Amanda Kubbere and Secretary, Department of Social Services

[2015] AATA 307

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2014/4766

General Administrative Division               )

Re: Amanda Kubbere

Applicant

And: Secretary, Department of Social Services

Respondent

DIRECTION

TRIBUNAL:             Mr S Webb, Member

DATE:   22 May 2015

PLACE:                  Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that the File Number on page 1 reads ‘2014/4766’.

..................................[sgd].................................

Mr S Webb, Member

[2015] AATA 307 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5455
Re	Amanda Kubbere
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Mr S. Webb, Member
Date	8 May 2015
Place	Canberra

The decision under review is affirmed.

...............................[sgd].........................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – impairment rating – permanence of conditions – requirement for 20 impairment points not met - decision affirmed

LEGISLATION

Social Security Act 1991 s94

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mr S. Webb, Member

8 May 2015

1. Amanda Kubbere was badly injured in a motor cycle accident in 1985. She sustained multiple injuries, principally affecting her right lower limb and pelvic girdle. She recovered with treatment but the effects of her injuries and subsequent surgical treatments continue to affect her ability to function. Despite this, she was in employment until 2013. When her employment came to an end, she claimed Disability Support Pension (DSP). Her claim was rejected by primary determination and on review by the Social Security Appeals Tribunal. Ms Kubbere does not agree with these decisions and has applied for review.

   issue

2. The issue to be decided is whether Ms Kubbere’s claim for DSP should be granted.

3. It is important to note that in order for a DSP to be payable in respect of her claim, Ms Kubbere must meet the qualification requirements of s 94 of the Social Security Act 1991 (the Act) on the day she made her claim or with 13 weeks thereafter. This means that the qualification period in Ms Kubbere’s case starts on 4 March 2014 and finishes on 13 June 2014.

   impairments

4. Ms Kubbere maintains that she suffers a number of conditions and impairments, affecting different parts of her body:

   (a)right lower limb – the effect of fractures and surgical treatments over time, causing reduced mobility, reduced range of motion in the right ankle, chronic pain in the right foot and in the right low limb;

   (b)hips – bursitis, causing reduced range of motion and pain;

   (c)lower back – the effect of altered gait over years, causing stiffness, reduced ability to bend and chronic pain from her hips to the base of her shoulder blades;

   (d)left shoulder – the effect of a torn tendon that was left undiagnosed and untreated after the 1985 accident, exacerbated by having to use crutches for mobility, causing reduced range of motion, inability to raise her left arm to shoulder height and chronic pain;

   (e)neck – arthritis secondary to her left shoulder condition and using crutches for years, causing chronic pain;

   (f)chronic pain as described above, causing loss of concentration, reduced stamina and reduced capacity to undertake most activities.

5. The Secretary concedes that Ms Kubbere suffers from a physical lower limb condition, causing the following impairments for the purposes of s 94(1)(a) of the Act:

   (a)reduced mobility and ability to walk;

   (b)chronic pain;

   (c)reduced range of motion in the right ankle;

   (d)reduced capacity to stand and climb stairs;

   (e)reduced lower back or hip range of motion and ability to bend.

6. The Secretary contends that Ms Kubbere did not suffer any other impairments during the qualification period.

7. I do not agree.

8. The requirement of s 94(1)(a) is simply that –

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

9. The word ‘impairment’ is not defined in the Act. I see no reason why the ordinary meaning of ‘impairment’ in common usage cannot be adopted - the action of impairing, or fact of being impaired; deterioration; injurious lessening or weakening (Oxford English Dictionary, online edition, 2015).

10. The limited definition of ‘impairment’ set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) at cl 3  - ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’ - serves the purposes of s 94(1)(b), but it does not generally restrict the meaning of ‘impairment’ under the Act or under s 94(1)(a).

11. There is clear medical evidence pointing to impairments, in the ordinary sense, Ms Kubbere suffered prior to and during the qualification period.

