Bourne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 937
•23 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 937
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3145
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH BOURNE Applicant
And
SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date23 December 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.....................[Sgd].........................
Member
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Physical impairments of osteoarthritis of hands, cervical spondylitis and degenerative L5/S1 intervertebral disc – Conditions not fully treated and stabilised – No rating from Impairment Tables – No qualification for disability support pension – Decision under review affirmed
Social Security Act 1991 (Cth) ss 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth) s 179, Schedule 2 clause 4(1)
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
23 December 2011 Dr M Denovan, Member INTRODUCTION
1. Ms Elizabeth Bourne, the applicant, suffers from a number of medical problems, including osteoarthritis of both her hands, severe osteoarthritis in the cervical spine (cervical spondylitis) and degenerative L5/S1 intervertebral disc.
2. Ms Bourne has claimed disability support pension (“DSP”) on two occasions, the first being on 26 August 2010[1] and the second on 23 November 2010. In her first application, the accompanying medical report, completed by general practitioner Dr B. Whelan on 7 September 2010, provided a diagnosis of osteoarthritis affecting both hands and her neck.
[1] Informal claim by telephone was made on 26 August 2010 and a claim form was lodged on 8 September 2010; T-Documents, Folios 168 and 47.
3. On 17 September 2010, Ms Bourne was reviewed by psychologist Ms M Curnow for the purpose of preparing a Job Capacity Assessment (“JCA”) report. Ms Curnow identified the conditions Ms Bourne suffers from as osteoarthritis, musculoskeletal disorder and lower limb deficiencies.
4. Dr Whelan provided a second medical report, dated 23 November 2010, which accompanied Ms Bourne’s later claim for DSP. There, he identified the conditions Ms Bourne suffers from as cervical spondylitis, osteoarthritis affecting both hands, and degeneration of L5/S1 intervertebral disc.
5. Centrelink rejected the first claim on 26 October 2010 and the second claim on 11 January 2011. On 16 February 2011 an authorised review officer (“ARO”) affirmed the decision of 26 October 2010. The Social Security Appeals Tribunal (“SSAT”) also affirmed the decision of 26 October 2010 on 6 July 2011. The second decision, made on 11 January 2011, has not been reviewed by the SSAT.
6. On 3 August 2011 Ms Bourne made an application to the Administrative Appeals Tribunal (“AAT”) to review the decision of 26 October 2010.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
7. Under Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) an applicant must qualify for DSP on the day on which the claim was made or within 13 weeks of that date. In this case the 13-week assessment period is from 26 August 2010 to 25 November 2010.
8. The criteria for DSP are set out in s 94(1) of the Social Security Act 1991 (Cth) (“the Act”). To qualify, the applicant:
· must have a physical, intellectual or psychiatric impairment (94(1)(a)); and
· must have an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act (94(1)(b)); and
· must have a continuing inability to work (94(1)(c)(i)).[2]
[2] The age and citizenship requirements under ss 94(1)(d) and (e) of the Act are met.
9. Before an impairment rating can be assigned under the Impairment Tables, it is necessary to determine whether Ms Bourne’s impairments arise from a condition or conditions that can be regarded as being ‘permanent’ under the Act.
10. Pursuant to the Introduction to the Impairment Tables in Schedule 1B of the Act:
4. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.
…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.
11. In order to assess whether a condition is fully treated and stabilised, paragraph 6 of the Introduction to the Impairment Tables provides that I 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.
12. In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible i.e., 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.
