Lim and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 773
•6 November 2012
[2012] AATA 773
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3881
Re
Kah Heng Lim
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 6 November 2012 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether applicant has an impairment rating of 20 or more under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension – Whether any or all of those conditions were fully diagnosed, treated and stabilised – Applicability of Table 20 – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, schedule 1B
Social Security (Administration) Act 1999 (Cth) s 42, schedule 2CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252
SECONDARY MATERIALS
Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension found in the Guide to Social Security Law Version 1.190
REASONS FOR DECISION
Senior Member A K Britton
Ms Kay Lim has applied to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal, to reject her claim for disability support pension (DSP) made in July 2010.
To qualify for DSP Ms Lim must have a physical, intellectual or psychiatric impairment, and an impairment rating of at least 20 points, resulting in a continuing inability to work (s 94 of the Social Security Act 1991 (Cth) (the Act)). Impairment is rated under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension contained in Sch 1B of the Act (the Tables). A rating can only be awarded if a condition is permanent, that is, fully diagnosed, treated and stabilised (Introduction to the Tables, pars [5], [6]).
The claim made by Ms Lim in July 2010, the subject of the decision under review, was made in respect of the following conditions: cervical spondylosis, osteoarthritis of the right knee, diabetes, adenocarcinoma uterus, splenectomy, obstructive sleep apnoea and anxiety and depression. In reviewing the subject decision three key questions must be determined:
Whether any or all of these conditions were fully diagnosed, treated and stabilised?
If so, do they separately or in combination attract an impairment rating of at least 20 points under the Tables?
If so, does that impairment result in a “continuing inability to work”?
Each of these questions must be answered by reference to the 13-week period following the date Ms Lim made her claim, that is, 16 July 2010 to 5 October 2010 (s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth)). In these reasons I will refer to this period as “the claim period”. Any change in Ms Lim’s health after the claim period is irrelevant, “... except insofar as it may cast light on the position at the relevant time”: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252 at 253 per Gyles J.
In September 2011 a decision was made to grant Ms Lim DSP. That decision was made following a diagnosis of a chronic pain disorder made by psychiatrist Dr Geoff McDonald in August 2011. As there was no diagnosis of a chronic pain disorder during the claim period it cannot be taken into account in the assessment of Ms Lim’s July 2010 claim.
Do Ms Lim’s conditions attract a rating of at least 20 points?
Claimed condition 1: neck disorder
Ms Lim’s claim for DSP was accompanied by a pro-forma medical report dated 5 July 2010 prepared by GP, Dr Jessica Bailey. Dr Bailey wrote that “cervical spondylosis with canal stenosis at the C4/5 level” was the condition with the most impact on Ms Lim. There is no issue that that condition was fully diagnosed in the claim period. For present purposes I will assume but not decide that the condition was also fully stabilised and treated.
When assessed at the request of Centrelink in July 2010, job capacity assessors Alicia Gradba and Erin Coughlan recorded that Ms Lim presented with “high pain focus” but was nonetheless able to turn her head to reach her bag and answer her mobile phone without any observable signs of pain. They rated her neck under Table 20 of the Tables and considered a rating of 10 appropriate. A more recent assessment conducted at the request of Centrelink in respect of the subject claim, by exercise psychologist, Mr Colin Brown endorsed that finding.
The Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Guide) explains that Table 20 can be used for miscellaneous conditions, including chronic pain (The Guide, Chapter 22):
Chronic Fatigue or Pain:
[Table 20] may be used to assign an alternative rating in situations where it is considered that assessment under relevant system-specific tables underestimates the level of impairment due to the effects of chronic entrenched pain or fatigue…
Chapter 1 of the Introduction to the Tables goes on to explain:
7. A single medical condition should be assessed on all relevant Tables when that medical condition is causing a separate loss of function in more than one body system. For example, Diabetes Mellitus may need to be assessed using the endocrine (19), exercise tolerance (1), lower limb function (4), renal function (17), skin disorders (18) and visual acuity (13) tables. When using more than one Table for a single medical condition the possibility of double assessment of a single loss of function must be guarded against. For example, it is inappropriate to assess an isolated spinal condition under both the spine table (5) and the lower limb table (4) unless there is a definite secondary neurological deficit in a lower limb or limbs.
