Youssef and Department of Family and Community Services - [2000] AATA 338

DECISION AND REASONS FOR DECISION [2000] AATA 338

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/36

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MERVAT YOUSSEF
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date2 May 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   (Sgd) Dr J D Campbell
  …………………………………..

Member

CATCHWORDS
SOCIAL SECURITY – disability support pension – low back pain – shoulder pain – temporary conditions – permanent impairments – assessment – inability to work

Social Security Act 1991, ss 94, 100, schedule 1B

REASONS FOR DECISION

Dr J D Campbell, Member

Mrs Mervant Youssef ("the Applicant"), in this matter seeks a review of the decision dated 1 December 1998 of the Social Security Appeals Tribunal which affirmed the decision dated 5 August 1998 of an authorised review officer. This latter decision affirmed two decisions dated 9 April 1998 and 6 June 1998 of delegates of the Secretary of the Department of Family and Community Services ("the Respondent") which rejected the Applicant's claim for Disability Support Pension.
A hearing was held before the Tribunal on 13 January 2000 at which the Applicant gave evidence and was self-represented. The Respondent was represented by Ms Schuster, an advocate from the Administrative Law Section of Centrelink. The Tribunal was assisted by an interpreter in the Arabic language.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Report of Physiotherapist, Ms L McNamara dated 21 December 1999 Medical Certificates from Dr G Tosson dated 11 February 1999 and 3 September 1999 Medical Certificates of referrals from Dr Guirgis dated 26 February 1999 Medical Report of Dr Lewis-Enright dated 6 October 1999 Medical Report of Dr J Phillips dated 29 November 1999 Respondent's Statement of Facts and Contentions dated 17 December 1999 Medical Report of Dr J Phillips dated 13 January 2000 T1-T26 P1-114 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit A4 Exhibit R1 Exhibit R2 Exhibit R3

ISSUES

The relevant issues in this matter are whether the Applicant has:
a) a physical, intellectual or psychiatric impairment; and
b) a combined impairment rating of 20 per cent or greater; and
c) has a continuing inability to work for at least 30 hours per week at award wages or above within the next two years; and either
i) the impairment of itself is sufficient to prevent the Applicant from undertaking educational or vocational or on-the-job training during the next two years; or
ii) because of the impairment, such training is unlikely to enable the Applicant to do any work for at least 30 hours per week at award wages or above within the next two years.

