
CHAHRAZAD TISSINE
Respondent
DECISION
Tribunal Dr Campbell, Member Date15 March 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof finds that Mrs Tissine did not qualify for disability support pension as at 15 July 2002.
[Sgd] Dr Campbell Member
CATCHWORDS
Social Security - Disability Support Pension - Conditions causing work incapacity - assessment - continuing inability to work - decision set aside.
Social Security Act 1991, section 94, Schedule 1B.
REASONS FOR DECISION
15 March 2004 Dr Campbell, Member 1. In this matter the Applicant seeks to have the decision of the Social Security Appeals Tribunal dated 4 November 2002 set aside and that the cancellation of Mrs Tissine’s disability support pension be reinstated from 15 July 2002, this being the date on which the Applicant had cancelled Mrs Tissine’s disability support pension for the reason that the assessment of Mrs Tissine’s various medical conditions was 10 points. This decision affirmed the decision of an authorised review officer on 24 September 2002.
2. Mrs Tissine was born in Lebanon on 22 May 1951 and arrived in Australia with her husband in 1971. Mrs Tissine left school at age 15, having been educated to year eight. Upon leaving school she undertook a machine course in sewing and worked in such activities for three to four years. After arriving in Australia Mrs Tissine worked as a machine operator for four years until a daughter was born. Since 1985 Mrs Tissine has been working as a cleaner, initially at Punchbowl Primary School for six years and thereafter at Wiley Park Girls High School, an activity which was still continuing at the time of the hearing.
3. On 24 March 2001 Dr Assaad, Mrs Tissine’s treating general practitioner provided a report in which he described Mrs Tissine’s medical conditions as cervical spondylosis, diffuse degenerative joint disease, bilateral calcaneal spurs, gout and hypertension. Dr Assaad considered that Mrs Tissine would not be able to return to any kind of work for more than two years.
4. On 3 April 2001 Mrs Tissine lodged a claim for disability support pension, attaching the report of Dr Assaad to the documentation. On 18 April 2001 Mrs Tissine's medical conditions were nominated as neck pain from cervical spondylosis, back pain from diffuse degenerative joint disease, bilateral calcaneal spurs, gout, hypertension with high cholesterol, bilateral shoulder pain and pain in multiple joints. Assessment by a Health Services Australia medical adviser on 18 April 2001 found a functional impairment of 20 points, comprising 10 points for bilateral calcaneal spurs and gout pursuant to table 4 of the Schedule 1B Impairment Tables of the Social Security Act 1991 (“the Act”) and a further 10 points for multiple joint pains pursuant to table 20 of the Impairment Tables. The medical adviser considered that Mrs Tissine was unable to work for 30 hours at least per week for more than two years and that Mrs Tissine could work for at least 15 hours per week, but recommended she avoid continuing in her current cleaning job and look for a more sedentary occupation.
5. The Applicant approved the granting of a disability support pension in May 2001. As part of a review process initiated in April 2002, Mrs Tissine lodged a further treating doctor’s report from Dr Assaad on 1 July 2002. Dr Assaad’s report of 14 June 2002 was similar in facts and recommendations as nominated in his earlier report of 24 March 2001. A medical assessment report by a Health Services Australia medical adviser on 10 July 2002, nominated Mrs Tissine’s condition as chronic neck pain, chronic low back pain, gout and arthritis affecting joints of the lower limbs, hypertension and hypercholesterolaemia, and calcaneal spurs. Total impairment was assessed at 10 points and a medical opinion stated that Mrs Tissine was fit to work 30 hours per week, and that she could continue in her present job. Mrs Tissine’s disability support pension was cancelled by the Applicant on 15 July 2002. This decision was affirmed by an authorised review officer on 24 September 2002.
