Fenech and Secretary, Department of Family and Community Services

[2004] AATA 1292

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1292

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/163

GENERAL ADMINISTRATIVE DIVISION		)
Re		LUCY FENECH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date16 November 2004

PlaceSydney

Decision The decision of the Social security Appeals Tribunal of 8 January 2004 is affirmed.

[sgd] Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – hypertension rating nil – neck and lower back rating 10 points – no lower back condition on medical evidence - decision affirmed

LEGISLATION

Social Security Act 1991 section 94

REASONS FOR DECISION

16 November 2004 Mrs Josephine Kelly, Senior Member      

1.      This is my decision in the matter of Lucy Fenech and the Secretary, Department of Family and Community Services, Administrative Appeals Tribunal file number N2004/163.  Mrs Lucy Fenech seeks review of a decision of the Social Security Appeals Tribunal (SSAT) of 8 January 2004, affirming Centrelink's rejection of her application for Disability Support Pension (DSP) lodged on 26 May 2003.  Mrs Fenech's claim is based on back, neck and shoulder pain and hypertension. 

2. The issue in this matter is whether Mrs Fenech satisfies the criteria to qualify for Disability Support Pension set out in section 94 of the Social Security Act 1991 (“the Act”). Specifically, does Mrs Fenech have a combined impairment rating of 20 points or more under the impairment tables in schedule 1B of the Act as required by section 94(1)(b)? If Mrs Fenech satisfies that requirement, the next question is whether she has a continuing inability to work or be retrained pursuant to section 94(1)(c) of the Act.

3.      Mrs Fenech gave some evidence but relied on what she had said in the Social Security Appeals Tribunal, which I have taken into account (Exhibit R1, document T2).

4.      Mr Fenech also gave evidence.  His evidence was that following a motor vehicle accident in June 2000 when she was a passenger, Mrs Fenech suffered from lower back and left-sided neck pain which extended to her left shoulder.  This limits her activities so that she cannot sit, walk or stand for long periods of time or carry out household tasks.  For example, she requires her daughter's assistance with housework, including hanging out the washing, vacuuming and cleaning the bath. 

5.      Mr Fenech was quite distressed about his wife being in pain, and that she has to hold her neck and is unable to do anything. 

6.      Mrs Fenech said that she has had hypertension for about three years and it caused her to feel tired.  She described the medication she takes and says it has recently increased.  Mrs Fenech also made some reference to suffering arthritis which I understood to be confined to her left arm.  There is however no other medical evidence supporting this, and that has not been taken into account in any relevant decision prior to the matter coming before this Tribunal.  In that case I do not take it into account, as I have no basis for making any assessment of the impairment if that condition exists.

7.      Following is a summary of the medical evidence before me.  Dr David Ho performed an MRI of the cervical spine on 11 July 2002 (Exhibit R1, document T4).  He concluded: “the C3-4 and C6-7 discs show evidence of dehydration/early degeneration. Focal posterior bulging of the discs has occurred. The cervical canal dimensions are adequate. The cervical cord defines normally.”  On 9 August 2002, Dr Lee, orthopaedic surgeon, wrote a referral for Mrs Fenech to doctors at Rehab Solutions (Exhibit R1, document T5).  He referred to Mrs Fenech’s still having a lot of pain since the car accident in June and notes the results of the MRI scan and that she had already had adequate physio, and asked: “please advise her on her daily activities to make life more tolerable.”  There is no reference to back pain.

8.      Dr Mao, a general practitioner, wrote a report to Allianz Australia Insurance Limited on 24 February 2003 (Exhibit R1, document T6).  He noted an episode of lower back pain in 1997 but makes no other reference to that complaint.  He describes her neck and shoulder girdle pain, which arose after the 2000 motor vehicle accident and which causes frequent headaches.  He also said that Mrs Fenech was unable to see the rehabilitation doctors because of the financial cost. 