13. If a person has 20 or more impairment points then they must also have a continuing inability to work, which means that the impairments that were rateable alone must render a person unable to perform any work or training during the next two years (s 94(2) of the Act). “Work” means work in Australia that is for at least 15 hours per week at or above minimum wages, even if not in the person’s locally accessible market (s 94(5) of the Act). Mr Hamilton, for the respondent, contended that the conditions of osteoarthritis and musculoskeletal disorder could not be rated under the Impairment Tables as the conditions have not been fully treated and stabilised in the relevant assessment period. Mr Hamilton further contended that the condition of lower limb deficiencies could not be assigned an impairment rating because, although the condition has been fully diagnosed, treated and stabilised, it has a minimal impact on Ms Bourne’s capacity to function
14. The issues that I must determine are:
· What, if any, physical, intellectual or psychiatric impairments Ms Bourne had at the time of her claim or within 13 weeks of her claim;
· Whether all or any of those conditions are fully documented, diagnosed conditions which have been investigated, treated and stabilised and can be regarded as permanent;
· What impairment rating should be allocated to the identified conditions; and
· If Ms Bourne has 20 impairment points or more, whether she has a continuing inability to work.
15. As the second claim for DSP has not been reviewed by the SSAT, this Tribunal cannot review that matter.[3] However, I will take into account all of the evidence before me, including the evidence tendered as part of the later claim.
[3] Social Security (Administration) Act 1999 (Cth), s 179(1).
EVIDENCE
16. The conditions identified by Dr Whelan in his first and second reports are essentially the same. While in his later report Dr Whelan identified some conditions which he had also identified in his first report, he separates the diagnosis of these into two conditions based on the anatomical region of the arthritis. As the arthritis of the neck has very different symptoms compared with the arthritis in the hands, I consider the most appropriate diagnoses to be those as stated in Dr Whelan’s later report.
17. Two JCA reports have been prepared in relation to Ms Bourne’s claims for DSP. The earliest of these reports was prepared by psychologist Ms Curnow on 20 September 2010.[4] In spite of having Dr Whelan’s earliest report at the time she prepared her report, Ms Curnow decided to identify the diagnoses as “Osteoarthritis”, “Musculo-skeletal Disorder” and “Lower Limb Deficiencies”. In relation to the latter two of these conditions, Ms Curnow made reference to x-ray reports. In relation to the condition of musculoskeletal disorder, she stated:
… mild degree of generalised spondylosis at thoracic and lumbosacral spine diagnosed by x-ray 31/8/10.
[4] T-Documents, Folios 48-53.
18. In relation to the condition she named as lower limb deficiencies, she stated:
… degenerative change in both knees – x-ray 31/8/2010 revealed minimal osteoarthritic change involving the patellofemoral compartment.
19. X-rays often reveal incidental findings, often due to normal ageing, that are causing the patient no clinical symptoms. That is why, unlike in Ms Curnow’s assessment, doctors never diagnose a condition on the basis of an x-ray alone. I expect that is why Dr Whelan, who ordered the x-ray and presumably also had access to the same x-ray reports, did not list any conditions affecting her thoracic spine.
20. On 13 December 2010 physiotherapist Mr White prepared a second JCA report. In his report, Mr White decided to rename all of Ms Bourne’s conditions as “chronic pain”. Mr White failed to identify the medical cause of the chronic pain. At the hearing Mr White admitted this was an oversight on his part and that the cause of Ms Bourne’s pain was in fact osteoarthritis. Whilst “chronic pain” may be an appropriate assessment for a large number of conditions that all cause pain when deciding which Impairment Table to use to assess incapacity, it was not appropriate when describing the condition which Ms Bourne suffers from.
21. For the above reasons, when assessing Ms Bourne’s conditions, I prefer the descriptive terminology provided by Dr Whelan in his second report; that is, severe osteoarthritis of the cervical spine (cervical spondylitis), osteoarthritis of the hands and degenerative L5/S1 intervertebral disc.[5]
[5] At the hearing Dr Whelan confirmed Ms Bourne also suffers from osteoarthritis of the knees.
Severe Osteoarthritis in the Cervical Spine (Cervical Spondylitis)
22. Ms Bourne spoke to the Tribunal by conference telephone. She told me that she has had problems in her neck for approximately ten years, but in the last six months the problem has deteriorated even further. She said she suffers from frequent headaches. She also has difficulty reading and writing because any movement of the neck causes her pain; if she jerks her head she gets bad pain in her neck. She is unable to perform heavy work because of the pain and often has to lie down during the day to relieve it. She also has weakness in her arms and hands and cannot lift her arms above her shoulders. These problems occur on a daily basis but she says that some days are worse than others. She finds hanging up clothes difficult and, because of her neck pain, does not clean anything that is located high up. She said that the pain also makes it hard for her to fall asleep. Ms Bourne takes Panadol Osteo to treat her symptoms. She said that she has tried non-steroidal anti-inflammatory drugs (NSAID’s), but they do not agree with her.
