Dauenhauer and Secretary, Department of Social Services (Social services second review)
[2023] AATA 176
•16 February 2023
Dauenhauer and Secretary, Department of Social Services (Social services second review) [2023] AATA 176 (16 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/2017
Re:Laszlo Dauenhauer
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Ms A E Burke AO, Member
Date:16 February 2023
Place:Melbourne
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
.......................[sgd].................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether as reasonable treatment has been undertaken – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support
has been undertaken – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Cases
Dauenhauer and Secretary, Department of Social Services [2020] AATA 3359
Lucas and Secretary, Department of Social Services [2018] AATA 2563
Newman and Secretary to the Department of Families and Community Services [2002]
AATA 917
Scott and Commissioner for Superannuation (1986) 9 ALD 491
Smalldon and Secretary, Department of Social Services [2015] AATA 2
Smyrniadou and Secretary, Department of Social Services [2022] AATA 2433Secondary Materials
Guide to Social Security Law, Department of Social ServicesREASONS FOR DECISION
Ms A E Burke AO, Member
16 February 2023
INTRODUCTION
Mr Dauenhauer (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (the Act).
Mr Dauenhauer lodged a claim for DSP on 4 March 2021. On 20 March 2021, Centrelink rejected Mr Dauenhauer’s claim for DSP, as he did not have an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 8 September 2021 a Centrelink Authorised Review Officer (ARO) affirmed the decision. Mr Dauenhauer sought review of that decision by the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the decision on 17 February 2022. Centrelink is the service provider for Services Australia.
The application was heard via telephone on 30 August and 18 November 2022. Mr Dauenhauer was self-represented and Mr James Henderson, Solicitor in the Litigation Branch of Services Australia, appeared for the Respondent.
THE ISSUEs IN CONTENTION
The issue in contention is whether Mr Dauenhauer was qualified for a DSP from the date of his claim, 4 March 2021, to a date 13 weeks thereafter, 3 June 2021 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Mr Dauenhauer had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which results in impairments attracting 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
BACKGROUND
Mr Dauenhauer is a 60-year-old man living with his adult son in Melbourne. He previously worked from 1985 to 2017 as a self-employed carpenter. In 2017 Mr Dauenhauer ceased work as a carpenter as he could not undertake the physical demands of the role due to his ill health and resultant chronic pain. Mr Dauenhauer has been in receipt of job seeker payments on and off since this time.
On 4 March 2021, Mr Dauenhauer made an application for DSP in which he referred to a previous claim he had made for the DSP (lodged on 5 February 2019) in which he cited his medical conditions as lower back, right shoulder, left knee and eyes impaired. His previous claim for DSP was rejected by Centrelink and the decision affirmed by the General Division of the Tribunal (AAT2) on 1 September 2020 (Dauenhauer and Secretary, Department of Social Services [2020] AATA 3359).
On 17 March 2021, Centrelink undertook a file-based ‘Disability Support Pension Medical Eligibility Assessment Recommendation’ which determined Mr Dauenhauer was manifestly medically ineligible for the DSP as limited new evidence had been provided since his previous claim for DSP of 5 February 2019. The Medical Eligibility Assessment Recommendation states:
Given the primary conditions indicated by customer remain not clearly fully treated or stabilised, and limited new evidence has been provided regarding current diagnoses, treatment, functional impacts, symptoms, they cannot be considered fully treated or stabilised. Customer has also noted he is on a waitlist, however has not indicated for which condition, or what purpose.
On 20 March 2021, Centrelink rejected Mr Dauenhauer’s claim for DSP, as he did not have an impairment rating of 20 points.
On 8 September 2021, a departmental ARO affirmed the earlier Centrelink finding on internal review, determining that Mr Dauenhauer did not meet the requirements for DSP as he did not have an impairment rating of 20 points. The reasons for the outcome state:
To qualify for Disability Support Pension you must have medical conditions with a total impairment rating of 20 points. Impairment ratings assessed under the Impairment Tables apply to conditions that are fully diagnosed, treated and stabilised. Your visual condition is fully diagnosed, treated and stabilised and has a total impairment rating of 5 points. Your visual condition causes mild functional impairment. This means your impairment rating is 5 points. Your spinal, right shoulder and left knee conditions are diagnosed but not fully treated and stabilised. This means there are no impairment ratings
On 17 February 2022, AAT1 affirmed the ARO decision to reject Mr Dauenhauer’s DSP claim. AAT1 awarded Mr Dauenhauer an impairment rating of nil impairment points, finding that as none of Mr Dauenhauer’s disorders (vision, spinal, shoulder and upper arm, and a lower limb) could be considered fully diagnosed, treated and stabilised., no impairment ratings could be assigned. The Member noted:
Even though Mr Dauenhauer has been on the waiting list to be seen at the Outpatients Back and Neck Clinic for two years, the tribunal considers this condition not to be fully diagnosed, treated and stabilised, as Mr Dauenhauer has not been seen by a specialist, and has not had an MRI since 2015. Accordingly, this condition does not attract an impairment rating.
On 9 March 2022, Mr Dauenhauer sought a review of the AAT1 decision by this division of the Tribunal, as he disagreed with the decision. He stated in his application: ‘The law was not applied correctly’.
On 6 July 2022 the Health Professional Advisory Unit (HPAU) produced a report for these proceedings detailing the reasonable treatment options available for chronic pain at no, or minimal, cost. The HPAU report stated: “Current wait time for pain management clinic at Monash Health is 12 months, (as per telephone call on 29/6/2022)”.
Relevant Legislation and Issues
Eligibility for DSP
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a) the person has 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;
Impairment Tables
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that ‘Self-report of symptoms alone is insufficient’ and ‘There must be corroborating evidence of the person’s impairment’.
Paragraph 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Paragraph 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
For the purposes of paragraph 6(7) of the Impairment Tables, ‘reasonable treatment’ is 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.
Section 5(2) of the Impairment Tables makes clear that they are function-based, rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment ‘must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others do for the person’.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
Therefore, it is necessary to consider Mr Dauenhauer’s medical conditions with reference to the applicable Impairment Tables.
Continuing inability to work
Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) states that in order for a person to have satisfied the requirement of actively participating in a program of support, they must have participated in the program of support for at least 18 months in the 36-month period before their application for DSP.
The POS Determination also lists a number of exemptions to the general requirement that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment. The POS determination relevantly provides at section 7(4):
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Dauenhauer also lodged additional material.
Does Mr Dauenhauer have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for the DSP a person must suffer from an impairment.
The Respondent accepts that Mr Dauenhauer is suffering from chronic lower back pain, chronic pain in the right shoulder, chronic pain in the left knee and monocular doubling of vision. The Tribunal finds that Mr Dauenhauer was living with these impairments during the qualifying period; and he therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second DSP qualification requirement is that the person’s impairment rating is 20 points or more under the Impairment Tables.
Does Mr Dauenhauer have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?
Mr Dauenhauer in a submission for his first DSP claim wrote on 5 February 2019:
If my sensitive, impaired back is aggravated (which is a common occurrence, as it has happened at work several times and at home while having a shower, brushing my teeth and from sitting and standing at the computer), I become immobilised and bedridden for several days and I am unable to walk at all. Afterwards I need to use physical aids (walking stick and back brace) for another 60 to 180 days depending on the extent and severity of the aggravation and pain. During these times I am housebound, can only walk very short distances, can not sit or stand and can not lift my arms. Using the bathroom and toilet at these times is hell. I have a disability rail installed in my toilet as an aid. At these times I am dependent on my son and friends help when they are available. When I have recovered to a certain point (the pain is always there) simple tasks such as putting socks on can take me 30 minutes to struggle with as I am putting up with the pain. I can only sit or stand for a short period of time. Recently in September 2018, I have had another episode with my back that I believe was onset by sitting and standing in front of the computer (that I should be avoiding and it is impossible to do) that aggravated my impaired back. I'm still recovering from it and only use a computer or electronic device if I can not avoid it.
While in hospital in 2004 and in the emergency department in 2015, I was told that operations on my back should be considered only if there is no other options available. It should be considered as a last result, and there is no guarantee that I will get better.
