David Thompson and Secretary, Department of Social Services

[2015] AATA 435

[2015] AATA   435

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2677
Re	David Thompson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date		23 June 2015
Place	Sydney

The Tribunal affirms the decision under review.

...................................................................

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

23 June 2015

BACKGROUND

1. On 29 November 2012 Mr Thompson lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

2. In the claim form Mr Thompson listed his disabilities as “right shoulder reconstruction, C6-C7 vertibrae problem, neck and shoulder problem, left elbow tendon & nerve problem”.

3. Mr Thompson’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

4. In this proceeding Mr Thompson seeks review of the SSAT decision of 22 April 2014.

5. At the hearing Mr Thompson was self-represented and was able to give oral evidence.

   ISSUES

6. In order to qualify for DSP, Mr Thompson must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), that is, between 29 November 2012 and 28 February 2013 (the claim period).

7. Section 94(1) of the Act provides that 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 20 points or more under the Impairment Tables; and

   (c) one of the following applies;

   (i) the person has a continuing inability to work;

   …

8. It is agreed that Mr Thompson suffers medical conditions that cause impairment and therefore satisfies s 94(1)(a) of the Act.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a));

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)).

11. Also the Introduction to each Table states that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”. 

12. It is agreed that Mr Thompson suffers impairment involving upper limb function caused by conditions of the right shoulder, left elbow and left ulnar nerve and impairment involving spinal function caused be a condition of the cervical spine.

13. The respondent submits that the upper limb conditions were fully diagnosed, fully treated and stabilised at the date of the claim and that a rating of 10 points under Impairment Table 2 is appropriate.

14. The respondent also submits that the cervical spine condition was permanent at the date of the claim but that Mr Thompson suffered only mild impairment and warrants a rating of 5 points under Impairment Table 4.

15. The respondent also contends the if the Tribunal were to find that Mr Thompson’s impairment rating during the claim period was 20 points or more he did not satisfy section 93(1)(c) of the Act in that he did not have a continuing inability to work.

16. It follows that the definitive issues in this matter are whether during the claim period Mr Thompson’s impairments rated 20 points or more under the Impairment Tables and if so, whether he had a continuing inability to work.

    UPPER LIMB FUNCTION

17. It is not disputed that Mr Thompson has had three operations for medical conditions of his upper limbs as follows:

    ·Excision of olecranon bursa and removal of spur on 1 February 2007;

    ·Left ulnar nerve transposition to relieve nerve compression  on 15 September 2009; and

    ·Stabilisation of right acromioclavicular joint 31 January 2012.

18. In a letter dated 11 December 2012 Dr Foo, a GP with an with an occupational health practice, lists “ Right AC joint subluxation”  as a medical condition and  notes “difficulty with work above chest height, pulling and pushing and lifting more than 5 kg with the right hand”.

19. In a Centrelink medical report dated 12 December 2012 Dr Foo lists “left olecranon bursitis” and “left ulnar nerve compression neuropathy” as medical conditions which have the most functional impact but makes no mention of the right shoulder condition.

20. Dr Foo describes impact on ability to function as “pain on hitting elbow” and “left elbow stiffness, pain on impact and hand numbness” but does not address any of the descriptors in Impairment Table 2.   

21. Mr Thompson told the SSAT that he still has problems with his right shoulder and left elbow. He said that he was restricted by his right shoulder and “cannot lift anything weighing more than five kilograms” but might be “.able to carry a cardboard box containing a few items”.

22. The SSAT also noted as follows at 5:

    He is able to have a shower, wash his hair, dress do up buttons, use utensils on most days and write. He needs helps at the supermarket because he can only carry light bags. Mr Thompson is able to take a carton of milk from the refrigerator. He can unscrew a bottle of lemonade only if the seal has already been broken by somebody else.

23. At the hearing Mr Thompson described similar difficulties with hand and arm function.

24. Although, in my view, there is inadequate corroboration of Mr Thompson’s self-reported functional impairment during the claim period I accept for present purposes that he describes a moderate impairment consistent with a rating of 10 points under Impairment Table 2.

    SPINE FUNCTION

25. The report of an MRI of the cervical spine notes that “at C6-C7, there is mild broad-based posterior disc osteophyte complex” and “moderate right foraminal narrowing and moderate-to-marked left foraminal narrowing due to uncovertebral joint hypertrophy”.

26. In a report dated 20 August 2010, Dr Hsu, spine surgeon, notes that Mr Thompson “recently has developed right arm symptoms and numbness in the fingers” with pain and numbness being aggravated by neck movements.

27. On examination Mr Thompson was found to have normal range of motion of the cervical spine except for lateral motion which has a decreased range of motion by approximately 30%. Upper limb sensation was intact to light touch except for decreased sensation in thee ulnar digits on both hands.

28. Dr Hsu stated that the MRI scan of the cervical spine demonstrated “multilevel loss of disc height and bulging most significant at C6/7 level with foraminal stenosis”.

29. Dr Hsu told Mr Thompson that his symptoms are possibly related to his C6/7 pathology and referred him for right sided C6/C7 foraminal injection as both a diagnostic and therapeutic injection.

30. In a letter dated 1 November 2010 Dr Hsu notes that a right sided C6/7 foraminal injection performed on the 26 October 2010 did not result in any improvement in Mr Thompson’s pain. Dr Hsu suggested an option of a trial C5/6 foraminal injection.