23. In his later report, Dr Whelan indicated that the diagnosis of this condition was confirmed on 4 November 2011. However, in his earlier report Dr Whelan stated that the condition was diagnosed on 31 August 2010. At the hearing Dr Whelan confirmed that he diagnosed this condition on 31 August 2010. He said on that day the diagnosis was confirmed by x-ray.
24. In both of his reports, Dr Whelan stated that the condition was likely to impact on Ms Bourne’s ability to function for more than 24 months. In the earlier of his reports, Dr Whelan opined that within the next two years the effect of this condition on Ms Bourne’s ability to function was uncertain. In his later report, Dr Whelan stated that the effect of the condition on Ms Bourne’s ability to function is expected to deteriorate within the next 2 years.
25. In her JCA report, Ms Curnow concluded that Ms Bourne’s osteoarthritis has not been fully treated. In support of this conclusion, Ms Curnow stated:
GP has suggested anti-inflamatory medication and panadol osteo but Liz has not taken these medications as yet. This condition is not considered optimally treated and stabilized: the pain has not been properly managed to date, no referral for specialist review, lack of alternate medication, lack of formal pain management program – the condition is likely being exacerbated by Liz’s physically demanding job and if she were taken out of this environment and undertook intervention to increase flexibility the long term impact may be better managed.[6]
[6] T-Documents, Folio 49.
26. Mr White, in his JCA report, came to similar conclusions as Ms Curnow. In reference to chronic pain, Mr White stated:
Simple analgesia, no physiotherapy, no specialist assessment, no secondary rehabilitation or pain management programme, insufficient treatment to date to justify this condition as fully treated. There is likelihood of significant functional improvement with optimal treatment, especially given the condition is in the early stage of its natural history, the client needs to undertake further treatment to ascertain response to provide evidence before the condition can be deemed optimally treated.[7]
[7] T-Documents, Folio 87.
Osteoarthritis of Both Hands
27. Ms Bourne is right-handed. She told me that she has pain in all of her fingers, but it is worse in her thumbs and the two outer fingers. The pain also affects her wrists and elbows. She has trouble with any activity that requires her to twist her hands. She has pain when she uses the telephone or other implements that require her to grip. She avoids cooking or using a knife. She does her own shopping; she lives close to a corner shop, which is helpful for the days that she feels that she is incapable of driving. Ms Bourne said that she is able drive herself to the beach at Coolum, which is very close to her home.
28. Ms Bourne told me that she has had this condition for a long time, but it has worsened to the point that she is now unable to continue working. She says that while she has discussed the option of physiotherapy with her doctor, she has not found physiotherapy to be very helpful in the past. She is currently booked in for a rehabilitation course which, she expects, will assist her in managing activities involving daily living. However, she expects that she already knows about most of these techniques as her problem has existed for a long time and she has had to find ways to do things without help. Ms Bourne said that she treats this condition with the same medication that she uses for her neck pain.
29. Ms Bourne told the Tribunal that she has been given exercises to perform and that she also exercises in her swimming pool. She said that in her experience she gains little help from physiotherapy but is going because she is allowed five free sessions.
30. Ms Bourne said that she owns a computer and uses it for a limited time each day, usually to check e-mails. She owns a car and can drive limited distances. She said she would be capable of driving to Brisbane but as a result, she would be in severe pain for some time. She paces herself in an attempt to prevent exacerbating her pain. She said that she does not have any help cleaning the house and is able to scoop leaves out of her swimming pool.
