Scott and Secretary, Department of Social Services (Social services second review)
[2015] AATA 779
•8 October 2015
Scott and Secretary, Department of Social Services (Social services second review) [2015] AATA 779 (8 October 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1666
Re
Nora Scott
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 8 October 2015 Place Sydney The decision under review is affirmed.
.......................[sgd]..............................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
8 October 2015
BACKGROUND
Ms Scott is 63 years old and until about September 2014 she was paid workers’ compensation for injuries suffered in the course of her work in 2005 and 2006. In 2005 she injured her right knee and 2006 her right shoulder and neck.
On 19 September 2014 she lodged a claim for disability support pension (“DSP”) on the basis that she suffered medical conditions which were having an impact on her ability to function.
Ms Scott’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not have a “severe impairment” and had not completed a program of support and therefore did not satisfy the requirements section 94(1)(c) of the Social Security Act 1991 (Cth) (“the Act”).
In a decision dated 27 March 2015 the Social Security Appeals Tribunal (SSAT) found that Ms Scott had a rating under the Impairment Tables of 15 points and therefore did not satisfy the requirements of s 94(1)(b) of the Act.
In these proceedings Ms Scott seeks review of the decision of the SSAT.
Ms Scott attended the hearing by telephone and was self-represented.
ISSUES
In order to qualify for DSP, Ms Scott must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), that is, between 19 September 2014 and 19 December 2014 (the claim period).
Section 94(1) of the Act provides that a person is qualified for DSP 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;
…
The Respondent concedes, and the Tribunal accepts, that Ms Scott suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
In her claim Ms Scott lists her disabilities, illnesses or injuries as “right knee, R shoulder, L foot, L hip, sternum, [neck], spine, upper/lower”.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),
·fully treated (paragraph 6(4)(b)),
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to the relevant Tables requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Impairment Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
The Respondent contends that during the claim period Ms Scott had a total impairment rating of 10 points under the Impairment Tables so that she did not satisfy section 94(1)(b) of the Act.
The Respondent also contends that during the claim period Ms Scott did not have a continuing inability to work so that she did not satisfy s 94(1)(c) of the Act.
Therefore, the Tribunal must decide whether during the claim period Ms Scott’s impairments had a rating of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
MS SCOTT’S EVIDENCE
Ms Scott told the Tribunal she suffers pain in various joints particularly the right shoulder, right knee, neck and sternum. She said that her right knee was not too bad, but recently she has had increasing pain in the left hip. She described the pain as being present all the time, disturbs her sleep and is generally unrelieved by her anti-inflammatory and pain medication. The pain is usually restricted to joints with only occasional muscle pain. Treatment has included physiotherapy, acupuncture, home exercises and the use of a TENS machine.
She said that she is unable to do any household chores, is unable to go shopping, has a standing tolerance of only 10 minutes and is “terrified” to go on public transport because of two falls that happened in the last 18 months.
Ms Scott told the Tribunal that she had three knee operations, the last being in 2011, and treatment by a clinical psychologist which was completed in 2011. Since then she has not had any other specialist treatment and has been managed by her general practitioner (GP), Dr Sinha.
MEDICAL EVIDENCE
In a letter dated 10 April 2007 Dr Bentivoglio, neurosurgeon, notes that a bone scan shows “multi level facet joint arthritic changes at C2-C3, C3-C4, C4-C5 and C5-C6 on the right side” and that currently her neck pain is predominantly on the right side and that the left arm pain has resolved.
In a letter dated 4 September 2008 Dr Elliot, orthopaedic surgeon, notes that he carried out an “open synovectomy” on Ms Scott’s right knee.
An MRI scan of the thoracic spine performed on 30 September 2009 is reported as showing degenerative changes in the mid to lower thoracic spine including some degenerative facet joint disease.
In a letter dated 28 October 2009 Dr Hoe, orthopaedic surgeon, notes that Ms Scott has had “neck, shoulder and back pain” and that recently her shoulder pain had increased. He noted that X-rays were normal and an MRI scan did not show a tear of the rotator cuff.
Dr Hoe concluded that Ms Scott “appears to have right shoulder pain due to subacromial bursitis and tendinosis” but does not require surgery and may benefit from physiotherapy and “possibly a cortico-steroid injection”.
In a letter dated 8 November 2010 Dr Elliott notes that Ms Scott is “having increasing problems with her right knee with pain and swelling”. He notes “marked synovial thickening around the knee which is tender” and that X-rays of the right knee show some early degenerative change. He arranges for an arthroscopic synovectomy on 14 February 2011.
