David Goulden and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 411
[2013] AATA 411
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1932
Re
David Goulden
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member
Date 19 June 2013 Place Melbourne The Tribunal affirms the decision under review
[sgd]........................................................................
Dr Kerry Breen, Member
SOCIAL SECURITY – disability support pension –- bilateral lower limb venous stasis with ulceration -bilateral degeneration of acromioclavicular joints – past left shoulder dislocation – 10 impairment points – decision affirmed.
Legislation
Social Security Act 1991 section 94(1) and Schedule 1B
Social Security (Administration) Act 1999 section 13
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Kerry Breen, Member
19 June 2013
Mr Goulden suffers from bilateral lower limb venous stasis and bilateral shoulder pain. He contacted Centrelink on 28 December 2011 about his intention to claim DSP. He then lodged a claim for disability support pension (DSP) with Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent), on 4 January 2012.
Centrelink referred Mr Goulden for a Job Capacity Assessment (JCA), which was conducted on 10 January 2012. The assessor categorised his medical conditions as bilateral lower limb venous stasis, bilateral acromioclavicular joint degeneration and left shoulder dislocation. The assessor advised that these conditions were not fully treated and stabilised, as required under section 94(1) of the Social Security Act 1991 (the Act).
On 21 January 2012 a Centrelink officer rejected Mr Goulden’s DSP claim. On 23 February 2012 an authorised review officer (ARO) affirmed the Centrelink officer’s decision to reject the DSP claim.
On 27 February 2012 Mr Goulden applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 17 April 2012 at which Mr Goulden gave evidence by telephone. The SSAT affirmed the ARO’s decision. Mr Goulden now seeks review of the SSAT decision by this Tribunal.
ISSUES
The issues to be determined are:
·What permanent medical conditions does Mr Goulden suffer from?
·What impairment ratings do his conditions attract?
·If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
LEGISLATION
The relevant legislation includes s 94(1) of the Act, which provides:
94(1) A person is qualified for disability support pension 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…
In order that a person’s impairment be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years. In respect of claims made, or taken to be made, before 1 January 2012 the relevant Impairment Tables are the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B to the Act (the old Tables). Schedule 1B to the Act was repealed on 1 January 2012 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the new Tables) came into effect, pursuant to s 26(1) of the Act.
As the dates on which Mr Goulden contacted Centrelink and lodged the DSP claim straddle the point at which the new Tables were introduced, the question as to which Tables were to be applied in this instance was at issue. This is discussed below in paras 38 and 43.
MR GOULDEN’S EVIDENCE
Mr Goulden appeared in person and gave oral evidence to the Tribunal.
In relation to his bilateral leg condition, Mr Goulden stated that he was diagnosed with deep venous thrombosis in both legs in 2001. He said that as result of this condition, and after assessment by a Commonwealth Medical Officer, he was granted DSP in 2003. In 2009 he was imprisoned for 26 months and, as a result, his DSP was cancelled.
Mr Goulden stated that his leg condition caused a lot of restriction with swelling, skin ulceration and skin discolouration. He stated that his legs tend to swell every couple of days. On the advice of his general practitioner, he wears compression stockings only when his legs become swollen. He finds putting on the compression stockings to be very difficult. If they are used regularly the stockings only last around three weeks. Thus, their cost is another reason for only using the stockings when needed. He uses a cream for skin ulcers.
Mr Goulden takes Tramadol in a total daily dose of 400 mg for the pain and discomfort in his legs. The dose was increased from 300 mg about two months ago. He stated that this was the maximum dose of Tramadol that was permitted. He has tried to do without Tramadol, unsuccessfully.
Mr Goulden stated that his leg condition had been investigated at Monash Medical Centre. The Monash Medical Centre had told him that he suffered from vasculosis with narrowing of the veins. He has not seen a specialist since those investigations were undertaken. There had been no change in the condition of his legs over time.
Mr Goulden explained that he would very much like to go back to work and had applied for 274 jobs, without success. He stated that he had closely followed all requests made of him by Centrelink.
Mr Goulden objected to the assessment of his condition made by Dr Christopher Minogue of the Centrelink Health Professional Advisory Unit on the basis that Dr Minogue had not seen or examined him.
