Caratozzolo; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1509
•5 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1509
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600063
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
GIOVANNA CARATOZZOLO
Respondent
DECISION
Tribunal Senior Member R W Dunne
Professor P Reilly AO (Member)Date5 July 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for Disability Support Pension at the time of her claim.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension – physical, intellectual or psychiatric impairment – total rating of impairments under Impairment Tables – continuing inability to work – decision set aside
Social Security Act 1991 s 94
Re Rich and Secretary, Department of Employment and Workplace Relations [2006] AATA 135
REASONS FOR DECISION
5 July 2007 Senior Member R W Dunne
Professor P Reilly AO (Member)1. The respondent (Giovanna Caratozzolo) lodged a claim for Disability Support Pension (“DSP”) with the applicant (“Centrelink”) on 5 October 2005, which was accompanied by a treating doctor’s report from Dr A Alexander of the Hendon Medical Centre. Following a report by a Health Services Australia medical advisor (Dr W Ducrou) the claim was rejected on 20 October 2005 on the basis that Mrs Caratozzolo’s medical impairments did not rate at 20 points or more as required under s 94(1)(b) of the Social Security Act 1991 (“Act”). The original decision-maker reviewed her decision and, on 31 October 2005, concluded that the decision was correct. The decision was affirmed by an Authorised Review Officer on 2 December 2005. However, on 8 February 2006 the Social Security Appeals Tribunal (“SSAT”) decided to set aside the decision on the basis that Mrs Caratozzolo satisfied paragraphs (a), (b) and (c) of s 94(1) of the Act. On 10 March 2006, Centrelink applied to this Tribunal for a review of the decision of the SSAT.
2. At the hearing, Ms Jo Kitto (from Centrelink Legal Services Branch) appeared for the applicant and Ms Margaret Riley (from Welfare Rights Centre (SA) Inc) appeared for the respondent. The respondent gave evidence, along with oral evidence by telephone given by Dr Alex Alexander, Medical Practitioner. Oral evidence was given for the applicant by Dr Martin Robinson, Neurologist and Mr Nandu Nandoskar, Registered Occupational Therapist. The T documents and supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence as Exhibit A1 and Exhibit A2, respectively. In addition, the following documents were admitted:
·Impairment Table 3 – Upper Limb Function (Exhibit A3);
·letter from Dr J Martin, Consultant Physician and Gastroenterologist, dated 6 April 2006 (Exhibit R1);
·letter from Dr G Vinci, General Medical Practitioner, dated 24 January 2007 (Exhibit R2); and
·letter from Dr A Alexander, General Medical Practitioner, dated 22 February 2007 (Exhibit R3).
3. The applicant required Mrs Caratozzolo to attend a Functional Capacity Assessment on 20 July 2006 in order for a report to be prepared for the hearing of this matter. The report was prepared by Ms Lisa Natale, Registered Occupational Therapist (Exhibit A2, T18) and was dated 4 August 2006. Additional functional capacity information was sought from the Functional Capacity Assessor in order for a further report to be prepared for the hearing. The report was prepared by Mr Nandu Nandoskar (Exhibit A2, T21) and was dated 16 October 2006.
4. The applicant conceded that Mrs Caratozzolo’s permanent hearing impairment attracted an impairment rating of 5 points under Table 12 of the Impairment Tables. The applicant also conceded that Mrs Caratozzolo’s permanent depression attracted an impairment rating of 10 points under Table 6 of the Impairment Tables. The Tribunal noted that the applicant did not accept that Mrs Caratozzolo’s neck and left upper limb conditions met the descriptive criteria contained in the Impairment Tables (Table 3 and Table 5.1) to attract impairment rating points of greater than nil.
issues for the tribunal
5. The issues for the Tribunal, under s 94 of the Act, are:
·whether Mrs Caratozzolo had a physical, intellectual or psychiatric impairment;
·whether the impairment rated at least 20 points under the Impairment Tables contained in Schedule 1B of the Act; and
·whether Mrs Caratozzolo had a “continuing inability to work” within the meaning of ss 94(1)(c) and 94(2) of the Act.
legislation
6. Entitlement to DSP is to be found within the provisions of s 94 of the Act, which is reproduced relevantly as follows:
“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; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
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(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.
