Mifsud and Department of Family and Community Services

[2000] AATA 737

DECISION AND REASONS FOR DECISION [2000] AATA 737

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.  N2000/407

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      DORIS MIFSUD      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member

Date24 August 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.

........(Sgd) B. H. Pascoe...........
  Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairment of 20 points or more – whether impairment can be assessed under more than one Table – effect of pain on assessment – whether impairment required to be assessed within three months of date of claim
Social Security Act 1991

REASONS FOR DECISION

24 August 2000                   Mr B. H. Pascoe, Senior Member            

1. This is an application to review a decision of the Social Security Appeals Tribunal ("SSAT") of 8 February 2000 which affirmed a decision of the respondent dated 23 November 1999 confirming an earlier determination refusing the applicant's claim for a disability support pension ("DSP").

2. At the hearing the applicant, Mrs Mifsud, was represented by her daughter and the respondent was represented by Ms H. Schuster, an advocate with Centrelink. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with two further medical reports from the applicant's treating doctor, Dr Y. Fung, dated 21 April and 15 May 2000.  Oral evidence was given by Mrs Mifsud.

3. Mrs Mifsud applied for DSP on 12 August 1999.  She listed her illnesses/disabilities as "Lower back pain, pain in both legs, worse in left leg, pain in the tailbone".  The treating doctor's report attached to the application noted a diagnosis of "degenerative lumbar spine disease" with clinical features of "lower back pain with left sciatica".  Also attached to the claim was a report, dated 5 August 1999, from Dr M. Guirgis, a consultant orthopaedic surgeon which stated a diagnosis of:

   "1.Chronic symptoms in the back caused by discopathic and spondylotic changes in the spine with irritation of the left L5/S1 nerve roots complicated by the onset of chronic spinal pain syndrome.

   2.Post-traumatic coccydenia."

The report then made an assessment of work-related impairment under Schedule 1B of the Social Security Act 1991 ("the Act") as follows:

"Lumbar spine function (Table 5.2) 20%.  Loss of one quarter of normal range of movement as well as back pain or referred pain:  with most physical activities and with standing for about 15-minutes, and with sitting or driving for about 30-minutes.
Chronic pain (Table 20) 10%.  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.

Earlier in that report, Dr Guirgis stated that "…movements in the lumbar spine were restricted to 50%". The medical assessment by Dr Fitzgerald of Health Services Australia was that Mrs Mifsud had an impairment rating of 10 points under Table 5.2 of Schedule 1B of the Act. He noted that she had an injury incident some four years prior when she was knocked over by a wave and bumped her coccyx resulting in pain when sitting.

1. In the report of 15 May 2000, Dr Fung stated that Mrs Mifsud suffered from three conditions:

   (1)Degenerative lumbar spine disease which he assessed at 10 points under Table 5.2

   (2)Chronic pain from post traumatic coccydenia which he assessed at 10 points under Table 20

   (3)Carpel tunnel syndrome of left wrist which he assessed at 5 points under Table 3

In his report of 26 April 2000, Dr Fung referred to the additional medical problem of carpel tunnel syndrome and stated that this diagnosis had been confirmed by a neurologist on 14 April 2000 and she had been advised to have surgical decompression of the left medial nerve.

1. Mrs Mifsud said that she is unable to perform most household duties such as cleaning, washing, ironing and shopping.  Her daughter comes twice per week to do these chores for her.  She said that she cooks rarely and then only simple meals.  Sometimes she washes the few dishes.  She said that she tries to walk each day but can normally walk for 10 minutes only.  She maintained that, after sitting for 15 minutes, the pain is such that she cannot remain seated.  Generally she swims for some 15 minutes twice a week as recommended by her doctor.  She said that she is not a good swimmer and the swim consists of gentle breast stroke.  Mrs Mifsud said that the pain from the coccyx was different from that arising from her back condition.  The former produces a sharp, stabbing pain on sitting.  The latter causes pain in the legs, particularly the left leg and a generalised back pain when sitting, standing or walking.  She said that she does not go out from home very often because of the difficulty in sitting or standing.  She uses public transport occasionally with the normal trip taking 10 minutes but wears a back support when she does so.  Mrs Mifsud said that she had not included the problem with her left hand in the claim for DSP as, although the numbness and pain had been present for some years, it was now considerably worse than it had been at the time of the claim.  She did not believe that she was capable of working because of the constant pain, her inability to sit or stand for any reasonable period and her need for regular pain-killing medication.