12. On 24 February 2014, Dr Bak, a treating rheumatologist, reported –

    “… She has lower back pain going down to her hip girdle and she cannot walk normally for any distance at all. She also has a problem with her left shoulder, not being able to abduct the shoulder…

    On examination today … She had fairly limited lower back movements and there was tenderness in her trochanteric bursae bilaterally. I don’t think there was a small joint problem and she had limited abduction in her left shoulder.

    … she has a major mechanical issue in her lower back and hip girdle as well as the left shoulder…” (T21)

13. Following further investigations, on Dr Bak reported:

    (a)on 8 April 2014 -  a full thickness tear of the left supraspinatus tendon and “bone scan and CT scan of the lumbosacral spine are relatively normal and I think she has soft tissue problem around her back and hip girdle” (T22);

    (b)on 11 April 2014 – administering corticosteroid injections to her left trochanteric bursa and to her left subacromial bursa, and “ultrasound of the right ankle which demonstrates Achilles tendonitis” (T23);

    (c)on 9 May 2014 – the corticosteroid injections were “reasonably effective” and “This lady has pain due to mechanical reasons” (T24).

14. On 23 April 2014, Dr Ma, treating general practitioner, reported –

    “1. Chronic, daily, persisting pain in right leg, right ankle, scars, hips, neck, lower back, shoulders 2. Limited mobility to 50 metres 3. Reduced capacity to stand or sit for > 10 minutes 4. Difficulty concentrating and sleeping due to pain.” (T15 folio 120)

    “1. Reduced ability for sitting/standing <10 minutes 2. Reduced mobility & ability to walk as she is using bilateral Canadian crutches 3. Reduced concentration due to chronic pain 4. Otherwise able to self-care” (T15 folio 121)

15. On 27 July 2014, Dr Ma referred Ms Kubbere to Bo Li, a physiotherapist, and said –

    “Thank you for seeing Amanda Kubbere age 47 yrs who presents with several years of urge incontinence which is becoming more severe… Her symptoms are now occurring on a daily basis and are only occasionally brought on by stress (coughing, laughing)…” (T25 folio 144)

16. On this evidence, I am reasonably satisfied that Ms Kubbere had the following physical and psychiatric impairments during the qualification period –

    (a)reduced mobility including reduced ability to walk and climb stairs;

    (b)reduced ability to stand or sit for more than 10 minutes;

    (c)reduced range of right ankle motion;

    (d)reduced range of low back and hip girdle motion;

    (e)reduced range of left shoulder motion;

    (f)reduced concentration; and

    (g)urge incontinence.

17. It follows that s 94(1)(a) is satisfied.

    impairment ratings

18. Ms Kubbere says that her impairments are sufficient to justify a rating of 20 or more impairment points. In her submission, she is very seriously disabled and fully meets the criteria for a rating of 10 points under Table 1 and a rating of 10 points under Table 3 of the Impairment Tables.

19. The Secretary does not agree, arguing that a rating of 10 points under Table 3 in respect of the lower limb and related impairments is appropriate. In the Secretary’s submission, no other impairment rating can be given.

20. The Secretary says that it is not permissible to double-count an impairment under different Tables, as only one rating can be given under the appropriate Table. For this reason, so the argument goes, impairments that are the result of Ms Kubbere’s lower limb condition must be assessed and a rating given under Table 3, concerning lower limb function, alone, and not under Table 1, concerning physical exertion and stamina, as well. Furthermore, when assessing the functional impact of pain, it is necessary to make the assessment under the appropriate Table for the area of function affected. On this basis, the Secretary says that Ms Kubbere’s chronic pain, her reduced ability and mobility, the reduced range of motion in her lower back and hip girdle, and her loss of concentration, must all be assessed under Table 3.