31. In his most recent report, Dr Whelan indicated that this condition was diagnosed on 31 August 2010. He stated that this condition would likely deteriorate in the next two years and would impact on Ms Bourne’s ability to function for more than 24 months. In his earlier report Dr Whelan gave that same date of diagnosis and same time frame as to how long the condition would impact on Ms Bourne’s ability to function. However, he stated that the effect the condition would have on Ms Bourne’s ability to function was uncertain.
32. Ms Curnow and Mr White did not differentiate between this condition and cervical spondylitis. Their opinions are of little value for the reasons discussed above.
Degenerative L5/S1 Intervertebral Disc
33. Ms Bourne told me that the pain in her lower back results in her having difficulty walking or sitting for long periods. She can sit for up to 30 minutes. Walking causes her pain in her knees and ankles and, for these reasons, she tries not to go out. Her foot often gives way.
34. In his later report, Dr Whelan identified this condition as generally well-managed and causing minimal or limited impact on Ms Bourne’s capacity to function. At the hearing Dr Whelan said that the pathology, identified by x-ray, in Ms Bourne’s lumbar spine was mild. He was of the opinion that Ms Bourne does have back pain consistent with the x-ray findings.
35. Ms Curnow makes reference, under the condition ‘Musculo-skeletal Disorder’, to “generalised spondylosis at the lumbosacral spine”. In relation to future treatment/prognosis she states:
The condition is not considered optimally treated and stabilised: the pain has not been properly managed to date and no secondary rehabilitation has been considered.[8]
[8] T-Documents, Folio 49.
Knees
36. Ms Bourne said that her knees often give way when she uses steps. It is harder for her to go up than go down stairs. She has internal stairs in her house but she avoids using them and tries to live only on one floor. As stated above, Dr Whelan confirmed the existence of this condition at the hearing.
CONSIDERATION
37. Can all or any of those conditions be considered fully documented, diagnosed conditions which have been investigated, treated and stabilised and can be regarded as permanent?
38. In Harris v Secretary, Department of Employment and Workplace Relations[9], Gyles J said that it was not appropriate for a tribunal to reject a claim because a hypothetical third party (medical practitioner or other practitioners) might come to an adverse opinion in relation to matters of diagnosis or treatment.
[9] [2007] FCA 404 at [18].
39. Paragraph 5 of the Introduction to the Impairment Tables 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”.
40. There was considerable variation between the reports of Ms Curnow and Mr White in relation to the severity of Ms Bourne’s symptoms. Mr White told the Tribunal that he has attended extensive training in matters relating to pain, in particular the management and treatment of pain. He believes that his conclusion about the severity of Ms Bourne’s pain varied from the opinions expressed by Ms Curnow because of his superior qualifications. Mr White told me that his superior qualifications and experience were also responsible for him coming to conclusions inconsistent with those expressed by Dr Whelan. Mr White referred to answers given by Ms Bourne in a questionnaire provided by him when she attended the assessment. Mr White concluded Ms Bourne’s pain was so severe she required referral to a pain management centre. Mr White did not contact Dr Whelan to discuss any discrepancies. He said that he told Ms Bourne to discuss the matter of referral to a pain clinic with Dr Whelan.
41. At the hearing Dr Whelan told me that Ms Bourne has been a patient at his surgery since 2001 and a patient of his personally since 2008. Dr Whelan said that he had not seen Ms Bourne for a long time prior to her presentation on 31 August 2010. That was the first time Ms Bourne presented with the symptoms which he regarded as caused by osteoarthritis. He said that she had presented with a Centrelink claim form and asked him to complete a medical assessment. At the time, Ms Bourne complained of pain in her neck, hands, spine and knees. She said that she had had stiffness and pain for about three months and was unable to continue with her cleaning job. Dr Whelan said he told Ms Bourne that because this was her first presentation with these symptoms, he was unable to say that her degree of functioning was as good as it was going to get. Further diagnosis and treatment would be required. He told her that she would need tests to confirm the diagnosis of the conditions she suffered from.