9.      Dr Mao filled out a Centrelink treating doctors report on 6 May 2003.  He sets out two conditions under the section “conditions which have a significant impact on the patient's ability to function.” The first is hypertension with a history of headaches and lethargy.  Current symptoms are listed as “Frequent headaches.”  He sets out the medication Mrs Fenech is to take, describes the impact on her ability and function as “Lethargy” and indicates that the condition is expected to continue to impact on her ability to function for more than 24 months. The second condition described is “Neck and lower back pain”.  The date of onset is June 2000. The pain is described as having commenced after an MVA (motor vehicle accident) in June 2000.  Neck and lower back pain are listed in the history section of the form. The current symptoms are “Neck pain and difficulty to lift L arm, frequent headaches and neck pain with difficulty to cope with domestic work.” Her medications are listed, and the doctor notes past treatment was “physio with restricted response” and "nil" treatment is planned.

10.     Dr Mao described Mrs Fenech's current impact on ability to function as:

“Difficulty to work with left shoulder with frequent headaches. Restricted neck movement. Unable to do all domestic chaor [sic]."

11.     The doctor indicated that impact on Mrs Fenech's ability to function would continue for more than 24 months and that the effect of the condition on her ability to function would deteriorate within the next two years.  Notably, the doctor does not indicate that Mrs Fenech suffers any current symptoms in her lower back. 

12.     Dr Aho carried out a CT scan of the lumbar spine on 29 July 2003.  Dr Aho's conclusion was:

“There is mild central posterior disc protrusion at the L5/S1 level slightly indenting the anterior aspect of the thecal sac. No nerve route compression is visualised. No other significant pathology has been demonstrated.”

13.     Dr Loretta Rozario saw Mrs Fenech on 5 August 2003.  The last relevant paragraph on page 1 of that report says:

“On examination of the lumbar spine there appears to be discomfort and restricted range of movement in all directions of movement. Her straight leg raising was restricted and painful at about 80 degrees, bilaterally.  Examination of her knees and ankles as well as examining her feet reproduced pain, although no other abnormalities were noted. 

I feel that she has some minimal cervical spine involvement, perhaps due to some extent from a motor vehicle accident that she has suffered. I do not feel that the clinical picture that I see at the moment is substantiated by the radiological imaging that is available at the moment.  I have suggested for her to continue with simple analgesia, anti-inflammatories and an exercise programme, perhaps a review by a pain psychologist might be worthwhile considering.  I have not made any further appointments to review her, as I do not feel that I would be able to offer any further treatment.”

14.     The medical assessment was carried out by Dr Verma on 4 June 2003.  He considered Mrs Fenech's neck and back pain and hypertension.  He found that Mrs Fenech's hypertension was well managed and gave a permanent impairment rating of nil under table 20.  As I understand the doctor's writing he notes that the pain was “gradually concerning more in the neck”.  He found a permanent impairment rating of 10 under table 20 for chronic pain. Dr Verma found Mrs Fenech could not resume process work which she had previously done because of her neck pain but was medically fit for light full time work/vocational rehabilitation.  I understand from that report that the doctor did not consider Mrs Fenech suffered present symptoms of leg pain. 

15.     On the evidence it is difficult to determine the extent to which, if at all, Mrs Fenech does suffer lower back pain. There is little or no mention of the lower back pain until the reference in Dr Mao's treating doctor's report, and in that report he indicates that the pain is an historic matter not a current symptom.  Similarly, while Dr Verma refers to it he does not mention it at all in terms of any ongoing restriction or impairment.  Although Dr Rozario does refer to lower back pain, her report does not persuade me, given the manner in which she refers to it, that Mrs Fenech is suffering from it to any great extent.  On the evidence, there is no permanent impairment arising from lower back pain.

16.     On the basis of the evidence that I have summarised it is my conclusion that Mrs Fenech firstly suffers impairment in terms of hypertension but has nil points in terms of permanent impairment under table 20. In relation to the neck pain, in my view the medical evidence supports the permanent impairment rating given by Dr Verma of 10 points and I would not agree with the conclusion of the SSAT that there is a permanent impairment rating of 15 points in relation to that matter. 

17.     My decision is to affirm the Social Security Appeal Tribunal's affirmation of the decision of the authorised review officer and Centrelink's decision to reject Mrs Fenech's claim for disability support pension, but I differ with the SSAT in terms of the permanent impairment rating as I have previously disclosed.

DECISION

18.      The decision under review, that is the decision of the Social Security Appeals Tribunal of 8 January 2004, is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  15 November 2004
Date of Decision  16 November 2004
Advocate for the Respondent   Luke Carter