6. On 4 November 2002 the Social Security Appeals Tribunal concluded that Mrs Tissine satisfied the requirements for the granting of a disability support pension and had done so since the date of cancellation of that pension. The Social Security Appeals Tribunal in making such a finding found that Mrs Tissine suffered from multiple joint pains, gout and bilateral spurs and hypertension. The Social Security Appeals Tribunal assessed Mrs Tissine’s combined impairment at 25 points, comprising 15 points for multiple joint pain from generalised arthritis under table 20 and 10 points for gout, calcaneal spurs and arthritis pursuant to table 4 of the Impairment Tables. The Social Security Appeals Tribunal also considered that Mrs Tissine, because of her impairments, was unable to work 30 hours per week and to continue to work the 28 hours per week that she was working would be detrimental to her health and well-being.
7. The issues in the matter are:
(a)Whether Mrs Tissine has a physical, intellectual or psychiatric Impairment; and
(b)Whether Mrs Tissine impairments are 20 points or more when assessed pursuant to the Schedule 1B Impairment Tables; and
(c)Whether Mrs Tissine has a continuing inability to work pursuant to sections 94(3) and 94(5) of the Act.
8. For reasons nominated later in the decision the Tribunal concludes that Mrs Tissine, while suffering from particular impairments, does not have an impairment of 20 points or more under the Impairment Tables. Further Mrs Tissine, because of her impairment, does not have a continuing inability to work. As such Mrs Tissine does not qualify for disability support pension at the operative date, namely 15 July 2002.
CONSIDERATION AND FINDINGS
9. In addressing Mrs Tissine’s evidence as presented by her and on her behalf by her son-in-law, the Tribunal was impressed by the competent and open manner in which such evidence was furnished. The Tribunal was told by Mrs Tissine of her past and current employment history and the particulars of her current employment which involves mopping, vacuuming, polishing and emptying small bins. Mrs Tissine stated that she was employed for 28 hours per week, working 0520 to 0826 hours each morning and 1500 to 1730 hours each afternoon. She is driven on most days to and from work by her husband for the last two years although on occasions she walks – the distance being two streets. She returns home at the end of the morning shift and returns for the afternoon shift, with the in between period used for rest, housework and other activities as required e.g. attending for physiotherapy.
10. Mrs Tissine also described to the Tribunal that she and her husband, who is retired and receives a disability support pension live in their own home, in which she does the housework and cooking and her husband the shopping and garden. She does receive some help with the housework on occasions from her daughter. Mrs Tissine stated that she pushes herself at work, receives some assistance by the use of a special mop, and from her co-workers. Mrs Tissine stated that she also received from her work a financial outcome which was beneficial to her and her husband.
11. Mrs Tissine stated that she always had worked 28 hours per week, this being the nature of her employment and that there is no opportunity for extra hours. Mrs Tissine stated that she awakes at 0330 hours and retires to bed at around 2100 hours each day. In her employment, Mrs Tissine stated that each year for the last seven to eight years she has taken her annual entitlement of 10 days sick leave and no more.
12. The Tribunal, in considering her evidence, finds Mrs Tissine to be an honest and reliable witness. The Tribunal also observed that Mrs Tissine enjoyed her work and the twin benefits of social interaction and financial reward.
13. In addressing the particular issues that are required to be satisfied, the Tribunal turns to a consideration of what, if any, impairments Mrs Tissine was suffering from during the time at which her disability support pension was cancelled in July 2002. In so doing the Tribunal must give consideration to what medical evidence was available to the decision-maker at the relevant period, and consider later medical evidence only in so far as it assists the Tribunal in better defining and understanding Mrs Tissine’s various impairments at the reference period.