2. It was submitted for Mrs Mifsud that she had two separate and distinct conditions relating to her lower spine. One was the functional loss and pain relating to the lumbar spine and the other was the separate and distinct pain from the coccyx. The report of Dr Guirgis was relied on with the assessment of 50% restriction of the lumbar spine which produces an assessment of 20 points under Table 5.2. It was submitted further that Mrs Mifsud had a continuing inability to work within the meaning of section 94(2) of the Act.

3. For the respondent it was submitted that the applicant did not satisfy the requirements of section 94(1) of the Act in that her impairment is less than 20 points under the impairment Tables. It was said that both the lumbar condition and the coccyx were related to the lower spine and the impairment could not be rated under two Tables where the pain relates to that one part of the body. It was argued that pain may be rated under Table 20 but, if so rated, it can be in substitution for functional loss under Table 5.2 not in addition to a rating under that Table. The respondent maintained that all reporting doctors had rated the loss of function of the lower back as loss of one-quarter of normal range of movement giving a maximum rating of 10 points under Table 5.2. It was said that, if the alternative of Table 20 was to be used, again each doctor who had assessed Mrs Mifsud under that Table had attributed 10 points. As a result, it was argued, the maximum points were 10 under either Table. The respondent submitted that the diagnosis of carpel tunnel syndrome could not be considered by the Tribunal as it had not been diagnosed until April 2000 and only impairments existing at the date the claim was made or within three months of that date can be taken into account in relation to the decision under review. It was submitted further that the condition had not been treated and stabilised given the advice to undergo surgical compression.

4. Section 94 of the Act sets out the qualifications for DSP and, so far as is relevant to this case, provides:

   "94(1)  A person is qualified for disability support pension if:

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

   (b)the person's impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)     …

   …"

There is no dispute that Mrs Mifsud has a physical impairment. The question, however, is whether that impairment is of 20 points or more. The Impairment Tables are contained in Schedule 1B of the Act. Table 5.2 refers to the Thoraco-lumbar-sacral spine and provides:

"Table 5.2            Thoraco-lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating  Criteria

NILNormal or nearly normal range of movement.

FIVELoss of one-quarter of normal range of movement.

TENLoss 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.

  TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

• with most physical activities and

• with standing for about 15 minutes and

• with sitting or driving for about 30 minutes.

  or

  Loss of three-quarters of normal range of movement."

Table 20 covers a number of miscellaneous conditions including chronic pain.  In its introduction it states:

"Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used.  Double-counting of a particular loss of function, by the use of more than one Table, must be avoided."

So far as they are relevant to pain, the ratings and criteria, under this Table are:

"Rating  Criteria

NILMinor symptoms which are easily tolerated and have no appreciable effect on ability to work.

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 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.

TWENTYMore 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."

1. The introduction to the Tables in Schedule 1B of the Act sets out the manner in which they are to applied. Paragraph 4 of the introduction provides that "For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised." Paragraph 7 allows the assessment under all relevant Tables when the "…medical condition is causing a separate loss of function in more than one body system." Paragraph 8 provides:

   "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."

Finally, paragraph 13 provides that "where two conditions cause a common or a combined functional loss, a single rating should be assigned for both conditions and this should reflect the combined loss of function from each of the two conditions."

