Christine O'Leary and Secretary, Department of Social Services

[2015] AATA 44

[2015] AATA 44 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1114
Re	Christine O'Leary
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	29 January 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant has 20 points under the impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President P E Hack SC

29 January 2015

1. The applicant, Miss Christine O’Leary, suffers from a chronic neck injury, osteoarthritis of the hips, visual loss and hypertension. She made a claim for disability support pension in June 2012. It was refused. That decision was affirmed on internal review and by the Social Security Appeals Tribunal.

2. Miss O’Leary seeks a review of the decision to refuse her application for disability support pension. The relevant period to consider her eligibility is at the time of the claim (20 June 2012) and in the period of 13 weeks thereafter.

3. The criteria a person must meet in order to qualify for disability support pension can be found in s 94 of the Social Security Act 1991 (Cth) (the Act). A person is qualified to receive disability support pension if the person has a physical, intellectual or psychiatric impairment (or impairments), the impairment warrants a rating of 20 points or more under the Impairment Tables and the person has a continuing inability to work. In light of the conclusions I have reached it is not necessary to consider the meaning of the expression “continuing inability to work”. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination also sets out the manner in which impairments are to be assessed. In particular, s 6(4) of the Determination requires that a condition must be fully diagnosed, fully treated and fully stabilised before an impairment rating can be assigned to it and that the condition is more likely than not to persist for more than two years.

4. Miss O’Leary’s most pressing complaint appears to be the pain she suffers in her neck and her hips. There are two medical reports in evidence by Dr Tapat that relate to Miss O’Leary’s neck condition. The report of 24 June 2012 records a diagnosis of symptomatic osteoarthritis causing pain and stiffness in the neck affecting her ability to function through decreased mobility in the morning. The report also records “increased time to complete duties work, study, home” as a functional impact, which indicates her ability to undertake these tasks.

5. On 16 June 2012 Dr Tapat reported that Miss O’Leary suffers from osteoarthritis of the neck and that this condition has a significant impact on her ability to function. The report lists decreased endurance and tightness of the neck as affecting her ability to function, expecting to last longer than two years. Miss O’Leary subsequently advised the Authorised Review Officer undertaking the internal review that she recorded the information in both Dr Tapat’s reports which he then signed.[1] I propose to take into account the reports of Dr Tapat, though I view the 24 June 2012 report with caution given that it contains medical inaccuracies.

   [1]Exhibit 1, page 56.

6. A Job Capacity Assessment was undertaken in July 2012. Miss O’Leary reported to the assessor that she was able to hang clothes on the clothes line independently, shake out floor rugs and perform head checks while driving. The assessor found there was a moderate functional impact on Miss O’Leary’s ability to undertake activities involving spinal function and allocated 10 impairment points under Table 4 of the Impairment Tables. 

7. Dr Kaushal’s report of 18 July 2012 diagnosed Miss O’Leary with “osteoarthritis [of the] spine C3/T1 with foraminal stenosis C4/C5 and C5/C6” and osteoarthritis of both hips. He indicated that these conditions had a significant impact on her ability to function and listed symptoms as daily neck pain and numbness of both arms. He reported continuing pain in the neck and pain in both hips as having a functional impact. An attachment[2] to Dr Kaushal’s report lists numbness in the patient’s arms and legs, headaches and high blood pressure, though it is unclear as to what diagnosis these symptoms are related. Dr Kaushal also listed hypertension as having a minimal or limited impact on her ability to function.

   [2]Exhibit 1, page 165.

8. A report by Dr Anderson dated 16 July 2013 is also in evidence. He recorded degenerative arthritis of the spine and hips as the condition having the most impact upon Miss O’Leary. The date of diagnosis is listed as December 2012 and as confirmed by orthopaedic surgeon, Dr Bruce Low. The symptoms detailed in the report as being persistent are pain and stiffness in the neck, back and hip, radicular symptoms in both arms, and fatigue.

9. Dr Low wrote two brief letters[3] outlining the history of Miss O’Leary’s conditions. On 30 November 2012 he wrote that she had chronic neck pain and that an MRI had indicated “some foraminal entrapment on the right at C4/5”. He confirmed that her right hand would become dead and wake her up at night. His February 2014 letter referenced her cervical spondylosis and arthritic hips along with several other impairments not relevant to the claim. His opinion was that Miss O’Leary was disabled due to chronic pain in multiple sites.