14. Mrs Tissine stated that she has chronic neck pain and stiff muscles in the neck and both shoulders. This is associated with an almost daily headache, which occurs in the morning and for which she takes Aspalgin and/or naprosyn as required. Occasionally the headache is severe and is of a migrainous nature. Dr Assaad in his reports of 24 March 2001 and 14 June 2002 considered that Mrs Tissine suffers from cervical spondylosis, as did Dr Guirgis in his report of 25 August 2003. The Tribunal further notes that plain X-rays and a CT scan of the cervical spine performed on 10 July 2003 were reported by the radiologist as being within normal limits, with no evidence of a spondylotic bar. The Tribunal also notes the findings at examination of the cervical spine by the medical adviser on 10 July 2002 and his conclusion that there was almost a loss of a quarter of the normal range of cervical movements. Assessments by other medical advisers on 18 April 2001 and 30 May 2003, detailed a normal or near normal range of movement of the cervical spine, while Dr Guirgis in his report of 25 August 2003 described the loss of movement of the cervical spine at about a quarter of the normal range.
15. As a consequence of this review the Tribunal concludes that at July 2002 Mrs Tissine’s neck condition was a condition associated with pain in the neck muscles with some radiation to head and shoulders. This condition was associated with normal or near normal range of movement of the cervical spine with on occasions some intermittent loss of movement at about a quarter of the normal range. The Tribunal, in noting the medication used for both pain and the headache concludes that the condition has little effect on Mrs Tissine’s capacity for work. The Tribunal assesses the cervical spine condition as a nil points rating pursuant to table 5.1 of the Schedule 1B Impairment Tables. The Tribunal further notes that the issues of pain will be assessed pursuant to table 20 of the Impairment Tables.
16. In addressing Mrs Tissine’s lower back complaints, the Tribunal again notes that the major symptom is pain, which occurs everyday, together with pain in her legs, the right being worse than the left. Mrs Tissine states that the pain in her back increases and decreases, with pain being absent sometimes for up to two days following physiotherapy. Mrs Tissine also described the situation of the pain in her back and legs increasing if walking too far e.g. when walking to work and that resting for five to 10 minutes will alleviate the pain. Mrs Tissine stated that she does have some difficulty with stairs, but that she is able to carry through the duties of her employment.
17. The Tribunal notes that Dr Assaad considers Mrs Tissine to be suffering from diffuse degenerative joint disease in his reports of 24 March 2001, 14 June 2002 and 16 May 2003, with the major symptom being pain. The medical advisers report of 18 April 2001 described Mrs Tissine’s lower back complaint in terms of constant pain, which limits her capacity to bend and lift, while being able to stand and walk for 30 minutes. The medical adviser found a normal range of movement of the thoraco lumbar spine on this occasion. The medical adviser in his report on 10 July 2002 described Mrs Tissine’s chronic low back pain as being intermittent, but frequent, independent of activities associated with daily living and able to cope with her work activities. The medical adviser considered that there was a minor loss of normal movement of the thoraco-lumbar spine.
18. Reports in 2003 include the report of a CT scan of the lumbar spine of 13 May 2003, in which the radiologist comments:
“The degenerative inter body spondylosis, facet arthropathy and symmetrical disc bulge would all be contributing to the patient’s low back pain. There was no definite evidence of neurocompression.”
19. Examination and assessment by a medical adviser on 30 May 2003 revealed that Mrs Tissine had a quarter loss of normal range of movement of thoraco-lumbar spine, with normal straight leg raising bilaterally and normal lower limb neurological examination together with an absence of referred pain being reported. In his report of 25 August 2003, Dr Guirgis reported a loss of a quarter of the normal range of movement of the thoraco lumbar spine and back pain associated with many physical activities.
20. In assessing these various reports the Tribunal again concludes that pain, namely low back pain, is the major symptom of an underlying degenerative lumbar spondylosis. Further the Tribunal in noting that the reports of the medical advisers of 18 April 2001 and 10 July 2002 disclose a normal or nearly normal range of movement in the thoraco lumbar spine, concludes that any impairment rating pursuant to table 5.2 would result in a nil points rating. The Tribunal, in noting that later medical reports in May and August 2003 indicate a quarter loss of the normal range of movement of the thoraco-lumbar spine, concludes that this may be evidence of progressive deterioration in the underlying degenerative process, but for the purposes of this matter is of limited relevance as the operative period is July 2002, this being the period when the decision to cancel was effected. Finally the Tribunal would indicate that the low back pain, by virtue of its nature in this matter, and in the absence of a definable loss of the normal range of movement in the thoraco lumbar spine, should be assessed pursuant to table 20, as it is clear that assessment pursuant to table 5 would underestimate the level of disability because of the presence of chronic entrenched pain.
