Hudd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 911

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 911

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2900

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEIDRE HUDD

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date19 December 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Physical and psychiatric impairments of fibromyalgia, depression, osteoarthritis of the knees, osteoporosis, hypertension, obesity and oesophagitis–  Not all conditions rateable under Impairment Tables – Impairment rating less than 20 points – No continuing inability to work – Decision under review affirmed

Social Security Act 1991 (Cth) s 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth) Schedule 2

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

19 December 2011 Dr M Denovan, Member    

INTRODUCTION

1.      The applicant, Ms Deidre Hudd, suffers from a number of significant medical problems, including fibromyalgia, depression, osteoarthritis of the knees, osteoporosis, hypertension, gastrooesophageal reflux and left subacromial bursitis. She considers that most of these medical problems started in August 2010, when she suffered a fall.

2.      Ms Hudd claimed disability support pension (DSP) on two occasions, the first being on 11 October 2010 and the second on 18 March 2011. In her first application the accompanying medical report, completed by general practitioner Dr Parikh, identified the two medical conditions of severe osteoarthritis of the left knee and obesity. Obesity was listed as causing minimal or limited impact on her functioning. In the later claim, general practitioner Dr Lal identified the primary conditions of fibromyalgia and osteoarthritis of the left knee and shoulder. The report also identified, as causing limited or minimal impact, hypertension, depression and oesophagitis.

3.      Centrelink rejected the first claim on 11 November 2010 and the second claim on 5 May 2011. An authorised review officer affirmed the decisions on 24 January 2011 and 25 May 2011 respectively. The Social Security Appeals Tribunal (SSAT) reviewed and affirmed both decisions on 13 July 2011.[1]

[1] The application for review of both decisions was received by the SSAT on 31 May 2011.

4.      On 21 July 2011 Ms Hudd made an application to the Administrative Appeals Tribunal (AAT) to review the decisions.

ISSUES AND LEGISLATION

5. Under Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) an applicant must qualify for DSP on the date that the claim was made, or within 13 weeks of that date. In this case, the two relevant 13-week periods are 11 October 2010 to 10 January 2011 for the first claim (the first assessment period), and 18 March 2011 to 17 June 2011 for the second claim (the second assessment period).

6. The qualification criteria for DSP are set out in s 94(1) of the Social Security Act 1991 (Cth) (the Act). To qualify, the applicant:

·    must have a physical, intellectual or psychiatric impairment (s 94(1)(a)); and

·    must have an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act (s 94(1)(b)); and

·    must have a continuing inability to work (s 94(1)(c)).[2]

[2] The age and citizenship requirements in ss 94(1)(d) and (e) of the Act are met.

7.      Before an impairment rating can be assigned under the Impairment Tables it is necessary to determine whether Ms Hudd’s impairments arise from a condition or conditions that can be regarded as being ‘permanent’ under the Act. Pursuant to the Introduction to the Impairment Tables:

4.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.

In this context, reasonable treatment is taken to be:

·     treatment that is feasible and accessible ie, available locally at a reasonable cost;

·     where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

8.       If a person has 20 or more points, then they must also have a continuing inability to work, which means that the impairments that were rateable alone must render a person unable to do any work or training during the next two years (s 94(2) of the Act). “Work” means work in Australia that is for at least 15 hours per week at or above minimum wages, even if not in the person’s locally accessible market (s 94(5) of the Act).

9.      Mr Letch, for the respondent, contended that Ms Hudd is not qualified for DSP because none of the conditions from which she suffers can be regarded as permanent. In relation to the condition of fibromyalgia, Mr Letch submitted that if the Tribunal were to consider this condition rateable the most impairment points that could be assigned from Table 20 are 15.

10.     The issues that I must determine are:

·    What, if any, physical, intellectual or psychiatric impairments Ms Hudd had during the first and second assessment periods;

·    Whether all or any of those conditions are fully documented, diagnosed conditions which have been investigated, treated and stabilised and can be regarded as permanent;

·    What impairment ratings should be assigned to the identified conditions; and

·    If Ms Hudd has an impairment rating of 20 points or more, whether she has a continuing inability to work.