Mr Dauenhauer advised the Tribunal that he:
(a)had first experienced back pain in 2004 but continued to work with the pain as he had to provide for himself and his son;
(b)has a limited ability to sit, stand, walk, bend, lift, drive and use public transport due to his physical conditions;
(c)prefers to lean against a higher surface than to sit;
(d)has a limited ability to use a computer because of his eye condition;
(e)cannot perform activities at or above shoulder height;
(f)is unable to perform activities that put stress on his lumbar spine;
(g)spends most of his day lying on his stomach, in what he describes as a cobra position, as recommended by his physiotherapist and doctor as this reduces his pain; and
(h)is completely reliant on his son to assist with most activities; his son is 24 years old, lives at home and is studying full time.
The Respondent contended that Mr Dauenhauer did not qualify for the DSP for the following reasons:
(a)Mr Dauenhauer’s evidence and condition is largely unchanged from his unsuccessful 2019 claim for DSP. The Respondent’s submissions to the AAT2 in respect of that matter, and the subsequent AAT2 decision, are still relevant and applicable. There is nothing to warrant departure from the conclusions reached in that AAT2 decision.
(b)The Tribunal in Scott and Commissioner for Superannuation (1986) 9 ALD 491 (Scott) at 499 stated:
One effect of the tribunal’s decisions is to establish administrative norms; they enable legislation to be administered consistently. For the tribunal to make decisions inconsistent with its own previous decisions adversely affects that process.
…where a matter has been decided by the tribunal after full consideration of competing arguments, the decision is one which is reasonably tenable and there have been no changes to the legislation and no new decisions of the High Court of Australia or the Federal Court which may be relevant, it seems to us that it would be extremely unhelpful for the tribunal in subsequent proceedings to decide the matter in a manner inconsistent with that decision, particularly when the arguments advanced are substantially the same as those advanced in the previous case.
(c)The new medical evidence provided by Mr Dauenhauer does not address the shortcomings in qualification for paragraph 94(1)(b) of the Act found in the previous AAT2 decision in that his chronic spinal, shoulder and neck pain are still not fully treated and stabilised because reasonable treatment has not been undertaken. Specifically:
(i)The referral of Dr Patrick dated 19 November 2019 to the Orthopaedic Outpatient Clinic at Monash Medical Centre is simply a referral. It does not demonstrate that Mr Dauenhauer was subsequently seen, nor report what (if any) treatment may have been provided.
(ii)The medical certificate of Dr Patrick contains the same information already on record and adds nothing new.
(iii)The discharge summary from Monash Health reports a two-hour stay in the emergency department wherein it appears Mr Dauenhauer simply attended in a bid to expedite a specialist appointment and obtain a letter for Centrelink (presumably to support his claim for DSP). Mr Dauenhauer was re-referred to the Back and Neck Clinic and advised to await an appointment.
(iv)Whilst the physiotherapy reports of Mr Toohey are positive and show attendance at seven sessions throughout 2020, followed by a further seven sessions in 2021 – receipt of physiotherapy alone (since the unsuccessful 2019 claim) is not enough to demonstrate that the Applicant’s conditions are now fully treated and stabilised.
(d)The HPAU report dated 6 July 2022 details a range of reasonable treatment options available for chronic pain at no, or minimal cost, which Mr Dauenhauer has not undertaken. Mr Dauenhauer remains to be seen by a specialist and has not participated in a pain management clinic.
(e)The Tribunal in Smalldon and Secretary, Department of Social Services [2015] AATA 2 (Smalldon) at [16] held that:
As all Ms Smalldon's impairments relate to pain, or the effects of that pain, I consider it inappropriate to regard any of her conditions as permanent until she has at least completed a course of pain management at a recognised pain clinic. It is usual for pain management clinics to address the very problems Ms. Smalldon complains of, and to help chronic pain suffers cope with the pain and the effects of chronic pain. Dr Vecchio is not a pain specialist, nor is he an occupational physician. It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is usual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored. I do not find anything in Dr Vecchio's brief letter to persuade me that Ms Smalldon's circumstances present a reason to depart from this established position. Until Ms. Smalldon has completed a pain management course, and a specialist form pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.
(f)In Lucas and Secretary, Department of Social Services [2018] AATA 2563, the Tribunal applied Smalldon and stated at [51]-[52]:
It would be inappropriate for the Tribunal to consider this condition to be permanent and/or fully diagnosed and stabilised until the Applicant has completed a course of pain management at a recognised pain clinic…
The Applicant’s failure to undertake and complete a recommended course of pain management leads to the inevitable and unarguable conclusion that this condition was not fully treated or stabilised at the relevant period. Accordingly, no impairment points can be allocated to it.
(g)Mr Dauenhauer’s additional evidence of 15 September 2022 indicating his waiting time to be seen by the Back and Neck Clinic at Monash Health does not address the shortcomings in establishing that his chronic back, shoulder, and neck pain has been fully treated and stabilised, as reasonable treatment has still not been undertaken.
Spine Disorder
On 30 April 2004, Dr Sarah Kremer provided a radiology report of Mr Dauenhauer’s lumbar spine which concluded: ‘Small central disc protrusion at L3/4 with a moderate sized left sided disc protrusion at L4/5’.
On 2 February 2015, Dr Arian Lasocki, radiologist, reported on a spine lumbo sacral CT of Mr Dauenhauer’s lumbar spine which concluded:
Degenerative changes are most pronounced at L/4 and L4/5, as described. At L3/4, there appears to be a central and left paracentral disc protrusion superimposed on a disc bulge, with the potential for impingement of the descending left L4 nerve root in particular. Further assessment with MRI would be a value.
On 17 March 2015, Dr Peter Zeimer, radiologist, reported on an X-Ray of Mr Dauenhauer’s pelvis and left hip which found:
Left hip has normal appearance with no evidence of any fractures, dislocations, osteoarthritis or any other significant bony or joint abnormality.
The right hip as well as the rest of the pelvic bone, sacrum and sacroiliac joints are normal.
On 7 April 2015, Dr Alexander Rhodes, radiologist, reported on an MRI of Mr Dauenhauer’s lumbar spine and concluded:
Large central disc protrusion at L3/4 with associated ventral impingement of the thecal sac and budding L4 nerve roots particularly in the left subarticular recess.
On 14 August 2018, Dr Jules Comin, radiologist, reported on a CT of Mr Dauenhauer’s lumbar spine and concluded:
Degenerative changes are seen most notably at L/4 and L4/5 where there is suggestion of a large disc herniation.
On 6 January 2019, Dr Andrew Patrick, general practitioner, in a DSP assessment submission opined that Mr Dauenhauer suffered:
Chronic low back-pain. This began in 27/04/2004. The severity of his pain can vary from moderate to severe. He states that the pain begins if he has been standing for any length of time and is aggravated by bending, twisting, walking any distance and carrying objects. When it is severe he states that he needs to use a back-brace and walking stick. CT scan of his lumbosacral spine performed in 2004 showed a moderately large disc protrusion displacing the left LS nerve root. A MRI scan of his lumbo-sacral spine in 2015 showed a large central disc protrusion at L3/4 with associated ventral impingement of the thecal sac and budding nerve broots particularly in the left subarticular recess.
On 20 October 2019, Dr Patrick provided a further report for Mr Dauenhauer’s appeal of his 2019 DSP refusal which advised:
As I stated in my letter dated on 30/06/09, Mr Dauenhauer's medical conditions are permanent, treated and stabilised as far as possible taking into account what the patient could and can afford financially. All these conditions are long term and can be seen from the medical records. He told me he lives on Centrelink Newstart Support that is $40.00 per day and he states, that he cannot afford to pay for specialists, physiotherapy, operations, rehabilitation programs, and other related services. There is no guarantee that his conditions and health would improve significantly, and that he will be better if he underwent these treatments as he has multiple existing medical conditions that need treatment at the same time. Mr Dauenhauer undertaken all reasonable treatments that he can afford.
Explanation:
As I have written in my previous correspondences the patient been diagnosed with four permanent medical conditions that cause impairments and three of these, the lower spine (lumber), left knee and right shoulder are work related medical conditions.
