Munyard and Secretary, Department of Family and Community Services

[2005] AATA 1119

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1119

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/226

GENERAL ADMINISTRATIVE DIVISION		)
Re		NICOLE MUNYARD

Applicant

And SECRETARY, DEPARTMENT
OF FAMLY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date11 November 2005

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..............................................
  M J Carstairs     
  Member

CATCHWORDS

SOCIAL SECURITY  – Disability Support Pension – disc protrusion – migraine headaches – hepatitis C – depression – 20 point impairment ratings – drug dependency - condition not to be rated unless diagnosed treated and stabilised – decision affirmed

Social Security Act 1991 S94 (1)(b), Schedule 1B

McDonald v Director General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

11  November 2005 Ms M J Carstairs, Member

1.      Nicole Munyard seeks payment of disability support pension on the basis of a number of medical conditions.  Ms Munyard first claimed for disability support pension in March 2004.   At that time her treating doctor identified her conditions as migraines and an L4/L5 disc protrusion, but by the time of the hearing it was agreed that the conditions were disc protrusion; migraine headaches; hepatitis C; and depression. 

2.      The doctors who have looked at Ms Munyard’s case from Health Services Australia have referred to those four conditions as being permanent.  Her treating doctors have indicated that some of the conditions are temporary rather than permanent.

3.      The requirements for disability support pension include that a person has medical conditions that rate 20 impairments points under the Tables for the Assessment of Work-related Impairment in Schedule 1B (the Tables) of the Social Security Act (the Act). The method for assigning impairment points is set out in the Introduction to the Tables. The Introduction states that points cannot be assigned for a medical condition unless the condition is diagnosed, treated and stabilised.  It is in that sense, combined with the requirement that the condition will persist for the foreseeable future, that permanence is referred to in relation to disability support pension. 

4.      Relevantly, the Introduction to the Tables provides, in part:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised …

5.        The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

§  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.

THE ISSUES

5.      The issues that arise from the legislation here relate to whether Ms Munyard reaches the 20 impairment points under the Impairment Tables, because without that level of incapacity there is no point considering the other issues of whether, taking into account her incapacity, she has a continuing inability to work.

BACKGROUND

6.      Ms Munyard is thirty-four years of age. She left school at Year 10 and has undertaken training in the hospitality industry and has worked in child care.  Her other employment has required a level of physical capacity that is probably beyond her capacities since the back injury.  When she worked as a housemaid/cleaner at a hotel for 5 months in 2003 she was unable to continue because of back pain. 

7.      Ms Munyard provided me with extracts from her diary describing her pain and impairment and she told me that particularly she is badly affected by her back.  She said that there are days when she can do nothing, and such days are occurring more frequently.  She said she cries a lot but tries to keep a positive attitude.  She said she has problems walking even to the nearby shop and estimates she could walk no more that 500 metres without resting.  She said she cannot use public transport because of the jarring.

THE BACK CONDITION AND MEDICATION

8.      Ms Munyard said that all the doctors she has seen have said there is nothing that can be done to fix her back.  She has seen no specialists in regard to her back condition, only general practitioners, and it is an unusual aspect of her case that no-one has referred her to a specialist in view of the prolonged symptoms after the motor vehicle accident.  Ms Munyard said she was quite willing to attend a specialist and has asked for a referral to do so in the past.  There was not a lot of evidence about what occurred in the motor vehicle accident, but Ms Munyard was not hospitalised as a result of it and I infer from that that there was no indication at the time that she was badly injured.  

9.      Ms Munyard said that she was sent for x-rays a short time after the motor vehicle accident when she continued to suffer back pain.  She told me that she was first prescribed morphine by her then general practitioner in Cairns after the x-rays were returned.  She said that other doctors since then have simply continued to prescribe it, though I note that Dr I Audley, Senior Medical Officer at Cairns Base Hospital said that the dosage should be reduced from 300mg to 200mg per day, stating that no more was justified.   Ms Munyard said that she believes her disabling symptoms are related to both her back condition and to her dependence on the medication.  She said that she would like to have counselling to assist her and would prefer to be on less addictive medication. 

10.     The two Commonwealth doctors who have assessed Ms Munyard have commented on her prescription of Kapanol.  Dr D Cuming of Health Services Australia concluded that Ms Munyard’s symptoms were quite out of proportion with the radiological findings in regard to her back condition (T13).    He thought that she needed immediate intervention to prevent her medical situation becoming chronic and, in particular, he commented that she needed to be weaned off morphine.

11.     Dr Reiseger who had treated Ms Munyard while she still lived in Cairns said in a report dated 12 September 2004 (T29) that she suffered from severe chronic low back pain from a disc protrusion at L4/L5 and that she would be unable to perform physical work for more than 2 years.   Dr Reiseger wrote in a letter to Centrelink:

Has severe chronic low back pain due to L4/5 disc prolapse.  She is on long term Kapanol and it is unlikely she could do work again.  I recommend you pension her off.

12.     Dr Thakur who next saw Ms Munyard on behalf of Health Services Australia concluded that the analgesia for her back was unnecessary for the condition and was really a substitute methadone program.

13.     Despite the problems adverted to by the Commonwealth doctors in regard to the prescription for Kapanol for her back condition, no medical practitioner has diagnosed Ms Munyard as being addicted to the medication.   The significance of this is that unless a condition is diagnosed, treated and stabilised, it cannot be rated under the Tables.  If there were a diagnosis, those symptoms that relate directly to substance addiction could be assessed under Table 7 which assesses Alcohol or Drug Dependence.  Ms Munyard said that she had asked her doctor to address that issue when she sought further evidence for the hearing, but she said that she believes that he will not write that I am drug dependent. 