Mr Goulden stated that he can walk for 20 minutes but then has to stop because he experiences burning and numbness in both legs. The burning pain extends from the top of the foot to the top of his thigh and is felt on both the front and back of the legs. The burning and numbness also comes on after sitting for 20 to 25 minutes and after standing for 35 minutes. He regularly changes his position between standing, sitting and lying down when he is at home.
Mr Goulden stated that when he has a skin ulcer, he finds walking and standing much more difficult and his pain is astronomical. He last experienced a skin ulcer on his right lower leg the year before last. He stated that leg ulcers usually took eight to nine weeks to heal.
Mr Goulden stated that while in prison, he was able to work in the number plate section. He was allocated to work on a press where he could alternate his position every 15 minutes.
Mr Goulden stated that he had no difficulty going up or down stairs. He avoids kneeling, as this cuts off the blood flow and he has trouble getting up. He describes his walking as very slow and stated that in coming to the Tribunal, it took him an hour and a half to walk from Flinders Street railway station (Note: The Tribunal is located directly across the Yarra River from the railway station). He said he is pretty much housebound and does not like to drive a car.
Mr Goulden stated that five to six weeks ago he commenced doing some voluntary work, completing surveys on a computer at home. On some days this task could occupy him for 5 hours but he could take breaks as he needed.
Mr Goulden stated that his shoulder problems commenced while he was in prison and were the result of an assault by a much larger and stronger man. He stated that his left shoulder was dislocated and his right shoulder was torn. He was taken to the Ararat & District Hospital where his left shoulder was confirmed to be dislocated and was reduced.
Mr Goulden stated that he has attended a physiotherapist at Frankston for treatment of his shoulders. He said that the physiotherapist advised investigation with a view to surgery. He recently had an ultrasound examination of the shoulders and is awaiting an appointment to see a specialist at either Box Hill Hospital or Monash Medical Centre.
Mr Goulden stated that his pain in both shoulders causes difficulty with dressing and toileting and that his wife has to assist him in these tasks.
Mr Goulden stated that he has suffered from asthma since he was a teenager but that this problem was readily controlled with Ventolin and Becotide.
In the past Mr Goulden suffered from hepatitis C, which was successfully treated with interferon injections.
THE MEDICAL EVIDENCE
The written medical evidence before the Tribunal includes:
·a letter dated 18 September 2002 from Mr D F Scott, Vascular Surgeon at Monash Medical Centre, addressed to Dr Denver Jansen;
·a Centrelink Treating Doctor’s Report dated 18 September 2007 completed by Dr Jansen;
·a Centrelink Medical Report Disability Support Pension form dated 21 December 2011 completed by Dr Jansen;
·a letter dated 19 June 2012 from Dr Jansen addressed to Mr Tim Noonan of the respondent’s office;
·a letter dated 12 December 2012 from Dr Jansen addressed to Mr Noonan;
·a letter dated 16 January 2013 from Dr Jansen addressed to Mr Noonan;
·a letter dated 12 March 2013 from Dr Jansen addressed to Mr Noonan; and
·a GP Management Plan for Mr Goulden from the Thompson Road Clinic dated 3 April 2013 (included as part of this document are reports of an x-ray of the right shoulder and an ultrasound examination of the right shoulder both dated 8 March 2013).
In addition, the Tribunal received a copy of a case analysis report prepared by Dr Minogue dated 4 March 2013; and a supplementary report from Dr Minogue dated 12 March 2013. The Tribunal also received copies of the reports of assessors who conducted JCAs.
Paragraphs 29 to 36 summarise the relevant information contained in the written medical evidence.
The letter from Mr Scott dated 18 September 2002, addressed to Mr Goulden’s general practitioner, Dr Jansen, reports (in part) that over the last two years he has had recurrent varicose ulcers in the gaiter area of both lower legs. The likely cause of this is a past DVT in 1991 when he had severe fractures of the tibia in the left leg. The management of this problem is with compression stockings …. I...have encouraged him to continue with elastic stockings all the time he is out of bed...
In the Centrelink Treating Doctor’s Report completed by Dr Jansen on 18 September 2007, Dr Jansen noted Mr Goulden’s sole Condition as Venous Eczema/Venous Insufficiency Bilaterally; and recorded that Mr Goulden had been his patient since 1996.
