Austin and Secretary, Department of Family and Community Services

[2003] AATA 907

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 907

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1976

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LYNETTE JUNE AUSTIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date10 September 2003

PlaceSydney

Decision The decision under review is affirmed. 

...............................................

Ms N Bell,
  Member

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – whether physical impairment of 20 points or more exists – whether impairment was fully documented, diagnosed, investigated, treated and stabilised within the relevant period – decision affirmed

LEGISLATION

Social Security Act 1991, section 94, Schedule 1B
Social Security (Administration) Act 1999, Schedule 2, Part 2, section 4

REASONS FOR DECISION

10 September 2003 Ms N Bell, Member

1.      This is an application for review by Ms Lynette Austin ("Applicant") of the decision of the Social Security Appeals Tribunal ("SSAT") dated 6 November 2002 which affirmed the decision of an authorised review officer of Centrelink dated 7 June 2002 to reject Ms Austin's claim for disability support pension (“DSP”). The Respondent to the application is the Secretary, Department of Family and Community Services.

2.      A hearing in this matter was held before the Tribunal on 1 August 2003.  The Applicant was assisted and represented by Ms Marie Cowling, and the Respondent was represented by Mr Andrew Zhang.  The Applicant and Ms Cowling gave oral evidence to the Tribunal.

3.      The Tribunal had before it the following documentary evidence:

Exhibit No	Description	Date
TD1	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-29 pp1-124
A1	Report Dr Ian Hargreaves	7 April 2003
A2	Report Dr J E Pattison	4 April 2003
A3	Report Dr Robin Diebold	17June 2003
R1	Respondent's Statement of Facts and Contentions	7 July 2003

background

4. The Applicant lodged a claim for DSP on 25 March 2002, having injured her left shoulder and arm in a fall. She was examined by a doctor from Health Services Australia in May 2002 who allocated no points to the Applicant under the Tables contained in Schedule 1B to the Social Security Act 1991 ("the Act"). Her injury at that time was considered, by the Respondent, to not yet have been fully treated and stabilised as required by the Tables in Schedule 1B.

issue

5. The issue to be considered by the Tribunal is whether, in accordance with section 94 of the Act, the Applicant has a physical, intellectual or psychiatric impairment, and, if so, whether her impairment is of 20 points or more under the Impairment Tables, and, if so, whether she has a continuing inability to work.

6. Section 94 of the Act provides relevantly:

"Qualification for disability support pension

94(1)   A person is qualified for disability support pension if:

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

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c)      one of the following applies:

(i)       the person has a continuing inability to work;

(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; …

applicant's evidence

7.      The Applicant told the Tribunal that, on 25 October 2001, she fell in the dark and dislocated and fractured her left shoulder.  She said she went back to work as a cleaner at the Imperial Hotel after about two months and attempted to work for a further two months.  She said that she had too much pain and so left work and was told by her employer that her employment would be terminated. The Applicant claimed DSP on 28 March 2002.

8.      The Applicant said that she saw Dr Diebold in June 2003 and was referred to the Royal North Shore Pain Clinic but cannot get into the clinic until November of this year.  She is having physiotherapy fortnightly and taking sleeping tablets at night.

9.      The Applicant said that now her right arm has become painful and, on most days, the pain becomes too much. She said she experiences pain in her right elbow joint but can grip with her right hand.  However, she is unable to do any heavy lifting.

10.     The Applicant said that her left arm is a lot worse than it was at the time she claimed DSP, with a great deal more pain in her shoulder and in her fingers. She said she is very distressed by the pain and by having to live with her daughter, on whom she is now dependent. She said she has considered suicide.

11.     The Applicant told the Tribunal that her hip has begun causing her pain in the last few weeks and she experiences pain on walking and at night. She also said that she has arthritis in her back and high blood pressure.

12.     The Applicant stated that she has attended Ms Cowling, as a counsellor, on two occasions.

13.     The Applicant said that she has been experiencing pain in her right hand and elbow since about Christmas 2002. She is now wearing a splint on that arm.

ms cowling's evidence

14.     Ms Cowling said that she has a degree in psychology and qualifications in counselling.  She stated that when she attended the Applicant she was extremely concerned and considered her to be suicidal, distressed and frustrated. She said that she considers that the Applicant needs to have the issue of her claim for pension resolved as soon as possible.

15.     Ms Cowling said that when the Applicant goes to see her general practitioner she complains about difficulty with sleeping and trouble with her daughter with whom she now lives.  She said that the Applicant has now been prescribed an anti-depressant.  Ms Cowling told the Tribunal that she intends to refer the Applicant to a psychiatrist.

other evidence

16.     Exhibit A1 is the report of Dr Hargreaves dated 7 April 2003, which states that the Applicant’s left upper limb is worse than when he last saw her seven months previously with more pain and increased weakness. He said:

"…

The natural history of this type of pain and dysfunction is slow, with symptoms worsening for a year or two and then improving over a period of 3 or 4 years, but I am sure that Mrs Austin is going to be left with a significant residual disability. Thankfully, the pain usually improves better than the stiffness, although having had a brachial plexus injury in the first place is a bad prognostic sign, compared to the idiopathic frozen shoulder or a post fracture dystrophic response."

17.     Exhibit A2 is a report by Dr J E Pattison dated 4 April 2003 of an ultrasound of the Applicant's left shoulder. Dr Pattison reports:

"…

There is evidence of calcific tendonosis of the anterolateral aspect of the supraspinatus tendon with abutment of this calcium against the acromion appearing to be causing the pain and preventing further abduction."

