Arslan and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1256
•24 April 2007
Administrative Appeals TribunalDECISION AND REASONS FOR DECISION [2007] AATA 1256
ADMINISTRATIVE APPEALS TRIBUNAL № V200600811
GENERAL ADMINISTRATIVE DIVISION
Re: MELIHA ARSLAN
Applicant
And: SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Dr R. McRae, Member
Date:24 April 2007
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) R. McRae
Member
SOCIAL SECURITY ‑ disability support pension ‑ lower back pain – arthritis (hands and feet) – agitated depression ‑ whether 20 impairment points ‑ Impairment Table 5.2 ‑ continuing inability to work
Social Security Act 1991 s 94(1), Schedule 1B
Social Security (Administration) Act 1999 ss 41, 42, Schedule 2
REASONS FOR DECISION
24 April 2007 Dr R. McRae, Member
1. Ms Meliha Arslan (the Applicant) seeks a review of a decision made by Centrelink on 6 January 2006. Centrelink acts as the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent). Centrelink decided to cancel the Applicant’s disability support pension (DSP) from 8 March 2006 because she failed to satisfy s 94 of the Social Security Act 1991 (the Act). The decision was affirmed by an authorised review officer on 28 February 2006. The Applicant sought review of the decision by the Social Security Appeals Tribunal (SSAT) on 10 August 2006. The SSAT affirmed the decision. This decision is the subject of the application before the Tribunal.
2. The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) the Act at the time of the cancellation of DSP. The Tribunal’s decision is that the Applicant is not entitled to DSP.
3. The self-represented Applicant was assisted by an appropriately qualified Turkish interpreter. The Respondent was represented by Ms A. Bramley, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).
BACKGROUND
4. The Applicant is a 48-year old Turkish woman, who came to Australia in 1973. She has been married for 32 years and lives with her husband and 19 year old daughter. She studied in Turkey to grade five. The Applicant has worked as a machinist, but ceased this some 15 to 17 years ago. She has poor literacy and language skills. She is currently receiving Sickness Benefit and provides Centrelink with three-monthly medical certificates.
5. The Applicant lodged a claim with Centrelink for DSP on 18 December 1995, claiming lower back pain (T3). A Centrelink officer determined the Applicant was qualified for DSP on 18 January 1996 (T4). The Applicant lodged a Medical Service Update – Disability Support Pension form dated 27 September 2005 advising that her disability was back spinal problems (T23). On 28 September 2005 the Applicant provided a Treating Doctor’s Report (TDR) prepared by Dr S. Saban (T24), her local general practitioner. Dr Saban reported that the Applicant suffered from lumbar canal stenosis, sleep apnoea, bilateral plantar fasciitis, osteoarthritis in cervical spine and carpel tunnel syndrome.
6. Centrelink had the Applicant examined by Dr K. Ong, an examining medical adviser with Health Services Australia, who provided a work capacity assessment dated 5 January 2006 (T25). Dr Ong assessed the lumbar canal stenosis as having an impairment rating of five points according to Impairment Table 5.2 of the Tables for the Assessment of Work Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act. Table 5.2 deals with permanent chronic lumbar incapacity (specifically lumbar canal stenosis). Dr Ong reported that the sleep apnoea was assessed as permanent and required no treatment. Therefore, she allocated an impairment rating of nil points for sleep apnoea under Impairment Table 20. She assessed bilateral plantar fasciitis and arthritis in the right knee as permanent and allocated an impairment rating of nil points under Impairment Table 4. Dr Ong assessed the Applicant’s osteoarthritis of the cervical spine as permanent and allocated an impairment rating of nil points under Impairment Table 5.1. She assessed bilateral carpal tunnel syndrome as permanent and allocated an impairment rating of nil points under Impairment Table 3. Dr Ong concluded that the Applicant was capable of working 30 hours per week (excluding heavy work) with educational training.
7. The SSAT reviewed the medical evidence and assessed the Applicant with an impairment rating of 10 points under Impairment Table 5.2 for permanent chronic lumbar pain. The additional five points were accepted on the basis that pain was radiating to the Applicant’s lower limbs and she had a loss of one quarter of normal range of movement.
APPLICANT’S SUBMISSIONS
8. The Applicant stated that she relies on the three-monthly medical certificates provided for Sickness Benefit. She submitted she was now consulting a psychologist due to depression following notification of cancellation of DSP. She is taking medications for back and feet pain (Panamax and Voltaren 50mg bd), Aropax and a sleeping tablet. The Applicant relied on the TDR from Dr Saban dated 30 March 2006, and a letter dated 4 December 2006 from Ms S. Ozturk, a psychologist. The Applicant submitted her medical conditions were getting worse. The Applicant submitted no new medical evidence relevant to the time of cancellation of DSP.
9. Under cross-examination the Applicant stated that she has not returned to Mr G. Keng, the orthopaedic surgeon who had arranged for a course of [lumbar spinal] injections some 5 months ago, as he is unwell and hospitalised. She confirmed that she is right hand dominant. The medical evidence implies the carpal tunnel symptoms are more pronounced on the left side. The Applicant was unable to recall the last episode of right hand numbness. She stated that she is forgetful re all her problems. She takes Panamax for pain, ingesting a few a week. Her main problem is back pain. She is unable to walk for long.
RESPONDENT’S SUBMISSION
10. The Respondent does not contest the rating of 10 points for the permanent physical condition of lower back pain as determined by the SSAT. It did note that the Applicant is able to maintain the performance of household duties. The Respondent submitted that the Applicant did not satisfy s 94(1)(b) of the Act.
