Kazan and Secretary, Department of Family and Community Services

[2005] AATA 1143

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1143

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/44

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NAWAL KAZAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 November 2005

PlaceSydney

Decision The decision under review is affirmed.

........................................................

Ms N Bell   Senior Member  

SOCIAL SECURITY - Claim for Disability Support Pension – Applicant Suffers Depression, Back, Neck and Arm Conditions – Applicant Does Not Meet 20 Points Requirement Under Impairment Tables – Decision Under Review Affirmed

Social Security Act 1991

REASONS FOR DECISION

18 November 2005 Ms N Bell, Senior Member

1.      Mrs Kazan’s claim for disability support pension (DSP), made on 19 May 2004, was rejected by Centrelink.  While Centrelink, on behalf of the Secretary of the Department of Family and Community Services, agreed that Mrs Kazan suffers from back pain, neck pain, depression and arm symptoms, Centrelink did not agree that Mrs Kazan’s various impairments attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (the Act).  Nor did Centrelink agree that Mrs Kazan meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work.  These requirements are set out in section 94 of the Act and are as follows:

2.      The issues to be considered by me are therefore whether Mrs Kazan has an impairment rating of 20 points of more and, if so, whether she has a continuing inability to work. I will address the first issue, of Mrs Kazan’s impairment rating, by examining each of her conditions in the context of the Impairment Tables.

mrs kazan’s back pain

3.      Mrs Kazan gave evidence of suffering constant back pain with the effect of limiting walking, sitting and standing.

4.      In a treating doctor’s report dated 14 May 2004, Dr Hourani, General Practitioner, said that Mrs Kazan suffered chronic back pain that was made worse with physical activity.

5.      Ms R Joyce, a Centrelink rehabilitation consultant with psychology qualifications but no apparent medical qualifications, assessed Mrs Kazan as having a loss of one quarter range of movement and pain and accordingly assessed her at 10 points pursuant to Table 5.2. The relevant part of that Table provides:

TABLE 5.2 Thoraco—lumbar-sacral spine

Determination of spinal impairments must be based on a demonstrable loss of function.

TEN: Loss of one-quarter of normal range of movement as well as back pain,

or referred pain with many physical activities and with standing for about

30 minutes and with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

6.      I am uncertain as to the basis on which this assessment was made.

7.      Dr E Matalani, Consultant Occupational Physician, examined Mrs Kazan at the request of the Respondent in August 2005 during a period of adjournment of this application. Dr Matalani found inconsistency in findings in relation to range of movement on formal examination and on informal observation. However, the doctor considered that, giving Mrs Kazan a benefit of the doubt and taking into account her pain, she could be assessed at 10 points under Table 5.2.

8.      On balance, I consider that it is appropriate to allocate 10 points in respect of Mrs Kazan’s back under Table 5.2.

mrs kazan’s neck pain

9.      Dr Hourani in his report described pain in Mrs Kazan’s neck and left shoulder, worsened by physical activity. Dr Matalani described a near normal range of movement and allocated an impairment rating of nil under Table 5.1.

10.     Dr Maxwell, Mrs Kazan’s treating general orthopaedic surgeon, in a report dated 12 April 2005, described pain in Mrs Kazan’s neck radiating into her right shoulder.  In a report dated 5 August 2005 Dr Maxwell described discomfort in Mrs Kazan’s neck and right shoulder and noted that she has a small intraarticular surface tear of the supraspinatus tendon.

11.     Mrs Kazan gave evidence of neck pain when driving, turning her head and lifting her arms.

12.     I note the relevant part of Table 5.1 provides as follows:

TABLE 5.1 Cervical spine

Determination of spinal impairments must be based on a demonstrable loss of function.

Rating Criteria

NIL Normal or nearly normal range of movement.

13.     Considering the conclusion reached by Dr Matalani in relation to Mrs Kazan’s range of movement in her neck, I consider an appropriate impairment rating to be nil.

mrs kazan’s depressive condition

14.     Mrs Kazan said she has five children and has too many family responsibilities. She said she has particular trouble with her youngest child. She gets angry and shouts at family and often feels sad.  She doesn’t see people outside her family very much and when she is upset she finds she can’t do anything.  She has been prescribed antidepressant medication and takes half of one tablet each day. 

15.     Dr Hourani described Mrs Kazan as having anxiety and depression and said she had not  been very compliant about taking her medication.

