Aeso and Secretary, Department of Social Services (Social services second review)

[2017] AATA 733

Aeso and Secretary, Department of Social Services (Social services second review) [2017] AATA 733 (26 May 2017)

Division:GENERAL DIVISION

File Number(s):2016/5500      

Re:Faoud Aeso

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:26 May 2017

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – spinal function – lower limb function – upper limb function - Applicant has a physical impairment – Applicant’s condition does not total 20 points or more under the Impairment Tables – decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2 cl 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

26 May 2017

1. Mr Aeso, who is now 50 years old, was injured at work in 2003. He worked as a labourer in a kitchen furniture factory and suffered an injury to his neck, back and left shoulder.

2. Mr Aeso has not worked since 2004 and had received worker’s compensation payments until January 2016 when the payments were stopped. 

3. On 12 January 2016 Mr Aeso lodged a claim for Disability Support Pension (DSP).

4. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

5. In a decision dated 16 September 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Aeso’s claim. AAT1 found that Mr Aeso’s medical conditions warranted a total rating of 10 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act.

6. In this proceeding Mr Aeso seeks review of the decision of AAT1.

7. At the hearing, Mr Aeso was self-represented and assisted by an Arabic language interpreter.

   ISSUES

8. In order to qualify for DSP Mr Aeso 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 clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 12 January 2016 and 11 April 2016 (the claim period).

9. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

   ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

10. The Respondent concedes, and the Tribunal accepts, that Mr Aeso suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

11. 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)).

12. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

13. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”

14. 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 by a psychiatrist).”

15. Mr Aeso contends that he suffers significant impairment as a result of medical conditions with respect to his spine, upper limbs, lower limbs and mental health. Other medical conditions include gastro-oesophageal reflux, poor dental care, hepatic steatosis and hyperlipidaemia.

16. The Respondent accepts that during the claim period, Mr Aeso suffered a permanent condition of the lumbar spine and contends that a rating of 5 points under Impairment Table 4 can be assigned to this condition.

17. Therefore, the definitive issue in this matter is whether, during the claim period, Mr Aeso suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had “a continuing inability to work”.

    MR AESO’S EVIDENCE  

18. Mr Aeso told the Tribunal that he lives alone and is able to care for himself without assistance. He does not do much shopping because he rarely eats at home and usually visits family for his meals. He also regularly goes to a coffee shop. He is able to do his own washing and cleaning.  He owns a car and is able to drive for short distances.

19. Mr Aeso stated that he suffers generalised chronic pain particularly in his neck and lower back as well as in his upper and lower limbs. He said that he needs to use a walking stick all the time because of pain and numbness in his right leg. However, he was able to attend the Tribunal without his walking stick and explained that he had left it in his car.

20. Mr Aeso told the Tribunal that he attends to most upper limb activities with his left hand except for writing and holding his walking stick for which he uses his right hand.

    SPINAL FUNCTION  

21. In a medico-legal report dated 26 June 2015 Dr Vote, an orthopaedic surgeon, notes that on 6 November 2003, while at work, Mr Aeso experienced “discomfort in relation to his low back and cervical area and also some aching down the right leg (emphasis added)”. Early treatment included physiotherapy, hydrotherapy and spinal injections. Over the next 12 years there was no significant treatment apart from analgesic medication. 

22. Dr Vote noted that Mr Aeso was able to drive a motor vehicle and always walked with a cane. His lower back pain was “worse with activity and eased by recumbency” with no major component of radicular pain apart from intermittent paraesthesia in the left leg.

23. On examination Dr Vote noted, inter alia, the following;

    He walks slowly with a cane held in his right hand and limps heavily to the right. Examination of his cervical spine reveals normal posture. Any movement of his cervical spine is accompanied by grimacing and complaints of pain. Extension is zero. Forward flexion three quarters of normal. Rotation to the right one half and to the left three quarters ……..   With regard to the lumbar spine he indicates pain in the low lumbar area and also in the low thoracic area. His spinal movements are grossly restricted and are accompanied by the complaints of pain and avoidance behaviour……..  There would not appear to be any sensory loss. His distal motor power seems normal.

