Henken and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 145

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/248

General Administrative DIVISION )

Re CHERYL HENKEN
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Mr B A Barbour, Senior Member

Date25 February 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether Applicant has a 20 per cent impairment

Social Security Act 1991 – ss 94(1), Schedule 1B

REASONS FOR DECISION

25 February 2000 MR B A BARBOUR, SENIOR MEMBER

This is an application by Cheryl Henken ("the applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 18 January 1999, which affirmed a decision of the Secretary of the Department of Family and Community Services ("the respondent") to reject the applicant's claim for a disability support pension ("DSP").
The Tribunal had before it the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). The Tribunal also considered the following documents:
Exhibit A Report of Dr V B Singh dated 17 January 2000
Exhibit 1A "Dear Doctor" letter provided by the respondent to the applicant dated 13 August 1999

BACKGROUND

The applicant applied for a DSP with Centrelink on 28 August 1998 (T7).
On 14 September 1998 Mrs Henken was assessed by Health Services Australia (HSA) and was assigned a 15 point combined impairment rating for neck and low back pain. Her back pain was assigned 5 points under Table 5.1 and her low back pain 10 points under Table 5.2. The medical adviser stated that she was unfit for her usual work as a courier, but found she was fit for 30 hours per week of light skilled, semi-skilled or lesser skilled work that did not require her to sit for long periods (T8).
On 14 October 1998 the applicant's claim for DSP was rejected (T9).
The original decision-maker reconsidered and affirmed the decision to reject Mrs Henken's claim for DSP on 20 October 1998 (T10).
On 18 November 1998 Mrs Henken requested a review by an Authorised Review Officer (ARO) (T11). The ARO informed the applicant that they had affirmed the decision to reject her claim in a letter dated 25 November 1998 (T12).
Mrs Henken lodged an appeal at the Social Security Appeals Tribunal on 24 November 1998. On 18 January 1999 the SSAT decided to affirm the decision that Mrs Henken was not qualified for DSP because she had an impairment rating of 15 points and so did not meet the requirements of section 94(1)(b) of the Social Security Act (T2).
On 17 February 1999 Mrs Henken lodged an application for review at the Administrative Appeals Tribunal.
LEGISLATION AND ISSUES
The relevant legislation is section 94(1)(a), (b) and (c) of the Social Security Act 1991 ("the Act"). The section states in part:
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
(iii)* * * * *

The issue for the Tribunal, then, is whether the applicant's physical impairments should be assessed at 20 points or more under the Impairment Tables set out in Schedule 1B of the Act, and if so, whether the applicant has a "continuing inability to work".

The relevant Tables, in relation to the applicant's back and neck, were Tables 5.1 and 5.2 under Schedule 1B. As is noted in the Schedule, determination of spinal impairments must be based on a demonstrable loss of function.
MEDICAL EVIDENCE
The Tribunal had before it a number of medical reports that formed part of the T-documents. In a report dated 14 September 1995 (T3), Dr Michael Stuckey opined that Mrs Henken's injuries had been sufficient to interfere with her ability to work satisfactorily as a courier by causing difficulty with driving and prolonged sitting. He continued, stating that:
I would regard her as permanently unfit for work situation which would require prolonged sitting, standing or walking without being able to change position from time to time as necessary or which would require significant amounts of driving or strenuous exertion with her left arm.
As a result of her injuries she has permanent disability which I would assess as 15 per cent permanent impairment of her neck together with 5 per cent permanent impairment of her back and 5 per cent permanent loss of the useful function of her left arm at or above the elbow (bearing in mind that some of the loss of function also exists below the elbow).
Dr Christine Harris, in a medical report dated 9 April 1996 (T4), stated that:
The prognosis is poor in view of the persistence of her symptoms for such a prolonged period and as I suspect strongly that there are extensive degenerative changes present in this lady…
…As to the effect on her capacity for employment she is not now fit for work which involves any heavy lifting, bending or twisting, working with her head fixed in the one position for prolonged periods or driving a vehicle in the course of her work.
In a CT Scan Cervical Spine report from Dr Michael Gray of Ingleburn Diagnostics to Dr Vijay Singh dated 2 June 1998 (T5), Dr Gray concluded that the applicant had suffered "extensive cervical disc degeneration with a small posterior protrusion at the C4/5 level. There is a minor narrowing of the foramina at multiple levels".
In the Treating Doctor's Report dated 20 July 1998 (T6), Dr Singh diagnosed the applicant with upper back and neck pain, and lower back pain. The doctor stated that both the upper back and neck pain and the lower back pain were fluctuating but were also long term. The doctor noted that the applicant was unlikely to be able to return to her usual job, or any other kind of full-time or part-time work, within 2 years. The doctor stated that he was unsure whether the applicant could benefit from vocational work or training or rehabilitation. The doctor also noted that the applicant would be unable to work full days because of endurance problems, her mobility would be constrained in some situations, she may have difficulty alternating between tasks, and would be unable to lift, carry and move objects.
In the Medical Officer Report dated 14 September 1998 (T8), Dr John Cochrane, of HSA, allocated the applicant 5 points for neck pain and degenerative disease using Table 5.1, and 10 points for low back pain using Table 5.2. He stated that the applicant had a total impairment rating of 15 points. The report also noted that the applicant's impairment would not prevent her from participating in an educational or vocational training program during the next two years. However, the report did note that the applicant's impairment would affect her ability to participate in a program due to her limited ability to sit or stand for lengthy periods. Dr Cochrane also noted that vocational rehabilitation would assist the applicant to return to both part-time and full-time work. The doctor also stated that the applicant would be fit for light work not requiring her to sit or stand all day without a change of position.
The applicant filed a medical report of Dr V. B Singh dated 17 January 2000. In that report the doctor stated that:
This patient has been seen and treated for the following conditions: Asthma; Degenerative Bone Disease causing upper back, neck and lower back pain; migraine headaches and recurrent sinusitis.

