WHITE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 601

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1275

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHELLE WHITE

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date13 August 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]............................

Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Can conditions of applicant be regarded as permanent – If so, what ratings should they be allocated – Some of the applicant’s conditions cannot be considered to be diagnosed, treated and stabilised – For conditions not requiring further investigation or treatment nil ratings would be attributed – Decision under review affirmed.    

Social Security Act 1991 (Cth) Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2, s4

REASONS FOR DECISION

13 August 2010 Dr M Denovan, Member    

INTRODUCTION

1.        Ms Michelle White, the applicant, contacted Centrelink in relation to a claim for disability support pension (DSP) on 10 August 2009[1].  On 5 October 2009, Centrelink made a decision to reject her claim.

[1] She lodged a written claim within 14 days which was received by Centrelink on 20 August 2009, and pursuant to s 13(1) of the Act 10 August 2009 is the deemed start date for the applicant’s claim.

2.        An authorised review officer affirmed the decision[2], as did the Social Security Appeals Tribunal (SSAT) on 3 March 2010.

[2] On 19 November 2009

3.         The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 31 March 2010.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

4. Under Schedule 2, item 4(1) of the Social Security (Administration) Act 1999 (Cth) (“Admin Act”), an applicant must qualify for DSP on the day on which he/she made the claim, or within 13 weeks. In this case that claim period is from 10 August 2009 until 9 November 2009.

5. The criteria for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). To qualify:

·     the applicant must have a physical, intellectual or psychiatric impairment; and,

·     the applicant’s impairment must have been of 20 points or more under the Impairment Tables; and,

·     the applicant must have a continuing inability to work.

6. The Introduction to the Impairment Tables contained in the Act states that before an impairment rating can be assigned it must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

7.        Mr Nolan, for the respondent, accepts that during the relevant period, the applicant suffered from the following impairments: a sinus condition a skin problem, back pain, hearing loss, a knee problem and heartburn.  He contends that none of these conditions can be assigned a rating.

8. The issues that I must decide are whether Ms White had an impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act, and if so, whether she had a continuing inability to work.

BACKGROUND

9.        Ms White gave evidence by telephone.  She told me that her allergy problems, back pain, and elbow pain each prevent her from working.  The majority of her impairments have been present for a very long time.

10.      Ms White described her work history as follows.  She took up work as a veterinary nurse after leaving school.  She did a one day course on dog grooming however she has no employment experience in that area.  When she turned 18 years of age she commenced working in a bar at the Brisbane Airport.  She continued working as a veterinary nurse, in a part-time capacity, at night.

11.      When she was 22 years old she travelled throughout the United Kingdom for a period of about two years, working at nightclubs as a waitress and kitchen hand. 

12.      She resumed work as a veterinary nurse when she returned to Australia.  In the year of her return she was hit by a car.  Her patella was fractured and she was in plaster for a number of months.

13.      She married at the age of 26, and from that time managed a garage with her husband who was a mechanic.  She pumped petrol and served customers food.  She developed rashes on her hand which she considers were due to pumping the petrol.  She withdrew from the workforce when she had her first child, now 21, and recommenced work when she separated from her husband in the mid 1990’s.

14.      After she and her husband separated, she worked at a laundry for a year and a half.  She experienced skin problems, but continued in the same industry in her next job at Marist Brother’s College.  She worked there for a year or so before her back failed for which she received a compensation payment.

15.      Ms White retrained as a secretary and worked as an office worker for the company Sara-Lee.  At the hearing she stated that she would have loved to have stayed in that position for forever but the company moved their operations to Sydney.  She then obtained part-time work at an engine reconditioning company.  In 2001, after 6-12 months of working for that company she sold her house.  She was able to move to the Sunshine Coast, buy a house and a horse and be mortgage free. 

16.      She worked part-time at Pete’s Café in Cooroy but was dismissed after three months because she was unable to lift the serving trays.  She then worked at a macadamia nut farm for three seasons, wearing gloves and a mask.  She experienced problems with her sinusitis because of the dust, but was able to keep that seasonal position until the owners of the farm sold it. 

