Leombruni and Secretary, Department of Family and Community Services

[2004] AATA 15

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/553   

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANGELA LEOMBRUNI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO

Date12 January 2004

PlaceSydney

Decision  The decision under review, that of the SSAT that Mrs Leombruni is not eligible for the DSP, is affirmed.

[Sgd] Rear Admiral A R Horton A O

CATCHWORDS

SOCIAL SECURITY – disability support pension – review of SSAT decision – work related physical impairments – impairments assessed at 15 points – provision of section 94(1)(b) of the Act not met – inability to undertake full-time work in next two years or undertake educational or vocational training not assessed – decision affirmed that Applicant not eligible for disability support pension.

Social Security Act 1991 – section 94, schedule 1B

Social Security (Administration) Act 1999 – schedule 2 part 2

REASONS FOR DECISION

12 January 2004 REAR ADMIRAL A R HORTON AO        

1.      This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 11 March 2003 that affirmed a decision of an authorised review officer (“ARO”) of Centrelink that Mrs Angela Leombruni is not eligible for the disability support pension (“DSP”).

2.      At a hearing before the Administrative Appeals Tribunal on 24 November 2003, Mrs Leombruni was self represented.  Mr L Carter, an advocate from the Administrative Law section of Centrelink, appeared for the Secretary, Department of Family and Community Services (“the Respondent”). 

3.      The Tribunal took into evidence the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and reports from Dr N Marinucci undated (Exhibit A1), and Dr M Guirgis of 27 August 2003 (Exhibit R2) and 22 October 2003 (Exhibit R3).

BACKGROUND

4.        Mrs Leombruni lodged a claim for DSP on 25 January 2002, citing conditions of osteoarthritis, cervical spondylosis and chronic lumbar back.  An accompanying Treating Doctors Report (“TDR”) by Dr Marinucci, her General Practitioner since 1986, diagnosed long term conditions of cervical and lumbar spondyloses and fibromyalgia.  He assessed that anticipated time off from work (four or more days per month), some difficulty in alternating between tasks, and an inability to lift heavy objects would preclude a return to any type of work for more than two years. 

5.        Dr R Jones of Health Services Australia (“HSA”) examined Mrs Leombruni for the Respondent.  He agreed with the diagnoses, but considered those conditions would not prevent her returning to work, the range of movement of the cervical and lumbar spines being normal and fibromyalgia being generally related to heavy activity, which could result in some loss of efficiency.  Based on the impairment rating assessed by Dr Jones, Centrelink rejected the DSP claim on 19 February 2002.

LEGISLATION

6. The issue before the Tribunal is whether Mrs Leombruni satisfies the criteria at section 94 of the Social Security Act 1991 (“the Act”). Such criteria must be satisfied within a period of 13 weeks from the day the claim is made via Schedule 2 Part 2 of the Social Security (Administration) Act 1999. At the outset, the Respondent conceded that Mrs Leombruni had the physical impairments referred to by Dr Marinucci and Dr Jones, and thus met the provisions of section 94(1)(a) of the Act.

7. The issues before the Tribunal are then whether such impairments have a combined impairment rating of 20 points or more under the work-related Impairment Tables at Schedule 1B of the Act, thus satisfying section 94(1)(b) of the Act, and if so, whether she has a continuing inability to work, resulting solely from those impairments, or to undertake training, as required by section 94(1)(c) and further defined in sections 94(2) and 94(3).

EVIDENCE      

8.        Mrs Leombruni migrated to Australia from Italy in about 1963, and completed school to year 8 (about 15 years of age).  Some time later, she attended secretarial college for about a year, and then worked for Mercantile Mutual before taking a redundancy package in 1981.  She has not worked since nor applied for any position.  Cessation of work coincided with a desire by her husband to have children, and a daughter was born in 1985.  Her medical problems started soon after the birth, initially in the neck, the right arm and shoulders.   She is separated from her husband.

9.        Mrs Leombruni described pain at the time the claim was lodged as being in the neck, shoulders, both arms but more so in the right, when sitting, and in the left leg.  Her neck pain is constant, and more pronounced when driving, which is accordingly restricted to about 30 minutes.  She cannot turn her head rapidly.  In evidence to the SSAT, she described severe headaches due to the neck pain, but such evidence was not given to the Tribunal.  She takes analgesic medication daily.   Dr Marinucci referred to Vioxx in respect of the cervical and lumbar spine conditions, and the SSAT notes evidence from Mrs Leombruni that she gained relief from that medication;  in evidence to the Tribunal however, Mrs Leombruni said that Vioxx was of little help.  She has tried oils but they do not help.

