Ebejer and Secretary to the Department of Family and Community Se Rvices

[2003] AATA 763

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/369

GENERAL ADMINISTRATIVE DIVISION

Re:         MARIO EBEJER

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             7 August 2003

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more.

Social Security Act 1991 s94 Schedule 1B

REASONS FOR DECISION

7 August 2003  M.J. Carstairs, Member

1.      This is an application by Mario Ebejer (the applicant) for review of a decision of the Social Security Appeals Tribunal (the SSAT) made on 11 March 2003.  The SSAT affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent), that the applicant was not qualified for disability support pension.

2.      At the hearing, the applicant represented himself.  Mr S. Meehan, a Centrelink advocate, represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act1975 (T1-T28) as well as exhibits marked A1 for the applicant and R1-R2 for the respondent.

BACKGROUND

4.      The applicant was born on 14 August 1962 and is now forty years old.  He worked for a number of years for the Melbourne City Council, prior to ceasing work in 1992 as a result of back injury.  He received WorkCover payments until 2000.

5.      The applicant lodged a claim for disability support pension on 12 August 2002.  On 16 November 2002 Centrelink rejected his claim.   The applicant sought review of the decision.  On 2 December 2002 an authorised review officer affirmed the original decision to reject the claim.  The authorised review officer decided the applicant did not meet the necessary level of impairment prescribed under the Social Security Act 1991 (the Act) to qualify for disability support pension.  Additionally, the authorised review officer considered that the applicant was not prevented from returning to light, full‑time work within two years of the claim.

6.      The applicant sought review by the SSAT on 10 December 2002.  The SSAT agreed with the original decision that the required level of impairment was not met and so affirmed the decision to reject the claim.  The applicant sought review  by the Tribunal on 9 April 2003.

EVIDENCE

7.      The applicant told the Tribunal that he suffered from a number of medical conditions.  He said that he continues to have problems with his wrists as a result of carpal tunnel syndrome, even though he had surgery to his left wrist some years ago.  He said that the surgery was unsuccessful and his hand is no better than it was before the surgery.  He said that he suffers from tingling in his wrists, which keeps him awake.  He finds also that his hands will go to sleep and he drops things.  He experiences this on a daily basis.  He denied telling  the SSAT that he has normal use of his hands after the carpal tunnel release.

8.      In regard to his elbows, the applicant said that he is due to have surgery on 25 August 2003 for tendonitis.  He said that he suffers from sharp pain in the elbow joints, though he is less troubled by that condition at night than by the carpal tunnel syndrome.  He said that he is unable to lift any weight with his arm flexed.  The applicant said that his worst condition is  his back, which troubles him at night (he takes Tryptanol in order to sleep) and limits what he can do during the day.  He said that he is limited in the time he can spend sitting and driving.  He can drive for one hour to one and a half hours without a break.  He said that the condition of his back is variable – on some days he can walk for only half an hour, on other days he can walk for one to two hours.  He undertakes household tasks while his wife works, but is unable to vacuum or hang out the washing.  He said that everything takes him longer than it did prior to his injury.  He takes Panadeine Forte daily for back pain.

9.      Mr Ebejer said he injured his right shoulder at work though he did not claim compensation, and as a youth he had dislocated his left shoulder.  He said he is now unable to raise his arms above shoulder height.   He said that he  gets some aching pain with the shoulder condition.  The applicant said that he has problems with both ulnar nerves, but he did not regard these as significant and confirmed his evidence to the SSAT that the condition affects his little and adjacent fingers but he does not notice it when he is occupied.

10.     An MRI of the lumbar spine dated 17 April 2000 (T13) found the alignment of the lumbar spine to be normal, and that disc heights at L1/L2 and L3/L4 were normal but that there was a moderate loss of intervertebral disc space at L4 and a disc bulge and extrusion posterior to the L5 vertebral body.  A further MRI of the lumbar spine dated 17 June 2002 (T15) found that the appearances were unchanged from the previous study and that there was no neural compression at any level. 

11.     In a written report dated 5 August 2002(T16) Dr D Bolzonello stated that the applicant had the conditions of medial and lateral epicondylitis, ulnar nerve neuropathy, chronic lower back and right leg pain, and bilateral carpal tunnel syndrome, surgically released in 1997.  He stated that the chronic back pain and the epicondylitis were long term, and that the applicant was likely to be able to return to full-time work within 12–24 months.  In a report dated 28 August 2002 (T16), Dr Bolzonello changed his view in regard to the prospects of a return to work, stating that more than two years would be required.

12.     Dr J. Acheson, general practitioner, prepared several medical reports.  In a written report dated 22 January 2003 (T20) Dr Acheson stated that the applicant had a multitude of injuries including bilateral epicondylitis, right shoulder bursitis, L4/L5 disc degeneration and bilateral carpal tunnel syndrome; and was anxious and depressed about the sudden withdrawal of his WorkCare support.  In a written report dated 7 April 2003 (T28) Dr Acheson stated that the applicant had a severe chronic dysfunctional lower back condition with proven discogenic disease indicating that the condition was permanent and was expected to deteriorate.   He said that the applicant suffered from anxiety and depression, though he said the diagnosis was presumptive rather than confirmed, and psychiatric assessment would be required.  Dr Acheson said that there were associated problems with both arms, including carpal tunnel syndrome (operated upon), extensor tenosynovitis in both elbows and ulnar neuritis in both arms.  In a further report dated 7 March 2003 (T23) Dr Acheson stated that the applicant was awaiting surgery for chronic extensor tendonitis of the elbows.  He stated that he also required left elbow ulnar nerve release and was taking Tryptanol to relieve depression.

