Elrich and Department of Family and Community Services [2002] AATA 123 (27 February 2002)

Last Updated: 28 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 123

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/532

GENERAL ADMINISTRATIVE DIVISION )

Re MAHMOUD ELRICH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 27 February 2002

Place Sydney

Decision The decision under review is affirmed.

[SGD] Dr J D Campbell

Member

CATCHWORDS

Social Security - disability support pension - application - assessment - disabilities - 20 points or more - continuing inability to work

Social Security Act 1991- sections 94, 100

REASONS FOR DECISION

Dr J D Campbell, Member

1. In this matter, Mr Mahmoud Elrich ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 2 April 2001, which affirmed the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 10 March 2000 to reject the Applicant's claim for a disability support pension ("DSP"). The latter decision had been affirmed by an authorised review officer in a decision dated 11 September 2000.

2. A hearing was held before the Tribunal on 23 November 2001 at which the self-represented Applicant presented oral evidence. The Respondent was represented by Mr G Lozynsky, an advocate from the Advocacy and Administrative Law Section at Centrelink.

3. The following material was placed into evidence before the Tribunal:

Exhibit No Description Date

T1-T18 pp1-138 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1 Medical report by Dr Guirgis 9 August 2001

A2 Radiology report by Dr Connolly 1 February 2001

R1 Respondent's Statement of Facts and Contentions 20 November 2001

R2 Medical report by Dr Keen 19 September 2001

issues

4. The relevant issues in this matter are:

(a) whether the Applicant has a physical, intellectual or psychiatric condition;

(b) whether the Applicant has an impairment rating of 20 points or more under the Impairment Tables; and

(c) whether the Applicant's impairment is of itself sufficient to prevent the Applicant:

* from doing any work for the next two years; and

* from undertaking educational, vocational or on-the-job training during the next two years; or

* whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

legislation

5. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 94, 100(3) and the tables for assessment of work-related impairment for DSP ("Schedule 1B Impairment Tables").

background

6. The Applicant lodged a claim for DSP on 31 January 2000 and listed his disabilities as neck and lower back disc pain, kidney pain, diabetes and elbow pain. The Applicant claimed that these disabilities made it difficult for him to stand, walk, lift, carry, bend and interact with others all the time; to sit, drive a car, use public transport, operate everyday appliances and to remember sometimes; and to concentrate, sleep and to attend work or other appointments often (T11).

7. A treating doctor's report by Dr Selim was completed on 27 January 2000 in which he nominated the Applicant's conditions as (T8):

* lumbo-sacral disc pain commencing in 1999;

* cervical spine disc pain commencing in 1999;

* bilateral renal stones with date of onset 1999;

* diabetes mellitus with date of onset 1996; and

* bilateral tennis elbow with date of onset 1995.

8. In the same report Dr Selim stated that it would be two or more years before the Applicant would be able to return to any kind of full or part-time work. Further, Dr Selim stated that the Applicant's disabilities would affect his ability to perform any kind of work over the next two years in the following manner (T8):

* would be absent from work for four or more days per month;

* is unable to work full days because of endurance problems;

* can understand and follow instructions less than half the time;

* is unable to travel or move around independently;

* has substantially diminished dexterity;

* would not be able to alternate between tasks; and

* is unable to lift, carry and move objects.

9. A CT scan of the Applicant's lumbo-sacral spine was reported upon by Dr Acton, a consultant radiologist, on 28 January 2000 in the following terms (T9):

"...No significant disc protrusion can be identified upon the canal and there is no evidence of canal stenosis."

10. A plain x-ray of the cervical spine was performed on 31 January 2000 and reported upon by Dr Connolly, a consultant radiologist, who concluded (T10):

"Mild to moderately severe degenerative changes are present."

11. In a whole person assessment report dated 11 February 2000 Dr Kamenyitzky, a medical adviser with Health Services Australia, stated (T12):

"This 45 year old man was seen for a DSP new claim.

He last worked full time in 1994 as a taxi driver and stopped the job after 16 years when his young son was seriously injured in a car accident and spent 9 months in hospital. He still has a taxi license so he must be doing some shifts, which is a requirement to renew the licence.

He has pain in the cervical and lumbar spin (sic) but only has Xray abnormalities in the neck.

He has lost ¼ of the neck movements but the lumbar spine moves normally.

He also had tennis elbow a few years ago but this has now resolved and he had normal and pain-free movements today.

