Zraika and Secretary, Department of Family and Community Services [1999] AATA 869 (19 November 1999)

Last Updated: 22 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 869

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1744

GENERAL ADMINISTRATIVE DIVISION )

Re ABDULKADER ZRAIKA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 19 November 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) John D Campbell

..............................................

J D CAMPBELL

Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - physical impairments - lumbar spondylosis - cervical spondylosis - impairment assessment - continuing inability to work - impairment table consideration.

Social Security Act 1991 - s 94, Schedule 1B

REASONS FOR DECISION

19 November 1999 Dr J D Campbell, Member

1. Mr A Zraika ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 26 October 1998. This decision, to not grant the Applicant a Disability Support Pension, affirmed the decision of an Authorised Review Officer ("ARO") of Centrelink dated 28 August 1998. The decision of the ARO affirmed an earlier decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 16 July 1998.

2. A hearing was held before the Administrative Appeals Tribunal on 8 October 1999 and the Tribunal was provided with the following written material:

Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ('T' documents) Medical Report of Dr M Guirgis dated 10 June 1999 Bankstown Physiotherapy & Hydrotherapy Centre report dated 26 March 1997 The Canterbury Hospital Physiotherapy Department report dated 22 July 1996 Supplementary Medical Report of Dr M Guirgis dated 29 July 1999 Respondent's Statement of Facts and Contentions dated 20 August 1999 T1 - T13 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit R1 Exhibit R2

3. The Applicant was unrepresented at the hearing and he provided oral evidence to the Tribunal. The Respondent was represented by Ms H Schuster, an advocate from Centrelink. The Tribunal was assisted by an interpreter in the Arabic language.

ISSUES

4. The issues before the Tribunal were:

(a) whether the Applicant qualified for Disability Support Pension in that the Applicant had:

(i) a physical, intellectual or psychiatric impairment; and

(ii) the Applicant's impairment was twenty points or more under the Impairment Tables; and

(iii) the Applicant has a continuing inability to work.

LEGISLATION

5. The relevant legislation is the Social Security Act 1991 ("the Act") and, in particular, subsections 94(1), (2), (3) and (5) of the Act and the Impairment Tables contained within Schedule 1B.

APPLICANT'S EVIDENCE

6. The Applicant told the Tribunal that when he was working in 1983/1984, as he was going to the toilet he met a forklift as he was going through a door. The Applicant stated that he was then taken to Canterbury Hospital, where he was treated, and that since then he has not been able to work or do anything; that he has applied for jobs and no will give him a job. The Applicant further stated that he used walking sticks because of his left leg after his accident and that in 1985 he was awarded $47,000 in workers' compensation.

7. The Applicant was born in Lebanon in 1955 and received an education until 17 years of age, after which he tried to go to University but instead worked and helped his father who operated a taxi. The Applicant stated that he came to Australia in 1977, is not married and worked as a labourer in a factory for three years, then in a second factory for 1½ years followed by work as a machine operator for 2½ years. The Applicant further stated that he lives alone in a rented flat and that his sister and friends help him, undertaking cleaning and household tasks.

8. The Applicant described to the Tribunal that as a result of the accident he felt completely different; that he is unable to walk properly, is in severe pain and that he cannot drive for more than 10 minutes; that his neck is really sore all the time, especially when turning to the left side, when soreness extends to the left shoulder; that his back is very sore at the lower back (midline posteriorly) with some pain down to the front of both legs; and that he has pain and clicking in his left ankle. The Applicant further stated that he uses one to three pain killers a day with none on some days; that the pain is worse in cold weather and that he can walk 10-15-20 minutes, after which he rests because his legs and back become sore; that he sleeps a lot, but during the night wakes up every two to three hours; that his day is spent sleeping and walking; and once or twice a week he attends the local club.

9. In response to questions asked in cross-examination, the Applicant stated that he had been on Newstart Allowance since 1989 and is not looking for work as he has certificates from doctors for the last two years. Further, the Applicant stated that his back pain started in 1983, and his neck pain in 1990, with increasing severity of neck pain occurring in 1993. The Applicant told the Tribunal that he is willing to work, but no-one would employ him; that when he applies for work he declares his injuries; and further, that he is unable to do any heavy duties, including heavy lifting and bending. The Applicant further stated that he had undertaken a three month welding course after the accident but lasted only a month because of back pain.

