Pupovac and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1578
•24 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1578
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/913
GENERAL ADMINISTRATIVE DIVISION ) Re MILICA PUPOVAC Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr M Denovan, Member
Mr SC Fisher, Member
Date24 July 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...........................
Dr M Denovan
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cervical spondylosis – bilateral upper limb weakness – medical evidence – applicant does not have 20 impairment points – decision affirmed
Social Security (Administration) Act 1999 (Cth) Schedule 2, s 4
Social Security Act 1991 (Cth) s 94, Schedule 1B
Administrative Appeals Tribunal Act 1975 (Cth) s 37Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
REASONS FOR DECISION
24 July 2007
Dr M Denovan, Member
Mr SC Fisher, Member
Introduction
1. Mrs Milica Pupovac has cervical spondylosis and bilateral upper limb weakness. We have to decide whether Mrs Pupovac is entitled to receive disability support pension in respect of these conditions.
Background
2. Mrs Pupovac lodged a claim for disability support pension (T7) on 26 April 2006. Centrelink considered the claim and on 17 May 2006 rejected it.
3. Mrs Pupovac was dissatisfied with the decision of Centrelink, and she requested a review of the decision. On 16 June 2006 the original decision was affirmed. On 28 July 2006 an authorised review officer also affirmed the decision.
4. On 12 September 2006 Mrs Pupovac applied to the Social Security Appeals Tribunal (SSAT) for review of the decision. The decision was affirmed by the SSAT on 26 October 2006.
5. The application for review by the Administrative Appeals Tribunal was lodged on 13 December 2006.
Issues For Determination
6. We have to consider whether Mrs Pupovac is entitled to disability support pension in respect of cervical spondylosis and bilateral upper limb weakness. Under Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 if Mrs Pupovac does not qualify for disability support pension on the day on which she made the claim, but qualifies for it within the next 13 weeks, she is taken to qualify for it. Mrs Pupovac therefore needs to meet the criteria for disability support pension within the period of 13 weeks after the day on which the claim is made, that is from 26 April 2006 to 26 July 2006.
7. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (the Act), that is:
·Mrs Pupovac must have a physical, intellectual or psychiatric impairment; and
·her impairment must have been of 20 points or more under the Impairment Tables; and
·she must have a continuing inability to work.
Material before the tribunal
8. The following documents were admitted into evidence:
Exhibit 1 T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Job Capacity Assessment Report by Samantha Dean of 22 March 2007
Exhibit 3 Extract from the Guide to Social Security Law, section 3.6.2.100 “DSP Assessment of Impairment Ratings”
Exhibit 4 Extract from the “A Guide to the Tables for the Assessment of Work- Related Impairment for Disability Support Pension”
Exhibit 5 Three x-ray reports from Queensland X-Ray, dated 21 March 2006, 18 April 2005, and 16 December 2005
Exhibit 6 Medical Certificate from Dr Stevenson dated 26 February 2007
Exhibit 7 Marriage Certificate of the Applicant
Exhibit 8 Letter from the Applicant regarding her arrival in Australia
Exhibit 9 Medical report by orthopaedic surgeon, Dr Soares dated 19 February 2007
Exhibit 10 Medical report by neurologist, Dr Limberg dated 13 December 2006
Exhibit 11 Queensland X-Ray MRI report by Dr Legh dated 25 January 2006
Evidence of the Applicant
9. Mrs Pupovac gave evidence in person. The gist of her evidence is summarised as follows:
10. Mrs Pupovac has pain every single day. She can dress and wash her hair, however these activities take considerable time. It takes her double the average time to get ready for an appointment because of her disabilities. Mrs Pupovac relies on her son and her granddaughter for assistance with washing and housework.
11. Mrs Pupovac’s medical conditions have destroyed all aspects of her life, because she has to rely on help from family and friends.
12. Mrs Pupovac’s pain is in her lower back, neck and shoulders. She has a pinched nerve and as a result cannot do anything with her left hand. Mrs Pupovac requires medication all of the time. She takes four panadeine forte tablets a day. The pain interferes with her sleep and Mrs Pupovac often gets up and wanders around during the night.
13. In relation to her left shoulder, Mrs Pupovac has had five injections spaced at intervals of four weeks. It was hoped that these injections would heal torn muscle fibres, however they did not help and she still suffers from left shoulder pain. Mrs Pupovac has no pain in her right shoulder and has received no treatment for the right shoulder. Mrs Pupovac had pain in her left fingers and hand prior to injuring her left shoulder 28 months ago.
