El-Menchawy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 93 (14 February 2011)

Last Updated: 14 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 93

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1256

GENERAL ADMINISTRATIVE DIVISION		)
	Re		AMAL EL-MENCHAWY

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Miss E A Shanahan, Member

Date 14 February 2011

Place Melbourne

Decision

The Tribunal affirms the decision of the Social Security Appeals Tribunal that Ms El-Menchawy does not satisfy s 94(1)(b) of the Social Security Act 1991 and is thus not eligible for the Disability Support Pension. In addition the Tribunal determines that Ms El-Menchawy does not have the ten year Australian residency required for DSP eligibility and any inability to work suffered by Ms El-Menchawy arose outside of Australia.

.................[signed]...................
Member

SOCIAL SECURITY – Disability Support Pension claim (DSP) – s 80 sub-class 116 Carer Visa – arrival in Australia 10 May 2005 activating permanent residence status – investigation raising the possibility of left breast cancer 25 May 2005 – Applicant returned to Egypt 26 May 2005 – subsequent investigation in Egypt over a period of four months resulted in diagnosis of carcinoma of the left breast – surgical and chemotherapy treatment in Egypt – residency in Australia between 10 May 2005 and 4 August 2009 of 177 days – DSP application 6 August 2009 – right prophylactic simple mastectomy March 2010 – no evidence of recurrent or metastatic carcinoma

Social Security Act 1991 s 7, 42C, 94, 201AA and Schedule 1B

Administrative Appeals Tribunal Act 1975 s 37

Guide to Social Security Law

REASONS FOR DECISION

14 February 2011

Miss E A Shanahan, Member

1. Ms El-Menchawy lodged her claim for Disability Support Pension (DSP) on 6 August 2009. A delegate of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) rejected the claim on 7 October 2009. The claim was rejected because Ms El-Menchawy had not been a resident of Australia for the qualifying period of 10 years, as required by s 94(1)(e)(i) and s 94(1)(e)(ii) of the Social Security Act 1991 (the Act). A Centrelink authorised review officer (ARO) affirmed the delegate’s decision on 16 December 2009. Centrelink is the agency which provides services for the Department of Families, Housing, Community Services and Indigenous Affairs. Ms El-Menchawy sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).
2. In its decision of 3 March 2010, the SSAT identified two issues for its consideration. The first was whether Ms El-Menchawy met the requirements of s 94(1)(a), s 94(b), s 94(c)(i) and s 94(c)(ii) of the Act; and secondly, whether she had the 10 years qualifying Australian residence or a qualifying residence exemption for a DSP. It did not, however, address the second issue in its decision.
3. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Secretary also filed a report by Dr N. Pastor, an occupational health physician, dated 9 August 2010. Ms El-Menchawy filed a Carer Visa Certificate completed by Dr A. Akadiri of Health Services Australia, dated 15 July 2010, a certificate by Associate Professor S. Hart of the Peter MacCallum Clinic, dated 24 March 2010, and a report from Dr N. Gindy, a general practitioner, dated 21 April 2010.
4. Ms El-Menchawy was not legally represented. Her brother, Mr Samir Hakim, conducted her application. Mr Tuan Tran, a Centrelink advocate, appeared for the Secretary. Ms El-Menchawy gave evidence before the Tribunal. An interpreter, Ms El Jari, was present throughout the hearing.
5. Approximately two weeks before the hearing date, Mr Tran advised the Tribunal that the parties had reached an agreement that Centrelink would accept Ms El-Menchawy’s claim for the DSP. I was asked to make a decision of the Tribunal in the terms of the agreement and vacate the hearing. Section 42C of the AAT Act provides that:

(1) If, at any stage of a proceeding for a review of a decision:
(a) agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c) the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2) If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.

6. As the Tribunal Member constituted to hear the matter on 18 October 2010, I did not accept that it was appropriate for the Tribunal to adopt this agreement as a Tribunal decision based on the documentary evidence already filed and the SSAT’s reasons for their decision.
7. The Tribunal held a Directions Hearing on 11 October 2010, with Mr Tran and Mr Hakim participating. While the parties provided additional information, several ambiguities persisted. I resolved to summons Ms El-Menchawy’s medical records from the Peter MacCallum Clinic. The parties were offered an adjournment of the hearing in order to inspect these records. Mr Hakim wished to proceed as he said he was to undergo a nerve release surgical procedure on his cervical spine at the Royal Melbourne Hospital on 21 October 2010. As he had been warned that this procedure could lead to paralysis, he wanted the application to be resolved before his admission.
8. The Tribunal issued the summons addressed to the Peter MacCallum Clinic on 12 October 2010, with a return date of 15 October 2010. The clinic provided a copy of its file on completion of the hearing, copies of these medical records were provided to the parties and they were given time to provide written submissions. The Tribunal received Ms El-Menchawy’s submission on 26 November 2010, which included further medical reports, x-ray results and other tests. The Tribunal had asked Mr Hakim to obtain as much as he could of his sister’s records from the Sunshine Hospital, as these had been referred to during the hearing.

