Byrne and Secretary, Department of Family and Community Services

[2000] AATA 241

DECISION AND REASONS FOR DECISION [2000] AATA 241

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N1999/151

GENERAL ADMINISTRATIVE DIVISION          )          

Re      LYNDA BYRNE      

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Dr J D Campbell, Member 

Date27 March 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.
  (Sgd) J D Campbell
  ..............................................
  Member
CATCHWORDS
SOCIAL SECURITY  - disability support pension – cervical spine injury – wait for surgery – post-operative assessment – depression – assessment – permanent impairment – treatment – stabilisation

Social Security Act 1991, ss 94, 100, Schedule 1B

REASONS FOR DECISION

Dr J D Campbell                 

1. Mrs Byrne ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 21 December 1998 which affirmed the decision of an authorised review officer of Centrelink dated 11 June 1998. This latter decision affirmed two earlier decisions dated 26 May 1998 and 28 April 1998 of a delegate of the Secretary Department of Family and Community Services, ("the Respondent"), each finding that the Applicant did not qualify for disability support pension.

2. The matter was heard before the Tribunal on 27 January 2000. At the hearing the Applicant gave evidence and was assisted in her representation by her husband, Mr Byrne. The Respondent was represented by Ms Collis, an advocate from the administrative law section of Centrelink.

3. The following material was placed in evidence before the Tribunal:
   Documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Letter dated 23 November 19999from Mr Byrne to Registrar Administrative Appeals Tribunal Medical Report of Dr Clarke dated 9 November 1999 Bundle of Medical Reports concerning Mrs Byrne from Dr O'Brien Note from Mr Byrne, enclosing further report from Dr Clarke Copy of a surgery note from Dr O'Brien dated 20 October 1999 Respondent's Statement of Facts and Contentions dated 19 January 2000 T1-T18 p1-p50 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit A4 Exhibit A5 Exhibit R1

ISSUES

1. The relevant issues in this matter are whether the Applicant had at the date of the application or within three months of that date:

   1.   physical, intellectual or psychiatric impairments; and

   2.   a combined impairment assessment rating for the impairments of 20 points or greater; and

   3.   a continuing inability to work because of the impairments in that

   (a)the impairments prevented the Applicant from doing any work for at least 30 hours per week at award wages or above within the next two years; and either

   (i)the impairments of themselves were sufficient to prevent the Applicant from undertaking education or vocational or on-the-job training during the next two years; or

   (ii)if able to undertake the training, such training was unlikely (because of the impairments) to enable the Applicant to do any work for at least 30 hours per week at award wages or above within the next two years.

LEGISLATION

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1),(2),(3),(4),(5) and 100(3) and the Schedule 1B Tables for the assessment of work-related impairment for disability support pension ("the Impairment table"), post 1 April 1998.
   BACKGROUND

2. The Applicant submitted a claim for disability support pension on 4 April 1998, which was received by the Respondent on 6 April 1998 (T3). A treating doctor's report (Dr O'Brien) was received by the Respondent on 16 April 1998 (T4). A medical assessment was undertaken by a doctor from Health Services Australia on 27 April 1998 (T5). A decision to reject the Applicant's claim was made on 28 April 1998 (T6). Following the submission of further medical evidence by the Applicant on 6 May 1998 (T8), a medical file review was undertaken and the earlier decision confirmed on 26 May 1998 (T13). A subsequent review on 11 June 1998 by an authorised review officer affirmed the earlier decision (T15), with the Social Security Appeals Tribunal affirming that the Applicant does not qualify for disability support pension on 21 December 1998.
   EVIDENCE
   MRS BYRNE – THE APPLICANT

3. Mrs Byrne told the Tribunal that she was born on 3 May 1955, is married and has four sons, one aged 28, who has brain damage, is on a methadone program and has a disability support pension; a second aged 23, who is not working and is experiencing difficulties; a third aged 15, who she described as being a bit naughty and may have a spinal disorder; and a fourth aged 12 who has multiple deformities.

4. Mrs Byrne stated that she last worked as a factory worker 15 years ago and that she had planned to go back to work prior to the injury to her cervical spine. The injury to her cervical spine occurred in late November 1996, when she suffered a whip lash injury on a ride at a fun park. The Applicant stated that the day after the injury she went to the medical centre at Hurstville, where some x-rays were taken and she was referred to St George Hospital, where she was referred for physiotherapy (which "did not help") and to Dr Sekel, an orthopaedic surgeon. The appointment with Dr Sekel took three months to eventuate, after which the Applicant stated she was referred for more physiotherapy (which was "not much good") and then placed on a waiting list for surgery, which occurred about twelve months later.