MEDICAL EVIDENCE

10. The Applicant's treating doctor, Dr N A Assad detailed a history of low back pain developing in 1980 with in 1985, a radiological examination demonstrating severe lumbar spondylosis, when he examined the Applicant on 8 December 1997. Further, Dr Assad stated that the Applicant developed neck pain and bilateral shoulder pain in 1993 with radiological examination demonstrating moderately severe cervical spondylosis. Dr Assad concluded that the Applicant's conditions were long term and would deteriorate, with the Applicant unable to bend or lift heavy objects. It was Dr Assad's opinion that the Applicant would only be able to work part-time after a period of more than two years had elapsed (T4).

11. Dr Lamond, when examining the Applicant at the behest of the Respondent on 24 June 1998, noted that the Applicant had a history of lumbar spondylosis since 1985 and that the Applicant was unable to bend or lift greater than 10 kilograms. Dr Lamond further noted that the Applicant complained of pain radiating to both legs, left more so than right; that the Applicant can sit, stand or walk for 10-15 minutes. Further, Dr Lamond detailed a history of cervical spondylitis since 1993 with pain radiating to both shoulders and to the thoracic region of his back. Dr Lamond also noted that treatment for both conditions involved physiotherapy and analgesics (T5).

12. Upon examination, Dr Lamond found the Applicant to have a minimal restriction of range of cervical movements (T5, p65) and a loss of one quarter of the normal range of thoracolumbar movements (T5, p65); that the Applicant was not fit for his normal work (fork-lift driver) (T5, p66), but that he was fit for a range of light and moderate semi-skilled and less skilled jobs (T5, p67). As a result of his examination, Dr Lamond concluded that the Applicant's impairment rating was 10 points, nominating 10 points for lumbar spondylosis under Table 5.2 and zero points for cervical spondylosis under Table 5.1.

13. Dr M Guirgis, a consultant orthopaedic surgeon, examined the Applicant on 19 May 1999 and, in his reports (Exhibit A1 and R1), noted the Applicant's symptoms as:

"· Neck pain and stiffness.

· Painful stiffness and heaviness of the left shoulder.

· Lower back pain and stiffness.

· Attacks of left sciatic radiation varying in severity and distal extension from one attack to another.

· Pain and clicking in the left ankle."

14. Upon examination, Dr Guirgis found:

Cervical Spine : Tenderness over cervical spine - movements were restricted to 25% of the normal range.

Lumbar Spine : Tenderness over left sacroiliac joint and the lower three lumbar spines and spaces. Movements were restricted to 30% of the normal range.

Left Shoulder : Tenderness over the supraspinatus insertion into the top of the greater tuberosity of the humerus. Movements of the gleno-humeral component of the shoulder joint were normal. No evidence of reduced abduction power against resistance.

Left Ankle Joint : No restriction in range of movements but some tenderness over the anterior talofibular ligament.

15. In concluding his assessment of impairments, Dr Guirgis found the Applicant to have:

"· Cervical spine (Table 5.1) 5%. Loss of about one quarter of normal range of movement.

· Lumbar spine (Table 5.2) 10%. Loss of about one quarter of normal range of movement.

· Chronic pain in any joint or combination of joints. (TABLE 6) 10%."

16. In his further report of 29 July 1999 (Exhibit R1), Dr Guirgis concluded that the Applicant, by virtue of his disabilities was:

* permanently unfit for work or other activities involving heavy lifting, repetitive bending or twisting, or prolonged unrelieved static posturing of the trunk;

* prevented from performing other types of work for which he is currently skilled for at least 30 hours a week for the next two years. (Repeated acute episodes causing difficulty for job timetable and job maintenance.); and

* in the light of the effects of chronic pain syndrome, language limitations, previous work history, educational attainment, the Applicant would not have any realistic prospects of retraining or obtaining physically suitable work in the open labour market.

DISCUSSION AND FINDINGS

17. In considering this matter the Tribunal notes that there is relative consistency contained within the various medical opinions rendered as to the nature and diagnosis of the cervical and lumbar spine disabilities. Before furthering the medical analysis, it is deemed pertinent to detail the legal parameters appropriate to this matter.

18. Section 94 of the Act defines the qualification for Disability Support Pension as follows:

"94(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

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

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

...

94(2) A person has a 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 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(5) In this section:

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

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

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."

19. The Tribunal notes that all the medical opinions tendered in evidence nominate the presence of both cervical and lumbar spondylosis and, accordingly, the Tribunal finds that the Applicant does have a physical impairment, thereby satisfying subsection 94(1)(a) of the Act.

20. In considering subsection 94(1)(b) of the Act, the Tribunal notes the opinions of Drs Assad, Lamond and Guirgis as to the nomination of impairments and to their assessments (latter two doctors only). In making an assessment of the various impairments, the Tribunal will deal with each impairment separately and details the findings of fact, before applying those findings to the appropriate table to arrive at a points assessment. It is also noted by the Tribunal that Dr Lamond has made his assessment, using the current Schedule 1B tables, while Dr Guirgis has employed the earlier schedule 1B tables. As the Application for disability support pension and the initial medical assessment occurred after 1 April 1998, the Tribunal considers the correct assessment tables to be utilised are the current tables (post 1 April 1998).

