Lofaro and Secretary, Department of Family and Community Services
[2005] AATA 484
•4 May 2005
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2005] AATA 484
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1611
| GENERAL ADMINISTRATION DIVISION | ) | ||
| Re | VICKY LOFARO | ||
Applicant
| And | SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
WRITTEN REASONS FOR ORAL DECISION
| Tribunal | Senior Member, Mrs Josephine Kelly |
Date of Written Reasons for Oral Decision 27 May 2005
Date of Decision 4 May 2005
Place Sydney
Decision
The reviewable decision, being the decision of the Social Security Appeal Tribunal of 17 November 2004, is affirmed.
[sgd] Senior Member. Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairment of twenty points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 sections 94(1)(a), 94(1)(b), 94(1)(c) and Schedule 1B
Social Security Administration Act 1999, Schedule 2, Part 2,
WRITTEN REASONS
At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:
Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
..................................................................................……………………………….
Associate
Date of Hearing 3 May 2005
Date of Decision 4 May 2005
Applicant Representative Self Represented
Advocate for Respondent Luke Carter
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
This is my decision in the matter of Vicky Lofaro and Secretary, Department of Family and Community Services, proceedings number N2004/1611.
Mrs Lofaro is seeking review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 17 November 2004 which affirmed Centrelink's rejection of her claim for disability support pension (“DSP”), lodged on 9 February 2004. (T18)
The Issues
The issues are whether Mrs Lofaro's impairment is assessed at 20 points or more pursuant to section 94(1)(b) of the Social Security Act 1991, (“the Act”) and if so, whether she has a continuing inability to work or be re-trained because of her impairment in accordance with section 94(1)(c) of the Act.
Background
The following is not in dispute, Mrs Lofaro has had little formal education, her education is the equivalent of about year 6. In 1986 she suffered an injury to her lower back while working. She received compensation for that injury, ceased work and had a child. In 1999 she suffered an injury to her thoraco spine while working as a casual room attendant at a hotel in Sydney (T15). She returned to work on light duties but eventually ceased work in 2000 following a court case when she was awarded compensation. There was a 16-month preclusion period following her receipt of compensation which lapsed in about 2002.
Mrs Lofaro's Evidence
I asked Mrs Lofaro to tell me the parts of her body which caused her problems. She listed neck, upper back, shoulders and right hand which she related to one another, lower back, knees, feet, depression, headaches and migraine and ulcer. I tried to elicit as much detail as possible from her about each of her complaints and how it restricted her activities. The following is a summary of her evidence.
Neck: She cannot twist it much, she suffers pain 24 hours a day and takes two Panadol every four to five hours and inflammation tablets.
Upper back, shoulders and right hand: She is always in pain and takes the medications previously set out. She does a little but not much. She is helped by her husband, 17-year-old son and married daughter. Her husband suffered an accident to his back which required an operation and he is not working. Mrs Lofaro has pain in her shoulders. She described the pain across the top of her shoulder and running down the outside of her arm to her elbow and she has this all the time. She takes the medication described above. She drops things, for example, a cup of tea. She cannot lift anything heavy, for example, bags of shopping and has no strength. She avoids doing such things. The problem with her hands, with my emphasis for the plural, has become apparent during the last couple of years. She referred to x-rays which show a couple of damaged discs, and said that her movements are limited, some days she has to stay in bed all day because of her upper back and lower back, and that occurs once or twice a fortnight, depending on how the pain is.
Lower back: Mrs Lofaro has pain in her lower back 24 hours a day and has had since her 1999 injury. She referred to there being damaged discs and a torn part in her lower back. She cannot bend at all. She had tried different medications and seen different specialists and nothing can be done for her lower or upper back.
Knees and Feet: Mrs Lofaro suffers pain in her knees and her feet and has a problem walking. She says that she has arthritis, as well as spurs in her feet. She had injections a few years ago which provided relief but the pain came back at some time she cannot nominate.
Depression: She has suffered from depression for six months.
