Younakhir and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1983

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1983

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/750

GENERAL ADMINISTRATIVE DIVISION		)
Re		YOUSIF YOUNAKHIR

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Ion Alexander

Date23 November 2007

PlaceSydney

Decision

1.  At the time of his application Mr Younakhir did qualify for a disability support pension.

2.    The decision of the Social Security Appeals Tribunal is set aside.

........................SGD......................

Dr Ion Alexander

Member

CATCHWORDS

SOCIAL SECURITY- Disability Support Pension – Physical, Intellectual or Psychiatric Impairment – Assessment Of Functional Capacity- Assignment Of An Impairment Rating – Continuing Inability To Work – Decision Under Review Is Set Aside. 

LEGISLATION

Social Security Act 1991, section 94(1), section 94(1)(a), section 94(1)(b), section 94(2)(a), section 94(2)(a)(i), section 94(5)(a), section 94 (2)(b)(ii), Schedule 1B.

Social Security (Administration) Act 1999

REASONS FOR DECISION

23 November 2007              Dr Ion Alexander, Member

Introduction

1.      On 20 September 2006 Mr Younakhir submitted a claim for a disability support pension (“DSP”). Centrelink rejected the claim and a subsequent appeal to the Social Security Appeals Tribunal (“SSAT”) heard on 26 February 2007 affirmed that decision. The decision by the SSAT is the subject of this review by the Administrative Appeals Tribunal (“AAT”).

2.      Mr Younakhir attended the AAT for a hearing on 5 August 2007 and was not legally represented but Mr Younakhir had the assistance of an Assyrian interpreter.

Issues

What is the relevant period?

3. In order to qualify to receive a DSP Mr Younakhir must have satisfied the requirements of section 94(1) of the Social Security Act 1991 (“the Act”) at the relevant time, that is, at the time of his application or in the subsequent 13 weeks as determined by the Social Security (Administration Act) 1999, Schedule 2.

4.      The relevant time is 20 September 2006 to the 20 December 2006.

Did Mr Younakhir have a physical, intellectual or psychiatric impairment as determined by SECTION 94(1)(a) of the Act during the relevant period ?

5. In order to satisfy section 94(1)(a) of the Act, Mr Younakhir is required to have a condition or conditions that could be assigned a rating under the Impairment Tables in Schedule 1B of the Act.

6.      At the time of his application, Mr Younakhir claimed physical impairment, resulting from lumbosacral spondylosis with intervertebral disc protrusion and neurological deficit in the right leg (‘foot drop’).

7.      Additional medical conditions suffered by Mr Younakhir included diabetes mellitus and hyperlipidaemia. Both of these conditions were being adequately treated and not causing impairment.

8. Therefore, I find that Mr Younakhir did have a physical impairment during the relevant period and section 94 (1)(a) of the Act was satisfied.

What is the evidence with regard to Mr Younakhir’s claim?

9.      Mr Younakhir is a 57 year old man of Iraqi descent who immigrated to Australia in February 1999.

10.     In Iraq after graduating from university Mr Younakhir became a high school teacher but also served more than nine years in the Iraq army as an Administrative Officer, achieving the rank of Major.

11.     In August 2000 Mr Younakhir was employed as a security guard for Chubb Security for whom he continued to work until January 2006.

12.     In November 2005 Mr Younakhir first noted pain in his back after having been moved to a new work situation that required a significant increase in patrolling and standing at a security gate.

13.     On 26 January 2006, while at home, Mr Younakhir, suffered acute severe lower back pain radiating to the right leg. The symptoms were severe enough to require urgent admission to Liverpool District Hospital.

14.     A CT and MRI scan revealed disc protrusion at the L4/5 level with impingement on the L5 nerve root.

15.     Mr Younakhir remained in hospital until Dr Abraszko, a neurosurgeon, performed a discectomy on 7 February 2006.

16.     Following the operation it was noted that Mr Younakhir had ‘right foot drop’ which means that he had suffered a significant neurological deficit affecting the right leg.  The deficit has persisted for more than 18 months.

