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

[2017] AATA 342

Cassar and Secretary, Department of Social Services (Social services second review) [2017] AATA 342 (20 March 2017)

Division:GENERAL DIVISION

File Number:           2016/4064

Re:Joseph Cassar  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Nikolic AM CSC

Date:20 March 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member

SOCIAL SECURITY - disability support pension – cancellation – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – 10 impairment points assigned for spinal condition – various conditions diagnosed but not fully treated or stabilised in relevant period – decision under review affirmed 

Legislation

Social Security Act 1991 (Cth)

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 (Cth)

Cases

Joan Elizabeth Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558

REASONS FOR DECISION

Senior Member A Nikolic AM CSC

20 March 2017

INTRODUCTION

1. Mr Joseph Cassar received a Disability Support Pension (DSP) from 19 May 2000 until a periodic review by Centrelink in late 2015 determined he was no longer eligible. On 8 December 2015 Centrelink, the service provider for the Department of Social Services (the Department), made a decision to cancel Mr Cassar’s DSP on the basis that his impairment rating was less than the required 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

2. On 26 April 2016 an Authorised Review Officer (ARO) of the Department affirmed this decision. Mr Cassar subsequently sought a review of the ARO’s decision by the Administrative Appeals Tribunal (the Tribunal).

3. On 19 July 2016 the Social Services and Child Support Division of the Tribunal affirmed the Department’s decision.  On 2 August 2016 Mr Cassar applied for a second-tier review in the Tribunal’s General Division.

4. The hearing was held on 28 February 2017. Mr Cassar was self-represented. The Department was represented by Mr James Henderson.

5. The Department tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence.

6. Mr Cassar relied on the following medical reports, which were contained in the T-documents:

   (a)Report from Associate Professor Z. Matkovic, neurologist, dated 4 May 2016;

   (b)Report from Mr W. Kelly, physiotherapist, dated 13 May 2016;

   (c)Report from Dr M. Radich, general practitioner, dated 6 November 2016; and

   (d)Report from Dr J. Sauvey, radiologist, dated 18 July 2015.

7. At the commencement of the hearing Mr Cassar also tendered a report from Dr S. Kwong, consultant psychiatrist, dated 29 December 2016, which was admitted into evidence.

   LEGISLATIVE FRAMEWORK

8. The Department’s decision to cancel Mr Cassar’s DSP was made under section 80(1) of the Social Security (Administration) Act 1999, after finding that Mr Cassar did not satisfy paragraph 94(1)(b) of the Social Security Act 1991 (Cth) (the Act).

9. The qualifying requirements for the DSP at section 94(1) of the Act require that a DSP applicant has:

   (a)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;

   (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.

10. The Impairment Tables referred to in section 94(1)(b) of the Act assign ratings to determine the level of functional impact that a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, treated and stabilised, and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

11. For a condition to be fully stabilised, the Tribunal must give due regard to section 6(6) of Part 2 of the Impairment Tables, which states that a condition is fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

12. Reasonable treatment is defined at section 6(7) of the Impairment Tables as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    …

    What is the relevant date/period for Tribunal review?

13. Mr Henderson for the Department submitted at the hearing that in DSP cancellation cases, the Tribunal can only consider whether an applicant qualified for the DSP on the date of cancellation and not at other times. The Tribunal accepts that submission, which is  supported by the Federal Court’s decision in Joan Elizabeth Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 in which the court held that the Tribunal could not consider facts post-dating a social security decision under review. Davies J said at 344-345:

    … The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman’s widow’s pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision…

    The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s19.

    ISSUES FOR THE TRIBUNAL

14. The Department accepts Mr Cassar satisfied the requirements of sections 94(1)(a) and 94(1)(c) of the Act on the date his DSP was cancelled (8 December 2015). The Tribunal finds accordingly.

15. The issues to be decided in this application are whether, as at 8 December 2015:

    (a)Mr Cassar had any impairments that were fully diagnosed, treated and stabilised;

    (b)Mr Cassar’s impairments were capable of being assigned an impairment rating of at least 20 points under the Impairment Tables; and

    (c)If Mr Cassar’s impairments attract a rating of 20 or more points under the Impairment Tables, whether he has a continuing inability to work or whether he has participated in the program administered by the Commonwealth known as the supported wage system.