   [3]Exhibits 2 and 3.

10. There is a report in evidence by Dr Maria Moon, an ophthalmic surgeon. She reported on 18 September 2003 that there was “some loss of visual field in the left”. No other abnormalities were recorded.

    Neck condition

11. Although the SSAT assigned Miss O’Leary 10 points under the Table 4 – Spinal Function, and 5 points under Table 2 – Upper Limb Function, the Secretary submits that only a rating of 5 points should be assigned under each table. Table 4 provides, relevantly:

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)        The person can:

(a)       bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)       turn their trunk from side to side; and

(c)       turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)        The person has some difficulty in:

(a)       activities over head height (e.g. activities requiring the person to look upwards); or

(b)       bending to knee level and straightening up again without difficulty; or

(c)       turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)       the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)       the person has difficulty moving their head to look in all directions  (e.g. turning their head to look over their shoulder); or

(c)       the person is unable to bend forward to pick up a light object placed at knee height; or

(d)       the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

Table 2 provides, relevantly:

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)        The person can pick up, handle, manipulate and use most objects             encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1)        The person can manage most daily activities requiring the use of the             hands and arms, but has some difficulty with most of the following:

            (a)        picking up heavier objects (e.g. a 2 litre carton of liquid or   carrying a full shopping bag);

            (b)        handling very small objects (e.g. coins);

            (c)        doing up buttons;

(d)        reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

(1)        The person has difficulty with most of the following:

            (a)        picking up a 1 litre carton full of liquid;

            (b)        picking up a light but bulky object requiring the use of 2 hands   together (e.g. a cardboard box);

            (c)        holding and using a pen or pencil;

            (d)        doing up buttons or tying shoelaces;

            (e)        using a standard computer keyboard;

(f)         unscrewing a lid on a soft-drink bottle.

The Introduction to both tables specifies that self-report of symptoms alone is insufficient when assigning an impairment rating. A rating must be supported by corroborating evidence such as medical reports.

1. Dr Tapat reports decreased endurance and tightness of the neck, as well as decreased mobility as impacting her ability to function. There is nothing to indicate that Miss O’Leary is unable to sustain overhead activities or move her head to look in all directions as required to meet 10 points on Table 4. The Job Capacity Assessment report indicated that during the relevant period Miss O’Leary was able to perform head checks when driving. There is also nothing in the reports to show that she has difficulty picking up a light object at knee height or that she requires assistance getting out of a chair. She therefore does not meet the criteria for 10 points under Table 4. I find that there is a mild functional impact on activities involving spinal function, and would assign 5 points under Table 4.

2. Dr Kaushal’s report lists a current symptom as “numbness of both arms” happening every day. Dr Anderson mentioned radicular symptoms of the arms but fails to list any functional impact. Miss O’Leary reported to the JCA assessor that she is able to hang clothes on the line independently and shake out floor rugs when cleaning. At the hearing she reported that while this was true, she did so with difficulty. The respondent has conceded that Miss O’Leary suffers a mild functional impairment in her upper limbs and should be assigned 5 points. In the absence of evidence to the contrary I am prepared to accept this concession. I would assign 5 points under Table 2.

3. The report of Dr Kaushal diagnoses Miss O’Leary with osteoarthritis of both hips, having a significant impact on her ability to function. While I recognise that there is a diagnosis and recurrent pain in the hips, I am unable to assign an impairment rating where there is no medical evidence of the functional impact of that condition. No impairment points can be assigned to Miss O’Leary’s hip condition.

4. Dr Kaushal’s report records the diagnosis of hypertension, but is listed as having a minimal or limited impact on her ability to function. As there is no evidence relating to the functional impact of the hypertension, I cannot assign points to the condition. Additionally, there is no evidence of the functional impact of Miss O’Leary’s visual loss in Dr Moon’s report, so I am again unable to assign any points to the condition.

5. The result is that Miss O’Leary has impairments however they do not warrant a rating of 20 points or more under the Impairment Tables. Miss O’Leary does not satisfy one of the criteria for disability support pension. Given that conclusion, I need not consider whether Miss O’Leary has a continuing inability to work.

6. The decision under review was correct. It will be affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 29 January 2015

Date of hearing	10 October 2014
Date final submissions received	12 December 2014
Applicant	In person
Advocate for the Respondent	Mr N Warren, Department of Human Services