GEOFFREY LETHBRIDGE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 546

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/0096

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GEOFFREY LETHBRIDGE

Applicant

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

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date22 July 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
  Senior Member

SOCIAL SECURITY – application for disability support pension – whether qualified at date of claim or within 13 weeks – competing medical evidence – applicant does not attract 20 impairment points – decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Act 1991 (Cth) s 94

REASONS FOR DECISION

22 July 2009 Mr John Handley, Senior Member           

1.      Mr Lethbridge, the applicant, applies to review a decision made by the Social Security Appeals Tribunal (SSAT) on 5 December 2007.  He then challenged a decision previously made by an Authorised Review Officer (ARO) of Centrelink to reject a claim for disability support pension (DSP).  The SSAT affirmed that decision.

2.      The applicant is presently 48 years of age and is in receipt of Newstart Allowance (NSA).  He qualified as an electrician in New Zealand and worked in that trade for many years.  He later migrated to Australia and obtained an advanced diploma in electronics.  He is currently studying for the batchelor degree of electrical engineering at the RMIT University.  Centrelink has exempted him from entering into a Newstart Activity Agreement.

3.      The applicant claimed DSP on 18 May 2006.  He is aware that entitlement will be assessed at that date or within 13 weeks of it.  This matter was listed for hearing on three occasions and in addition to the usual pre-hearing conferences, there were also directions hearings convened on two occasions.  The applicant is in no doubt of the date and the period of time within which his qualification for DSP must be assessed.

4.      In his claim for DSP he recited the injuries of left arm, right arm, learning disability, and hearing.  His treating general practitioner, Dr Edwards, in a questionnaire completed on 12 May 2006 described the injuries as neck/shoulder pain/degenerative changes in left shoulder, right elbow pain/fractured head radius, specific learning disability (dyslexia) and tinnitus/hearing loss.

5. The documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 include a number of medical reports, some of which were prepared by orthopaedic surgeons who cared for the applicant in New Zealand after he suffered injuries in a motor vehicle accident in April 1989.  The reports record injuries to both elbows including a fracture of the right radius.

6.      In evidence the applicant said that he has difficulty with his right arm following activities involving lifting and twisting.  Apparently surgery was suggested without indication of any functional improvement.  The applicant said that carrying a 5kg bag of potatoes causes pain through the following week with resultant loss of dexterity in his right hand and fingers.  Lifting greater than 5kgs cause a discomfort for up to a month.  When examined by Dr Turnbull on behalf of Centrelink for these proceedings and having been asked to lift a 5kg weight the applicant said that he felt his joint come apart.

7.      The applicant said that he has constant pain in his left arm and shoulder and restricted use of his left arm.

8.      The condition of learning disorder is more properly described as dyslexia.  The applicant said that the condition interferes with his ability to study because of impaired concentration and interference with his ability to read and write.

9.      Prior to the motor vehicle accident in New Zealand the applicant said that he was a strong man with a pronounced musculature.  He said that he was fit and active and represented New Zealand in judo.

the legislation

10. Qualification for DSP is found at s 94 of the Social Security Act 1991 (the Act).  It has two predominant criteria being an impairment of 20 points or more under Impairment Tables found at Schedule 1B of the Act and a continuing inability to work.

does the applicant suffer an impairment

11.     The T‑documents do not contain any radiology reports with respect to the applicant's right arm.  In his questionnaire of 12 May 2006 Dr Edwards recorded that the applicant suffered articular damage to the right elbow joint and instability, stiffness and intermittent pain.  In a report of 10 February 2009 (which Dr Edwards specifically stated included assessments of impairments at May 2006) he recorded similar language to that which was recorded in his questionnaire of 12 May 2006 and assessed an impairment of the right arm under Table 3 of the Impairment Tables at 15 points.