5. The Applicant stated that around the time of application for disability support pension, she had pain in her neck, posteriorly with pain in both arms going down to the fingers, together with a feeling of numbness and heaviness in the fingers. The Applicant stated that she was having difficulty with writing and had not vacuumed the house for many months.

6. The Applicant also stated that she believes that she has been depressed for many years and that it worsened during the wait for the operation and continued thereafter. She felt that her depression arose from worrying about her husband, her eldest son and the two younger children with deformities. She believed she was given a medical certificate in December 1996, which arose as a consequence of increasing depression arising from her neck injury. In describing the clinical features of her depression the Applicant stated that she generally has feelings of inadequacy, has difficulty sleeping and often cries herself to sleep. The Applicant stated that the family have had association with Dr Clarke for several years, but that she did not like to admit that she may have a problem and she would try and cope and tell the world she was fine. She stated that she saw Dr Clarke for consultation in September 1999 and was treated with antidepressant medication, although it was her belief she had been first referred in 1996, but failed to carry through with the appointment.
   MEDICAL EVIDENCE

7. On 26 May 1997, Dr Sekel, a consultant orthopaedic surgeon, stated that the Applicant had, as demonstrated by an MRI scan, a huge disc prolapse at C7/T1 level, and further the possibility of C5-C6 disc sequestration as demonstrated by an earlier CT Scan. Dr Sekel stated that he believed the Applicant needed moderately urgent surgery in the form of discectomy and fusion at the C7/T1 level (T3A)

8. In a treating doctor's report dated 16 April 1998, Dr O'Brien stated that the Applicant had a disc prolapse at the level of C7-T1 with clinical features being described as "severe pain neck and pain and paraesthesia in both arms". Treatment prescribed had been physiotherapy and panadeine forte and the Applicant was said to be awaiting surgery in some six to 12 months time, and that any return to her home care activities would not occur until after the surgery was undertaken and post surgery rehabilitation had occurred (T4).

9. On 27 April 1998, Dr Meyerowitz, an employed medical practitioner at Health Services Australia, made the following comments as a result of his consultation with the Applicant:

   "…
   She injured her neck 1 year ago following a whiplash type injury she sustained on a funfair ride. She has a prolapsed C7/T1 with associated radicular pain bilaterally. She complains of limited neck movements and inability to lift weights or hold objects, as they slip through her hands. She is unable to do any housework. She is currently on a waiting list for surgery. She has been told she may have to wait another 6-12 months. On examination her cervical movements were all severely restricted. She had sensory loss in the C7 distribution in the left arm and she had weakness of grip strength bilaterally. I have assessed this as a temporary condition because the planned surgery should improve her functionality. I suggest review in 6-12 months following surgery." (T5, p31)

1. On 6 May 1998, Dr O'Brien, in a medical report (T8, p35) stated that the Applicant will not be able to work for at least two years as she will require extensive physiotherapy and wear a special collar. A further medical adviser at Health Services Australia considered this report and confirmed the earlier opinion of Dr Meyerowitz that the condition was temporary (T10, p37).

2. In two further reports, Dr Sekel stated that surgery occurred on 14 October 1998, and that post operatively she had lost the severe pain in her left arm and also lost her headaches (T17, p49), that the majority of her headaches and neck pain had settled, as had paraesthesiae by 3 December 1998 (T18, p50).

3. On 12 September 1999, Dr O'Brien stated that the Applicant still has, postoperatively, constant posterior neck pain with twitching pain and loss of sensation in her left arm and aching and intermittent paraesthesia in her right arm. Dr O'Brien further stated that the Applicant was having difficulty with housework because of pain and vertigo, weakness of grasp and loss of half normal range of movement of the cervical spine. Further Dr O'Brien stated that the Applicant, despite having commenced antidepressants, was very depressed and anxious with difficulty sleeping, forgetfulness, easily flustered, poor memory and symptoms suggestive of an unstable bladder (Exhibit A3). In a separate report dated 20 October 1999, Dr O'Brien confirmed that she had seen the Applicant on 7 December 1996 and recorded "Depressed – unable to sleep – still having physiotherapy – not improving – zoloft 50mgs" (Exhibit A5).

