Stavrou and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 502

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1578

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		HELEN STAVROU

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date18 June 2008

PlaceMelbourne

Decision

The decision under review is set aside and in substitution IT IS DECIDED

(i) the applicant has an impairment of 20 points or more pursuant to s 94(1)(b) of the Social Security Act 1991 (the Act); and

(ii) the application is remitted for assessment of work capacity pursuant to s 94(1)(c) of the Act having regard to the findings in these reasons.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – disability support pension – application rejected – 10 impairment points assessed for cervical injury – extent and severity of lumbar injury not known or understated – 10 impairment points should be assessed for lumbar injury – application to be remitted for assessment of work capacity having regard to findings made in this review – decision set aside

REASONS FOR DECISION

18 June 2008   Mr John Handley, Senior Member

1.      Mrs Stavrou, the applicant in these proceedings applies to review a decision made by the Social Security Appeals Tribunal (the SSAT) on 20 March 2007.  The SSAT then affirmed a decision previously made by Centrelink to reject an application she made for disability support pension (DSP).

2.      Qualification for pension will be determined at the date of claim or within 13 weeks of it.  The period therefore which will be considered by this review, commences on 30 March 2006, being the date of claim, and expires on 29 June 2006, being the expiration of the subsequent 13 week period.

3. Qualification for DSP is found at s 94 of the Social Security Act 1991 (the Act).  Relevantly, qualification will exist if a person has a physical, intellectual or psychiatric impairment that attracts 20 points or more under the Impairment Tables and the person has a continuing inability to work.  These are the issues in this review.  There is no issue concerning the applicant's age or that she is an Australian resident.

4.      The Impairment Tables are found at Schedule 1B of the Act.  In an Introduction to the Tables, it is recorded that the assessment criteria has an emphasis on loss of functional capacity which impairs or impedes a person's ability to work or return to work (refer paragraphs 1 and 3).  The condition must be regarded as being permanent, fully documented, diagnosed, treated and stabilised.

5.      The applicant suffers unfortunately from a number of physical ailments in addition to depression.  Her predominant physical injuries affect her neck and lower back.

6.      A multitude of medical reports and other clinical data were made available for the purposes of this review and were also made available to Dr Turnbull who assessed the applicant on behalf of the respondent.  He concluded that the applicant's neck and lower back conditions were stable and were not likely to improve or deteriorate within two years.  I am satisfied that that opinion is sound and is to be preferred.  I am also satisfied that the back and neck injuries are permanent.

7.      I am satisfied for reasons which follow that the applicant does attract 20 impairment points under Table 5.1 of the Impairment Tables with respect to her neck and lower back injuries.

cervical spine

8.      An X-ray (T3) of 6 June 2001 found marked disc degeneration at three levels (C5, C6 and C7).  It also found bilateral foraminal encroachment at C5 / 6 and at C6 / 7.  Cervical spondylosis was diagnosed.  A CT scan of 16 June 2001 (T4) also concluded that the applicant suffered chronic disc degeneration at C5 / 6 and C6 / 7.  A CT scan of 16 December 2006 concluded that the applicant suffered moderately advanced bony degenerative change at C5 / 6 and C6 / 7 but also found by reason of changes noted in the epidural space posterior to the C7 vertebral body that there had been a complete annular rupture.

9.      In reports of 8 March 2007 and 16 April 2007, Dr John Drago, a consultant neurologist, reported to the applicant's treating general practitioner that she suffered diffuse cervical disc bulging with a potential for compression of the left C6 nerve.  Disc bulging at C6 / 7 was also noted.  He concluded that the applicant suffered significant C5 / 6 and C6 / 7 disc degeneration.  He found persisting neck pain, worse on movement and a need for frequent consumption of painkilling medication.

10.     Dr Turnbull assessed the applicant in October 2007 but was asked to assess impairment during the period of 13 weeks subsequent to the date of claim.  In evidence he said that he did so.  It was his opinion that the applicant suffered loss of half of normal range of movement and constant neck pain.  That finding attracts an impairment rating of 10 points under Table 5.1, which he found.  I am satisfied that finding is appropriate and should be adopted.

11.     Having regard to the duration of the applicant's complaints of pain, the diagnosis made, the period of treatment, investigation and assessment, I am satisfied that the condition may be regarded as being permanent.

lumbar spine

12.     Mr Brian Barrett is a senior orthopaedic surgeon who has seen the applicant on two occasions.  The first was in September 2004 when he obtained a history of the applicant having suffered severe back injury in January the previous year when at work.  The applicant then was carrying a 10kg bag of potatoes in each hand but slipped and fell backwards onto her buttocks.  A CT scan of July 2004 revealed the presence of a moderate L4 / 5 lumbar disc bulge.  Mr Barrett certified the applicant as incapacitated for work.  He also diagnosed right sided sciatica.

13.     Mr Barrett next saw the applicant in April 2008 and found a significant loss of range of movement which approximately equated with his findings in 2004.  He thought that there had been no improvement in the applicant's condition since 2004 but did note that at the most recent consultation she was suffering from bilateral sciatica.  It was his opinion that the loss of range of movement forwards, on extension, laterally and on rotation, equated with at least loss of half of range of normal movement.  Such a finding would attract a rating of 10 impairment points under Table 5.2.