APPLICANT'S EVIDENCE

Mrs Henken, the applicant, appeared before the Tribunal and gave oral evidence. Mrs Henken is 49 years old. She currently lives by herself, however, in the past her daughter has lived with her periodically. Mrs Henken has not performed any paid employment since 1997. Previously, she worked part-time as a courier.
At the hearing the applicant stated that she could not afford to have a doctor prepare a full body impairment medical report. Mrs Henken said that she was told by an officer of the Social Security Appeals Tribunal that these reports would cost $400.00. When the Tribunal noted that her treating doctor could have prepared these reports, Mrs Henken stated that her doctor had attempted to prepare these reports, but had found them too complicated and unclear.
The Tribunal asked the applicant about her impairment conditions. Mrs Henken listed her conditions as migraines, asthma, degenerative arthritis, sinus, osteoporosis and depression.
The applicant told the Tribunal that her migraines were hereditary and debilitative. She stated that she has had them since she was 11 years old and has been told that they will continue until menopause. Mrs Henken said that sometimes the migraines will last for up to three to four days. She noted that the frequency of the migraines vary. She believes that these migraines are stress related. The applicant believes a lot of this stress is associated with having a daughter with a drug addiction. The applicant told the Tribunal that she uses Panadeine Forte and Valium for the migraines and receives treatment in the form of Pethidine injections. Dr V B Singh and Liverpool Hospital administer these injections. The applicant noted that she tries to avoid taking medication for the migraines as she has a high pain tolerance level and is fearful of becoming dependent on the drugs.
The applicant stated that she suffers from asthma. She uses a nebuliser three times a day when the asthma is bad. She also uses a Ventilin puffer every day. She agreed that the asthma was under control, and that it did not affect her work.
The applicant submitted that she has degenerative arthritis in her right wrist and down the entire length of her spine. She stated that this causes excruciating pain up the right arm. The applicant is right handed. The applicant noted that the condition does not prevent her from driving. However, the applicant said that she can not write any more than five or six lines at a time and can not lift or open objects. The applicant admitted that her wrist had only become a problem in the last five to six weeks.
Mrs Henken also stated that her back causes her excruciating pain and when she has to turn, she has to turn her whole body. The applicant also indicated that on the day of the hearing she had very bad pain at the back of her neck and shoulders. She said that she is in pain when she wakes up in the morning, through to when she goes to sleep at night. She noted that she is in extreme pain after driving for 60 minutes. The respondent suggested to the applicant that at the SSAT hearing, the applicant noted that the neck and back pain fluctuates in intensity, after which her condition returns to "normal". The applicant said that when she said "normal" she meant "constant pain".
The applicant submitted that she has arthritis in her left knee and that she has no left knee cap. The applicant said that she finds it painful to bend and has problems with stairs.
The applicant also stated that she has sinus and will develop osteoporosis at the onset of menopause. However, she noted that the sinus is treated and did not prevent her from going to work, and that the osteoporosis did not cause her any difficulty at present.
The applicant submitted that she has been diagnosed with depression. She could not remember the name of the medication she was using. She is required to take this medication once a day for three months. Dr Singh diagnosed this depression three months ago. When questioned by the respondent, the applicant stated that after three months, it is believed that the depression should "settle down". The applicant said that her symptoms of depression included crying without any reason, feeling like she couldn't cope and a tendency to "snap" at people. The applicant said that her daughter's drug addiction and her mother's ill health contribute to the depression.
The applicant stated that her pain is not going to improve and that her migraines will continue until menopause. She stated that she feels she isn't employable.
The applicant said that she has investigated TAFE courses. The only course she would be interested in would be Social Welfare. She can't stand being confined to a desk and prefers to work with minimal supervision. The applicant said that she has applied for driving jobs and office work. She is interested in jobs with variety. Mrs Henken said that she has been applying for jobs for two years and has been "knocked back" every time.
RESPONDENT'S SUBMISSIONS
The respondent submitted that the applicant's claim for disability support pension was correctly rejected on the basis that she does not satisfy the requirements of section 94 of the Social Security Act 1991. The respondent submitted that the applicant does not have an impairment level of 20 points or more under the Impairment Tables as set out in Schedule 1B of the Act.
The respondent contended that the assigned impairment rating of 15 points is reasonable given the medical evidence. The respondent submitted that Mrs Henken was assigned a 5 point impairment rating under table 5.1 for neck pain as she has one quarter of loss of range of movement of the cervical spine. Further, the applicant was assigned a 10 point impairment rating under table 5.2 for back pain as she had one quarter loss of range of movement of the thoracolumbar spine.