    Were Mr Cassar’s conditions permanent, fully diagnosed, treated and stabilised, and likely to persist for at least two years?

    Degenerative Disc Disease - Lumbar Spine 

16. The medical evidence available to the Tribunal traverses a long history of back and neck pain suffered by Mr Cassar since a 1987 workplace injury, including: 

    (a)On 1 July 1999, Dr A. Thompson for the Department examined Mr Cassar, noting that his back pain was permanent and that: he demonstrates loss of ¼ of his normal range of neck movement and loss of ¼ of his normal range of lumbar movement. 

    (b)Dr P. Koch confirmed on 20 August 1999 that Mr Cassar had low back pain since 1987 and chronic neck pain since 1989.  

    (c)A Centrelink Medical Assessment Report by Dr D. Newman on 29 June 2000  found that Mr Cassar:

    …has approximately ¼ the normal range of spinal movement…He also has chronic neck pain which restricts his neck movement to approximately ½ the normal range…

    (d)Mr Cassar underwent a CT scan of his lumbar spine on 25 January 2010, which found central canal stenosis at L4/5 with multilevel disk bulges at L2/3, L3/4, L4/5 and L5/S1.

    (e)A further CT scan of Mr Cassar’s Lumbar Spine on 18 July 2015 by Dr Sauvey found:

    diffuse lumbar apophyseal joint degenerative changes…It may be worth considering lumbar epidural steroid administration for symptomatic relief in view of the lumbar canal stenosis and multilevel disc bulging.

17. The Department contends that Mr Cassar’s spinal condition was not fully treated or stabilised on the date of cancellation, because he had not undertaken reasonable treatment.  This contention is based on the Department’s view that:

    (a)There was a lack of specialist review or treatment of Mr Cassar’s spinal condition by a neurologist, rheumatologist or orthopaedic surgeon prior to Mr Cassar’s consultation with Associate Professor Matkovic on 4 May 2016.  Mr Cassar stated at the hearing that previous specialist confirmation of this condition was already available and his general practitioner, Dr Radich, had provided the necessary information to Centrelink.  Mr Cassar’s point was that further specialist review was not needed to confirm a well-established diagnosis;

    (b)Mr Cassar had not undertaken any physiotherapy in the three years prior to his DSP cancellation. In response, Mr Cassar stated that physiotherapy did not improve his condition or alleviate his symptoms, which was a view supported by Associate Professor Matkovic and Mr Kelly;

    (c)Mr Cassar’s condition appears to have been largely treated by analgesic and anti-inflammatory medication alone. Mr Henderson contended that despite his longstanding chronic pain and a diagnosis of chronic pain disorder by Dr Kwong on 29 December 2016, Mr Cassar had not been referred to a multidisciplinary chronic pain management clinic. Mr Cassar stated that he took the medications and undertook the exercises prescribed for his condition, and that referrals of the sort proposed by the Department were a matter for his treating physicians;

    (d)Mr Cassar has not received an epidural steroid in the lumbar region to relieve symptoms as suggested by Dr Sauvey on 18 July 2015.  Mr Cassar responded at the hearing:

    No I didn’t want it. Too scared about it. He did mention it but I said no.

18. The Tribunal notes that the reference to a lumbar epidural steroid in Dr Sauvey’s report is couched in the following terms:

    It may be worth considering lumbar epidural steroid administration for symptomatic relief…    

19. A medical report dated 4 May 2016 by Associate Professor Z. Matkovic, stated the following in relation to Mr Cassar’s spinal condition:

    He has degenerative disc disease in the lumbar spine. No doubt that is the source of his symptoms...Lumbar CT has confirmed the presence of extensive lumbar degenerative change and lumbar canal stenosis. As his symptoms are longstanding and have been present for over a decade the chance of significant amelioration or reversal with extensive lumbar surgery is only remote. Indeed it is not an undertaking that I would recommend.