21. As for Ms Kubbere’s left shoulder condition and her incontinence, the Secretary says that these conditions were not fully diagnosed, treated and stabilised, and they cannot be treated as ‘permanent’ during the qualification period. This means that no rating can be given under any Impairment Table.

22. The Impairment Tables must be applied according to the rules set out in Part 2 unless a rule is not consistent with the purposes of the Act. A rating may only be assigned under the applicable Table where a ‘condition’ that is ‘permanent’ causes an ‘impairment’ that is likely to persist for more than 2 years.

23. For the purposes of the Impairment Tables, ‘impairment’ is defined to mean ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’.

24. For a condition to be ‘permanent’, the tests of permanence set out in cl 6(4) must be satisfied.

25. I do not accept the proposition that the multiple fractures and related pathology in Ms Kubbere’s right ankle, right leg, both hips and lower back can be reasonably or appropriately considered as one ‘condition’ for present purposes. To my mind it is necessary to distinguish pathological features and clinical findings in respect of separate but related conditions.

26. Considering all of the medical evidence, I am satisfied that she has the following ‘conditions’ –

    (a)fused right ankle (Exhibit A2 refers) with “Palpable distal fibular at the osteotomy site” (Exhibit A5);

    (b)osteoarthritis “in the TMT joint of her right foot” (Exhibit A4);

    (c)chronic nociceptive and neuropathic pain in the right lower limb associated with formication in the right foot (Exhibit A3);

    (d)Achilles tendonitis;

    (e)bilateral trochanteric bursitis;

    (f)functional mechanical low back pain;

    (g)carpal tunnel and arm and neck pain from using crutches (Exhibit A3);

    (h)supraspinatus tear in the left shoulder; and

    (i)urge incontinence.

    Fused right ankle

27. In view of Dr Kuo’s report dated 4 December 2014, I am satisfied that this condition was permanent during the qualification period. I am also satisfied that is caused reduced ability to walk and climb stairs, reduced ability to stand or sit for more than 10 minutes and reduced range of right ankle motion.

28. This functional impairment is likely to persist for more than two years.

    Right foot osteoarthritis

29. On 11 April 2014, Dr Bak reported that Dr Kuo, an orthopaedic surgeon, was considering further surgical interventions to address osteoarthritic pain in Ms Kubbere’s right foot. Dr Kuo was not called to give evidence and he does not address this point in his December 2014 report (Exhibit A2). The basis of Dr Bak’s comment is not clear; nor is it corroborated by other medical evidence. No further evidence was adduced or given on this point.

30. It is not presently established that Dr Kuo recommended further surgical treatment for this condition. Considering all of the evidence before me and Ms Kubbere’s medical history of post-traumatic osteoarthritis in her right foot, on balance, I accept that this condition was permanent during the qualification period.

31. I accept that this condition causes pain, particularly in motion. I am satisfied that it causes reduced mobility and reduced ability to stand or sit for periods longer than 10 minutes.

32. This functional impairment is likely to persist for more than 2 years.

    Chronic nociceptive and neuropathic pain in the right lower limb associated with formication in the right foot

33. On the evidence of Dr Ma (T6 folio 53, T12 folio 101 and T15 folio 120) it is quite clear that Ms Kubbere has experienced chronic pain in her right lower limb for many years, including during the qualification period. Treatment for chronic pain included pharmacological preparations, such as Tramadol which was first prescribed in 2005 (T12 folio 100). The first reference I can find in the materials before me to ‘nociceptive and neuropathic pain’ and ‘formication’ is in the report of Dr Thong, a pain management specialist, on 11 December 2014. These descriptors of Ms Kubbere’s chronic pain may represent a new diagnosis for present purposes, indicating allodynia and pain symptomatology consequent to nerve damage and nociception not previously diagnosed as such. On balance, I think the better conclusion is to treat Dr Thong’s ‘diagnostic summary’ of this condition as a new description of a long-standing condition.