17.     As a result of this neurological deficit, Mr Younakhir had difficulty walking and constantly required the aid of a walking stick. He had particular difficulty with steps.

18.     After the operation Mr Younakhir continued to suffer from back pain that limited his ability to walk long distances without rest and prevented him from standing and sitting for extended periods.

19.     In his oral evidence, Mr Younakhir stated that he required assistance from his wife in the bathroom and with dressing, particularly, with trousers and socks.

20.     Mr Younakhir’s main activity at home was reading, usually religious and history books, and he no longer participated in household chores. His four children still live at home and assist with the housework and gardening. Mr Younakhir did accompany his wife to do the shopping but did not carry bags or push the shopping trolley.

21.     Mr Younakhir was active as one of 17 deacons at his local church and would spend up to seven or eight hours, at church per week.

22.     Mr Younakhir was able to drive an automatic car for short periods of up to 10 to 15 minutes but sometimes had difficulty with his right foot when changing from the accelerator to the brake.

23.     In June 2006 Mr Younakhir again had an acute episode of increased pain with radiation to the right leg.

24.     A CT scan done at that time revealed prominent spondylotic changes in the L4/L5 and L5/S1 discovertebral joints and moderate arthritic change in the L5/S1  facet joints. The scan also revealed broad based disc bulge at L4/L5 and L5/S1 with possible nerve root impingement.

25.     I found Mr Younakhir to be an honest and cooperative witness.

At the relevant time did Mr Younakhir’s loss of functional capacity result in impairment that would have achieved a rating of 20 points or more under the Impairment tables in Schedule 1B of the Act?

26.     I note that Mr Younakhir’s functional capacity had not been assessed by a medical practitioner.

27.     In the course of the hearing, the representative of the Secretary of the Department of Employment and Workplace Relations (hereafter referred to in these reasons as “Respondent”) indicated that the approach taken by the Secretary of the Department of Employment and Workplace Relations that there is “no actual requirement for medical practitioners to undertake medical assessments” and that therefore Centrelink’s position is that this task is to be done by Job Capacity Assessors (JCA) specifically employed for this purpose.

28.     The only assessment of Mr Younakhir’s functional capacity was done by a Centrelink JCA, with a report dated 29 September 2006.

29.      The report made no reference to the qualifications and/or expertise of the JCA.

30.     The JCA gave a total impairment rating of 35 points made up of the following components; Table 5.2: Spinal function (Thoraco—Lumbar‑Sacral Spine) - 10 points on the basis of a “Loss of half of normal range of movement”.

31.     There appeared to be no consideration of Mr Younakhir’s complaints with regard to back pain and referred pain, symptoms that are relevant when assigning a rating under Table 5.2.

32.     Table 4: Function Of The Lower Limbs - 20 points on the basis that “pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting”.

33.     In his oral evidence Mr Younakhir conceded that he could walk for 200 to 300 metres but that his neurological impairment interfered with his ability to walk and that he had difficulty in climbing steps.

34.      Table 5.1: Spinal function (Cervical Spine) - 5points on the basis that “Loss of quarter of normal range movement”.

35.     I note that there was no reference to the cervical spine in the Mr Younakhir’s claim or the treating doctor’s report.

36.     The report did not provide sufficient information to allow the Tribunal to understand how the functional assessment was actually performed.

37. The introduction to the Impairment Tables in Schedule 1B of the Act states; “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”.

38.     The JCA stated that “On consulting with the treating doctor it was confirmed that each condition is fully diagnosed treated and stabilised”.

39.     However, there is no evidence before me that would suggest that a comprehensive history and physical examination had been done. In fact, there is no evidence of any physical examination at all, apart, from the relatively brief note provided by Mr Younakhir’s treating neurosurgeon, dated 11December 2006, that confirmed Mr Younakhir had “right foot weakness”.