CONSIDERATION

What if any physical, intellectual or psychiatric impairments did Ms Hudd suffer from during the first and second assessment periods?

11.     The report of Dr Parikh dated 10 October 2010 indicates that Ms Hudd has osteoarthritis of the left knee and obesity. These are the conditions that can be considered in the first assessment period.

12.     In his report dated 18 March 2011 Dr Lal identified Ms Hudd’s conditions to be fibromyalgia, osteoarthritis of the left knee and shoulder, depression, hypertension and oesophagitis. These are the conditions that can be considered in the second assessment period.

Are all or any of those conditions fully documented, diagnosed conditions which have been investigated, treated and stabilised and can be regarded as permanent?

13.     In order to assess whether a condition is fully treated and stabilised, paragraph 6 of the Introduction to the Impairment Tables provides that I must consider:

·    What treatment or rehabilitation has occurred;

·    Whether treatment is still continuing or is planned in the near future; and

·    Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

Fibromyalgia

14.     It was Mr Letch’s contention that as this condition was only recently diagnosed in January 2011, and Ms Hudd is waiting for a review by a rheumatologist, the condition cannot be considered fully diagnosed, treated and stabilised.

15.     Ms Hudd told me that prior to August 2010 she was reasonably healthy and was holding down two jobs: one in childcare and one in aged care. Since that time she has suffered from pain that radiates up into her spine. She also has pain in her left shoulder and in a number of ‘trigger points’ identified by Dr Lal, her general practitioner. She believes this pain is due to fibromyalgia. She said that this is the condition that most impacts her life. She is never pain-free, even though she is taking pain relief medication. She experiences exacerbations of that pain when she walks, stands or sits. As a consequence of the pain she finds it very difficult to sit still. Ms Hudd attends hydrotherapy classes, which are treatment for all her musculoskeletal problems.

16.     The first reference to fibromyalgia was in the medical report by Dr Lal that accompanied Ms Hudd’s second application for DSP on 18 March 2011. In that report Dr Lal stated that the onset of the condition was January 2011. Dr Lal has been Ms Hudd’s treating general practitioner for two years. Dr Lal gave evidence to the Tribunal by telephone. He told me that as a result of pain from fibromyalgia and pain in her knees, Ms Hudd requires pain relief in the form of Tramal, taken orally, in doses of 100mg in the morning and 150mg at night. Dr Lal understands that Ms Hudd is unable to continue her usual work whilst she is taking this medication because the company that was employing her has a policy of not employing anyone who is taking narcotic medication. Dr Lal believes that to employ Ms Hudd whilst she is taking Tramal would invalidate the company’s public liability insurance.

17.     Dr Lal told the Tribunal that he stated the date of onset of fibromyalgia as January 2011 because that was the first date that he saw Ms Hudd and was able to identify that she had pain in 11 of 16 potential places on her body. He  said that this was sufficient clinical evidence to make a diagnosis of fibromyalgia. Dr Lal said that other conditions that might be responsible for Ms Hudd’s symptoms have been eliminated and he is confident about the diagnosis of fibromyalgia. The reason he has referred Ms Hudd to a rheumatologist is for a second opinion, because there are possibly other treatment options that he has not considered. Dr Lal opined that the condition was likely to deteriorate and the condition would continue to impact on Ms Hudd’s ability to function for more than 24 months.

18.     It is normal procedure for an applicant to be sent to a Job Capacity Assessor prior to a decision about their qualification for DSP being made by a delegate of the respondent. In this case, Ms Hudd was assessed twice by physiotherapist Mr J Carmichael, who prepared reports on 14 October 2010 and 5 April 2011. In the later report, Mr Carmichael stated that he considered the condition of fibromyalgia was permanent, as well as fully diagnosed, treated and stabilised, and allocated 15 points from Table 20 of the Impairment Tables. Mr Carmichael also gave evidence by telephone at the hearing. He said that he reached this conclusion after reading the report from Dr Lal and consulting a fellow Job Capacity Assessor who was a nurse. Mr Carmichael explained that when a condition is outside the expertise of a particular assessor, it is normal practice to consult another practitioner whose qualifications are more appropriate.