…”
background and evidence of respondent
7. Mrs Caratozzolo is 60 years of age. She left school at the age of 18. She described herself as a “medium” student. She had no post-school training and obtained no post-school qualifications. Her principal occupation after she left school was a phonogram operator. She said she left work in 1984 to look after her family. She has three children and her husband is in receipt of the Age Pension. He was previously in receipt of DSP when he hurt his back at work. She cared for him at that time, but he is now able to look after himself. She was involved in a motor vehicle accident in 2003 and suffered a disc prolapse C5/6 as a result. Her injury has caused her considerable neck pain which travels down to her left shoulder, her left arm and to her left (non-dominant) hand and to the finger tips, causing “numbness”. She has found it hard to care for herself and, because of the pain, is unable to do much around the home. She is unable to attend to the lawns and the gardening and this is done by her son, who lives away from home. She cannot hang clothes out and has to get her daughter, who lives at home, to help. Her daughter also assists in attending to the heavier chores around the home. Her daughter lived away from home for a period, but returned after Mrs Caratozzolo had her accident. Mrs Caratozzolo is able to cook, but everything is done mainly with her right hand. She can use her left hand as well, but it is her right hand that she mainly uses. She has difficulty blow-drying her hair, so her daughter does that for her. She has trouble dressing and will often take some time doing so. She is able to drive a motor vehicle, but her left arm becomes tired and she has to rest it for a time before continuing. The motor vehicle has power steering which is of assistance to her driving. When reversing, she has difficulty looking around and turning her head to the left “really pulls [her] neck”.
8. The respondent’s medication comprised Thyroxin for her thyroid and she was trialling blood pressure tablets. She took Panadeine or Panadol, once or twice a week, depending on the pain involved. But she had to limit herself with the medication because it caused “stomach upset”. She does not like being on medication unless it is a necessity. To control her Crohn’s Disease, she avoids certain foods and dairy products because they also cause stomach upset. She said she also suffered from “a bit of chronic fatigue” and sometimes could barely get out of bed. When she did, she invariably did not have a good day. She has had physiotherapy to treat her neck and her left arm, which has been a great help to her. However, she could not afford regular physiotherapist visits, nor could she afford regular exercise at a gymnasium. She said her family might be able to assist by paying for her to visit a physiotherapist once a week. She also said that she would not be physically able to attend a gymnasium regularly as it would be too strenuous for her. However, she tried to walk at least 2 or 3 times a week, for her general conditioning.
9. Mrs Caratozzolo said she was not the sort of person who would be happy to go to work and not put in a full day. She said she was a perfectionist and would not be able to give all of herself to a job. She would also be embarrassed if she had to take time off from work due to the effects of Crohn’s Disease. She said this would not be fair to the people who were employing her. Although she had been a phonogram operator, her hearing loss would make it difficult for her to return to that sort of work. She could not work in a repetitive environment because she often became tired and would not be able to continue. She had been unable to consider alternative medication because she was allergic to a lot of medicines, especially anything with sulphur in it. Her doctors were wary of prescribing other medication because of the allergies she suffered from. However, she said that she had not spoken to her doctors about alternative pain medication to alleviate the symptoms in her neck. Although her Crohn’s Disease had been severe in the past, it was now reasonably under control with intermittent medication, unless she had a bad attack. Otherwise, she simply had to watch what she ate and if she suffered stomach upset (or “gastro”) she would have to persevere with it. She did not suffer gastro episodes regularly and their occurrence would depend on what she ate. Although she said her left arm became tired if she undertook repetitive tasks, she meant she was suffering pain. The pain was not confined to a particular region, but it travelled from her neck down to her shoulder and then to her left arm and hand. She had been unable to lift her left arm above shoulder height since her accident.
