Lord and Secretary, Department of Social Services (Social services second review)

[2018] AATA 118

Lord and Secretary, Department of Social Services (Social services second review) [2018] AATA 118 (6 February 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6441

Re:Heather Lord

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:6 February 2018

Place:Sydney

The decision under review is affirmed.

......................[sgd]..................................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment tables – whether impairment is rated 20 points or more under the Impairment Tables – upper limb condition – lower limb condition – complex regional pain syndrome – decision affirmed

LEGISLATION

Social Security Act 1994 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

6 February 2018

1. Ms Lord, who is now 58 years old, had been receiving Disability Support Pension (DSP) since September 2008. She had qualified for DSP under the Social Security Act 1991 (the Act) when an earlier version of the Impairment Tables was in force.

2. On 12 September 2015 Ms Lord submitted a Medical Report – Disability Support Pension Review Form. Dr M Salauddin, Ms Lord’s general practitioner (GP), completed section B of the Medical Report and listed several medical conditions which had a significant impact on Ms Lord’s ability to function. The conditions that had most impact were noted to be “advanced osteoarthritis of both hands” and “advanced osteoarthritis both knees”. Various other conditions were noted to be generally well managed and caused minimal or limited impact on ability to function.

3. Ms Lord’s impairment was assessed under the current Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which was introduced on 6^th December 2011 and found to have an impairment rating of less than 20 points under the current Impairment Tables.

4. On the 14 June 2016 Centrelink cancelled Ms Lord’s DSP.

5. The decision to cancel Ms Lord’s DSP was affirmed by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) in a decision dated 10 November 2016. AAT1 decided that Ms Lord had a total rating of 10 points under Impairment Table 2.

6. In these proceedings Ms Lord seeks review of the AAT1 decision.

7. At the hearing on 16 January 2018, Ms Lord was represented by a Legal Aid solicitor and was able to give oral evidence. Dr Salauddin also attended the hearing by telephone and gave oral evidence.

   ISSUES

8. DSP is defined as a social security payment in s 23 of the Act.

9. Section 80 of the Social Security (Administration) Act1999 (the Administration Act) provides:

   (1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

10. Section 117 of the Administration Act provides that an adverse determination means a determination under sections 79, 80, 81, 81A or 82.

11. Section 118 (1) of the Administration Act provides that

    (1)The day on which an adverse determination takes effect in relation to a          social security payment is worked out:

    (b)in the case of carer payment—in accordance with this section and section 120; and

    (c)in the case of any other social security payment—in accordance with this section.

12. Section 118 (13) provides for DSP as follows:

    (13)In any other case, an adverse determination takes effect:

    (a)on the day on which it is made; or

    (b)if a later day is specified in the determination, on that day.

13. As the decision to cancel Ms Lord’s DSP was an adverse determination within the meaning of s 117 of the Administration Act, Ms Lord she had to satisfy the requirements of s 94 of the Act as at the date of cancellation of her DSP, that is, 14 June 2016. 

14. Section 94(1) of the Act provides that a person is qualified for DSP if:

    ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

    ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

    ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

15. The Respondent concedes, and the Tribunal accepts, that Ms Lord suffered medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act.

16. At the hearing, it was agreed that, for present purposes, the relevant medical conditions were an upper limb condition, “advanced osteoarthritis of both hands”, a lower limb condition “advanced osteoarthritis of both knees” and “Chronic Regional Pain Syndrome”. 

17. The Impairment Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

18. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

19. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

20. The Respondent contends that, at the date of cancellation, the upper limb condition was  permanent for the purposes of the Impairment Determination and that a rating of 5 points  under Table 2 can be assigned.

21. The Respondent contends that, at the date of cancellation the lower limb condition was permanent for the purposes of the Impairment Determination, but was not fully treated and stabilised and therefore a rating under the impairment Tables cannot be assigned.

22. The Respondent contends that at the date of cancellation the “Complex Regional Pain Syndrome” was not fully diagnosed, not fully treated and not fully stabilised and, therefore, a rating under the Impairment Tables cannot be assigned.

23. Ms Lord contends that, at the date of cancellation her total rating under the Impairment Tables should have been 40 points with 10 points under Table 2, 10 points under Table 3 and 20 points under Table 1.

24. Therefore, the definitive issue in this matter is whether, at the date of cancellation, Ms Lord’s impairment was 20 points or more under the Impairment Tables and if so whether she had a continuing inability to work.

    LEFT UPPER LIMB CONDITION

25. It is agreed that, at the date of cancellation, Ms Lord’s condition of “osteoarthritis of both hands” was permanent for the purposes of the Impairment Determination.

