Dornjak and Secretary to the Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 478

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/1452
GENERAL ADMINISTRATIVE DIVISION
  Re:         Kata Dornjak
  Applicant

And: Secretary to the Department of Family and Community Services
Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member
Date:             19 June 2002
Place:            Sydney

Decision:The Tribunal affirms the decision under review.

[SGD]Senior Member
CATCHWORDS
Social security – disability support pension – eligibility -- impairment rating - whether impairment of 20 points or more – decision affirmed
Social Security Act 1991 s.94, Schedule 1B.
Social Security (Administration) Act 1999 Schedule 2.

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

The Applicant, Ms Kata Dornjak, has applied for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 20 August 2001 that rejected her claim for the disability support pension. The SSAT affirmed a decision made by a Centrelink delegate of the Secretary to the Department of Family and Community Services (the Respondent).
At the hearing, the Applicant, who was not represented, gave evidence with the assistance of an interpreter in the Croatian language. The Respondent was represented by its advocate Ms.H.Schuster. The Tribunal had before it the documents (T documents) lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
issue
The Respondent does not dispute that the Applicant has sustained permanent physical disabilities, namely, pain in the neck, back, shoulders and knees, as well as hypertension. The issue is whether the Applicant satisfies the remaining conditions for entitlement to a disability support pension that are found in ss.94(1) and (2) of the Social Security Act 1991 (the Act).
background
The Applicant made a claim for disability support pension on 15 March 2001 (T3). Centrelink notified her on 4 April 2001 that the claim had been rejected (T11). At the Applicant's request, Centrelink looked again at her claim after she had been assessed by a second doctor, but rejected it on 14 May 2001 (T15). Subsequently, an authorised review officer from Centrelink met with the Applicant, accompanied by a Croatian interpreter, and reviewed the Applicant's claim. On 25 May 2001 the authorised review officer rejected the claim because the Applicant's level of impairment was less than the necessary minimum level (T19). The authorised review officer also agreed with the opinion of Dr Ryerson for Health Services Australia that the Applicant was fit for light, full time work.
An appeal to the SSAT was unsuccessful (T2). Pursuant to s.179 of the Social Security (Administration) Act 1999 (the Administration Act), the Applicant seeks the Tribunal's review of the SSAT's decision.
evidence
The Applicant, who is 53 years old, was born in Croatia and immigrated in April 1976.
In 1985 she was injured in a motor vehicle accident and later received compensation for injuries to her neck, back, shoulders and knees (T3). The accident happened while she was on her way home from work. At the time, she was employed as a shop assistant in a butchery. The Applicant has not worked since the accident. After the accident, the Applicant suffered pain and restriction in movement of her neck. The pain has continued. The Applicant is right handed. Her evidence before the Tribunal was that, due to this pain and restriction in movement, she finds driving a car very difficult, especially when turning the car. She drives very little, mainly for shopping but it is easier than walking to the shops. She cannot brush her hair.
Her general practitioner Dr Natale referred her to Dr Giblin, an orthopaedic surgeon, in 1998. The Applicant said that she followed an exercise program for her neck that Dr Giblin suggested but she has not found any real improvement. On some days the Applicant said she will perform her neck exercises for five minutes or so while showering.
The Applicant also suffers pain in her shoulders which she believes is related to her neck pain. The pain travels down her arms and at times her hands become numb. In addition to anti-inflammatories, the Applicant takes Panadol for the shoulder pain. As she is developing stomach problems, the Applicant does not take anti-inflammatories or Panadol unless absolutely necessary.
The Applicant said that she has a constant pain in her back that is very strong. It is with her all the time. Bending can cause strong shooting pains in the back. Although the pain is always with her, on some days it is better and then she can do a little more around the house.