(a) Cervical Spine:

(i) history of neck soreness posteriorly, especially when turning to left side, with soreness extending to left shoulder (Applicant);

(ii) minimal restriction of range of cervical movements (Dr Lamond); and

(iii) tenderness over lower cervical spines and spaces and movements restricted with a loss of quarter of normal range of movement (Dr Guirgis).

The Tribunal concludes that the Applicant has the physical impairment of cervical spondylosis with a loss of quarter of normal range of cervical movement, the Tribunal preferring the more precise opinion of Dr Guirgis, recognising in turn the indefinite nature of Dr Lamond's minimal restriction description.

The Tribunal, in assessing this impairment notes Table 5.1 of the Impairment Tables which states:

"Table 5.1 Rating NIL FIVE TEN TWENTY THIRTY FORTY Cervical spine Criteria Normal or nearly normal range of movement. Loss of quarter of normal range of movement. Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain. Loss of three-quarters of normal range of movement and constant neck pain. Loss of almost all movement, or complete ankylosis in position of function. Ankylosis in an unfavourable position, or unstable joint."

As a consequence, the Tribunal finds that the cervical spondylosis impairment is assessed at 5 points, there being loss of quarter of normal range of movement.

(b) Thoraco-lumbar Spine:

(i) the back is very sore at the lower back (midline posteriorly) with some pain down to front of both legs (Applicant);

(ii) loss of quarter range of normal range of movement, with pain radiating to both legs, left more so than right (Dr Lamond); and

(iii) tenderness over left sacro-iliac joint and the lower three lumbar spines and spaces with movement restricted to 30% of normal range (Dr Guirgis).

The Tribunal, in considering the above material, and having noted that Dr Guirgis in his assessment concluded that the Applicant had loss of about one quarter of normal range of movement, concludes that the Applicant has the physical impairment of lumbar spondylosis with episodic radiation of pain down the front of both legs, the left leg being more affected than the right leg.

The Tribunal in assessing this impairment notes Table 5.2 of the Impairment Tables which states:

TABLE 5.2 Rating NIL FIVE TEN TWENTY FORTY Thoraco-lumbar-sacral spine As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments. Criteria Normal or nearly normal range of movement. Loss of one-quarter of normal range of movement. Loss of one-quarter of normal range of movement as well as back pain or referred pain: with many physical activities and with standing for about 30 minutes and with sitting or driving for about 60 minutes. Or Loss of half of normal range of movement. Loss of half of normal range of movement as well as back pain or referred pain: with most physical activities and with standing for about 15 minutes and with sitting or driving for about 30 minutes. Or Loss of three-quarters of normal range of movement. Ankylosis in an unfavourable position, or unstable joint."

The Tribunal, in observing that there was essentially no difference between Drs Lamond and Guirgis (albeit in under the new and old impairment tables respectively), concurs with their assessment of impairment, and concludes that the Applicant has a ten point impairment rating arising from the loss of one quarter of normal range of movement as well as back pain and episodic referred pain to his legs.

(c) Shoulder:

(i) history of neck pain especially when turning to the left side when soreness extends to left shoulder (Applicant);

(ii) cervical pain with radiation to both shoulders (Dr Lamond);

(iii) painful stiffness and heaviness of left shoulder (Dr Guirgis); and

(iv) movements of the gleno-humeral component of the shoulder joint were normal. No evidence of reduced abduction power against resistance. Some tenderness over supraspinatus tendon insertion (Dr Guirgis).

The Tribunal in noting the medical evidence as listed, concludes that the only indication of difficulty with the left shoulder relates to tenderness of the supraspinatus tendon at the point of insertion into the top of the greater tuberosity of the humerus (Dr Guirgis). Further, the Tribunal notes the other findings by Dr Guirgis and concludes that there is no evidence of demonstrable loss of strength, mobility, coordination, dexterity and/or sensation in the upper limb. In accordance with Table 3 of the Impairment Tables, the Tribunal concludes that in the light of the medical findings, the Applicant has a nil rating for his left shoulder.

(d) Left Ankle:

(i) pain and clicking in the left ankle (Dr Guirgis, Applicant);

(ii) no restriction of range of movement but some tenderness over the anterior talofibular ligament (Dr Guirgis); and

(iii) able to walk for 10-15-20 minutes (Applicant).