26. Ms Lord claims that, at that time, the condition had a moderate impact on activities using hands and arms and her oral evidence tends to support her claim.

27. In August 2006 Ms Lord suffered an injury to her right hand as a result of a dog bite.

28. In a letter dated 8 February 2008 Dr Scougall, hand surgeon, noted that Ms Lord reported right hand pain with various activities including “grasping using keys and turning door handles”. Dr Scougall diagnosed “Irritable scar 1^st web right hand. Basal thumb joint osteoarthritis” and commented that the “described symptoms seem to relate more to the scar than the arthritis”.

29. In a letter dated 20 March 2008 Dr Scougall noted that “There is a tender scar over the base of the thumb metacarpal. There is mild thumb carpometacarpal joint arthritis” and again commented that the described symptoms appear to relate to “a sensitive scar.”

30. A regional bone scan performed on 13 July 2009 confirmed “advanced inflammatory osteoarthritis” in the right hand and “moderately advanced arthritis” in the left hand.

31. In February 2012 X-rays confirmed moderately severe changes of “erosive osteoarthritis” of both hands. 

32. In his medical report in December 2015, Dr Salauddin listed “advanced osteo arthritis of both hands” as the condition with most impact and described impact on ability to function as “impacting on activities of daily living” but provided no other details.

33. In a Job Capacity Assessment Report submitted on 15 March 2016, he assessor stated, inter alia as follows:

    Mrs Lord can manage daily activities requiring the use of hands and arms, but has some difficulty with the following:

    …picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag) Mrs Lord reported that she struggles to pick up heavier objects with her hands due to her decreased strength and movement in her fingers…she reported that she is able to carry items in her left hand such as a 5L bottle of weed spray when she sprays the weeds on the far…also reported she has modified he way of using her tools on the farm such as cutting wire when fixing the fences...doing up buttons…tries to wear clothing without buttons and has trouble doing up bras...

34. At the hearing Ms Lord disputed the reference to the 5L bottle. She stated that she was unable to lift such a bottle and would arrange for a friend to fill and place the bottle on her ride-on mower so that she could ride around the farm steering with her left hand and spraying the weeds with her right hand.

35. Ms Lord also told the Tribunal that she is right handed and has difficulty with writing, is able to use a computer by typing with both little fingers, has difficulty in opening food packaging and is unable to chop or prepare vegetables.

36. In a brief letter to the Department of Human Services dated 4 July 2016, Dr Salauddin provided a list Ms Lords’s medical problems which included “advanced osteoarthritis of both hands, limiting grip, having limited use of hands”.

37. In a basic rights report dated 26 August 2016, Dr Salauddin states that Ms Lord had “very limited dexterity due to OA in hands”, cannot “write/turn pages/ type” and had “extreme difficulty with self- care activities – grooming/dressing”.

    Consideration 

38. The corroborative medical evidence with respect to Ms Lord’s upper limb impairment can best be described as somewhat limited and lacking in detail. However, as “osteoarthritis” is well known to be a progressive degenerative disease together with the objective X-ray evidence which demonstrates longstanding relatively severe changes in both hands, I am satisfied that there is sufficient evidence to support a conclusion that, at the date of cancellation, there was a moderate functional impact on Ms Lord’s activities using hands and arms.

39. Therefore, a rating of 10 points under Impairment Table 2 can be applied.

    LOWER LIMB FUNCTION

40. Ms Lord claims that, at the date of cancellation, she suffered significant limitation in her mobility, particularly walking.  She stated that her home had been modified to cater for her needs and that her furniture had been arranged so that she can use it to move around the house. At other times she needs to use a walking aid. Outside the house she uses a ride-on mower to get around her farm. She is able to drive an automatic car but prefers to limit her driving to relatively short distances.

41. It is agreed that Ms Lord had been diagnosed as suffering “advanced osteoarthritis of both knees” and as a result of this condition, in June 2015, underwent treatment with bilateral knee replacement.

42. In a letter dated 3 August 2015 Dr Bhimani, orthopaedic surgeon stated, inter alia, the following:

    I reviewed Heather today...who is now six weeks post bilateral knee replacement….is improving slowly….wounds are well healed….range of motion 0 to 95˚...continue with activities as comfort allows and just progress with her physio program...she will continue with some regular pain relief. I will review Heather again in two months. 