Taking into consideration Mr Dauenhauer's age, the physically demanding work that included but was not limited to repetitively lifting heavy things, bending, kneeling, walking up ladders and stairs that he was doing for about 35 years, the wear and tear of the left knee, right shoulder and the back conditions as well as the basic activities he needs to do every day for living; these will continue to affect his joints and functional ability. It is more likely than not, they will not improve significantly even with interventions. There are no guarantees that his medical conditions and functional ability will improve significantly in the future as he has multiple medical conditions that cause multiple physical impairments that need attention at the same time as they all affect his body and functional ability.
Fully diagnosed, fully treated and stabilised does not guarantee the patient's degenerative medical conditions will improve significantly, as it is more likely than not they will persist and continue to degenerate over time specially as he gets older. Certain activities also can aggravate these conditions
All four medical conditions are degenerative and most likely than not, there will be no significant improvements to the conditions and to the impairments caused by the conditions in the next 2 years, and it will persist for more than 2 years.
Please refer to X-ray, CT, Ultrasound and MRI reports for detailed descriptions of the conditions. You may also refer to the end notes (not part of this review)
I signed medical certificates for Mr Dauenhauer on 30/8/18, 20/9/18 and a Verification of Medical Conditions form on 29/10/18 so he could be assessed further by the OHS to see if the Job Plan and participation requirements reflected his disability, impairments and ability to participate. The reason behind this was that Mr Dauenhauer just prior to these dates participated in a training activity program which also involved using the computer more often These activities contributed to aggravate his lower back medical condition. He could not fulfil his Job Plan and his Disability Service Provider (DSP) referred him to have an assessment. He tells me the Tables were not used for the assessment.
On 27 August 2019, Monash Health Outpatients wrote to Mr Dauenhauer to advise:
We have reviewed a referral requesting an appointment for you to be seen in the Outpatients Back and Neck clinic.
The information regarding your condition has been assessed by one of our clinicians and your name has been entered on the outpatient appointment waiting list, which currently has an expected wait time of more than 12 months.
Please continue to see your doctor while you are waiting for your appointment to discuss any concerns about your condition or the expected wait time for an appointment.
On 26 January 2020, Dr Patrick provided a further report which opined:
Mr Dauenhauer's condition fluctuates in severity. Since 2015 his low back-pain has become worse and has persisted until the present. The low back-pain was initially documented on 29/04/2004. My last report was carried out in accordance with the Impairment Tables at Mr Dauenhauer's request.
On 22 February 2021, Mr Ryan Toohey, physiotherapist, outlined Mr Dauenhauer’s condition and treatment in a report which states:
Laszlo first attended physiotherapy at My Physio GESAC on 03/02/2020. He had significant left sided low back pain with radiculopathy resulting in left leg pain and numbness that was aggravated with repetitive bending tasks and prolonged sitting. A CT scan revealed L4/5 and L5/S1 disc protrusions as well as significant lumbar degeneration. Since this time, Laszlo has been seeing me intermittently under an enhanced primary care plan set up by his GP Dr A.C Patrick. These sessions have been used to progress a home-based core exercise program as well as provide mobilisation and massage to relieve Laszlo's back and shoulder pain.
On 23 December 2021, Mr Toohey provided a further report of Mr Dauenhauer’s condition and treatment for the three symptomatic areas of his body:
Further to my report dated 22/02/2021, Laszlo has been receiving treatment on his shoulder and left leg throughout 2021. These conditions were firstly treated under the enhanced primary care plan for 5 sessions, before Laszlo attended 2 privately funded consults later in the year. In addition to this, he also received 7 physiotherapy consults for the same symptomatic areas in 2020.
Laszlo has 3 symptomatic areas of his body, his lower back, his right shoulder and his left knee. His lumbar diagnosis is the primary condition of concern and is the dominant factor for his overall lack of mobility and increased pain, which affects and limits the functionality of other areas of his body. This limited use of multiple areas of the body including his upper and lower limbs due to his lumbar diagnosis occurs regardless of whether his shoulder and knee injuries are present. His lower back and shoulder were prioritised during our consults this year because of time and monetary constraints and as these were his conditions causing the most impairment to his activities of daily living.
On 14 May 2021, Mr Dauenhauer presented to the emergency department at Monash Medical Centre. The discharge summary recorded the diagnosis as ‘Low back pain /Loin pain /Low back strain /lumbago’ and stated:
50 yo M with history of chronic back pain in context of degenerative changes to L4/L5 with large disc herniation
presented to ED due try expedite specialist appointment - has been waiting since Aug 2019 for appointment with back and neck clinic
has had ongoing struggles with centrelink as they are not accepting GP/physio letters regarding limitation of work - requiring specialist letter
RE: back pain - 4/7 day history
nil red flags - able to walk nil weakness/paraesthesia
nil saddle anaesthesia
no changes to bowel/urine
nil fevers, weight loss
have explained limited ability of ED to be able to provide letter to centrelink advised may be prudent to see a private sopecialist for letter for centrelink and await public appointment for ongoing care
The Respondent’s submission in respect of Mr Dauenhauer’s 5 February 2019 DSP claim contended:
…that the condition of chronic back pain is not permanent, that is, the condition is not fully treated and stabilised. The applicant has provided no evidence from a specialist in relation to any further treatment to be undertaken for the condition. While Dr Patrick confirms that the condition is fully treated and stabilised and warrants an impairment rating of 20 points under Table 4 of the Impairment Tables, he does not detail any treatment the applicant has had for the condition, nor whether such treatment has stabilised the condition. While Dr Patrick maintains that the condition is fully treated and stabilised taking into account what the applicant could and can afford financially, there is no evidence to suggest that the applicant has consulted with a specialist in order to effectively treat the condition. Even if the applicant claims he cannot afford specialist treatment, he can access the public health system for such treatment.
In addition, the Respondent contended Mr Dauenhauer was referred to a specialist in 2015 in order to effectively treat the condition but chose not to keep the appointment. It therefore cannot be said that the applicant has not been referred for specialist treatment and management of the condition, nor that he was unaware that he had the opportunity to pursue such treatment of the condition. The Secretary contends that specialist review of the condition and available treatment options (including surgery, cortisone injections, new medications etc) would constitute reasonable treatment that was likely to lead to significant functional improvement. In the absence of any evidence of specialist management of the treatment, it is the Secretary’s contention that the condition cannot be said to be fully treated and stabilised.
The Respondent submitted that if the Tribunal makes a finding that Mr Dauenhauer’s spinal condition is fully diagnosed, treated and stabilised, which is not conceded, the Secretary contends that the appropriate rating would be 10 impairment points under Table 4 of the Impairment Tables.
Right Shoulder Disorder
On 29 October 2013, Dr Arian Lasocki, radiologist, reported on an ultrasound of Mr Dauenhauer’s right shoulder and concluded:
Prominent calcific tendinopathy involving the mid insertional fibres of the supraspinatus tendon.
Subacromial bursitis, which may benefit from ultrasound-guided steroid injection.
Small volume of fluid in the biceps tendon sheath, not necessarily pathological but may represent tenosynovitis.
On 6 January 2019, Dr Patrick opined in his report that Mr Dauenhauer suffered:
Chronic pain in his right shoulder. The severity can range from mild to severe. This began on 29/10/2013. Ultrasound of his shoulder on 29/10/2013 showed prominent calcific tendinopathy involving the mid insertional fibres of the supraspinatus tendon. Subacromial bursitis was noted This is aggravated by repetitive work involving the right shoulder. He gives a history of sleep disturbance when the pain is severe.
The Respondent’s submission in respect of Mr Dauenhauer’s 5 February 2019 DSP claim contended:
that the condition of chronic right shoulder pain is not permanent, that is, the condition is not fully treated and stabilised. The applicant has provided no evidence from a specialist in relation to any further treatment to be undertaken for the condition, other than a recent referral to a physiotherapist. While Dr Patrick confirms that the condition is fully treated and stabilised and warrants an impairment rating of 20 points under Table 4 of the Impairment Tables, he does not detail any treatment the applicant has had for the condition, nor whether such treatment has stabilised the condition. While Dr Patrick maintains that the condition is fully treated and stabilised taking into account what the applicant could and can afford financially, there is no evidence to suggest that the applicant has consulted with a specialist in order to effectively treat the condition.
The Respondent submitted that if the Tribunal makes a finding that Mr Dauenhauer’s right-shoulder condition is fully diagnosed, treated and stabilised, which is not conceded, the Secretary contends that this condition should not be given an impairment rating.