1. As a consequence of these provisions it is clear that it is the loss of function, which impairs a person in relation to an ability to work, which is to be assessed.  Clearly Mrs Mifsud has a physical impairment to her lower spine but the assessment of that impairment can be done either under Table 5.2 or Table 20 but not both.  Table 5.2 includes an effect of pain in assessing a rating.  It prescribes a higher rating where, in addition to loss of normal range of movement, there is back pain or referred pain.  The assessment of 10 points applies where in addition to loss of one-quarter of normal range of movement there is pain with many physical activities, standing for 30 minutes and sitting or driving for 60 minutes.  The use of Table 20 is appropriate as an alternative where the associated pain is chronic and arises with less than the prescribed activities but with the same loss of movement.

2. While accepting that Dr Guirgis spoke of movement restricted to 50% and assessed a rating of 20 points, his final opinion referred only to "loss of one-quarter of normal range of movement".  The medical assessment by Dr Fitzgerald was of 10 points under Table 5.2.  The treating doctor, Dr Fung, as late as 15 May 2000 assessed the impairment at 10 points under Table 5.2.  While it is accepted that Mrs Mifsud believes that the condition has deteriorated over the past year, there is simply no medical assessment which can be accepted as ascribing more than 10 points under Table 5.2.  In addition, those medical assessments from Dr Guirgis and Dr Fung which refer to Table 20 have assessed the impairment from pain at 10 points.  From the evidence given by Mrs Mifsud it appears quite possible that, currently, her impairment resulting from pain could reach 20 points under Table 20.  However, there is currently no assessment of more than 10 points under either Table.

3. It is relevant to both the question of the rating of the range of movement of the lower back and the impairment by pain and the current addition of the condition of carpel tunnel syndrome, to consider whether a condition at the time of hearing is directly relevant to the review of the particular decision under review. Section 106 of the Act provides:

   "106(1)     A person who wants to be granted a disability support pension must make a proper claim for that pension.

   106(2)     For the purposes of subsection (1), where:

   (a)a claim for disability support pension is made by or on behalf of a person; and

   (b)at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;

   the claim is, subject to subsection 100(3), to be taken not to have been made."

Section 100(3) of the Act provides:

"100(3)     If:

(a)a person lodges a claim for a disability support pension; and

(b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

It was the contention of the respondent that, if the applicant was not qualified at the date of the claim or within three months of such date, she can not succeed in the application to this Tribunal, even if the Tribunal was of the view that she qualified as at the date of hearing.  This is said to be so as a result of the abovementioned provisions and that the Tribunal is reviewing the decision on the claim made by the applicant on 12 August 1999.  Any new condition or deterioration of a claimed condition must be the subject of a new claim with appropriate medical assessments.  While I am disposed to accept this contention, it is not essential for a decision in this case to do so.  As indicated, the only acceptable assessments under Table 5.2 or Table 20 produce a rating of 10 points.  It is not appropriate for the Tribunal to substitute its assessment based on the evidence of Mrs Mifsud when, as late as May 2000 her treating doctor was not able to assess any higher than 10 points under either Table.  Even if the carpel tunnel syndrome could be considered within this application, and I do not believe it can, the assessment by Dr Fung is 5 points under Table 3 producing a total of 15 points for both conditions.  For Mrs Mifsud to qualify for DSP, she needs 20 points and this would have to be assessed in relation to a new application.

1. As Mrs Mifsud does not qualify for DSP under paragraph (b) of section 94(1), it is unnecessary to consider whether she qualifies under (c) as having a continuing inability to work. It is sufficient to say that, on the evidence of Mrs Mifsud, she may well satisfy that latter paragraph.

2. It follows that the decision under review should be affirmed.

   I certify that the fourteen (14) preceding paragraphs are a true copy of the reasons for the decision herein of 

   Mr B. H. Pascoe, Senior Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  11 August 2000
   Date of Decision  24 August 2000
   For the Applicant  Self-represented
   Solicitor for the Respondent    Ms H. Schuster, Centrelink