43. In a letter dated 10 December 2015, Dr Bhimani stated, inter alia, the following:

    I reviewed heather in the rooms today….is now six months post bilateral total knee replacement. Heather tells me she had been coming along really well. She had been back to working in the paddock and working with the horses and doing extremely well. Heather unfortunately injured herself in November with shopping in Penrith and was at the Centre. She slipped on a wet floor and injured her knee… At the time she had some immediate pain and swelling. She had x-rays...which showed her prosthesis to be in good alignment, and there were no obvious fractures. Heather has had to go back on Targin and her antidepressant….

    On examination today she has a range of motion from 0 to 110˚ on both knees, with her left knee being more swollen than the right. I have explained to heather I think she done a soft tissue strain as a result of her fall and I think she done a soft tissue strain as a result of her fall and I think this will improve with time but ay take two to three months for her to recover…

    ...Heather is a 56 Year old lady who is recovering well post bilateral knee. She had a fall one month ago and sustained a soft tissue injury but is now starting to improve again. She will continue with activities as comfort allow. I will review Heather again in three months if her symptoms are not improving.        

44. At the hearing Ms Lord stated that Dr Bhimani had misunderstood her reference to working in the paddock as he had not appreciated that she was only able to get around the farm on her ride-on mower.

45. In his December 2015 medical report, which was submitted 6 days after Ms Lord had seen Dr Bhimani, Dr Saluddin listed “advanced osteo arthritis of both knees” as a medical condition that had significant impact and noted current symptoms as “ongoing pain, restricted mobility, difficulty walking, need to use walking aid frame” but provided no other details. He described impact on ability to function as “impacting greatly on activity of daily living including capability for work” but provided no other details.

46. In the JCA report of 15 March 2003 the assessor noted, inter alia, the following:

    Mrs Lord reported that she is still experiencing some pain and swelling in her knees and modifies her day to day activities as not to exacerbate this condition. Mrs Lord reported that she uses her ride on lawn mower as transport around her farm as she is unable to walk for extended periods due to pain and swelling in her knees.  

47. In his letter of 4 July 2016 Dr Salauddin lists “Advanced osteoarthritis of both knees, causing pain and decreased motility” but provides no other details.

48. In his report of 26 August 2016 Dr Salauddin states that Ms Lord is “unable to mobilise without walking frame”.

49. In a letter dated 10 October 2016 Dr Salauddin states that “Heather Lord uses a walking frame and requires assistance visiting shopping centres and travelling”.

50. In letters dated 18 May 2107 and 30 June 2017, Dr Salauddin stated that Ms Lord had failed to recover from knee replacement surgery and is now wheel chair dependent. In the second letter he added that Ms Lord “gets pain, instability and has swollen knees” but provides no other details.

    Consideration

51. The medical evidence with respect to Ms Lord’s lower limb function can best be described as incomplete and confused and provides no reasonable explanation for the claimed severity of her impaired mobility.

52. Clearly her “osteoarthritis” was definitively treated with the bilateral knee replacement.

53. Although Ms Lord’s post-operative recovery was complicated by a fall in November 2015, when she was seen for review by Dr Bhimani in 2015 he appeared to have no real concern about her continuing recovery.

54. There is no additional evidence before the Tribunal of further follow-up with Dr Bhimani or any other orthopaedic specialist.

55. The various letters provided by Dr Salauddin are unhelpful. The letters provide no meaningful explanation or clinical assessment which could explain her claimed level of impairment.  It is not clear what Dr Salauddin means by “failed to recover from knee replacement surgery” and there was no other evidence presented to support the statement that, at the date of cancellation, Ms Lord was “wheel chair bound”.

56. The letters appear to suggest that Ms Lord’s impaired mobility may be primarily related to chronic pain and this raises the question as to whether her lower limb impairment is, in fact, related to her claimed “Chronic Regional Pain Syndrome” and not due to “osteoarthritis”. 

57. In his oral evidence Dr Salauddin also appeared to suggest that “chronic pain” was the reason for Ms Lord’s lower limb impairment.

58. On consideration of the available evidence I am satisfied that at the date of cancellation, the cause of Ms Lord’s claimed lower limb impairment was not clear and, therefore, not fully diagnosed, fully treated and fully stabilised. Therefore, a rating under Impairment Table 3 cannot be assigned.

    Complex Regional Pain Syndrome (CRPS)

59. Ms Lord claims that, at the date of cancellation, she suffered from “Chronic Regional Pain Syndrome” which was diagnosed in 2009 and is still ongoing. She also claims that this condition has a severe functional impact on activities requiring physical exertion or stamina so a rating of 20 Points under Impairment Table 1 should be assigned.

