Alba Penninger and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 489
•27 July 2012
[2012] AATA 489
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0882
Re
Alba Penninger
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 27 July 2012 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY - disability support pension - eligibility - whether claimed conditions fully diagnosed, treated and stabilised - whether claimed conditions attract rating of 20 points under Tables for the assessment of work-related impairment for disability support pension - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) - s 94, Sch 1B
Social Security (Administration) Act 1999 (Cth) - s 42, Sch 2
REASONS FOR DECISION
Senior Member A K Britton
27 July 2012
Ms Alba Penninger has applied to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal, to reject her claim for disability support pension (DSP).
A person is qualified for a disability support pension if, among other things, they have a physical, intellectual or psychiatric impairment, an impairment rating of at least 20 points, and the impairment results in a continuing inability to work (s 94 of the Social Security Act 1991 (Cth) (the Act)).
There is no argument that Ms Penninger suffers from multiple health problems. The issue in dispute is whether each of the claimed conditions — allergy to dust and mould, left shoulder and back pain, dermatitis and a torn retina — have been fully diagnosed, treated and stabilised and, either separately or in combination, achieve the prescribed impairment rating.
The assessment of whether Ms Penninger qualifies for disability support pension must be made by reference to the 13-week period following the date she made a claim for DSP, namely, from 19 August 2011 to 18 November 2011 (s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth)).
ASSESSMENT OF IMPAIRMENT
As noted, to qualify for DSP the person’s impairment must attract a rating of at least 20 points as measured using the Tables for the Assessment of Work-Related Impairment for Disability Support Pension. Ms Penninger’s impairment must be assessed under the version of the Tables in Sch 1B of the Act as in force during the relevant period (the Tables). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 applies only to DSP claims made on or after 1 January 2012 and therefore has no application.
The Tables contains 20 systems or disorder specific tables. In addition, one table, Table 20, covers miscellaneous conditions, including pain and fatigue and another, Table 21, covers intermittent conditions. The Introduction to the Tables states that they are designed to assess whether a claimant “meets an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work”. In addition, the Introduction mandates the approach that must be taken to the assessment of the claimed impairment.
Paragraphs 4, 5 and 6 of the Introduction are relevant and for convenience are set out below:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
BACKGROUND: CLAIM FOR DSP
In 2006, Ms Penninger fell down a flight of stairs, fracturing some fingers and injuring her left shoulder, neck and back. In 2009, a left shoulder arthroscopy was performed. She contends that since the 2006 injury her health has deteriorated to such an extent that by 2011, despite a strong work ethic and what she described as “the least physically demanding job of her life”, she was forced to resign from her position as a court officer. She has not worked since June 2011.
In support of her claim for DSP, Ms Penninger provided Centrelink with a pro forma medical report dated 2 September 2011 prepared by her GP, Dr Neela Vallabhjee. Dr Vallabhjee stated that Ms Penninger suffered from a number of conditions and, as instructed by Centrelink, listed them in order, starting with the condition she considered to have the most impact on Ms Penninger’s ability to function:
Allergy to Dust and Mould
…
Left Shoulder Pain/Back Pain
…
Dermatitis unexplained
…
R[ight] Eye Torn Retina
APPROPRIATE TABLE
An issue in dispute between the parties is under which Table Ms Penninger’s shoulder and back should be assessed. Ms Penninger contends that each should be assessed under Table 20, which covers miscellaneous conditions including Pain. The Secretary disagrees and contends that Ms Penninger’s shoulder should be assessed under Table 3 and her back under Table 5. For present purposes, I will consider an assessment under each table and determine which is the appropriate table.
Condition 1: left shoulder
There is no argument that Ms Penninger suffers from a left shoulder condition that has been fully diagnosed, treated and stabilised. The Secretary contends that assessed under Table 3, the shoulder attracts a nil rating. Ms Penninger on the other hand contends that the appropriate table is Table 20.
Table 3. Upper Limb Function provides:
…
Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.
TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.
TWENTYDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non‑dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
On receiving Ms Penninger’s claim for DSP, Centrelink referred her for assessment to a Job Capacity Assessor. In a report dated 14 October 2011, the assessor recorded that Ms Penninger’s “current symptoms include pain from her left shoulder to wrist which is exacerbated when pushing or carrying heavy weight”. The assessor concluded that Ms Penninger’s shoulder should be assigned a nil rating under Table 3 and wrote:
Can use dominant limb effectively and/or demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
Eight months later, Ms Penninger was again assessed at the request of Centrelink. That assessment was undertaken by a different assessor, who, in a report dated 8 June 2012, recorded that Ms Penninger reported some loss of strength in her left upper limb, especially when performing tasks requiring a push movement or carrying heavy weights. The assessor recorded that Ms Penninger reported that because of her shoulder she avoided activities likely to exacerbate her pain; but despite this she was able to perform housework and shopping although she had to “pace herself due to exacerbations of pain which could occur with prolonged physical activity”. The assessor gave an impairment rating of nil.
The evidence given by Ms Penninger in these proceedings was consistent with the history taken by the assessors. She testified that since the initiating injury in 2006 she has suffered significant shoulder pain when undertaking tasks such as carrying groceries, vacuuming, making up beds and driving a manual car. She claimed that out of necessity she continues to carry out these and other domestic tasks but “pays for it” the following day and is sometimes confined to bed. She stated that for a number of years she has been unable to undertake more taxing tasks such as hanging out washing or carrying heavy groceries.
As Ms Penninger is right hand dominant, to attract a rating of 15, as she contends is appropriate, there must be “demonstrable evidence of major loss of strength…which causes significant interference with…manual handling”. While there is demonstrable evidence of loss of strength I do not accept that it could be characterised as “major”, or, the degree of consequent interference with manual handling, “significant”.
The real issue raised is whether Ms Penninger’s loss of strength causes “mild” or “moderate” interference with manual handling thus attracting a rating of nil as opposed to five under Table 3. The conclusion reached by each of the assessors that Ms Penninger’s loss of strength causes “mild” interference with manual handling appears to be based on the finding that she is able to undertake some tasks that require a degree of upper limb strength. In my opinion, the assessment of the degree of interference should not be approached by simply asking – “Can the person undertake the subject task?” — but requires consideration to be given to whether the task can be undertaken safely and within reasonable pain tolerances. In my opinion the assessors failed to give proper regard to the pain experienced by Ms Penninger as a result of undertaking even relatively light manual handling.
I accept Ms Penninger’s testimony that is she is unable to undertake heavy domestic tasks and often experiences some pain after undertaking less arduous tasks. While difficult to apportion the extent to which her impaired function is the result of her back or shoulder problems, it seems to me that consistent with the opinion held by the assessors, it is attributable at least in part to her shoulder pathology. While there is no clear dividing line between a loss of strength which causes “mild” as opposed to “moderate” interference with manual handling, I conclude that in Ms Penninger’s case, it falls towards the “moderate” end of the spectrum.
Being satisfied that there is demonstrable evidence of loss of strength of Ms Penninger’s left upper limb which causes moderate interference with manual handling, I have decided that a rating of five is appropriate.
Condition 2: thoraco-lumbar spine
It is agreed and I accept, that in the relevant period, Ms Penninger’s back condition, described by her GP as “Back Pain”, was a fully documented and diagnosed condition which had been investigated, treated and stabilised.
Under Table 5. Spinal function, determination of spinal impairment must be based on “demonstrable loss of function”. Table 5 contains two sub-tables — cervical spine and thoraco-lumbar spine, the latter being applicable in this case:
TABLE 5. SPINAL FUNCTION
Determination of spinal impairments must be based on a demonstrable loss of function.
…
TABLE 5.2 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.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TENLoss 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.
TWENTYLoss 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.
FORTY Ankylosis in an unfavourable position, or unstable joint.
Ms Penninger testified that throughout the relevant period she suffered significant back pain when undertaking many physical activities. She testified that in late December 2011 she collapsed to the floor and was disabled by excruciating pain. She stated that a dislocated rib was later diagnosed. According to Ms Penninger the acute pain continued for a few weeks and she remained in significant pain and unable to perform many tasks for a number of months.