24. In conclusion Dr Votes states, inter alia, the following:

    He does not seem to have changed significantly since onset of symptoms in 2003 to the current time……. The findings on examination indicate to my mind a gross degree of functional exaggeration. There are no signs of radiculopathy in his upper or lower limbs and his imaging does not indicate anything but degenerative change in relation to his cervical spine and lower lumbar spine

25. MRI examinations were reported as follows:

    ·Cervical spine 2 February 2004 – mild narrowing a C5/6

    ·Thoracic spine – within normal limits

    ·Lumbar spine 2014 – diffuse facet arthropathy from L3 to S1 and degenerative bulging once again from L4/5 to S1. At no level is there evidence of any neurological compromise.

    ·Cervical spine – 13 December 2013 – minor ridging of the ligamentum flavum posteriorly but no disc protrusions or evidence of neurological compromise

26. MRI examination of the lumbar spine performed on 25 August 2015 for “low back pain radiating to right leg (emphasis added)” is reported as showing mild degenerative changes from L3/4 to L5/S1 with a final comment of “no specific cause for the patient’s symptoms demonstrated”.

27. An MRI examination of the cervical spine performed on 11 December 2015 for “left C7/T1 radiculopathy” is reported as showing “a small central disc bulge at C6/C7 level, without evidence of canal stenosis or exit foraminal narrowing” and no evidence of abnormality at C7/T1”.

28. In a letter to Dr Said, dated 17 February 2016, Dr Manohar, a rehabilitation physician, states that Mr Aeso has “discal lesions at the C5/C6, C6/C7 and C7/T1 levels” and has requested approval for perineural infiltration.

29. In a letter dated 29 February 2016 Dr Sanki, a general surgeon, states that Mr Aeso qualifies for 10 points as he has moderate functional impact and is unable  to sit or drive a car for more than 30 minutes.

30. In a letter dated 8 November 2016, Dr Manohar states that he has undertaken “confirmatory neural blockades” and that the “pain generators are in the cervical region at the C5/C6 and C6/C7 levels” and recommends an “RF procedure and an occipital nerve block.”

31. In a letter dated 13 December 2016, Dr Manohar states that he has undertaken “neural blockades” and that the “pains are arising from the C5/C6 and C6/C7 levels” and again recommends an “RF procedure”.

    CONSIDERATION

32. Mr Aeso claims that he suffers significant impairment with respect to his cervical and lumbar spine because of severe chronic pain.

33. The difficulty with Mr Aeso’s claim is that the medical evidence, which can best be described as incomplete, does not provide a satisfactory explanation for the claimed severity of his symptoms. In my view, the evidence tends to suggest that Mr Aeso’s self-report, as to the severity of his symptoms, may not be reliable.

34. With respect to Mr Aeso’s lumbar spine condition I am satisfied that there is sufficient evidence to conclude that, during the claim period, this condition was permanent for the purposes of the Impairment Determination so that a rating under Impairment Table 4 can be assigned.

35. On consideration of the available evidence, I am not that satisfied that there is sufficient corroborating medical evidence to allow for a correct assessment of his impairment.

36. However, I accept that Mr Aeso does suffer some impairment with respect to his lumbar spine condition and for present purposes I accept that Respondent’s contention that a rating of 5 points under Table 4 can be assigned.

37. The issue as to the level of impairment with respect to Mr Aeso’s cervical spine condition is somewhat problematic in that the claimed severity of his symptoms is clearly not consistent with the MRI findings.

38. Furthermore, the evidence of Dr Manohar, clearly indicates that during the claim period the cause of Mr Aeso’s cervical pain was not fully diagnosed and fully treated. This means that the condition was not permanent for the purposes of the Impairment Determination and therefore, a rating under Impairment Table 4 cannot be applied.

    UPPER LIMB FUNCTION

39. Mr Aeso has scars and contractures of the right hand as a result of a severe burn injury when he was two years old. 

40. In a letter dated 29 February 2016 Dr Sanki, a general surgeon, describes the deformity of the right hand as involving the “index, middle, ring and little fingers” with chronic strictures and scarring.

41. In a medico- legal report dated 26 June 2015 Dr Vote, an orthopaedic surgeon, notes that an MRI examination of the right shoulder dated 13 December 2013 showed “degenerative changes in the acromioclavicular joint and a degree of tendinopathy involving the supraspinatus tendon and subscapularis tendon short of frank tear.”

42. On examination Dr Vote states that there is “no apparent wasting” of the shoulders but that Mr Aeso was unable to “abduct either arm past 140˚ on account of localised pain, particularly on the left side." Rotatory movements of internal and external rotation were however full.  