13.     In a report dated 20 May 2003 (T27) Dr Acheson stated that the applicant had the following conditions and impairments, amounting to 40 points under the Impairment Tables:

·   Carpal tunnel (left hand)  5

·   Ulnar neuritis left medial 11/2 fingers also ulnar neuritis left elbow                5

·   Extensor tendonitis left elbow  5

·   Left shoulder weakness   5

·   Left upper limb  15

·   Right hand carpal tunnel syndrome   5

·   Right ulnar nerve neuritis   5

·   Extensor tendonitis right elbow  5

·   Frozen right shoulder  5

14.     In a further report dated 9 July 2003 (Exhibit A1), Dr Acheson changed the ratings to the following: carpal tunnel syndrome - 5 points for each arm, and extensor tendonitis - 10 points for each arm.  He assessed the overall impairment, taking into account both arms, as 30 points under the Tables.

15.     In a written report dated 26 February (T22), Mr J. Cirone, physiotherapist, stated that the applicant had right lateral epicondylitis which was consistent with his years of employment using a jackhammer.  Ms K. McGuire, in a written report dated 6 October 2002 (T18), stated that the applicant had remedial massage from 29 November 2001, particularly of the lumbar region, although he also suffered muscle soreness and restricted movement of the thoracic and cervical spine, with headache.  She stated that his progress was intermittent and she did not consider that he was fit for work until his pain was better controlled.

16.     In a written report dated 19 September 2002 (T17), Dr A. Castro, medical examiner for Health Services Australia, stated that the applicant had a condition of the cervical spine which, though permanent, left him with a normal range of movement and therefore the condition attracted NIL points under Table 5.1.  Dr Castro found that the applicant’s thoracolumbar spine condition restricted his movement by about a quarter and this attracted a rating of 5 points under Table 5.2.   Dr Castro considered that the shoulder, elbow and wrist conditions were temporary.  Dr Castro stated that the applicant was well on examination and not in pain.  His straight leg raising was normal on both sides and there was no muscle wasting.  He stated that movement of the shoulder was slightly restricted and that elbow and wrist movements were normal and not restricted.  Dr Castro stated that the applicant was unfit for his previous work as a labourer but was able to undertake light duties in the future, as in car sales or customer service. However, he said that the applicant was temporarily unfit for employment, while continuing with treatment for shoulder and elbow pain.

17.     In a written report dated 31 October 2002 (T19) Dr T. Skinner, examining medical adviser with Health Services Australia, stated that the applicant’s low back pain was a permanent condition, as was the left ulnar neuropathy.   However, he said the right shoulder restriction and epicondylitis were considered temporary as they were under treatment.  Dr Skinner confirmed the earlier impairment assessment by Dr Castro at 5 points, stating that additional information about ulnar neuropathy did not alter the assessment rating as this is a minor problem and does not prevent all work.  Dr Skinner stated that the applicant considered that the main barrier to his returning to work was medication. However, Dr Skinner considered that alternative medication could be used.

CONSIDERATION OF ISSUES

18. Section 94 of the Act relevantly provides:

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;

…

19.     The applicant submitted that he was unable to work and that this was reflected in his having been on WorkCover payments since his injury at work in 1992.  He said that there was an assumption being made by those involved in his case, that he would be better after surgery.  He said that he had done all he could to obtain the medical evidence to support his case.

20.     Mr Meehan submitted that qualification for disability support pension requires that a person’s impairment be at least 20 points under the Tables.  He said that for a rating to be assigned the person’s condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

21.     Mr Meehan submitted that the applicant's medical condition scored an impairment rating of ten points on the Impairment Tables under Table 5.2 for thoracolumbar-sacral spine.  He said that the two medical assessments from medical practitioners at Health Services Australia and the applicant's own doctors showed minimal inconsistencies.  He submitted  that on this evidence the applicant has variable lower back pain, although  both Dr Skinner and Dr Castro found that the applicant had retained three quarters of the normal range of movement.  He said this is not contradicted in the evidence provided by the applicant's treating doctors.

22.     Mr Meehan said that the applicant has several upper limb impairments, including ulnar neuropathy, shoulder impairment and carpal tunnel syndrome.  On these conditions, he said, the evidence of Dr Skinner and Dr Castro should be preferred to that of Dr Acheson.  Dr Skinner and Dr Castro assigned a rating of nil points for both arms under Table 3 of the Impairment Tables, while Dr  Acheson assigned a rating of 30 points for these conditions (15 points for each arm).  However, it is unclear how Dr Acheson arrived at this figure from the Impairment Tables.  He did not justify the assessment by referring to a demonstrable loss of function in either arm.