18.     Exhibit A3 is the report of Dr Robin Diebold, orthopaedic surgeon, dated 17 June 2003. Dr Diebold reported:

"…

Lynette undoubtedly has a brachial plexus lesion but it is difficult to be sure how much of this still persists. Her main problem is the left hand, which is certainly suffering from reflex sympathetic dystrophy. I have discussed with her treatment options and I think it is be [sic] useful for her to attend a pain clinic, the nearest being at John Hunter Hospital. She may well have some improvement with guanethidine blocks, which they use for this condition. With regard to her left shoulder I think she undoubtedly has an impingement syndrome, and not a frozen shoulder. I have injected steroid into her left subacromial bursa. If her left shoulder fails to settle, then in theory the best option would be an arthroscopic acromioplasty, which could address both the subacromial spur and possibly also the prominence of the greater tuberosity, which is probably also contributing to this. The calcium deposits on the ultrasound are incidental and do not need to be addressed specifically. There could certainly be no guarantee that surgery on the shoulder would not worsen the symptoms in the upper limb, so I would be very reticent to proceed with that. Hopefully the injection will give some persisting benefit. I do not think unfortunately there is much more I can offer for her."

19.      Attachment 1 to the Respondent's statement of facts and contentions (Exhibit R1) is a report from Dr Ian Hargreaves dated 6 June 2002. That report discusses treatment options for the Applicant and says:

"…

Depending on how nerve recovery goes, the eventual hand function may be good enough without having anything further done. If the motor function is not improving, then I would consider tendon transfers to replace the intrinsic function as an internal splint, to allow more use of the hand. Getting back to work is likely to be difficult, particularly heavier equipment such as polishers. I plan to see Mrs Austin in three months to assess progress, to consider surgery if things are not settling."

20.     Document T6 is the report of the Applicant's treating doctor, Dr Bumak, dated 21 March 2002, who said that the Applicant was likely to return to her usual occupation within 12 to 24 months and likely to be able to return to any kind of work for 30 hours per week within six to 12 months. The report also indicated that the Applicant was likely to be undertaking re-training immediately. In a report dated 26 March 2002 (document T10), Dr Bumak indicated that the Applicant's impairment was temporary.

21.     Document T14 is the report of Dr Doron Arad of Health Services Australia, who considered the Applicant's impairment to be temporary and so did not allocate any impairment rating to her condition. However, Dr Arad stated that the Applicant was unfit for work for a period of one year and that her condition should be reviewed in 12 months.

22.     Document T22 is a report from Dr Ian Hargreaves dated 3 September 2002. Dr Hargreaves said:

"…

Mrs Austin asked about the possibility of a pension, and certainly, she would probably be eligible for sickness benefits rather than a permanent disability pension. Those segments of the nerve that have more significant avulsion injury will take over two years to show any improvement, and so there may be grounds for considering at least a medium term disability pension if all is not resolving."

23.     Document T24 is a letter from Dr James Bumak, the Applicant's general practitioner, addressed to "to whom it may concern" dated 12 September 2002, which states as follows:

"Lynette June Austin has a left brachial nerve palsy, which has caused contractures of some of her left fingers. Therefore she has very little use of her hand. It is anticipated that she will not get full use of her hand for 3 years. So she should qualify for a medium term disability pension."

consideration

24. Schedule 2, Part 2, section 4 of the Social Security (Administration) Act 1999 provides that, in order for disability support pension to be payable, an applicant must be qualified for disability support pension at the date of the lodgement of the applicant's claim or become so qualified within 13 weeks thereafter. The period of 13 weeks that is relevant to the Applicant in this application is 28 March 2002 to 26 June 2002.

25. The introductory part of the Impairment Tables contained in Schedule 1B to the Act contains a direction to the effect that a rating under the Tables may only be assigned to a condition if that condition is fully documented, diagnosed, investigated, treated and stabilised. The part also provides that 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. The part also provides that 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 two years.

26.     The Tribunal accepts unreservedly the Applicant's evidence as to her conditions and limitations. The Tribunal notes that the Applicant described a number of additional conditions, including depression and arthritis, which were not considered by Centrelink in relation to her claim for disability support pension. Nor is there medical evidence or other documentation available at present in relation to those conditions. For that reason the conditions cannot be considered for assessment under the Impairment Tables.

27.     As to the Applicant’s left arm condition, the reports of Drs Hargreaves, Bumak and Arad in 2002 indicate a condition that had not yet stabilised and had not yet been fully treated.  Dr Burmak, the Applicant’s general practitioner, was of the view that the Applicant’s condition was temporary, as was Dr Arad.  Dr Hargreaves considered that recovery may be good, while pointing to a number of possible complications.

28.     In 2003, Dr Hargreaves noted that the worsening of the Applicant’s condition and the likelihood of significant residual disability, but also noted the pattern of such conditions with improvement after three or four years.  Dr Diebold, in June 2003, outlined a number of treatment options not yet taken up by the Applicant and made no firm prognosis.

29.     On the basis of this evidence, it appears that the Applicant’s condition was not, during the relevant 13-week period, fully diagnosed, investigated, treated and stabilised.  It is only arguable, on the basis of the above evidence, that it is now.

30. For that reason, notwithstanding the obvious severity of the Applicant’s symptoms, her left arm condition cannot attract an impairment rating, at least not in relation to the claim made by her in March 2002. It follows that she does not satisfy the requirement in section 94(1)(b) of the Act and is not eligible to receive disability support pension.

31.     As mentioned previously, the Tribunal notes the Applicant’s evidence of other conditions.  The Applicant is encouraged to further test her rights and, with medical evidence of all of her conditions, to make a further claim.

determination

32.     The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:        C. Gregson
  Associate

Date/s of Hearing  1 August 2003
Date of Decision  10 September 2003
Representative for the Applicant               Ms Marie Cowling
Representative for the Respondent          Mr Andrew Zhang