Headaches and Migraine: Mrs Lofaro said that she has suffered headaches and migraine for three years. She says she forgets things and that she forgot to tell Centrelink about these problems. She takes migraine tablets that she purchases over the counter. Her head splits when she has a migraine which she gets every couple of days.
Ulcer: She has suffered from reflux for years. The severity depends on what she eats and tablets that she takes but which she could not name.
Activities: Mrs Lofaro cooks, but prepares quick meals. She uses frozen prepared vegetables. She sometimes prepares a casserole or a roast which she cooks in a bench top oven. She is unable to clean a conventional oven. She is able to sit down for an hour or so while those meals cook. In the case of a roast she puts the meat on a plate on the table and each person cuts slices for themselves. Her son usually loads the dishwasher. She can shower herself but cannot reach behind her back and for this she uses a long-handled brush. She cannot bend down because of her lower back. She dresses herself while sitting on her bed. She can do up zippers and buttons.
She described her activities in the day: She gets up, showers, dresses and her husband might get her breakfast which she eats in a dining‑room. She might sit and watch television, using a cushion to support her back, or go for a walk around the block for half-an-hour, although she says she would stop from time to time. She might go shopping with her husband who drives. They walk around for a couple of hours but rest every half-hour. She rests when she returns home, either lying down or sitting in a chair. Following dinner at about 6pm, she sits watching television for a couple of hours and goes to bed at 8 or 9pm.
Apart from watching television she also reads. She goes to bingo once a week for three or four hours and during that time she gets up and walks around from time to time. Occasionally she visits friends. Her only involvement in washing is to hang out small items of clothing on a verandah. She does not iron unless she is desperate and she says that she has few clothes that require ironing. She does not do much cleaning which seems to be done mostly by her son. She sometimes mops. She and her husband make their bed together.
In cross-examination Mrs Lofaro said that medication provides some relief but that the pain comes back and nothing helps. She uses a TENS machine that she was given following her 1999 accident. She has tried physiotherapy and hydrotherapy but they did not work. She goes shopping once or twice a week. Her husband received a compensation payment in 2001 and, as I said, he is off work and is therefore able to drive her shopping and help around the house.
She emphasised that she is in severe pain 24 hours seven days a week. She does not think she can work. She is not a lazy person she says and not a dole bludger. Following her 1999 accident she tried duties in the public area and canteen of the hotel but that did not work out. She does not think she could catch a bus or train to go to work.
I found Mrs Lofaro's evidence exaggerated and therefore, unreliable. I do not accept that she suffers and has restrictions to the extent that she described. I therefore turn to the other evidence.
Medical Evidence
The following is a summary of medical evidence and imaging evidence of the T documents and otherwise provided or tendered into evidence. At 5 September 1986 which is the time of her first work accident to her lower back, a CT scan showed the L4/5 minimal posterior bulging of the disc, but no evidence of compression of the thecal sack or nerve roots and no evidence of canal stenosis. At the L5/S1 level there was moderately large posterior disc protrusion in the mid-line - directly abutts thecal sac however, only mild compressive effect is demonstrated.
Following her 1999 accident further medical reports and imaging reports appear. On 14 October 1999, Dr Singh reports to Mrs Lofaro's solicitors about her back injury to her right-mid back and right chest (T7) because of the injury suffered while she was doing the beds at work. Dr Singh reports that two sets of x-rays were undertaken which were negative for fractures of dislocations. The doctor diagnosed a sprain injury and conservative treatment was followed by him and Dr Rosenberg, an orthopaedic surgeon. On 5 November 1999 there was a bone density study which is not of great assistance to me without some further explanation, that is T8. On 18 November 1999 Dr Evans, an orthopaedic surgeon wrote to Mrs Lofaro's solicitors about her thoracic spine, he noted complaints that the pain had worsened. Dr Evans reports that there had been no previous injuries although he noted there was lower back damage in 1986 and importantly noted that the back pain from this had subsided and that she no longer has low back pain from 1986.
