AYTEN MAHMUT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 210
•26 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 210
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4618
GENERAL ADMINISTRATIVE DIVISION ) Re AYTEN MAHMUT Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr Kerry Breen, Member Date26 March 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review. ………[signed]………
Member
SOCIAL SECURITY ‑ disability support pension – neck pain, bilateral carpal tunnel syndrome, right ankle pain and headache (migraine) ‑ impairment rating below 20 points.
Social Security Act 1991 s 94(1), Schedule 1B
REASONS FOR DECISION
26 March 2010 Dr Kerry Breen, Member 1. Mrs Ayten Mahmut, who is 56 years old, suffers from a number of medical conditions. She lodged a claim for disability support pension (DSP) on 27 April 2009 with Centrelink. Centrelink is the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent). She provided a treating doctor’s report (TDR) from her general practitioner, Dr Geoff Ng, 24 April 2009, in support of her claim.
2. Centrelink rejected the claim on 15 May 2009 because Mrs Mahmut did not score the necessary 20 impairment points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act). An authorised review officer from Centrelink affirmed the decision. Mrs Mahmut then sought review of the decision by the Social Security Appeals Tribunal (SSAT). On 19 August 2009 the SSAT also affirmed the decision. Mrs Mahmut now seeks review of the SSAT decision by this Tribunal.
3. Mrs Mahmut, who speaks very little English, was unrepresented. She was accompanied by her husband, Mr Ferhat Mahmut. An interpreter in the Turkish language was used for the entire hearing. In her application for review to this Tribunal, she stated everyday pain is getting more and more. Specialis (sic) Doctor’s waiting what they going to do but we are moving very slow. In the hearing, Mrs Mahmut was unable to express her grounds for this application verbally. Her husband expressed his concern that his wife was always in pain and that he was distressed that he could not help her get better.
4. The Respondent contended that Mrs Mahmut’s medical conditions relating to neck pain, bilateral carpal tunnel syndrome, right lower limb pain and headache (migraine) had been medically assessed and were rated at a total of 15 points under Tables 3, 4, 5.1 and 21.3 of the Impairment Tables. However, her lumbar back pain was not yet fully diagnosed, treated and stabilised, which is a pre-requisite for the assessment of the condition under the Impairment Tables. The respondent relied in particular on the report of an assessment of Mrs Mahmut made on 4 November 2009 by Dr Andrea James of Health for Industry.
ISSUES
5. The issues to be determined are:
·From what, if any, permanent medical conditions does Mrs Mahmut suffer?
·What impairment ratings do her conditions attract?
·And, if the total impairment rating is 20 points or more, what is the impact of these conditions on her capacity to work?
6. The relevant assessment period is between 27 April 2009 and the subsequent 13 weeks.
LEGISLATION
7. The relevant legislation includes s 94(1) of the Act and the Impairment Tables. Section 94 of the Act provides:
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;
…
8. The Introduction to the Impairment Tables provides:
…
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.
…
FROM WHAT, IF ANY, PERMANENT MEDICAL CONDITIONS DOES MRS MAHMUT SUFFER?
9. From Mrs Mahmut’s claim form and from the evidence provided by her treating doctor, the diagnoses under consideration are neck pain, bilateral carpal tunnel syndrome, right ankle pain, headaches (migraine) and lumbar back pain. I will deal with each of these in turn.
Neck Pain
10. Mrs Mahmut’s general practitioner, Dr Ng, provided two TDRs; one dated 4 May 2008 and the other dated 24 April 2009. In the second report, Dr Ng described the condition as cervical and thoracic spine spondylosis causing pain and limiting her capacity to lift heavy items and prescribed Tramal, Panamax and Celebrex. This condition was identified in the section of the TDR which covered any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function. Although Dr Ng had attached a number of x-ray reports and specialists’ letters to both TDRs, there was no report of any x-rays taken of the cervical spine.
11. In her oral evidence, Mrs Mahmut explained that her doctors had raised the possibility that numbness she still felt in her fingers, and which had been attributed initially to bilateral carpal tunnel syndrome, may be caused by her neck condition. She is awaiting further specialist investigation of this possibility.
12. In the detailed medical report prepared by Dr James after assessing Mrs Mahmut on 4 November 2009, Dr James noted a three year history of intermittent neck pain and neck stiffness and wrote that Mrs Mahmut advised that her neck condition has largely remained the same from early 2009. She found a reduced range of movements on formal examination closest to one quarter of normal range and advised that in her opinion this level of impairment generates a rating of 5 on Table 5.1. Dr James also observed that throughout the history taking assessment which lasted approximately 1 hour, Mrs Mahmut frequently rotated her head to the right and left fully to address her husband and the interpreter who sat on either side of her without apparent discomfort or adjustment to her torso position.
