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

[2011] AATA 845

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 845

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0660

GENERAL ADMINISTRATIVE DIVISION		)
Re		Muoi Truong

Applicant

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

Respondent

DECISION

Tribunal Senior Member A K Britton

Date1 November 2011

PlaceSydney

Decision The decision under review is affirmed.  

........................[sgd]......................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – disability support pension – entitlement – impairment rating – diagnosed, treated, stabilised – decision under review affirmed

Social Security Act 1991 (Cth) – s 94(1)(b), Sch 1B

REASONS FOR DECISION REVISED FROM THE TRANSCRIPT

1 November 2011 Senior Member A K Britton           

1.      To qualify for a Disability Support Pension a person must, among other things, have an impairment of 20 points or more under the Impairment Tables (s 94(1)(b)  of the Social Security Act 1991 (Cth)). So, Ms Truong, when I am deciding whether you meet the 20 points requirement, I must measure or assess your level of impairment against the criteria or factors in the Impairment Tables set out in Schedule 1B of the Act.

2.      It is agreed that Ms Truong suffers from a lower back problem, a left shoulder problem, and a problem in respect of her knee.  Centrelink also concedes, and I agree, that Ms Truong’s back and shoulder conditions are permanent.

3.      What I have to decide is whether the back and shoulder conditions, separately or in combination, attract a rating of at least 20 points, and whether the knee condition is permanent.  If the answer to the latter question is yes, then any impairment rating that the knee might achieve is counted towards Ms Truong’s total impairment rating.  In deciding those questions, the period that I must take into account is the 13 week period starting on the day Ms Truong lodged her claim with Centrelink, that is 10 September 2010 and ending on 10 December 2010.  I will refer to that period as “the claim period”. 

4.      Ms Truong has been assessed by Dr Mark Burns, an occupational physician, who prepared a report dated 16 May 2011. He provided an assessment of Ms Truong’s lower back under Table 5.2 of the Impairment Tables which provides:

TABLE 5.2     Thoraco lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating            Criteria

NIL                Normal or nearly normal range of movement.

FIVE              Loss of one-quarter of normal range of movement.

TENLoss of one-quarter of normal range of movement as well as back pain or referred pain:

with many physical activities and

with standing for about 30 minutes and

with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

with most physical activities and

with standing for about 15 minutes and

with sitting or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement.

5.      He opined that Ms Truong had a 25 per cent loss of range of motion of the back or, put another way, had lost a quarter of the normal range of movement of her back.  He also concluded that Ms Truong had some pain associated with standing, sitting and most physical activities.  In his opinion a rating of 10 points under Table 5.2 should be given. The reason that Dr Burns did not give a higher rating was this would require, among things a loss of half of the normal movement of her back and in his opinion the loss was only 25 per cent. 

6.      I have nothing before me to indicate that Dr Burns did not perform a proper assessment of Ms Truong’s back. Nor is there any other expert evidence to suggest that the normal range of movement of her back is less than 75 per cent.  I agree with Dr Burns’ assessment of Ms Truong’s lower back. 

7.      Dr Burns also addressed in his report the level of impairment of Ms Truong’s left shoulder. He made that assessment under Table 3 of the Impairment Tables which provides:

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.

FIVEDemonstrable 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.

FIFTEENDemonstrable 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.

TWENTYDemonstrable 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.

8.      He concluded that there was demonstrable evidence of loss of strength, mobility and coordination which caused moderate interference with hand function or manual handling.  In his report he noted at page 3 that there was a restriction in the range of movement of Ms Truong’s shoulder to 90 per cent in both flexion and abduction.  He found on testing that rotation in the shoulder appeared normal, he also recorded Ms Truong had a normal range of movement in her left elbow, wrist and hand.  On the basis of those findings, he awarded five points under the Impairment Table, having regard to the loss of strength and mobility and also noting that being right handed it was Ms Truong’s “non-dominant limb”.  

9.      Dr Burns does not expressly address in his report why he did not give Ms Truong’s shoulder a higher rating. To do so he would need to find that there was “major loss of strength, mobility, coordination and dexterity which causes major interference with hand function or manual handling”.  The evidence does not point to major loss/interference with either hand function or manual handing.  For that reason I agree with Dr Burns that a rating of five is appropriate in this case.  That is not to say that I do not accept that Ms Truong has significant restrictions, but rather that applying the criteria set out in Table 3 it attracts a maximum rating, or score, of five points.

10.     So for that reason I think the decision made in respect of the back and shoulder is the preferable decision – is the best decision. Turning now to the question of the knee, the issue is whether or not that condition is “permanent”, that is, fully diagnosed, treated and stabilised.  It seems to me that there has been some uncertainty for some time as to the precise nature of the knee condition and I think probably the best evidence of the appropriate diagnosis is that recorded in Dr Burns’ report, that is, that Ms Truong has a tear to the lateral cartilage of the left knee.  The question then is — “was it fully investigated and treated at some time within the claim period?”. 

11.     It is unclear precisely what Ms Truong has been advised in respect of her knee. It would appear from the decision of the Social Security Appeals Tribunal and some other documents, that it has been suggested to her that the condition could be improved with surgery.  I also note that as at the end of last year Ms Truong had yet to undertake physiotherapy as recommended by her GP.  It is also to be noted that Dr Burns, in his report, thought significant improvement might result with surgery.  Therefore leaving to one side whether or not by the end of the claim period the condition had been appropriately investigated and diagnosed, I could not be satisfied that it was properly treated.  Because the condition has not been fully diagnosed, treated and stabilised a rating under the Table cannot be awarded.

12.     It follows that Ms Truong does not have an impairment of 20 points or more under the Impairment Tables.  For that reason, I think the best decision is that which was originally made — that Ms Truong did not meet the criteria for a disability support pension at any time throughout the claim period.  That is not to say, Ms Truong, that I do not accept that you are experiencing significant pain and a level of disability, but rather that on material that is before me, your impairment does not rate at least 20 points.  So for that reason, I’m affirming the decision made by the Secretary.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         .....................................[sgd]..................
  Associate to Senior Member A K Britton

Date/s of Hearing:  1 November 2011
Date of Decision:  1 November 2011
Applicant self-represented

Solicitor for the Respondent:     Ms S Forrester, Centrelink Program Litigation and Review Branch