10.      The pain in the shoulders is more pronounced when she bends her head forward, and she is unable to move her right arm behind her back above the waist area, thus restricting her dressing.   She described the left arm as sore.  Her whole body is effected by pain when sitting.  She believes a nerve gets inflamed or is pinched at times leading to chronic pain.  She considers the pain in her whole body gets worse each year.  She attends physiotherapy on occasions when the pain is particularly severe.  When an “attack” (of pain) occurs, she must sit or lie down, or go to her parents for rest.   Her energy levels vary, being “down” on some days, and her sleep is often disturbed.  Periodically, such as at the hearing, she has an irritation of the eye, which she ascribes to nerves.

11.   She is able to look after herself and the home, but is restricted in her ability to undertake some household chores, particularly where lifting is involved. Her daughter helps her with household duties and shopping, but she does most of the cooking and food preparation.   She walks for about 30 minutes three times a week.  Until her daughter finished secondary school in recent weeks, she has driven her to school each day, often visiting her parents thereafter.  She reads and watches television, but has little social life.  

12.      Mrs Leombruni believes her arthritic condition and pain would severely impact on her ability to return to work.  She does not feel that any management would accept an employee that was frequently absent because of medical conditions.  She does not consider that she could cope with a position that required standing or sitting for long periods, and she also considered her previous secretarial skills to be inadequate to meet current requirements;  she described her computer skills as very limited.   In response to the Respondent, she stated that her condition had deteriorated since the claim was lodged in 2002;  in response to a similar question from the Tribunal, she said her condition now was “about the same as last year”.   

MEDICAL EVIDENCE

13.      Mrs Leombruni opined that the opinion of Dr Jones was based on Xrays (and his examination) only.  Subsequently, bone mineral density and CT scans and an electromyograph investigation were conducted at the request of Dr G Mahony, Orthopaedic Surgeon, who had examined Mrs Leombruni on 29 April 2002.  Respectively, those revealed no significant osteoarthritis or fracture risk, slight to moderate degenerative changes in the cervical and lumbar spines, and evidence of an early median neuropathy of the right wrist.

14.      Based primarily on those reports, the history given by Mrs Leombruni and his review on six occasions, Dr Mahony opined on 18 November 2002 that she was unfit for work in respect of each of the claimed conditions.   The difficulty the Tribunal has with his report is that whilst there is consistency in his recording symptoms after each review, the report of each review is repetitive.  Consequently, the extent of any examination on each occasion cannot be determined.  Further, whilst Dr Mahony states on six occasions that Mrs Leombruni is unfit for work (one in respect of the electromyograph report being for three months only), these opinions are not supported by explanation and/or suggested impairment assessments, and seemingly are based primarily on the symptoms as described by Mrs Leombruni.  The findings of Dr Mahony in respect of the cervical and lumbar conditions are at variance with those of Dr Jones of HSA in that the former assessed lateral flexion in both cases as being restricted to about “one half normal”, (albeit all other movements were within normal limits) whereas the latter found no evidence of restriction of movement. 

15.      Dr M Guirgis, Consultant Orthopaedic Surgeon, carried out an examination on 15 August 2003 (Exhibit A2), that is some 20 months after the claim was lodged and 17 months outside the eligible 13 week period in which the criteria must be satisfied.     Whilst this later report of examination can be considered in the context of contributing to the understanding of medical conditions, the extent of its use is questionable given that Mrs Leombruni stated at one point in the hearing that her condition had deteriorated since the claim was lodged.  Dr Guirgis reports a restriction of movement of the cervical spine as 35% and of the lumbar spine as 30%, with muscle spasm exceeding those ranges, which is a more significant disability than that reported by Dr Mahony and of course, Dr Jones.  Dr Guirgis also  found some restriction in the right shoulder movement and demonstrable evidence of loss of strength, mobility and dexterity of the dominant upper limb, but gave no impairment rating to this condition.

