Sanderson and Secretary, Department of Employment and Workplace Relations

[2006] AATA 311

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 311

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/813

GENERAL ADMINISTRATIVE DIVISION		)
Re		RHONDA SANDERSON

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date5 April 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

……….[Sgd]……….

M Denovan
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – knee injury – relevant timeframe for qualification – condition not investigated, treated and stabilised in relevant timeframe – impairment rating less than 20 points

Social Security Act 1991 s 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2

REASONS FOR DECISION

5 April 2006 Dr M Denovan, Member     

Background

1.      On 2 March 2005, Rhonda Sanderson completed a claim form for disability support pension, a type of social security payment which is payable in accordance with the terms of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). She lodged this claim with Centrelink, the statutory authority within the portfolio of the Department of Employment and Workplace Relations (the respondent), on 2 March 2005. Her claim was rejected by a delegate of Centrelink on 17 May 2005 and, on further review, by an authorised review officer on 10 October 2005 and the Social Security Appeals Tribunal on 22 November 2005.

2.      Ms Sanderson lodged an application for review by the Administrative Appeals Tribunal (the Tribunal) on 14 December 2005.

Hearing

3.      Ms Sanderson was not represented and appeared in person before the Tribunal.  The respondent was represented by Ms C Heffner. At the hearing, submissions in writing were tendered by Ms Sanderson and Ms Heffner.

Issues and Legislation

4. To qualify for a disability support pension, the requirements in subsection 94(1) of the Act must be met. It reads:

“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;

…….”

5. It is not disputed that Ms Sanderson has a physical impairment in that she suffers neck pain/chest pain, neuropathic pain in her right arm, and depression. In addition to these conditions, it has been suggested that Ms Sanderson has fibromyalgia and vertebral subluxation. The issue is whether Ms Sanderson can be allocated an impairment rating for some or all of those conditions, and, if so, whether the threshold of 20 points is satisfied. In accordance with subsection 39(3) and clause 4 of Schedule 2 of the Administration Act, the qualifying criteria must be met on the date of her claim or within 13 weeks of that date. The respondent concedes that Ms Sanderson meets the requirements of s94(1)(c) of the Act, that is, she has a continuing inability to work.

Submissions

6.      Ms Sanderson contended that she is severely disabled because of her medical conditions, and that she meets the legislative requirements for disability support pension. She contended that she had been under-assessed in relation to pain in her arm and neck, because in addition to the 10 impairment points allocated from Table 3, she should have been allocated 10 or 15 points from Table 20 for chronic pain. In relation to her fibromyalgia, Ms Sanderson contended that this is a permanent condition and should be allocated a rating. Ms Sanderson contended that she should have also been allocated an impairment rating for vertebral subluxation, diagnosed by her chiropractor, Justin Peatling.

7.      Ms Heffner submitted that Ms Sanderson’s neck and chest pain, and her depression each warrant an impairment rating of nil points, and her neuropathic pain in the right arm warrants an impairment rating of ten points. She further submitted that the applicant’s condition of fibromyalgia should not be considered in this application, as it is was first diagnosed outside of the relevant timeframe of 13 weeks following the claim on 2 March 2005. In the alternative, Ms Heffner submitted that the condition of fibromyalgia is temporary as the evidence does not reflect that the condition will persist for the next two years. She submitted that as Ms Sanderson fails to obtain an impairment rating of 20 points or more, this meant that the terms of paragraph 94(1)(b) of the Act could not be met and that Ms Sanderson was not qualified for the disability support pension.

Evidence

8.      The evidence before the Tribunal includes the following medical reports:

·Dr N Cook, Rheumatologist, dated 14 September 1998

·Dr T Chai, general practitioner, dated 1 March 2005

·Dr Ochtman, Health Services Australia, dated 20 April 2005

·Dr Sundar, general practitioner, dated 26 July 2005

·Dr Spenser, Rheumatologist, dated 8 July 2005

·Dr H Pant, Health Services Australia, dated 19 August 2005.