40.     Furthermore in the course of submissions, the Respondent specifically challenged the reliability of the JCA’s rating.

41.     In support of the submission, the Respondent referred to an additional report that had been provided by a Centrelink JCA team leader dated 18 September 2007. This report had noted inconsistencies in the previous JCA’s report and appeared to be critical of the overall assessment.

42.     The Respondent relied on this report despite having, earlier in the hearing, conceded that this additional report was simply a file review and that it would not be given a lot of weight.

43.     In dealing with the issue, the SSAT decided to assign a single impairment rating of 20 points from Table 5.2 for Mr Younakhir’s back pain and lower limb symptoms on the grounds that Mr Younakhir had back pain and referred pain with almost all physical activities, had reduced tolerance for sitting standing and driving and had a loss of one half normal range of movement in his lumbosacral spine.

44.     The SSAT considered that the ‘right foot drop’ was a manifestation of intervertebral disc disease and decided to assign only a single impairment rating from Table  5.2.

45.      I note that the introduction to Schedule 1B states that:”it is inappropriate to assess an isolated spinal condition under both the spine (5) and the lower limb (4) unless there is a definite secondary neurological deficit in a lower limb or limbs”.

46.     I consider ‘foot drop’ to be a manifestation of a secondary neurological deficit therefore it follows that Mr Younakhir should have been assessed by both tables 4 and 5.

47.     On the evidence before me, I find that Mr Younakhir was not appropriately assessed with regard to the loss of functional capacity and that the impairment rating was not correctly determined.

48.     I also find, however, that there was sufficient evidence before me to be satisfied, that at the relevant time, Mr Younakhir had a loss of functional capacity that should have been assigned a rating of at least 20 points.

49.     In doing so, I note that the evidence supports a conclusion that Mr Younakhir had a permanent neurological deficit impairing the function of his right leg sufficiently to cause moderate interference with walking and climbing and therefore would warrant an impairment rating of at least 10 points or greater under Table  4. 

50.     Also that there was evidence to support a conclusion that Mr Younakhirs ’s functional loss as a result of his lumbosacral spondylosis was sufficient to warrant an impairment rating of a least 10 points or greater under Table 5.2.

51. Therefore I find that section 94(1)(b) of the Act was satisfied.

At the relevant time did Mr Younakhir have a continuing inability work?

52.     In deciding this issue, I am mindful, that in determining whether Mr Younakhir had a continuing inability to work, I must be satisfied, that his impairment, was of itself sufficient to prevent him “from doing any work independently of a program of support” in the two years from the date of his application for the DSP pursuant to section 94(2)(a) and that ‘work’ means ‘work’ that is “for a least 15 hours per week” pursuant to section 94(5)(a).

53.     The Respondent submitted that Mr Younakhir did not have a continuing inability to work as a result of his disability.

54.     The Respondent relied on two assessment reports, completed by Centrelink’s JCA’s.

55.     The first assessment report dated 7June 2006 was done about 5 months after Mr Younakhir’s operation. The JCA determined that that Mr Younakhir would be able to perform 30 plus hours per week in 6-24 months and that work, as security guard, would be suitable.

56.     The assessment was somewhat superficial, and there was a clear assumption that Mr Younakhir was merely recovering from his operation. The question of a permanent loss of functional capacity was not considered.

57.     I find that this assessment report should have been given little weight.

58.     The second assessment report dated 25 September 2006 was done in response to Mr Younakhir’s claim for a DSP and is the same assessment in which an impairment rating of 35 points had been assigned.

59.     The JCA determined that Mr Younakhir’s current capacity for work was eight -14 hours per week, and that to increase this capacity to 15-22 hours per week would require intervention. The JCA stated that “With pain management and vocational rehabilitation it seems client could build work capacity to this level” with suitable work in a service industry.