60. The National Institute of Neurological Disorders and Stroke – CRPS Fact Sheet states, inter alia, the following:

    Complex Regional Pain Syndrome (CRPS) is a chronic (lasting more than six months) pain condition that most often effects one limb (arm, leg, hand, foot) usually after an injury).

    CRPS is characterized by prolonged or excessive pain and changes in skin colour, temperature and/or swelling in the affected area.

    CRPS is divided into two types CRPS I and CRPS II.  Individuals without a confirmed nerve injury are classified as CRPS I (previously known as reflex sympathetic dystrophy syndrome). CPRS II (previously known as causalgia) is when there is an associated, confirmed nerve injury.

61. In J Neurology (2005) 25: 131-138 the diagnostic criteria for CRPS are stated as follows:

    ·Preceding noxious event without (CRPS I) or with obvious nerve lesion (CRPS II);

    ·Spontaneous pain or hyperalgesia/hyperaesthesia not limited to a single nerve territory and disproportionate to the inciting event;

    ·Edema, skin blood flow (temperature) or sudomotor abnormalities, motor symptoms or trophic changes are present on the effected limb, in particular at distal sites;

    ·Other diagnoses excluded.

    Evidence

62. As noted above in August 2006 Ms Lord suffered an injury to her right hand as a result of a dog bite which caused punctures and lacerations.

63. In a letter dated 10 July 2007 Mr Haig, hand therapist, noted that Ms Lord reported “ongoing pain and limitation in function with her right hand and thumb” but stated that there “were no obvious sympathetic changes consistent with Complex Regional Pain Syndrome”. [emphasis added]

64. In a brief letter dated 9 September 2008, Dr Needham, consultant in rehabilitation and pain medicine, noted that Ms Lord reported “disabling neuropathic pain with frequent lancinating pains to her right shoulder”.

65. Dr Needham diagnosed “type II complex regional pain syndrome (previously known as reflex sympathetic dystrophy)” and commenced a trial of antineuritic medication, Lyrica. [emphasis added]

66. The bone scan performed on 13 July 2009 reported “no scintographic abnormalities to indicate a reflex sympathetic dystrophy involving the right hand”. [emphasis added]

67. In a letter dated 4 August 2009, Dr Needham noted that Ms Lord’s diagnosis was consistent with “neuropathic regional pain secondary to dog bite injury”.

68. Shoalhaven Emergency Department Exam Note dated 25 January 2012 noted, inter alia, as follows:

    52yo lady presents with R flank pain…onset of pain this evening while on computer…Meds – Estrogen patch…renal colic...

1. In the 3 letters provided by Dr Bhimani dated 29 May 2014, 2 August 2015, and 10 December which were included in the T-documents there was no reference to CRPD.

2. In his December 2015 medical report Dr Salauddin made no mention of CRPD.

3. In a medical certificate dated 9 February 2016, Dr Salauddin stated that Ms Lord is suffering from “TKR, Advanced OA of both hands. She is also suffering from Depression and Anxiety. Her mobility is reduced due to Spondylosis of the spine”. There is no reference to CRPD.

4. A discharge referral from Shoalhaven District Memorial Hospital dated 1 July 2016 stated inter alia the following:

   …Presented to this facility…upper left back pain into occipital into ears and throat…several episodes over the last 2 years…usually improves with pain killers….imp: musculoskeletal likely related to longstanding degenerative arthritis possible atypical migraine…

5. In his letter of 4 July 2016, Dr Salauddin stated that CRPD was one of Ms Lord’s medical problems which “is still persisting needing to take narcotic analgesia” and that “that this was not recorded in the history, hence it was an oversight”. He also noted that Ms Lord was being tested for polymyalgia.

6. In the record of discussion dated 13 July 2016 the ARO noted, inter alia, the following:

   Customer reported that she recently had testing for polymyalgia. She reported this was to investigate whether she has fibromyalgia. She advised that recent tests exclude polymyalgia which means she has probable diagnosis of fibromyalgia.  She has just returned to her GP who gave her a referral to a Rheumatologist.

7. A discharge referral from Shoalhaven District Memorial Hospital dated 18 July 2016 stated inter alia the following:

   Pt presents with headache and decreased power legs/arms…this morning was able to mobilise independently however then felt leg /arms getting weak…multiple stressors...follow up with rheumatologist as prev arranged…

8. In a letter dated 26 July 2016 Dr Lu, Consultant Rheumatologist stated, inter alia, as follows:

   Currently she reports pain in a generalised fashion including the feet as well as the hips secondary to trochanteric bursitis. There is also pain across the shoulder girdles and the neck...Heather describes non-inflammatory swelling in her joints ...on clinical examination …she could perform a squat without assistance…the gait was stable with aid of a frame...there was a strong element of allodynia

   In summary Heather has chronic pain secondary to degenerative osteoarthritis. Some of her symptoms can be considered as fibromyalgic in nature. I have referred her to the Chronic Pain unit at Port Kembla hospital for multidisciplinary treatment. She will benefit from participation in active exercise program as well as seeing a pain specialist for further pain management.