23. Mr Meehan also submitted that one of the criteria for disability support pension is the requirement of a continuing inability to work in accordance with s94(1)(c) of the Act. Mr Meehan submitted that the applicant fails to satisfy the Act, as he did not have a continuing inability to work for two years from the date of his claim. He submitted that the evidence of Dr Bolzonello, in his first report, that the applicant was able to work and able to return to full-time work within one to two years, was to be preferred. Dr Castro, in his report of 19 September 2002, concluded that the applicant was able to undertake light duties within six months. He submitted that the Tribunal should take into account the views of the Centrelink disability officer, M.J. Tassone, which were that the applicant, though he is temporarily unable to work until surgery takes place, could undertake several types of work once he recovered from his surgery.

24. In coming to a decision the Tribunal has taken into account the oral evidence, medical reports and submissions. Section 94(1)(a) of the Act requires that the applicant have a physical or psychiatric impairment. The Tribunal is satisfied that the applicant has the following conditions: chronic low back pain, medial and lateral epicondylitis, left ulnar nerve neuropathy, right shoulder pain, and carpal tunnel syndrome. The Tribunal was not satisfied that the condition of anxiety or depression was established, as Dr Acheson, the only doctor who mentions the condition, states that it would require a referral to a psychiatrist for diagnosis. For this reason the Tribunal is satisfied that anxiety or depression cannot attract a rating under the Act, as it is not fully diagnosed.

25.     The Tribunal is reasonably satisfied, on the evidence of Dr Skinner and Dr Acheson, that the elbow condition is ‘temporary’ under the Act, since it has not been treated and stabilised.. The elbow surgery will only take place on 25 August 2003.  The report of Dr Acheson dated 7 March 2003 also confirms  that the applicant will have surgery for ulnar nerve release in the left elbow.

26.     The Introduction to the Impairment Tables provides, in part:

…

4.        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 …

5.        The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

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

·     what treatment or rehabilitation has occurred;

·     whether 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.

27.     The evidence in this case is that the medial and lateral epicondylitis, and ulnar nerve neuropathy are not conditions that have been fully treated and stabilised..  The Tribunal is therefore reasonably satisfied that the conditions of epicondylitis, right ulnar nerve neuropathy, and anxiety state/depression are not conditions that can be given an impairment rating  under the Tables at the time of the claim.

28.     The reports of all the medical practitioners confirm that the remaining conditions  are permanent.  Therefore, they can be rated under the Act, if they impact on normal functioning in relation to work.  Dr Acheson gave no rating under the Tables for the back condition, though he stated that he considered it severe.  While the reports of Dr Castro and Dr Skinner rated the applicant’s lumbar condition at 5 points, the SSAT found that it should be rated at 10 points, as that level recognises the component of pain suffered by the applicant.  The Tribunal accepts the applicant’s evidence that his back is the most troubling of his conditions and that he takes pain medication on a daily basis for it.  However, the Tribunal also accepts the reports of Dr Skinner and Dr Castro and takes into account the results of the two MRIs.  The 25% loss of range of movement found by Dr Skinner and Dr Castro is consistent with the recorded findings of the MRIs that disc changes are minor and overall degenerative changes in the back are mild. The Tribunal is reasonably satisfied that the back condition was correctly rated by the SSAT at 10 points under Table 5.2.

29.     In regard to upper limb function, the Tribunal took into account the evidence of the applicant that he has difficulty with grasping and lifting and that his shoulder is limited in movement.  In his final report, however, Dr Acheson gives no rating for the left shoulder weakness or the frozen right shoulder.  From his report the Tribunal infers that he considers that the carpal tunnel syndrome and extensor tendonitis are the main impediments suffered in the arms.  For the reason given above, the condition of the elbows cannot be taken into account and rated.  In regard to the carpal tunnel syndrome, the Tribunal accepts the evidence of the applicant that the carpal tunnel release conducted in 1997 was not fully successful and that he continues to have symptoms in both wrists.   Dr Bolzonello's report (T16) confirms that the results of the carpal tunnel release were only fair.  However, both Dr Castro and Dr Skinner examined the applicant for assessment purposes, and found that movements of the shoulder were slightly restricted due to stiffness; the elbows and wrist movements were normal and were not restricted…had good hand grip and has a good hand function.  The Tribunal accepts that evidence and finds that this fits the description of a NIL impairment rating under Table 3 for Upper Limb Function:

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.

30. The Tribunal is therefore satisfied that at the time of the claim, in August 2002, the applicant did not meet the level of impairment set out in s94(1)(b) of the Act, which requires that a person have an impairment rating of 20 points or more in order to qualify for disability support pension.. As the applicant did not meet the requirements of s94(1)(b) of the Act, the Tribunal did not go on to consider whether the applicant had a continuing inability to work as required under other parts of s94.

DECISION

31.     The Tribunal affirms the decision under review.

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision herein of  

M.J. Carstairs, Member

(sgd)       Catherine Thomas

Clerk

Date of Hearing:  4 August 2003
Date of Decision:  7 August 2003
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr S. Meehan, Centrelink