BACKGROUND TO THE APPLICATION

9. Ms El-Menchawy is the wife of Father Pestauros Iskandar, a Coptic Christian priest. They both perform missionary work for their church, which is based in Egypt. Father Iskandar is mainly involved in providing locum services to Coptic Christian priests around the globe. His wife assists him, teaches the Coptic language and Coptic religion and provides computer services. Ms El-Menchawy has a degree in social services. The Church provides the couple with housing, domestic costs and travel expenses but they do not receive a salary.
10. In Egypt, Ms El-Menchawy has the name Amal Samy Hakim. In Australia she is known as Amal El-Menchawy and signs all documentation as Amal Samy.
11. Ms El-Menchawy applied for permanent residency in Australia and was granted a s 80 Visa Subclass 116 (Carer Visa) on 11 October 2004. Her husband, as her spouse, also has a Carer Visa.
12. At the directions hearing Mr Hakim provided the information that Ms El-Menchawy’s Carer Visa was issued so that she could come to Australia in 2005 to care for her brother, Samir Hakim. Mr Hakim was involved in motor vehicle accidents in 2003 and in 2006. The 2003 accident resulted in injuries to his fifth and sixth cervical vertebrae and the 2006 accident was said to have aggravated this injury. In all, Mr Hakim had undergone four operations on his neck, including two cervical fusions. He had not worked since early 2004 and his medical treatment and loss of income costs are paid by the Transport Accident Commission of Victoria. The nature of the care that Ms El-Menchawy was to provide for her brother has not been revealed. She arrived in Australia on 10 May 2005 and thus her permanent residency commenced on that date. Mr Hakim lives with his wife and daughter but said his sister had cared for him intermittently.
13. On 18 May 2005 Ms El-Menchawy consulted Dr Lilian Rezk for what Dr Rezk has described as many little ailments including a slight breast discharge. Dr Rezk detected a lump in the right breast and referred Ms El-Menchawy for mammography. Dr Rezk may have incorrectly recorded the location of the palpable mass, as in September 2005 Ms El-Menchawy was diagnosed with carcinoma of the left breast and not the right. Mammography on 25 May 2005 revealed:

Several clusters of indeterminate micro calcifications... in the lateral aspect of the left breast region. No corresponding ultrasound abnormality is identified. In view of the finding, review by a surgeon is recommended... No further significant mammographic nor ultrasound abnormality of either breast region is identified.

14. Ms El-Menchawy did not see a surgeon in Australia. She returned to Egypt on 26 May 2005. In Egypt, she underwent three percutaneous (i.e. performed through the skin) left breast biopsies which did not reveal any evidence of malignancy. Eventually, an open biopsy (via a surgical incision) was performed. An intra-operative frozen section yielded a diagnosis of carcinoma (cancer). This procedure took place on 21 September 2005. The surgeon proceeded, under the same anesthetic, to perform a modified left mastectomy with axillary node clearance.
15. Histopathological examination of the breast showed the carcinoma to be of an invasive mixed cell variety (duct and mucoid carcinoma) of Grade II malignancy with no invasion of blood or lymphatic vessels. All 17 lymph nodes resected were clear of carcinoma. Test for oestrogen receptors were positive (2+) and for progesterone receptors positive (1+). The tissue was also tested for the genetic mutation HER2/NEU which yielded a score of zero. The actual carcinoma in the breast measured four by three centimetres. On the international staging system approved by the World Health Organisation (WHO), and given the absence of any lymph node involvement or distal metastasises, Ms El-Menchawy had a Stage 2A carcinoma of the left breast. [Tribunal note: From the Tribunal’s own knowledge – the Grade 2 connotation comes from the Elstron system of histopathological grading. A Grade 2 carcinoma of the breast is a reasonably differentiated carcinoma, Grade 3 being the most malignant. Differentiation refers to the microscopic structural resemblance of the malignant cells to the cells of origin.]
16. Following surgery, Ms El-Menchawy was referred to Dr Mohsen Barsoum, the Professor of Clinical Oncology at Cairo University, and commenced a six-cycle course of chemotherapy. Such cycles are normally given every three weeks. The intravenous cytotoxic drugs used where Endoxan, Adriamycin and Fluoro-uracil. Dr Barsoum performed radiological investigations to exclude metastatic spread and these were normal. Following the chemotherapy, a five-week course of adjuvant radiotherapy to a dose of 50 gray (a unit of absorbed radiation dose equal to 100 rads) was planned. Ms El-Menchawy was advised to take Tamoxifen (an anti-oestrogen compound) for a period of five years.
17. Dr Barsoum reported in his letter of 17 October 2009 that Ms El-Menchawy tolerated the chemotherapy well. He also reported that she had undergone a hysterectomy and left oophorectomy (the removal of the ovary) on 8 October 2007. Her anti-oestrogen medication was changed from Tamoxifen to Femara (Letrozole) following this procedure. Ms El-Menchawy was reported as lost to follow up after that date. The surgical indication for the hysterectomy and oophorectomy was not stated.
18. Ms El-Menchawy had a pelvic ultrasound performed in Melbourne on 12 December 2006. It showed a left-sided simple ovarian cyst and some thickening of the endometrium. The latter is seen in patients taking Tamoxifen and may be associated with increased menstrual bleeding. There was no abnormality in the vascularity of the uterus or any indication of malignancy. Castration, that is, bilateral oophorectomy, is practiced in some centres, in selected patients with high oestrogen and progesterone receptor positivity.
19. Ms El-Menchawy underwent chest computerized tomography (CT) scanning in Montpellier (France) on 8 October 2007 and again on 5 May 2008. The CT of the chest revealed several small sub-pleural nodules, all less than five millimetres in diameter and mainly in the left lower lobe of the lung. There was no mediastinal lymphadenopathy and the pleuropericardial recesses were normal. The CT scanning of the abdomen revealed a normal liver with a small (nine millimetre in diameter) simple biliary cyst in segment three. The kidneys, adrenals and pancreas were normal. No lymphadenopathy was detected in the pelvis.
20. Ms El-Menchawy also had a mammogram of the right breast. This revealed fibro-nodular areas and some micro-calcification but no discrete mass. According to Ms El-Menchawy, a CT scan of the chest and upper abdomen were performed in New York at a later date, and this showed similar changes.
21. Ms El-Menchawy returned to Australia on 4 August 2009 and applied for the DSP on 6 August 2009. Dr Rezk completed the accompanying treating doctor’s report and listed Ms El-Menchawy medical conditions as:
    • left breast cancer treated by surgery and chemotherapy 2005;
    • pain left arm and inability to move this limb;
    • shortness of breath due to suspected cancer of the lungs;
    • suspected cancer right breast; and

• pain and restricted movement of the right shoulder.

Dr Rezk indicated that the lungs, right breast and right shoulder conditions were to be investigated.