He has diabetes that is well controlled and kidney stones that are being treated at present but cause no disability.

His disabled son is now 9 and lives at home with the family. He weighs almost 39 kg and has to be lifted 5 times a day for personal care needs. The father does all of the lifting and helps with the general care.

He has a combined impairment rating of 5 and is medically fit for his former work as a taxi driver.

He is fit for vocational training but does not need vocational rehabilitation.

The TDR has obviously been swayed by the non-medical issues in this case."

12. On 10 March 2000 the Respondent advised the Applicant that his claim for DSP was not successful (T13).

13. In a medical report dated 8 June 2000, Dr Sanki, a general surgeon and accredited endoscopist, stated that the Applicant suffered from the following disabilities (T14):

* diabetes mellitus;

* diverticulosis of the ascending colon and polyps of the rectum;

* ulcerative colitis as shown on colonscopy in May 1999 by Dr Carrick;

* injuries to his right shoulder, neck and back from an accident dated 21 October 1998; and

* right renal stones and right renal cysts.

14. In a medical assessment report dated 27 June 2000 arising as a consequence of a file review, Dr Thomas, a medical adviser with Health Services Australia, concluded that the Applicant is physically and psychologically capable of full-time work (T15).

15. The Applicant was advised on 3 August 2000 by the Respondent that his claim for DSP remained unsuccessful (T16).

16. On 11 September 2000, an authorised review officer wrote to the Applicant affirming the decision not to grant him DSP (T17).

17. In a report dated 8 February 2001, Dr Guirgis, a consultant orthopaedic surgeon, observed on examination of the Applicant that (T18):

* movements of the cervical spine were restricted 25 per cent of the range;

* there was no neurological deficit in the upper limbs;

* tenderness over the lateral epicondyle of the right humerus and the common extensor belly, but with normal movements of the right elbow;

* limitation of movement of the dorsal spine by 35 per cent in all directions; and

* limitations of movement of the lumbar spine by 30 per cent of the range.

18. Dr Guirgis considered that the Applicant's disabilities should be assessed under the Schedule 1B Impairment Tables as:

* loss of cervical spine function -- 5 points (Table 5.1);

* loss of lumbar spine function - 10 points (Table 5.2); and

* upper limb function - 10 points (Table 3). Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function and handling.

Dr Guirgis considered that the Applicant is unlikely to work again in any capacity and that he is unfit for rehabilitation or training for sedentary light work due to his chronic pain syndrome (T18).

19. On 2 April 2001 the SSAT reviewed the Applicant's claim for DSP considering all the material available, and affirmed the earlier decision that the Applicant's claim for a DSP be rejected (T2).

applicant's evidence

20. The Applicant told the Tribunal that he was born in Tripoli, Lebanon in 1954 and went to school until age 10, after which he worked as a motor mechanic for six years. In 1972 the Applicant came to Australia, one of his eleven brothers and one sister having preceded him to Australia. The Applicant stated that he first worked as a motor mechanic for five months, then he made windows and frames for one year and he next worked in a foundry at Bankstown for two years.

21. The Applicant stated that he married in 1974. He worked again as a motor mechanic for a few months, prior to working in 1975 for one year in Moniers. The Applicant stated that he suffered an injury to his left ankle in 1976 and received a compensation payment. He then worked with Chloride Batteries for seven years. In 1982 the Applicant suffered injuries to his left wrist and left shoulder and was off work for twelve months and received a lump sum compensation payment in respect of these injuries.

22. The Applicant stated that he commenced full-time taxi driving in 1984 and he continued doing this until the occurrence of two events in 1994. In the first event, his son was hit by a car and was seriously injured. His son was in hospital for many months, having suffered severe head injuries. In the second event the Applicant was involved in a motor vehicle accident in late December 1994 in which he injured his neck, back and both elbows.

23. The Applicant stated that he has not worked since 1994, and spends his time caring for his bedridden invalid son. Initially he received a special benefit payment, but this ceased when he received a lump sum accident compensation payment. After that time he has received newstart allowance. The Applicant stated that he owns his own home and car.

24. The Applicant told the Tribunal that he rises about 5.30AM each day and feeds his invalid son at 7.30AM, prior to taking the other children to school. He toilets and prepares the disabled son who attends a special school between 9.30AM and 2.30PM Monday to Friday. The Applicant also feeds, bathes and nappy changes his invalid son before midnight. The Applicant stated that he has six children aged 11 to 26 with the disabled child now aged 15.