LEGISLATION
11. Section 94(1) of the Act provides that:
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…
12. Paragraphs 4, 5 and 8 of The Introduction to the Impairment Tables provide that:
…
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.
…
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 medical officer 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. Medical officers must use their clinical judgement 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.
…
FINDINGS
Lower Back Pain
13. Radiological imaging evidence indicated a severe L4/5 lumbar canal stenosis. There is evidence to suggest it is permanent, but a contemporaneous functional assessment attracted a rating of 10 points under Impairment Table 5.2. The Applicant provided no new diagnosis, investigation or treatment in evidence. In particular Dr Saban’s TDR dated 30 March 2006 provided no further assistance to the Applicant.
14. Impairment Table 20 provides for impairment ratings for miscellaneous conditions. However where there is a separate loss of function, in addition to the loss which can be rated using the system‑specific Tables, Table 20 can be used. There is no evidence that the use of Table 5.2 would underestimate the level of disability. There is no evidence of a separate loss of function, or global effects of more than one body system. The Tribunal thus considers Table 5.2, and not Table 20, is the appropriate table for assessment of the Applicant’s back impairment. The Tribunal considers the back pain to have been fully investigated, treated and stabilised, and agrees with the SSAT assessment of an impairment rating of 10 points.
Bilateral Plantar Fasciitis
15. Radiological imaging evidence of 10 December 2003 indicated bilateral plantar fasciitis. There is evidence to suggest it is permanent, but a more contemporaneous functional assessment attracted a rating of nil points under Impairment Table 4. The Applicant provided no new diagnosis, investigation or treatment in evidence. In particular, Dr Saban’s TDR dated 30 March 2006 did not provide any assistance to the Applicant.
16. There is no evidence that use of Impairment Table 4 would underestimate the level of disability. There is no evidence of a separate loss of function, or global effects of more than one body system. The Tribunal thus considers Table 4 and not Table 20 is the appropriate table for assessment of the Applicant’s plantar fasciitis. The Tribunal considers the bilateral plantar fasciitis to have been fully investigated, treated and stabilised, and agrees with the SSAT assessment of an impairment rating of nil points.
Sleep Apnoea
17. A medical report from Dr J. Jamieson, a respiratory and sleep disorders physician, dated 12 January 2004 confirmed the diagnosis of mild sleep apnoea. There is evidence to suggest it is permanent, but a more contemporaneous functional assessment attracted a rating of nil points under Impairment Table 20. The Applicant presented no new diagnosis, investigation or treatment related to sleep apnoea in evidence.
18. The Tribunal considers the sleep apnoea to be fully investigated, treated and stabilised, and agrees with the SSAT assessment of an impairment rating of nil points.
Bilateral Carpal Tunnel Syndrome
19. A nerve conduction study dated 25 August 2004 indicated the diagnosis of mild bilateral carpal tunnel syndrome, predominantly on the left (non-dominant) side. There is evidence to suggest the bilateral carpal tunnel is permanent. A contemporaneous functional assessment attracted a rating of nil points under Impairment Table 3. The Applicant presented no new diagnosis, investigation or treatment regarding this condition in evidence.
20. There is no evidence that use of Table 3 would underestimate the level of disability. There is no evidence of a separate loss of function, or global effects of more than one body system. The Tribunal thus considers Table 3 and not Table 20 is the appropriate table for assessment of the Applicant’s bilateral carpal tunnel neurological impairment. The Tribunal considers the bilateral carpal tunnel syndrome to have been fully investigated, treated and stabilised, and agrees with the SSAT assessment of an impairment rating of nil points.
Cervical Spine Pain
21. Radiological imaging evidence dated 27 March 2006 indicated an essentially normal study. There is evidence to suggest the changes in the cervical spine are permanent, but a more contemporaneous functional assessment attracted a rating of nil points under Impairment Table 5.1. The Applicant presented no new diagnosis, investigation or treatment of this condition in evidence. In particular Dr Saban’s TDR dated 30 March 2006 provided no assistance to the Applicant.
22. There is no evidence that use of Table 5.1 would underestimate the level of disability. There is no evidence of a separate loss of function, or global effects of more than one body system. The Tribunal thus considers Table 5.1 and not Table 20 is the appropriate table for assessment of the Applicant’s back impairment. The Tribunal considers the cervical spine pain to have been fully investigated, treated and stabilised, and agrees with the SSAT assessment of an impairment rating of nil points.
CONCLUSION
23. The Applicant has a physical impairment and satisfies s 94(1)(a) of the Act. However, the Applicant does not have an impairment of 20 points or more under the Impairment Tables. Therefore, she does not satisfy s 94(1)(b) of the Act. There is no requirement to consider s 94(1)(c) of the Act in the circumstances.
24. The Tribunal concludes that when Centrelink cancelled her DSP, the Applicant did not satisfy the requirements necessary to qualify for DSP.
DECISION
25. Accordingly, the decision of the Respondent to cancel the Applicant’s DSP was the correct and preferable decision. The Tribunal affirms the decision under review.
I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:
Dr.R. McRae, Member
signed: Olympia Sarrinikolaou
Clerk
Date of Hearing: 5 February 2007
Date of Decision: 24 April 2007
Advocate for the Applicant: Self‑representedAdvocate for the Respondent: Ms A. Bramley, Centrelink Legal Services Branch
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