The respondent submitted that on assessment by Health Services Australia the applicant demonstrated that there was no deformity in her cervical spine and her reflexes were intact, she had pain across her shoulders and her gait/posture was of normal speed. The respondent further submitted that the applicant's right and left reflexes in her lower limbs were equal, her right straight leg raising was 70 degrees and her left 50 degrees and that the only evidence of wasting was in the area around the right knee cap. The respondent stated that on informal assessment Mrs Henken's range of movement was greater than on formal assessment. The respondent believed that the assessment of HSA differs little to reports of Dr Stuckey and Dr Harris in the observation of the applicant's conditions. The respondent further noted that the SSAT decided that HSA had used the correct tables to assess Mrs Henken's impairments given the medical evidence.
The respondent submitted that the report by Dr Stuckey, opining that Mrs Henken had permanent impairment of 15 per cent for her neck together with 5 per cent for her back and 5 per cent loss of function for her left elbow, can not be relied upon. The respondent believes that this is the case because the impairment ratings that Dr Stuckey uses are not the ratings as set out Schedule 1B of the Social Security Act 1991.
The respondent further contended that Mrs Henken does not have a continuing inability to work. The respondent noted that Dr Stuckey opined that Mrs Henken was unfit for work situations which require prolonged sitting, standing or walking without being able to change position from time to time as necessary, or which would require significant amounts of driving or strenuous exertion with her left arm. The respondent submitted, however, that Dr Stuckey did not have the opinion that Mrs Henken was unfit for all types of work.
The respondent also noted that Dr Harris, a consultant in occupational medicine, opined on 9 April 1996 that Mrs Henken was not fit for work which involved any heavy lifting, bending or twisting, working with her head in a fixed position for a long period or driving her vehicle for prolonged periods in the course of her work. The respondent submitted, however, that the doctor did not opine that Mrs Henken was unfit for all types of work.
The HSA medical adviser was of the opinion that Mrs Henken could not undertake her usual work as a courier, but was fit for 30 hours per week of light skilled, semi-skilled and lesser skilled work. He was of the opinion that her impairments would not prevent her from undertaking vocational or educational retraining. However, he did note that the impairment may affect her ability to sit for more than 30 minutes.
In response to the applicant's evidence at the hearing, the respondent submitted that the ratings assigned by the SSAT were correct. In relation to the applicant's migraines, the respondent submitted that because there was no supporting medical evidence, and they were not assessed by the HSA officer, no impairment rating could be assigned to them. Further, in relation to the asthma, osteoporosis and sinusitis, the respondent again submitted that no rating could be assigned as the asthma and sinusitis were under control and the osteoporosis was not currently affecting the applicant. However, the respondent noted that it was open to the applicant to put in a fresh application for DSP including these conditions. Additionally, the respondent submitted that the degenerative arthritis was catered for in the neck and back impairment rating, and that the wrist problem did not exist at the time of the original claim and therefore would not attract a rating.
In relation to a continuing inability to work, the respondent submitted that there was no question that the applicant was unfit for work as a courier. However, the respondent believed that the applicant was suited to non-repetitive, light duty work that combined different tasks.
The respondent noted that they had assisted the applicant by providing a "Dear Doctor" letter dated 13 August 1999. The respondent noted that the applicant had not made use of this letter.
FINDINGS
The issues for the Tribunal to decide are, whether the applicant's impairments should be assessed at 20 points or more under the Impairment Tables set out in Schedule 1B and, if so, whether the applicant has a continuing inability to work.
In affirming the original decision to reject Mrs Henken's claim for DSP, both the ARO and the SSAT noted a lack of evidence to support the applicant's claim. Unfortunately, this Tribunal had very little new evidence before it to assist it in making a decision. This is despite various efforts by the respondent and officers of the Administrative Appeals Tribunal to encourage the applicant to gather further medical evidence. There is no doubt that the applicant does suffer permanent impairment.
The only new medical evidence was a report from Dr V B Singh dated 17 January 2000. The Tribunal found this report of little assistance, it merely lists a number of conditions that the doctor has diagnosed. The report does not detail to what extent the applicant suffers these conditions and does not include all the conditions the applicant described at the hearing, particularly her depression.
The other medical evidence before the Tribunal was the same as the evidence before the SSAT. The first report is from Dr Stuckey in 1995. It is not clear from his report how Dr Stuckey concludes that the applicant has a 15 per cent permanent impairment of her neck together with 5 per cent impairment of her back and 5 per cent permanent loss of the useful function of her arm. However, it does not accord with the other medical evidence in relation to Mrs Henken, and the way she presented on the day of the hearing. The Tribunal notes that the doctor does not exclude all types of work for the applicant.
The report of Dr Harris does not assign a rating to the applicant's permanent impairment. The doctor describes the applicant's symptoms, but again does not describe all the symptoms the applicant claimed at the hearing. Although the doctor describes the applicant's prognosis as poor, she does not exclude all types of work for the applicant.