The Respondent’s submissions in respect of Mr Dauenhauer’s 5 February 2019 DSP claim contended:
In his report dated 20 October 2019, Dr Patrick reports that he has not given the applicant an impairment rating under Table 2 – upper limb function on the basis that the impairment rating given for the applicant’s back pain should be used for multiple impairments arising from a single condition, as per 10(5) of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011. While the Secretary disagrees with Dr Patrick’s ultimate finding that the applicant’s back pain warrants an impairment rating of 20 points under Table 4, the Secretary accepts that the applicant’s condition of right shoulder pain should not be granted an impairment rating under Table 2 and should be subsumed into the rating of 10 points recommended under Table 4 for the applicant’s chronic back pain.
Left Knee Disorder
On 12 July 2016, Dr Vaughan Beckley, radiologist, reported on an X-Ray of Mr Dauenhauer’s left knee and states:
Tibiofemoral and patellofemoral joint cartilage spaces appear preserved, patellar subchondral sclerosis and small articular marginal osteophytes suggesting early degeneration including underlying chondromalacia patella.
No evidence of other degenerative or erosive arthropathy, abnormal articular or soft tissue calcification. Tiny superior patellar chronic quadriceps enthesophyte.
In Dr Patrick’s 6 January 2019 report he opined that Mr Dauenhauer suffered:
Chronic pain in his left knee. He states that the pain can range from moderate to severe. Xrays have shown early degenerative change. Mr Dauenhauer states that putting any stress on the knee such as walking up stairs and ramps aggravate his pain. He also is unable to squat nor stand for prolonged periods.
In the Respondent’s submission in respect of Mr Dauenhauer’s 5 February 2019 DSP claim they contended:
…that the condition of chronic left knee pain is not permanent, that is, the condition is not fully treated and stabilised. The applicant has provided no evidence from a specialist in relation to any further treatment to be undertaken for the condition, other than a recent referral to a physiotherapist. While Dr Patrick confirms that the condition is fully treated and stabilised and warrants an impairment rating of 10 points under Table 3 of the Impairment Tables, he does not detail any treatment the applicant has had for the condition, nor whether such treatment has stabilised the condition. While Dr Patrick maintains that the condition is fully treated and stabilised taking into account what the applicant could and can afford financially, there is no evidence to suggest that the applicant has consulted with a specialist in order to effectively treat the condition.
The Respondent submitted that if the Tribunal makes a finding that Mr Dauenhauer’s left knee condition is fully diagnosed, treated and stabilised, which is not conceded, the Secretary contends that the appropriate rating would be 10 impairment points under Table 3 of the Impairment Tables.
Fully treated and stabilised
The Tribunal was not satisfied with either party’s evidence in respect of whether Mr Dauenhauer had undertaken specialist management of his spinal, shoulder and knee conditions. Both parties affirmed that Mr Dauenhauer had been referred to the Back and Neck Clinic at Monash Health but neither party presented to the Tribunal actual evidence of whether Mr Dauenhauer had been seen by the clinic, refused to go to the clinic or was still on the waitlist to attend the clinic.
The Respondent relied upon a generic response obtained by the HPAU from Monash Health that the current wait time for the pain management clinic was 12 months. Mr Dauenhauer relied upon Monash Health’s confirmation letter of 27 August 2019 which advised he had been placed on a waitlist to be assessed by a clinician at the Back and Neck clinic with an expected weight time of 12 months.
The Tribunal adjourned the hearing on 30 August 2022 for the parties to get evidence of Mr Dauenhauer having undertaken reasonable treatment for his spinal, shoulder and knee conditions, in particular the waiting time for him to be seen by the Back and Neck Clinic at Monash Health.
On 8 September 2022, Mr Matthew Kemp, Senior Administration Manager of Specialist Consulting (Outpatients) at Monash Medical Centre Clayton advised in response to the Respondent’s enquiries that:
Currently Mr Dauenhauer is currently on the Neurosurgery Waiting list and has currently been waiting 480 Days.
Mr Dauenhauer was initially placed on the Waiting List at a Category 3 Non-Urgent/Routine Patient. Category 3 Patients are to be seen within 91-365 Days.
Mr Dauenhauer has an updated Referral sent in from his GP on 17/05/2021 due to some deterioration was moved to a Category 2 Semi Urgent Patient. A Category 2 Semi Urgent Patients is to be seen within 31-90 Days.
Due to our current volume of Category 2 Patients on the Neurosurgery Waiting List – Mr Dauenhauer is currently sitting around approx. 1100 on the list for surgery
The Respondent contended that Mr Dauenhauer’s additional evidence of 15 September 2022 indicated that he had chosen not to accept an appointment at the Back and Pain Clinic at Monash Health. The Respondent submitted that Mr Dauenhauer:
(a)declined an appointment with the Back and Neck Clinic after waiting 480 days as a Category 2 Semi Urgent Patient on the Neurosurgery waiting list. On 30 August 2022 he attended the Monash Medical Centre to request a letter that stated the length of time he had been on the waiting list and the Outpatient Access Clerk offered him an immediate appointment at the Clinic on 5 September 2022 which he declined; and
(b)has provided no compelling reason to decline reasonable treatment. His submission that he cannot afford treatment are unsustainable, as he has been offered reasonable treatment through the public health system at little or no cost to him. The evidence also indicates that he has not complied with recommendations for treatment by his own medical practitioners. For example:
(i)he was referred to see a rheumatologist in 2015 by Dr Patrick but declined on the basis that he could not afford the consultation fee as he had other medical bills to pay. He is yet to engage with a rheumatologist since the referral in 2015; and
(ii)he was advised to seek a further MRI after having a CT scan on his lumbar spine on 14 August 2019 and has provided no evidence that he has done so. The evidence indicates that he has not had an MRI since 2015, even though his conditions have been deteriorating, and a radiologist recommended that an MRI would better characterise the condition.
Based on this evidence, the Respondent submitted that the Tribunal should treat Mr Dauenhauer’s submissions as to why he had not undertaken reasonable treatment cautiously.
The Respondent further submitted that being on a waitlist does not mean Mr Dauenhauer has undertaken reasonable treatment for his chronic back, neck, and shoulder pain for the following reasons:
(a)the Respondent notes Topic 3.6.3.05 of the Guide to Social Security Law (the Guide) which states:
To be considered reasonable, treatments must be evidence-based with scientific, peer-reviewed research findings to support the use of the treatment for specified medical conditions.
For DSP purposes, reasonable treatment means:
• treatment that is available at a location reasonably accessible to the person at a reasonable cost. Explanation: It would not be reasonable to expect a person to undergo prohibitively expensive treatment, or treatment that is only available in another country in order to satisfy the permanence criteria.
• treatment or procedure that is of a type regularly undertaken or performed. Explanation: Treatments that are experimental in nature or not yet widely accepted or performed by the general medical community would not be considered reasonable.
• treatment that has a high success rate and where substantial improvement can be reliably expected.
Explanation: It would be inappropriate to consider impairment as being temporary solely because the person has not undertaken a treatment that has a poor success rate or that is likely to result in only marginal functional improvement.
• treatment that is of a low risk nature.
Explanation: A person may decide against undertaking a certain treatment because it has serious associated risks, for instance major surgical procedure or unavoidable and significant side effects, as may occur with some types of chemotherapy.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate their condition. However, people cannot be expected to undergo treatment that is not reasonable. Treatment will not be considered reasonable if it is not based on the best medical information available.
(b)In this matter, there is no evidence that Mr Dauenhauer has undertaken any reasonable treatment for these conditions, such as seeing a specialist, cortisone injection, strength/conditioning sessions, alternative medication, hydrotherapy, pain management program, etc. These treatments have a high success rate, are low risk, and substantial improvement can reliably be expected.
(c)For example, Mr Dauenhauer has not engaged in a pain management program, which is well-established to be a reasonable treatment for all conditions where the major component is chronic pain. Generally, Tribunal authorities have recognised that a multi-disciplinary pain management program is reasonable treatment for chronic pain conditions, and failure to engage in one means a condition cannot be regarded as permanent.