19.     When the decision to reject Ms Hudd’s DSP claim was reviewed by the SSAT, it was considered that Ms Hudd’s fibromyalgia was not rateable under the Impairment Tables because the condition was not fully diagnosed, treated and stabilised. This was on that basis that she was waiting to see a rheumatologist in relation to what further treatment options should be pursued and also because she has not tried the usual treatments for that condition, namely physiotherapy and hydrotherapy. Other than these two types of therapy, the SSAT did not identify any future treatment that may be suggested by a specialist.

20.     Paragraph 5 of the Introduction to the Impairment Tables provides that 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”.

21.     Ms Hudd told the Tribunal that the usual waiting period for a public specialist appointment was eight to ten months. Ms Hudd has been, and continues to be, treated by physiotherapy and hydrotherapy for this condition. She commenced those therapies, as well as oral pain medications, during the second assessment period. I consider that during the second assessment period Ms Hudd commenced and now continues to undertake reasonable treatment for this condition. In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, at [18], Gyles J said that it was not appropriate for a tribunal to reject a claim because a hypothetical third party (medical practitioner or other practitioners) might come to an adverse opinion in relation to matters of diagnosis or treatment. The possibility that at some time in the future a specialist rheumatologist will be able to suggest another, as yet unidentified, therapy is not a reason to reject Ms Hudd’s claim. There is no evidence before me which suggests that a rheumatologist may be able to suggest a treatment, not yet considered by her general practitioner, which will likely lead to a significant functional improvement within the next two years.

22.     I conclude that fibromyalgia is a permanent condition which was fully diagnosed, treated and stabilised within the second assessment period and should attract a rating from the Impairment Tables in relation to her second claim.

Osteoarthritis of the knees

23.     Ms Hudd also has bilateral knee conditions. It would appear she had an arthroscopy on her left knee on 29 September 2011. That procedure was successful and she now has reduced pain in that joint. However, she still has pain in the right knee and is waiting for an appointment in the public hospital system with the view to having an arthroscopy on the right knee. She has a lot of grating in the left knee. Ms Hudd was told by the orthopaedic doctor who performed the left knee arthroscopy that she will require bilateral knee replacements when she is 60 years old. The delay is not because her pain and impairment is not severe, but because the knee replacements only last 10 to 20 years and cannot be replaced.

24.     Dr Parikh, in his report of 10 October 2010, stated that osteoarthritis of the left knee was likely to persist for 3 to 24 months, and the effect of this condition on Ms Hudd’s capacity to function in the next two years is uncertain. At the hearing Dr Parikh told me that the reason he said the future impact of the left knee was uncertain was because it was not known at that time when Ms Hudd would have an arthroscopy. He also stated the time it would take Ms Hudd to recover post-operatively was also uncertain. Fortunately for Ms Hudd, the arthroscopy was performed soon after the end of the second assessment period and she reports that her left knee is considerably better. This means that the Ms Hudd’s left knee osteoarthritis cannot be regarded as permanent and therefore cannot be rated in either assessment period. In any event, since the arthroscopy took place outside of the second assessment period, the left knee osteoarthritis was not fully treated and stabilised during that period.

25.     As Ms Hudd gained a great deal of pain relief and improvement in function after the arthroscopy of the left knee, it would be reasonable to expect that the likely outcome of arthroscopy on the right knee will be similar. Allowing for the normal waiting time for specialist review, I consider that this condition is likely to improve within the next 24 months. This means that the condition is temporary and not one that attracts a rating from the Impairment Tables. I accept that Ms Hudd will likely require bilateral knee replacements at some time in the future and I note that Dr Lal opined in December 2010 that this condition was likely to deteriorate within two years. I consider the evidence of Ms Hudd is not consistent with that of Dr Lal with regard to the likely long-term prognosis of this condition and I do not consider that her condition of right or left knee osteoarthritis can be regarded as permanent during either of the assessment periods.