The range of motion of Ms Penninger’s back has been assessed on two occasions — in October 2011 by physiotherapist Ms Jodie Hagen at the request of Centrelink, and in February 2012 by Sports and Exercise Physician, Dr Jeni Saunders. Ms Hagen found on testing that Ms Penninger had full range of movement of her thoracic and lumbar spine. Dr Saunders on the other hand found significant reduction in the range of movement and provided an assessment under Table 5.2 of 20 points.
Ms Penninger believes that Ms Hagen conducted a perfunctory test and pointed out that in contrast to Dr Saunders, in the test conducted some six months later, Ms Hagen failed to, among other things, test her reflexes or conduct a thorough physical examination. Even if accepted that Ms Hagen’s examination was defective, as Ms Penninger contends, Dr Saunders’s finding does not shed light on the range of movement of Ms Penninger’s lumbar-thoracic spine throughout the relevant period given the compelling evidence of a material deterioration in Ms Penninger’s spine in the intervening period between the two tests, including:
(a)Ms Penninger’s account of a significant incident in December 2011 which left her disabled by pain for a number of months;
(b)Dr Saunders’s description of that incident as a “further discal injury”;
(c)Dr Saunders’s opinion about the state of Ms Penninger’s back following examination on 14 June 2011 “[Ms Penninger’s back] is beginning to feel better in terms of its range of movement ...”; and
(d)the results of an MRI performed in April 2012, revealing the development of significant pathology in Ms Penninger’s lumbar spine since the MRI performed 11 months earlier.
To attract a rating of five or more under the Table, there must be evidence of restricted range of movement of Ms Penninger’s thoraco-lumbar spine of at least one quarter of the normal range of movement. The evidence before me does not support that finding. Accordingly the only appropriate rating is nil.
Condition 3: skin disorder
The Secretary contends that a rating cannot be given to Ms Penninger’s skin condition because it was not fully diagnosed, treated and stabilised at any time in the relevant period. Ms Penninger disagrees. The resolution of this issue requires consideration of the history of the condition.
According to Ms Penninger, after the left shoulder arthroscopy performed in 2009, a rash appeared on her skin, initially in the area where the sling she had been wearing came in contact with her body and later spreading to other parts of her body. She testified that following a visit to Canberra around mid-September, her skin condition deteriorated significantly. In support, she tendered a photograph of the back of her neck, taken around late October, which showed a rash of about 5 x 2cm in dimension. According to Ms Penninger, the skin irritation was stinging, burning and itching and spread to her scalp. On her account, the condition persisted until late 2011, when she found that the skin condition was responsive to treatment with paw-paw cream.
In my opinion, it could not be said that the condition had been fully diagnosed in the relevant period. Dr Vallabhjee’s description of “dermatitis unexplained” indicates that there was some uncertainty about the cause of the condition. In addition, the evidence does not suggest that the condition was then fully treated and stabilised. By mid-September, Ms Penninger had tried a number of natural remedies without any great success and it was not until later that year that she discovered that the condition responded to treatment with paw-paw cream. In addition, there is no medical evidence to suggest that the condition was likely to persist for at least two years.
Not being satisfied that Ms Penninger’s skin condition was a fully documented, diagnosed condition which had been treated and stabilised, a rating under the Tables cannot be assigned.
Condition 4: respiratory condition
Ms Penninger’s GP described the condition she believed to have the most impact on her patient’s ability to function as “allergy to dust, mould and mildew”. The GP described the symptoms as “coughing and vomiting” and stated that the condition was being treated with bronchodilators, Seretide, Ventolin and Panadol. She described the effect of the condition on Ms Penninger’s ability to function as “difficulty working in dusty environment and old buildings”.
Ms Penninger testified that she was first diagnosed with asthma in her late teens and it largely went away when she became pregnant with her first child. On her account, in 2002, while working in the basement of an old building, she had difficulty breathing and developed a “shocking cough”. She claims that the coughing continued for some months and caused her to vomit.