LEGISLATION

The relevant legislation is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) and (5) and the Schedule 1B tables for the assessment of impairment for disability support pension ("the impairment tables"), pre-April 1998.
BACKGROUND
The Applicant submitted a claim for Disability Support Pension on 18 March 1998. This was received by the Respondent on 18 March 1998 (T7). A treating doctor's report (Dr Tosson) was received by the Respondent on 18 March 1998 (T9). A further treating doctor's report (Dr Guirgis) was prepared on 23 March 1998 and forwarded to the Respondent (T10). An assessment of the Applicant's impairments was undertaken by Health Services Australia (Dr Roberts) on 3 April 1998 (T12). An initial determination to reject the claim was made by the Respondent on 9 April 1998 (T14). Following the receipt of further evidence a review by the Respondent resulted in the earlier decision being affirmed (T18). Reviews by an Authorised Review Officer on 5 August 1998 and by the Social Security Appeals Tribunal on 1 December 1998 affirmed the earlier decision to reject the Applicant's claim.
EVIDENCE
MRS YOUSSEF – THE APPLICANT
The Applicant told the Tribunal that she was born in Cairo on 8 August 1960, educated at school until age 20, after which she spent some three years at a technical institute learning to be a laboratory technologist in chemical analysis. After this experience, she was employed as a telephone operator, before coming to Australia in March 1991. The Applicant stated that she is married and has three children.
The Applicant state and that after her arrival in Australia, she undertook courses in English and childcare, with some work being obtained in childcare. On 8 May 1997, she commenced work at the Minto Child Care Centre for a period of three months. On 13 August 1997 she started to feel pain in her lower back and she consulted her doctor, who placed her on part time duties for two weeks. Further she stated that the pain continued, that she ceased work after two weeks, has done no work since and submitted a claim for compensation a few months ago.
Further, the Applicant in general comment told the Tribunal of pain occurring in her right shoulder some five years earlier and that she had been referred to Dr Guirgis for assessment and treatment. The Applicant stated that her husband, a civil engineer, had been looking for work since 1997.
In describing her back condition, the Applicant told the Tribunal that at the time it commenced she was doing general childcare work, when she felt that something moved in her back and she developed pain in the midline, lower back. She consulted her general practitioner who referred her to Dr Guirgis, who in turn referred her for physiotherapy, for x-ray and prescribed analgesics. The Applicant stated that she stayed at home, with symptoms of pain in the back which required her to lie on the floor and take pain killers. Further, the Applicant described that the pain commenced radiating to her left leg before any radiology was undertaken, and that numbness in the left leg occurred at the same time. The Applicant described the pain as coming and going each day, and each night she was experiencing difficulty with sleeping.
At the time of the hearing, the Applicant stated that the pain was still the same with radiation and numbness in the left leg; that she has worn a brace for more than one year, has used a tens machine since 19 October 1998 and as a result of medication, she had a peptic ulcer in May/June 1999 and is currently using Zantac, Naprosyn suppositories, one nocte, and voltarin ointment medications.
The Applicant told the Tribunal that she had experienced minor pain in her right shoulder some five years earlier and that after assessment and an injection by Dr Guirgis there was no further pain, until it recurred when she started working. On finishing work in August 1997, and after being referred to Dr Guirgis, she received physiotherapy for her back and then her shoulder. The Applicant stated that if she sleeps on her shoulder, it hurts; that the physiotherapy taught her to do exercises at home which she does; that her shoulder shows little improvement and that she experiences good days and bad days.
The Applicant stated that she is able to do little things around the house and that she accompanies her husband shopping. She is able to walk for 15-20 minutes, perhaps a half hour, can stand for five to ten minutes, has difficulty climbing stairs and is unable to dress. She stated that her husband does all the heavy work, including washing, hanging the washing out, making the beds and cleaning the car.
MEDICAL EVIDENCE
In her claim on 18 March 1998, the Applicant stated that the two disabilities from which she suffered were back pain and right shoulder pain; that they commenced on 30 July 1997, and that she experienced pain on sitting for long periods, on standing for more than 15 minutes and driving beyond thirty minutes (T8).
In a treating doctor's report, Dr Tosson stated that the Applicant has two conditions with the following clinical features:
i) disc prolapse at the level of L5/51 and L4/5, with severe lower back pain radiating to the left lower limb. Commenced in 1996, was long term and deteriorating; and
ii) chronic right shoulder pain due to arthritis in the acromio clavicular and gleno clavicular joints, with sore shoulders on working and radiation on lifting. Commenced in 1995, was long term and fluctuating.

Dr Tosson consider the Applicant able to return to full time work within six to 12 months, and that her work ability, apart from being absent from work two to three days per month, was otherwise unaffected (T9).

The radiological examinations revealed the following findings:
15 August 1997 21 August 1997 20 October 1997 6 February 1998 plain x-ray of lumbar spine revealed features consistent with disc degeneration disease at the L4/5 level. plain x-ray right shoulder revealed no evidence of a significant bone or joint abnormality (T3, p9). right shoulder ultrasound revealed no evidence of right shoulder abnormality (T4, p10). bone scan demonstrates an inflammatory process affecting the right shoulder involving the right acromio-clavicular and gleno humeral joints. CT scan of lumbar spine reveals disc herniation at L5/51 indenting upon the left antero-lateral corner of the spinal canal and coming into contact with the left nerve root. degenerative disc process occurring at the L4/L5 level (T6, p12)

In a further treating doctor's report Dr Guirgis, a consultant orthopaedic surgeon, described the Applicant's conditions and clinical features as:
i) P.I.V.D. L5-51 with left L5/51 nerve root irritation, with persistent left lumbar-sciatic syndrome. Long term and fluctuating; and
ii) Right supraspinatus tendonitis, with pain, stiffness in right shoulder. Long term and fluctuating.

Dr Guirgis considered that both of the Applicant's conditions were long term and that the Applicant would not be able to work for more than two years. He also considered that the Applicant's work ability is diminished in areas of work attendance, work endurance, diminished dexterity and mobility (T10).

