Emik KARADAGHIAN and Secretary, Department of Social Services

[2015] AATA 325

[2015] AATA 325

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2014/2134; 2150
Re	Emik KARADAGHIAN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	14 May 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are 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

14 May 2015

BACKGROUND

1. On 21January 2013 and 6 November 2013 Ms Karadaghian lodged claims for Disability Support Pension (DSP) on the basis that her medical conditions were having an impact on her ability to function. She claimed that she suffered neck pain, back pain and tendonitis in both upper limbs.

2. Job Capacity Assessment (JCA) reports submitted on 12 March 2013 and 18 November 2013 recommended an impairment rating of 10 points under Impairment Table 4 (spinal function) and 10 points under Impairment Table 2 (upper limb function).

3. Centrelink rejected both claims on the basis Ms Karadaghian had not actively participated in a program of support.

4. On 4 February 2014 an Authorised Review Officer (ARO) decided that despite a combined rating of 20 points under the Impairment Tables Ms Karadaghian was not qualified for DSP with either of her claims because she had not met the requirements of active participation in a program of support.

5. On 27 March 2014 the Social Security Appeals Tribunal (“SSAT’) decided that Ms Karadaghian had a rating of only five points under Impairment Table 2 and five points under Impairment Table 4 and therefore did not satisfy section 94(1)(b) of the Social Security Act 1991 (“the Act”) and was not qualified for DSP with either claim.

6. In this proceeding Ms Karadaghian seeks review of the SSAT decision.

7. I note that on 6 March 2014 Ms Karadaghian lodged a successful claim for Care Payment which was back dated to 27 February 2014.

8. At the hearing Ms Karadaghian was self-represented and was able to give oral evidence.  

   ISSUES

9. In order to qualify for DSP Ms Karadaghian had to 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, that is, between either 21 January 2013 and 22 April 2013 (claim period 1) and between 6 November 2013 and 5 February 2014 (claim period 2).

10. 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;

11. It is agreed that Ms Karadaghian suffers medical conditions that cause impairment and has satisfied s 94(1)(a) of the Act.

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

13. A 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)), and

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

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

14. The Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

15. Dr Ekmejian, general practitioner, provided two medical reports in support of Ms Karadaghian’s claims dated 13 January 2013 and 24 October 2013.  He lists “chronic neuropathic pain” involving the cervical spine and bilateral shoulder tendinitis as conditions causing most functional impact.

16. The respondent concedes that Ms Karadaghian suffers a spinal condition affecting her cervical spine and an upper limb condition affecting both her shoulders and that these conditions are permanent for the purposes of the Act.

17. The respondent contends, however, that during both claim periods each of these conditions caused only mild impairment and that an impairment rating of only five points under the relevant Impairment Table can be assigned. With a combined impairment rating of only 10 points the respondent submits section 94(1)(b) of the Act was not satisfied.

18. Dr Ekmejian also lists several other medical conditions including “laryngopharyngeal reflux, depression, anxiety and poor bladder control”.

19. The conditions of “anxiety” and “depression” have not been diagnosed by a psychiatrist or clinical psychologist as required Table 5 and therefore an impairment rating cannot be assigned.

20. The evidence before the Tribunal with respect to the other conditions is insufficient to allow any meaningful assessment as to diagnosis or treatment and I am satisfied that an impairment rating cannot be assigned.

21. If the Tribunal finds that Ms Karadaghian had a combined impairment rating of 20 points or more the Respondent contends that during both claim periods she did not have a “continuing inability to work’’ and therefore did not satisfy section 94(1)(c) of the Act.

22. It follows that the relevant issues in this matter are :

    ·What was the impairment rating for the upper limb condition during claim periods?

    ·What was the impairment rating for the spine condition during the claim periods?

    ·If the combined impairment is found to be 20 Points or more was there a “continuing inability to work”?

    THE UPPER LIMB CONDITION

23. Ms Karadaghian claims she suffers persistent bilateral shoulder pain and restricted range of movement.

24. On the 7 May 2010 supraspinatus and biceps tendonitis was diagnosed following an ultrasound examination of the right shoulder. Cortisone injections of the right shoulder were performed on 21 May and 27 May 2010.