25. In relation to his various disabilities, the Applicant stated the following:

(a) diabetes mellitus - diagnosed in 1995 and treated with diet and tablets;

(b) cervical spine - commenced in 1993/94 as a result of a whip lash injury. In cold weather his neck becomes painful and stiff. He experiences pain in the posterior aspect of his neck, which spreads to the right shoulder and down the neck to the back. He has a bad period every few months, which lasts for seven to ten days and which is helped by physiotherapy and analgesics (panadol/digesic);

(c) lower back - experiences pain if he sits too long (longer than half an hour), stands too long (longer than half an hour), drives for too long (more than one hour), and walks too far (greater than 400 metres). He has difficulty with lifting; no real difficulty with stairs; can care for himself; and accompanies his wife shopping and is able to carry a few shopping bags;

(d) psychiatric condition - Applicant described his psychiatric condition as a reaction to his son's injury and consequences, and that this condition has improved over the last few years. He sleeps reasonably well, with an occasional disturbance associated with some pain in his lower back, left elbow and neck;

(e) elbows - discomfort in both elbows, left greater than right - episodic in nature over the last five years with the discomfort being more constant in the left elbow. This is usually better in summer; and

(f) kidney stones - no significant symptomatology.

clinical evidence

26. In a report dated 1 February 2001, Dr Connolly, a consultant radiologist, detailed the following conclusions (Exhibit A2):

* cervical spine - degenerative changes are present; and

* left elbow - no evidence of joint effusion, ultrasound left elbow - appearances consistent with chronic left-sided tendonitis in relation to the common extensor tendon.

27. In a further report dated 9 August 2001, Dr Guirgis detailed that the Applicant suffered from the following conditions (Exhibit A1):

* chronic mechanical derangement of the cervical, thoracic, and lumbar areas of the spine caused by discopathic and spondylotic changes;

* chronic external epicondylitis in the right and left elbows (right elbow >left elbow); and

* maladjustment disorder with depression.

Further, Dr Guirgis did not alter his assessment of the Applicant's disabilities or his reasoning for such nominated in his report of 8 February 2001 and which are detailed in paragraph 18 of this decision. Similarly, Dr Guirgis commented in relation to the Applicant's continuing inability to work.

28. In a medical report dated 19 September 2001, following a file review, Dr Keen, a senior medical adviser with Health Services Australia, detailed the Applicant's impairment ratings for the four conditions in question as follows (Exhibit R2):

"(i) Cervical spine function. For this condition, the previous HSA assessment, the SSAT, and Dr Guirgis all agree Mr Elrich has lost around ¼ of the normal range of cervical movements, and that an impairment rating of 5 under table 5.1 is appropriate. This is consistent with radiological findings of mild to moderate degenerative changes.

(ii) Lumbar spine function. Dr Guirgis documented his findings to be that of loss of about ¼ of the normal movement range. However, the HSA assessment of 11/2/00 had previously found him to have normal movement. This discrepancy was explored by the SSAT, who document that Mr Elrich was still able to reach and touch his toes most of the time, and that consequently he retained near normal movement range and hence rated an impairment of 0. This is consistent with the absence of any significant changes on x-ray or scan.

(iii) Upper limb function. There is some conflict in information here. The HSA assessment noted a history of pain in both elbows, but with good response to cortisone injection and no functional loss at the time of assessment. A rating of 0 under table 3 was considered appropriate. Dr Guirgis noted predominantly rightsided symptoms and gave a rating of 10 for moderate interference with dominant arm function, but without providing any detail about the functional loss Mr Elrich experiences. However, the SSAT recorded that Mr Elrich had mainly left sided symptoms when seen in April, his right sided symptoms having lessened considerably following his cortisone injection. He is documented to have some difficulty in heavy lifting and repetitive use, but is able to drive for 2 hours at a time and it appears his activities are limited more by his neck complaints than his arms. Ultrasound undertaken in February 2001 indicates a mild left tendonitis. There is thus some conflict in the reports, and the SSAT appears to have neglected to consider Mr Elrich's elbow condition in addressing his impairment. However, they provide the most recent as well as the most detailed description of his functional loss, and based on this I would consider Mr Elrich to rate at most an impairment of 5 under table 3 for moderate loss of function of his non-dominant arm. There is no evidence of suggestion he has significant loss of hand or arm function.