22. Ms El-Menchawy also complained of diffuse muscle pain, foot pain and spinal pain, and has claimed to have a fifth lumbar vertebral fracture, osteoporosis, indigestion, frequent nausea and vomiting, poor appetite, loss of hair, rashes on the scalp and rashes in relation to the left breast surgical scar.
23. Dr Rezk referred Ms El-Menchawy to the Breast Clinic at the Peter MacCallum Clinic, where she has been extensively investigated and treated. She has also attended the Sunshine Hospital, where further and frequently overlapping and repetitive testing has been performed. Ms El-Menchawy has had numerous investigations performed privately and attends two general practitioners. When her husband is in Australia, they live at the Coptic Church in Oakleigh and she attends a general practitioner (Dr N. Gindy) in Hallam. Otherwise, she lives with her brother in St Albans and attends Dr Rezk in Donvale, although at various times her address has been in Carlton (2005 and August 2009).
24. When Ms El-Menchawy first attended the Peter MacCallum Clinic, the medical staff had to rely on the clinical history given by Ms El-Menchawy and her brother, as no documentary confirmation of her treatment or investigations overseas was available. These documents were provided to the hospital in January 2010.
25. In August 2009, Ms El-Menchawy told Dr Catherine Poliness, breast surgeon, that she had Stage 2 carcinoma of the left breast and that she had noticed a right breast lump since early 2009. She related the results of the CT scanning and mammograms performed in France and the USA and told Dr Poliness that a biopsy had been offered in those countries but she had declined at the time. Ms El-Menchawy underwent mammography and ultrasound examination of the right breast in Australia in August 2009. It revealed only subtle, non-malignant micro-calcification and no mass lesion.
26. Ms El-Menchawy underwent CT chest and upper abdominal scanning on three or four occasions in the past twelve months, which showed no evidence of cancer spread. The small sub-pleural nodules demonstrated in France and the USA appear to have resolved, which suggests they were most probably induced by the chemotherapy in 2006. According to the authoritative MIMS Annual, Endoxan can cause pneumonitis.
27. On 11 September 2009 Ms El-Menchawy had an excision biopsy of the area concerned (in the upper outer quadrant of the right breast). This was to be performed as a day case but Ms El-Menchawy required an overnight admission because of post-operative nausea and vomiting. The biopsy revealed fibrocystic disease and an in situ lobular neoplasm. Further surgical treatment was not advised as the risk of invasive carcinoma developing was said to be one per cent.
28. Ms El-Menchawy was unhappy with this advice, as she wished to avoid the possibility that she might need chemotherapy or radiotherapy in the future. She wished to proceed to prophylactic right mastectomy. There are strict requirements about the indications that must be present for such prophylactic surgical procedures. Dr Poliness was opposed to such treatment. This procedure is normally reserved for those carrying the relevant genetic mutations the BRCA mutations, which Ms El-Menchawy did not. However, Ms El-Menchawy and her family persisted. Their requests for prophylactic surgery led Dr Poliness to obtain a psychological assessment and a second opinion from Associate Professor S. Hart.
29. Associate Professor Hart was of the opinion that a right prophylactic mastectomy was an appropriate management for her anxiety. Ms El-Menchawy also saw an oncologist and a radiotherapist. The psychologist recorded that Ms El-Menchawy’s concerns were focused on her interpretation of the radiological findings in the lungs and right breast performed in France and the USA. Ms El-Menchawy denied depression. The psychologist described her as euthymic (normal psychological status).
30. In a follow-up session, the main source of Ms El-Menchawy’s concern was identified as her need to avoid future chemotherapy and radiotherapy, should it be indicated. She believed she would not tolerate such treatment given her lung condition and gastrointestinal symptoms. She was offered future counselling should it be indicated but has not seen the psychologist since 7 December 2009.
31. On 30 March 2010 Miss Jane O’Brien, a breast surgeon, performed a right simple mastectomy. No pectoral muscle was resected and only two superficial, normal appearing axillary lymph nodes were removed. Histopathological examination of the breast and the two nodes was negative for malignancy.
32. Post-operatively, Ms El-Menchawy complained of dyspnoea (shortness of breath), despite a normal respiratory rate and an oxygen saturation of 98 per cent on room air. Ninety-six per cent is considered normal. This was diagnosed as being due to anxiety. A chest x-ray was normal. Her complaint of dyspnoea persisted and her saturation did drop to 89 per cent after exertion, although it recovered to normal after 30 seconds of rest. A ventilation-perfusion scan of the lungs was performed to exclude a pulmonary embolus. This scan was normal, with no abnormal flow of blood in the lungs and no abnormal ventilation of the lungs.
33. Ms El-Menchawy has been reviewed regularly at Peter MacCallum Clinic since her surgery. On 24 July 2010 she presented to the Emergency Department complaining of severe dyspnoea. On examination, she was not in respiratory distress, her respiratory rate was 16, her chest clear and her oxygen saturation on room air was 100 per cent. She was diagnosed with anxiety and prescribed a small dose of Alprazolam. She was instructed not to come to the Emergency Department in the future and to see her general practitioner if she suffered future episodes of shortness of breath.
34. According to Mr Hakim and Ms El-Menchawy, it has been necessary to drain fluid from Ms El-Menchawy’s right axilla on 20 occasions since March 2010. These aspirations of fluid are not recorded in the Peter MacCallum Clinic records.
35. Ms El-Menchawy’s other, somewhat vague, symptoms have been investigated. She does have Vitamin D deficiency for which Vitamin D tablets have been prescribed. Bone densitometry studies do not confirm osteoporosis as defined by the World Health Organisation, as bone mineral density in the lumbar spine is normal and that in the femur is mildly reduced. She has femoral osteopenia (reduced bone density).
36. Ultrasound examination of both shoulders has revealed mild early degenerative change in the right sided tendons of subscapularis and supraspinatus. X-rays of the shoulders were normal. A course of physiotherapy was undertaken at Peter MacCallum Clinic to improve Ms El-Menchawy’s range of movement of her shoulders. A normal range was achieved by February 2010, at which time Ms El-Menchawy was discharged from the physiotherapy service.
37. Prior to the right simple mastectomy, Ms El-Menchawy underwent lung function testing on 26 March 2010. The respiratory technician who performed the testing commented that Ms El-Menchawy had:

great difficulty with these tests and had a high degree of Glotis closure. Please regard these results as minimum values. ERS/ATS criteria not met on any test.