34. I note that Dr Thong changed Ms Kubbere’s analgesic prescription in the hope she might obtain better pain relief. To my mind, this does not represent new treatment for a newly diagnosed condition.

35. I am satisfied that Ms Kubbere’s chronic pain condition was permanent during the qualification period.

36. As regards impairments resulting from this condition, I accept that her chronic pain causes reduced mobility, reduced capacity to stand or sit for periods longer than 10 minutes and reduced concentration. While I am satisfied that Ms Kubbere’s reduced mobility and reduced capacity to stand or sit are likely to persist for more than two years as they result from other conditions, the same cannot be said for her reduced concentration.

37. On Dr Ma’s evidence, Ms Kubbere’s reduced concentration is “due to pain”. On 30 October 2014, Ms Webb reported that “A long-term management plan of physio, medication management, psychological support and a functional re-training program may result in some improvements in pain and function… This multi-disciplinary management plan may be best undertaken from within a live-in chronic pain program” (Exhibit A5, page 3). Treatment of this kind, involving psychological support, may assist her to cope with pain and improvement of that kind could reasonably be expected to improve her capacity to concentrate.

38. For this reason, it is not established that this impairment is likely to persist for at least two years, and it cannot, therefore, be rated.

    Achilles tendonitis

39. The first (and only) reference to this condition is found in Dr Bak’s report dated 11 April 2014. As can be seen, Dr Bak suggests that “stretching exercise and physiotherapy may help her issue with Achilles tendon” (T23 folio 142). Clearly enough, this condition was not fully treated and stabilised at that time. I am satisfied that this condition was not permanent during the qualification period.

    Bilateral trochanteric bursitis

40. Dr Ma’s report dated 24 July 2013 does not refer to bilateral hip pain (T6 folio 53). The Doctor reported on 24 February 2014 “Probably will require bilateral corticosteroid injections to hips” (T12 folio 101).

41. On the evidence of Dr Bak (T23 and T24) and Dr Ma (T15 folio 120), I am satisfied that treatment of Ms Kubbere’s bilateral trochanteric bursitis and hip pain was ongoing during the qualification period. For this reason I am unable to find that the condition was fully treated or stabilised at that time. This is so even though, on Dr Bak’s evidence, this condition is caused by ‘mechanical reasons’ which probably include Ms Kubbere’s antalgic gait (see Exhibit A5, page 2), consequent upon her right leg being shorter than her left following ankle fusion surgery in 2013.

    Functional mechanical low back pain

42. Dr Ma did not refer to this condition or to symptoms of this kind in her July 2013 and February 2014 reports. On 24 February 2014, Dr Bak reported “fairly limited lower back movements” and organised radiological investigation of Ms Kubbere’s lumbosacral spine (see T21). On 8 April 2014, he concluded that “she has soft tissue problem around her back and hip girdle” (T22). It is probable, but not entirely clear, that he attributed this condition to the same mechanical reasons that caused her bilateral trochanteric bursitis.

43. The present evidence is not sufficient to determine whether any treatment for Ms Kubbere’s low back condition was recommended, planned or undertaken, although I note that she gave evidence about physiotherapy treatments. She did not continue with these treatments for financial reasons.

44. The corticosteroid treatment Dr Bak administered during the qualification period was specifically for trochanteric bursitis and not treatment for low back pain.

45. In view of the scant evidence concerning Ms Kubbere’s low back condition and Ms Webb’s recommendation for a multi-disciplinary treatment regime, including physiotherapy and psychological support, I think the correct conclusion is that this condition was not fully treated and stabilised, and it was not permanent, during the qualification period.

    Carpal tunnel and arm and neck pain

46. There is only very scant evidence about this condition. It is not presently established that the condition was fully diagnosed, treated and stabilised during the qualification period. For this reason it is not permanent for present purposes.