31. There is no further documentary evidence before the Tribunal in  respect of Mr Thompson’s cervical spine until Dr Foo’s brief letter of 11 December 2012.  Dr Foo notes “cervical discogenic neck pain…right C6/7foraminal cortisone injection” and “difficulty with work above chest height, prolonged static neck posture”. There is no assessment in respect of any functional impact of this condition.

32. In a letter dated 5 March 2013, Dr Cunningham, sport physician, notes that Mr Thompson has current symptoms of  “constant, right sided neck pain  radiating down to the medial border of the scapula and out through his trapezius region, associated with trap muscle spasm ++”. On examination he notes limited cervical spine rotation to the right, normal upper limb power and normal sensation except for “reduced light touch over the ulnar border of his hand”.

33. Dr Cunningham concludes that that the “neck is contributing most to his current symptoms” and recommended a repeat MRI to look for progression of the C6 disc protrusion and consider a trial of Lyrica to treat the neuropathic component of his pain.

34. Dr Cunningham does not provide any assessment of functional impact which would address the descriptors in Impairment table 2.

35. In a referral letter to a neurologist dated 27 June 2013 Dr Foo requests nerve conduction studies to investigate Mr Thompson’s symptoms of “shooting pain down to his right shoulder and pins and needles in the R little and ring fingers”.

36. In a letter dated 18 June 2013 Dr Cunningham notes that the introduction of regular Celebrex has offered some limited improvement and that Mr Thompson continues to be “limited by right sided neck/shoulder girdle pain with any neck extension or rotation”.

37. Dr Cunningham notes that Mr Thompson’s pain has plateaued and that he will continue with his ongoing strategies of stretches and postural muscle exercises but “needs to consider surgical intervention for the cervical spine if he is keen to seek further clinical gains”.

38. Mr Thompson told the SSAT that his neck is stiff and sore and prevents him from doing a lot of things. He is able to reach up to retrieve a book from a shelf which is within reach, bend down to pick up an object on the floor and on good days is able to slowly hang out washing and do some sweeping or vacuuming. He also said that he had some difficulty with overhead activities and limitation of movements of his cervical spine.

39. The SSAT was not persuaded that the functional impact on activities involving spinal function could be described as “moderate” and therefore assigned an impairment rating of five points under Table 4

40. At the hearing Mr Thompson told the Tribunal he has had pain and restricted movement in his neck since 2012. He described restriction of neck movements in all directions and claimed that since 2012 he could not turn his head without moving his trunk.

41. At the hearing Mr Thompson provided the Tribunal with a medical certificate dated 27 May 2015 in which his current GP, Dr Leong, made specific reference to the descriptors in Impairment Table 4 and stated Mr Thompson suffers a moderate functional impact on activities involving spinal function.

42. I note that other documents before the Tribunal indicate that Mr Thompson was a patient of Dr Leong from the 23 July 2013 about five months after the end of the claim period. 

    CONSIDERATION

43. Notwithstanding respondent’s acceptance that Mr Thompson’s cervical spine condition was permanent, in my view, the evidence points to a conclusion that during the claim period Mr Thompson’s condition was not fully diagnosed, fully treated and fully stabilised.

44. There is no evidence of further follow-up with Dr Hsu and Dr Foo’s letter of 11 December 2012 provides no new information about the condition.

45. Dr Foo’s Centrelink report of 12 December 2012 makes no mention of the cervical spine condition.

46. Dr Cunningham’s letter of 5 March 2013 implies that Mr Thompson’s cervical spine condition may have progressed and proposes treatment which has not been previously considered. In his letter of 18 March 2013 Dr Cunningham suggests that surgery should  also be considered

47. Dr Foo’s referral letter of 27 June 2013 suggests further investigation was needed to clarify the cause of Mr Johnson’s symptoms.

48. If I accept that during the claim period Mr Thompson’s cervical spine condition was permanent for the purposes of the Impairment Determination there is difficulty with respect to the assessment of functional impact on spinal function during this period.

49. Mr Thompson’s self-report of symptoms suggest a moderate to severe impairment which is consistent with Dr Leong’s assessment of 27 May 2015. 

50. The difficulty is that Dr Leong did not examine Mr Thompson during the claim period or several months thereafter and his recent assessment is more likely to represent Mr Thompson’s clinical status as at May 2015.

51. In my view, the contemporaneous medical evidence before the Tribunal does not allow for any reasonable corroboration of the functional impact of Mr Thompson’s cervical spine condition on his activities involving spinal function during the claim period. At best the evidence would suggest a mild functional impact.

52. Accordingly, I am satisfied that during the claim period Mr Thompson’s rating under   Impairment Table 4 was no greater than 5 points and the composite rating under the Impairment Tables was no greater than 15 Points.

53. It follows that during the claim period Mr Thompson did not satisfy section 94(1)(b) of the Act and did not qualify for DSP. It is therefore unnecessary to consider whether Mr Thompson had a continuing inability to work under s 94(1)(c).

    DECISION

54. The decision under review is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

........................[sgd]................................

Associate

Dated  23 June 2015

Date of hearing	29 May 2015
Applicant	In person
Solicitor for the Respondent	Department of Human Services