The interpreting respiratory physician concluded a severe restrictive pattern due mainly to the patient’s variable respiratory technique. It proved impossible to measure Ms El-Menchawy diffusing capacity. These patient difficulties are well demonstrated by the actual inspiratory/expiratory flow graph, which is normally a smooth parabolic curve. In Ms El-Menchawy’s case, it was a series of spikes with airflow repeatedly falling to zero as her vocal cords closed.

38. Ms El-Menchawy’s lethargy, muscle weakness and aches and bone pain have been attributed to her anti-oestrogen therapy with Femara (Letrozole). Femara and Tamoxifen are reported by the manufacturers as having a high incidence of such side-effects. In the case of Femara, 27 per cent of patients experience musculoskeletal pain; 10.9 per cent nausea; 5 per cent vomiting; 9.2 per cent shortness of breath. Hair thinning is common. According to the MIMS Annual, the percentage of adverse reactions with Tamoxifen is similar, although musculoskeletal pain and shortness of breath are more common with Tamoxifen than Femara. Dr Poliness recommended the cessation of Letrozole but this has not occurred. Dr Barsoum had originally planned this therapy to continue for 5 years. All investigations for forms of arthritis were negative and all inflammatory markers were normal.
39. Ms El-Menchawy has been clinically diagnosed (this terminology is used to embrace a diagnosis reached on history and examination without recourse to investigations) with pes planus (flat feet), which she says gives rise to pain and limits her walking distance. This diagnosis has been confirmed by an orthotist and an orthopaedic surgeon at Sunshine Hospital, although an x-ray of the feet on 17 August 2009 reports no pes planus on either side. The only radiological abnormalities were degenerative changes in the first metatarsophalangeal joint with hallux valgus deformity (bunions) and an accessory navicular bone on the left. The latter is a congenital anomaly. X-rays of both knees were normal despite Ms El-Menchawy’s complaint of the right knee being painful and giving way. Exercises for the small muscles of the feet and foot orthotics (Plastazote insoles) have been prescribed.
40. X-rays of Ms El-Menchawy’s thoracolumbar spine show early, mild degenerative changes commensurate with her age. A total body bone scan in October 2006 did not show any abnormality. No fracture of the fifth lumbar vertebrae has been demonstrated. In her report of 22 June 2010, Dr Nadira Gindy referred to the occurrence of a compression fracture in the fifth thoracic vertebrae in 2006, but did not mention any lumbar vertebral fracture until her report of 10 November 2010.
41. The skin rashes first noted at Peter MacCallum Clinic have been fully investigated. The rashes in Ms El-Menchawy’s groin and chest areas and changes in her toenails were found to be due to a fungal infection with tricophyton (tinea) and the rash in the left mastectomy scar area was a form of eczema. Appropriate treatment was prescribed but not always followed.
42. Ms El-Menchawy claims to have lymphoedema or lipoedema of both arms and, to a lesser extent, her lower limbs. A physiotherapist at Southern Health advised her to consult a surgeon in London for treatment of this condition. There is no record of lymphoedema in either arm in the Peter MacCallum Clinic records.
43. In October 2006 Ms El-Menchawy attended the Breast Clinic at Sunshine Hospital. She was concerned about a lump in the right breast. Mr Anthony Hyett, consultant surgeon, described this lump as benign feeling changes in the upper pole of the right breast. He noted there was no left arm lymphoedema. In his report of 9 August 2010, Dr Pastor did not find any evidence of lymphoedema. The upper arm and forearm circumferences were the same and the upper arms were fat.
44. Ms El-Menchawy has undergone a gastroscopy on two occasions in Australia because of her persistent nausea and vomiting and her poor appetite. On 13 April 2006 Dr R. Bassily, gastroenterologist, found oesophagitis. He attributed this to candida (thrush). He also found a small sliding hiatus hernia. The cardio-oesophageal junction (junction between the stomach and the oesophagus) was at the normal level of 40 centimetres from the teeth. The stomach and duodenum were normal. Amphotericin (antifungal) lozenges were prescribed.
45. Dr Bassily performed a second gastroscopy on 6 May 2010. No hiatus hernia was seen, the squamo-columnar mucosal junction was normally sited and the oesophagus and duodenum were normal. The stomach showed mild inflammation due to reflux of bile from the duodenum. No helicobacter infection, no ulcers and no endoscopic evidence of gastro-oesophageal reflux have been documented.
46. Ms El-Menchawy has asymptomatic hypercholesterolaemia. This has been appropriately treated with the statin Lipitor, and more recently, Ezetrol in relatively small doses. Her cholesterol remains elevated.
47. Ms El-Menchawy’s hair thinning has been investigated in the dermatology clinic at Peter MacCallum Clinic. The dermatologist has stated that her hair thinning shows the pattern of androgenetic hair loss (from which her mother also suffers), but that the Femara may have also contributed to the condition. Ms El-Menchawy lost all her hair during her chemotherapy treatment in 2006. It has since regrown, although it is thinner and shorter than it was before the chemotherapy.
48. Ms El-Menchawy was also diagnosed with mild cataracts not requiring treatment.
49. The CT scans performed in France revealed a small simple biliary cyst in segment 3 of the liver. This has been demonstrated in repeat scans performed in Australia. The cyst measured 1.2 x 0.77 centimetres on 12 October 2010, 0.85 centimetres in diameter on 21 May 2010 and 0.9 centimetres in diameter in France on 6 May 2008. It is essentially stable, given that it is liquid filled, and allowing for the different degree of magnification of different CT scanners. Ms El-Menchawy acknowledged that she is exceedingly worried by these variations in size. This is not assisted by the fact that the size is sometimes reported in millimetres and at other times in centimetres.
50. The most recent CT scan (12 October 2010) also reported a fluid collection in the right mastectomy bed, that is, between the skin and pectoral chest wall muscle. This is outside the lung cavity. This collection measured 11.0 x 7.2 x 1.1 centimetres on 26 May 2010 and 7.66 x 1.7 x 7.74 centimetres on 12 October 2010. In both instances, this represented a collection of less than 100 cc.
51. Ms El-Menchawy has interpreted the report of small emphysematous bullae in one of the five segments of the lower lobe of the left lung to mean that there is fluid on the lung. Emphysematous bullae are distended, air-filled lung alveoli. From the Tribunal’s own knowledge as a thoracic surgeon, these are a common radiological finding on CT scanning.
52. The Tribunal, having obtained the Peter MacCallum Clinic records, provided the parties with the opportunity to obtain copies of those records. The Tribunal requested that the parties read those records and lodge any submissions in response to the material in those records. The Tribunal advised Mr Hakim that it was only interested in Ms El-Menchawy’s response to the material. It was not interested in further medical opinion of the contents. Therefore, the Tribunal instructed Mr Hakim not to obtain further opinions or to show Ms El-Menchawy’s Peter MacCallum Clinic records to any other doctors. Mr Hakim did not follow these instructions. However, as the decision-making process was delayed until Ms El-Menchawy lodged her submissions, the Tribunal has taken into consideration medical reports received before she lodged her submissions.
53. Dr Samir Ibrahim, consultant psychiatrist, saw Ms El-Menchawy pro bono and reported on 22 November 2010. He diagnosed a Chronic Adjustment Disorder: Depression, with some anxiety features. Dr Ibrahim identified the chronic stressor as Ms El-Menchawy's concern about her medical condition.
54. Ms El-Menchawy also submitted a further, non-contributory report from her orthotist.
55. Ms El-Menchawy consulted Dr C. Thomas, a rehabilitation and pain medicine physician. Dr Thomas limited his attention to her physical symptoms. In his report, dated 16 November 2010, he noted good general mobility. On examination, he detected tenderness throughout the spine with a gross restriction of movement, limited shoulder movement, irritable feet and ankle joints, and stable knee joints. Straight leg raising was normal. In his report, Dr Thomas described the examination findings as showing a number of behavioural aspects. He stated that he considered the process behind the consultation to be flawed to such a degree that he was unable to form an opinion as to Ms El-Menchawy's degree of disability.
56. On 25 August 2009 Ms El-Menchawy underwent a job capacity assessment (JCA). Her left breast carcinoma condition was considered to be fully diagnosed, treated and stabilised. The Job Capacity Assessor assessed the condition at an impairment rating of 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act. The rating was based on her decreased ability to carry out many everyday activities.

Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms caused significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

57. The assessor recorded that [t]he client's inability to work did not arise in Australia. Ms El-Menchawy was assessed as having a capacity to work for 8-14 hours per week, with no anticipated improvement in her work capacity within the next two years. The JCA acknowledged that not all of the claimed medical conditions considered were fully diagnosed, treated and stabilised. Ms El-Menchawy and her brother, Mr Hakim, took part in this assessment and an interpreter in the Arabic language was present.
58. Dr Akadiri also assessed Ms El-Menchawy. This was presumably for an application for a Carer Visa for another person, most probably her mother, to provide care for Ms El-Menchawy. On this occasion Mr Hakim acted as the interpreter. Physical examination performed by Dr Akadiri appeared to be normal, with the exception of diffuse abdominal tenderness and what was described as bilateral knee deformity and markedly reduced range of movement in both shoulders. Dr Akadiri described the mastectomy scars and said there was a small amount of swelling around the right mastectomy incision.
59. Ms El-Menchawy told Dr Akadiri that she required help with showering and getting dressed and undressed. She stated that she was unable to cook because steam affected her breathing, that she required a special diet, and that she needed assistance walking outside. Within the house, she moved by holding onto walls and furniture. She told her she required help to get in and out of bed.
60. Dr Akadiri assigned impairment ratings to Ms El-Menchawy’s conditions in accordance with the Impairment Tables. Dr Akadiri assigned an impairment rating of 20 points for multiple joint pain – disability, 20 points for breast carcinoma with possible metastasis and uncertain prognosis, 19 points for osteopenia and a fifth lumbar vertebral crush fracture, and 11 points for gastric reflux and vomiting. This yielded a total rating of 40 points.
61. The SSAT, which did not have access to Ms El-Menchawy's Peter McCallum Clinic records, determined that Ms El-Menchawy had no symptoms directly resulting from her left breast carcinoma, as they were not satisfied that this had spread to the lungs or anywhere else in the body. The SSAT found that her sole functional impairment from this cancer was confined to the left arm and resulted from the surgical treatment of her malignancy. The SSAT assigned an impairment rating of 5 points to the loss of strength, mobility and dexterity in the left arm (the non dominant upper limb).

