Muylle and and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1132

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1132

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2006/865

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		FRANCOISE MUYLLE

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Miss E.A. Shanahan

Date16 February 2007

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – Disability Support Pension – level of impairment less than 20 points – osteoarthritis of the lumbar spine – depression – recent deterioration ‑ decision affirmed.

Social Security Act 1991  s 94

REASONS FOR DECISION

16 February 2007 Miss E.A. Shanahan          

1.      Mrs Muylle lodged a claim for a Disability Support Pension (DSP) on 28 February 2005 based on her near-constant back pain due to osteoarthritis of the lumbar spine.  Mrs Muylle is aged sixty.  She ceased employment as a process worker six years ago when her employer closed its business.  For the past four years she has performed voluntary work as a Pink Lady at the Frankston Hospital.  This involves four hours of work per week arranging and changing patients’ flowers in the wards and four hours per week making sandwiches in the hospital café.  She enjoys this work but finds it very tiring.

2.      Mrs Muylle’s claim was rejected on 7 April 2005 by a Centrelink delegate, as Mrs Muylle’s medical condition was assessed as having an impairment rating of nil points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  Centrelink is the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent).  Mrs Muylle was also assessed as not having a continuing inability to work.  In response to this decision Mrs Muylle developed a mild anxiety and depression condition.  Mrs Muylle sought an internal review of this decision.  An Authorised Review Officer (ARO) affirmed the decision on 16 February 2006, Mrs Muylle sought a review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 2 August 2006. 

3.      At the hearing Mrs Muylle was self-represented and spoke with the assistance of a French interpreter.  Mrs Muylle, her husband George and her son Chris gave evidence.  The Respondent was represented by Mr Faisal Bakhtiar, an advocate with Centrelink. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents, Exhibit R1), a report from Mrs Muylle’s family doctor, Dr Joshua Honig (Exhibit R2) and a Job Capacity Assessment Report dated 23 November 2006 (Exhibit R3).   

EVIDENCE BEFORE THE TRIBUNAL

The Applicant

4.      Mrs Muylle confirmed that her activities were restricted by her near constant back pain which was aggravated by walking, stooping and prolonged physical activity.  She had first noted back pain in the year 2001 when still working at Fujitsu Australia but did not seek medical attention for sometime thereafter.  Having been retrenched when Fujitsu closed its operations in Melbourne, she had gone to Centrelink in order to obtain employment but no suitable jobs were found as her back pain limited her in what she could do.  For the past four years she had worked in voluntary capacity as a Pink Lady at the Frankston Hospital for a total of eight hours per week in two sessions of four hours.  While she greatly enjoyed this work she found it very tiring.  She felt that her back had deteriorated in the past two years as her pain was becoming more severe and her movement more limited.  

5.      Mrs Muylle agreed she had developed symptoms of anxiety and/or depression after the rejection of her application for DSP in early 2005 and that this condition had been treated by her General Practitioner, Dr Honig.  She had not seen a psychologist or psychiatrist.  Dr Honig had prescribed anti-depressants but she did not tolerate this medication.  She was currently taking celebrex for her back pain and a sleeping tablet at night.  She has not been able to do much in the way of housework nor household shopping for several years.  Her husband assisted with the housework and did the shopping, the ironing and most of the cooking.  She is able to drive a car for short distances.  Her car has power steering.  She drives to Frankston Hospital twice a week and this trip takes her 10 minutes.  The Tribunal asked Mrs Muylle if she had undertaken other forms of treatment such as physiotherapy.  She replied that she had not because she did not like people touching her but she had been performing exercises as prescribed by Dr Honig.   She said hydrotherapy had also been recommended but she was fearful of this therapy as she is unable to swim. 

Mr George Muylle

6.      Mr George Muylle is the Applicant’s husband.  He confirmed that he did most of the shopping, although his wife frequently accompanied him.  He carried the shopping bags and at home he did most of the cleaning, washing, ironing and cooking.  Neither he nor his wife did any gardening because of the drought rather than any other reason.  Mr Muylle did visit his son frequently and their son came to visit them three to four times per week, apart from that Mr and Mrs Muylle did not socialise.  Mr Muylle said he had been teaching French at the Third Age University but was currently having twelve months off from work.  He confirmed that his wife does do her exercises as prescribed by Dr Honig everyday, although the extent of these exercises varied depending on her pain level.

Mr Chris Muylle

7.      Mr Chris Muylle is the Applicant’s son.  He said he had lived at home until 2004.  Prior to that he had noticed that Mrs Muylle was generally slowing down and has become progressively worse over the last two or more years.  He is required more frequently to assist his mother in terms of doing the shopping and household chores.  He had also noted that in the past twelve months his mother had been very reluctant to participate in family functions. 