(d)The Respondent referred to the matter of Smyrniadou and Secretary, Department of Social Services [2022] AATA 2433 at [34] where the Tribunal firmly stated:
It has been well-recognised by this Tribunal that a program of pain management conducted by pain management specialists is reasonable treatment for a chronic pain condition such as that suffered by the Applicant and a condition cannot be regarded as permanent – that is, fully treated and fully stabilised – unless such treatment is undertaken. See Newman and Secretary, Department of Family and Community Services [2002] AATA 917 at [31]-[32], Smalldon and Secretary, Department of Social Services [2015] AATA 2 at [16] and Lucas and Secretary, Department of Social Services [2018] AATA 2563 at [51]-[52].
(e)While there is some evidence of Mr Dauenhauer undertaking physiotherapy and medication, it is not sufficient to constitute reasonable treatment on its own.
(f)Further, Mr Dauenhauer has provided no evidence to suggest that significant improvement cannot be expected if the reasonable treatment is undertaken, or that there is a medical or other compelling reason for the Applicant not to undertake the reasonable treatment available.
(g)While the Respondent understands that Mr Dauenhauer did not undertake some treatments due to cost, the treatments detailed by the HPAU report are low cost and can be partially or fully bulk-billed through Medicare. Additionally, being unable or unwilling to pay reasonable costs for recommended treatments does not exempt Mr Dauenhauer from meeting the requirements of fully treated and fully stabilised. Most social security recipients have limited means yet they manage to access the public health system, receive reasonable treatment, and meet the legislative requirements.
The Respondent contented that Mr Dauenhauer has not undertaken treatments recommended by his treating practitioners, has declined an appointment with the specialist Monash Health Clinic, and has provided no evidence of having undertaken any other reasonable treatments for his chronic back, shoulder, and neck pain. The Respondent therefore submitted that Mr Dauenhauer’s conditions are not fully treated and stabilised as at the qualification period.
In reply to the Respondent’s written submissions, Mr Dauenhauer submitted the following:
It is true that the Applicant could not accept the online video appointment offered. However, the accusations made by the respondent are misleading, and not correct. The Applicant did not decline treatment.
a. On 30 August 2022, the Applicant was offered an online video appointment on 5 September 2022. The appointment offered was not in person at the Outpatient Clinic.
b. The Applicant cannot participate in an online video appointment. This was already reported to the Tribunal in the past by the applicant in the letter dated 4 May 2020…
c. Applicant’s letter dated 04 May 2020; section 2 stated: ‘Hearing by Video is not possible. The Applicant never did a Video conference or chat online or on the telephone. The Applicant is not set up for it as the Applicant never make calls or chats this way. Also, the Applicant’s electronic equipment is old, outdated. It would lag or not work at all. However, it is not possible as the Applicant has vision problems and would not be able to see and read the documents and it would make the applicant disorientated.’
…
On 19 March 2015, the Applicant was referred by Dr Patrick to Dr Tim Godfrey (rheumatologist) regarding the Applicant’s low back-pain (T9 P103).
a. On 30 March 2015 the Applicant attended Monash Health Emergency Department for treatment as the Applicant did not have the means to fund private treatment. The Applicant was sent a way (T8 P101).
b. On 26 January 2020, Dr Patrick reports: ‘On the 19th March 2015, Mr Dauenhauer was referred to Dr Tim Godfrey (rheumatologist) for assessment of his low back-pain. Mr Dauenhauer has stated that he did not keep the appointment as he could not afford the consultation fee and that he had other medical bills to pay. Mr Dauenhauer has the attended Emergency department on two occasion for treatment of his low back-pain as he is unable to afford specialist fees’ (T35 P189).
c. The CT report dated 14 August 2019 (T29 P173), was accepted by Mr Andrew Danks neurosurgeon at Neurosurgical Outpatient Clinic, Monash Hospital, Clayton. The Applicant was not asked to provide an MRI report to Mr Andrew Danks neurosurgeon (T30 P174).
d. The Applicant followed the health advice provided by health professionals. Relevant law, evidence and facts indicating the Applicant undertaken reasonable treatments that were recommended by health professionals, and affordable to the Applicant.
e. Evidence and facts indicating the Respondent’s statements and arguments are not correct and misleading.
…
The Respondent’s arguments indicating that some parts of the guides were left out by the Respondent. The Applicant noticed that the Respondent skipped and disregarded parts of the 3.6.3.05 Guide. Parts as follows:
·If the person has not received or is not able to receive treatment within reasonable timeframes due to issues such as extended waiting lists, evidence should be obtained, for example a document from the relevant hospital or other relevant authority, setting out waiting times for the treatment or the date of the treatment. In cases of long waiting lists, it may be appropriate to consider a condition as stabilised.
·Example: A person may be advised by their treating orthopaedic specialist that they require a hip replacement which will significantly improve their level of mobility. However, they are advised by their hospital that the waiting list for the surgery is between 18 to 24 months. Taking into account the recovery and rehabilitation period that may be required after such a surgical procedure, it may be reasonable in this circumstance to consider the person's condition to be stabilised.
·Note: waiting list should be considered when assessing whether medical condition is stabilised.
Eye Condition
On 7 July 2017, Dr Mark Steiner, ophthalmologist, opined in a report:
On examination acuities best corrected were 6/6 right and left with a small myopic correction. He described subjective monocular double vision on the right side today. Otherwise everything else was all basically fine apart from some early cataract which I’m sure is the cause of him symptoms.
At this stage nothing further needs to be done. At some stage in the future he might need to have cataract surgery.
On 6 January 2019, Dr Patrick opined in his report that Mr Dauenhauer suffered:
A complaint of monocular vertical doubling of his vision when sitting at a computer for prolonged periods and the presence of floaters. He saw an ophthalmologist in July 2017 who found that his vision was 6/6 in both the right and left eyes with a small myopic correction. He was found to have early cataract. The ophthalmologist wrote that the patient described subjective monocular double vision on the right side.
On 23 September 2019, Dr Kanimoly Sukumaran, optometrist, advised in a report to Mr Dauenhauer’s general practitioner:
He reports seeing ‘some sort of a line, like a shadow’ in his left eye vision for the past two months. He reports it is on the left side of vision and has not changed over time. He denied seeing light flashes. He has longstanding floaters and says a floater in his left eye may have gotten bigger/become more noticeable.
He also reports that he gets vertical double vision in the distance after reading or using computer. He first reported these symptoms in 2017 and saw an ophthalmologist afterwards.
On examination, he has good visual acuity of 6/6 in each eye. Intraocular pressures are normal.
Dilated fundus examination showed a possible operculated retinal hole in the infero-temporal periphery of the right eye. No retinal tears or retinal detachment was seen in either eye.
Visual field testing showing some superior defects in both eyes.
Consideration
The Tribunal finds that Mr Dauenhauer’s spine, shoulder and knee condition are all fully diagnosed, treated and stabilised for the purposes of assessment for the DSP. The Tribunal finds that Mr Dauenhauer has undertaken all reasonable treatment, considering he is still awaiting specialist review and noting Topic 3.6.3.05 of the Guide which clearly states that ‘Waiting list should be considered when assessing whether a medical condition is stabilised’.
The Tribunal concurs with the Respondent’s citing of Scott at 499 that:
One effect of the tribunal’s decisions is to establish administrative norms; they enable legislation to be administered consistently. For the tribunal to make decisions inconsistent with its own previous decisions adversely affects that process…where a matter has been decided by the tribunal after full consideration of competing arguments or as more elegantly put by Justice Brennan: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.
However, the Tribunal has before it factual evidence of Mr Dauenhauer’s actual wait time to be seen by the Back and Neck Clinic at Monash Health, which is information that was not available to Member West at the previous AAT2 hearing. It should be noted that Member West also sought clarification of Mr Dauenhauer’s wait time but was only provided information on generic wait times, rather than information on Mr Dauenhauer’s actual current wait time which is now before the Tribunal. It is now some two years since the previous AAT2 determination and Mr Dauenhauer has still not had a review of his lower back condition to determine what treatment is available or what improvement he can expect from any treatment.
The Tribunal finds that Mr Dauenhauer’s multiple impairments (pain and loss of function in his upper limbs, shoulders, neck and lower limbs) arising from his chronic and long standing lower back condition have been fully treated and stabilised as he has undergone all reasonable treatment available to him.