17.      Ms White then obtained work as a part-time cleaner at Marie’s Cleaning but found it difficult to cope in that position due to her allergies.  Her employment in this role ceased when the owner sold the business.  She then worked one day a week at a private newspaper doing odd jobs but was unable to continue in that position because she was expected to lift boxes.

18.      Ms White has not worked since 2008.  She recently applied for a job working in the kitchen of a soccer club but at the time of the interview, it occurred to her that she would not be able to lift the container of fat used for frying chips due to her right arm problem.

19.      There are three DSP doctor’s medical reports in the evidence before me.  They are dated 19 August 2009, 10 September 2009 and 17 November 2009 respectively.  Dr S Chant completed the first report, and the second two reports were completed by Dr A Buchan, who gave evidence by phone at the hearing.  Both Dr Chant and Dr Buchan are general practitioners.

20.      Collectively, those reports identify Ms White as having hearing impairment, eczema, allergic and chronic sinusitis (also described in some reports as chronic sinus infections), degenerative disc disease L4 (also described in some of the medical reports as, low back pain - disc compression), MVA[3] and fractured patella.  In her oral evidence, Dr Buchan said that Ms White also had gastrointestinal reflux and right elbow spur.

[3] Motor vehicle accident

Allergic and chronic sinusitis problems, eczema

21.      Ms White told me that she is allergic to almost everything.  This includes carpet, and thus she cannot work in carpeted environments for long.  She is also allergic to people’s perfumes and deodorants.  Drugs do not mask her allergy symptoms any more; she has tried Rhinocort spray, and other medications prescribed by doctors.  Those medications sedated her.  She has used Mylanta to treat her allergy induced vomiting.  Her need to blow her nose 24 hours a day is why she cannot work.  She also occasionally vomits for up to 12 hours when her allergies get bad.

22.      Ms White said that her sinus problems commenced when she was 19 years old.  Her nose was broken and she underwent corrective surgery.  She considers that her sinus problems worsened with her first pregnancy in about 1988, and then worsened again due to age related hormonal changes.  In response to questions from Mr Nolan, Ms White said that her sinus problems has created problems in every one of her previous jobs, however it has not directly resulted in the termination of any employment.  She had no choice but to take tablets and continue working, as she had a mortgage and was a single mother with dependant children.

23.      In her report, Dr Chart indicated that Ms White would be referred to an ENT specialist in relation to this condition.  Dr Buchan indicated in her reports that future treatment for this condition included probable allergy testing.  In her oral evidence, Dr Buchan said Ms White first complained to her of allergic and sinus problems in April 2008.  Dr Buchan said she initially wondered if the sinus problem was not related to gastrointestinal reflux.  She referred Ms White firstly to Dr Anstey, ENT specialist, and then to allergist Dr Solley.

24.      In his report, dated 4 January 2010, Dr Anstey recommended a trial of various nasal steroid sprays on a regular continuous basis[4].  He indicated that he did not consider that Ms White had any specific allergy.  He opined the appropriate diagnosis was non-specific rhinitis.

[4] Exhibit 1, T18

25.       Dr Solley opinion is consistent with that of Dr Anstey. He has provided two reports.  In the first report dated 29 April 2010[5], Dr Solley opined that Ms White did not have any significant allergic rhinitis.  Dr Solley  said that he had carried out skin tests on a variety of environmental allergens and the only significant positive response was to house dust mite.  He recommended an endoscopy and dietary experiments.  Dr Solley opined that Ms White may have food biochemical hypersensitivity, reacting to food additives, natural salicylates and amines.

[5] Exhibit 2

26.      In his second report dated 7 July 2010, Dr Solley suggested that it might be worthwhile if Ms White consulted a dietician.  He opined that Ms White had quite bizarre reactions to foods and perhaps environmental reagents.