21. The Tribunal next moves to Mrs Tissine’s complaint of pain in her feet, ankles, knees and legs. The Tribunal observes that Mrs Tissine suffers from gout and bilateral calcaneal spurs. Further the Tribunal notes that Mrs Tissine stated that the pains in her hips, lower back and legs are the worst; that she experiences swelling of the ankles in hot weather and when standing up for extended periods; that the pain in her low back and legs has become worse since July 2002 and that she takes medication for her arthritis and gout. The Tribunal has already made mention of Mrs Tissine’s ability to work, walk and undertake housework, albeit with some assistance on occasions.
22. The reports of Dr Assaad, which do not detail any loss of range of movement in relation to hip, knee and ankle joints, but do make mention of intermittent ankle swelling, are considered lacking in the necessary detail for them to be of assistance in determining the nature of and degree of impairment arising from the gout, the arthritis and the calcaneal spurs. The report of the medical adviser of 18 April 2001 is more helpful in that it details ankle swelling in the left ankle permanently and swollen ankles with pitting oedema on occasions.. Similarly, while there was no difficulty in Mrs Tissine’s mobility, posture and weight transfer, it was recorded that she could have intermittent difficulty with walking, and that her feet are sometimes painful.
23. The Tribunal further notes the medical adviser’s report of 10 July 2002, which, while detailing Mrs Tissine’s gout and anti inflammatory medication, records Mrs Tissine as walking normally, and with a full range of movement and power in the joints of the lower limb. Mrs Tissine was also recorded as being able to squat, walk more than 500 metres and as having no swelling or deformity in the lower limbs.
24. In the medical adviser’s report of 30 May 2003, a possibility of mild swelling in her left ankle was recorded, together with some crepitus in her left knee. A photo of a swollen left ankle as a result of an acute episode of gout was recorded by the medical adviser. Dr Guirgis in his report of 25 August 2003 detailed that on examination he found tenderness over the medical and lateral collateral ligaments of the left knee, and tenderness and soft tissue fullness over the anterolateral collateral ligaments of the left ankle.
25. Having considered all three reports in the context of the operative time in this matter the Tribunal is left with a series of conditions, namely arthritis, gout and bilateral calcaneal spurs, all of which at varying times contribute in varying degrees to Mrs Tissine’s complaints of pain, the level of which varies. The impairments do not seem to restrict Mrs Tissine’s ability to work, other than when there is an acute episode. Otherwise it is evident to the Tribunal that Mrs Tissine in July 2002 had a full range of movements in all the joints of her lower limbs and was able to walk a distance greater than 500 metres, squat and work 28 hours a week, albeit with some limitations in bending, lifting and standing for prolonged periods. The Tribunal also notes that there was no medical evidence available in July 2002, which detailed Mrs Tissine's loss of strength, mobility, stability and balance and/or sensation. As a consequence the Tribunal concludes that Mrs Tissine has a nil points impairment pursuant to table 4 of the Impairment Tables with pain to be assessed pursuant to table 20.
26. The Tribunal also notes that all of the medical reports state that Mrs Tissine suffers from hypertension and high cholesterol, and that these two conditions are controlled by relevant therapy. The Tribunal assesses these two conditions as having a nil points impairment rating pursuant to table 20 of the Impairment Tables.