(iv) Possibly impaired psychiatric function (this being out of Dr Guirgis' area of expertise). Old reports of Dr Ali (1998) and Dr Selim (1998) refer to a pathological grief reaction. This condition was not mentioned on more recent TDRs, and to the SSAT Mr Elrich reported that counselling had assisted greatly, and that he no longer required any treatment and that psychological problems were no longer an issue. Based on the information available, the conclusion of the SSAT that this rates an impairment of 0 under table 6 is appropriate."

submissions

29. The Applicant contends that he has particular disabilities, that these are physical and psychiatric impairments and when assessed they exceed 20 points or more. Further, the Applicant contends that he has a continuing inability to work. The Applicant relies upon the opinions of Dr Guirgis and Dr Selim to support his contentions.

30. The Respondent contends that the Applicant's impairments when assessed rate less than 20 points and that the Applicant does not have a continuing inability to work. In support of these contentions the Respondent relies upon the radiological evidence and the opinions of Drs Kamenyitzky, Thomas and Keen.

consideration and findings

31. In preliminary consideration the Tribunal notes the circumstances inherent in this matter and the resolve demonstrated by the family, and in particular the Applicant, in meeting the continuing care needs of the disabled son, injured in such tragic circumstances in 1994. The Tribunal considers the Applicant presented his story in a frank and unembellished manner.

32. In addressing the issue of the Applicant's disabilities at the relevant period, namely at the time of lodgement of his claim and for a period of three months commencing the day after lodgement of his claim for DSP pursuant to section 100(3) of the Act (effective at the time of the original decision), the Tribunal finds that the following impairments with the following clinical features existed:

(a) degenerative changes in cervical spine -

* pain in neck posteriorly and extending to right shoulder and downwards between the shoulder blades;

* x-ray evidence of degenerative changes in cervical spine;

* loss of quarter of normal range of movement;

* episodic, with symptoms worse in cold weather, episodes of seven to ten days.

(b) lower back pain -

* pain in low back posteriorly when he sits or stands for more than half an hour, drives for an hour or walks further than 400 metres as well as with lifting;

* able to use stairs without difficulty, care for himself, shop with his wife;

* CT scan of lumbo-sacral spine - no disc protrusion or canal stenosis;

* normal or nearly normal range of movement.

(c) right and left elbow -

* intermittent discomfort and pain in both elbows left greater than right - usually better in summer;

* ultrasound left-sided tendonitis;

* no upper limb neurological deficit, nor clinical evidence of difficulty in use of upper limbs or loss of power and/or dexterity.

(d) diabetes mellitus -

* diagnosed in 1995 and treated with diet and tablets;

* no on-going symptomatology or complication.

(e) psychiatric disorder -

* some evidence of reactive disorder post son's injury in 1994;

* resolved and no complaints of current symptomatology;

* sleeps well.

(f) renal stones -

* diagnosed - no current symptomatology; for lithotrypter treatment.

33. The Tribunal notes the following statutory framework in which this matter is to be considered.

Section 94 of the Social Security Act 1991 sets out the qualification for DSP. It reads 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;

...

94(2) A person has a "continuing inability to work" because of an impairment if the Secretary is satisfied that: (a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

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

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

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

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

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

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

94(5) In this section:

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

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

"work" means work:

(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."

34. The Tribunal has already concluded that the Applicant suffers from a number of impairments and accordingly finds that the Applicant satisfies section 94(1)(a) of the Act.

35. The Tribunal has already made findings as to what impairments and their associated clinical features exist. In so doing the Tribunal recognised that the clinical material available at the time of lodgement of the application and for a period of three months thereafter was the more relevant material, with material documented thereafter being of assistance to the Tribunal in better understanding the clinical status and nature of the impairments at the relevant period.