    
    
    

    Physiotherapy has been tried and is current with one session per week for about half an hour. Physiotherapy has been tried in the past without significant improvement in his symptoms…With constant symptoms and symptoms aggravated by activity I do not expect that he will be able to work in the capacity of  a maintenance fitter. Indeed I cannot think of any employment that would be suitable in the presence of his symptoms.

20. In support of Associate Professor Matkovic’s comments, the Tribunal notes the report by Mr Kelly dated 13 May 2016:

    His specialist does not believe any intervention on his behalf would change josephs (sic) symptoms as his pain is too chronic. I agree with this. He is also of the opinion that Joseph will never be suitable to work again which I also agree with based on the fluctuation and intensity of pain levels, and his inability to stay in one position for longer than 10 minutes comfortably. Follow up treatment was based around a home exercise programme to improve mobility and maintain functionality and pain levels long term. 

21. Dr Michael Radich completed a medical report on 6 November 2015, which was approximately a month prior to the cancellation of Mr Cassar’s DSP.  Dr Radich, who has been Mr Cassar’s treating physician since 2003, confirmed a diagnosis of lumbar disc disease with canal stenosis since 25 May 2010, which was supported by specialist opinion. He listed the treatment for this condition as analgesics, rest, monitor.  Dr Radich stated that the condition caused pain, restricted movement and poor sleeping.  He assessed that the condition would persist for longer than 24 months and fluctuate in its effect on Mr Cassar. In relation to Dr Radich’s assessment that the condition would fluctuate in its effect, Mr Cassar gave evidence at the hearing this meant it would fluctuate from bad to worse. He said Dr Radich had conveyed this to Centrelink during a telephone conversation on 2 November 2015.  The Tribunal notes a Centrelink file note to this effect, confirming Dr Radich’s advice that Mr Cassar’s spinal condition would continue to deteriorate.

22. Centrelink also provided two Job Capacity Assessment (JCA) reports of Mr Cassar dated 3 February 2016 and 29 March 2016.  During the hearing, I expressed concern that these reports were commissioned after the Department had decided to cancel Mr Cassar’s DSP. This is considered sub-optimal practice. Given that a JCA may help determine a person’s medical eligibility for DSP by assessing the impact of medical conditions on their work ability, it should form part of the Department’s pre-decision processes. That is not to say that a decision-maker cannot reach a valid conclusion without a JCA, or that an ARO or this Tribunal cannot incorporate JCA outcomes in subsequent review or appeal processes, but simply that the conclusions reached in a JCA are best considered by Departmental officials prior to a decision being made.     

23. Both JCA’s found that Mr Cassar’s spinal condition was permanent, but was not fully diagnosed, treated and stabilised for Centrelink purposes, because:

    Client has not engaged in reasonable treatment including a neurologist or orthopaedic specialist, and he last engaged in physiotherapy 3 years ago.

24. The JCA’s determined that Mr Cassar had a temporary work capacity of 0-7 hours per week, consistent with his employment as a limousine driver for approximately 10 hours per fortnight, and a baseline work capacity of 8 to14 hours per week. Given the JCA finding that Mr Cassar’s spinal condition was not fully diagnosed, treated or stabilised, the assessor allocated no points for this condition under the Impairment Tables.    

    Diabetes

25. In his medical report dated 6 November 2015, Dr Radich stated that the onset of Mr Cassar’s Diabetes was 16 July 2013. He noted the condition was managed through diet, weight monitoring and restricted exercise. Dr Radich further noted that Mr Cassar was usually compliant with the recommended treatment and fatigue was the only symptom.  He stated that Mr Cassar’s diabetes was expected to persist for over 24 months and fluctuate in its effect. The impact on Mr Cassar’s ability to function is reported as:

    Needs to have regular meals, needs to maintain good weight control despite limitations of back and inability to exercise.

26. During the hearing, Mr Cassar did not refer to his diabetes as a condition that impaired his functional capacity.

27. Both JCA reports found that Mr Cassar’s diabetes was permanent, but was not fully diagnosed treated or stabilised for Centrelink purposes.  The Department submitted there was insufficient medical evidence to justify the allocation of any points for this condition under the Impairment Tables. 