Reflux

27.      Ms White said she has suffered from heartburn for many years.  She also said that the dietary changes recommended by Dr Solley have helped, that some days she does not get heartburn, and that it can be painful, depressing and debilitating.

28.      Dr Buchan said Ms White gave a history of burning, likely due to reflux, since 1985. 

29.      Dr Solley commented in his report that he is unsure of whether Ms White does have gastroespohageal reflux.  As stated above, he recommended that she undergo an endoscopy.

Hearing impairment

30.      Ms White said that she had experienced hearing difficulties for all of her life.  She considers that her hearing has become worse since she last worked.  Her children have been telling her for all of their lives that she is deaf.  She requires a speaker phone.  Ms White said that her hearing was tested once and at that time she was told she would be suitable for a hearing aid.  Ms White regards the cost of such a devise prohibitive.

31.      Dr Chart reported the applicant as being completely deaf in her left ear, and partially in her right.  Dr Chant reported that this impacted on Ms White’s ability to function in that she can not use the telephone except with a speaker phone, and that she tends to speak loudly. 

32.      Dr Buchan told me that there are no audiological results in Ms White’s medical records.

Degenerative disc disease L4

33.      Ms White said that her back pain has been present since 1974.  For the last decade she has required the assistance of another person to mount a horse.  For the last seven years she has been unable to ride at all.  Her back prevents her from engaging in tasks that range from horse riding to putting boxes in the back of her car.

34.      Orthopaedic surgeon, Dr Winstanley, reviewed Ms White.  In his report, dated 11 January 2010[6] he stated degenerative pathology was present in her lumbar spine. He recommended an MRI scan to determine whether there is any nerve impingement.

[6] Exhibit 1 – T17

35.      After the MRI was performed Dr Winstanley reviewed Ms White.  In his report dated 4 February 2010 he opined that the “MRI scan does not show there is any specific surgical pathology present”.  He recommended a muscle strengthening program, and said that she may require pain management assessment through Nambour Hospital for improvement in her discomfort level.

36.      Dr Winstanley provided another report dated 9 June 2010[7], in which he stated that without pain management Ms White would not be able to undertake an occupation that required her to maintain a standing posture. 

[7] Exhibit 4

Elbow problem/MVA/patella fracture

37.      Ms White told me that she has a spur on her right elbow, present since she fell off a horse in 1975.  She said her knees limit her due to pain.

38.      Dr Buchan in her later report identified Ms White’s MVA and patella fracture as conditions that were generally well managed and have minimal or limited impact on her ability to function.  In relation to the MVA, Dr Buchan recorded that there was injury to both knees.

39.      In response to questions asked at the hearing, Dr Buchan told me that the first time Ms White presented to her with an elbow problem was on 19 January 2010.  Dr Buchan considers that Ms White’s elbow problem is a spur, and is related to an old injury.  According to Dr Buchan it still causes Ms White some recurrent pain. 

40.      Dr Buchan said that the recent x-ray of Ms White’s elbow was performed purely for the purpose of demonstrating the existence of the condition to Centrelink.  It was not for the purpose of ongoing diagnosis, investigation or management. 

41.      Dr Buchan said that Ms White’s elbow and knee problems do not require any particular treatment; however the conditions are still significant.  Her elbow condition, in combination with back pain; allergies and joint pain, prevent Ms White from working, in Dr Buchan’s opinion.  Dr Buchan said that the elbow and knees each cause different limitations.

What impairments ratings, if any, can be allocated to Ms White's conditions?

42.      The Secretary relies on the reports of Dr’s Anstey, Solley and Winstanley in support of the contention that the applicant’s sinus problems and back impairment are not permanent.

43.      Ms White does not suffer from allergic rhinitis.  That is the effect of the reports of both Dr Solley and Dr Anstey.  On the basis of Dr Anstey’s opinion, I accept that Ms White’s impairment described by Dr’s Chant and Buchan as allergic or chronic sinusitis, is best described as non specific rhinitis.  