In a medical assessment report dated 3 April 1998, Dr Roberts, a medical practitioner concluded that there was little hard evidence of left sided lumbar nerve root irritation despite the equivocal nature of the CT scan report. Further Dr Roberts was unable to find any evidence of right supraspinatus tendonitis, as there was no clinical evidence of painful arc syndrome and no abnormality of the rotator cuff on ultrasound. Dr Roberts found it difficult to assess any loss of movement of the thoraco-lumbar spine. Further, Dr Roberts found that there was no loss of digital dexterity, grip strength, limb movement, hand writing ability in the Applicant's upper limbs. In her assessment, Dr Roberts considered both conditions to be temporary, in that they had not been fully diagnosed, assessed and treated. She considered the Applicant currently fit to return to work for 30 hours per week in a range of light semi-skilled and lesser-skilled work categories and fit to return to work in moderate, semi and lesser-skilled categories within 24 months. Further Dr Roberts considered that the Applicant's impairments would not prevent her from undertaking educational or vocational training within the next two years (T12).
In further medical evidence Ms McNamara, a physiotherapist, reported on 22 May 1998, that the Applicant's symptoms have improved with loss of pain radiation and numbness to her left leg (T16). Dr Tosson confirmed that such amelioration of symptoms are temporary, in his report of 29 May 1998 (T17).
In a medical report dated 11 August 1998, Dr Davis, an occupational health practitioner, concluded that the Applicant had aggravated a pre-existing degenerative condition in her thoraco-lumbar spine and that she suffers some rotator cuff injury to her right shoulder. Dr Davis made particular assessment in relation to efficient use, which would indicate the assessments were for compensation purposes (T24).
In later medical evidence, Dr Tosson reported on 11 February 1999 that the Applicant had a few sessions of traction with some improvement, but that she is unable to sit for long periods because of low back pain (Exhibit A2). On 6 October 1999, Dr Lewis-Enright, a consultant occupational physician, considered the Applicant to have an established unequivocal diagnosis of multi-level lumbar-sacral disc herniation and degeneration, the presence of an inflammatory process in the right shoulder and an anxiety/depression. Dr Lewis-Enright then made a current assessment of 20 points for the thoraco-lumbar impairment, ten points for the shoulder impairment and ten points for the psychiatric impairment (Exhibit A4).
In a further report of 21 December 1999, Ms McNamara noted that she had ceased traction activities and commenced some exercises for the Applicant in a heated pool. Further the physiotherapy to the Applicant's right shoulder seemed to be of limited assistance and in Ms McNamara's view the Applicant's symptomology may be better managed by a chronic pain management group (Exhibit A1).
In a report dated 29 November 1999, based on a file review, Dr Phillips, a medical practitioner from Health Services Australia, concluded that there was radiological evidence of a disc lesion with some possible nerve root compression, but there is an absence of consensus between doctors as to whether there was clinical evidence of such compression; that the condition was now permanent, and that there was a reduction in the range of movement of the lumbar spine of 25 per cent and that the Applicant's impairment rating is five per cent under Table 5, five per cent under Table 4 and five per cent under Table 3 (Exhibit R1).
SUBMISSIONS
The Applicant contended that her two conditions of lumbosacral disc herniation and degeneration, with radiation of pain to her left leg, were permanent impairments at the date of her claim, as likewise the condition involving her right shoulder. It was the Applicant's submission that the appropriate impairment rating at the time of application was 20 per cent or greater, and that because of her impairments, she had a continuing inability to work. As such, it was the Applicant's submission that she was, at the time of application, qualified for Disability Support Pension.
The Respondent submitted that the Applicant's disabilities did not amount to conditions which attached a combined impairment rating of 20 per cent or greater and further that the Applicant did not have a continuing inability to work. As such the Respondent contended that the Applicant had not satisfied the qualification necessary for a Disability Support Pension.
CONSIDERATION AND FINDINGS
The Tribunal, in preliminary comment, notes that subsection 100(3) of the Act limits the Tribunal's considerations in this matter, to a period commencing with the date at which the claim is lodged and continuing for a period of three months from the date after the claim was lodged. As such, in this matter, the Tribunal can consider medical and other evidence existing at the date of lodgement, medical and other evidence available in the three months thereafter, and later medical and other evidence which in the Tribunal's opinion assists the Tribunal in better understanding the medical and other evidence detailed at and during the operative three month period.
The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) in part, (2), (3), (4) and (5), current at the time of the claim for Disability Support Pension, 18 March 1998.
"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)because of the impairment the person has a continuing inability to work; and
(d)he person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies
paragraph (c) ; or
(ii)has 10 years qualifying Australian residence, or has a qualifying        residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies       paragraph (c) the person:
(A)    is not an Australian resident; and
          (B)    is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident
94 (1A) Despite subsection (1) and subparagraph 96(1)(b)(iv), if a person claims disability support pension within 28 days of last being paid disability wage supplement, the person is qualified for the pension.
94 (1B) If:
(a)a person is qualified for disability support pension under subsection (1A); and
(b)the Secretary determines under section 114 that the person's claim is to be granted;
the person is qualified for disability support pension after the making of the
determination if:
(c)the person has a physical, intellectual or psychiatric impairment; and
(d)the person's impairment is of 20% or more under the Impairment Tables; and
(e)because of the impairment 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 form 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 purpose 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.