36. Further, in addressing such material, the Tribunal concludes that the opinion of Dr Kamenyitsky appeared to be based on a sound clinical approach and that his observations and opinions were based on findings from the clinical history and examination, all of which were well documented. On the other hand the opinion of Dr Selim, was in the Tribunal's view, inconsistent with the radiological evidence and detailed in the absence of the necessary documented clinical findings. The Tribunal noted that Dr Guirgis examined the Applicant in January 2001 and made two reports. The Tribunal concludes that Dr Guirgis's opinion in relation to the Applicant's low back is not consistent with the Applicant's evidence as to what he can and cannot do, the episodic nature of his back pain coupled with his ability to undertake exercises, including touching his toes (as stated to the SSAT). Further, in relation to his elbow condition the Tribunal has difficulty with Dr Guirgis's opinion in that the Applicant clearly stated that he has greater difficulty with his left elbow at this time. Moreover the Tribunal notes that the Applicant does not complain of loss of power in the upper limbs or the loss of dexterity or sensation. It is evident that his role in the care of his disabled son has involved significant upper limb usage, which has been helped in part by the use of a lifting device in the last few years. Further, the Tribunal would comment that Dr Guirgis's opinion in relation to both the lower back and both upper limb usages is stated without documentation of a clinical examination detailing such findings.

37. In addressing the impairment ratings for each of the impairments nominated and in the light of what has been stated in previous paragraphs, the Tribunal makes the following findings in terms of the nominated Schedule 1B Impairment Tables:

(a) cervical spine degenerative disease - a loss of quarter of normal range of movement equates to 5 points under Table 5.1;

(b) lumbar spine pain - normal or nearly normal range of movement equals to a nil points rating under Table 5.2. The Tribunal considers that the episodic and the particular nature of the low back pain fall within the category of minor symptoms and constitute a nil point rating under either Tables 20 or 21;

(c) elbow pain - the Tribunal observes that at the relevant period the clinical evidence defined no difficulty in lifting son, no problems driving and full and pain free movements of both elbows. The Tribunal concludes that the Applicant has nil points impairment rating under Table 3;

(d) diabetes mellitus - the Tribunal notes that the condition is being treated with tablets and by way of diet. Further, the condition is well controlled and there is no evidence of complications. The Tribunal finds that this condition has a nil points impairment rating under Table 19 - Endocrine Disorders;

(e) renal stones - the Tribunal notes the nature and range of symptoms of this condition and that the Applicant has minimal symptomatology, awaiting lithotrypter treatment at the relevant period. Hence the Tribunal does not believe an impairment rating should be given for this condition; and

(f) psychiatric disorder - the Tribunal notes the nature of the symptomatology following the accident to his son in 1994, but observes the absence of any detailed description or diagnosis of a psychiatric disorder at the relevant time. The Tribunal concludes that the Applicant has a nil points rating under Table 6 - Psychiatric Impairment.

38. In summary the Tribunal finds that the Applicant has a total impairment rating of 5 points. As such, the Tribunal concludes that the Applicant fails to satisfy section 94(1)(b) of the Act.

39. In addressing the issue of whether the applicant has a continuing inability to work, the Tribunal notes the opinions of Drs Selim and Guirgis. In relation to Dr Selim, the Tribunal concludes that his assessment of the Applicant's work ability is inconsistent with the clinical history as given by the Applicant and further remains unsupported by detailed clinical documentation. Dr Guirgis, likewise addresses the issue with opinions that are not borne out by supporting detailed clinical documentation, nor do they appear to be consistent with what the Applicant has stated before the various Tribunals, and to other doctors, as to what his limitations are.

40. The Tribunal concludes that the opinion of Dr Kamenyitsky is an opinion supported by adequate documentation of both clinical history and examination. The Tribunal notes that the opinions of Drs Thomas and Keen are a result of file reviews and observes that both opinions point to inconsistencies with Dr Guirgis's opinion In particular, Dr Keen clearly disagreed with Dr Guirgis's opinion in relation to which elbow was causing the most difficulty to the Applicant.

41. As a consequence of the Tribunal's deliberations, the Tribunal finds that the Applicant does not have a continuing inability to work within the next two years because of his impairments. Further, the Tribunal concludes that the Applicant is not prevented by his impairments from undertaking educational, vocational, or on-the-job training within the next two years and that such training is likely to enable the Applicant to do work within the next two years, the effects of his impairments being considered as not affecting such an outcome.

42. In summary, the Tribunal concludes that the Applicant does not have a continuing inability to work in that he fails to satisfy the necessary elements of section 94(2) of the Act.

43. It is the Tribunal's finding that the Applicant does not meet the necessary qualifications for DSP and that this claim has been correctly refused.

Determination

44. The Tribunal determines that the decision under review be affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: .......................................................................................

Associate

Date of Hearing 23 November 2001

Date of Decision 27 February 2002

Representative for the Applicant Self

Advocate for the Respondent Mr G Lozynsky