Her knees are painful and in the last few years have become prone to swelling due to fluid retention. At times she gets the swelling in the lower parts of her legs. The Applicant said that she finds the pain in her knees and problems from fluid build- up make walking very difficult. While seated, the Applicant must not let her knees drop lest they swell up. The prescribed medication causes unwelcome side effects. Her medical advice is to walk very slowly but now she even finds that difficult because of the pain, not only in her knees but also her legs and back. The SSAT referred to the Applicant's evidence that she could walk for half an hour or about 800 metres, before having to stop and rest. She told this Tribunal that "I used to walk but now I can't". Walking makes her feel worse overall.
The pain she suffers restricts her daily activities. The Applicant's evidence was that she gets up from bed and then spends much of her time thereafter either sitting or lying down. The Applicant's capacity to perform domestic tasks is very limited. The Applicant and her husband live in a single storey, four bedroom house and rely on their daughter-in-law to keep it clean save for the light jobs such as dusting. The Applicant folds most items rather than irons them. Any ironing is done by her daughter-in-law. The Applicant is able to do the laundry work and she makes much use of the drier. She seldom cooks but can make sandwiches. Reading can cause headaches and looking down at books hurts her neck. The Applicant occasionally watches television to pass the time. Prior to her motor vehicle accident, she had started a piece of embroidery but although she has tried, her injuries have prevented her from finishing it.
The Applicant has not attended any vocational training programs since her accident. She did commence an English language course but it ceased not long after she started. The Applicant cannot read or write English and gave all her evidence at the hearing through an interpreter. The Applicant said that she cannot perform the tasks that she used to do at the butchery, such as slicing the meat and displaying it on trays, because of the lifting involved. She also said that, if she were to work every day, she would not be able to stand for more than 15 to 20 minutes at a time. She might have to lie down if her condition became worse.
A number of medical reports have discussed the Applicant's injuries and they are summarised below.
Dr Natale
On 15 March 2001, Dr Natale completed a Centrelink "Treating doctor's report" in relation to the Applicant's claim (T7). He diagnosed two conditions: degenerative disease of the cervical and lumbar-sacral spine and of the knees, and bilateral shoulder pain. In Dr Natale's opinion, the Applicant's overall condition was deteriorating and long term in nature, that is it would be likely to persist for at least two years.
Dr Giblin
Dr Giblin reported to Dr Natale on 29 October 1998 (T6) that all of the Applicant's symptoms relating to her neck and right trapezius muscle were due to age related cervical spondylosis. In his opinion her arms were quite neurologically intact, the rotator cuff was not sore to provocation tests, and her shoulder movements were full.
Dr Ho
In January 1987 Dr Ho (T4) summarised findings of a CT scan that examined the C3 to T1 levels. In his opinion, there was no posterior disc protrusion and at the C4-5 and C5-6 levels, there was cortical thickening and minimal osteophytosis along the posterior margins of the end plates.
Dr Rusli
In October 1998 Dr Rusli reported (T5) that axial CT scans were performed from C3 to C7 level. He found no definite abnormality, apart from minimal degenerative change.
Dr Sacks
Dr Sacks provided Dr Natale with an X-ray report dated 14 October 1998 in relation to the right shoulder. It stated "The gleno-humeral and AC joints appear within normal limits. There is no significant bony or joint space abnormality is [sic] identified. No rotator cuff calcification."
Dr Dreverman
Radiological examination of the knees was performed by Dr Dreverman in September 1999 who found minimal degenerative changes with no evidence of a fracture (T7).
Following a lumbar CT scan from L3 to S1 on 12 April 2001, Dr Dreverman reported minor annular disc bulging without a focal disc protrusion at L3-4. There was no abnormal thecal or nerve root deformity. At L4-5 there was minor disc bulging without a focal disc protrusion or thecal deformity. There was annular disc bulging and marginal osteophyte development at L5-S1, without significant thecal or nerve root deformity. Joint space narrowing at the facet joints at the lumbosacral junction was noted in the report.