Depression

26.     Ms Hudd has suffered from depression for many years. This condition has worsened since the fall she suffered in August 2010 as she is having difficulty coming to terms with the restrictions her medical problems cause to her lifestyle. Also contributing to her depression is the financial stress that she has suffered since she ceased work after the fall. While her dealings with Centrelink are also causing her distress, she does not consider that her depression will significantly improve when the matter of her DSP claim is finalised. Ms Hudd has been seeing a psychologist, Mr D Haynes, since June or July 2011. She has attended for about eight sessions and is limited to ten free sessions a year. That is the limit of free sessions; she cannot afford to pay for any more. While she believes that this therapy has assisted her, she still needs the antidepressive oral medication prescribed by her doctor. Ms Hudd was initially treated with a medication called Endep, which was not very effective. However, she says she is feeling a little better on Zyrex, her current medication.

27.     Both Dr Lal and Dr Parikh reported that this condition is causing limited impact on Ms Hudd’s capacity to function. That seems inconsistent with the description given by Ms Hudd; it may be the case that she needs to have further discussions about this condition with her general practitioner so that he fully understands how it impacts her capacity to function on a day-to-day basis. Ms Hudd did not commence counselling with a psychologist until near the end of the second assessment period. The medication she was initially prescribed had limited value and a new drug, that she felt worked better, was prescribed. As this change of medication occurred towards the end of the second assessment period it cannot be said that Ms Hudd’s condition of depression was fully treated and stabilised during either of the assessment periods.

Left shoulder subacromial bursitis

28.     Ms Hudd said that when she attended the public outpatient clinic for her knee arthroscopy, the orthopaedic doctor also examined her left shoulder. She told me that she had pain in her shoulder and also has difficulty raising her left arm due to the pain. This problem has been present since her fall in August 2010. The doctor who examined her at the orthopaedic outpatient clinic told her that there is no surgery that would assist her arm and shoulder pain.

29.     Dr Lal said that Ms Hudd has a subacromial bursitis of the left shoulder. The diagnosis was confirmed by ultrasound examination on 14 March 2011. Whilst this condition is manageable on her current medication (Tramal), it prevents Ms Hudd from lifting and would make it impossible for her to work in either aged care or childcare. Dr Lal said that Ms Hudd has been given steroid injections into the joint and she also continues to perform the exercises she was given in physiotherapy. Dr Lal stated in his report that this condition was likely to persist for more than 24 months and is likely to deteriorate.

30.     I consider that this condition is likely to persist for more than two years and should be treated as a permanent condition. The condition has been fully investigated and diagnosed. She has been reviewed by a specialist, and has been treated by all reasonable therapies that are available, making the condition fully treated and stabilised. The condition can therefore be allocated a rating from the Impairment Tables in the second assessment period.

Obesity

31.     This condition was identified only by Dr Parikh, who considered that it caused a minimal or limited impact on Ms Hudd’s ability to function. As there is no other medical information about this condition before the Tribunal, it is not possible to accept this condition is fully diagnosed, treated and stabilised. Consequently it cannot be assigned an impairment rating.

Hypertension/oesophagitis/inguinal and para-umbilical hernias/osteoporosis

32.     Ms Hudd has undergone recent surgery for inguinal and para-umbilical hernias. She still had stitches in at the time of the hearing. It is anticipated that she will require no further treatment for these conditions. Ms Hudd also has high blood pressure that has been well-controlled by medication for the last two years. She also suffers from gastro-oesophageal reflux which is also well controlled by medication.

33.     Dr Lal confirmed that Ms Hudd also suffers from osteoporosis. She is taking medication for the condition which assists in preventing thinning of the bones. Dr Lal said that Ms Hudd was currently experiencing no symptoms from this condition and would only develop symptoms if some time in the future she developed a bone fracture. The medication she is taking has a prophylactic effect. The purpose of taking it is to minimise the likelihood of any future fractures.

34.     I accept the conditions of hypertension, oesophagitis and osteoporosis are permanent conditions, all of which have been fully diagnosed, treated and stabilised. There was insufficient material in the evidence before me to make a decision about Mr Hudd’s condition of obesity.