On the basis of the GP’s opinion, I accept that Ms Penninger’s condition is a fully documented, diagnosed condition which had been investigated, treated and stabilised
Respiratory condition: assignment of rating
Ms Penninger contends that her respiratory condition should be rated ten under Table 21. Intermittent Conditions; the Secretary contends that the appropriate rating is nil.
Table 21 covers “Intermittent but continuing disorders that remain asymptomatic between discrete episodes of impairment”. Under the Table, the subject condition is rated by reference to:
severity during an attack is defined in the descriptions below;
duration is defined in the descriptions below;
frequency is determined by the number of affected days in a year.
…
The rating of a condition under the Table involves the following steps:
(i)First, determine the severity of the condition (Table 21.1)
(ii)Second, determine the duration of the condition (Table 21.2)
(iii)Third, make an intermittent rating by “coding” the condition’s severity and duration (Table 21.4)
(iv)Fourth, determine the frequency of the condition (Table 21.4)
(v)Finally, assign a rating (Table 21.3 and 21.4)
Ms Penninger conceded that she found it difficult to estimate the number of days in 2011 that she suffered what she described as “bad asthma” – that is, coughing of up to one minute and requiring Ventolin and/or Seretide up to six times each day. She thought that her asthma was severe enough to use Seretide etc. on 100 days throughout 2011, of which on 21 days the coughing was of such intensity as to cause her to dry retch.
On the basis of her self-report, I have decided that:
·the severity of Ms Penninger’s condition attracts a “Level 2” rating – “More severe symptoms which are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self-care is unaffected and independence is retained.”
·in terms of duration, the condition is best described as “short” lasting more than five but less than 30 minutes.
This gives a severity rating under Table 21.3 of “C”. Applying a frequency rating of 100+ (affected days p.a.) gives an impairment rating of five.
Condition 5: torn retina
The parties agree that Ms Penninger’s claimed eye condition was fully treated and stabilised in the relevant period and attracts a rating of nil under the Tables.
CAN AN ASSESSMENT BE MADE UNDER TABLE 20?
Ms Penninger submits that the pain and fatigue associated with her shoulder and spine conditions should be assessed under Table 20 and the appropriate rating is 20. The Secretary contends that an assessment under Table 20 is unwarranted because none of the medical reports make any significant mention of pain associated with these body parts.
The Introduction to the Tables provides:
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the assessor is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Assessors must use their judgment and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.
9. Always use a table specific to the functional impairment being rated unless the instructions in a section specify otherwise.
…
In support of her contention that the appropriate table is Table 20, Ms Penninger claims that:
·she is unable to carry out efficiently many everyday activities including housework, cooking and ironing;
·she cannot perform a number of everyday tasks such as making beds, vacuuming, hanging out washing and cleaning the car on account of pain and fatigue; and
·simple tasks such as driving, standing and walking aggravate her fatigue.
Table 20 cannot be used unless: (i) there is evidence of chronic entrenched pain and (ii) the decision-maker has formed the opinion the relevant Table underestimates the level of disability because of the presence of such pain. In addition, medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.
Neither of the assessors provided an assessment under Table 20 or gave reasons for not doing so.
While there are references in some medical reports to Ms Penninger reporting pain, see for example the GP’s report dated 2 September 2011, they do not consistently refer to the presence of “chronic entrenched pain or fatigue”. While Ms Penninger suffers from a degree of pain and which, in the case of her shoulder, she has experienced for a number of years, I do not think it could be described as either chronic or entrenched. Further, I am not persuaded Tables 3 and 5 underestimate the level of disability experienced by Ms Penninger. For these reasons, I have decided that it is not appropriate to make an assessment under Table 20.
SUMMARY
Ms Penninger has a total impairment rating of ten points. As she does not meet the requirement of an impairment rating of at least 20 points, she does not satisfy the criteria for DSP. This is not to suggest that I do not accept Ms Penninger’s claim that she suffers from multiple health problems, but rather that she does not satisfy the criteria for a DSP.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of ................................[sgd]........................................
Associate to Senior Member A K Britton
Dated 27 July 2012
Date(s) of hearing 9 July 2012 Applicant In person Solicitors for the Respondent Ms H Schuster, Centrelink Program Litigation and Review Branch
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