10. When she undertook tests for her grip and her arms, the movements caused the respondent pain at the time. She also applied Voltaren cream to her left shoulder, which would ease the pain. When questioned by Ms Kitto, she said the last time she visited a physiotherapist was about 6 months ago and the treatment helped with removing some of the tension she suffered. However, after about a month or so, the pain would return. The physiotherapist gave her some exercises for her neck and shoulder and these did provide relief. She has not seen any specialists, apart from the ones who had provided reports to Centrelink. She said she had seen a specialist for advice about treatment after her accident. The specialist was Dr Munyard, an orthopaedic surgeon, to provide treatment for her neck. Over time, since her accident, she had been suffering tension headaches and had become very tired. When she woke in the morning, her left arm felt stiff and her neck and shoulder felt very sore. Once she got out of bed and moved about, she felt better, but some pain persisted.
medical evidence
11. The T documents contain treating doctors’ reports (from Dr A Alexander and Dr G Vinci), a Medical Assessment Report (from Dr W Ducrou from Health Services Australia) and Health Summary notes from Dr A Alexander. The Tribunal has gained little assistance from these reports and prefers, for consideration, the oral evidence and report (dated 11 July 2006) of Dr M Robinson (Exhibit A2, T19) and Mr N Nandoskar (Exhibit A2, T21) for the applicant, and the reports of Dr J Martin (Exhibit R1), Dr G Vinci (Exhibit R2) and Dr A Alexander (Exhibit R3) tendered by Ms Riley for the respondent. The Tribunal has also noted the report of Ms Lisa Natale (Exhibit A2, T18).
Report of Dr J Martin
12. Dr Martin’s report stated that he had been the respondent’s treating specialist since June 2003. The report focussed on the respondent’s Crohn’s Disease, which he said had been severe in the past and, with medication, was now reasonably under control. The respondent would probably need to have intermittent medication indefinitely.
Report of Dr G Vinci
13. Dr Vinci’s report referred to the respondent’s injuries to her neck, her left shoulder and left arm following the motor vehicle accident in 2003. The report stated that the respondent remained with moderate restriction of movement of the left arm and shoulder. She had difficulty in abducting the arm, had recurrent neck pain and had left tennis elbow. Dr Vinci’s opinion was that the use of the left arm in a work situation would tend to aggravate the respondent’s symptoms and he did not think she would be fit to return to the workforce.
Report and Evidence of Dr A Alexander
14. Dr Alexander’s report stated that the respondent suffered from cervical disc injury which prevented full and effective use of her non-dominant arm. He said the injury would, at the very least, result in a 20-30 percent loss of use of function of that arm. In addition, the respondent had Crohn’s Disease, with ongoing stomach pains which limited her working and, at times, totally disabled her from all activities during a flare-up. In Dr Alexander’s opinion, the respondent was totally incapable of working. The report also indicated the past history of vitamin deficiency, chronic fatigue syndrome, osteoporosis (corticosteroid induced) and hypertension. The respondent was allergic to cefuroxime, doxycycline, roxithromycin and sulfonamides.
15. Dr Alexander’s oral evidence was that the respondent had been his patient since 12 October 2001. He described her general health as quite poor. She suffered from kidney stones, hypertension, under-active thyroid and was post-menopausal. She suffered from allergic synositis, reflex esophagitis, chronic fatigue syndrome and Crohn’s Disease. She had a disc prolapse in the cervical spine, C6/7, vitamin deficiency, osteoporosis and a degree of anxiety. In his opinion, the loss of function in her left arm was permanent and would not improve in 2 years. Attending a gymnasium for a period would probably make the injury worse. Her health impairments would make it difficult for her to sustain permanent employment because she would be unreliable. He said that he had not prescribed stronger pain killers for the respondent as he wanted to limit her medication as much as possible.
16. In cross-examination, Ms Kitto referred Dr Alexander to his report dated 22 February 2007. When asked why his oral evidence of the respondent’s health had been more extensive, he said that her past history had not been transferred to the computer and so did not appear in his report. When asked how he was able to opine that the respondent was totally incapable of working, he said that he thought she would be unreliable and could not be expected to show up for work, day after day. He said her diseases, particularly her Crohn’s Disease, could hospitalise her for weeks at a time. When asked by Ms Kitto about pain medication which would not upset her Crohn’s Disease, Dr Alexander responded that he tried to avoid any pain medication. Ms Kitto questioned Dr Alexander about the respondent’s steroid induced osteoporosis. When asked about the clinical effects of the steroids, he said that it had probably added to the respondent’s pain.