What impairment rating should Ms Hudd be allocated for osteoporosis, hypertension, oesophagitis and subacromial bursitis?

35.     For the reasons stated above, the conditions that I consider are able to be given a rating from the Impairment Tables are fibromyalgia, oesophagitis, subacromial bursitis, hypertension and osteoporosis.

36.     Dr Lal stated that hypertension and oesophagitis are conditions that have a minimal impact on Ms Hudd’s capacity to function. Ms Hudd accepts that her conditions of hypertension, osteoporosis and oesophagitis have a minimal impact on her ability to function.

37.     I find that Ms Hudd’s conditions of hypertension, oesophagitis and osteoporosis cause her little or no limitations in her capacity to function. These conditions therefore can only be allocated nil impairment points from the appropriate Impairment Tables.[3]

[3] Tables 11.1 and 20.

38.     It was Dr Lal’s evidence that while the bursitis in Ms Hudd’s shoulder causes little problem with her capacity to function, it would prevent her from performing the tasks required of her in her usual occupations of childcare and aged care. Although shoulder pain can be rated from Table 3[4], there is insufficient evidence before me in relation to Ms Hudd’s loss, if any, of strength, coordination, mobility and dexterity of her upper limb. I have therefore decided to rate both fibromyalgia and left subacromial bursitis from Table 20. This Table is best suited to assess Ms Hudd’s multiple pain sites, including her shoulder, the side effects that she experiences from the medication she is required to take, as well as the fatigue and lack of sleep that she experiences as result of the rateable conditions. I have not taken into account any of the incapacity Ms Hudd experiences due to depression, as I determined that this condition is not rateable in either assessment period.

[4] This table is to be used for assessing “Upper Limb Function”.

39.     Table 20 of the Impairment Tables reads:

TABLE 20.MISCELLANEOUS – MALIGNANCY, HYPERENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double- counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating Criteria

NILControlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TENMild to moderate symptoms which are irritating or unpleasant but which rarely, prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end‑organ damage

Potentially life‑threatening condition which is currently not interfering with daily activities eg malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants ‑ well controlled (well-functioning) with only mild systemic symptoms.

FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self‑care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work. Full‑time work would still be possible.

Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.

THIRTYVery severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self‑care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants ‑ poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension ‑ severe, uncontrolled

Inoperable, symptomatic and life‑threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTYMajor restrictions in many everyday activities. Capacity for self‑care is restricted, leading to dependence on others. No residual work capacity.

40.     In the first Job Capacity Assessment conducted by Mr Carmichael, he allocated 15 impairment points from Table 20 for Ms Hudd’s fibromyalgia.

41. Ms Hudd lives with her brother, who also has incapacity from medical problems. She has her own car and can drive. She is able to use public transport. She can perform limited housework but usually ceases after 15 minutes as she breaks into a sweat. She is capable of self-care independent of assistance. I accept that Ms Hudd is incapable of performing work with child care or aged care due to her rateable conditions. However, I consider that in isolation fibromyalgia and subacromial bursitis would not, alone, render Ms Hudd incapable of performing some type of work. In my opinion, it is likely that, when these conditions are combined with her depression, she is incapable of working. However, I cannot take the condition of depression into account when considering the second assessment period. I have considered Ms Hudd’s capacity to work purely for the purposes of assigning the appropriate rating from Table 20. I find that the appropriate rating for the combined incapacity from fibromyalgia and subacromial bursitis from Table 20 is 15. As this is less than 20 points, Ms Hudd does not satisfy s 94(1)(b) of the Act. For this reason, there is no requirement for me to make a finding in relation to s 94(1)(c). Ms Hudd was not qualified for DSP during either assessment period.

DECISION

42.     Ms Hudd does not satisfy the minimum requirements that must be met in order to qualify for DSP. The decision under review is therefore affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ......................[Sgd].......................................................
  Associate

Date/s of Hearing  16 November 2011
Date of Decision  19 December 2011
Applicant was self-represented
Solicitor for the Respondent     Simon Letch, departmental advocate