DEPRESSION

14.     Ms Munyard’s previous general practitioner, Dr D Reiseger completed a medical certificate on 16 February 2003 (T4) stating that she has suffered since December 2002 from the temporary conditions of anxiety/depression and migraines and he certified her as unfit for work from 11 February to 11 May 2003.  In the most recent report from her current general practitioner, Dr Khoo said that he has recently prescribed Luvox for Ms Munyard’s depression and he stated that he expected significant improvement.  He also expected significant improvement with her condition of hepatitis C.

15.     Ms Munyard was seen again by Health Services Australia on 28 June 2004 (T23).  In this report Dr Thakur said that Ms Munyard had a near normal range of movement in her back and has had no physiotherapy (only a home exercise routine) since the accident in August 2003.  He noted in his report that she was independent with self care, able to vacuum and undertake other household chores.  He rated her back condition as 5 points on Table 5.2 but I was told that Table 5.2 only allows that rating if someone has a quarter loss of range of movement, whereas Dr Thakur had assessed Ms Munyard’s loss of range of movement at a little less than that.  Where the loss is less than a quarter, a person must be assessed at NIL under Table 5.2.I accept that this is correct.

16.     Dr Thakur considered that her ‘depression’ (his inverted commas) was probably an adjustment disorder from her back pain (p141).  He noted that she was having no counselling or medication for the condition and he concluded that the condition would have minimal impact on her ability to function.  He said that her Hepatitis C resulted in mild symptoms that required only monitoring by her GP, so whilst it was a permanent condition, it could attract only a NIL rating under Table 20 as meeting the description minor symptoms….easily tolerated and having no appreciable effect on ability to work.  He rated her “migraines” (again, his inverted commas) as permanent but he thought that they were tension headaches rather than true migraines, and he suggested that the nausea she suffers with the headaches was likely due to the opioid that she is taking.   

DO MS MUNYARD’S COMBINED CONDITIONS RATE 20 POINTS UNDER THE TABLES?

17.     I was mindful that the Federal Court in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 pointed out that there is no onus in administrative proceedings. Nevertheless where a person is making a claim there must be material which will support granting the claim. The real problem for Ms Munyard is that, while I have no doubt that she is quite unwell, it is far from clear what the true problem is. The diagnoses are far from complete; there are inconsistencies in symptoms that are commented on by different medical practitioners but not explained; and real questions remain about the contribution made by her medication.

18.     Ms Munyard sought additional information and a report from her treating doctors - both her past medical practitioner in Cairns and her current general practitioner.   She told me that her Cairns practitioner told her he could not provide a report without seeing her again.  She is now under the care of Dr Khoo (exhibit A2).  Ms Munyard acknowledges that her more recent symptoms of passing out and dizzy spells cannot be taken into account because she has not undergone scans to identify why these are occurring.  

19.     In the end the issue is whether Ms Munyard has an impairment rating of 20 points, or more particularly, whether the conditions at the time of, or within 13 weeks of, the claim, could be said to be diagnosed, treated and stabilised.   This can only confidently be said of the back condition and perhaps the headaches as it seems that Ms Munyard has suffered from headaches since about the age of eighteen.  However in his most recent report Dr Khoo indicated that the diagnosis of migraine headache is only a presumptive diagnosis and for this reason I am not satisfied that the diagnosis of the condition is established. 

20.     The evidence from Dr Khoo’s most recent report is that Ms Munyard’s depression must be considered temporary. Dr Khoo’s evidence is that he has recently placed her on medication for depression, so the condition could not be said to be treated and stabilised.  Dr Khoo expects improvement.  As set out above, the Tables give a particular meaning to permanent in relation to medical conditions and if a doctor is stating, as Dr Khoo does, that he expects that her depression will improve now that she is on medication, then clearly this is not a condition that attracts a rating under the Tables.  I accept Dr Khoo’s evidence.  As the treating doctor he is in the best position to know.  His current opinion is consistent with the report of Dr Reiseger on 16 February 2003 (T4) indicating that Ms Munyard’s anxiety/depression and migraines were temporary conditions. 

21.     Given the ongoing nature of the treatment for the conditions it cannot be said that the applicant’s depression and migraines were fully treated or stabilised at the time of the claim or within 13 weeks of it.  

22.      I was satisfied on the basis of the agreed medical evidence that her back condition is permanent, but it was quite unclear what rating if any should be assigned to it.  On the reported range of movement of her back if assessed under Table 5.2 it would be NIL.  Ms Munyard told me that her walking is restricted but she reported to Dr Cuming (T13) that she could sit, stand or walk for 30 to 60 minutes.  With that amount of discrepancy it is unsafe to rate using the Table applicable to functioning of the lower limbs (Table 4), and I accept that it is correct to use the Table specifically for spinal function (Table 5.2) on which Ms Munyard must be assessed as NIL, having normal or nearly normal range of movement.   I was satisfied that she suffers minor symptoms as a result of hepatitis C, that would attract a rating of NIL under either Table 11.1 (accepting Dr Thakur’s report) or under Table 21 taking into account Ms Munyard’s evidence about frequency of attacks (exhibit A1).

24.        The Tribunal affirms the decision under review.

I certify that the  24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         
  Legal Research Officer

Date of Hearing  3 November 2005

          Date of Decision  11 November 2005
           The Applicant appeared in person
           For the Respondent  Ms C Heffner, Departmental Advocate

23.      Looking at the evidence as a whole, I was reasonably satisfied that, at the time of the claim, in March 2004, or within three months of that time, Ms Munyard did not satisfy s94(1)(b) of the Act, which requires a rating of 20 points to qualify for disability support pension.

DECISION