4. In a report dated 9 September 1999, Dr Clark, a consultant psychiatrist, reported than in his opinion the Applicant suffers a chronic depression or dysthymia, which is reactive to a chronic back injury and the impossible relationship she has with her husband. In his opinion this constitutes an impairment rating of 20-30 points, and her condition and inability to work is likely to remain for the next two years (Exhibit A4). In a further report dated 9 November 1999, Dr Clark confirmed that he first saw the Applicant some three years ago in company with her husband, with formal treatment commencing in August 1999. It was his opinion that she has been depressed for much of this time, but too withdrawn to seek help (Exhibit A2).
   SUBMISSIONS

5. The Applicant contends that at the time of application, she had the impairments of disc prolapse of the cervical spine with consequential symptomology to head, neck and both arms and also had depression. The Applicant contends that both impairments were permanent and that the combined assessment was 20 points or greater. Further the Applicant submits that the medical evidence at the time indicated that the Applicant would have a continuing inability to work for at least two years and therefore the claim for disability support pension should have been approved.

6. The Respondent argued that the Applicant's impairments had been correctly assessed as temporary in accordance with the detailed instructions, contained within the introductory notes to the schedule 1B Impairment Tables. As a consequence the Respondent contends that a combined impairment rating of nil points is a correct assessment of the Applicant's impairments, for at the relevant time the impairments were temporary as the condition was not fully diagnosed, treated and stabilised.

7. Further it was the Respondent's contention that the impairment of depression was not in the treating doctors report of April 1998, and that the only notes in the treating general practitioner's statements recorded an episode in December 1996 and again in September 1999. Accordingly it is the Respondent's submission that the condition of depression in the Applicant was not clinically apparent as considered to be florid enough to note a mention in the treating doctors report at the operative time, and hence cannot be considered to have been fully investigated, treated and stabilised at the time.

8. As a consequence it is the Respondent's submission that the Applicant's claim for Disability Support Pension in April 1998 was correctly rejected.
   CONSIDERATIONS AND FINDINGS

9. In preliminary comment the Tribunal notes that subsection 100(3) of the Act confines the Tribunal's consideration to evidence directly relating to matters and conditions that exist at the time a claim for disability support pension is made and for a period of three months thereafter (commencing the day after lodgement) and evidence submitted that allows the Tribunal to better understand the nature, condition and effect of any impairment that is found to have existed at the defined operative time. The Tribunal further notes that this subsection clearly defines a narrow and particular period of time to which the Tribunal should direct its attention in ascertaining whether the qualifications of a particular claimant satisfy the requirements of section 94 of the Act.

10. The Tribunal in considering this matter notes the following relevant legislation, namely subsection 94(1) in part, (2), (3), (4) and (5).

    "94 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.

    …

    94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

    (b)either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

    94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

    (a)the availability to the person of educational or vocational training or on-the-job training; or

    (b)if subsection (4) does not apply to the person – the availability to the person of work in the person's locally accessible labour market.

    94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

    94(5) In this section:

    educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

    on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

    work means work:

    (a)that is for at least 30 hours per week at award wages or above; and

    (b)that exists in Australia, even if not within the person's locally accessible labour market.

    …"

1. In further comment, the Tribunal notes the following directions contained within the introductory section of the Schedule 1B Impairment Tables (post 1 April 1998):

   "
   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 forseeable future…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.
   6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one 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.

   …"

1. The Tribunal further notes that a similar but not as expansive set of directions are nominated in the introductory comments to the pre April 1998 Schedule 1B Impairment Tables. At paragraph 4, the introduction states:

   "4. For an impairment 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… 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 forseeable future. This will be taken as lasting for more than two years."

1. The Tribunal in considering the evidence of the Applicant and that of Drs O'Brien, Meyerowitz and Sekel at the operative time in this matter finds that all of these doctors only described a singular condition, namely a prolapsed disc at the C7-T1 level with particular clinical features of posterior neck pain, headaches, and pain and paraesthesia in both arms, with associated loss of grip. The Tribunal finds that this condition is a physical impairment and thus the Applicant satisfies subsection 94(a) of the Act. The Tribunal further finds that this condition had been investigated and diagnosed and that further treatment was to be undertaken in the form of a surgical intervention involving a discectomy and fusion at the C7-T1 level. It is the Tribunal's finding of fact that at the operative time frame the Applicant's condition was still awaiting further surgical treatment. As a consequence of this further treatment the Applicant's condition could not be said to be stabilised.