12.     Dr Turnbull who examined the applicant on behalf of Centrelink on 6 April 2009 (and who also recorded that his assessments were at May 2006) found that the applicant had equal right and left hand strength of 34kgs which he said was within normal range.  That finding was made with the assistance of a dynamometer.  He found that the right elbow had movement up to 120 degrees and by use of a goniometer he was able to produce supination and pronation to 80 degrees.  He observed the applicant not having any difficulty with fine motor coordination of the right hand and no difficulty lifting a 5kg weight from the floor.  He had no record of the right elbow popping and made no observation of it when the weight was lifted.  He assessed fine motor coordination by the ability of the applicant to undress by releasing buttons from his clothing and to lift a pen.  He observed and measured no evidence of any muscle wasting in the right arm.  Dr Turnbull concluded that the condition of the right arm is permanent and has been adequately treated.  By regard to the criteria within Table 3 of the Impairment Tables he was satisfied that the applicant did not attract any impairment rating.

13.     The reports from New Zealand were prepared in 1995 and 1996 and are unlikely to be of any value at 2006 when this application for DSP was made.  It is worth noting however that Mr Simmonds in a report of 31 October 1995 (T6) recorded that there was full range of movement in both elbows, good musculature and good grip.  Mr Simmonds, and Mr Kusel in a report of 19 July 1996 both speculated that the applicant might have difficulty undertaking his work as an electrician because of a history of discomfort with heavy lifting and rotational activities whilst the right arm was in a flexed position for example, when using a screwdriver.  Even if that criteria was now demonstrated it would not attract a rating under Table 3 because demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of other limb which causes mild interference with hand function or manual handling attracts a rating of Nil.  The SSAT made a finding of an impairment rating of 5 under Table 3 with respect to the right arm which refers to moderate interference with hand function or manual handling.  On the opinion of Dr Turnbull who examined the applicant over 90 minutes and who performed various tests and used instruments, I am not confident that the finding of the SSAT, with respect, can be maintained.

14.     The left shoulder and neck has been the subject of radiology reports of which are found in the T‑documents.  An x-ray of the left shoulder of 18 April 2006 did not reveal any bony abnormalities save for minor osteophytic lipping of the inferior humeral and glenoid articular surface consistent with minor degenerative changes.  An ultrasound of the left shoulder demonstrated that the rotator cuff tendons and the tendon on the long head of the biceps were within normal limits without tearing but limited external rotation caused the possibility of a finding of adhesive capsulitis.  An x-ray of the cervical spine caused the radiographer to query whether there was a disc prolapse at C5/6 because of the appearance of narrowed disc space but a CT scan of 22 October 2007 demonstrated a very small posterior central C3/4 disc prolapse without nerve root impingement.  Degenerative spondylosis was present at C4/5, C5/6 and C6/7, pronounced at the latter level.  At C5/6 there was evidence of minimal central canal stenosis without foraminal encroachment.

15.     Dr Edwards recorded in his questionnaire that the applicant was left hand dominant and who reported neck and shoulder pain after writing, with restricted movement and weakness in the left arm.  Anti-inflammatory tablets were prescribed by him.  He referred to a report of a physiotherapist at 2 May 2006 which I assume to be a report of Ms Verity Speed (T13) who treated the applicant on two occasions in November 2005.  She reports treatment only of the left side of the neck, shoulder and arm which had caused the applicant pain over the preceding three months.  She concluded reduced neck pain after the first consultation but continuing shoulder pain and tenderness.  In his report of 10 February 2009 Dr Edwards referred to the report of the physiotherapist documenting a three quarter range of restricted movement of the left shoulder and loss of quarter normal range of movement of the cervical spine.  He found an impairment of the upper left limb attracting 10 impairment points and an impairment of the cervical spine attracting 5 impairment points under Table 5.

16.     Dr Turnbull found left hand grip strength at 34kgs being within normal range for a person of the applicant's age, left elbow movements at 125 degrees also within normal range and supination by use of a goniometer to be 80 degrees at both supination and pronation which was equal to the right side and which was regarded as being normal.  Lateral flexion of the cervical spine was 45 degrees to the right and the left and 80 degrees on rotation to the right and the left, both findings being regarded as normal.

17.     The findings of Dr Turnbull with respect to the left shoulder and neck were made after a thorough and extensive assessment and examination by him using instruments.  There was nothing from the report of Dr Edwards which would indicate the use of any diagnostic tools but rather a reliance by him on a report of a physiotherapist completed six months earlier and following two consultations.