The report of a bone scan performed on 21 July 2014 demonstrated mild to moderate abnormal uptake by numerous joints including the wrists, several small joints of the hands, hips, SI joints, patellofemoral joints, right ankle and of the right foot. There was mild to moderate abnormal uptake with “corresponding degenerative change” by the manubrio-sternal junction. There was no abnormality reported in the shoulders.
A spinal SPECT/CT performed at the same time demonstrated mild to moderate multilevel degenerative disc disease in the cervical spine, mild abnormalities in the thoracic and lumbosacral spine.
In a Workcover medical certificate dated 17 July 2014 Dr Sinha notes that Ms Scott has capacity for some type of employment for 4 hours per day 5 days per week from 17 July 2014 to 9 October 2014. He notes lifting/carrying capacity as “<7.5 kg, no lifting above shoulder, no repetitive bending, rest breaks 5 mins/2 hr” but makes no comment in respect of sitting or standing tolerances.
In a Centrelink Medical Report dated 5 September 2014 Dr Sinha, lists “severe polyarthralgia/polymyalgia” as the condition with most impact and notes current symptoms of “chronic pain, sternal region/manubrio-sternal junction, cervical region, thoracolumbar back, R shoulder, L hip, L foot, R knee.”
Impact on ability to function is described as “difficulty standing lasting > 1 hr, reduced endurance, cannot do repetitive bending, reduced strength/power R arm, difficultly focussing on task because of chronic pain”.
Dr Sinha does not identify any other conditions as having a significant impact on Ms Scott’s ability to function.
Dr Sinha lists “Gastritis/hyperacidity, Depression” as medical conditions generally well managed and that cause minimal or limited impact.
In a letter dated 2 September 2015 Dr Sinha states that Ms Scott “currently suffers from chronic soft tissue injuries following a work injury in 2006” which have not responded to numerous medical therapies.
He notes that Ms Scott advised him that she had severe difficulty carrying out her tasks during a recent work placement but that when he saw her for her regular three monthly review “her symptom exacerbation had resolved”.
An X-ray of the lumbosacral spine performed 8 April 2015 notes a mild decrease in bone density, but no other abnormalities. An X-ray of the hips performed on the same day revealed “early degenerative arthritis [in the] right hip” with no reported abnormality of the left hip.
OTHER EVIDENCE
In a Job Capacity Assessment report submitted on 13 November 2013 the assessor notes that Ms Scott reported inter alia as follows:
The client can manage most daily activities (Client reported that she can perform self-care tasks and light household tasks (dusting and cooking) with slow pace and frequent rest breaks) … has some difficulty with … Picking up heavier objects … lifting capacity of < 3kg in right arm and <5kg in left hand… has some difficulty reaching out for objects or picking up objects due to reduced strength and power in right arm… has some difficulty walking to local facilities (e.g. shops or bus-stop – 5 minutes walk) can do this independently … has some difficulty walking around a shopping mall or supermarket without a rest; … has some difficulty climbing stairs (client reported she can climb stairs (7-8 stairs but with some difficulty and needs to hold rail … is unable to stand for more than 10 minutes …
The SSAT notes that Ms Scott reported inter alia as follows:
She still has trouble when walking and cannot put weight on her right knee… is able to walk to the nearby bus stop and shops… is driven to the supermarket and needs help to collect her items… It is hard for her to walk up hills or steep inclines… prefers to avoid using stairs… can stand for about 10 minutes … cannot do any lifting and is not comfortable when seated… is able to retrieve a book from a shelf at head height… experiences pain when moving her head from side to side or up and down … Around the house she does some light dusting but cannot do any sweeping or vacuuming…
The SSAT stated that “[a]part from referring to arthritis in her hands, Mrs Scott made no mention of her upper limb symptoms at the hearing”.
CONSIDERATION
I accept that during the claim period that Ms Scott suffered “chronic joint pain”.
The question as to the level of impairment she suffered during the claim period in respect of this “condition” is, in my view, somewhat problematic.
There is no Table in the Impairment Determination dealing specifically with pain and subsection 6(9)(b) provides that where “chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected.”
Also subsection 6(9)(c) stipulates that one must consider “whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections (6)(5) and (6)”. (Emphasis added.)
For present purposes, the relevant Tables are Table 2 – Upper Limb Function, Table 3 – Lower Limb Function and Table 4 – Spinal Function.