16.     Dr Matalani described Mrs Kazan as suffering from reactive depressive mood with regular symptoms which cause subjective distress with minimal interference with functions in every day situations. Dr Matalani described Mrs Kazan’s symptoms as mild and said exacerbations may cause occasional loss of interest in activities previously enjoyed. Dr Matalani also noted occasional friction with family and friends and that medical therapy or treatment may be required. Dr Matalani assessed Mrs Kazan’s impairment under Table 6 as nil.

17.     The relevant part of Table 6 is as follows:

TABLE 6. PSYCHIATRIC IMPAIRMENT

It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.

Rating Criteria

NIL

Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.

18.     I am satisfied that a nil rating is appropriate to Mrs Kazan’s level of impairment in respect of her depression.

mrs kazan’s shoulder and arm conditions

19.     Mrs Kazan described her right shoulder being more painful than her left but noted that her left shoulder is painful as well. She said she has a limited ability to raise her arms and her hands feel “heavy”. She said that Dr Maxwell has discussed carpal tunnel surgery with her. She noted that the pain in her wrist makes her drop things.

20.     Dr Hourani described painful wrists and hands due to carpal tunnel syndrome. He also described Mrs Kazan’s pain as constant and noted that she experiences numbness at night.

21.     In a report dated 7 September 2004 Dr A Sturjess, Consultant Rheumatologist, noted that Mrs Kazan does not have classical carpal tunnel symptoms and suggested that there may be signs of rotator cuff irritation.

22.     In a report dated 7 June 2004 Dr Maxwell diagnosed carpal tunnel syndrome and noted that Mrs Kazan will eventually require carpal tunnel release. In a report dated 2 August 2004 Dr Maxwell said that carpal tunnel syndrome had been confirmed by nerve conduction studies and he ventured the opinion that the syndrome was causing Mrs Kazan’s arm and neck pain.

23.     Dr Matalani noted no loss of strength in Mrs Kazan’s left arm and hand but did note some numbness and a very mild interference with functioning. Dr Matalani also noted there was no evidence to diagnose any intrinsic abnormality with Mrs Kazan’s left shoulder. On this basis she allocated nil impairment points under Table 3 of the impairment Tables. That Table provides relevantly:

TABLE 3. UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3).

Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating Criteria

NIL

Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVE

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

TEN

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEEN

Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

TWENTY

Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

Unable to use non-dominant upper limb at all.

THIRTY

Unable to use dominant upper limb at all.

24.     Dr Matalani noted that Mrs Kazan’s right hand grip was mildly reduced and that she had numbness and a loss of strength. On this basis Dr Matalani allocated 5 points under Table 3 in respect of Mrs Kazan’s right hand but noted that carpal tunnel syndrome is curable by surgery and for that reason the condition should be regarded as temporary.

25.     I agree that, until the possibility of surgery has been properly investigated, Mrs Kazans’ carpal tunnel syndrome must be regarded as a temporary condition, not yet stabilised and treated. For this reason I consider it should attract an impairment rating of nil until such time as treatment has been fully investigated.

overall impairment rating

26.     During the hearing Mrs Kazan said that her daughter, Batoul, aged 16, had claimed and was granted a carer allowance with Mrs Kazan as the person being cared for by her. The hearing was adjourned so that the Respondent’s advocate could obtain documents relevant to that claim and provide them to the Tribunal. Most important of those documents was a form completed by Dr Maxwell indicating the way he considered Mrs Kazan required care from her daughter. He indicated that Mrs Kazan required assistance with toilet use and minor help with transfer from bed to chair and back. He also indicated that she needs help with dressing and help with claiming stairs. Finally he indicated that Mrs Kazan had great difficulty with the abbreviated mental test.  These observations do not accord with my observation of Mrs Kazan in the hearing and the functional limitations indicated by Dr Maxwell are also not in accord with her evidence to the Tribunal. However, I noted these observations were made in April 2005, almost a year after the claim for DSP that is under consideration in this application. My consideration therefore is not influenced by the assessment made by Dr Maxwell in relation to by Batoul’s carer allowance.

27.     Mrs Kazan’s overall impairment rating is therefore 10 points. This falls short of the 20 points or more required under section 9(4) of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether Mrs Kazan has a continuing inability to work.

decision

28.     The decision under review is affirmed. 

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ............[Linda Blue].......................
  Associate

Dates of Hearing  3 June 2005, 28 September 2005
Date of Decision  18 November 2005
Solicitor for the Respondent     Centrelink, Legal Services