DORIS SULLIVAN and SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 494

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 494

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3507

GENERAL ADMINISTRATIVE DIVISION		)
Re		DORIS SULLIVAN

Applicant

And SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date2 July 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Dr J D Campbell

Member

CATCHWORDS

Social Security – disability support pension – multiple health complaints – assessment – continuing inability to work- impairment rating.

LEGISLATION

Social Security Act 1991, section 94, Schedule 1B Impairment Tables

Social Security (Administration) Act 1999, Schedule 2 subclause 4(1)

REASONS FOR DECISION

Dr J D Campbell, Member

1.Ms Sullivan lodged a claim for Disability Support Pension (DSP) on 7 August 2007.  At the date of lodgement, Ms Sullivan was 44 years of age, receiving a sole parent pension, and had not worked for 20 or more years. 

2.In her claim form, Ms Sullivan listed her disabilities, illnesses or injuries. These included the following:

·broken leg,, broken foot on left

·deep vein thrombosis

·accident to right foot

·carpal tunnel to both hands

·hands numbness, swelling

·osteoarthritis back and neck problems

·ununited fractures to second and third lumbar spine

·female problems

·chronic bronchitis

·kidney stones

·problem with eyes

3.In a treating doctor’s report (undated) lodged with her claim form on 7 August 2007, Dr Nguyen detailed Ms Sullivan’s conditions as:

Low back pain	History of pain and stiffness continuing.  Past investigation with CT scan and MRI scan and referral to back specialist.  Current treatment included physiotherapy and consideration of back operation.  Condition was said to restrict heavy lifting and labouring duties.
Left ankle pain	History of fractures, with current symptoms of occasional pain and stiffness.  Treated with anti-inflammatory tablets, and is prevented from undertaking heavy labouring work.

4.In another document lodged with her DSP application, Ms Sullivan noted that she:

·had difficulty walking further than around the house because of previous injuries to her legs, shortness of breath, swollen legs and pains in the back;

·suffers from hypertension when pregnant or in pain;

·suffers from a stone in the right kidney;

·suffered a deep vein thrombosis after hysterectomy operation in 2004;

·suffers from migraine.

5.A job capacity assessment was undertaken on 10 August 2007.  In this report Ms Sullivan’s conditions were listed as:

·Musculo-skeletal disorder (low back pain)

oType: permanent

oDetails: diagnosed as disc herniation.  Awaiting surgery.  Permanent, but not fully diagnosed, treated and stabilised.

oSource: discussion with treating doctor (Dr Nguyen) 

·Fractures and crush injuries (left ankle pain). 

oType: permanent

oDetails: fully diagnosed, treated and stabilised.  Treatment with anti-inflammatory medication.

·Carpel Tunnel Syndrome:

oType: temporary

oDetails: It was treated surgically in 2000 (right hand) and in 2003 (left hand), but symptoms of pain, numbness and swelling remain.  To see specialist. 

oSource: discussion with the treating doctor (Dr Nguyen).

·Neck disorder.

oType: permanent

oDetails: fully diagnosed, treated and stabilised. Degenerative changes in cervical spine.  Optimally treated.  Has had physiotherapy. 

·Osteoarthritis:

oType: permanent

oDetails: fully diagnosed, treated and stabilised. Diagnosed and under treatment by specialist rheumatologist. 

6.In undertaking the assessment under Schedule 1B of the Social Security Act 1991 (the Act), the assessor made the following findings:

·Musculo skeletal disorder: no rating under Table 5.2 as condition not fully treated.

·Fractures and crush injuries: zero rating under Table 4 as evidence only of minimal functional impact.

·Neck disorder: zero rating under Table 5.1 as evidence of nearly normal range of movement.

·Osteoarthritis: 10 point rating under Table 20 as evidence of moderate symptoms causing a loss of efficiency with daily activities.

·A total impairment rating of 10 points.

7.On 20 August 2007, Ms Sullivan’s claim for DSP was rejected as her impairment was less than 20 points.

8.The following information was considered as part of the review process:

·An X-ray of the cervical spine dated 15 November 2007 revealed joint degenerative changes.

·A CT scan of the cervical spine confirmed degenerative changes at C5/C6 and C6/C7 level.

·A bone mineral density study conducted on 4 December 2007, which revealed that Ms Sullivan had mild osteopenia with a mildly increased risk of minimal trauma fracture.

·An X-ray of the cervical spine dated 24 June 1999, which demonstrated chronic disc pathology and mild spondylosis at C4/C5 and C5/C6 level.

