Muller and Secretary, Department of Workplace Relations
[2005] AATA 1019
•14 October 2005
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DECISION AND REASONS FOR DECISION [2005] AATA 1019
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/518
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | TEREZIA MULLER | ||
Applicant
| And | SECRETARY, DEPARTMENT OF WORKPLACE RELATIONS |
Respondent
DECISION
| Tribunal | Dr J D Campbell, Member |
Date 14 October 2005
Place Sydney
| Decision | The decision under review is set aside and in substitution thereof the Tribunal decides that Ms Muller’s DSP should not have been cancelled on 7 October 2004. |
[Sgd] Dr J D Campbell, Member
CATCHWORDS
SOCIAL SECURITY –cancellation of disability support pension payment – medical evidence insufficient – Tribunal cannot be certain that Applicant not eligible for payment at the time of cancellation – decision under review set aside
Social Security Act 1991 section 94
McDonald and Director General of Social Security (1984) 6 ALD 6
Re Paliogiannis and Secretary, Department of Social Security (1993) 30 ALD 491
REASONS FOR DECISION
| 14 October 2005 | Dr J D Campbell, Member |
In this matter Ms Muller seeks review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 15 March 2005 to cancel her Disability Support Pension (“DSP”) payments. The original decision was made by Centrelink on 7 October 2005 and was affirmed by an Authorised Review Officer (“ARO”) of Centrelink dated 27 January 2005.
At the hearing, Ms Muller was unrepresented and the Department was represented by Mr Luke Carter, Centrelink advocate.
BACKGROUND
Ms Muller first began receiving DSP payments in 1995. In early 2000, Centrelink reviewed Ms Muller’s DSP to determine whether she was still eligible for DSP. As part of the review, Ms Muller submitted a Medical Review Report – Disability Support Pension Form and a Treating Doctors Report by Dr Elizabeth Heks, both dated 5 September 2000. Ms Muller was examined by Dr D Keen from Health Services Australia (HSA) who produced a whole person assessment report dated 4 October 2000. Dr Keen reported that, at the time of examination, Ms Muller suffered from a lumbar spine condition and she experienced a loss of ¼ range of movement. He gave the condition a 10 point impairment rating.
On 16 November 2000, Dr Ying, another HSA doctor, provided a report focusing exclusively on the impact of Ms Muller’s lumbar-sacral spine condition on her ability to work. Dr Ying stated that “From the available evidence it cannot be ascertained how frequently these [muscle spasms] occur, how long she can generally sit or stand”. Dr Ying recommended that Ms Muller be examined by an occupational physician before the review was finalised and referred her to Dr Matalani. In his report, dated 15 December 2000, Dr Matalani noted that Ms Muller experienced severe attacks of muscle spasm every two to three weeks and sometimes these attacks lasted up to one hour but usually they lasted only a few minutes. He diagnosed Ms Muller with a mechanical low back pain disorder which intermittently stimulates the nociceptive system and results in muscle spasm and pain. He stated that Ms Muller’s main difficulty, in relation to work, was being absent and late for work. He recommended that she was fit for 20 to 30 hours of work per week of a clerical nature; such as counter work, telephone work, receptionist or customer service work.
It appears from the papers that Centrelink made no conclusive determination as to Ms Muller’s impairments and her continuing inability to work following this 2000 review. Ms Muller underwent the review and her payments continued. There is nothing on the file providing a definitive conclusion to the review.
Following this 2000 review, Centrelink conducted another review in 2004. On 25 August 2004, Ms Muller completed another Medical Service Update (Disability Support Pension) Form. In Section A of the form, Ms Muller listed her disabilities as “back pain and heart problem” and stated that these disabilities often make it difficult for her to sit, stand, walk, lift, carry, bend and sleep. She noted that her disabilities sometimes make it difficult for her to drive, read, write, concentrate, remember, attend work and appointments, understand or follow instructions, breathe, manage personal affairs, and to care for herself and others. The medical conditions as noted by Ms Muller in this report are substantially the same as those noted by Dr Keen in his 2000 medical report.
Dr Heks completed Part B of the form, the Treating Doctors Report, on 19 August 2004. Dr Heks’s diagnosis was that Ms Muller suffered “severe mechanical back pain of thoracic lumbar-sacral spine” and “ventricular ectopic runs causing severe palpitations”. She noted that Ms Muller had a fractured pubic bone in childhood which resulted in recurrent severe pain. She described Ms Muller’s current symptoms as “mid thoracic and low back pain on bending, sitting, lifting – at times so severe that patient needs complete bed rest”. Dr Heks recorded that Ms Muller is unable to lift, bend, stand or sit for any length of time and needs (and has) a carer for support in activities of daily living. Dr Heks also recorded a diagnosis of ventricular ectopic runs causing severe palpitations but noted that these conditions are well managed and generally cause minimal impact on her ability to function. Dr Heks’s report does not provide any indication that Ms Muller’s conditions had improved since the 2000 review.