    Other Conditions

28. In a report dated 29 December 2016, Dr Kwong diagnosed Mr Cassar as having Chronic Pain Disorder and in addition to that diagnosis, stated the following:

    However his pension recently got cancelled for reasons unbeknown to him. The shock of losing financial security and the pressure of having to seek employment have caused him to become acutely anxious and depressed.

29. Mr Cassar gave evidence about the negative effects on his mental health following cancellation of his DSP, causing him to get silly things in [his] head. In response to the Tribunal’s encouragement about the availability of professional support, Mr Cassar confirmed he was being supported by his family and mental health practitioners in dealing with any negative thoughts.

30. Mr Henderson submitted that Dr Kwong’s consultation with Mr Cassar and diagnosis of Chronic Pain Disorder post-dates the DSP cancellation decision, and that the condition is not fully treated or stabilised. It therefore cannot be included in the Tribunal’s assessment of conditions that might have impaired Mr Cassar’s functional ability on the date of DSP cancellation.  As proposed by the Department, Mr Cassar may wish to submit a new DSP application encompassing the updated medical evidence about his spinal condition and Dr Kwong’s recent diagnosis.

31. Mr Henderson further submitted that there is insufficient evidence relating to Mr Cassar’s bilateral knee pain to support a finding that it is fully diagnosed, treated or stabilised.  This condition is mentioned in a medical report by Dr Newman dated 29 June 2000, referring to Mr Cassar’s inability to squat on examination. Mr Cassar confirmed at the hearing that he could squat to pick something up off the floor, but sometimes gets stuck and needs help, or uses a bench to raise himself to a standing position. 

    CONSIDERATION

32. The Tribunal places significant weight on the views of Associate Professor Matkovic, Dr Radich, Dr Sauvey and  Mr Kelly. Their reports are relatively recent and assist the Tribunal’s assessment of Mr Cassar’s impairments on the date his DSP was cancelled.

33. Associate Professor Matkovic’s report confirms the previously-established diagnosis of Mr Cassar’s spinal condition, concluding that significant amelioration or reversal of symptoms through surgery is remote – and not recommended. Associate Professor Matkovic states that physiotherapy has not previously resulted in significant improvement in symptoms, which is a view supported by Mr Kelly, who doesn’t believe any intervention would change Mr Cassar’s symptoms as his pain is too chronic.  Mr Kelly recommends a continuation of home exercise to maintain functionality.      

1. The Tribunal places less weight on the Department’s JCA reports. In discussing the evidentiary weight that should be given to JCA reports, Deputy President Forgie stated in  Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558, at [60-61]:

   There is a danger in treating JCA Reports as recommendations if that were to mean that the JCA Assessor’s views were given any status beyond that of summary and analysis…There is a further danger and it arises if the opinions expressed in JCA Reports are necessarily treated as evidence. The danger arises…in two contexts. In the first it arises when opinions expressed by JCA Assessors on medical issues are treated as evidence of the sort found in reports of treating medical practitioners and those of allied health professionals and specialists reporting on a patient in areas of their expertise.

2. In relation to the Department’s view that Mr Cassar had not undertaken reasonable treatment in relation to his spinal condition, this is not supported by the available evidence. Mr Cassar has not declined reasonable treatment, for example, such as refusing medication. As Mr Cassar stated during the hearing, he chose not to proceed with the epidural steroid suggested by Dr Sauvey after discussing it with his doctor.  The Tribunal chracterises Dr Sauvey’s comment about an epidural steroid as no more than a suggestion that may be worth considering. The Tribunal accepts Mr Cassar’s evidence that he considered this suggestion with his general practitioner and chose not to proceed after assessing the risks and benefits. Similarly, Mr Cassar did not undertake regular physiotherapy in the three years prior to cancellation because it did not alleviate his symptoms. This is confirmed by Associate Professor Matkovic and Mr  Kelly. It is of concern to me that the Department appears to be suggesting what should or should not constitute reasonable treatment for Mr Cassar’s spinal condition, which is a task best left to treating physicians.