·A bone scan dated 25 October 2007 demonstrated mild synovitis, arthritic changes in the distal interphalangeal joints, periarticular uptake in the proximal interphalangeal joints and metacarpo-phalangeal joints of the hands, and arthritic reaction in the wrist joints.  This is more pronounced than in 2004.  There is arthritic reaction in the first metatarsal phalangeal joints of the feet and in the sternoclavicular joints.

9.In a report dated 16 January 2008, Dr Fernandes, a consultant hand and reconstructive surgeon, reported that Ms Sullivan’s investigations revealed that she had diffuse arthritis and continuing ongoing symptoms in both upper limbs.

10.On 18 February 2008, a Centrelink Authorised Review Officer confirmed the original decision, having considered the material referred to above.

11.A CT scan of the lumbar spine was undertaken on 1 March 2008.  This is reported as demonstrating minimal mild degenerative disc and facet join disease.

12.Professor van Gelder, a consultant neurosurgeon, provided a report following consultation on 4 March 2008.  In his report the doctor considered that Ms Sullivan has non-specific low back pain associated with age related degenerative changes in her lumbar spine.  The doctor noted that functional testing was not interpretable. He also noted that her symptoms were hard to interpret and disproportionate to the changes on her CT scan.

13.A MRI scan of the lumbar spine was reported on 28 May 2008 as demonstrating a very mild disc protrusion at the L4/L5 level and a mild to moderate disc protrusion at L5/S1 level, with degenerative changes at the right facet join at the L5/S1 level.

14.A report dated 21 November 2007 from Dr Rail, a consultant neurologist, confirms that symptoms in both upper limbs are of both a sensory and motor type.  He also confirmed that Ms Sullivan suffers recurring headaches of a migraine type.

15.On 2 June 2008 the Centrelink decision was considered and affirmed by the Social Security Appeals Tribunal (SSAT). 

Consideration and Findings

16.I am reminded that the claim was lodged on 7 August 2007. I acknowledge that the claim period operates from the date of lodgement for a period of 13 weeks pursuant to subclause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999.

17.The hearing was held on 28 May 2010, almost 33 months after lodgement.  It is not surprising that Ms Sullivan found it challenging to clearly differentiate between her difficulties in 2010 with those existing during the claim period.  It is for this reason that I have been particular in outlining the material considered during the earlier decision making process and, where nominated, are relevant to this decision making process.

18.There was much material outlined during the hearing that pointed to Ms Sullivan’s circumstances, both physical and psychological, to have deteriorated over the 33 months since her lodgement.  While I acknowledge that this decision is concerned with the claim lodged on 7 August 2007, it would be proper for me to note that, if a further claim for DSP were to be lodged, a careful assessment of Ms Sullivan’s physical and apparent psychological impairments would need to be undertaken.

19.I am mindful that in her evidence during the hearing, Ms Sullivan provided the following information:

·limited education followed by employment as a cook for limited periods, with the last occasion of paid work being in 1987.

·a difficult domestic environment, as evidenced by a violent husband, divorce and a violent son. 

·a daily routine which involves increasing support from her school attending daughter to assist with such things as taking care of herself, domestic activities and shopping, with the help of a neighbour every two weeks.

·a day to day existence of doing little (some cooking, some vacuuming, switching on the washing machine, some cleaning, minimal walking and minimal social interaction).  This is a progressive decline and associated with feeling depressed and gaining weight, despite not eating much.

·confirmed that the conditions which troubled her were:

Neck pain

Continuing post car accident in 1991.

Upper limbs

Carpal tunnel symptoms commenced 1998.  Right wrist surgery in 2000.  Left wrist in 2004.  Still has continuing pain symptoms both hands together with swelling, also has osteoarthritis both shoulders.

Lower back

Herniated disc since car accident in 1991, with bending over causing back spasm from time to time.

Also has arthritis in both hips.

Lower limbs

Suffers from tendonitis both lower limbs.  Left foot fractures from time to time.  Fractured in 2002 and again in 2009.  Slow to heal.

20.Further, Ms Sullivan detailed in cross-examination that:

·she did not understand Dr Nguyen’s reports;

·treatment for her arthritis with anti-inflammatory medication did not help;

·in 2007 she received no medication for her carpal tunnel symptoms;

·the arthritis in her shoulders was indeed arthritis in her sternoclavicular joints;

·at the time of the claim lodgement she was not receiving any medication for her arthritis and that attendance at the Liverpool Rheumatological Clinic was in 2008;

·physiotherapy made her lumbar pain worse in 2008.  Takes no medication.  Was encouraged to do straight leg raising exercises.