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue. [Emphasis added]
Chapter 1 (I) of the Guide elaborates:
1. Chronic Pain:
This situation commonly occurs with painful orthopaedic conditions such as those causing low back pain. In many cases, the use of Table 20 will be considered when the degree of impairment from pain appears to be in excess of what is usually expected for the underlying pathology and a diagnosis of chronic pain disorder or chronic pain syndrome may be applicable. It may also be appropriate to consider using Table 20 instead of individual specific tables if the symptoms of chronic pain are generalised and widespread but somewhat variable in nature (e.g. some rheumatological conditions or other multi-system conditions).
…
…
It is emphasised in Paragraph 8 of the “Introduction” that in choosing to apply a higher impairment rating using Table 20 rather than a system-specific table, the medical assessor must be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Clinical judgement is required to assess that the severity of the impairment is consistent with the available medical evidence. It is recognised that this is often difficult to determine in view of the subjective nature of the symptoms. It is expected that the person’s history, medical reports and overall clinical presentation should consistently indicate the presence of chronic entrenched pain or fatigue. (Refer also to Section (E).)
It follows that Table 20 can only be used where the system-specific table, in this case, Table 5.1 (cervical spine) “underestimates the level of impairment due to the effects of chronic entrenched pain or fatigue” (see the Guide, Assessing Chronic Pain and Fatigue, p 11). To determine that issue the following steps must be taken: (i) make an assessment under the relevant systems specific table, in this case Table 5.1, (ii) make a further assessment under Table 20; and (iii) evaluate whether Table 5.1 underestimates the person’s level of impairment.
Assessment under Table 5.1
Table 5.1 provides:
TABLE 5.1 Cervical spine
Rating Criteria NIL
Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement. TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain. TWENTY Loss of three-quarters of normal range of movement and constant neck pain. THIRTY Loss of almost all movement, or complete ankylosis in position of function and are added together to provide a total work-related impairment.
The range of movement of Ms Lim’s cervical spine was not tested during the July 2010 assessment conducted by Centrelink job capacity assessors. Therefore it is necessary to look at the tests of range of movement carried out before and after the claim period.
In a report dated 10 February 2010, physiotherapist Mr Robert Hopping wrote that Ms Lim had been referred for neck and upper back pain and initially presented with a reduction in the range of movement of her neck of 50 per cent. He wrote that she received a course of physiotherapy treatment and when discharged in January 2010 her condition had “moderately improved” and her range of neck movement had increased to 75 per cent.
Ms Lim was examined at the request of her GP by Dr Mark Arnold a visiting medical officer with the rheumatology clinic at Royal North Shore Hospital in November 2010. He wrote that in the course of the assessment Ms Lim “moved her cervical and lumbar spines through a full range of observed movement”. In his opinion she displayed signs consistent with abnormal illness behaviour and recommended that she attend a pain clinic.
In a report dated 14 January 2011, Dr Bailey under the heading “neck pain” explained how the neck disorder affected Ms Lim’s ability to function:
[Ms Lim can] exhibit full range lumbar and cervical spine with lots of excessive motor activity and grimacing. Difficulty sitting still…
These reports indicate that throughout 2010 and the early part of 2011 Ms Lim had a mild restriction in the range of movement of her neck. At best her neck movement was restricted by about 25 per cent and attracts a rating of five under Table 5.1.
Assessment under Table 20
Table 20 provides:
Rating Criteria NIL Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
…
TEN Mild 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.
…
FIFTEEN Moderate 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. TWENTY More 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. THIRTY Very 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). FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity
Mr Brown in an assessment conducted in April 2012 awarded Ms Lim 10 points under Table 20 as did the assessors who conducted the original assessment in July 2010. The SSAT awarded a rating of 15.