In the Centrelink Medical Report Disability Support Pension form dated 21 December 2011, Dr Jansen provided the Diagnosis of Mr Goulden’s condition as BILATERAL LOWER LIMB VENOUS STASIS with ULCERATION. The History was stated as LONG HISTORY OF VENOUS ULCERS RECURRENT. Current symptoms were noted as ‑ REG EX. – COMPRESSION STOCKING. In response to a question about ability to function, Dr Jansen wrote: ‑ UNABLE TO STAND FOR PROLONGED PERIODS. – NO PROLONGED WALKING/NEEDS TO ALTERNATE POSTURE.
In a letter dated 19 June 2012 addressed to Mr Noonan, Dr Jansen responded to a number of questions and outlined the conditions for which he and other doctors at the Thompson Road Clinic had treated Mr Goulden. The letter focussed on a left shoulder injury which was a result of a dislocation occurring in a fight. Dr Jansen noted that Mr Goulden first attended because of his shoulder problem on 12 January 2012. The letter concluded (in part) with the statement: On the basis of my knowledge and understanding of Mr Goulden’s medical history and medical notes: I do not believe the impairment [due to the shoulder injury] of itself is sufficient to prevent Mr Goulden from doing any work or undertaking a training activity.
In a letter dated 12 December 2012 addressed to Mr Noonan, Dr Jansen wrote that he was replying to a request for information in a letter dated 2 August 2012. The letter addressed only the lower limb problem, noting symptoms of an itch and discomfort affecting this area [the lower aspect of both legs] which also has a tendency to ulceration and poor wound healing with any minor trauma. The letter also stated: He is likely to experience some peripheral leg swelling from time to time and should generally avoid prolonged periods of standing or walking.
In a letter dated 16 January 2013 addressed to Mr Noonan, Dr Jansen responded to further questions, noting that the lower limb condition was … fully documented… diagnosed … and was stable and ... likely to persist for the foreseeable future. He also wrote Under Table 4 which you have provided, my assessment of impairment….would be in the range of no lower than 10 and no higher than 20. He then wrote under Table 3 …. Mr Goulden’s impairment would be in the range of 5 points and In relation to the upper limb condition, this cannot be considered as a stable condition as Mr Goulden is still waiting on an orthopaedic assessment… [Tribunal Note: this was reference to the old Tables]
In a letter dated 12 March 2013 addressed to Mr Noonan, Dr Jansen responded to a request for clarification of the application of Table 14 [new Tables] and Table 18 [old Tables]which refer specifically to skin disorders. Dr Jansen wrote:
… my best estimate .. would be an impairment of 10 Points based on Point 1 (c) of this category referring to Table 14 and 10 points using Table 18 … and would also apply to the timeframe 28 Dec 2011 to 28 March 2012.
The GP Management Plan dated 3 April 2013from the Thompson Road Clinic includes reports of an x-ray of the right shoulder and an ultrasound examination of the right shoulder both dated 8 March 2013. The report of the x-ray of the right shoulder identifies bony irregularity at the humeral head adjacent to the greater tuberosity consistent with bony impingement. The report of the ultrasound concludes with the following text:
Impression:
1. There is supraspinatus tendinopathy evidence of a partial thickness tear anteriorly.
2. Markedly reduced range of movement raises the possibility of the clinical diagnosis of adhesive capsulitis.
3. Supraspinatus impingement is demonstrated on abduction.
OTHER EVIDENCE
A JCA was completed by Ms Nermein Gouda, occupational therapist, on 10 January 2012. The assessor noted that the conditions affecting Mr Goulden were bilateral limb venous stasis with ulceration and bilateral degeneration of the acromioclavicular joints and left shoulder dislocation. Ms Gouda assessed Mr Goulden’s baseline work capacity as 23-29 hours per week and as rationale wrote:
The client stated that he is unable to sit for no longer than 20 minutes before his legs becomes numb, sanding [sic] for 30 minutes before his feet becomes numb, unable to lift heavy weights. The client stated that he is independent with showering, dressing, cooking and cleaning and is able to use public transport independently.