The Tribunal, in noting the medical evidence, concludes that there is no restriction on the range of movement of the left ankle. Accordingly, the Tribunal finds there is no loss of function and, in accordance with Table 4 of the Impairment Tables, finds that the Applicant has a nil rating for his left ankle.

21. The Tribunal again notes that Dr Guirgis in both his reports of 10 June 1999 and 29 July 1999 has made an assessment using the language and ratings of the old Schedule 1B impairment tables. The Tribunal, in making an assessment under the new Schedule 1B impairment tables, is mindful that the issue of pain and soreness is intrinsic to the issue of function and spinal or joint movement and further, that pain radiation is explicitly nominated under table 5.2. The Applicant, in evidence to the Tribunal, stated that he takes 1, 2 or 3 Analgesic tablets per day to control pain and/or discomfort. On other days he takes none. This evidence, together with the Applicant's medical history to the various doctors and the findings at examination by Drs Lamond and Guirgis, suggests to the Tribunal that the issue of pain is appropriately assessed within the Applicant's cervical and thoracolumbar spinal impairments. As a consequence, it is the Tribunal's finding that there is a nil rating in an assessment under table 20 of the new Schedule 1B impairment tables.

22. It is the Tribunal's finding that the Applicant has a combined impairment rating of 15 points, 5 points arising from the impairment of the cervical spine and 10 points arising from the impairment of the thoracolumbar spine. Accordingly it is the Tribunal's conclusion that the Applicant has failed to satisfy subsection 94(1)(b) of the Act in that his impairment is less than 20 points. Therefore the Applicant is unable to qualify for a Disability Support Pension in accordance with section 94(1) of the Act.

23. While noting that the Applicant has, by virtue of his failing to satisfy subsection 94(1)(b), failed to qualify for a disability support pension, the Tribunal, for the sake of both completeness and for the understanding of the Applicant, believes it appropriate to deal with the other criteria, which the Applicant would have to satisfy in the event his impairment rating satisfied subsection 94(1)(b).

24. The Tribunal notes that Dr Guirgis considers the Applicant to be permanently unfit for work, or other activities involving heavy lifting, repetitive bending or twisting, or prolonged, unrelieved static posturing of the trunk. Dr Assad and Dr Lamond draw similar conclusions although expressed in different words. The Tribunal accepts these medical opinions and concludes that the Applicant is unfit for duties or work involving such activities.

25. Further, the Tribunal notes that Dr Guirgis considers the Applicant, by virtue of his disabilities, to be prevented from performing other types of work for which he is currently skilled for at least thirty hours per week for the next two years. In support of his opinion, Dr Guirgis reasons that repeated acute episodes will cause difficulty with attendance and maintaining a job. Dr Lamond is of a different view and states that the Applicant has the capacity to work at least thirty hours per week in a variety of light and/or moderate skilled or lesser skilled jobs (T5, p67). The Tribunal, while noting Dr Guirgis' reasoning, concludes that with the range and rate of impairment rating found, the opinion expressed by Dr Lamond is to be preferred. As a consequence, the Applicant is found by the Tribunal not to satisfy subsection 94(2)(a) of the Act in that the impairments nominated are not sufficient of themselves to prevent the Applicant from doing any work within the next two years.

26. Further, the Tribunal notes that Dr Guirgis considers that the Applicant, by virtue of his disabilities, their effects and other limitations particular to the Applicant, including language, educational attainment and work history, would not have any realistic prospects of retraining. Dr Lamond, at T5, p69, considers that the Applicant's impairments do not prevent him from participating in an educational or vocational training program during the next two years, although his participation in such a program will be affected by his ability to sit or stand for lengthy periods (for more than 30 minutes). The Tribunal, in noting the Applicant's disabilities, concludes that the impairments of the Applicant do not prevent him from undertaking educational or vocational training during the next two years, with such training (despite the impairments) being likely to enable the Applicant to do work within the two years. The Tribunal, in reaching such a conclusion, considers that Dr Guirgis has given weight to irrelevant matters, such as language, education and previous work history, in arriving at his opinion, as opposed to considering the impairments of themselves being sufficient to prevent the Applicant from undertaking such educational, vocational or on the job training within the two year timeframe.

27. Accordingly, the Tribunal concludes that as the Applicant has failed to satisfy the criteria contained in subsection 94(1)(b) and (c) of the Act, the Applicant is not qualified for Disability Support Pension.

DETERMINATION

28. The decision under review is affirmed.

I certify that the 28 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 8 October 1999

Date of Decision 19 November 1999

Representative for Applicant Applicant self-represented

Advocate for the Respondent Ms H Schuster, Centrelink