25. The report of an ultrasound examination of the right shoulder performed on 4 November 2010 described a normal supraspinatus tendon and residual biceps tendonitis. In this report it was noted that the cortisone injections were of benefit and that a further injection may also be beneficial.

26. In a letter dated 15 July 2010, Mr Wong, physiotherapist, noted that after five weeks of treatment Ms Karadaghian achieved substantial progress with her pain but did not distinguish between her cervical pain and pain caused by tendinitis in her right shoulder.

27. In a letter dated 8 August 2010, Dr Ekmejian noted that despite physiotherapy treatment “substantial progress with her pain was not achieved.”

28. On 29 November 2010 Ms Karadaghian successfully settled a substantial insurance claim for permanent disablement.

29. There is no further documentary evidence with respect to the right shoulder until Dr Ekmejian’s report of 13 January 2013 which was written in support of Ms Karadaghian’s initial claim for DSP.

30. Dr Ekmejian lists right shoulder tendonitis as a condition having most functional impact with a date of diagnosis as 4 June 2010. He describes clinical features of “severe constant right shoulder pain” and “restricted range of movement” and states that Ms Karadaghian reports worsening of symptoms over the past two years. He describes future treatment as “exercise, analgesia, pain modifying medication”.

31. An ultrasound examination of the left shoulder performed on the 25 February 2013 is reported as showing biceps tenosynovitis with an insertional tear and bursitis. Celestone injections were performed on 4 March 2013 and 8 March 2013.

32. A subsequent ultrasound examination of left shoulder performed on left 17 December 2013 is reported as showing “a partial thickness articular surface tear of the supraspinatus and “ an element of bursitis with impingement”.

33. In his report of 24 October 2013 Dr Ekmejian confirms the diagnosis of right shoulder tendonitis and adds that “now additionally involving left shoulder” but provides no date of onset or diagnosis for the left shoulder. He describes current symptoms as “severe bilateral shoulder pains” and “restricted range of movement of both shoulders”.

34. Future treatment is described as “physio-more pain relief –exercises”.

    Consideration

35. Notwithstanding the concession by the Respondent I am not satisfied that during the claim periods Ms Karadaghian’s shoulder conditions were fully diagnosed, fully treated and fully stabilised for the purposes of an assessment of functional impact on activities using hands or arms.

36. I am satisfied that the tendonitis in the right shoulder was fully diagnosed, fully treated and fully stabilised in 2010.

37. However, apart from the reports of Dr Ekmejian in 2013 there is no other documentary evidence of radiological follow-up, any specialist assessment or any treatment since 2010.

38. The reports of Dr Ekmejian, in my view, do not provide a satisfactory clinical assessment of this condition as it was prior to or during the claim periods. His notations are somewhat generalised and appear to be significantly influenced by Ms Karadaghian’s self-report of symptoms.

39. Left shoulder tendonitis was not diagnosed until the 25 February 2013 during the first claim period. Clearly the condition was in an acute untreated stage at this time and is likely to have had a more significant but temporary functional impact on Ms Karadaghian’s activities using hands or arms.

40. In his report of 24 October 2013 Dr Ekmejian provides no meaningful information about the progress of this condition and the ultrasound examination performed during the second claim period on 17 December 2013 provides no assistance.

41. I am satisfied that the left shoulder tendonitis was not fully treated and stabilised during the first claim period and I am not satisfied that there is sufficient evidence before the Tribunal  to make a reasonable assessment as to whether the condition was fully treated and fully stabilised by the end of the second claim period.

42. Furthermore, Dr Ekmejian’s reports demonstrate some similarity between the symptoms attributed to the cervical spine condition and those of the shoulder conditions and there is no meaningful consideration of the effect of her claimed spine condition on upper limb function.

43. For the above reasons I am not satisfied that there is sufficient evidence  before the Tribunal to  conclude that  Ms Karadaghian’s conditions of right and left shoulder tendonitis were fully treated and fully stabilised during the assessment periods and therefore an impairment rating could not be assigned.

    THE SPINAL CONDITION

44. Ms Karadaghian told the SSAT that she has been in constant pain since 1987.

45. The report of a CT scan of the lumbar spine performed on the 19 July 2007 concluded that there was “minor degenerative disc disease at L5/S1”.  