94 (5)

"educational, vocational training or on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"work" means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible
labour market.

94 (6)
A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension, disability wage supplement or a sickness allowance.
Qualification for disability support pension – permanent blindness
95 (1)
A person is qualified for a disability support pension if:
(a)the person is permanently blind; and
(b)the person has turned 16; and
(c) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (a); or
(ii)has 10 years qualifying Australian residence; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (a), the person:

(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.

The Tribunal after careful consideration, and having noted paragraph four in the introduction to the Schedule 1B Impairment Tables pre April 1998, which states:
"For an impairment rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. 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 that it will persist for the foreseeable future. This will be taken as lasting more than two years."

concludes that the medical evidence (that being the evidence of the Applicant, the evidence of Drs Tossan, Guirgis and Roberts, and the physiotherapy report of Ms McNamara) at the operative period are not of one mind in relation to diagnosis, treatment and stability of the Applicant's conditions.

In pursuing the basic medical facts, it is evident to the Tribunal and the Tribunal so finds that the Applicant had a degenerative process in the lumbosacral spine, with disc herniation at the level of L5/51 and disc degeneration at the level of L4/5, with clinical features of lower lumbar back pain with pain radiation and numbness to the left leg – the degree of symptomology being relieved to some degree by physiotherapy. In arriving at this finding the Tribunal gave weight to the evidence of the Applicant, the CT report of 6 February 1998, and the medical opinions of Drs Tosson, Guirgis, Davis, Lewis-Enright and Phillips (the latter three of a confirmatory nature). Whilst establishing a diagnosis at the operative time, the Tribunal further finds that during this relevant period there is evidence to suggest that some of the Applicant's clinical symptoms and signs showed a degree of variability, and while such variable symptomology may have other than clinical origins, the Tribunal is not convinced that there is sufficient evidence in this matter to allow the Tribunal to conclude other than that such variability is part of the clinical symptomology of the underlying degenerative process in the lumbosacral spine.
Further it is the Tribunal's finding that at the time of lodgement of the claim the Applicant's lumbosacral condition was permanent. In reaching such a finding it was the Tribunal's understanding of the clinical evidence nominated that a degenerative disc disease process was present, that symptomology with regard to pain and pain radiation may be variable, and that treatment would continue to be conservative unless in the much longer term surgical intervention was considered necessary because of further significant clinical deterioration.
As a result of the Tribunal's considerations, the Tribunal has concluded that the Applicant has a permanent impairment, namely degenerative disc disease of the lumbosacral spine with pain radiation to the left leg. In assessing the impairment rating, the Tribunal notes the clinical variability in the loss of range of movement of the thoraco lumbar spine as nominated by the various medical practitioners over time, and concludes that the Applicant has a ten per cent rating under Table 5.2 which equates to a 25 per cent loss of range of movement. In making such a finding the Tribunal has given weight to the clinical observations of Dr Roberts in the Applicant being able to climb on and off the couch unassisted, squatting easily to pick up a bag of x-rays and having a good gait and posture. Dr Roberts was unable to accurately assess loss of range of movement, because of difficulties with the process of assessment. Further the Tribunal was assisted in reaching such a finding after consideration of the medical report of Dr Davis and is limited findings in relation to thoraco lumbar movements, and the findings made by Dr Lewis-Enright some 13 months later when he reported a more significant loss of range of movement of the thoraco lumbar spine, together with wasting in the left thigh and left calf.
The Tribunal further finds that the Applicant has a five per cent impairment rating under Table 6, as the Applicant at the relevant time had evidence of sciatic pain occurring frequently in the left leg, the issue of frequent versus most of the time being determined by the evidence of the physiotherapist, and the variability of the clinical findings of the various doctors in relation to left sided nerve root initiation.