MS EL-MENCHAWY'S EVIDENCE TO THE TRIBUNAL

62. The majority of Ms El-Menchawy's evidence is summarised above. She was unable to remember many of the dates of various events. She attributed this memory deficit to the tablets she was taking, particularly Epilem (an anti-epileptic medication also used for chronic pain control). She denied having a breast discharge prior to seeing Dr Rezk on 18 May 2005, and said the nipple discharge occurred for the first time when Dr Rezk examined the breast.
63. Ms El-Menchawy confirmed that she underwent several left breast biopsies in Egypt between May and September 2005, prior to the open biopsy, and the results were negative. She denied that she had tolerated the chemotherapy well (as reported by Dr Barsoum). From her perspective, I nearly died under chemo. It was her response to chemotherapy that led her to postpone the planned radiotherapy.
64. It was clear from her evidence that Ms El-Menchawy firmly believes that the liver cyst that has been reported on many occasions has enlarged. This is of great concern to her.
65. Ms El-Menchawy showed the Tribunal her most recent CT scan and abdominal scan reports. She had no trouble approaching the Bench and moved in a normal manner. She had highlighted several phrases in these reports. The Tribunal explained the nature of lung bullae and that the CT showed no evidence of fluid (liquid) on the lung. Ms El-Menchawy said that her husband, Father Iskandar, had left Australia on 28 May 2010 and the date of his return is unknown.
66. Mr Hakim, who represented his sister, contended that she became a permanent resident of Australia when her Carer Visa was granted in October 2004 and that the left breast cancer had developed between that date and her arrival in Australia on 10 May 2005; or, alternatively, it had developed between 10 and 18 May 2005. Mr Hakim referred the Tribunal to a printout from the Department of Immigration's website. The printout stated that applicants for permanent residency are able to absent themselves from Australia for periods if they were involved in substantial cultural ties of benefit to Australia. The document noted that members of religious communities may have substantial cultural ties.
67. Dr N. Pastor, occupational health physician, assessed Ms El-Menchawy on 9 August 2010 at Mr Tran’s request. Mr Hakim attended with his sister and assisted with interpretation. There was no independent interpreter present, although one had been requested. There are some errors in the history that Dr Pastor obtained.
68. Dr Pastor attributed Ms El-Menchawy's loss of faith in Dr Poliness to a change in management process. Dr Pastor referred to the opinion of Dr Mario Guerrieri, radiation oncologist. Dr Guerrieri stated in a report in April 2006 that the risk of local recurrence following mastectomy (in reference to Ms El-Menchawy's left breast), was approximately 10 percent. Dr Pastor did not think this was consistent with the advice from Dr Poliness in 2010, that a right prophylactic mastectomy was not indicated for a benign condition exhibiting a one per cent chance of malignant change.
69. Dr Pastor may have been given incorrect information leading to this opinion. Dr Guerrieri had been asked to see Ms El-Menchawy six months after her left mastectomy, with a view to radiotherapy. The figure of a 10 per cent risk of local recurrence in the left mastectomy scar or mastectomy bed is the accepted rate soon after surgical resection. It is of no relevance five years post-operatively. Dr Poliness’ statement that there was a one per cent risk of malignant change in the right breast lesion in 2010 is valid (my own knowledge).
70. Dr Pastor was under the impression that Ms El-Menchawy had had lymphatic problems in the right upper limb since the simple mastectomy of March 2010, and had been having one to two litres of fluid drained from the mastectomy incision every week. Mr Hakim told Dr Pastor that the hysterectomy in 2007 was most probably a treatment for cervical (uterine) cancer, although he, Dr Pastor, noted that there was no documentation to support this. Mr Hakim also provided a history of a fracture of the fifth lumbar vertebrae, osteopenia, vitamin D deficiency, flat feet, knee pain and degenerative changes of the right shoulder.
71. Dr Pastor performed a full medical examination and he has reported the results in detail. In summary, Dr Pastor detected no abnormalities on general examination, other than Ms El-Menchawy being overweight. The circumference of the upper arms and the forearms were equal and no lymphoedema was detected. Both shoulders were mildly to moderately limited in terms of full flexion and internal and external rotation. The range of movement of the knees was good, although flexion was painful. The examination of the abdomen was normal and the chest was clear.
72. Dr Pastor was of the opinion that the left breast cancer most definitely and absolutely was present before she arrived in Australia. Dr Pastor considered that Ms El-Menchawy could continue with her current voluntary work and felt that she was unlikely to sustain a level of 15 hours per week. He assessed her impairment rating at 20 points due to decreased ability/efficiency to carry out many everyday activities. Many of his comments were qualified by the lack of medical documentation of Ms El-Menchawy’s investigations and treatment before her return to Australia in August 2009.

RELEVANT LEGISLATION

73. Section 94 of the Act sets out the qualifications for DSP.

(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
(d) the 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; and

(f) the person is not qualified for disability support pension under section 94A.

(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 independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

74. Section 9.2.2 of the Guide to Social Security Law (the Guide) confirms that the holder of a Carer Visa is a permanent resident of Australia. Pursuant to s 94(1)(e) of the Act, the visa-holder only qualifies for DSP if they have 10 years of qualifying residence, or if the event causing the person's incapacity to work occurred while they were an Australian resident.
75. Section 201AA of the Act specifically excludes a carer or special need relative from the reduced waiting period of 104 weeks which applies to newly arrived residents.
76. There was no evidence before the Tribunal that Ms El-Menchawy had been granted a qualifying resident exemption for a DSP.

SUBMISSIONS

77. Mr Tran did not make any submissions nor did he provide any comments relating to the content of the Peter McCallum Clinic medical records provided to him on completion of the hearing. Mr Tran also did not reply to Ms El-Menchawy’s written submissions.
78. Ms El-Menchawy provided a submission dated 26 November 2010 which reiterates her symptoms and her interpretation of various X-rays. While lymphoedema is not mentioned in the submission, Ms El-Menchawy states that there is a fluid build up in her upper arms, more on the right than the left. She states she has developed lipoedema which affects the movement of her hands and legs and disfigures her body. Ms El-Menchawy also refers to the recent diagnosis of a chronic adjustment disorder and claims that she has had symptoms of this condition for some time although the exact time is not stated.