The Tribunal noted Topic 3.6.3.05 of the Guide which states:
In determining whether a medical condition has been fully diagnosed, an examination and analysis of diagnostic information is required. The relevant diagnostic information is normally available in medical records provided by the claimant and from other corroborating evidence.
To be valid for DSP purposes, diagnosis of a medical condition must be made by an appropriately qualified medical practitioner
Fully stabilised
For a condition to be considered fully stabilised, it must be established whether a person has undertaken reasonable treatment for the condition and what the prospects are for any significant functional improvement to occur in the next 2 years.
The condition can be regarded as fully stabilised if the person has undertaken reasonable treatment for the condition and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement in the next 2 years. In this context, significant improvement is improvement that will enable the person to undertake work in the next 2 years.
The condition can also be considered fully stabilised where a person has not undertaken reasonable treatment and either:
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
there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment & compelling reasons for not undertaking reasonable treatment
To be considered reasonable, treatments must be evidence-based with scientific, peer-reviewed research findings to support the use of the treatment for specified medical conditions (i.e. alternative or complementary medicine or treatments without such research evidence are not considered to be reasonable treatment for DSP purposes). Off-label use of medications (i.e. medications used without a prescription or not in accordance with a prescription from a qualified medical practitioner) is also not considered to be reasonable treatment for DSP purposes. The Health Professional Advisory Unit (HPAU) should be consulted where clarification is required.
For DSP purposes, reasonable treatment means:
treatment that is available at a location reasonably accessible to the person at a reasonable cost.
Explanation: It would not be reasonable to expect a person to undergo prohibitively expensive treatment, or treatment that is only available in another country in order to satisfy the permanence criteria.
treatment or procedure that is of a type regularly undertaken or performed.
Explanation: Treatments that are experimental in nature or not yet widely accepted or performed by the general medical community would not be considered reasonable.
treatment that has a high success rate and where substantial improvement can be reliably expected.
Explanation: It would be inappropriate to consider impairment as being temporary solely because the person has not undertaken a treatment that has a poor success rate or that is likely to result in only marginal functional improvement.
treatment that is of a low risk nature.
Explanation: A person may decide against undertaking a certain treatment because it has serious associated risks, for instance major surgical procedure or unavoidable and significant side effects, as may occur with some types of chemotherapy.
If the person has not received or is not able to receive treatment within reasonable timeframes due to issues such as extended waiting lists, evidence should be obtained, for example a document from the relevant hospital or other relevant authority, setting out waiting times for the treatment or the date of the treatment. In cases of long waiting lists, it may be appropriate to consider a condition as stabilised.
Example: A person may be advised by their treating orthopaedic specialist that they require a hip replacement which will significantly improve their level of mobility. However, they are advised by their hospital that the waiting list for the surgery is between 18 to 24 months. Taking into account the recovery and rehabilitation period that may be required after such a surgical procedure, it may be reasonable in this circumstance to consider the person's condition to be stabilised.
The Tribunal finds that there was extensive diagnostic information available to the Tribunal to determine that Mr Dauenhauer’s spinal condition has been fully diagnosed.
The Tribunal finds that Mr Dauenhauer has undertaken reasonable treatment for his condition, relying upon the advice from Monash Health that Mr Dauenhauer has been on their waitlist for over 480 days and is currently 1100 on the waitlist for surgery. Additionally, the Tribunal relies upon the report of Mr Toohey on 23 December 2021 which indicates that Mr Dauenhauer has continued to seek treatment whilst he awaits his review at Monash Health:
Laszlo still has intermittent radicular pain and numbness down his left leg as a result of his discogenic back diagnosis which requires daily decompression stretches and core exercises in order for him to manage his pain throughout the day.
His shoulder has signs of impingement and rotator cuff related pain syndrome which requires ongoing postural exercises and rotator cuff strengthening exercises.
In our physiotherapy consults, the focus is on manual therapy with massage, joint mobilisations and decompression techniques for the lumbar spine, as well as progressing Laszlo's home exercise program as appropriate.
Laszlo's knee issue will be further assessed and treated after the aforementioned symptomatic areas have further improved.
Laszlo will continue physiotherapy in 2022 to continue to manage his multiple symptomatic conditions.
The Tribunal finds, based on all the evidence available to it and which was not before the previous AAT2 hearing, that Mr Dauenhauer has undertaken all reasonable treatment for his conditions. The Tribunal considers it is highly unlikely, given the chronicity of Mr Dauenhauer’s spinal condition, that any treatment would significantly improve his functional capacity to a level enabling him to undertake work in the next two years.
The Tribunal notes that numerous other Members have determined pain conditions cannot be considered fully stabilised if an Applicant has not attended a pain management clinic. The Tribunal does not dispute this finding but notes the Impairment Tables require that each Applicant is assessed on their individual functionality and not their underlying condition. The Tribunal notes, as the name would suggest, that pain management clinics assist individuals to manage their pain. Whilst their underlying situation may improve, it does not imply that all individuals who attends pain management clinics will be functionally able to look, find and maintain work.
The Tribunal does not concur with the Respondent that the evidence indicates that Mr Dauenhauer has failed to undertake reasonable treatments available to him. The evidence before the Tribunal indicated that Mr Dauenhauer would have struggled to engage with a telehealth appointment and to pay for any private treatment. The Tribunal finds that Mr Dauenhauer had attended the emergency department at Monash Health to seek assistance for his chronic pain and this indicates that he was attempting to seek reasonable treatment for his conditions.
The Tribunal does not concur with the Respondent that Mr Dauenhauer could pursue other treatment options (including surgery, cortisone injections, new medications etc) at this time as all of these treatments were dependant on him being reviewed in the first instance by the Monash Health Back and Neck Clinic to which he is still on the wait list. The Tribunal notes that Mr Dauenhauer cannot refer himself to any of these treatments, nor have any of his current treaters done so as they were awaiting the outcome of his review at Monash Health.
As the Tribunal has found Mr Dauenhauer’s conditions are fully diagnosed, treated and stabilised, it must next consider their impairment ratings.
What impairment rating, if any, can be assigned to Mr Dauenhauer’s conditions?
Mr Dauenhauer submitted the Tribunal should rely upon Dr Patrick’s assessment of his impairments, as his general practitioner had thoroughly assessed his functionality against the Impairment Tables. Mr Dauenhauer submitted that Dr Patrick had also considered rules 11(3)-(4) of the Impairment Tables when determining whether each descriptor applies, contending the rule clearly states that a descriptor applies if the person can do an activity normally and on a habitual basis, and not only once or rarely.
Mr Dauenhauer contended that rule 11 needed to be considered by the Tribunal because he can’t do things normally and on a habitual basis. Furthermore, Mr Dauenhauer submitted that Dr Patrick also considered Mr Dauenhauer’s conditions did fluctuate and had assigned the ratings which reflected his overall function.
Spinal Condition
Having considered all the evidence before it, the Tribunal is satisfied that Mr Dauenhauer’s long-standing spinal condition was fully diagnosed, treated and stabilised during the qualifying period, relying upon radiological findings and copious medical reports over many years.
The Tribunal concludes that Mr Dauenhauer’s spinal condition of L4/5 and L5/S1 disc protrusions as well as significant lumbar degeneration was having a moderate functional impact on spinal activities, in accordance with Table 4 - Spinal Function. The Tribunal relies upon the Dr Patrick’s review and Mr Toohey’s assessment.
Dr Patrick’s report of 20 October 2019 provided an assessment of the functional impact of Mr Dauenhauer’s spinal condition under Table 4 - Spinal Function, looking at 10 points or a moderate functional impact:
Descriptors (1) (a) (b} (cl (d), 10 Points:
Explanation of the assessment.
Mr Dauenhauer is not able to sit in the car for 30 minutes. After a few minutes (4-5) of sitting down he feels uncomfortable. He can drive only short distances around the local area, 10 - 15 minutes.
As I described and explained regarding the overhead activities for the 5 points descriptors at (l)(a) above, he has difficulty performing them, and cannot sustain them.
He has difficulty looking around. He has to try to move his whole body around as described for the 5 points descriptors (1) (c) above. He has difficulty looking repetitively in all directions. When assessing Mr Dauenhauer, he seemed to adjust his body position to make it easier to look. It is more difficult if he's sitting down as he tries to slide and twist his body on the chair and tries to turn his head to be able to look around. (note; he cannot sit for long).