14. Mrs Pupovac cannot hold anything with her left hand. She wears a splint four hours a day and all night.
15. Mrs Pupovac has some pain in her right hand and she believes her fingers are starting to develop the same deformities that she suffers in the left hand. The pain in her right hand occurs at the end of the day after Mrs Pupovac has held onto her cane. Mrs Pupovac can still use her right hand to cut food, prepare meals, wash her hair and carry things. She can also write.
16. Mrs Pupovac had an operation on her left knee in May 2005. For the last eight months she has needed the assistance of a walking stick to move about. The pain has progressively worsened and she now can walk only 50-100 metres. Mrs Pupovac can shop unassisted, however she leans on the shopping trolley.
17. In relation to her lower back pain, Mrs Pupovac cannot sit for more than 20-30 minutes. She can walk for a little less than that. Mrs Pupovac can stand for five to ten minutes. These restrictions are due to a combination of neck and lower back pain. Dr Soares told her that she could become paralysed by any sudden movement of her neck.
18. Mrs Pupovac was working until March 2006. Mrs Pupovac was a process worker and until she injured her left shoulder was required to lift weights of 18-25 kilograms. Mrs Pupovac injured her left shoulder in November 2005 and was placed on restrictions at work by Dr Soares. Mrs Pupovac would have a 15 minute break every 45 minutes, and her lifting was restricted to 5 kilograms. She was able to use both hands at the time, however her ability to function has considerably worsened since that time.
Evidence of Maria Djuric
19. Ms Djuric gave evidence at the Tribunal hearing in person. She was not under oath. Ms Djuric said that when she first met Mrs Pupovac, Mrs Pupovac never had a day off and cooked fresh food. Their common interest was gardening and Mrs Pupovac would participate in the gardening. Since March 2006 Ms Djuric has noticed that Mrs Pupovac’s garden is dead. Ms Djuric has also observed that since that time Mrs Pupovac eats mostly frozen vegetables, and eats off plastic plates. Ms Djuric said that this is because Mrs Pupovac was breaking her china, and she recalls Mrs Pupovac asking her to help her buy a new dinner set because she had broken so many pieces of her old one. Ms Djuric has noticed many cracks in the tiles at Mrs Pupovac’s home, which she believed could have been caused by Mrs Pupovac’s accidental breakages.
20. Ms Djuric said that she now assists Mrs Pupovac by taking her shopping and to doctor’s appointments.
Medical evidence
Dr Soares
21. Dr Soares provided treating doctor’s reports dated 20 April 2006 (T9), and 19 July 2006 (T37).
22. In the earlier of these reports Dr Soares identified cervical spine osteoarthrosis as Mrs Pupovac’s only condition. Dr Soares said that Mrs Pupovac suffered from pain in the neck and in both arms, severe pain and weakness, difficulty sleeping and an inability to work due to pain. Dr Soares reported the impact on Mrs Pupovac’s capacity to function as difficulty working, and an inability to sit for greater than 15 minutes in one spot. Dr Soares noted that Mrs Pupovac could mange her own self care. He said that the condition was likely to persist for more than 24 months, and was likely to deteriorate.
23. In the second treating doctor’s report Dr Soares provided the diagnoses of cervical myelopathy and left shoulder impinged/cuff tear. Dr Soares said that Mrs Pupovac had difficulty with using her hands and performing tasks for more than 15 – 20 minutes at a time. Dr Soares indicated that Mrs Pupovac had pain in her left shoulder, limited range of movement and difficulty with everyday tasks as well as difficulty raising her arm above shoulder height. Dr Soares opined that Mrs Pupovac’s shoulder condition would persist for 3-24 months, and would fluctuate.
24. In his report dated 19 February 2007 Dr Soares identified cervical spine arthritis and bilateral upper limb weakness as the conditions that Mrs Pupovac was suffering from on or within 13 weeks from 26 April 2006. In relation to cervical arthritis, Dr Soares said that Mrs Pupovac had pain in her neck and radiating down both arms, which was present each day and was disabling. Dr Soares recommended 10 impairment points from Table 5.1. In relation to bilateral upper limb weakness he said that Mrs Pupovac has weakness in both hands with loss of both fine motor function, and weakness and pain with shoulder abduction. Using Table 3, Dr Soares assessed Mrs Pupovac as 10 impairment points in her dominant limb and 5 impairment points in her non-dominant limb (exhibit 9).