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

Dr Honig - Treating General Practitioner

8.      Dr Honig has provided several reports over some 15 months, but these are best summarised in his report dated 29 October 2006 (Exhibit R2).  Mrs Muylle first presented to Dr Honig’s practise on 10 August 2001 with mild musculoskeletal lower back pain which was said to be work related.  She was next seen in relation to her back pain on 30 November 2004 when she described months of right sided lumbosacral pain and stiffness.  Examination at that time revealed tenderness in the region of the right sacroiliac joint but there was a full range of spinal movement.  Dr Honig prescribed an anti-inflammatory drug (mobic 15mg) and physiotherapy.  To Dr Honig’s knowledge, Mrs Muylle had not undertaken any physiotherapy treatment.  An x-ray of the lumbosacral spine on 1 December 2004 showed a mild lumbar scoliosis, decreased disc height at L5/S1 and associated L5/S1 facet arthropathy.  Following this investigation, her anti-inflammatory medication was changed to celebrex and glucosamine.  She was also given some exercises for her back.  Mrs Muylle had suffered from asthma for many years but this had been well controlled with the use of the inhaler Pulmicort.

9.      Following the rejection of her claim for DSP, Mrs Muylle presented to Dr Honig with emotional stress resulting from the rejection of her claim.  Given that her spinal range of movement was normal in February 2005, Dr Honig was unable to allot any impairment points under the Tables to this condition.  He did however assess Mrs Muylle as having 10 impairment points in terms of psychiatric condition as of 28 February 2005. 

10.     In his report dated 29 October 2006 Dr Honig did comment on the deterioration in Mrs Muylle’s back symptoms and range of movement since his earlier reports. 

JOB CAPACITY ASSESSMENTS

11.     Mr Glenn Jordan, a Rehabilitation Consultant, provided a work capacity assessment dated 21 March 2005 (T6, p38-48) at the Respondent’s request.  In summary, this assessment found Mrs Muylle had full potential work capacity in the following two years.  Ms Larissa Natividad, a Rehabilitation Consultant, conducted a further job capacity assessment on 23 November 2006.  While this assessment is not relevant to the decision under review, it does document a reduction in the movement of Mrs Muylle’s lumbar spine to half the normal range; and it recommends a rehabilitation program in the form of physiotherapy and/or hydrotherapy, a pain management program and vocational rehabilitation.  This report tends to support Mrs Muylle’s contention that her condition has deteriorated in the past two years. 

THE SSAT DECISION

12.     On 2 August 2006 the SSAT affirmed the decision of the primary delegate and the ARO on the basis that Mrs Muylle did not have an impairment rating of 20 points. Nor did she have a continuing inability to work.  Mrs Muylle’s anxiety and depression had not been fully investigated, treated and stabilised.  As a result Mrs Muylle did not meet the requirements of s 94(1)(b) and (c) of the Act.   The parties agreed that she did meet the requirements of s 94(1)(a), in that she suffered from osteoarthritis of the lumbar sacral spine, stress and mild depression and well controlled asthma. 

RELAvant LEGISLATION

13.     The Act provides that:

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)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and …

SUBMISSIONS

14.     The Applicant relied on the evidence before the Tribunal and did not make a formal submission. 

15.     The Respondent relied on its Statement of Facts and Contentions and the evidence before the Tribunal, that Mrs Muylle did not satisfy s 94(1)(b) of the Act in relation to the impairment points necessary to attract payment of the DSP. 

TRIBUNAL’S DELIBERATIONS

16.     Mrs Muylle has documented osteoarthritis of the lumbosacral spine, mild depression and well controlled asthma.  She therefore satisfies the requirement of s 94(1)(a) of the Act. 

17.     Section 94(1)(b) of the Act requires that these conditions attract an impairment rating of 20 points under the Tables.  The only medical evidence before the Tribunal has been provided by her treating General Practitioner, Dr Honig.  At the time of Mrs Muylle’s application for the DSP, Dr Honig assessed her impairment points with respect to her lumbosacral spine as nil.  On Mrs Muylle’s and Dr Honig’s evidence, Mrs Muylle’s depression and anxiety developed following the rejection of her claim for DSP.  Dr Honig subsequently assessed Mrs Muylle’s impairment due to her depression as attracting 10 impairment points.  At the time the decision was made Mrs Muylle’s depression had not been fully investigated, treated and stabilised and the prognosis was unknown.  As Mrs Muylle’s asthma has always been well controlled it does not attract any impairment points. 

18.     On the evidence before the Tribunal Mrs Muylle did not satisfy the requirements or qualifications for the DSP in April 2005. 

19.     Therefore, the Tribunal affirms the decision under review. 

20.     The Tribunal has advised Mrs Muylle to obtain an assessment by a psychologist.  Given that she and Dr Honig believe her condition has deteriorated in the past 12 to 18 months, in terms of her back pain and functional limitations and with respect to her depression, the Tribunal advised her to re-apply for the DSP after obtaining the psychologist’s assessment.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:  

Miss E.A. Shanahan, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  16 February 2007

Date of Decision:  16 February 2007
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr F. Bakhtiar, Centrelink, Legal Services Branch