Mr Dauenhauer avoids leaning forward, over and bending at all cost as he might end up immobile for a prolonged period or end up in the hospital emergency department. He tells me that they do not do anything and just send him home after a while telling him to rest and not to partake in any activities that aggravate his back. During the assessment I asked Mr Dauenhauer to lean forward a bit (5-10 degrees forward) and hold his arms forward. His back start hurting him instantly. I also asked him to pick up a pen from the table bending forward. The result was the same When he stands and uses the keyboard he needs to lean against the table and rest his forearms on the table to be able to use it. Also refer to 5 points descriptors (l)(b) above Does not apply. (Note; only applies if Mr Dauenhauer is immobile. It happened in the past and his son and friends had to help him).
Finding:
Mr Dauenhauer has difficulty with the activities. He is not able to manage and fulfil the required tasks. When he stands up after sitting, it takes him time to adjust and stand up straight. It is most likely than not these activities would aggravate the condition and adversely affect Mr Dauenhauer.
Mr Dauenhauer’s evidence, corroborated by his treating practitioners, was that during the qualifying period, he could sit and drive for 5 to 10 minutes, was unable to sustain overhead activities, had difficulty turning his head to look in all directions, and had difficulty bending but did not require assistance from another person to get out of a chair.
At the hearing the Tribunal explored with Mr Dauenhauer the functional impact of his spinal condition under Table 4 - Spinal Function, looking at 10 points or a moderate functional impact. Mr Dauenhauer’s evidence to the hearing was:
Can you drive for 30 minutes?
Applicant: No
How long can you sit?
Applicant: Only 5 minutes
So everything is about 5 min away from you?
Applicant: Yes everything, if I can’t find parking I just drive off.
So you drive about 5-10 minutes max?
Applicant: Yes, everything is close to here, Centrelink, shops, Doctor, all 5 minutes away.
Can you sustain overhead activities?
Applicant: No I can’t.
How do you go washing your hair?
A: I put the shampoo on and let the water wash it and I have my son here to help me.
How do you go moving your head?
Applicant: I move my whole body around.
How do you look behind you, like for example when you’re driving?
Applicant: I’m using the mirrors and drive very slowly and hope for the best.
Can you bend forward pick up objects at knee height?
Applicant: No I can’t. If I have to, I go straight down and up but I have a problem lifting myself up so I don’t bend forward, I can’t do it.
Do you need assistance to get out of a chair?
Applicant: Depends, sometimes it’s worse and others not as bad. If I sit in a chair, though I’m usually lying down, I have to support my buttocks but I don’t really sit in chair because I can’t really get up and also it gives me cramps in my legs.
How did you usually spend a day, back in 2019?
Applicant: Lying down in cobra position and I still do that.
Do you find that is way that works best for you?
Applicant: I’m on my stomach, elevated chest and head, so I’m sort of in a cobra position.
The Tribunal could not conclude on any of the evidence presented that Mr Dauenhauer’s spinal condition was causing him a severe functional impact. As Mr Dauenhauer himself had argued, and Dr Patrick concurred, his condition fluctuated. The evidence presented was that at times Mr Dauenhauer is completely unable to perform any tasks but at other periods, he is able to undertake certain activities with pain. The evidence did not support a finding that Mr Dauenhauer was unable to perform the activities listed below, which would result in an impairment rating of 20 points, or a severe functional impact, under Table 4:
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
a) perform any overhead activities; or
b) turn their head, or bend their neck, without moving their trunk; or
c) bend forward to pick up a light object from a desk or table; or
d) remain seated for at least 10 minutes.
The Tribunal therefore awards Mr Dauenhauer 10 points under Table 4 of the Impairment Tables in respect of his spinal condition.
Knee condition
Having considered all the evidence before it, the Tribunal is satisfied that Mr Dauenhauer’s knee condition (presenting as chronic pain, degeneration and significant left sided low back pain with radiculopathy resulting in left leg pain), was fully diagnosed, treated and stabilised during the qualifying period, relying upon radiological findings and copious medical reports over many years.
The Tribunal concludes that Mr Dauenhauer was having a moderate functional impact on lower limb activities, in accordance with Table 3 – Lower Limb Function. The Tribunal relies upon Dr Patrick’s review and Mr Toohey’s assessment.
Dr Patrick’s report of 20 October 2019 provided an assessment of the functional impact of Mr Dauenhauer’s knee condition under Table 3 - Lower Limb Function, looking at 10 points or a moderate functional impact:
Explanation of the assessment:
1. Table 3 - Lower Limb Function is used for single impairment arising from a single condition as this condition and impairment would exist regardless of the spine and shoulder conditions not being present. (spine condition does not affect the knee condition).
(1) (a). Mr Dauenhauer is unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities.
(c) He can stand for minutes but under stress if standing on the same spot. He needs to move to transfer body weight from one leg to another.
Does not apply.
Mr Dauenhauer is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
Descriptor (3) does not apply to Mr Dauenhauer.
There is a functional impact on activities using lower limbs. Advancing to and checking the 20 points Descriptors.
Mr Dauenhauer is not qualified for, to apply the 20 points Descriptors. Finding:
Under table 3 - Lower Limb Function, Mr Dauenhauer qualifies for 10 impairment points.
There is a moderate functional impact on activities using lower limbs.
Mr Dauenhauer’s evidence, corroborated by his treating practitioners, was that during the qualifying period he was unable to walk far outside of his home, and he needed to drive the five minutes it takes him to get to local shops, the doctors and Centrelink, and he could only sit and stand for short periods, spending most of his time on the floor on his stomach.
The Tribunal therefore awards Mr Mr Dauenhauer 10 points under Table 3 of the Impairment Tables in respect of his knee condition.
Shoulder condition
Having considered all the evidence before it, the Tribunal is satisfied that Mr Dauenhauer’s shoulder condition was fully diagnosed, treated and stabilised during the qualifying period, relying upon radiological findings and copious medical reports over many years.
The Tribunal concludes that Mr Dauenhauer’s shoulder condition, presenting as chronic pain and degeneration, was having a moderate functional impact on upper limb activities, in accordance with Table 2 – Upper Limb Function. The Tribunal relies upon Dr Patrick’s review and Mr Toohey’s assessment.
Dr Patrick’s report of 20 October 2019 provided an assessment of the functional impact of Mr Dauenhauer’s shoulder condition under Table 2 - Upper Limb Function:
As explained above Mr Dauenhauer has four medical conditions that are independent from each other in their own right and cause impairments independently from one another. The exception is the lower back condition that causes multiple impairments arising from a single condition; the spine itself, upper limbs and shoulders, neck and lower limbs.
Consulting the guidelines for the Tables and in accordance with the rules of the Tables, Part 2 - Section 10 (4), to avoid double counting Table 4 is used for multiple impairment resulting from a single condition.
Under Table 4 a single impairment rating is allocated for a single spinal condition that causing multiple impairments, to the spine itself, to the neck, shoulders and arms.
Table 2 - Upper Limb Function is not used to avoid double counting for the same impairment.
Mr Dauenhauer’s evidence, corroborated by his treating practitioners, was that during the qualifying period he had difficulty lifting objects, doing up buttons or tying his shoelaces, using a computer keyboard and unscrewing a lid on a soft drink bottle.
At the hearing the Tribunal explored with Mr Dauenhauer the functional impact of his shoulder condition under Table 2 – Upper Limb Function, looking at 10 points or a moderate functional impact. Mr Dauenhauer’s evidence to the Tribunal was:
Did you have difficulty picking up 1L of liquid?
Apllicant: Yes.
So you can’t pick up things?
Applicant: I could not.
Do you make yourself cup of tea?
Applicant: In 2019? No. I had difficulty.
How about picking up a light but bulky object like a large parcel?
Applicant: No way.
Did you have difficulty holding or using a pen or pencil?
Applicant: Yeah if I don’t have to lean and it’s right in front of me without bending, I can hold it and use it.
Could you do your buttons and shoe laces?
Applicant: No.
So how do you go with getting yourself dressed and your shoes on?
Applicant: I got my son here and I haven’t been using shoe laces, I just have slip on shoes so I don’t have to bend.
Do you wear shirts with buttons?