In considering the right shoulder during the operative period, the Tribunal in noting the onset of the symptomology as described by the Applicant, the incompatible diagnostic tests (x-rays negative, ultrasound negative, nuclear bone scan positive), the absence of clearly documented loss of function by either of the two treating doctors and the assessment by Dr Roberts demonstrating good mobility and no significant restrictions, concludes that the condition at the appropriate period has not been fully diagnosed, assessed or treated. The Tribunal in arriving at such an opinion notes that in later reports (Dr Davis and Lewis-Enright) the Applicant has refused further injection therapy for her right shoulder has a decreasing range of movement of the right shoulder, as well as indicating in evidence to the Tribunal a diminishing range of activities she can undertake. The Tribunal concludes that adequate investigation and diagnosis as well as assessment of the interrelated clinical conditions (eg anxiety/depression) are required before an appropriate assessment can be made.
As a consequence of the Tribunal's findings that the Applicant, during the relevant operative period, had a permanent impairment of lumbosacral degenerative disc disease with pain radiation to the left leg, a combined assessment of 15 per cent under Tables 5.2 and 6, and a temporary medical condition of painful right shoulder which according to the tables cannot have a rating assigned, the Tribunal finds that the Applicant has satisfied subsection 94(1)(a) of the Act in that she has a physical impairment. Further the Tribunal finds that the Applicant has not satisfied subsection 94(1)(b) of the Act in that the combined impairment rating is not 20 per cent or more.
For completeness, the Tribunal, considered whether the Applicant has a continuing inability to work and notes the opinion of the treating general practitioner where he states that the Applicant should be able to return to work in six to 12 months. The other treating practitioner, Dr Guirgis, is of a different opinion stating that it will be more than two years before the Applicant can return to work. Dr Roberts is of the opinion that the Applicant currently could return to work in a range of light semi-skilled and lesser-skilled capacities and to moderate semi-skilled and light skilled capacities within the next two years. On the evidence available to the Tribunal concerning the Applicant at the appropriate time, the Tribunal does find that the Applicant, at that time, did not have a continuing inability to work. In reaching such a finding the Tribunal has given consideration to the nature of the impairments found to exist at the operative time and to the preferred opinions of Drs Tossan and Roberts. The opinions of Dr Tossan and Roberts were preferred to that of Dr Guirgis, because of a more explicit detailing of symptoms and work incapacities and Dr Guirgis' apparent inaccuracy in dealing with the date of onset of the shoulder condition.
Further, from the opinion of Dr Roberts, and similarly by way of inference from the report of Dr Tossan, the Tribunal concludes that the Applicant is not prevented by her impairments from undertaking educational or vocational or on the job training within the next two years. The Tribunal in drawing such an inference from Dr Tossan's report relies upon the fact that he believes that the Applicant can return to work within six to 12 months but not in her previous work capacity. Dr Guirgis comments that the Applicant would not benefit from vocational training or rehabilitation at this stage, further indicating an absence of stability in Dr Guirgis' clinical assessment of the Applicant's diagnostic condition.
Further the Tribunal finds, that in view of the Applicant's age, previous training and work experiences and in spite of restrictions relating to lifting, bending and mobility arising from her impairments, that the Applicant having undertaken such training, will be likely to do work within the next two years. In arriving at such a finding the Tribunal again relies upon the opinions of Drs Tossan and Roberts.
As a consequence of the Tribunal's further considerations, the Tribunal finds that the Applicant does not satisfy subsections 94(2)(a) of the Act in that she does not have a continuing inability to work and further that she does not satisfy either subsection 94(2)(b)(i) or (ii) in that she does not have an ability to undertake training, with such training likely to enable her to do work within two years. As a result of the Tribunal's findings, the Tribunal concludes that the Applicant did not qualify for Disability Support Pension at the date of claim or during the three months thereafter.
DETERMINATION
The Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 January 2000
Date of Decision  2 May 2000
Representative for the Applicant              Self-Represented
Representative for the Respondent        Ms Schuster, departmental advocate