21.I am mindful that a review of all the relevant material before me reveals that Ms Sullivan has endured a series of accidents, injuries and various illnesses over time.  Based on the evidence before me, I so find that the relevant impairments that she suffered, and for which adequate documentation exists during the claim period commencing on 7 August 2007 are:

Cervical spondylosis	Degenerative disease of cervical spine (C5/C6, C6/C7)
Lumbar spondylosis	Degenerative disease of lumbar spine (L4/L5, L5/S1)
Carpal tunnel syndrome both wrists	Some continuing symptoms of pain and swelling
Osteoarthritis	Evidence of arthritic changes in hands and feet joints, sternoclavicular joints, both hip joints
Left lower limb pain	Associated with repeated fractures in left food

22.While there is some evidence of other conditions eg renal stones, repeated bladder infections, depressive condition, post-hysterectomy adhesions and migraine, there is not much evidence before me in relation to the relevant symptomatologies at the time of lodgement of the claim, nor is there sufficient material before me to assist in an appraisal of their relevance and assessment of any impairment that may exist as a consequence.

23.In addressing the assessment of each impairment, I detail the following findings together with the reasons for such findings:

Cervical spondylosis

Impairment rating pursuant to Table 5.1 is nil points, as evidence by X-ray and CT scan findings, and job capacity assessment report of 10 August 2007, which indicated normal or near normal range of movement of cervical spine.

Lumbar spondylosis

Impairment rating pursuant to Table 5.2 is nil, as evidenced by X-ray, CT scan and MRI scan findings, and job capacity assessment report, together with the report of Dr van Gelder.

Left lower limb pain

Impairment rating pursuant to Table 4 is nil points, as evidenced by Dr Nguyen’s report that indicated the condition has minimal functional impact and the assessment undertaken by the job capacity assessor in August 2007.

Carpal tunnel syndrome

Assessment of the hand and wrist symptomatology is complex, because of the presence of phalangeal, metacarpal-phalangeal and wrist joint arthritis.  Material before me indicates the diagnostic difficulties were being explored by:

Dr V Fernandes – 25 October 2007
Dr Rail – 25 January 2008

Liverpool Rheumatology Clinic – 2008

Further, I note an absence of any relevant material in the treating doctor’s report of Dr Nguyen, and that the job capacity assessor’s report of 10 August 2007 suggests that the symptoms are to be the subject of specialist investigation.  I further note that the symptoms of pain and swelling are also integral to the arthritic complaints.

24.In summary, I observe that the specialist investigations were ongoing after the end of the claim period, and even in the event that the reports were to be considered in the light that they could assist an understanding of what was giving rise to the hand and wrist symptoms in the claim period, I consider that the material does not assist in determining whether such symptoms and resulting impairments arose from the carpal tunnel syndrome or from the arthritic condition.  Considering the symptoms complained of, and the continuing specialist investigation which at best details a possibility and an absence of any treatment for such symptomatology at the time, I am not satisfied that the pain and swelling experienced by Ms Sullivan in her wrists and hands, and to which she ascribes to the post-operative carpal tunnel conditions as the cause, can be so ascribed during the claim period.  In such circumstances I feel it appropriate not to make an assessment under Table 3, as at the relevant time the condition was not fully diagnosed, investigated and treated.

Osteoarthritis Present in multiple joints (fingers, hands, wrists, hips, sternoclavicular joints, toes and feet).  Symptoms of pain and swelling.  Investigated and diagnosed.  Note report of Job Capacity Assessor on 10 August 2007.  Rating under Table 20 is 10 points, as symptoms are mild to moderate which during the claim period rarely prevented completion of an activity but did cause loss of efficiency in daily activities.

25.I find that the total impairment rating for Ms Sullivan’s various impairments relevant to the claim is 10 points.

26.While Ms Sullivan satisfies section 94(1)(a) of the Social Security Act 1991 (the Act), I find that section 94(1)(b) of the Act is not so satisfied, as the total impairment rating is 10 points.  In such circumstances, I conclude that there is no necessity to determine whether Ms Sullivan has a continuing incapacity to work.  As a consequence, I conclude that Ms Sullivan does not succeed in this application.

27.The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed: .....................................................................................
           Associate B. Dhanasar

Date/s of Hearing   28 April 2010
Date of Decision   2 July 2010
Representative for the Applicant                Ms D Sullivan (Self)
Representative for the Applicant                 Mr G Lozynsky