60.     The JCA went on to conclude that Mr Younakhir required specialist disability employment interventions and recommended referral to “Disability Employment Network (DEN) to assist with vocational rehabilitation, physiotherapy and building work capacity”.

61.     The JCA described several elements of support with duration varying from less than 6 months up to 24 months.

62.      Clearly this assessment was consistent with a conclusion that as a result of his impairment, Mr Younakhir was prevented from doing any work independently of a program of support. 

63.     The period of program support required to achieve the desired outcome, that is, an ability to do any work for at least 15 hours was not so clear.

64. The JCA did not provide any explanation for conclusions, which in my view could be seen as somewhat arbitrary, and perhaps, influenced by the time frame stipulated by the Act.

65.     I also note that in the previously mentioned additional file assessment report the JCA team leader expressed reservation about this JCA’s recommendations on the grounds of identified inconsistencies and limited available information particularly with regard to “functional tolerances, vocational interests and skills”.

66.      In his oral evidence, Mr Younakhir indicated that he had been attending DEN every two weeks for about 12 months. Apart from an interview of about 30 minutes with a case manager, enquiring about the progress of his physical problems, Mr Younakhir had not had any other specific assistance, particularly the type of assistance that had been suggested by the JCA.

67.     Notwithstanding the identified difficulties with the evidence, on balance, I find that at the time of the application, Mr Younakhir’s impairment was such that in order to work at least 15 hours per week, he would have required significant support, and that the duration of the support had not been adequately determined but was likely to have been more than two years.

68.     Therefore, I am satisfied, that Mr Younakhir’s impairment prevented him from doing any work independently of a program of support within the two years from the date of his application.

69. It follows that I find section 94(2)(a) of the Act was satisfied.

70. I must now consider, whether I am satisfied that Mr Younakhir’s impairment was sufficient from undertaking training activity during the two years following from the time of application as required by section 94(2)(a)(i) of the Act.

71.      Mr Younakhir in his evidence, indicated, that he is currently undertaking a course at Granville TAFE in preparation for the accreditation of the National Accreditation Authority for Translators and Interpreters.

72.      Mr Younakhir attends TAFE for a total of five hours over two days per week.

73.     Mr Younakhir indicated that the exam is difficult to pass and that each attempt costs about $500. He also indicated that he did not pass his mid-semester assessment.

74.     I am satisfied, that Mr Younakhir could undertake training activity.

75. Whether, I can be satisfied, that training activity was unlikely to enable Mr Younakhir to do any work independently of a program of support within the two years from the date of his application as required by section 94(2)(b)(ii) is problematic.

76.     After having considered all the evidence, including the questionable assessments, and the nature of Mr Younakhir’s physical impairment, particularly with regard to his mobility, I am not convinced that training activity would have enabled Mr Younakhir to do any work independently of a program of support, particularly, within the two years from the date of his claim.

77. It follows that I am satisfied that the requirements of section 94(2)(b)(ii) of the Act, have been met.

CONSIDERATION

78.     In making my decision in this matter, I was mindful, that the evidence indicated that Mr Younakhir had developed, significant, physical impairment as a result of complications, arising from his degenerative lumbosacral spine disease and that he had been physically active and in full-time employment prior to his operation in February 2006. I also noted that at the time of his application for DSP Mr Younakhir was no longer working, suffered from pain with most physical activities and was left with a permanent neurological deficit effecting his right leg so that he was unable to walk without the aid of a walking stick.

79. There is no doubt, that at the time of his application for DSP, Mr Younakhir had a physical impairment and that section 94(1)(a) of the Act was satisfied .

80.     Deciding on the correct impairment rating that should have been assigned and whether Mr Younakhir had a continuing inability to work presented a number of problems.

81.      The evidence suggested that the assessment of Mr Younakhir’s functional loss and therefore the rating assigned under the Impairment Tables was unreliable, a conclusion that was strongly supported by the Respondent.