THE TRIBUNAL'S DELIBERATIONS

79. Section 94 of the Act sets out the qualifications for DSP.
80. In her application for the DSP, Ms El-Menchawy stated that her disability was cancer problems. See medical report attached. The report of Dr Rezk listed two conditions: breast cancer left side, leading to pain in the left arm and inability to move the left arm, and suspected cancer of lungs causing shortness of breath. Both conditions were expected to persist for more than 24 months.
81. Ms El-Menchawy has had carcinoma of the left breast. This was formally diagnosed in Egypt after four months of investigation. She was appropriately treated, again in Egypt, by mastectomy and adjuvant chemotherapy. Investigations in Australia between 18 and 25 May 2005 had revealed only non-specific calcification in the left breast, warranting a surgeon’s opinion. Ms El-Menchawy did not obtain such an opinion prior to her departure on 26 May 2005.
82. Ms El-Menchawy has related her left upper limb impairment to her surgery, and presumably, at least in part, to the axillary lymph node clearance. It is also possible that any shoulder-related symptoms could have arisen from the resection of the pectoralis major muscle. [Tribunal note: from the Tribunal’s own knowledge, this is commonly performed as part of a radical mastectomy.] However, neither the Tribunal nor the Peter MacCallum Clinic has any detailed description of the extent of the surgical procedure.
83. Ms El-Menchawy claims to have lymphoedema of the left arm, but this was excluded by Mr Hyett in his 19 October 2006 report, and by Dr Pastor in his 9 August 2010 report. Lymphoedema, had it been present, could cause discomfort and limit movement.
84. Mr Patrick Chong, orthopaedic surgeon, examined Ms El-Menchawy on 28 August 2009 and found mild restriction of the movements of both shoulders and pes planus (flat feet). The result of the remainder of his examination, including the spine and knees, was reported as normal. Ms El-Menchawy undertook a course of physiotherapy at Peter MacCallum Clinic from late 2009. By 10 February 2010, the range of movement of Ms El-Menchawy's shoulders was recorded as normal.
85. At the time of Ms El-Menchawy's application for DSP, Dr Rezk considered it possible that her shortness of breath was due to metastases (from the left breast carcinoma) to the lung, based on CT scans performed in France and the United States. Repeated CT scans in Australia has shown no evidence of such spread.
86. Ms El-Menchawy's lung function tests were reported as showing a restrictive pattern due to her technical difficulties in performing the tests. She apparently closes her vocal chords (glottic closure – holding one’s breath) both when inhaling and exhaling. This renders the tests totally unreliable. A ventilation perfusion scan performed in March 2010 was normal. At all times, her chest has been clear on examination and her respiratory rate normal. Her oxygen saturation levels on room air were more than normal, with one exception. Her dyspnoea (shortness of breath) has been attributed to anxiety.
87. It is now five years and four months since Ms El-Menchawy underwent mastectomy and chemotherapy. This is an excellent result given that responses to treatment are measured in terms of five year survival. Those who do survive for five years have an even higher expectation of surviving for 10 years. This is of the order of 93 to 95 percent survival (Medical Journal of Australia, vol 194, 17 January 2011).
88. While they were not included in the original DSP application form, Ms El-Menchawy claimed to be suffering from many symptoms which she believes contributed to her inability to work. Her claim to have suffered a compression fracture of the fifth lumbar vertebrae has not been substantiated by multiple repeat plain x-rays and CT studies. She does have very minor degenerative changes in the spine, but these did not affect her movement in August 2009 (as noted by Mr Chong), although Dr Thomas found that her spinal movements were grossly restricted and believed that this indicated behavioural aspects (report 16 November 2010).
89. The various reported bone and muscular aches and pains are more likely due to the side effects of Tamoxifen or Femara. With respect to this hormonal medication, it is to be noted that Dr Barsoum's treatment plan was for Ms El-Menchawy to take one or other of these drugs for five years only. The five years have now expired, and she no longer has any breast tissue or demonstrable metastases.
90. Ms El-Menchawy also complains of nausea and vomiting. Her doctor states that she has symptoms of gastro-oesophageal reflux, although these symptoms have never been described in detail. Gastroscopies performed in 2006 and 2010 do not reveal any gastro-oesophageal reflux. In 2006, she had oesophageal thrush and a sliding hiatus hernia. In 2010 no hiatus hernia was demonstrated but mild reflux of bile from the duodenum to the stomach was noted. According to the MIMS Annual, such symptoms are common adverse responses to medication with Tamoxifen or Femara. Fosamax (Alendronate), (which Ms El-Menchawy takes for what is osteopenia and not osteoporosis) is known to cause oesophageal ulcers and dysphagia (difficulty in swallowing).
91. Ms El-Menchawy does have vitamin D deficiency and a raised serum cholesterol level, but these conditions are asymptomatic and are being treated.
92. Ms El-Menchawy's other symptoms have been extensively investigated and, while serious or life-threatening diagnoses have been excluded, no definitive diagnosis has been made. Dr Poliness recommended that Ms El-Menchawy cease taking Femara because she perceived that this was the most likely cause of these symptoms. Ms El-Menchawy has also taken Tamoxifen, which has the same side-effects as Femara.
93. More recently, Ms El-Menchawy has complained of discomfort in the right shoulder, swelling of the right arm and limited movement of the right arm. The latter two symptoms appear to have arisen since she underwent a prophylactic right mastectomy in March 2010. Investigation has shown early and very minor degenerative changes in the tendons of subscapularis and supraspinatus on the right side. This has not been treated. It is to be noted that Ms El-Menchawy did have physiotherapy to both shoulders at the Peter McCallum Clinic between December 2009 and February 2010, which resulted in a full range of movement on both sides.
94. Ms El-Menchawy believes she suffers from lipoedema. This diagnosis was raised by a Southern Health physiotherapist, Jillian Buckley, who recommended she see Dr Peter Mortimer in London for help with the diagnosis and management of this condition. Lipoedema is not a recognised condition in the major medical texts, such as Harrison's Principles of Internal Medicine (17th Ed. New York: McGraw-Hill, 2008), an American textbook.