Report of Ms L Natale
17. In her summary, Ms Natale reported that the respondent had the capacity to work on sedentary tasks on a part-time basis initially for 3-4 hours, 3 days per week, with a view to gradually increasing her hours. The respondent’s reduced physical capacities placed her in the sedentary work category and she was not suited to manual or industrial type employment. The report contained a visual analogue scale of pain associated with the testing of the respondent conducted by Ms Natale. On a scale where zero represented no pain and 10 represented intolerable pain, the pain levels displayed by the respondent during the testing were as follows:
“AT BEST: 3
AT WORST: 6-7
PRE ASSESSMENT: 6-7
POST ASSESSMENT: 12/10! She reported that it was ‘killing’ her, and was more worrisome than normal.”
18. Ms Natale reported that the respondent complained of aching pain in the left side of her neck and around the scapular, which radiated into her breast, down the left arm and into the fingers. The pain was worse just above the elbow, particularly with arm movement. In grip strength testing and pinch strength testing using a Jamar Dynamometer, the respondent recorded the following:
“Grip Strength Testing:
Average
Norms
Score
Right
18.0kg
26.0kg
<15th%tile (Poor)
Left
12.0kg
21.5kg
<15th%tile (Poor)
…
Pinch Strength Testing:
Average
Norms
Score
Right
7.0kg
7.3kg
Satisfactory
Left
6.0kg
7.0kg
Satisfactory
…”
19. It was Ms Natale’s recommendation that, prior to placement in employment, a job analysis be conducted of the respondent by an occupational therapist to assess the following issues:
·to ensure the job demands were within the respondent’s physical capacities;
·to provide ergonomic modifications if required;
·develop a graduated return to work schedule; and
·educate the respondent on correct work practices relevant to the tasks to reduce risk of re-aggravation.
Evidence and Report of Dr M Robinson
20. Dr Robinson was referred to his report dated 11 July 2006 (Exhibit A2, T19). He said the whole assessment of the respondent was targeted to her C5/6 disc problem and the impact on her arm function. When asked by Ms Kitto what findings he would have expected to make if the respondent had a neurological problem with her neck or her left upper arm, he said he would be looking for weakness in the C5, C6 muscle and sensory distribution, essentially weakness around the upper arm. This would be consistent with C5/6 nerve root compressive syndrome. He said, however, he found none of those findings in Mrs Caratozzolo’s case. Dr Robinson was referred to Impairment Table 3 (Exhibit A3). He said that he found that the respondent had a reasonably full range of neck movements and, because of that, he had scored a nil rating on the Table. In response to questioning by the Tribunal, Dr Robinson said that, during the testing, the respondent disclosed a degree of “give way weakness”, which suggested that she was not putting in a full effort in the testing. In cross-examination by Ms Riley, Dr Robinson acknowledged that it was possible to have pain and restriction of movement without any evidence of significant nerve root compression syndrome. However, he said that the respondent’s pain could not be caused by a long-term muscular injury arising from neck trauma. The respondent was complaining of pain from her neck down to the shoulder and down the arm, which did not arise from a muscle problem. When asked by Ms Riley what else could be causing the respondent’s pain, he said that she may have degenerative changes in her neck, such as arthritis.
Evidence and Report of Mr N Nandoskar
21. In giving his evidence, Mr Nandoskar acknowledged that he had prepared his report supplementary to the report prepared by Ms Natale, when she was unable to do so because of her maternity leave. Mr Nandoskar also consulted with the respondent, but did not put her through the whole range of test batteries and, instead, relied on Ms Natale’s assessment in a number of areas. As a result, his report was shorter than the report prepared by Ms Natale. He said he undertook a brief clinical assessment of range of motion and muscle testing and then reviewed Ms Natale’s assessment with the respondent.
22. Mr Nandoskar was referred to the statement in his report that the respondent demonstrated self-limiting behaviour (Exhibit A2, T21 at page 123). He said that Mrs Caratozzolo was constantly a “bit guarded” throughout the assessment. The results of the Jamar Dynamometer testing of the respondent indicated that she was guarded during the performance of the testing. He said that he had recommended that the respondent attend a gymnasium program to enable her to return to work on a graduated basis. This was called work conditioning and enabled patients to gradually build up their endurance. He acknowledged the summary in his report that, based on his assessment and having perused the previous report of Ms Natale and the recent medical information that has been provided to him, the respondent had the capacity to work more than 30 hours per week. He said, however, the respondent’s guardedness and general de-conditioning could become a major barrier in achieving this outcome. In cross-examination, Mr Nandoskar said that he undertook a Minnesota Rate of Manipulation Test, but did not perform a Purdue Peg Board Test or a Valpar 8 Simulated Assembly Test. Ms Natale had performed those tests and he was comfortable relying on her assessment.