43. A list of medical conditions provided by Dr Said, a general practitioner (GP), dated 24 February 2016 notes “28 May 2009 - Shoulder pain (Bilateral)” but provides no other details.

44. The report of an MRI scan of the left shoulder dated 12 January 2016 describes “mild subacromial subdeltoid bursal inflammation and distal tendinopathy of the supraspinatus and infraspinatus tendon” but no “high grade-partial thickness tear. No full thickness tear.”

45. In a letter to Dr Said, dated 17 February 2016, Dr Manohar, a rehabilitation physician, notes the findings of the MRI scan of the left shoulder and states that he has contacted Mr Aeso’s case manager to seek approval for an ultrasound guided infiltration.

46. In a letter dated 23 February 2016 Dr Darwish, neurosurgeon, notes the findings of the MRI examination of the left shoulder performed on 12 January and comments that a cortisone injection of the left shoulder requested by Dr Manohar was appropriate.

47. In his letter of 29 February 2016 Dr Sanki notes that Mr Aeso complains of pain in both shoulders and on examination finds that the right shoulder is limited in “abduction and flexion by 40% when compared to the other side” but provides no explanation for his findings.

48. Dr Sanki also notes that Mr Aeso stopped working in 2004 due to “neck, back injuries and limitations of movements in the left shoulder (emphasis added).”

49. In my view, the medical evidence with respect to Mr Aeso’s shoulder pain and his inability to abduct either arm is incomplete, inconsistent and does not provide a satisfactory explanation for the claimed severity of Mr Aeso’s symptoms and impairment.

50. Furthermore, the evidence indicates that symptoms caused by the abnormalities described in the MRI examination of the left shoulder on the 12 January 2016 were likely to respond to reasonable treatment, that is, a cortico-steroid injection.

51. On the available evidence, I am satisfied that Mr Aeso’s right or left shoulder condition was not fully diagnosed, fully treated and fully stabilised.  This means that the conditions were not permanent for the purposes of the Impairment Determination and therefore, a rating under Impairment Table 2 cannot be applied.

52. With respect to Mr Aeso’s right hand deformity I am satisfied that, during the claim period, this condition was permanent for the purposes of the Impairment Determination so that a rating under Impairment Table 2 could be applied.

53. Mr Aeso’s right hand deformity has been present since childhood and the available evidence indicates that he has adapted well by using his left hand for most activities using hands.  He told the Tribunal that, with his left hand, he can pick up a 2 litre carton of milk, do up buttons and shave with an electric razor.

54. Mr Aeso also told the Tribunal when he was working in the kitchen furniture factory he was able to lift timber panels with both arms, currently writes with the right hand, albeit with some difficulty, and is able to use his walking stick with the right hand by using the palm of the hand.

55. On the available evidence I am satisfied that, during the claim period, the correct rating under Impairment Table 2 for the right hand deformity is zero points.

    LOWER LIMB FUNCTION

56. Mr Aeso claims that he suffers pain and numbness in the right leg and always needs to walk with a walking stick. However, the cause of his lower limb symptoms are unexplained.

57. An MRI examination of the right knee, performed on 26 September 2016 to “exclude medial meniscal tear”, is reported as showing no abnormality apart from “a small ganglion cyst”.

58. There is no medical evidence to support a diagnosis of lumbar radiculopathy to explain his symptoms in either lower limb.

59. There is no other medical diagnosis with reference to the lower limbs.

60. It follows that a rating under Impairment Table 3 cannot be assigned.

    OTHER MEDICAL CONDITIONS  

61. Mr Aeso claims that he suffers from a mental health condition, namely, Adjustment Disorder with Anxiety and Depressed Mood. However, this condition has not been diagnosed by a psychiatrist or clinical psychologist which means that a rating under Impairment Table 5 cannot be assigned.

62. In letter of 24 February 2016 Dr Said lists gastro-oesophageal reflux, poor oral and dental care, hepatic steatosis and hyperlipidaemia as other medical conditions which he suffers from but provides no other details.

63. There is insufficient evidence before the Tribunal for any assessment as to whether any of these conditions are fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.

    DECISION

64. For reasons set out above the Tribunal is satisfied that, during the claim period, Mr Aeso’s impairment was not 20 points or more under the Impairment Tables so that he 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 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated: 26 May 2017

Date(s) of hearing:	5 May 2017
Applicant:	In person
Solicitors for the Respondent:	Biljana Salaji, Department of Human Services