95. An internet search does reveal articles on this condition. The most reliable of these seem to be a fact sheet from the New Zealand Dermatological Society and entries on Wikipedia. The New Zealand Dermatological Society describes the condition as being characterised by abnormal fat deposition, resulting in large legs that are greatly out of proportion to overall body size. The condition is nearly always seen in women. It develops soon after puberty and gradually progresses. The fatty swelling affects the hips, thighs and lower legs symmetrically, but feet are rarely affected. There is often a family history of the disorder and it may be confused with lymphoedema, in which the swelling is due to the accumulation of lymph. This report described treatment as being generally unhelpful and surgery as hazardous.
96. The Wikipedia entries are essentially the same, except that they state that times of hormonal change can trigger or worsen lipoedema – in particular, pregnancy, menopause and following gynaecological surgery. It would be clear to any observer that Ms El-Menchawy does not have this pattern of fat distribution. She does not fit the description given in Wikipedia of being a size 8 from the hips up and a size 16 from the hips to the ankles. Her fat distribution from a casual observer's point of view is normal, and she is overweight. We do know from the resected right breast specimen that the right breast weighed 1450 grams, and Ms El-Menchawy told me that her left breast had been a similar size.
97. Ms El-Menchawy consulted Dr Samir Ibrahim, psychiatrist, on 22 November 2010, well after the hearing had been held. Dr Ibrahim diagnosed a Chronic Adjustment Disorder: Depression, with some anxiety features. He did not prescribe any treatment.
98. In December 2009 Miss Tessa Jones, the Head of the Clinical Psychology Department at the Peter MacCallum Clinic opined that Ms El-Menchawy was euthymic (of normal psychological status), and was neither depressed nor anxious. Various medical practitioners have described her as anxious, and particularly anxious about her medical condition. She has at various times been prescribed anxiolytic medication and also anti-depressants. The most recent report from her general practitioner, Dr Gindy, lists Ms El-Menchawy's current medications. The list indicates that, as of 22 June 2010, she was not taking any psychomimetric drugs. Associate Professor Hart has stated that he believed that the right prophylactic mastectomy was indicated to allay her anxiety. Whatever the diagnosis relating to her psychological status, it had not been fully diagnosed, treated and stabilised.
99. It is most unfortunate that Ms El-Menchawy sees numerous doctors in private practice and at public hospitals and that she, herself, interprets the results of her investigations. The plethora of diagnoses and opinions, sometimes contradictory, makes the work of any decision maker that much more difficult.
100. At the time of her application for DSP, Ms El-Menchawy did presumably have left arm restriction of movement sufficient to satisfy s 94(1)(a).
101. As related under Background to the Application above, Ms El-Menchawy has variously attracted an impairment rating of 5 points (the SSAT), 20 points (Dr Pastor and the JCA) and 40 points (Dr Akadiri). The 20 and 40 point ratings were based predominantly on the history obtained from Ms El-Menchawy and her brother. Dr Pastor qualified his opinion and assessment in this respect. The Tribunal has had the benefit of access to the Peter MacCallum Clinic records and part of the records from the Sunshine Hospital. Based on this additional information, the Tribunal finds that a 5 point impairment rating is the maximum that could be allotted under the Impairment Tables.
102. For these reasons, Ms El-Menchawy does not meet the requirements of s 94(1)(b).
103. While it is not necessary for me to consider this application further, I believe it may be useful to do so, in order to hopefully counter several areas of dispute and misunderstanding.
104. Ms El-Menchawy's claimed inability to work is debatable. In her psychological assessment by Miss Jones, Head of Department of Clinical Psychology at the Peter MacCallum Clinic, Ms El-Menchawy described herself as a very busy, very active woman who was absorbed in her English language classes five days per week six hours per day. Ms El-Menchawy denies that she said this. The information was relayed via an Arabic interpreter, although most of the interview was said to have been conducted in English, at Ms El-Menchawy's request. Ms El-Menchawy continues her pastoral duties in the Christian Coptic Church in Melbourne for six hours per week.
105. Section 94(1)(e) requires that, in order to qualify for DSP, the applicant must be either
     • (i) an Australian resident at the time when the person first satisfies paragraph (c) that is, has a continuing inability to work; or
     • (ii) has 10 years qualifying Australian residence or has a qualifying residence exemption for a DSP.
106. Ms El-Menchawy was not an Australian resident when her left breast cancer (which eventually led to any left upper limb symptoms) commenced. Mr Hakim's submission that this cancer of the left breast commenced in Australia is contrary to all medical knowledge. Dr Pastor has stated that this condition most definitely and absolutely, was present before she arrived in Australia.
107. Ms El-Menchawy does not have 10 years qualifying Australian residence. Furthermore, there is no evidence that Ms El-Menchawy has been granted a qualifying resident exemption for a DSP.
108. While Centrelink has accepted that temporary absences from Australia do not interrupt the necessary accumulation of 10 years of qualifying residence, various Tribunals have strictly interpreted s 7(5) of the Act, which defines 10 years qualifying Australian residence. Between 10 May 2005 and 4 August 2009, Ms El-Menchawy resided in Australia for 177 days. She resided overseas for 1429 days during that period. Mr Hakim has stated that his sister has always intended to make Australia her permanent home.

THE TRIBUNAL’S DECISION

109. The medical evidence, particularly that derived from the Peter MacCallum Clinic records, reports from the Sunshine Hospital, and most recently the opinion of Dr Thomas, indicates that, as of the date of this decision, let alone the date of the original application for DSP, Ms El-Menchawy did not satisfy s 94(1)(b) or s 94(1)(e) of the Act. There are serious doubts as to whether she would satisfy s 94(1)(c).
110. Accordingly, the Tribunal affirms the decision of the SSAT dated 3 March 2010 and also finds that Ms El-Menchawy does not have the 10 year Australian residency requirement for eligibility to receive the DSP.
     

I certify that the one hundred and ten [110] preceding paragraphs are a true copy of the reasons for the decision herein of:

Miss E A Shanahan, Member

Signed:..........................[signed]...............................................

Associate Grace horzitski

Date of Hearing 18 October 2010

Date of Decision 14 February 2011

Advocate for the Applicant Mr S. Hakim

Solicitor for the Respondent Mr T. Tran, Centrelink Advocacy Branch