46. In a letter dated 27 January 2009 Dr Perko, orthopaedic surgeon, noted that Ms Karadaghian  had a long history of neck pain radiating into both shoulders and left arm pain. Physical examination revealed “some restriction of motion in the cervical spine particularly with rotation to the right” but no other abnormalities. In particular he did note full range of shoulder motion.

47. Dr Perko made a diagnosis of “some cervical spondylosis and associated neck pain” and recommended X-rays  of the cervical spine 

48. Cervical spine X-rays performed on the 18 March 2009, 15 April 2010 and 21 July 2010 revealed minor abnormalities at the anterior margins of several cervical vertebrae but otherwise no definite abnormalities.

49. In a letter dated 14 May 2009 Dr Ly, rehabilitation physician, noted that Ms Karadaghian complained of “pain in the neck, both shoulders, arms and forearms, left side worse than the right”.

50. On physical examination Dr Ly noted slightly reduced neck rotation on both sides but no other abnormalities. In particular he found no abnormality in the upper limbs and no evidence of radiculopathy.

51. Dr Ly noted that Ms Karadaghian “reported that she had a cervical spine X-ray which showed some changes at C4/5 and C5/6 as well as a CT scan four years  ago but did not bring any of these radiological films or reports with her today for review”.

52. Dr Ly concluded that it was likely that Ms Karadaghian had “chronic neuropathic upper limb pain secondary to multilevel cervical spine degenerative changes, as well as clinical depression and anxiety”.

53. Dr Ly recommended a multidisciplinary chronic pain management program, outlined a management plan, prescribed  gabapentin  and suggested a further review in one month’s time.  

54. There is no documentary evidence of any further consultations with Dr Ly or treatment in a pain management program.

55. The report of a CT scan of the cervical spine performed on 15 April 2010 stated that    “there is very minimal degenerative changes developing on the vertebral bodies anteriorly. No other definite abnormality is seen”.

56. In his report of 13 January 2013 Dr Ekmejian lists “chronic neuropathic pain” as a medical condition with most functional impact with a date of onset in 2002. He notes that the diagnosis was confirmed by Dr Ly on 14 May 2009 with a review on 17 June 2009.

57. Dr Ekmejian notes that past treatment with pain modifying medication has been unsuccessful and future planned treatment is described as “ongoing pain management- physio”.

    Consideration

58. It is clear from the evidence that Ms Karadaghian has suffered chronic pain in her neck, shoulders and arms for many years.

59. What is not clear from the evidence is the why she suffers pain, why the symptoms appear to be so severe and why there has been no response to any treatment.

60. Dr Ekmejian makes a diagnosis of “chronic neuropathic pain” but provides no evidence to support this diagnosis. He simply relies on the opinion of Dr Ly as expressed in his letter of 14 May 2009.

61. Dr Ly’s diagnosis appears to have been based on Ms Karadaghian’s self–report of symptoms and an assumption that she had “multilevel cervical spine degenerative changes”.

62. The assumption was based on Ms Karadaghian’s self-report of X-ray findings. Dr Ly indicated in his letter that he did not review the films or see the reports himself.  

63. I note the three cervical spine X-rays in 2009/2010 showed only minor changes and did not support a diagnosis of significant multilevel spinal degenerative change.

64. Also there is no evidence of a cervical CT scan prior to the scan performed on 15 April 2010 which revealed only minimal degenerative changes and no abnormalities that would be consistent with a diagnosis of chronic cervical neuropathic pain.

65. Therefore, I am not satisfied that the diagnosis made by Dr Ly can be considered reliable.

66. It follows that while I accept that Ms Karadaghian suffers chronic pain I cannot be satisfied that during the claim periods the cause of her pain was fully diagnosed and fully treated and therefore a rating under the Impairment Tables could not be assigned.

    DECISION

67. For the reasons set out above I am satisfied that during the two claim periods Ms Karadaghian’s rating under the Impairment Tables was not 20 points or greater and therefore she did not satisfy section 94(1)(b) of the Act and was not qualified for DSP.

68. As Ms Karadaghian did not satisfy section 94(1)(b) I do not have to consider the issues in respect of the requirement for a continuing inability to work.

69. The decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 14 May 2015

Date of hearing	24 April 2015
Applicant	In person
Solicitor for the Respondent	Department of Human Services