    Supraspinatus tear in the left shoulder

47. I accept that this condition is one of long-standing. Nevertheless it was only diagnosed following an MRI scan reported by Dr Bak on 8 April 2014 (T22). At that time, the Doctor reported “she is reluctant to undergo another surgery and we will inject the area first and see what happens”. Clearly enough, treatment was then about to commence.

48. On 9 May 2014, Dr Bak reported “The injection into … right [sic: left] subacromial bursa [was] reasonably effective and she is happy with the result” (T24). In October 2014, Ms Webb reported that Ms Kubbere “has been advised that she may require a rotator cuff repair” (exhibit A5, page 2) in her left shoulder.

49. I am unable to find that this condition was fully treated and stabilised during the qualification period. For this reason it cannot be considered permanent at that time for present purposes.

    Urge incontinence

50. The first reference to this condition appears to be a referral on 26 June 2014 by Dr Ma to Bo Li, a physiotherapist.

51. The qualification period ended on 13 June 2014. It follows that this condition cannot be considered fully treated and stabilised, or permanent, for present purposes.

    Summary impairment rating

52. Under cl 10(5) and (6) of the Impairment Tables, where multiple conditions cause a common impairment, only one rating under a single Table may be given. It follows that each impairment must only be rated once.

53. When determining the appropriate Table, cl 10(1) applies. The first step is to identify the loss of function. Reference is then made to the Table related to the function affected. And then the correct impairment rating is to be identified.

54. Ms Kubbere’s functional impairment that results from permanent conditions is reduced mobility and ability to stand or sit for more than 10 minutes.

55. Reduced mobility and ability to stand or sit for more than 10 minutes is appropriately assessed under Table 3.

1. The Introduction to Table 3 – Lower Limb Function states that:

   Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring use of the legs or feet.

2. The present evidence establishes that there is a moderate functional impact on activities using the lower limbs. Ms Kubbere is unable to walk far outside her home and needs to drive to local shops or facilities. She is able to drive her car. She can walk from a car park into and around a shopping centre, albeit with some difficulty, and she can stand up from sitting (including getting out of her car) without assistance from another person.

3. Her reduced mobility and ability to stand or sit for more than 10 minutes impairment meets the criteria for a rating of 10 points under Table 3.

4. Ms Kubbere argued that Table 1 and Table 4 should also apply in her case. While I am sympathetic to her case, and I accept that she experiences difficulty and pain as a result of a number of disabling conditions to which I have referred, I cannot accept this submission. On the present evidence, I am not persuaded that her reduced endurance in respect of standing or sitting and her reduced mobility can be separately rated as they are closely related features of reduced lower limb function resulting from her fused right ankle and her right lower limb osteoarthritis. For this reason Table 1 cannot apply as well as Table 3 when assessing this functional impairment.

5. Table 4 applies in respect of spinal function. It is not presently established that Ms Kubbere’s low back condition was permanent during the qualification period. Table 2 does not apply in respect of her left shoulder condition for this reason.

6. In sum, Ms Kubbere’s lower limb impairment is rated at 10 points. That being so, it follows that the requirement of 20 impairment points under s 94(1)(b) is not met.

7. This means that Ms Kubbere does not meet the qualification requirements for a DSP pursuant to the claim she lodged on 4 March 2014 and the decision under review must be affirmed.

8. It is not necessary to proceed further to consider other qualification requirements in respect of a continuing inability to work or participation in a program of support.

9. In closing it is appropriate to observe that even if I was to accept that Ms Kubbere’s arguments in respect of Table 1, such that her impairments might warrant a rating of 20 points (and I make no such finding), it would not assist her claim. On the evidence before me, Ms Kubbere does not meet the requirements of s 94(1)(c). Her impairments do not constitute a ‘severe impairment’ with a rating of 20 or more points under a single Table, and she does not meet the program of support participation requirement.

   decision

10. The decision under review is affirmed.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

...............................[sgd].........................................

Associate

Dated 8 May 2015

Date(s) of hearing	30 April 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services