Dr Hoang

Dr Hoang examined the Applicant for Health Services Australia and completed a Centrelink Medical Assessment Report on 2 April 2001 (T10).
In respect of her cervical spine condition, he assessed all movements including flexion, extension and rotation, as being within normal limits. He noted that, on examination, the Applicant was able to turn her head from side to side during conversation. At the hearing, however, the Applicant denied that she moved her head in this manner. Dr Hoang considered her impairment was permanent but as her range of movement was normal, assessed nil points as her impairment rating under Table 5.1 of the Impairment Tables contained in Schedule 1B of the Act.
In relation to her thoraco-lumbar spine condition, Dr Hoang assessed all flexion, rotation and extension movements as being within normal limits. He observed that the Applicant was able to flex forward at ninety degrees without any pain whilst taking off her shoes, something which the Applicant has denied. He found the impairment to be permanent, but as the range of movement was normal, assessed an impairment rating of nil points under Table 5.2 of the Impairment Tables.
Dr Hoang assessed the Applicant's third condition of osteoarthritis in the shoulders and knees. His assessment noted that Dr Giblin reported a full range of movements in her shoulders. Dr Hoang observed that the Applicant could carry her handbag and bag of films in her right hand without discomfort. His examination of her knees was "unremarkable" and he commented that X-rays had shown only minimal degenerative changes. Dr Hoang assessed the Applicant as having a permanent impairment in respect of the condition of osteoarthritis in the shoulders and knees. He found an impairment rating, under Impairment Tables 3 and 4, of nil points. Dr Hoang gave two reasons. In his opinion, the Applicant was able to use her dominant limb normally. The Applicant suffered only a mild interference with her walking.
Lastly, Dr Hoang found that the Applicant's hypertension was being well controlled by medication. He considered the condition to be permanent but assessed the impairment rating at nil points under Table 20 of the Impairment Tables. In his opinion the condition should not affect the Applicant's ability to work.
Dr Hoang assessed a total impairment rating of nil points. He found mild arthritis and normal range of movements and functions. In summing up, Dr Hoang said that the Applicant was fit for full time work with limited lifting. Employment as a shop assistant or performing light factory work would be suitable.
Dr Ryerson
There was a review of the Applicant's claim undertaken by Health Services Australia subsequent to Dr Hoang's assessment report. That review by Dr Law (T13) recommended a further medical examination. Dr Ryerson carried out the examination on 7 May 2001 and the Applicant was accompanied by an interpreter.
Dr Ryerson differentiated the Applicant's formal movement of the cervical spine from her informal movements, and commented that the Applicant's formal movements were slow, while her informal movements were done at normal speed (T14). The assessment of the Applicant's formal range of movement was between one half and three-quarters of the normal range. However, Dr Ryerson found that, informally, her range of movement was between normal and three-quarters of the normal range. The impairment rating was five points under Table 5.1, for the following reasons "Again gross discrepancy between today & 1/12 ago. Also difference formal / informal. Much facial grimacing and noises formally none informally."
In relation to the Applicant's thoraco-lumbar spine condition, Dr Ryerson noticed a formal range of movement that was half of normal range, apart from extension which was one-quarter of normal range. However, Dr Ryerson found that the Applicant's informal range of movement was about three-quarters of normal range, except for flexion which was within normal limits. The assessment of impairment rating was five points under Table 5.2. Dr Ryerson's reasons for her rating stated "Gross discrepancy in movement today compared with a month ago".
Dr Ryerson described the next condition assessed as "Osteoarthritis of shoulders, knees. Pain in both ankles". Her notes of the examination were as follows: "No muscle wasting noted. Full movement of knees & shoulders & ankles. Normal tone & power. No swelling of joints. No crepitus in knees & shoulders. Able to kneel. Refused to walk on heels & toes c/o pain in legs & back, said she could not do it. Did not even take one step on heels & toes". Dr Ryerson found the impairment to be permanent and assessed it at nil points under Tables 3 and 4. Her reasons were "Full range of movements & no clinical signs of osteoarthritis".
As to the Applicant's hypertension, Dr Ryerson took a history that included headaches every one or two weeks which Dr Ryerson noted had not been mentioned by her treating doctor or in the medical assessment performed a month previously. The impairment rating under Table 20 was assessed at nil points, as Dr Ryerson commented the condition was usually controlled and there were no complications.
Dr Ryerson assessed a total impairment rating of ten points and annotated the rating as follows: "at most – probably an overestimate". In her opinion regarding the Applicant's condition generally and her ability to work, Dr Ryerson wrote (T14):
From her history of medication, treatment and activities, as well as watching her informal movements, her pain is not causing her any significant disability especially as there was no clinical confirmatory signs of her being in pain today.
Impairment at the very most was 10 points today. She is fit for light work, full time, needing to avoid heavy lifting and carrying, prolonged standing and walking, needing a change of position every hour and needing to avoid sudden changes in posture, especially bending and squatting.
I believe her treating doctor took into account non-medical factors such as language and reading skills.