He also said that the thoracic spine pain was an aggravation of a pre-existing degenerative condition and he had the advantage of looking at some imaging. He assessed a 15 per cent permanent impairment although he said it was maybe too early after the accident for that to be conclusive. At that stage Mrs Lofaro did not complain of any leg pain to the doctor. On 21 March 2000 there is a Radiologist Report.(T10) This document contains reports including a x-ray cervical spine, CT scan and a CT scan of the thoracic spine. There was noted to be spondylitic change with right antero-lateral osteophytes involving the mid thoracic vertebral bodies.
There are also two reports of Dr Maniam to Dr Singh and also to Mrs Lofaro's solicitors.(T11 and T12.) One of them assesses a permanent impairment of the neck of 15 per cent and an impairment of 15 per cent of the back. I note that that is under the compensation tables not under the tables relevant to this application. There is also a substantive report from Dr Maniam on 27 March 2000 that goes through in some detail the history of her injury, looks at various imaging reports and the bone scan report and notes:
“No surgical operations will be performed and this lady will continue with the above-mentioned conservative measures.”
These conservative measures included physiotherapy, hydrotherapy, weight loss and analgesics and anti-inflammatory medication.
He notes that Mrs Lofaro returned to light duties and that she was going through a rehabilitation program at that stage, that is before she finished work, as I have already referred to. He says:
”On the balance it would seem that she will not be able to complete her work for the full period until retirement, there may be constraints and there will be deterioration and this will eventually force her out of the work-force.”
Dr Maniam imposed restrictions in relation to repetitive bending, avoiding lifting weights of more than 5 kilograms, avoided pushing and pulling to avoid working in confined spaces. He said:
”This lady’s partial incapacity will continue on an indefinite basis.”
He also says that:
“From time to time when her symptoms exacerbate she will need to take time off from work.”
However, I note that that Dr Maniam implicitly accepted the complaints of pain that Mrs Lofaro was making.
There was a further injury report of 7 July 2000 at T13, I do not go through the details of that, another one at T16.
There are also reports tendered. These are exhibits A2 and A3, A2 is dated 15 March 2005, it is some sort of imaging report by Dr Patrick Gill, of both feet and right hand, it notes:
“There is prominent bi-lateral planter calcaneal spurring with no associated soft tissue calcification seen. Medial sesamoid beneath head of left first metatarsal seemed to be bi-partite, no further bone or joint abnormality was seen on either foot. Right hand: no bone, joint or soft tissue abnormality was seen in the hand or carpal region.”
There is another magnetic resonance MRI report addressed to Dr Maniam dated 23 February 2005 which is exhibit A3 and in summary, the conclusion:
“There is early and I emphasise early degenerative disc disease at multiple levels. There is possible early minor compression of the exiting right L5 nerve root. There is also evidence of an annular tear at L45.”
I note that imaging of various kinds does not assist me without expert medical opinion based on review of the imaging and examination with a history taken from Mrs Lofaro. That there may be degenerative disc disease does not establish that in fact the symptoms of which Mrs Lofaro complains are as severe or as limiting as she maintains.
As previously noted, Mrs Lofaro lodged her application for DSP on 9 February 2004 which is document T18. Importantly Dr Singh, Mrs Lofaro's general practitioner for about 20 years, provided a treating doctor's report to the respondent on 16 February 2004. He diagnosed back pain and a cervical spondylitis and indicated that these conditions would persist for at least the next two years. That is document T17. At that time Dr Singh provided no assessment of impairment as he was not required to.
A more recent report of Dr Singh's dated 29 March 2005 became exhibit A1 in these proceedings. In that report the doctor refers to persistent lower back and cervical pain but also includes pains in the thoraco spine, associated headaches and dizziness, painful feet, migraine headaches, chronic gastritis and reflux disease, chronic bronchitis and asthma and bouts of depression. He assessed Mrs Lofaro's disability as;
1. Mid-dorsal spine or thoraco-lumbar spine - 10 points
2. Lumbar sacral spine - 10 points
3. Cervical spine - 5 points
4. Hands and feet - 5 points
5. Chronic illnesses which included what I have already set out, that is, migraine headaches, chronic gastritis and reflux disease, chronic bronchitis and asthma, bouts of depression - 5 points.