9. In his letters of 18 May 2017 and 30 June 2017 Dr Salauddin stated that Ms Lord has “Chronic Regional Pain Syndrome including fibromyalgia” and that this has been “fully diagnosed, stabilised with no further improvement in condition” In the second letter he added that Ms Lord suffers from “generalised musculoskeletal pain involving various joints and body parts on a day to day basis with no improvement with any of the treatment provided”.

10. At the hearing Dr Salauddin was asked by the Tribunal to explain what he meant by the condition of “Chronic Regional Pain Syndrome” with respect to Ms Lord’s reported symptoms. In his response he referred primarily to the lower limbs and attributed Ms Lord’s restricted mobility to chronic pain.

    Consideration

11. On the available evidence I am satisfied that at the date of cancellation Ms Lord suffered from a condition that can be described as “chronic pain”. However, I am not persuaded that the nature and cause of the pain, as well as the contribution of the pain to her claimed impaired mobility, is clear enough to support a conclusion that the condition was fully diagnosed, treated and stabilised at that time.

12. Also, I am not persuaded that, at the date of cancellation, Mr Lord suffered from CRPS.

13. The diagnosis of CRPS II made by Dr Needham in 2008 is, in my view, questionable. There is no evidence that the relevant diagnostic criteria were considered and there is no evidence that Ms Lord had suffered a confirmed nerve injury. Also. in his second letter of August 2009 Dr Needham appeared to retreat from his earlier diagnosis and called it “neuropathic regional pain secondary to dog bite injury”.

14. Furthermore, even If I were to accept that the diagnosis was correct the relevance to Mr Lord’s claimed restricted lower limb mobility in 2016 is uncertain, as the original diagnosis was made in the context of an injury to the right hand and upper limb alone.

15. Also, the proposition that a serious diagnosis made in 2008 could continue without mention in any medical documents until July 2016, after the date of cancellation, and be considered as an “oversight” is, in my view, unconvincing.

16. In his letter of 26 July 2016, Dr Lu does not confirm a diagnosis of CRPD. He makes a diagnosis of “chronic pain secondary to degenerative arthritis” with symptoms that one can be considered “as fibromyalgic in nature”. He does not appear to make a firm diagnosis of “fibromyalgia”.

17. Furthermore, Dr Lu clearly was of the opinion that Ms Lord would benefit from further treatment under the supervision of a Chronic Pain Unit which supports a conclusion that, at the date of cancellation, her chronic pain condition was not fully treated and stabilised.

18. Dr Salauddin’s assertion in his letters of 10 May 2017 and 30 June 2017 that Ms Lord suffers from “Chronic Regional Pain Syndrome” as opposed to “Complex Regional Pain Syndrome” appears to suggest some confusion in his mind about the diagnosis. Notwithstanding any confusion about the correct terminology, it remains that Dr Salauddin has provided no convincing clinical evidence to support his assertion that Ms Lord suffered from CRPC as at the date of cancellation.

19. In his letters Dr Salauddin, also asserts that Ms Lord’s “pain syndrome” has been fully diagnosed, stabilised with no further improvement expected but does not indicate whether this refers her situation in 2016 or 2017 and whether she followed the recommendations made by Dr Lu.

    Consideration

20. On consideration of the available evidence I am satisfied that, at the date of cancellation, Ms Lord’s condition of “chronic pain” was not fully diagnosed, fully treated and fully stabilised and, therefore, not permanent for the purposes of the Impairment Determination. This means that a rating under the Impairment Tables cannot be assigned.

    DECISION

21. For reasons set out above, the Tribunal is satisfied that, at the date of cancellation on 14 June 2016, Ms Lord’s impairment was not 20 points or more and she did not satisfy s 94(1)(b) of the Act. Therefore, at that time, she did not qualify for DSP and the decision to cancel her DSP was correct. The Tribunal therefore does not need to consider whether the applicant has a continuing inability to work.

22. The decision under review is affirmed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...........................[sgd].............................................

Associate

Dated: 6 February 2018

Date(s) of hearing:	15 January 2018
Solicitor(s) for the Applicant:	Mr I Turton, Illawarra Legal Centre
Solicitor(s) for the Respondent:	Mr D McLaren, Department of Human Services