82.     In my view, this was largely due to the fact that, Mr Younakhir, had not had an appropriate medical assessment.

83. The introduction to the Impairment Tables in schedule 1B of the Act states that; “Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work” and that the “outcome of the application of these s following a medical assessment is termed work-related impairment”.

84.     The introduction goes on to state that the “Tables are function based rather than diagnosis based”, and that “The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating” and that “a rating is only 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”. The first step being “to establish a working diagnosis based on the best available evidence” and, if the condition is poorly defined, “arrangements should be made for investigation, before considering assigning an impairment rating”.

85.     Furthermore the introduction to Table 1 states; “the clinical judgement of medical officers based on history and examination is to be used but in cases where a reliable history is difficult to obtain despite discussions with the treating doctor” and the introduction to Table 2 states that; “Spirometry can be used where the medical officer feels it is more appropriate”.

86. It follows that the Act requires an impairment rating to be assigned only after a medical assessment and that this assessment should be done by a medical officer who arguably, is not the treating doctor.

87. In Mr Younakhir’s case the assessment that was done did not meet the requirements of the Act, and therefore, an appropriate impairment rating was not assigned.

88. Notwithstanding this difficulty, I am satisfied, that on the evidence before me Mr Younakhir should have been assigned a impairment rating of a least 20 points and therefore section 94(1)(b) of the Act was satisfied.

89.     The question of Mr Younakhir’s assessment with regard to his future work capacity was also problematic. The Respondent submitted that Mr Younakhir did not have a continuing inability to work and relied on the JCA assessment report dated 25 September 2006, that is, the same assessment report that was considered to be unreliable.

90.     The Respondent argued that the assessment as to the impairment rating and the assessment of Mr Younakhir’s work capacity should be seen as separate assessments and that only the assignment of the impairment rating should be considered unreliable.

91.     I had some difficulty with the Respondent’s submission.

92. Once it has been established that a person has a physical disability, the Act requires a medical assessment of the loss of functional capacity and then the assignment of an impairment rating under the Impairment Tables in Schedule 1B of the Act. The next step is the assessment of the effect of the impairment on a person’s ability to work. Logic would suggest that the assessment of the effect of the impairment, on a person’s ability to work, would depend on the nature and severity of the impairment. If the assessment of the impairment has been inadequate and is unreliable it follows that the assessment of the effect on the person’s ability to work is also likely to be unreliable.

93.     Furthermore, the proposition that the Respondent should be able to, rely on parts of what is purported to be a comprehensive assessment by an appropriately qualified JCA and to discard other parts as unreliable because they do not support the Respondent’s position, I find highly questionable.

94.     If I were to accept the Respondent’s submission and therefore accept the opinion of the JCA it is clear that the JCA had considered that Mr Younakhir was sufficiently impaired to require some program support for up to two years. Therefore, the only issue in dispute is the duration of such program support.

95.      I have already stated, that on my evaluation of the evidence, I have concluded that, in order to do any work independently, Mr Younakhir would have required program support for more than two years with or without training.

96. It follows that, notwithstanding the identified difficulties, I am satisfied that on balance, Mr Younakhir did have a continuing inability to work and that section 94(1)(a) of the Act was satisfied.

97. Furthermore, sections 94(1)(d) to 94(1)(f) of the Act were not in dispute.

DECISION

98.     For the aforesaid reasons, I find that, the correct and preferable decision is that at time of his application, Mr Younakhir did qualify for DSP.

99.     Therefore the decision of the SSAT is set aside.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander

Signed:         .................................sgd.................................................
  Associate: Felicia Daniele

Date/s of Hearing:  5 October 2007
Date of Decision:  23 November 2007
Counsel for the Applicant:        Self-Represented
Solicitor for the Applicant           
Counsel for the Respondent      
Solicitor for the Respondent:     George Lozynsky, Centrelink legal Services.