3. The available evidence supports a finding that Mr Cassar undertook reasonable treatment for his spinal condition based on the recommendations of his treating doctors. The evidence also shows that further reasonable treatment was unlikely to result in significant functional improvement.  Mr Cassar’s spinal condition therefore meets the definition of reasonable treatment at section 6(a) of the Impairment Tables and was fully diagnosed, treated and stabilised on the date his DSP was cancelled. Given that finding, an impairment rating can be assigned for this condition under Impairment Table 4, Spinal Function.

   What ratings may be assigned for functional impairment in accordance with the Impairment Tables?

   Degenerative Disc Disease - Lumbar Spine 

4. At the hearing, Mr Cassar said he worked intermittently as a limousine driver for his brother’s company from 2010 until early 2016, undertaking shifts of up to 6 hours. He said this included attendance at weddings and funerals, but he left the role because of the requirement to help carry coffins, which he could not manage because of his back. 

5. In response to questions about his ability to drive and operate his caravan and boat, Mr Cassar said he was able to drive a vehicle for up to an hour as a limousine driver and to reach his family’s annual holiday destination at Portarlington. He said driving was often uncomfortable, but he managed by stopping to stretch his legs.  In response to questions about operating his caravan and boat, Mr Cassar said his son and friends help set up the caravan and campsite. At the hearing Mr Cassar described his Landcruiser as the Rolls Royce of 4x4’s, providing a level of comfort that enabled him to better tolerate longer drives. He said that the anchor on his boat went up and down with the push of a button, which made it easy to operate without physical effort and that he was able to go fishing, but not on rough days.

6. In response to questions about his ability to reach, lift and move, Mr Cassar said he could undertake overhead activities, but found it hard on occasions and had to ask his wife to assist. He reports being able to pick up a light object from a desk or table and to bend or squat in order to pick something up off the floor, but needs to grab a solid surface to raise himself back to a standing position. He can move his neck left and right (for example at intersections), but his neck sometimes tightens up.  He is able to get out of a chair, or in and out of a car, by using armrests and grips.

7. The available evidence and Mr Cassar’s description of what he can and cannot do as a result of his spinal condition, accords most closely with the descriptors for a moderate functional impact under Table 4 , which attracts 10 points.

8. For Mr Cassar to be awarded a severe rating (20 points) under Table 4, the evidence would need to show that Mr Cassar was unable to: perform any overhead activities; or turn his head; or bend his neck without moving his trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.

   Diabetes

9. In relation to Mr Cassar’s Diabetes, the available evidence shows this condition was well-managed by diet and exercise at the time his DSP was cancelled. Dr Radich’s assessment that the condition is expected to fluctuate and Mr Cassar’s recently-reported symptoms of dizzy spells, show that the condition is not fully stabilised. The Tribunal is therefore unable to allocate any points for this condition under the Impairment Tables.

   Other Conditions 

10. No points can be allocated for the recent diagnosis by Dr Kwong of a chronic pain disorder, which post-dates Mr Cassar’s DSP cancellation decision and cannot be considered by the Tribunal.

11. No points can be allocated for Mr Cassar’s bilateral knee pain as there is insufficient evidence to show it was fully treated or stabilised on the date his DSP was cancelled.

    CONCLUSION

12. For the reasons detailed above, the Tribunal finds that Mr Cassar can be allocated a total of 10 impairment points under Impairment Table 4.

13. Given that Mr Cassar’s conditions were not capable of being assigned 20 points or more under the Impairment Tables on the date his DSP was cancelled, he does not satisfy section 94(1)(b) of the Act and is not qualified to receive DSP. Therefore, it is not necessary for the Tribunal to determine whether Mr Cassar had a continuing inability to work or was participating in a Program of Support.

14. The Tribunal affirms the decision under review.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member

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

Dated:     20 March 2017

Date of hearing:	28 February 2017
Applicant:	Mr Joseph Cassar
Solicitor for the Respondent:	Mr James Henderson