consideration and findings

The Applicant told the Tribunal that she cannot work. Her pain is such that she must lie down for most of the day. She said Dr Natale, her treating doctor, agrees with her. She submitted that any consideration of Dr Hoang's report must take into account the facts that he did not examine her or appear to have reports available from other doctors. Her meeting with Dr Hoang did not last more than ten minutes.
Ms Schuster submitted that the medical evidence in X-rays and CT scans demonstrated that there had been very little change to the Applicant's neck and back. The evidence was not consonant with a significant loss of movement. Ms Schuster did not submit that the Applicant was lying, rather that the medical assessments of Dr Hoang and Dr Ryerson suggest that she was guarded in her movements, perhaps to prevent aggravation of her condition. In Ms Schuster's submission, there was no evidence of the Applicant having difficulty in walking and thus any impairment of her knees must be minimal. Finally, Ms Schuster noted that Dr Natale had recently diagnosed mild to moderately severe obstructive sleep apnoea (Dr Natale's letter to the Tribunal dated 26 February 2002). In the respondent's submission, a claimant's eligibility for the disability support pension is to be determined at the time of making the claim and within the thirteen weeks immediately thereafter. In this case, the period ended on 14 June 2001. Paragraph 4 of the introduction to the Impairment Tables states that:
A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

Paragraph 6 provides:

In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;
whether any 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. …

On the medical evidence available, the Applicant's sleep apnoea condition had not been investigated, treated and stabilised by 14 June 2001. In fact, Dr Natale's letter referred to the Applicant's condition still being under investigation by her treating specialist Dr Shu Chan. It therefore could not be the subject of an impairment rating and the Tribunal so finds.

The relevant legislation from the Act is as follows:
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;
(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
…
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.
Note: For work see subsection (5).
…

The Administration Act relevantly provides:

Schedule 2—Rules for working out start day
…
Part 2—General rules
3 Start day—general rule
(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
…
4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
…

The Tribunal accepts that the Applicant has various physical disabilities. She suffers from pain in the cervical spine, the thoraco-lumbar spine, the shoulders and the knees. She also suffers from hypertension. The Respondent did not dispute that these disabilities are permanent. The Respondent conceded and the Tribunal finds that the Applicant satisfies s.94(1)(a) of the Act.
Although Dr Giblin found the Applicant's neck to be very stiff on examination in October 1998, he did not assess an impairment rating. The Tribunal prefers to base its finding on the assessments of Dr Hoang and Dr Ryerson, which were undertaken more recently. Although their examinations of the Applicant were carried out only a month apart, there was a large difference between their impairment ratings. Dr Ryerson detected a " vast discrepancy between formal & informal movements today and compared with a month ago." In addition, Dr Ryerson stated that her assessment of the Applicant's total impairment rating of ten points, at most, was "probably an overestimate". The Tribunal prefers Dr Hoang's assessment in relation to this condition and the others that were assessed, as Dr Ryerson was ambivalent in her assessments.
The Tribunal notes the Applicant's evidence that, despite exercising in the manner suggested by Dr Giblin, her neck had not improved. It still causes her pain and there is no free movement. Dr Hoang assessed the cervical spine condition by reference to Table 5.1, which requires the determination of spinal impairment to be based on a demonstrable loss of spinal function. He noted that Dr Giblin's neck exercises were merely passive. In Dr Hoang's opinion, the Applicant had a normal range of movement.
RATING                   CRITERIA
NIL  Normal or nearly normal range of movement.
FIVE  Loss of quarter of normal range of movement.

There is no evidence, however, of a different impairment rating and accordingly, the Tribunal finds that the Applicant's level of impairment should be assessed at nil points.

The Applicant's thoraco-lumbar spinal condition was assessed by Dr Hoang under Table 5.2, which measures overall mobility of the trunk including hip movement.
RATING  CRITERIA
NIL  Normal or nearly normal range of movement.
FIVE  Loss of one-quarter of normal range of movement.