18.     On balance I am not satisfied that there is any impairment of the left arm which was capable of assessment under Table 3.  Table 5 which is applicable for the cervical spine rates impairment by regard to range of movement.  The radiology would indicate degenerative disease and whilst I am satisfied that the applicant does have discomfort and pain from time to time, an impairment rating is not applicable with that history.  The diagnostic analysis by Dr Turnbull would not indicate that the applicant has lost a quarter range of movement of his cervical spine and accordingly I cannot find any impairment rating under Table 5.

19.     The applicant also claimed loss of hearing.  It appears that he also suffers tinnitus.  An audiogram was completed in July 2006 (T29) which found mild low to mid frequency and high frequency sensori neural loss which was within normal range.  An impairment under Table 12 will only be attracted if there is a binaural hearing loss greater than 25 percent.  The assessment completed in July 2006 does not indicate a binaural hearing loss at that level or above.  Accordingly the applicant does not attract any impairment points under Table 12.

20.     The remaining disability claimed by the applicant was described as learning difficulty but more precisely diagnosed as dyslexia.

21.     As a fact I am satisfied that the applicant suffers that condition having regard to a report of SPELD found at T11 following the completion of a psycho-educational assessment.  Whilst it was found that the applicant functioned within an average range of intellectual ability and cognitive profile there was demonstrable language delays resulting in listening comprehension problems, difficulties taking notes, slower speech production with naming and sequencing problems and weaker access to inner language processing to control his thinking and problem-solving in Working Memory (T11, p47).  It was also noted that he had reduced reading accuracy and comprehension.

22.     Dr Edwards in his questionnaire of May 2006 referred to the SPELD report and in his report of 10 February 2009 found that the applicant attracts 10 impairment points under Table 8.

23.     Dr Turnbull was of the opinion that a Nil rating under that Table was appropriate because he found the applicant to have normal comprehension, reading and memory.  He also found a Nil rating under Table 9 because in his opinion the applicant had competent communication, receptive and language function but some difficulty with written communication.

24.     I am not satisfied that the applicant attracts any rating under Table 9 because on the applicant's evidence, the opinions of Dr Turnbull and the report of SPELD, I am satisfied that the applicant has satisfactory or only minor difficulties with communication.  He does not have the difficulties which would be consistent with a criteria found under a rating of 15 within that Table being the rating next available after the rating of Nil.

25.     On the applicant's evidence and the SPELD report I would be satisfied that he attracts a rating of 10 under Table 8 by regard to mild impairment of ability to concentrate, mild impairment of memory, ability to learn but at a slower rate than previously, yet having little impact on every day activity by reliance on written notes, schedules, check lists and colleagues.

26.     A report of Ms Cidoni (Exhibit A3), a psychologist following a consultation on 17 April 2008 was considered but I thought it was of no benefit to this application.  It is not qualified as representing an illness or injury at May 2006 and it given no assessment of impairment.

conclusion

27. Having regard to the foregoing the applicant does not attract 20 impairment points. He does not satisfy the first limb of s 94 of the Act. Assessing the applicant's inability to work only becomes relevant if he has 20 impairment points or more.

28.     I am also satisfied that the opinions expressed by Dr Edwards and Dr Turnbull in their respective reports have been given as at May 2006.  Whilst acknowledging that both of those reports were completed in 2009, Dr Edwards recorded that his assessment was made having regard to the notes that he has held arising out of treatment of the applicant since 2001.  Dr Turnbull acknowledged that his findings diagnostically were recorded in 2009 but he was satisfied in the absence of any history of deterioration that the presentation in 2009 was, on the balance of probabilities, much the same as in 2006.

29.     It would appear that the applicant has a number of other illnesses or injuries which may attract impairments and which may, if assessed, attract 20 or more impairment points.  It may be that if that result is achieved he could demonstrate that he has an inability to work.  If he is of that belief it would be in his interests to make another claim for DSP.

30.     For all of the above reasons I am not satisfied that at the date of claim or within 13 weeks of it the applicant qualified for DSP.  In the circumstances the decision under review will be affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Dates of Hearing  30 January and 13 July 2009
Date of Decision  22 July 2009
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr D Perdon