27. The Tribunal having noted that pain is the overriding and significant feature in all Mrs Tissine’s skeletal conditions, including gouty arthritis, concludes that chronic pain of varying intensities is a significant impairment. While the varying levels of pain experienced by Mrs Tissine may have its origins in a variety of pathological processes, either metabolic or degenerative, chronic pain is the impairment which is imposing functional limitation on Mrs Tissine’s ability to carry out work related tasks at the nominated July 2002 period. In so stating the Tribunal recognises that the underlying pathology has not progressed at that time to the point that skeletal restriction of normal movements on a permanent basis has occurred. That it may eventually progress is without issue, with some evidence of that progress perhaps being evident in the later medical reports in May and August 2003.
28. In assessing Mrs Tissine’s chronic pain, the Tribunal concludes that the appropriate impairment rating is 15 points pursuant to table 20 of the Impairment Tables. In so stating, the Tribunal notes the assessment schedule for 15 points.
“NILModerate to severe symptoms, which are more distressing but prevent few everyday activities. Selfcare is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work related tasks and / or attend work. Full time work would still be possible.”
29. The Tribunal, in summary, is more than satisfied that the total impairment rating of 15 points, derived from the table 20 assessment, best reflects the circumstances of and the functional limitations for work related tasks arising from Mrs Tissine’s impairments in July 2002.
30. Further by virtue of the Tribunal’s findings, namely the existence of physical impairments, which include lumbar spondylosis, gout, arthritis, bilateral calcaneal spurs, hypertension and hyper cholesterolaemia and chronic pain and an assessment of this impairment at 15 points, Mrs Tissine satisfies section 94(1)(a) of the Act and fails to satisfy section 94(1)(b) of the Act.
31. In addressing section 94(1)(c) of the Act, namely Mrs Tissine’s continuing inability to work, the Tribunal again records that Mrs Tissine has and does continue to work enjoying a cleaning role which she has undertaken for 28 hours a week for the last 14 years. While the Tribunal understands that the employment is a split shift arrangement over five days per week, the fact is that Mrs Tissine has undertaken such an activity successfully over many years and with a quantum of sick leave maintained within her employment entitlements over the last eight years. It was made clear to the Tribunal that Mrs Tissine enjoys her work and that she has the ability and capacity to undertake the 28 hours per week. Further by virtue of her domestic activities as well as her current employment activities it is clear to the Tribunal that Mrs Tissine has the capacity to work 30 hours per week, a finding which is again supported by her continuing activities, some 18 months after the July 2002 assessment. In forming such an opinion the Tribunal has considered the opinions of the medical advisers dated 10 July 2002 and 16 May 2003 and the opinions of Dr Assaad all of which at face value appear inconsistent, as he is of the opinion that Mrs Tissine is unable to work at all despite continuously recording her current employment activities.
32. The Tribunal is mindful that some of Mrs Tissine’s age related degenerative impairment may well progress over time, leading to greater limitations on work capacity. Undoubtedly when this occurs Mrs Tissine will be unable to continue with her current employment and may have to seek other more appropriate employment if it is her desire to remain in employment, and she may require assistance to do so.
33. In summary the Tribunal concludes that Mrs Tissine does not qualify for disability support pension in July 2002 as Mrs Tissine failed to satisfy sections 94(1)(b) and 94(1)(c) of the Act.
34. Finally the Tribunal would wish to record that the Applicant would not seek recovery of any payments if indeed it was found that Mrs Tissine did not qualify for disability support pension at the appropriate time. Secondly the Tribunal records that as a result of this decision Mrs Tissine loses access to particular social security benefits as it is understood that her earnings are marginally in excess of the cut off amount. This causes Mrs Tissine particular financial disadvantage as a consequence of the significant number of medications consumed. Advice on this issue would be of assistance to Mrs Tissine.
DETERMINATION
35. The Tribunal sets aside the decision under review and in substitution thereof finds that Mrs Tissine did not qualify for disability support pension as at 15 July 2002.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of DR CAMPBELL, MEMBER
Signed: A. Krilis .......................................................................................
AssociateDate/s of Hearing 19 February 2004
Date of Decision 15 March 2004
Representative for the Applicant Nidale Chalak
Advocate for the Respondent Gary Richardson
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