Before proceeding I should note that there was no evidence given by Mrs Lofaro about chronic bronchitis and asthma. I also note that while Dr Singh has referred to dizziness associated with her neck pain, that Mrs Lofaro gave no evidence of that during these proceedings.
On 5 March 2004 a work capacity participation assessment report was obtained from a Mr B.Laybutt of Advanced Personnel Management (“APM”) (T19). On the basis of his examination and interview with Mrs Lofaro he allocated 10 points under table 5.2 for Mrs Lofaro's back pain or back and 5 points under table 5.1 for her neck pain. Mr Laybutt found Mrs Lofaro would be fit to work 30 hours per week with the appropriate intervention, such as vocational rehabilitation and re‑training.
On 19 July 2004 another work capacity participation assessment report was prepared by Renelle of APM (T23). She assessed the neck according to table 5.1 at 5 points and the back according to table 5.2 as 10 points.
On 6 September 2004 an authorised review officer affirmed the decision under review but altered the finding in relation to the assessment of the lumbar spine from 10 to 5 points.
The Law
In accordance with Schedule 2, Part 2, Clause 4 of the Social Security Administration Act 1999, Mrs Lofaro must be qualified for DSP at the date of claim or become qualified within 13 weeks thereafter. The relevant period under consideration in this review is therefore, the period from 9 February 2004 to 9 May 2004. There is no dispute that Mrs Lofaro satisfies the requirements for section 94(1)(a) of the Act and that she does have an impairment.
The respondent contends that she fails to satisfy the requirements of section 94(1)(b). It is this, that the appropriate tables for Mrs Lofaro's cervical spine and lumbar spine conditions are Tables 5.1 and 5.2 respectively. I agree those are the correct tables. I accept the rating determined by the APM which assesses for loss of one-quarter of the normal range of movement of the cervical spine, that is Table 5.1 which is an assessment of 5 points. In relation to the spine, I accept that Table 5.2 is correct and for a loss of a quarter of a normal range found by the assessors, 5 points not 10 should be attributed as the ARO and SSAT determined.
As to the other conditions, Mrs Lofaro listed and described and those conditions referred to by Dr Singh, I am unable to assign an impairment rating to them. With respect to Dr Singh's ratings, he does not identify tables which he has used. He provides ratings of 10 for each of the Lumbar sacral and Thoraco lumbar spine. This in my view is inconsistent with the requirements of table 5.2 which says:
Thoraco-Lumbar-Sacral Spine: As spine mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and not intended to measure mobility of individual spinal segments.
It is also significant that Dr Singh referred to Lumbar Disc Lesion and Cervical Spondylitis in his treating doctor report in February of 2004 (T17) and none of the other conditions he refers to in his later report, curiously including the thoraco spinal area. Further, he has used categories, hands and feet and chronic illnesses, as listed above which do not accord with tables that must be used.
Finally, I have inadequate medical evidence about the conditions hands and feet and chronic illnesses as listed above, I cannot assign an impairment rating unless there has been a comprehensive history and examination. Under the Social Security Act 1991, Schedule B Tables for Assessment of Work-Related Impairment for disability support pension in the Introduction at number 4 it states:
A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned, the condition must be fully documented, diagnosed condition which has been investigated, treated and stabilised.
The evidence I have which included Dr Singh's report, exhibit A1 is not sufficient and not persuasive. I infer that Dr Singh accepts the complaints Mrs Lofaro makes which I do not. I have an imaging report about the sacral spurs and evidence of Mrs Lofaro's evidence of pain and restriction of walking and that she had injections on one occasion, several years ago. However, that is not sufficient and I simply have insufficient evidence in relation to the other matters comprehensively included by Dr Singh.
Accordingly I am not in a position to assign any points for impairment in relation to those conditions. Accordingly, Mrs Lofaro has a combined impairment rating of 10 points and does not satisfy section 94(1)(b) of the Act, therefore failing to qualify for DSP.
Decision
The decision of the SSAT is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
Associate
Date/s of Hearing 3 May 2005
Date of Decision 4 May 2005
Applicant’s Representative Self - Represented
Advocate for the Respondent Luke Carter
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