Dr Cochrane, after assessing the applicant's whole body impairment, assigned the applicant a total impairment rating of 15 points. This impairment rating included 5 points for neck pain and degenerative disease under Table 5.1, and 10 points for low back pain using Table 5.2. This impairment rating is reasonable, given the above medical evidence. Indeed, the report of Dr Cochrane differs little to the reports of Dr Stuckey and Dr Harris when describing the symptoms of the applicant. Dr Cochrane stated that there was no deformity in her cervical spine, and her reflexes were intact. He also opined that Mrs Henken's gait/posture was of normal speed, her right and left reflexes in her lower limbs were equal and her right straight leg raising was 70 degrees and her left 50 degrees. The only evidence of wasting was around the applicant's right knee cap.
Dr Cochrane's report also accords with how the applicant presented at the Tribunal hearing. The applicant remained seated for most of the hearing, and at times shifted in her chair. However, her physical condition did not seem to impair her ability to participate in the hearing in any way.
The Tribunal finds on the basis of the evidence before it that the applicant has an combined impairment rating of 15 points under the Tables set out in Schedule 1B. This rating includes 5 points for neck pain and degenerative disease under Table 5.1, and 10 points for low back pain using Table 5.2.
In relation to the applicant's claim of asthma and sinus, there was very little medical evidence of these conditions, and it is clear from the applicant's evidence that these conditions are effectively treated by medication. Accordingly, this Tribunal would assess these impairments as attracting a nil rating. In relation to the applicant's claim of wrist pain, this problem has only developed recently, and again there is no medical evidence of the condition. Therefore, the Tribunal would assign a nil rating to the applicant's claim of wrist pain.
The Tribunal understands that the applicant is under a lot of strain as a result of her mother and daughter's ill health. However, beyond the applicant's statements, there was no evidence provided to the Tribunal that the applicant suffers depression. Again, the Tribunal must assign a nil rating to the applicant's claim of depression. Finally, the applicant claimed she has the onset of osteoporosis. Once again there was very little evidence of this condition and the applicant agreed at the hearing that this has not started to affect her as yet. As a result, the Tribunal must assess this condition as attracting nil points under the Tables.
Therefore, the Tribunal finds that the applicant does not have a combined permanent impairment rating of 20 points or more and so does not satisfy section 94(1)(b) of the Social Security Act 1991. The applicant did not qualify for DSP at the time of her claim. It is therefore unnecessary to consider whether the applicant has a continuing inability to work under section 94(1)(c) of the Act. For these reasons, the Tribunal affirms the decision under review.
I certify that the preceding 50 paragraphs are a true copy of the reasons for the decision herein of B A Barbour, Senior Member.
Signed: .....................................................................................
Associate

Date of Decision  25 February 2000
Solicitor for the Applicant              Self represented
Solicitor for the Respondent         Angela Smith
  Administrative Law Section - Centrelink

[2000] AATA 145

25 February 2000

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Impairment Rating

Disability Support Pension