14.     Dr Turnbull was of the opinion that the applicant has a normal or nearly normal range of movement in all directions, which did not attract any impairment points.  He used a goniometer to measure movement.  He acknowledged that his findings were at variance with Mr Barrett and said that phenomena is not unusual and is dependent on whether a person is experiencing pain, whether they are having a good day on the day of consultation and whether painkilling medication had previously been consumed.

15.     I prefer the evidence and the conclusions of Mr Barrett.  I am satisfied that between 2004 and 2008 the applicant has suffered a significant and radiologically demonstrated lumbar disc injury which was responsible for sciatica (initially on the right but it became bilateral).  The history given by the applicant namely, falling whilst carrying weights onto her buttocks onto a hard surface is consistent with the origin of injury and the subsequent complaints of pain, discomfort and loss of range of movement is consistent with the injury.

16.     Dr Lolatgis, the applicant's treating doctor did not find the lumbar injury and sciatica to be permanent until December 2006, having previously found those conditions to be temporary.  I prefer the opinions of Mr Barrett who examined the applicant before and after the assessment period and who was firm in his opinion of the condition not having improved since he first saw her in 2004.  I am satisfied that two years later, in 2006, the condition could then be regarded as permanent.  The radiological investigations between 2004 and 2008 (refer report of Mr Barrett) support this conclusion.

17.     Although Dr Turnbull assessed the applicant in October 2007, he recorded in his report, and said in evidence, that he assessed her impairment in the period 30 March 2006 to 29 June 2006.  I am confident that he did so but he did not then have the benefit of the clinical findings of Mr Barrett with respect to lost range of movement which are not recorded in his reports but which became known during the hearing of these proceedings.  Additionally, I doubt the value of recording the applicant's range of movement at consultation in October 2007 with a goniometer because it could not possibly be translated into loss of range of movements at March 2006 or 13 weeks subsequently.  Range of movement is an indicator only of the severity of injury and it is well known to the medical profession (and to Members of this Tribunal who are frequently involved in reviews where medical evidence is heard) that persons have good and bad days which result in clinical findings differing from day to day.  What does not vary is radiological findings and in the present case the applicant has demonstrated lumbar disc injury preceding the date of claim and existing subsequently.

18.     The applicant was assessed by an occupational therapist on 11 April 2006 and found to have a diminished range of movement of the lumbar spine attracting 10 impairment points under Table 5.2 (T21).  That assessment was dismissed by the respondent and the assessor was not called to give evidence.  That finding was made within two weeks of the date of claim.

19.     On balance and for the above reasons I am satisfied that at the date of claim or within the assessment period the lumbar spine and consequent sciatica could be regarded as fully documented, diagnosed, treated, stabilised (although fluctuating in severity).

work capacity

20.     The applicant was assessed by Dr Storme, a registered psychologist on 1 April 2008.  Dr Storme was then engaged by Health Services Australia as a job capacity assessor and had held that position since July 2006.  She was aware of the finding of Dr Turnbull of 10 impairment points with respect to the cervical spine but assessed the applicant's capacity for employment without regard to any other impairment.  She did not have the benefit of the evidence of Mr Barrett which was heard in these proceedings nor was she aware of the contents of his report of April 2008.  Had she been aware of his evidence, it is unlikely that she would have concluded (Supplementary T‑documents p193B) that it is possible that the condition (lumbar spine) has improved since date of claim . . .

21.     Dr Storme concluded that the applicant should be referred for a range of counselling and support (refer p192 – 193) comprising psychological, personal, disability adjustment and vocational assessment counselling.  Additionally she recommended language assessment / training and job seeking / post placement support.

22.     Having read her conclusions I am of the view that there has been a failure to comprehend or appreciate the severity of the applicant's neck injury as described earlier.  The assessment that the neck condition . . . was not significantly impacting on work functioning because it had been found that Helen had either no loss of range of motion or near normal range of motion (T‑documents, p193A) is inconsistent with the medical opinion of Dr Turnbull, who despite the date of his examination, assessed the impairment existing between March and June 2006.

23.     The severity of the lumbar injury (refer evidence of Mr Barrett) was not known to Dr Storme and it therefore follows that her conclusion that it had a mild impact on work functioning also understates its severity and the consequent impact on work capacity.

24.     Dr Storme was not called to give evidence in these proceedings.

25.     The applicant does have a significant depressive illness which at March 2006 was probably not then adequately treated or stabilised.  There had been treatment from Ms Effie Ioannou in 2004 but it would appear that that treatment ceased but resumed with Dr Fahmi, a consultant psychiatrist, in May 2008.

26. It is my view that having regard to the findings above which permit a conclusion that the applicant satisfies s 94 (1) (a) and (b) of the Act, it would be appropriate to remit this matter to the respondent for reconsideration and assessment of the qualification of the applicant to satisfy s 94 (1) (c) (i) of the Act namely, whether the applicant at 30 March 2006 or 13 weeks subsequently had a continuing inability to work.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Dates of Hearing  11 April and 6 June 2008
Date of Decision  18 June 2008
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr A Carson