25. Dr Soares gave evidence at the hearing by telephone. He had his clinical notes and the applicant’s file with him.
26. Dr Soares said that he had seen the applicant about eight times. Mrs Pupovac presented in November 2005 with problems in both arms. Mrs Pupovac had pain in her shoulder and weakness in her hands. Dr Soares said that on examination Mrs Pupovac had reduced grip strength in both hands and wasting of her intrinsic muscles of both of her hands. She also had trigger deformities in her fingers.
27. Dr Soares said that his reference to injections in both shoulders (exhibit 9) in his letter dated 19 February 2007 was incorrect. Dr Soares confirmed that Mrs Pupovac had problems only in her left shoulder and that was the only shoulder that had been treated with injections.
28. Dr Soares said that he thinks Mrs Pupovac had pain and weakness to about the same degree in both hands. Dr Soares did not think that because Mrs Pupovac could drive her car or push a trolley, she did not have weakness in her hands.
29. Dr Soares said that Mrs Pupovac’s cervical spondylosis would have been aggravated by the heavy lifting she was performing at work. This would have pinched her nerves and made her hand symptoms worse. Dr Soares felt it was likely that Mrs Pupovac’s symptoms would have improved after she ceased work. This would explain why Mrs Pupovac says that her pain in the right hand occurs at the end of the day, and she is not currently reporting weakness in that hand.
30. Dr Soares said that he did not recommend surgery for Mrs Pupovac’s neck as spinal surgery to multiple levels is not associated with good results. He said that Mrs Pupovac was a candidate for surgery to her left shoulder; however he did not consider that her shoulder would be significantly better within the next two years even if Mrs Pupovac did undergo surgery.
Dr Malik
31. Dr Malik provided a medical certificate dated 10 April 2006 in which he stated the applicant had calcific tendonitis and a complete tear of the supraspinatus left shoulder. He said that there was a history of left shoulder pain for one year.
32. Dr Malik provided a treating doctor’s report dated 15 June 2006. In that report Dr Malik listed Mrs Pupovac’s conditions as supraspinatus tendonitis left shoulder, cervical spondylosis and meniscus injury left knee.
Work Capacity Participation Assessment
33. On 5 May 2006 Mrs Pupovac attended a work capacity assessment. The respondent conceded that should the Tribunal find that Mrs Pupovac has 20 or more impairment points, they accept that she has an inability to work. For this reason the full details of the work capacity report are not discussed here. Relevant to the matter of impairment points however, is the description of the impact of Mrs Pupovac’s conditions recorded in that document.
34. It was noted that Mrs Pupovac reported increased difficulty with rotation of her neck when driving her vehicle, performing shoulder checks and reversing. Mrs Pupovac reported being independent and capable of performing all activities of daily living, and domestic duties and stated that she lives alone. Mrs Pupovac stated that her son performs yard maintenance duties. She reported avoiding lifting and carrying with her left arm and stated when grocery shopping she pushes the trolley with her right arm dominantly. She said she uses her right arm to load and unload grocery bags. Mrs Pupovac reported having decreased strength and sensation in her left upper limb and stated that she takes her time when performing laundry and hanging clothes on the line. She said when cutting vegetables she is careful as her left hand has decreased grip strength when holding vegetables while chopping.
The Legislation
35. The Tribunal noted that each of paragraphs (a) – (e) of section 94(1) must be satisfied before a person qualifies for disability support pension. The general approach to section 94 cases was summarised by Drummond J of the Federal Court of Australia in the case Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500 at 501:
“Section 94(1) the Social Security Act 1991 (Cth) declares that an applicant for a disability support pension must satisfy the five criteria there set out to be qualified for the grant of that pension. Under s 37 of the Social Security (Administration) Act 1999 (Cth) (formerly s 114 of the Social Security Act), the Secretary can only determine to grant the pension if he is satisfied that the applicant then, that is, at the date of determination of the pension claim, meets those criteria. Having determined that an applicant has an impairment which satisfies each of the criteria in s 94(1)(a) and (b) at that date, the Secretary will next have to determine whether the applicant satisfies the criterion in s 94(1)(c)(i), as defined in s 94(2), that is, to determine whether, at the date of deciding the pension claim, that particular impairment is sufficient of itself to prevent the applicant from doing any work, as defined in s 94(5), within the next two years, that is, the two years following the date of the decision.”
