Ryan and Secretary, Department of Family and Community Services

[2000] AATA 201

DECISION AND REASONS FOR DECISION [2000] AATA 201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/398

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MARLENE FRANCES RYAN      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date16 March 2000

PlaceBrisbane

...............(Signed)...............................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
SOCIAL SECURITY – Disability Support Pension
Social Security Act 1991: s.94

REQUEST FOR WRITTEN REASONS FOR DECISION

16 March 2000        Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision to reject an application by Marlene Frances Ryan for the Disability Support Pension (DSP).

2. Mrs. Ryan complains of the following disabilities:

   (i)Unstable ankles

   (ii)Degenerative back disease

   (iii)Osteo-arthritis of the right knee, and

   (iv)Right shoulder injury

1. The relevant legislation relating to the qualifications for DSP is contained in s.94 of the Social Security Act 1991 (the Act).

   "94(1) [Qualification – continuing inability to work]  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"

1. The Tribunal was assisted by the following material, contained in the following medical reports.

   (i)Dr. Simon Dempsey, FRACS, 20 December 1994

   "I reviewed this young woman back today with regard to the recurrent instability of her left ankle.  She did note some improvement in the pain over the lateral malleolus following my injection but then sustained a re-injury of the ankle.  She states that she has been over on the ankle three further times since last seen by myself.  She also has complaints of pain in various locations about the ankle and foot.  She complains of swelling of both ankles.
   I have been unable to demonstrate any clear structural problem as the cause of this young woman's recurrent instability of the ankle.  As such I believe the treatment that would most likely meet with success would be proprioceptive exercises and strengthening of the peronei.  This has already been undertaken without a great deal of success.  I do not think operative intervention would be useful here.  I have provided Marlene with an ankle wrap but have not arranged further followup at this stage.
   I am interested to note that there was a substantial injury of the right ankle some years ago with radiographic evidence of laxity in 1991 and again with my radiograph.  Despite this she is little troubled by this ankle.  I think we could expect the same outcome with the left ankle with time."

(ii)Dr. Martin, Fracture Clinic, 20 October 1995

"Mrs. Ryan returns today for removal of cast and check x-ray.
On examination the foot remains swollen and slightly tender over the medial malleolus.  It is neurovascularly intact and x-rays show good healing at the fracture site.
The plan is for her to mobilise freely on this and we will see her in six weeks' time for a clinical check.  I have asked her to get some physio organised in the meantime as I am a wee bit suspicious she is developing a RSD type syndrome."

(iii)Dr. G. Thomas, Radiologist, 3 July 1996

"RIGHT KNEE
There is a slight decrease in the joint space of the medial joint compartment.  There is also a little osteophytic lipping.  No other abnormality is seen."

(iv)Dr. Quentin Reeves, Radiologist, 4 February 1997

"LUMBO-SACRAL SPINE:  The lumbar vertebral bodies and disc spaces are unremarkable.  Minor osteophyte formation seen in the vicinity of the thoraco-lumbar junction.  There is mild dextrorotation of the spine.  No scoliosis.
CHEST:  Cardiac and mediastinal contours are normal.  Lungs are fully inflated and clear."

(v)Dr. E.W. Jamieson, Orthopaedic Surgeon, 22 December 1997

"This patient was seen today at the Orthopaedic Outpatient Clinic and the following is a copy of the report:
'She has a long history of pain in both ankles secondary to injuries and letter from her doctor who has asked for an opinion as to whether she should be on a sickness benefit.  She describes persistent pain which prevents her walking very stably and well, and also her ankles give way and she falls from time to time.
On examination today she walks quite stably and well but both heels are inverted.  The heels of her shoes are wearing down very badly towards the outer side.  She has quite a good range of movement in the ankles with approximately 10o dorsiflexion and 30o plantar flexion.  She has x-rays of both ankles taken today and demonstrate some lipping about the medial malleolus of the left ankle and possibly a small flake avulsion from the tip of the lateral malleolus.  On the right side she has an old injury to the tip of the medial malleolus.
Her symptoms are probably largely due to the varus position of her feet and poor stability.  She should be wearing thick soled shoes with a lateral heel flare and this is to be arranged through Central Orthotics.  She states she has an ACC claim for both of her feet and presumably ACC will cover the cost of footwear modifications.  She is not a surgical candidate.
It is difficult for me to comment as to whether or not she should be on a sickness benefit.  I would have thought she should come under ACC 'umbrella'."

(vi)Dr. B.S. McMenamin, Radiologist, 2 June 1999

"LUMBAR SPINE
All the disc spaces are intact.  Minor degenerative changes are noted on the vertebral bodies.  There is no evidence of subluxation.  The S1 joints are normal.
BOTH ANKLES INCLUDING STRESS VIEW
On the right side the stress views show evidence of disruption of the lateral ligament.  The articular surfaces are smooth and regular. An ossicle is seen beneath the tip of the lateral malleolus due to an old avulsion fracture.  No other abnormality is seen."

(vii)Dr. P. Raferty, Radiologist, 5 October 1999

"RIGHT KNEE
Moderate osteoarthritis involves the knee joint with particular narrowing of the medial compartment and a resulting varus deformity.  A small loose body is present posteriorly."

1. The above medical reports show that Mrs. Ryan has:

   (i)Some problems with her ankles which could be improved with exercise and suitable footwear.

   (ii)Moderate osteo-arthritis in her right knee.

   (iii)Very little wrong with her back.

1. Mrs. Ryan was examined by Dr. T.A. McGrath on 13 January 1999 for the purposes of assessing her impairment under the Impairment Tables of the Social Security Act 1991. Dr. McGrath made the following findings.

   (i)"Lumbar Back Pain

   normal range of movement thoraco lumbar spine
   Table no. 5.2. Impairment 0%"

(ii)"Ankle fractures, Knee pain

loss of stability causing moderate interference with walking climbing
Table no. 4 Impairment 10%"

(iii)"Asthma

exercise tolerance more restricted by ankle pain"

(iv)"Right Shoulder Injury

normal range of movement shoulders normal grip and dexterity
Table no. 3 Impairment 0%"

1. Mrs. Ryan's impairment does not rate more than 10 points under the Impairment Tables. She does not satisfy sub-section 94(1)(b) under the Act. She does not qualify for the DSP.

2. The decision to reject her claim is affirmed.

   I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date/s of Hearing  25 January 2000
   Date of Decision  16 March 2000
   Applicant  Mr. & Mrs. Ryan, self-represented
   Respondent  Ms. J. Dwyer, departmental advocate