On 5 October 2004, Ms Joyce, Rehabilitation Officer, provided a Work Capacity/Participation Assessment Report for Ms Muller’s DSP review. Ms Joyce recommended that Ms Muller’s lumbosacral spine condition be awarded 10 impairment points and that Ms Muller’s “ventricular ectopic runs/COAD” condition is temporary and for this reason did not award any impairment points.
On 7 October 2004 Centrelink decided that Ms Muller’s medical conditions attracted an impairment rating of 10 points and that accordingly her DSP should be cancelled as her impairments no longer meet the 20 impairment point rating threshold and as such she does not satisfy the provisions of section 94(1)(b) of the Social Security Act 1991 (“the Act”).
On 8 November 2004, Ms Muller provided Centrelink with another completed Medical Service Update (Disability Support Pension) Form. In the Treating Doctors Report section of this form, Dr Heks noted Ms Muller’s additional medical conditions of osteoarthritis and compression wedging of the lumbar spine.
On 18 November 2004 the original decision maker, taking into account the new report by Dr Heks, confirmed the decision and on 22 November Ms Muller requested review of the decision by an ARO. On 27 January 2005 the ARO reviewed and affirmed the decision under review. On 9 February 2005 Mrs Muller lodged an appeal against the decision with the SSAT and on 15 March 2005 the SSAT affirmed the decision under review.
ISSUES
The issues in this matter are whether
(a)Ms Muller has fully documented, investigated, diagnosed, treated and stabilised medical conditions with a total impairment rating of 20 points or more; and
(b) Ms Muller has a continuing inability to work.
The relevant legislation in this matter is section 94 of the Social Security Act 1991 which sets out the criteria for eligibility for DSP.
CONSIDERATION AND FINDINGS
This matter is a cancellation decision. Ms Muller was in receipt of DSP for nine years before cancellation. Centrelink regarded her eligible for the payment up until cancellation in October 2004. In order for a cancellation decision to occur there must be the presentation of current and relevant clinical evidence which allows an assessment to be made that there has been a change in the status quo as evidenced by a change or improvement in the assessment of Ms Muller’s circumstances which deem her ineligible for the payment. In the alternate, current and relevant clinical evidence could be assessed, and while observing that there has been no change in Ms Muller’s circumstances, the decision-maker could conclude that the correct assessment of the unchanged circumstances (based on current clinical examination and assessment) results in Ms Muller failing to meet the necessary criteria for payment of DSP.
The evidence in the matter as to Ms Muller’s medical conditions and her continuing inability to work at the time the decision was made is so unsatisfactory that, as will be explained below, I cannot be satisfied that Ms Muller is not qualified for DSP.
In coming to this decision, I applied the principles from McDonald and Director General of Social Security (1984) 6 ALD 6. McDonald dealt with the cancellation of an invalid pension. The principles from McDonald also apply to cancellation of DSP (Re Paliogiannis and Secretary, Department of Social Security (1993) 30 ALD 491).
the workplace assessment report
The Workplace Assessment Report, a report which the original decision maker and the SSAT placed significant weight, was provided by Ms Renelle Joyce, a Rehabilitation Officer, on 5 October 2004. Ms Joyce is not medically trained (it appears from the papers that she has a degree in psychology) and I was advised during the hearing that she did not physically examine Ms Muller. Ms Joyce compiled the Report by referring to the medical reports on file and on the basis of those medical reports made recommendations as to whether Ms Muller is suitable for work and what type of work that might be. I make no comment as to Ms Joyce’s role but reserve my comments on the nature and timeliness of the medical reports used in her review assessment.
Ms Joyce’s report is based on out of date medical reports from late 2000. I come to this conclusion based on the fact that an examination of the T-documents reveals that the only medical reports Ms Joyce had before her at that time (excluding Dr Heks’s Treating Doctors Report) are the reports of Drs Keen, Ying, Matalani and Jacobs dated 4 October 2000, 16 November 2000, 15 December 2000 and 18 January 2001 respectively. In addition, Ms Joyce stated that Ms Muller’s lumbar sacral spine condition caused “a loss of ¼ ROM”. Based on the medical evidence provided, Ms Joyce could only have derived this finding from Dr Keen’s report dated 4 October 2000. Dr Heks’s TDR dated September 2004 is silent as to range of movement (ROM), as the form to be completed is silent as to the need to document clinical examination findings.