Findings of Tribunal
Impairment ratings
36. Impairment Tables are included in Schedule 1B of the Act. Before an impairment rating can be assigned under the Impairment Tables the condition must be considered to be permanent. To be considered permanent, a condition must have been diagnosed, treated and stabilised, and will more likely than not, persist for the foreseeable future.
37. In order to assess whether a condition is fully diagnosed, treated and stabilised we 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 two years.
38. The Respondent contends that the applicant’s lower back pain and left knee pain cannot be assigned a rating under the Impairment Tables because there is not sufficient medical information pertaining to these conditions to allow the Tribunal to be satisfied that they are fully treated, stabilised and permanent conditions. We agree. Dr Soares has made no mention of either of these conditions and Dr Malik has provided only very limited details about Mrs Pupovac’s knee and makes no reference to her lower back pain.
39. The Respondent accepts that the applicant’s cervical arthritis, bilateral upper limb weakness and left rotator cuff syndrome are permanent conditions. We agree that they are permanent conditions. That is the evidence of Dr Soares, which we accept on this point.
40. We have some difficulty with the respondent’s concession that Mrs Pupovac’s left rotator cuff syndrome could be regarded as permanent during the relevant time period. The evidence of Dr Soares is that during that time Mrs Pupovac was having treatment by way of cortisone injections and the prognosis of the condition was uncertain. Dr Soares estimated the condition would persist 3-24 months in July 2006 We have decided to consider the matter on the basis that the applicant’s left rotator cuff syndrome was a permanent condition as, for the reasons given below, that assumption makes no difference to our decision.
41. The Impairment Tables for loss of function of the upper limbs and neck are Tables 3 and 5.1, respectively. They read as follows:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
TABLE 5. SPINAL FUNCTION
Determination of spinal impairments must be based on a demonstrable loss of function.TABLE 5.1 Cervical spine
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement.
TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.TWENTY Loss of three-quarters of normal range of movement and constant neck pain.
THIRTY Loss of almost all movement, or complete ankylosis in position of function.
FORTY Ankylosis in an unfavourable position, or unstable joint.
42. The Respondent accepts that Mrs Pupovac’s cervical arthritis attracts 10 impairment points from Table 5.1, and that her left arm conditions (left rotator cuff syndrome and left arm weakness) attracts 5 impairment points from Table 3. We agree.
43. In relation to the applicant’s right (dominant) arm, it is Dr Soares’ evidence that Mrs Pupovac was experiencing pain down both arms and difficulty using both hands since the time she first consulted him. Dr Soares’ evidence is not supported by either contemporaneous evidence included in the work capacity assessment, or the evidence provided by Mrs Pupovac at the hearing. We therefore conclude that during the relevant period Mrs Pupovac’s right arm condition attracts nil impairment points.
44. This means Mrs Pupovac has a total impairment rating of 15 points.
Ability to work
45. As stated above, the respondent concedes that if the Tribunal found Mrs Pupovac to have 20 or more impairment points then she would meet the inability to work requirement. Mrs Pupovac did not during the relevant time period have 20 impairment points, and it is unnecessary for us to consider the matter of her ability to work any further.
Decision
46. The five eligibility criteria for disability support pension in section 94 are cumulative. So if Mrs Pupovac in this case does not satisfy all of them, then it follows that Mrs Pupovac is not qualified for disability support pension. In this case, Mrs Pupovac does not satisfy all of the section 94 criteria because the evidence before us does not establish that she suffers from permanent medical conditions that attract an impairment rating of 20 points or more under the Impairment Tables within section 94(1)(b). Therefore, Mrs Pupovac does not qualify for the payment of disability support pension under the Act.
47. We affirm the decision under review.
48. We were told during the hearing that Mrs Pupovac had applied again for disability support pension some time after the application for this benefit which is the subject of this hearing. For completeness, we have recorded this, but of course we have not taken it into account in reaching a decision.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member and Mr SC Fisher, Member
Signed:…………………………………………………………….
Legal Research OfficerDate/s of Hearing 3 May 2007 and 7 June 2007
Date of Decision 24 July 2007
The Applicant was unrepresented, but assisted by her friend Ms M Djuric
The Respondent Mr M Black
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