23. When asked to explain the difference between Ms Natale’s recommendation of a 9-12 hours per week return to work and his assessment of a 30 hours per week work capacity, he said he was saying the same as Ms Natale, but in a different way. The respondent should be starting work gradually, but she needed to have her guarded behaviour addressed with a specialist in that area. In response to further questioning by Ms Riley, Mr Nandoskar admitted that the respondent would not have been able to return to full-time work the next day. However, subject to the recommendations he had made in his report, he said she had the capacity to return to work at some stage in the future. When asked by Ms Kitto in reply for clarification, he said that the respondent would be able to return to 30 hours work per week, mainly of a clerical kind, within 3 to 6 months maximum if she was given the right opportunities and resources.
24. Mr Nandoskar was referred by the Tribunal to the results of the Jamar Dynamometer testing in his report and the report of Ms Natale. He acknowledged that, in the space of less than 3 months, there had been a dramatic change in the test results and that this was as a result of the respondent’s self-limiting behaviour. The scores in the grip strength testing conducted by Ms Natale were below average, whilst the scores in the pinch strength testing were about normal. However, he acknowledged that the scores in both the grip strength testing and pinch strength testing conducted by him were both very much below average. Also, when questioned about the visual analogue pain results of Ms Natale and the score of 12 out of 10 on the day following the assessment (Exhibit A2 T18 at page 106), he said that the score should have returned to an “at worst” or “pre-assessment” figure of 6-7. Patients who had pain arising from a neck condition did not find the pain was aggravated by the grip strength test or the pinch strength test. In the grip strength test conducted by Ms Natale, the average scores for both the right hand and the left hand were below normal. Even the grip strength test for the right hand was below normal and, in Mr Nandoskar’s view, this was because of the respondent’s self-limiting behaviour and guardedness to demonstrate the strength of both her hands. He said that he could not recall if there had been any complaint of pain by the respondent in using her right, or dominant, hand.
consideration
25. In order to qualify for DSP, the respondent must satisfy the relevant requirements of s 94(1) of the Act. It is accepted (and the Tribunal is satisfied) that the respondent:
·satisfied paragraphs (a), (d) and (e) of s 94(1); and
·had a combined impairment rating of 15 points under the Impairment Tables, comprising a rating of 10 points in respect of depression under Table 6 and a rating of 5 points in respect of hearing loss under Table 12.
26. The SSAT found that Mrs Caratozzolo’s neck injury attracted an impairment rating of 5 points under Table 3 because she had moderate interference with function of the non-dominant upper limb. The description of the criteria for a rating of 5 points in Table 3 is that there is:
“Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.”
The Tribunal notes that pain is not included in the rating criteria.
27. It is the Tribunal’s view that the evidence and report of Dr Alexander has little persuasive value. In his report, he detailed the respondent’s past medical history and allergies. He expanded upon her medical history in his oral evidence. As the respondent’s treating doctor for more than 5 years, he is obviously qualified to present this evidence to the Tribunal. However, in his report he acknowledges:
“Unfortunately since I am a GP I do not have specialist knowledge of rehabilitation and Commonwealth Law sufficient to fully address the complex issues you raise.”
Then, in his evidence when asked by Ms Riley whether he would comment on an occupational therapist’s assessment that the respondent could work for 30 hours a week, he was not prepared to express an opinion. He said he was “…not qualified in the area of Social Security” (Transcript, page 44). When also asked by Ms Riley whether the respondent had health impairments that would stop her from working, he said that they (in particular, her Crohn’s Disease) would make it difficult for her to sustain permanent employment because she would be unreliable. It is of note that, when asked by the Tribunal whether he had seen evidence of any loss of function of the left arm when he examined the respondent, he said:
“I think it is mainly a pain problem, I am not sure … Look, I don’t think – just quickly going through my notes, I don’t – there is probably a lot of loss of function in that arm in the sense of not being able to use it. She does experience pain and – just can’t fit with that – but is not a big issue that I have noted terribly much.”