Ms Lim testified that around the time of the claim period she experienced constant and debilitating neck pain and her activities were severely curtailed as a result of that and other health problems. There is no evidence and nor is it suggested that during the claim period she was unable to perform any of the activities of daily living. For example she continued to drive throughout this period and in mid-2011 was certified fit to drive by her GP Dr Kevin Coleman who under the heading “Comments on any condition likely to affect driving” commented “fit 57 yr old. Well controlled diabetes – [osteoarthritis] both knees”
A friend of Ms Lim’s, a retired nurse, testified in these proceedings that when she visited Ms Lim she observed that she was distressed, unable to cope and her home was in disarray. She attributed this to Ms Lim’s ill health including cancer. While I accept that the friend sought to give truthful evidence it was apparent from her testimony that the period about which she testified predated the claim period by some years and is therefore largely irrelevant to the issues that now fall to be determined.
Ms Lim claims that as a consequence of her multiple conditions she restricted the amount of paid work she accepted. Nonetheless throughout the claim period she continued to work as an interpreter and was on the books of three employment agencies.
I find that throughout the claim period Ms Lim experienced moderate symptoms which caused some loss of efficiency in daily activities. Assessed under Table 20 in my opinion Ms Lim’s neck disorder rates 10 points.
Conclusion: applicable table
I have some difficulty with the approach taken by the assessors and the SSAT, of automatically turning to Table 20 to rate Ms Lim’s neck disorder. As noted a diagnosis of chronic pain disorder was not made until after the claim period.
While the evidence reveals a history of neck pain for which Ms Lim had received some treatment I am not persuaded that the chronic pain could be said to have been fully treated. By the end of the claim period Ms Lim had not attended a pain management clinic, which the Secretary contends and I accept, constitutes reasonable treatment (see paragraph [33] of these Reasons).
I am not altogether convinced that Table 5.1 underestimates Ms Lim’s level of impairment. The evaluation exercise required to be undertaken requires more than a simple arithmetic determination of whether Table 20 give a higher rating than the relevant systems-specific table. In my opinion the appropriate table to assess the level of Ms Lim’s impairment is Table 5.1. It follows that a rating of five points applies.
Claimed condition 2: osteoarthritis of the right knee
The parties disagree on whether this condition could be considered permanent for the purpose of the Tables in the claim period.
The Secretary contends that the condition was not fully diagnosed, treated and stabilised within the claim period. He points out that Dr Bailey in her report of 5 July 2010 recommended that Ms Lim be referred to a pain clinic and that recommendation was not implemented until 2011. In addition the Secretary points out that Dr Bailey was of the opinion that an arthroscopy of the right knee was “a treatment option under consideration”. The Secretary also considered it relevant that orthopaedic surgeon Dr Eugene Chung in a report dated 7 June 2012 indicated that a knee replacement might be necessary in the future and recorded that at that time Ms Lim was considering whether to proceed with surgery.
Ms Lim contends that the condition had been fully treated. She points to the long history of receiving physiotherapy with little obvious benefit and undertaking hydrotherapy and massage treatment.
A medical certificate issued by Dr Soon Soo on 10 February 2012 states:
Ms Lim is suffering from osteoarthritis of her knees and has been receiving treatment for her knees since 8/12/09. Consisting of hydrotherapy, physiotherapy, medication, massage and exercises. She is trying to delay having an operation at this stage as advised by Dr Papadimitro (orthopaedic surgeon).
The Tables instruct that in determining whether a condition is fully diagnosed, treated and stabilised, a decision–maker must have regard to (Introduction par [6]):
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.
Reasonable treatment is taken to be (Introduction par [6]):
·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.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
The evidence is inconclusive as to whether an arthroscopy could be said to constitute “reasonable treatment”. There is no evidence before me of the success rate or associated risks involved in that procedure. In contrast many of the experts who have examined Ms Lim over a long period recommended that she attend a pain clinic which suggests that this is a form of treatment which poses a low risk to Ms Lim and is likely to result in some improvement in her condition. Ms Lim’s attendance at a pain clinic in 2011 suggests that such treatment is both feasible and accessible. I find that in the claim period attendance at a pain clinic constituted reasonable treatment.
While Ms Lim had received some treatment for her right knee disorder by the end of the claim period, I could not be satisfied that it had been fully treated. Accordingly an impairment rating cannot be awarded.
Conditions 3, 4 and 5: Diabetes, adenocarcinoma uterus and splenectomy
Dr Bailey’s report of 5 July 2010 suggests that that each of these conditions had been fully diagnosed, treated and stabilised. She was also of the opinion that none impacted on Ms Lim’s ability to function. There is no medical evidence to suggest otherwise.