CONSIDERATION

16. Whilst medical reports variously refer to right shoulder and left lower limb symptoms or complaints, these are subsumed in the cervical spine, sacro-lumbar and fibromyalgia conditions which have been accepted by all the medical practitioners whose reports are before the Tribunal. Accordingly the Tribunal finds that these conditions meet the criteria for physical impairment pursuant to section 94(1)(a) of the Act.

17. Cervical spine conditions are rated under table 5.1 of the Impairment tables at Schedule 1B of the Act. The Respondent submitted that an assessment of nil points was appropriate based on the report by Dr Jones, that is the range of movement is normal or nearly normal, and this assessment could be supported by the absence of significant adverse pathological findings. Dr Mahony reports that lateral flexion is half the normal range but other movements were within normal range; Dr Guirgis goes much further but regard must be had to the fact that his report is well outside the relevant assessment period. The cervical CT scan by Dr Mander-Jones on 1 May 2002 notes the main finding as right posterior spondylitic disc lesions but is otherwise unremarkable, referring to slight to moderate degenerate changes. The oral evidence of Mrs Leombruni emphasised restriction in movement of the neck when sitting and driving, and in the flexibility of the right shoulder. Her evidence was that she drives daily. Before the Tribunal there was no evident restrictions of her head and neck movement. On balance, and considering the circumstances of the assessment period, the Tribunal finds that Mrs Leombruni has a normal or near normal range of movement and hence a rating of 0 points is appropriate.

18.      Lumbar spine condition is rated under Table 5.2.  Dr Jones assessed the range of movement as normal.  There are no significant adverse pathological findings (viz report of Dr Mander-Jones).   On the other hand Drs Mahony and Guirgis found restrictions in movement.  The evidence as to the restrictions in movement and activities given by Mrs Leombruni is less specific and supportive of any significant loss of range of movement and the Tribunal finds that the range of movement is normal or nearly normal and that a rating of 0 points is appropriate.

19.      Much of the evidence before the Tribunal is in respect of pain, be it in the whole body as claimed, or in respect of the neck, shoulder, back, leg, knee or feet.  Mrs Leombruni referred to constant neck pain, that at times her whole body was effected by pain, that she suffered fatigue and at times “she felt like an old lady and that it was hard to get out of bed”.  For this pain she took medication every day.   Her pain led her at times to lie down or stay for brief periods with her parents.  Somewhat in contradiction, she has driven her daughter to school every day.  She can drive for some 30 to 60 minutes before having to rest.  She lives independently, but cannot undertake all household tasks. 

20.      In accordance with the instructions for the use of the Impairment Tables, Table 20 can be used in addition to Table 5 to address chronic fatigue and pain, and rating criteria is described thus:

“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.

FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence 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 will still be possible.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many every day 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

21.      At best, a 15 point impairment rating is appropriate.  Mrs Leombruni can evidently carry out many every day tasks without difficulty.  She drives her daughter to school each morning, and can drive for reasonable periods.  She cares for herself, and whilst she spoke of periods of fatigue, these were not specifically related to “simple tasks” as defined under the twenty point criteria.   She can and does shop, albeit she is restricted in her ability to carry heavy bags. 

22. The Tribunal finds that Mrs Leombruni has a combined impairment rating of 15 points and hence does not meet the criteria pursuant to section 94(1)(b) of the Act. Accordingly, she is not eligible for the DSP.

23. Section 94(1)(b) not having been met, the Tribunal does not need to consider the “continuing inability to work:” clause pursuant to section 94(1)(c), but makes some observation in this regard. Mrs Leombruni last worked in 1981, when she accepted redundancy. Shortly thereafter she gave birth to a daughter. She had attended secretarial college for one year, and then worked in an office environment. In evidence to the Tribunal she was adamant that she could not return to the work force because of her medical conditions, and no organisation would accept the absences that would inevitably arise. Nor could she undertake employment where she might have to stand and/or sit for long periods. Whilst the chronic pain is undoubtedly a factor, and certainly more so than any cervical or lumbar disabilities, it seemed to the Tribunal that Mrs Leombruni has no wish to consider that she might well be able to undertake satisfactory employment in an appropriate environment.

24.      The decision under review, that of the SSAT that Mrs Leombruni is not eligible for the DSP, is affirmed.          

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Neil Glaser
  Associate

Date of Hearing  24 November 2003
Date of Decision  12 January 2004
Counsel for the Applicant         Angela Leombruni
Counsel for the Respondent     Luke Carter