Neck and chest pain

9.      Ms Sanderson developed neuropathic pain in her right arm and pain in her neck and chest approximately three months after a workplace accident that occurred in November 1988.  Ms Sanderson said that, in addition to constant neck pain, she has episodes of severe neck pain. She said that the range of movement in her neck varied according to the degree of pain that she was experiencing.

10.     She thought that the range of movement in her neck was probably normal at the time Dr Ochtman’s report was prepared, and remained normal until she developed an exacerbation of her neck pain in May 2005, after she completed a few days in a work placement. From that time she suffered from severe neck pain and reduced range of movement until approximately December 2005 when the weather warmed up.

11.     Ms Sanderson questioned the reliability and accuracy of the information contained in the report of Dr Ochtman, as she was assessed by a nurse practitioner and did not see Dr Ochtman personally. 

12.     Ms Sanderson referred to the report of Dr Spenser, and said that he correctly observed her as having restriction of movement in all areas of the spine. It follows, according to Ms Sanderson that the reduced range of movement in her neck commenced within the relevant 13 week period, entitling her to an impairment rating for reduced cervical spine function.

13.     Dr Spenser’s report did not quantify the percentage reduction of spinal movement. Further, Dr Spenser noted that Ms Sanderson’s pain was exacerbated by her daughter leaving home and by the death of her father. He opined that Ms Sanderson’s major disability was that of a chronic psychological state which leads to a persisting problem in her musculoskeletal system.  Dr Spenser suggested that a psychological or psychiatric opinion would be appropriate.  Dr Pant, who has not seen Ms Sanderson, and prepared his report on the basis of a file review, agreed with the assessment of Dr Ochtman. None of the other doctors refer to Ms Sanderson having a reduced range of movement of her neck.

Neuropathic pain in the right arm

14.     Dr Chai reported that Ms Sanderson claimed she was unable to sit for prolonged periods of greater than 20 minutes; that she is unable to hold her right arm upright for prolonged periods and that she has right arm pain with repetitive typing. Dr Ochtman noted Ms Sanderson has pain in her right arm with activities such as writing, keyboarding or holding objects for more than 15 minutes, but that she is independent in all of her household activities. Both Dr Ochtman and Dr Pant reported that Ms Sanderson has a moderate impairment of her right upper limb function.  Ms Sanderson’s evidence at the hearing was consistent with the findings of Dr Chai and Dr Ochtman.

Depression

15.     Dr Chai noted that Ms Sanderson’s depression was having minimal impact on her ability to function. Dr Ochtman noted that Ms Sanderson has suffered from depression since the accident in 1988 and that she has been treated with both psychological counselling and medication.  Dr Sundar did not diagnose depression. He opined that Ms Sanderson suffered from a chronic psychological state, treated with counselling, which caused minimal or limited impact on her ability to function. Ms Sanderson told the Tribunal that she has never been hospitalised or referred to a psychiatrist in relation to her depression. She said that she is currently taking no medication and having no counselling for the condition.

Fibromyalgia

16.     Dr Sundar is the only doctor who has provided a diagnosis of fibromyalgia.  He describes symptoms similar to that diagnosed as neck and chest pain/right arm neuralgia by the other medical practitioners, and similarly states that the symptoms commenced in 1988. It was Ms Sanderson’s evidence that the symptoms that Dr Sundar attributed to fibromyalgia were the same symptoms as those due to her neck and chest pain/right arm neuralgia.  Ms Sanderson said that her current general practitioner, Dr Hebron, has questioned the diagnosis of fibromyalgia.  She said that rheumatologist, Dr Spenser, did not suggest that she had fibromyalgia.

Vertebral subluxation

17.     This is a diagnosis opined only by the chiropractor. Further, Mr Peatling stated that the diagnosis was presumptive. He puts the date of onset as 1988. He described neck, mid back and lower back pain, sharp in nature, severe in intensity, continually present, and referred into buttock, thigh, and right shoulder.

Consideration

18.     Functional impairment due to spinal conditions such as neck pain is assessed under Table 5.1 in Schedule 1B of the act.

19.      The criteria read:

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.