28. The reports of Dr Martin and Dr Vinci have been referred to above in paragraphs 12 and 13 of these reasons. They speak largely as reports of the respondent’s general practitioners and are of little assistance to the Tribunal. Ms Riley submitted that the reports of treating doctors of long standing should be given appropriate weight. She referred to the decision in Re Rich and Secretary, Department of Employment and Workplace Relations [2006] AATA 135, where Member Rear Admiral A R Horton AO was prepared to give appropriate weight to the report of the applicant’s treating doctor. The Tribunal is unable, in the present case, to give similar weight to the reports of Dr Alexander, Dr Martin and Dr Vinci.
29. In circumstances where the Tribunal has not seen Dr Martin or Dr Vinci (and has commented upon the evidence of Dr Alexander), the Tribunal must determine which body of opinion is to be preferred by reference to the experience and qualifications of the persons expressing the opinions and the evidence put forward by them. On this basis, the Tribunal prefers the opinions of Dr Robinson and Mr Nandoskar. Dr Robinson’s evidence (which the Tribunal accepts) was that he could not find any abnormal neurological findings when looking at Table 3 in the Impairment Tables, and concluded that a nil rating was appropriate. The opinion he expressed in his report (Exhibit A2, T19 at page 117) was unequivocal and read:
“The patient complains of pain in a radicular distribution down the left side of the neck and arm. I was not able to find any evidence of significant neurological weakness, she has normal reflexes and reasonable neck movement. There is therefore no clinical evidence of a significant nerve root compression syndrome. There are no difficulties whatsoever with the dominant (right) limb.
In terms of rating, there is therefore no difficulty of use of the dominant limb and at worst only mild interference with hand function or manual handling of the non-dominant, left, limb. This would give a rating of nil.
In terms of spinal function, there does not appear to be any difficulty with the range of movement, hence this would give a nil rating according to Table 5.1.
In terms of Table 5.2, thoraco-lumbosacral spine, she has normal or nearly normal range of movement, hence a nil rating.
In terms of her neurological function, there is no evidence of a continuing inability to work.”
30. Mr Nandoskar’s evidence was also persuasive. It is of particular note that, in his report and in the evidence he gave, he referred to the respondent’s self-limiting and generally guarded behaviour. The Jamar Dynamometer grip strength testing results and pinch strength testing results were of particular note, especially the difference in the results in the 3 months between Ms Natale’s examination and the examination by Mr Nandoskar. Moreover, the respondent’s post-assessment score of 12 over 10 in the visual analogue scales of pain raised questions about the veracity of her testing responses.
31. As to the evidence of Mrs Caratozzolo herself, the Tribunal is satisfied that she suffers from some level of pain in her neck and possibly her shoulder. However, as was suggested by Dr Robinson, the cause of the pain could well be degenerative changes in her neck and her left shoulder. The pain does not appear to be, in itself and on the evidence, sufficient to prevent her from undertaking clerical or other sedentary work.
32. The Tribunal is not satisfied that there is demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of the respondent’s non-dominant upper limb which has caused moderate interference with left hand function or manual handling. At worst, there is only mild interference with the hand function or manual handling of the non-dominant limb. In these circumstances, as the criteria in Table 3 has not been met, the rating assigned to the respondent’s left upper limb impairment must be nil. It follows that the respondent’s combined impairment is not 20 points or more under the Impairment Tables.
33. Given the Tribunal’s finding in relation to s 94(1)(b) of the Act, it is unnecessary to consider whether the respondent has a continuing inability to work within the meaning of s 94(1)(c)(i) and s 94(2). Nevertheless, based on the evidence of Dr Robinson and Mr Nandoskar, the Tribunal is of the view that Mrs Caratozzolo’s neck and left upper arm functional impairment is, of itself, not sufficient to prevent her from doing any work within the next 2 years and to prevent her from undertaking educational or vocational training or on-the-job training during the next 2 years.
decision
34. For the reasons above, the Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for DSP at the time of her claim.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne and Professor P Reilly AO (Member)
Signed: .............J Coulthard........................................
AssociateDate of Hearing 20 March 2007
Date of Decision 5 July 2007Advocate for the Applicant Ms J Kitto
Centrelink Legal Services Branch
Advocate for the Respondent Ms M Riley
Welfare Rights
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