These circumstances lead me to believe that Ms Joyce based her report almost entirely on out of date medical evidence. Centrelink’s decision to cancel Ms Muller’s DSP favoured Ms Joyce’s report. The purpose of the review in October 2004 was to assess Ms Muller’s conditions at that time. Basing a Workplace Assessment Report on four year old medical reports is totally inadequate and unacceptable. For this reason I place no weight on the Work Assessment Report of Ms Joyce dated 5 October 2004 in coming to the correct and preferable decision.
Therefore the remaining medical evidence relating to the relevant period before me is the medical reports from 2000 and 2001 as well as Dr Heks’s Treating Doctors Reports from 2004, Ms Muller’s oral evidence and the radiology and bone mass density reports of November 2004 and 16 November 2004, which describe an anterior compression fracture at T4 and wedging of T3 and T5 vertebral bodies and confirm a diagnosis of osteopenia/osteoporosis respectively. The Respondent provided no evidence at the hearing and did not help the Tribunal in understanding how the Respondent came to the decision or how the Respondent supported the decision in light of the nature of Ms Joyce’s report. I gave Mr Carter an opportunity at the commencement of the hearing to seek instructions in light of my view of the report. After seeking instructions, Mr Carter informed me that the Department would like to continue and relied on the Report. Mr Carter provided no explanation as to why the medical evidence was four years old nor did he give me one reason why I should give any weight to the Workplace Assessment Report.
Based on the inadequate medical evidence as to the Applicant’s medical conditions and her continuing inability to work, I am unable to determine whether Ms Muller earned an impairment rating of 20 points or more or whether she has a continuing inability to work.
In McDonald a similar situation arose and it was held that where the Tribunal is unable to decide a question of fact it should be guided by the terms of the legislation. In this case, the Tribunal is deciding whether or not to cancel a pension in light of changed circumstances and the inadequacy of the evidence prevents me from making any definitive findings. The out of date medical evidence and the lack of an adequate workplace assessment report in light of current medical evidence creates uncertainty. In McDonald it was held that “where a decision maker had failed to achieve the required state of mind that a pension should be cancelled – the pension should not be cancelled”
There is no evidence before the Tribunal on which to properly find that Ms Muller was no longer entitled to DSP in October 2004 apart from the medical evidence preceded by and on behalf of Ms Muller (treating doctor’s reports, radiology reports and bone density reports). The only medical assessment material, by the Respondent, before the Tribunal were the medical assessment and clinical examination reports of 2000 and an appraisal of these reports by a clinical psychologist. I am left with an absence of relevant evidence upon which to make an assessment. And there is no evidence of her continuing inability to work based on a current clinical assessment of her physical circumstances. I have no choice but to set aside the decision of the SSAT, following the principle in McDonald that “if no material is available to the decision –maker or if available material leaves the decision-maker quite uncertain the claim must fail”.
I have carefully considered the decision under review. I find that the SSAT placed a great deal of weight on the workplace assessment report as did the original decision makers. I find that this report was based on out of date medical reports (four years old) and is of very little probative value. Current, albeit scant, medical evidence before the decision-makers in October/November 2004 would suggest, if anything, a deterioration in Ms Muller’s physical well being as evidenced by the crush fracture, wedging of other vertebral bodies and an underlying diagnosis of osteopenia/osteoporosis. Such evidence is consistent with Ms Muller’s description of her clinical history. In such circumstances I conclude that the Respondent has failed to provide relevant and current clinical material upon which a proper and clinically sound assessment of Ms Muller’s physical conditions in October 2004 could be made.
The medical evidence before the Tribunal is not sufficient to allow it to come to a decision as to whether Ms Muller’s DSP should have been cancelled. There is no evidence of a change in Muller’s conditions. As stated previously there is very little medical evidence as to Ms Muller’s medical conditions during the relevant period and no Workplace Assessment Report on which I can rely. This has left me in a state of indecision as to how the decision under review was reached and how it was allowed to stand during the review process. The Tribunal has insufficient evidence on which to make a decision.
For these reasons, the decision under review is set aside and in substitution thereof the Tribunal decides that Ms Muller’s DSP should not have been cancelled on 7 October 2004.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: A. Krilis Associate
Date/s of Hearing 31 August 2005
Date of Decision October 2005
Representative for the Applicant Self - Represented
Advocate for the Respondent Luke Carter
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