The Applicant gave evidence that her main problem was the pain she suffered in her back. She said she could not bend her back. The Tribunal does not accept her evidence on this point, and prefers that of Dr Hoang who observed her bending down without any pain during his examination (T10). He found the Applicant to have a normal range of movement, which led him to a rating of nil points. There being no medical evidence of an alternative impairment rating, the Tribunal finds that the Applicant's level of impairment from the condition should be assessed at nil points.

Dr Hoang provided a joint assessment of the Applicant's osteoarthritis in the shoulders and the knees. Table 3 "Upper Limb Function" was applied in relation to the shoulders. It states:
RATING CRITERIA
NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVEDemonstrable 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 acknowledges the Applicant's evidence of constant pain in the shoulders and pain radiating down her arms and occasional numbness in the hands. Dr Sacks' radiological report of 14 October 1998 described the Applicant's right shoulder, gleno-humeral and acromio-clavicular joints as normal. He found no calcification of the rotator cuff. The Tribunal notes, as did Dr Hoang, that the specialist, Dr Giblin, reported the Applicant's shoulder movements to be full. In Dr Hoang's opinion, the Applicant can use her dominant limb normally and, therefore, he assessed a nil rating. The Tribunal is satisfied that the weight of the medical evidence is such that there is no demonstrable loss of function of the shoulders. Accordingly, the Tribunal finds that the impairment rating is nil.

Under Table 4, which deals with the function of lower limbs, an impairment must also be based on demonstrable loss of function. Table 4 "Function of the Lower Limbs" reads as follows:
RATING  CRITERIA
NILWalks without difficulty on a variety of different terrains and at      varying speeds for distances of more than 500m.
TEN  Demonstrable loss of strength, mobility, stability, balance,
  coordination and/or sensation such as to cause moderate
  interference with walking and one or more of the following:
  climbing, squatting, sitting or kneeling or
  pain or claudication restricts walking to 250-500m or less, at a
  slow to moderate pace (4 km/h). Can walk after resting.

The Applicant's evidence was that she finds walking very difficult and it has become more so of late. It may be the case that her knees have deteriorated since her examination by Dr Hoang and her appearance before the SSAT on 20 August 2001 at which her evidence was that she could walk up to 800 metres before resting (T2 fol.5). However, the Tribunal accepts the Respondent's submission that in determining eligibility for the disability support pension, the Tribunal can consider the Applicant's medical condition at the time the claim is made and within the thirteen week period thereafter (clause 4, Part 2, Schedule 2 of the Administration Act). Further, without evidence of a medical assessment of the current condition of the Applicant's knees, the Tribunal could not be satisfied that its own assessment of impairment would be correct or appropriate. As Dr Hoang found only mild interference with walking, he concluded that the Applicant's level of impairment of the knees resulting from osteoarthritis should be assessed as nil. Dr Hoang noted that the radiological report of Dr Dreverman found minimal degenerative changes. The Tribunal is satisfied on the evidence, overall, that the rating under Table 4 should be nil.

Dr Natale did not refer to hypertension in his "Treating doctor's report" furnished to Centrelink. Table 20 refers among other things to hypertension and provides:
RATING  CRITERIA
NIL  Controlled hypertension. …
TEN  …
Hypertension that is difficult to control despite intensive
therapy but without end - organ damage. …

On the basis of Dr Hoang's assessment that the Applicant's hypertension is being effectively controlled by medication, the Tribunal finds that her impairment should be assessed at nil. There is no evidence and no medical assessment that supports a greater rating.

The Tribunal finds that the Applicant's impairment overall is not at least 20 points as required by s.94(1)(b) of the Act and therefore she is not eligible for the disability support pension. It is unnecessary to consider whether the Applicant has a continuing inability to work as required by s.94(1)(c).
It follows that the decision under review should be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr P.J. Lindsay, Senior Member
Signed: L Houston   .....................................................................................
  Associate
Date/s of Hearing  8 May 2002
Date of Decision  19 June 2002
Solicitor for the Respondent    Ms H Schuster

[2002] AATA 478

19 June 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Disability Support Pension

Impairment Rating

Breach of Contract

Unjust Enrichment