CONTENTIONS
The respondent submitted that the relevant impairments under consideration were bilateral lower limb venous stasis with ulceration, bilateral degeneration of acromioclavicular joints and left shoulder dislocation. The respondent submitted that it was necessary for the Tribunal to first determine the date on which Mr Goulden would qualify for DSP as this will decide whether the old Tables or the new Tables should be applied. The respondent opined that it was open to the Tribunal to use the old Tables. The respondent submitted that the shoulder conditions had not been fully treated and stabilised and thus should not be given an impairment rating
Mr Goulden submitted that as he was unable to find work and continued to comply with Centrelink’s requests, he should be granted DSP. He emphasised that he had previously been granted DSP for his lower leg condition and that the condition had not altered.
CONSIDERATION OF THE ISSUES
Various terms have been used to describe Mr Goulden’s conditions. From this point the Tribunal will refer to these conditions as bilateral lower limb venous stasis with ulceration, bilateral degeneration of acromioclavicular joints and past left shoulder dislocation.
When did Mr Goulden qualify for DSP?
As acknowledged by the respondent, Mr Goulden contacted Centrelink on 28 December 2011 about his intention to claim DSP and Centrelink issued him written acknowledgement of the contact on the same day. Centrelink also acknowledged that Mr Goulden lodged a claim for DSP on 4 January 2012. It is therefore clear that Mr Goulden satisfies s 13 of the Social Security (Administration) Act 1999 which states:
13 (1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for a social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
Accordingly, the Tribunal finds that Mr Goulden’s qualification period commenced on 28 December 2011. It also follows that the relevant Impairment Tables to be applied are the old Tables in Schedule 1B to the Act.
The Introduction to the Impairment Tables provides (in part):
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
…
Which impairment table should be applied and what impairment points does the bilateral venous stasis of the lower legs with ulceration attract?
The reports of Dr Jansen and Dr Scott, supported by Mr Goulden’s evidence, are sufficient to satisfy the Tribunal that (at the time of his DSP application) for the purposes of the Act the condition of bilateral lower limb venous stasis with ulceration had been fully diagnosed, treated and stabilised. This condition may thus be considered permanent and be given an impairment rating.
As the lower limb condition affects the skin of Mr Goulden’s legs, as well as leg function, it is necessary that the Tribunal consider whether Table 4:Function of the Lower Limbs or Table 18: Skin Disorders should be applied. Table 4: Function of the Lower Limbs reads as follows:
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria NIL
Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace(4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
· requires quad stick, crutches or similar walking aid, or
· is unable to transfer without assistance.
FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
Table 18: Skin Disorders reads as follows:
In the evaluation of work-related impairment resulting from a skin disorder, the actual functional loss is the prime consideration. However, where there is extensive cosmetic or cutaneous involvement, this should also be considered.
Rating
Criteria
NIL
Signs and symptoms of skin disorder present and with treatment there is NO limitation in the performance of normal daily activities.
TEN
Signs and symptoms of skin disorder present despite optimal treatment and results in some interference with normal daily activities.
TWENTY
Signs and symptoms of skin disorder present despite optimal treatment and results in significant interference with normal daily activities.
FORTY
Very severe symptoms requiring continuous treatment which may include periodic confinement to home or hospital and needs considerable assistance with normal daily activities.
In the view of the Tribunal, Table 4 should be applied. This view is based on Mr Goulden’s evidence that pain and discomfort in the lower limbs are his major symptoms and limit his physical capacities. At times he has experienced ulceration of the skin of the lower legs, and this has required the application of local treatment. However, the Tribunal noted that it was well over a year since this had happened and that no evidence was presented to indicate that this, of itself, limited his daily activities. Rather, Mr Goulden’s evidence was that when the skin was ulcerated, his walking capacity was significantly reduced because his pain was more prominent.
The Tribunal notes that when applying Table 4, Dr Jansen held that Mr Goulden’s impairment fell between 10 and 20 impairment points. Dr Minogue of Centrelink Health Professional Advisory Unit (who conducted a file review and did not examine Mr Goulden) considered that 10 impairment points were appropriate. Ms Gouda, occupational therapist, who conducted the JCA in January 2012, held that Mr Goulden’s leg condition was not fully treated and stabilised as he had not consulted a dermatologist for optimal treatment and management since 1993. Ms Gouda thus did not allocate any impairment points.