44.      Ms White did not see either Dr Solley or Dr Anstey until after the claim period finished.  Her condition of non specific rhinitis was therefore not fully diagnosed in the claim period.  Further, Dr Anstey suggested future treatment, i.e. a trial of various intranasal steroid sprays on a regular continuous daily basis.  It remains to be seen whether the treatment suggested by Dr Anstey will result in significant functional improvement in the next two years.  This means that during the claim period Ms White’s non-specific rhinitis cannot be regarded as fully stabilised.

45.      In addition to her rhinitis, Dr Solley considered Ms White’s skin and gastrointestinal symptoms.  Dr Solley expressed doubt about the diagnosis of reflux and indicated a need for further investigation.  He also suggested a restrictive diet presumably as a form of both diagnosis and treatment.  Ms White’s eczema and reflux were therefore not conditions that can be regarded as diagnosed, treated and stabilised during the claim period.

46.      When Dr Winstanley reviewed Ms White in January 2010.  He considered that her back condition required further investigation and treatment.  This was after the claim period.  Ms White’s back condition cannot therefore be regarded as a condition   diagnosed and treated. 

47.      For these reasons Ms White’s non specific sinusitis, eczema, reflux, and degenerative back condition were not diagnosed, treated and stabilised during the claim period, and therefore  cannot be assigned a rating.  

48. On the basis of Dr Buchan’s evidence I accept that Ms White’s elbow spur, fractured patella, and knee problems, require no further investigation or treatment, and might meet the other legislative criteria to be assessed for a rating under the Tables in Schedule 1B, had they been fully documented. The information in the medical reports pertaining to these conditions is too limited for a finding to be made in Ms White’s favour.

49.      The evidence is that both her elbow spur and her fractured patella and injured knees have been present since Ms White was in her 20s.  She has held down a number of jobs since that time, and there is no evidence to suggest that either her elbow or her knees have interfered directly with that employment. 

50.      It is Ms White’s evidence that pain in her spur would prevent her lifting items that are heavy, and that this pain has been the reason why she has been prevented from continuing in several jobs.  I consider that if Ms White’s elbow had the functional impairment that she claims, she would have sought medical treatment.  A condition that causes a person to lose not one, but several jobs would usually be the presenting complaint of more than one medical appointment.  That has not been the case here.  Ms White did not mention her elbow condition to her doctor until she sought to prove the presence of the spur to Centrelink. Ms White takes no specific treatment for either her elbow or her knees.

51.      There is no medical evidence which suggests Ms White’s spur interferes with her right upper limb or lower limb functioning.  On the basis of Ms White’s and Dr Buchan’s written and oral evidence, I conclude that even if these conditions meet the legislative requirements to be rated, both would attract nil ratings when assessed under Table 3 and 4 respectively.

52.      No audiometric testing was provided and the evidence of Dr Chant is limited and insufficient.  For this reason I cannot find that Ms White’s hearing impairment was fully documented and diagnosed during the claim period.

53.      To allocate a rating for hearing loss reference must be made to measurements of impairment made during audiometric testing.  Whilst Ms White claims to have undergone such testing, it is likely that even if the report was available, due to the passage of time, there would be no certainty that it accurately reflected Ms White’s impairment in the relevant 13 week period.  Therefore, even if this condition could be regarded as one that can be allocated a rating, there is insufficient medical evidence available to rate the condition.

54.      Because Ms White does not have 20 impairment points, I make no finding as to her capacity to work during the relevant period.

CONCLUSION

55.      Ms White did not meet the criteria for DSP at the time of claim or in the 13 weeks following the date of claim.

FINDINGS OF THE TRIBUNAL

56.      The decision under review is affirmed.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ................[Sgd].............................................................
             Kate Slack, Research Associate

Date/s of Hearing  13 July 2010
Date of Decision  13 August 2010
Applicant was self-represented and appeared by telephone
Solicitor for the Respondent     Phil Nolan, Sparke Helmore Lawyers