13. Dr James included the result of a CT scan taken on 9 November 2009 in her report. She quoted this as showing mild to moderate bilateral facet joint degeneration at C5/6, C6/7 and C7/T1 levels. There was also mild bony foraminal stenosis on the right at C6/7 and minimal canal stenosis at C6/7.
14. Although the evidence suggests that residual numbness of the fingers experienced by Mrs Mahmut has an uncertain origin, I am satisfied that the cause of Mrs Mahmut’s neck pain (cervical spondylosis) has been fully investigated, treated and stabilised. I accept the assessment of Dr James that this condition attracts an impairment rating of 5 points under Table 5.1 of the Impairment Tables.
Bilateral Carpal Tunnel Syndrome
15. In the TDR dated 24 April 2009, Dr Ng listed the diagnosis of carpal tunnel syndrome as a condition having a significant impact on Mrs Mahmut’s ability to function. He provided the results of nerve conduction studies and reported that Mrs Mahmut had undergone surgery to both wrists. She still complained of some numbness and pain in both hands. Dr Ng queried whether the surgery had been successful.
16. In her oral evidence, Mrs Mahmut stated that there had been some minor improvement in the numbness in her hands but that she still tended to drop items.
17. Dr James report addressed this condition in more detail. She reported that Mrs Mahmut had undergone right carpal tunnel release surgery in January 2007 and left carpal tunnel release in May 2007 with a good response to surgery initially. In the last six months Mrs Mahmut had complained of numbness and pins and needles in the lateral two fingers of her right hand and more recently numbness and pins and needles in the medial two fingers of her left hand. Mrs Mahmut told her that recent nerve conduction studies were reported as normal.
18. On physical examination, Dr James measured Mrs Mahmut’s grip strength with a dynamometer and found this to be reduced in her right (dominant) hand. Dr James concluded that in her opinion Mrs Mahmut has a demonstrable loss of strength and sensation of her dominant upper limb which is stable, fully treated and causes moderate interference with hand function. There is no demonstrable loss of function of the non dominant limb. This level of impairment generates a rating of 10 on Table 3.
19. I am satisfied that the cause of Mrs Mahmut’s bilateral carpal tunnel syndrome has been fully investigated, treated and stabilised. I accept the assessment of Dr James that this condition attracts an impairment rating of 10 points under Table 3 of the Impairment Tables.
Headaches (Migraine)
20. In his first TDR dated 4 May 2008, Dr Ng made no mention of the diagnosis of headache or migraine. In the second TDR dated 24 April 2009, Dr Ng identified the condition of migraine in the section of the TDR which covered any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function. He listed treatment as Sandomigran and Panamax, indicated that any expected improvement was uncertain and reported that the condition affected her concentration.
21. Dr James’ report noted a two-year history of headaches lasting 5 to 10 minutes. She also reported that Mrs Mahmut said that the headaches were now more frequent than they had been 6 months earlier. Dr James concluded in my opinion, Mrs Mahmut’s headaches as described in her history are intermittent, mainly at night and have minimal impact on function. Dr James also noted that the headaches as described by her are atypical of migraine.
22. Dr James assessed the impact of the headaches under Table 21 because of their intermittent nature, and accorded them a severity level of One (mild to moderate symptoms which are unpleasant, rarely prevent completion of activities and may cause some loss of efficiency in activities) and a duration of Short (lasting more than 5 minutes but less than 30 minutes). Based on this assessment, Dr James assigned an impairment rating of zero on Table 21.4.
23. I am satisfied that the cause of Mrs Mahmut’s headache (migraine) has been fully investigated, treated and stabilised. I accept the assessment of Dr James that this condition attracts an impairment rating of zero points under Table 21.4 of the Impairment Tables.
Lumbar Back Pain
24. In both TDRs, Dr Ng listed Mrs Mahmut’s lower back as the first condition that had a significant impact on her ability to function. In the April 2009 TDR, this is described under diagnosis as back is sore, L4/5 canal stenosis, right L 4/5 disc prolapsed – central L5S1 disc prolapsed. He reported that she had been troubled by a sore back for 5-6 years. He reported that her treatment was Tramal 50 1 tds, Panamax and Celebrex, all medications apparently to be used as needed.
25. Dr Ng also forwarded the report of a CT scan of the lumbar spine performed on 24 July 2007. This examination demonstrated minor L4/5 lumbar canal stenosis secondary to a central and right L4/5 disc prolapsed, central L5/S1 disc prolapsed without significant canal stenosis and mild to moderate L5/S1 facet joint osteoarthritis.
26. Dr James’ report described a four-year history of constant low back pain, worse in the early morning and improved with mobilisation. She wrote that Mrs Mahmut described the lumbar back pain as being aggravated by sitting for 5-10 minutes but observed that she sat at the assessment for at least 45 minutes and did not appear distressed by her back pain. Dr James reported that when examined formally, Mrs Mahmut was unable to flex her hips more than 25 degrees because of pain in her legs and back and contrasted this with her observation of Mrs Mahmut being able to sit on the examination couch at 90 degrees with legs extended fully at other times during the assessment.