42. Dr Whelan accepted that Ms Bourne had genuine symptoms. However, he did not get the impression that Ms Bourne was suffering severe pain. He said that he discussed treatment options with Ms Bourne but got the impression that she was not keen to have physiotherapy. He referred her to orthopaedic surgeon Dr Winstanley on 12 September 2010, and also to a rehabilitation clinic. Dr Whelan said that in relation to osteoarthritis, there is a saying in the medical community that you ‘use it or lose it’. He stated that rehabilitation programs at Noosa Hospital provide a multidisciplinary approach and help patients by teaching management strategies. The program helps to build up the muscle strength and aims to help people to continue to function in everyday ordinary activities with a degree of comfort. In his experience, Dr Whelan believes that most sufferers of osteoarthritis of the fingers are capable of performing most tasks as the condition is not as debilitating as rheumatoid arthritis.
43. Dr Whelan said that he had noticed Ms Bourne was reluctant to take medication to treat her condition. He opined that, currently, Ms Bourne’s osteoarthritis was not very severe. He said that, were it severe, she would likely require stronger pain relief. Dr Whelan told me that Ms Bourne’s symptoms did not warrant referral to a pain clinic at this stage and that he got the impression Panadol pain medication was all she needed for pain relief at this stage. However, he said that future treatment might include stronger pain relief medications as well as antidepressants. He said that whilst Ms Bourne is not able to undertake heavy work or work that required repetitive movements with her fingers, she would be able to work in a less physically demanding job, such as retail assistant.
44. The matter was adjourned for two weeks to allow Ms Bourne to make written submissions relating to the questionnaire she completed when she attended the JCA with Mr White on 8 December 2010. The questionnaire required Ms Bourne to detail the types of impairment she experienced as a result of her medical conditions. The difficulties Ms Bourne self-reported are, on the whole, more severe than was noted by Dr Whelan. I do not accept that Mr White had any particular skills that led him to elicit descriptions of her symptoms that her general practitioner failed to note. Ms Bourne described dissatisfaction with the assessment performed by Mr White and told me that he did little more than wait for her to write responses to the questionnaire. It was Ms Bourne’s evidence that Mr White saw her for only 15 minutes. I very much doubt that he was able to assess Ms Bourne’s conditions with any degree of accuracy in that short time.
45. It is inappropriate that a person be denied a claim for DSP because a person who does not have a medical degree has replaced the treating doctor’s opinions with his or her own. Mr White, unlike Dr Whelan, was unable to explain how he concluded that, after seeing Ms Bourne on only one occasion, he was sure she had symptoms more severe than Dr Whelan identified. I conclude that Mr White based his opinion on the answers given by Ms Bourne in the questionnaire she completed in his presence[10]. Neither Mr White nor Ms Curnow is appropriately qualified to replace the opinion of the treating doctor as to matters of diagnosis, treatment or prognosis. I accept the evidence of Ms Bourne’s treating general practitioner, who is far more qualified and more experienced with Ms Bourne as his patient.
[10] Exhibit 7.
46. On the basis of Dr Whelan’s oral evidence, I accept that all of Ms Bourne’s identified conditions have been fully diagnosed and that they all will exist for more than 24 months. However, during the assessment period, none of these conditions had been fully treated and stabilised. This is because Ms Bourne is awaiting further treatment by way of a rehabilitation course at Noosa Hospital. That course, in combination with stronger pain medications, may result in Ms Bourne’s conditions improving, and her capacity to function both at home and in the workforce may improve. It is too early to decide whether the impact Ms Bourne’s conditions have on her capacity to function is not going to improve. I find that all of Ms Bourne’s conditions do not meet all the legislative requirements to be regarded as a fully diagnosed treated and stabilised. For this reason, I do not need to consider the other issues.
47. Ms Bourne does not satisfy the minimum requirements that must be met in order to qualify for DSP. The decision under review is therefore affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ............................[Sgd]...............................................
AssociateDate/s of Hearing 2 December 2011
Date of Decision 23 December 2011
The applicant was self-represented
Counsel for the Respondent Bob Hamilton, departmental advocate
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