20.     The reports of Dr Chai and Dr Sundar are of limited assistance as neither commented on the range of movement in Ms Sanderson’s neck. The only reports that refer to the range of neck movement are those of Dr Ochtman and Dr Spencer. Whilst Dr Spencer did observe some reduction in the range of movement in Ms Sanderson’s neck, he did not quantify the reduction.

21.      Not withstanding the fact that Ms Sanderson was examined by a nurse practitioner and not by Dr Ochtman personally, the Tribunal considers that the observations of a qualified nurse, trained to objectively measure range of movement, give a reasonable estimation of the range of movement in Ms Sanderson’s neck on which Dr Ochtman could base his opinion. The Tribunal accepts Dr Ochtman’s conclusion that Ms Sanderson rates nil for her neck condition, because the range of movement is ‘normal or nearly normal’.

22.     Impairment of upper limb function is assessed under Table 3.  The criteria read:

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.

TENDemonstrable 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.

23.     Dr Chai’s observations of Ms Sanderson’s limitations, taken with Ms Sanderson’s evidence of these limitations (para x above) equates to 10 impairment points from Table 3.   With regard to Ms Sanderson’s submission that her pain is most appropriately assessed under Table 20, the Introduction to the Tables discusses the circumstances where Table 20 should be used.  It states that Table 20 is used where a medical officer considers that an otherwise appropriate Table underestimates the level of disability. The Guide states:

“In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.”

24.     No medical opinion supports Ms Sanderson’s contention that Table 20 should be used in her case rather than Tables 3 and 5. The Tribunal therefore concludes that the ratings from Table 3 and Table 5 detailed above should be used and no rating from Table 20 should be allocated for chronic pain.

25.     Functional impairment due to psychiatric conditions is assessed under Table 6.  The criteria read:

NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.

TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work).

TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.

THIRTY Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).

FORTY Major chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately).

26.     Treating medical practitioners Drs Sundar and Chai both opined that this condition causes minimal impact on Ms Sanderson’s ability to function. Whilst the Tribunal acknowledges that her depression is subjectively distressful for Ms Sanderson, the description of this condition provided by the medical practitioners equates with a rating of nil points under Table 6.

27.     The Introduction to the Impairment Tables includes a requirement that, for an impairment rating to be assigned, the condition under consideration must be fully documented, diagnosed, investigated, treated and stabilised.  Paragraph 6 then reads:

“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.

In this context, reasonable treatment is taken to be:

·treatment that is feasible and accessible ie, available locally at a reasonable cost;

·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment.”

28.     During the 13 week period after Ms Sanderson’s claim was made, the Tribunal is satisfied that her conditions of fibromyalgia and vertebral subluxation had not been fully investigated, treated and stabilised.  As noted above, the diagnosis of vertebral subluxation has been opined by a chiropractor, who indicated that the diagnosis was presumptive only.  It has not been suggested by any other practitioner, in spite of the fact that many of the symptoms Mr Peating attributes to this condition have been noted by them.

29.     In relation to fibromyalgia, the diagnosis has been raised by only one doctor, and that diagnosis has been questioned by Ms Sanderson’s current treating general practitioner, Dr Hebron, and is not supported by specialist rheumatologist Dr Spenser.

30.     Both diagnoses are therefore at best speculative.  This means that no impairment rating can be allocated for either condition. Further any functional impairment attributable to fibromyalgia and vertebral subluxation has been taken into account under Tables 5 and 20, assessing neck pain and neuropathic pain in the right arm respectively. The introduction to the tables prohibits the allocation of more than one rating for a common functional loss. Paragraph 13 reads:

“These Tables have been scaled so that where two conditions cause a common or a combined functional loss, a single rating should be assigned for both conditions and this should reflect the combined loss of function from each of the two conditions.”

31. Ms Sanderson therefore has insufficient impairment points to meet the threshold of 20 points.. This means that the terms of paragraph 94(1)(b) of the Act are not met and that Ms Sanderson is not qualified for the disability support pension.

Decision

32.     The Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  7 March 2006
Date of Decision  5 April 2006        
The Applicant was unrepresented
For the Respondent                  Ms C Heffner Departmental Advocate