The Tribunal heard oral evidence from Mr Goulden of the impact of his leg condition on his daily function. This included his walking (albeit slowly and with several rests) from Flinders Street Railway Station to Southbank on the day of the hearing; and his capacity to work for eight hours per day while in prison (with frequent changes of posture). The Tribunal also observed that Mr Goulden remained seated for over an hour while giving his evidence. These capacities are more aligned with moderate interference with walking and sitting than with major interference. This indicates to the Tribunal that a rating of 10 impairment points is the correct decision.
Which impairment table should be applied and what impairment points do bilateral degeneration of acromioclavicular joints and past left shoulder dislocation attract?
The symptoms described by Mr Goulden in both shoulders are consistent with the long term effects of a serious injury, an injury apparently due to a physical assault while in prison. At the time of the injury, there was evidence of dislocation of the left shoulder and hospital treatment was required to reduce the dislocation. There has been no indication of recurrent dislocation. Therefore, in the view of the Tribunal, this aspect of his shoulder condition should now be termed a past dislocation of the left shoulder.
The dislocation almost certainly contributed to, or formed part of, the initial damage that has left Mr Goulden with a troublesome left shoulder. However, the only imaging available to the Tribunal was an x-ray and ultrasound of the right shoulder. The Tribunal accepts that the condition of both shoulders causes a lot of pain and restriction of movements; and that the condition is a cause of significant impairment.
The shoulder conditions are identified in the Centrelink Medical Report Disability Support Pension form completed by Dr Jansen on 21 December 2011 as medical conditions that are generally well managed and that cause minimal or limited impact on [Mr Goulden’s] ability to function. Mr Goulden is awaiting an appointment to see an orthopaedic specialist. Without advice from an orthopaedic specialist, the Tribunal is unable to be sure that the precise diagnosis is indeed bilateral degeneration of acromioclavicular joints. Thus, the Tribunal is not satisfied that the bilateral degeneration of acromioclavicular joints and past left shoulder dislocation have been fully investigated, diagnosed, treated and stabilised. Therefore, these conditions cannot be regarded as permanent under the Act.
Accordingly, the requirement of s 94(1) of the Act has not been met and it is not open to the Tribunal to proceed to a consideration of the allocation of impairment points.
CONCLUSIONS
The Tribunal is satisfied that Mr Goulden suffers from the condition of bilateral lower limb venous stasis with ulceration. The Tribunal is also satisfied that Mr Goulden has a serious condition affecting both shoulders, that his general practitioner has termed bilateral degeneration of acromioclavicular joints.
The Tribunal is satisfied that Mr Goulden’s condition of bilateral lower limb venous stasis with ulceration has been fully diagnosed, fully treated and stabilised and likely to persist for more than two years, and can be deemed permanent as required by s 94(1) of the Act.
The Tribunal is not satisfied that the condition affecting both shoulders of Mr Goulden has been fully investigated, diagnosed, treated and stabilised. The condition cannot be deemed permanent as required by s 94(1) of the Act. Accordingly, it is not open to the Tribunal to allocate impairment points for the shoulder conditions.
Under Table 4 of the old Tables, the Tribunal has allocated 10 impairment points for the condition of bilateral lower limb venous stasis with ulceration. The Tribunal has not allocated impairment points for the bilateral shoulder condition. As Mr Goulden’s conditions do not attract 20 impairment points, he did not meet the requirement of s 94(1)(b) of the Act as at 28 December 2011. Accordingly, his application for DSP cannot succeed.
Since the application fails on this ground, the Tribunal has not considered the issue of whether Mr Goulden has a continuing inability to work.
DECISION
I affirm the decision under review.
I certify that the preceding 58 (fifty‑eight) paragraphs are a true copy of the reasons for the decision herein of: Dr Kerry Breen, Member. [sgd]........................................................................
Administrative Assistant
Dated 19 June 2013
Date of hearing 17 April 2013 Applicant In person Advocate for the Respondent Mr Tim Noonan, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice & Procedural Fairness
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Statutory Interpretation
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