At the hearing Ms Scott’s description of the functional impact on her activities caused by her chronic joint pain tends to suggest a moderate to severe impairment under the relevant Impairment Tables.
The functional impact on activities as reported by Ms Scott to the Job Capacity Assessor and SSAT tends to suggest a mild to moderate impairment.
As noted above, the Introduction to each of the relevant Impairment Tables stipulates that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
The difficulty for Ms Scott in this application is that, in my view, the medical evidence, which can best be described as incomplete, does not provide a satisfactory explanation for the claimed persistence and severity of Ms Scott’s symptoms and does not adequately corroborate her self-report of impairment.
Apart from the documents provided by Dr Sinha and the reports of a bone scan and recent hip and lumbosacral spine X-rays there is no other medical evidence contemporaneous with the claim period.
In the documents before the Tribunal there is no satisfactory explanation as to the clinical significance of the abnormalities described in the bone scan with respect to Ms Scott’s claimed symptoms. I note Ms Scott claims she suffers severe pain and impairment in her right shoulder which appears to be inconsistent with the no abnormality reported on the scan.
Also Ms Scott’s complaint of increased pain in the left hip appears to be inconsistent with the X-ray findings of early degenerative arthritis in the right hip and no abnormality in the left hip.
In the documents provided by Dr Sinha he appears to be confused about the cause of Ms Scott’s pain. In his report 5 September 2014 Dr Sinha makes a diagnosis of “severe polyarthralgia/polymyalgia”.
“Polyarthralgia” is not a pathological diagnosis, but simply a description of symptoms where a patient complains of pain in more than one joint. Dr Sinha does not specify the pathology in each of the relevant joints but appears to conclude that the abnormalities of the bone scan provide a sufficient explanation for Ms Scott’s symptoms and provides no reasons for such a conclusion.
Similarly, “polymyalgia” suggests widespread muscle pain which is not consistent with Ms Scott’s evidence at the hearing where she said that she suffered muscle pain only occasionally.
In his letter of 2 September 2015 Dr Sinha states that Ms Scott currently suffers from “chronic soft tissue injuries following a work injury in 2006.” Dr Sinha does not provide any explanation for this statement and, in my view, there is no evidence before the Tribunal that would support it.
Furthermore, in his documents Dr Sinha does not provide a description of the functional impact on activities involving lower limb, upper limb and spinal function which adequately addresses the descriptors in the relevant Impairment Tables.
Notwithstanding the identified difficulties, I am satisfied there is sufficient evidence to conclude that Ms Scott suffers a degenerative disease of the spine, particularly the cervical spine, and that during the claim period this condition was permanent for the purposes of the Impairment Determination so that a rating under Table 4 can be assigned.
I am also satisfied that that there is sufficient evidence to support a rating of 5 points under Table 4, but I am not persuaded that there is sufficient corroborative evidence to warrant a rating of 10 points or more under Table 4.
In respect of Ms Scott’s upper limb function, I am not persuaded that during the claim period the condition causing her upper limb symptoms was fully diagnosed, fully treated and fully stabilised.
In my view, there is insufficient contemporaneous medical evidence to explain the cause of Ms Scott’s claimed upper limb symptoms, particularly with respect to the right shoulder.
Accordingly, I am satisfied that a rating under Table 2 cannot be assigned.
In respect of Ms Scott’s lower limb function, I am not persuaded that during the claim period the condition causing her lower limb symptoms was fully diagnosed, fully treated and fully stabilised
In my view, there is insufficient contemporaneous medical evidence to explain the cause of Ms Scott’s claimed lower limb symptoms particularly with respect to the right knee.
Accordingly, I am satisfied that a rating under Table 3 cannot be assigned.
In respect of the condition of “Gastritis/hyperacidity” there is no evidence before the Tribunal that Ms Scott suffered any impairment as a result of this condition so that a rating under the Impairment Tables would be 0 points.
As Ms Scott has not been seen by a clinical psychologist or psychiatrist since 2011 I am satisfied that during the claim period the condition of “depression” as noted in Dr Sinha’s report was not fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
DECISION
For the reasons set out above, the Tribunal is satisfied that during the claim period Ms Scott’s impairment was not 20 points or more so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ......................[sgd]..................................................
Associate
Dated 8 October 2015
Date of hearing 25 September 2015 Applicant In person Solicitor for the Respondent Ms N Clarke, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – pensions – disability support pension
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Impairment Assessment
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Corroborating Evidence
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