2. As a result of the Tribunal's finding of fact that the Applicant's condition of prolapsed disc at the C7-T1 level was still awaiting further treatment and was not stabilised, the Tribunal further finds that the condition at the defined period of time was not permanent and as a consequence an impairment rating cannot be assigned.

3. The Tribunal, in further considering the post-operative medical evidence of the Applicant, Dr Sekel and Dr O'Brien and in particular the later symptomology as nominated by the Applicant and Dr O'Brien concludes that there is nothing contained within this later evidence, which would assist the Tribunal in coming to any other conclusion than that which it has already found in relation to the Applicant's impairment of disc prolapse, discectomy and cervical fusion. The Tribunal does note and acknowledge that a further decision has now been made which in the Tribunal's view reflects the permanency of the impairment having been established with the treatment and stabilisation having occurred.

1. In relation to the issue of the Applicant's depression, the Tribunal accepts the evidence of the Applicant and that of Dr O'Brien that the Applicant was treated for depression in December 1996. The Tribunal notes and accepts the evidence of Dr O'Brien that the Applicant's depression was not mentioned as a condition when she completed the treating doctor's report in April 1998. The Tribunal notes that the Applicant had not complained of the condition of depression to Dr Meyerowitz in April 1998 and the doctor has made no mention in his report of any condition relating to depression. The Tribunal further notes that while Dr Clarke, a psychiatrist, did not commence formal treatment of the Applicant until August 1999, he had observed that, when therapeutically caring for the husband, the Applicant was depressed and withdrawn.

2. The Tribunal in considering all the evidence referred to in paragraph 29 concludes that Dr O'Brien did treat the Applicant for depression in December 1996, which was seen to be a reaction by the Applicant to her neck injury. Further the Tribunal concludes that Dr O'Brien did not consider depression to be a significant or minor condition when she completed her treating doctor's report in April 1998. Likewise the Tribunal concludes that Dr Meyerowitz found no clinical evidence of depression at his examination in April 1998 and similarly the Applicant made no mention of any clinical features suggestive of a depressive disorder to Dr Meyerowitz at that examination. It is the Tribunal's opinion that either or both doctors would have made mention of depression if the Applicant was demonstrating clinical features of such a disorder at that time.

3. The Tribunal finds the evidence of Dr Clarke of some assistance in understanding the Applicant's depressive condition in that it is clear to the Tribunal that at the time of Dr Clarke's examination in August 1999, the Applicant's clinical condition was apparent and arising as a reaction to her domestic circumstances and the continuing difficulties with her neck. The Tribunal while noting Dr Clarke's observations in relation to the Applicant in the past, when she was accompanying her husband, is unable to take the matter further, as there is an insufficient level of information in regard to time, fact, circumstance and clinical detail in Dr Clarke's comment.

4. The Tribunal, as a consequence of its considerations concludes that on the evidence available, the Applicant did not have a condition of depression investigated, diagnosed, treated and stabilised at the operative time in this matter. In the Tribunal's reasoning, evidence of a one-off mention of depression with treatment some 17 months earlier, and a general comment made about apparent depression some three years earlier do not provide the Tribunal with sufficient evidence or understanding that the Applicant had a condition of depression at the relevant time. It is the Tribunal's finding that such evidence is of limited assistance and fails to displace the weight that the Tribunal must give to the absence of any evidence of depression given by either the Applicant and treating doctors at the time of application or by the treating doctor in her further report of 6 May 1998. Further this absence of evidence of depression is corroborated in part by the absence of any mention of depression or clinical features suggestive of depression in Dr Meyerowitz's report of April 1998.

5. As a consequence of the Tribunal's earlier considerations and findings, the Tribunal finds that there was not a permanent condition of depression present at the date of claim or for a period of three months thereafter, and accordingly an impairment rating cannot be assessed.

6. The Tribunal, having found that the Applicant had no permanent impairment at the date of claim or for three months thereafter finds that the Applicant had a combined impairment rating of nil points at the relevant time. Further, in that the Applicant has a rating of nil points for her impairments, the Tribunal finds that the Applicant fails to satisfy subsection 94(1)(b) of the Act and as a consequence does not qualify for disability support pension arising from her claim of 6 April 1998.

7. The Tribunal affirms the decision under review.

   I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  27 January 2000
   Date of Decision  27 March 2000
   Representative for the Applicant  Self Represented
   Representative for the Respondent  Ms C Collis