Applicant: No, yeah but I can’t do it, my son does it for me but usually I use slip on ones, put it high up, slip one hand in and my son sometimes helps me put it on, otherwise I just use something really floppy because I can’t put my hands up or lift it more than horizontal.
How did you go using a standard computer keyboard?
Applicant: Not in 2019, my son had to.
So how did you type of submissions for the Tribunal?
Applicant: I had my son helping me.
Could you unscrew the lid on a soft drink bottle?
Applicant: No, I could not do that.
Whilst the Tribunal has found that Mr Dauenhauer’s shoulder condition was having a moderate functional impact on activities requiring the use of his upper limb, it awards nil points for this condition. The Tribunal concurs with the Respondent and Dr Patrick that the functional impact has been considered in respect of his spinal condition and rated under Table 4. The Impairment Tables Determination rules clearly states that when two or more conditions cause a common or combined impairment, a single rating should be assigned.
The Tribunal therefore awards Mr Dauenhauer nil points under Table 2 of the Impairment Tables in respect of his shoulder condition.
Vision Condition
Having considered all the evidence before it, the Tribunal is satisfied that Mr Dauenhauer’s eye condition was fully diagnosed, treated and stabilised during the qualifying period, relying upon numerous medical reports over several years.
Mr Dauenhauer concurred with Dr Patrick’s assessment that he had a mild functional impact on activities involving visual function and the condition should be assigned 5 points under Table 12 – Visual Function. Mr Dauenhauer did not dispute this conclusion during the Tribunal process.
The Respondent contended that Mr Dauenhauer had provided no further evidence of his eye condition to disturb the AAT2 finding, which assigned 5 points under Table 12.
The Tribunal concurs with the Respondent and Mr Dauenhauer that the functional impact of his vision condition was mild and awards Mr Dauenhauer 5 points under Table 12 of the Impairment Tables in respect of his vision condition.
Impairment Rating
The Tribunal has found that Mr Dauenhauer has an overall impairment rating of 25 points, with 10 points allocated under Table 4 – Spinal Function, 10 points allocated under Table 3 – Lower Limb Function, 5 points allocated under Table 12 – Vision Function, and nil points under Table 2 – Upper Limb Function. Therefore, Mr Dauenhauer satisfies section 94(1)(b) of the Act.
Does Mr Dauenhauer have a continuing inability to work?
To qualify for the DSP, Mr Dauenhauer must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables; he must also demonstrate that he has a continuing inability to work. Mr Dauenhauer would be considered to have a continuing inability to work if he has actively participated in a program of support (POS) within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal must strictly apply the program of support (POS) requirement, because it does not have the power to dispense with that requirement under the operation of section 94(2)(aa) of the Act. It is irrelevant whether an Applicant was aware of the requirement.
The POS Determination requires that an Applicant for DSP must actively participate in a POS for 18 months within the three years prior to the date of claim. As the Tribunal has found that Mr Dauenhauer does not has a severe impairment that is assigned 20 points or more under a single Impairment Table, he is required to have participated in a POS. Mr Dauenhauer satisfies section 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicate that he had completed a POS.
The Respondent contended that Mr Dauenhauer does not have a continuing inability to work as required by paragraph 94(1)(c) of the Act. The Respondent contended that since Mr Dauenhauer’s unsuccessful 2019 claim for DSP, reports as to his work capacity are as follows:
(a)On 22 February 2021, the physiotherapist report of Mr Toohey stated: ‘I therefore am in agreeance with Dr A.C Patrick in that Laszlo should avoid employment that will put stress on his lumbar spine and could adversely impact on Laszlo’s well-being’.
(b)On 8 June 2021, an Employment Services Assessment Report of the Agency found Mr Dauenhauer to have a work capacity of 15-22 hours per week.
(c)On 4 August 2021, an Employment Services Assessment Report of the Agency found Mr Dauenhauer to have a temporary work capacity of 8-14 hours per week until 4 August 2022, rising to 15-22 hours per week thereafter.
The Respondent contended that whilst it had been recommended that Mr Dauenhauer avoid employment that puts his lumbar spine under stress, he may well be able to undertake other suitable work within the requisite two-year period, particularly so if his conditions improve following reasonable treatment.
Mr Dauenhauer contended that he has a continuing inability to work as required by paragraph 94(1)(c) of the Act and that his ongoing struggles with his disability employment service providers indicates that he has no capacity for any form of work or training.
The Tribunal finds the evidence indicates that Mr Dauenhauer has a continuing inability to work:
(a)Mr Dauenhauer’s Placement Consultant, Ms Susan McKeever, of Max Employment advised in a letter dated 12 February 2021:
During Laszlo's time with MAX he has continued to engage and has attempted to meet all mutual obligations as agreed upon in his job plans.
Laszlo has found it difficult to gain employment due to his continual poor health and ongoing medical issues.
He has been engaging with MAX Employment in the attempt to gain and sustain suitable employment, however he has found it difficult due to his health issues.
MAX Employment has also found it difficult to accommodate Mr. Dauenhauer to gain suitable employment due to his ongoing medical barriers and feel that he will not benefit from our program due to his ongoing medical barriers and feel that he is not benefiting from our program and would be suited to the DSP.
(b)Dr Andrew Patrick in his report of 6 January 2019 opined that Mr Dauenhauer had no ability to work:
Mr Dauenhauer takes simple analgesia, NSAIDs and has physiotherapy to manage the pain. All of the above conditions are permanent. Mr Dauenhauer is unfit for physical work that involves repetitive bending, lifting, prolonged standing and walking significant distances. When organising training or education programs, the above conditions need to be taken into account. Flare ups of his low back-pain may interrupt his training and require him to take a break from this.
(c)Mr Toohey’s report of 22 February 2022 advised that he believes Mr Dauenhauer had no ability to work:
I believe a return to repetitive tasks and employment will be detrimental to Laszlo's current presentation and more than likely cause considerable pain and a return of his symptoms a year ago, considering the extent of Laszlo's CT investigation results.
I therefore am in agreeance with Dr A.C Patrick in that Laszlo should avoid employment that will put stress on his lumbar spine and could adversely impact on Laszlo's health wellbeing.
(d)A Centrelink Employment Services Assessment of 4 August 2021 identified the following barriers to be addressed and interventions identified for Mr Dauenhauer to be able to work, obtain work or look for work:
Barrier: Physical limitations restricting type of work (V03)
Barrier: Chronic pain (H12)
Barrier: Endurance limitations (H07)
Barrier: Sensory communication (H05)
Intervention: Post placement support (V61)
Intervention: Vocational rehabilitation (V51)
Intervention: Back education (H56)
Intervention: Disability management education/counselling (H59)
Intervention: Pain management program (M55)
Intervention: Secondary rehabilitation (M54)
Intervention: Post-secondary/adult course - vocational (E57)
Intervention: Job matching (V54)
Intervention: Vocational assessment/counselling (V52)
Intervention: Workplace modifications (V62)
The Tribunal finds that Mr Dauenhauer has a continuing inability to work and satisfies section 94(1)(c) of the Act. The Tribunal relied in particular on the statement of Mr Dauenhauer’s disability employment service provider who found he was not benefiting from their program and Centrelink’s assessment of Mr Dauenhauer’s numerous barriers to be overcome to return to work and interventions which would be needed to assist him to return to work.
The Tribunal finds on the evidence that Mr Dauenhauer’s work capacity will not improve in the next two years as he has been engaged with various employment services since 2017 and in that time has not been assisted in overcoming his barriers or provided with interventions to assist him to find or maintain employment.
Given all these factors, the Tribunal is therefore satisfied that Mr Dauenhauer has a continuing inability to work for the purposes of s 94(1)(c)(i).
Conclusion
The Tribunal is satisfied that, at the date of application, Mr Dauenhauer was qualified to receive the DSP as his impairments attract 25 impairment points under the Impairment Tables, satisfying section 94(1)(b) of the Act, he has completed his POS, satisfying section 94(2)(aa) and he has a continuing inability to work, satisfying section 94(1)(c) of the Act.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
...........[sgd]............................
Associate
Dated: 16 February 2023
Date of hearing:
30 August and 11 November 2022
Applicant:
Self-Represented
Respondent representative:
Mr James Henderson
Respondent solicitors:
Services Australia
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