In my opinion assessed against the relevant table each condition would attract a rating of ni1.
Condition 6: obstructive sleep apnoea
In her report dated 5 July 2010 Dr Bailey listed sleep apnoea as one Ms Lim’s medical conditions that are “generally well managed and that cause little minimal or limited impact on ability to function”. In respect of treatment she wrote “CPAP [Continuous positive airway pressure - a form of breathing therapy]”. Under the heading “impact on ability to function” she wrote, “May provoke fatigue and cardiovascular deterioration if not managed”.
Ms Lim was apparently first diagnosed with obstructive sleep apnoea in February 2010 by Dr Andrew Ng.
Ms Lim disagrees with Dr Bailey’s opinion that her sleep apnoea was fully treated when she prepared her report. Ms Lim claimed that she used the CPAP machine but only for a month because it interfered with her breathing. She claims that she was told by the nurse supervising her use of the machine that her difficulties were attributable to an inflamed nose and recommended that she discontinue treatment until that condition had been treated.
I agree with Ms Lim that her condition was probably not fully treated in the claim period. It follows that it is not possible to award an impairment rating.
Condition 7: anxiety and depression
In her report dated 5 July 2010 Dr Bailey listed anxiety and depression as one of Ms Lim’s medical conditions that are “generally well managed and that cause little minimal or limited impact on ability to function”. It is not altogether clear from the material before me what, if any, treatment Ms Lim was receiving for that condition during the claim period or indeed whether any treatment was required.
Ms Lim was diagnosed as suffering from, and received treatment for, a major depressive episode in 2008. In 2011 she was referred to psychiatrist, Dr Geoff McDonald for an opinion about her four year history of multiple physical symptoms. In a report dated 11 August 2011 Dr McDonald made no mention of any history of depression or anxiety and records that Ms Lim denies being depressed. In his opinion, Ms Lim did not suffer from depression but a chronic pain disorder.
It is unclear on what basis the GP concluded in July 2010 that Ms Lim had a current diagnosis of anxiety and depression. I am not satisfied that during the claim period she suffered from that condition or, if she did, that it could be said to be permanent. It follows that an impairment rating cannot be awarded.
New condition: Left knee
In her application for review of the SSAT’s decision lodged with the AAT in September 2011, Ms Lim gave as the reason for making that application “different decision should be made for my lower limbs (both knees) as my condition was fully diagnosed, treated and stabilised …”
Dr Bailey made no mention in her report of 5 July 2010 of Ms Lim suffering from a left knee problem.
In a hand written note dated 27 September 2010, orthopaedic surgeon Dr Papadimiou referred to Ms Lim having “moderate knee osteoarthritis and degenerate medial meniscus tear”. He believed she was fit to carry out the duties of an interpreter.
It is unclear from Dr Soo’s certificate of 10 February 2012 whether he diagnosed Ms Lim’s left knee osteoarthritis in September 2009 or merely commenced treating her left knee symptoms at that time. In my opinion it is more probable than not that a diagnosis of left knee osteoarthritis was not made until Ms Lim was seen by Dr Papadimiou in September 2010. In reaching that conclusion I note that Dr Bailey made no mention of a left knee disorder in her report prepared in July 2010.
Even if it could be said based on Dr Papadimiou’s report that the osteoarthritis in Ms Lim’s left knee had been fully diagnosed during the claim period, for the reason given in relation to the right knee it could not be said to have been treated and stabilised. It follows that a rating for impairment cannot be awarded.
SUMMARY
Ms Lim does not satisfy one of the criteria for DSP, namely an impairment rating of at least 20 points. Even if I am wrong about Table 5.1 being the appropriate table for the assessment of Ms Lim’s neck disorder, I would arrive at the same conclusion because a rating under the alternate table, Table 20 would not give a total impairment rating of at least 20 points. Given this finding it is unnecessary to decide whether Ms Lim had a continuing incapacity for work. It follows that the decision under review must be affirmed.
I certify that the preceding 49 (forty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
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Associate
Dated 6 November 2012
Date(s) of hearing 27 September 2012 Applicant In person Solicitors for the Respondent Phyllis Lee, Program Litigation and Review Branch, DHS Legal Division
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