27. Dr James formed the view that Mrs Mahmut’s low back pain was still under investigation by the Royal Melbourne Hospital for the purposes of further treatment and as such, her condition is considered not fully treated and stabilised. The ongoing nature of this investigation was subsequently confirmed when Mrs Mahmut’s husband advised Dr James that Mrs Mahmut had been assessed at the Royal Melbourne Hospital and that that the hospital planned an epidural injection into the lumbar spine as treatment.
28. Mrs Mahmut confirmed in her oral evidence that she had since undergone one such injection with little or no benefit and that further treatment was planned.
29. I am satisfied that Mrs Mahmut’s suffers from a degenerative condition of the lumbar spine which causes lower back pain. However, I am not satisfied that this condition has been fully investigated, treated and stabilised and therefore the condition cannot be rated under the Impairment Tables.
Right Ankle Pain
30. Dr Ng’s TDR of 24 April 2009 does not refer to any condition affecting the right ankle. Dr Ng forwarded a report of an x-ray of the right ankle taken on 28 November 2007, at a time when Mrs Mahmut had experienced a fall causing pain in her medial malleolus. The x-ray report said no recent bone or joint injury and no evidence of degenerative or erosive arthritis at the ankle joint.
31. Dr James’ report described a history of a Pott’s fracture of the right ankle nine years ago, which was treated surgically. Mrs Mahmut informed her that she experienced occasional electric shock like pain fleeting in her right ankle once or twice per week. Dr James referred to multiple x-ray reports across 2005 which indicate well healed fractures of fibula in good position with degenerative changes of the right ankle and first metatarsal joint. After conducting a physical examination and observing Mrs Mahmut walking up and down stairs, Dr James concluded that the right ankle condition is stable, fully treated and on its own there is minimal demonstrable loss of function. Accordingly, Dr James stated that any right lower limb impairment was minimal and generates a rating of zero on Table 4.
32. I am satisfied that the cause of Mrs Mahmut’s right ankle pain has been fully investigated, treated and stabilised. I accept the assessment of Dr James that this condition attracts an impairment rating of zero points under Table 4 of the Impairment Tables
33. Dr James also addressed Mrs Mahmut’s work capacity and stated that In my opinion, Mrs Mahmut does not have a current medical capacity for 15 hours work or more per week and nor would she have had a medical capacity for work in the period in question. This is due to the impact of her multiple medical conditions, including those conditions which have not as yet been treated and stabilised.
Additional Medical Information
34. In her assessment, undertaken on 4 November 2009, Dr James identified two possible additional medical problems that may need attention. First, she elicited a history of snoring and choking episodes during the night and excessive daytime sleepiness raising the possibility of obstructive sleep apnoea. Secondly, she observed changes in the right shoulder consistent with a possible rotator cuff tear. These potential medical problems are not relevant to Mrs Mahmut’s DSP application as at 27 April 2009 but deserve to be brought to the attention of her treating doctor.
FINDINGS OF FACT
35. Based on the above evidence, I am satisfied that at the time of her claim, Mrs Mahmut suffered from a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act. The relevant conditions (neck pain, bilateral carpal tunnel syndrome, right ankle pain and headache (migraine)) had been fully investigated, treated and stabilised and were likely to continue for at least two years. Therefore, these conditions are permanent and assessable under the Impairment Tables.
36. I accept Dr James’ assessment of the impairment caused by these conditions; namely 10 points for bilateral carpal tunnel syndrome, 5 points for neck pain and zero points for right ankle pain and headache (migraine).
37. I am also satisfied that Mrs Mahmut suffers from a long-standing degenerative lower back condition. While it is long-standing, based on the medical reports and Mrs Mahmut’s evidence, that further treatment including surgery may yet be required, I am not able to conclude that this condition has been fully investigated, treated and stabilised.
38. Therefore, the total impairment assessment for those of Mrs Mahmut’s conditions which have been fully investigated, treated and stabilised is 15 points. As a result, Mrs Mahmut does not satisfy s 94(1)(b) of the Act. As Mrs Mahmut does not does not satisfy s 94(1)(b) of the Act, and therefore cannot satisfy s 94(1), I do not need to consider whether she had a continuing inability to work under s 94(1)(c) of the Act.
39. As I have determined that on the date of her claim and in the subsequent 13 weeks, Mrs Mahmut had an impairment rating of 15 points, she does not qualify for DSP under s 94 of the Act.
DECISION
40. I affirm the decision under review.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision of:
Dr Kerry Breen, Member
signed:
Associate Grace Horzitski
Date of hearing: 15 March 2010
Date of decision: 26 March 2010
Advocate for the applicant: Self-represented
Advocate for the respondent: Ms Ailsa Bramley, Centrelink Advocacy Branch
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