David Naba and Secretary, Department of Social Services
[2014] AATA 665
[2014] AATA 665
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1967
Re
David Naba
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 12 September 2014 Place Sydney The decision under review is affirmed.
..................[sgd]....................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
12 September 2014
BACKGROUND
On 27 August 2012 Mr Naba lodged a claim for Disability Support Pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function.
Mr Naba’s claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.
In this proceeding Mr Naba seeks review of the decision of the SSAT.
At the hearing Mr Naba was self-represented and gave oral evidence
ISSUES
In order to qualify for DSP Mr Naba had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 27 August 2012 and 26 November 2012.
The respondent accepts that, during the claim period, Mr Naba satisfied s 94(1)(a) of the Act, in so far as he had impairments arising from the following medical conditions:
·Penile neuropathic pain;
·Mental health condition (Depression); and
·Right upper limb condition (Arthritis)
The respondent contends that, during the claim period, none of these medical conditions was permanent within the meaning of the Act and that no impairment ratings could be assigned so that the total rating under the Impairment Tables was nil and that Mr Naba was not qualified for DSP.
Therefore, the relevant issue to be decided by the Tribunal is whether, during the claim period, Mr Naba impairment had a rating of 20 points or more under the Impairment Tables.
IMPAIRMENT RATING
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner and that in the assessment of a person’s impairment there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
Mr Naba’s Penile Neuropathic Pain
In December 2009, while working as a factory hand, Mr Naba suffered an injury to his penis as a result of caustic soda being spilled onto his clothes.
At the hearing Mr Naba explained that he immediately showered and then was transferred to Concord Hospital for further treatment.
At the hearing, Mr Naba was unable to provide reliable description as to the nature or extent of his injury apart from the onset of pain and apparent difficulty with sexual activity. The Tribunal was not provided with any contemporaneous documentary medical evidence in respect of the injury.
Mr Naba indicated that his injury is still the subject of an ongoing but unresolved worker’s compensation claim.
Mr Naba’s description of his pain can best be described as confusing in that the pain is always present and varies in intensity with random episodes of severe sharp stabbing pain. There appear to be no regular triggers apart from sexual activity and excess alcohol consumption.
Mr Naba claimed that he was unable to work because of the fear of random unexpected episodes of severe pain.
Mr Naba indicated that his current treatment includes analgesia (Panadeine forte, Tramadol), Valium and Xylocaine ointment. He had also been treated with an antidepressant (Cymbalta) but stopped because of side effects.
Mr Naba indicated that he lived alone and agreed that he was independent with activities of daily living, including dressing, washing, shopping, simple cooking and general housework which was done in a somewhat casual manner.
Mr Naba stated that he tended to stay home and sleep a lot that he did not socialise much and that he had difficulty with personal relationships.
In a Centrelink Medical Report dated 21 August 2012 Dr Bulbulia, general practitioner, diagnoses “Penile Neuropathic pain – severe” as a condition with most impact, and describes the current treatment as “analgesia, Xylocaine ointment and attendance at Parramatta Pain Clinic” but provides no assessment as to the functional impact of the condition.
In a letter dated 16 March 2012 Dr Sivathonan, pain specialist, notes that Mr Naba has recommenced treatment at the Sydney Pain Management Centre and that his current medication included Valium, Cymbalta, Tramadol and Panadeine Forte.
Dr Sivathonan prescribed Lyrica cream which apparently had previously had a beneficial effect when used in 2011 and warned Mr Naba of possible side effects with concurrent dosing of Tramadol and Cymbalta.
I note that that at the hearing Mr Naba indicated that he stopped using Lyrica cream because it was too costly and went back to using Xylocaine ointment.
In a letter dated 23 October 2012 Mr Lawrence. Roux, clinical psychologist, confirmed that Mr Naba commenced a pain management program on 31 October 2010 and attended 10 psychology sessions with a clinical psychologist Ms Paul and a final session on 22 May 2012 with himself.
Mr Roux stated that “at the conclusion of his treatment program Mr Naba described some amelioration in his pain condition with the use of medicinal cream and an associated moderate improvement in his overall mood and stress levels” and that Mr Naba had indicated that he did not wish to have any further psychology treatment at that stage.
In a letter dated 21 May 2014 Dr Bulbulia states that Mr Naba had not returned to work since his accident because of “chronic pain over his penile gland aggravated by rubbing or touching” and that he is taking a number of analgesics to manage the pain but that the prognosis for the condition is poor.
Consideration
The respondent contends that Mr Naba’s condition of “penile neuropathic pain” was not fully diagnosed, fully treated and fully stabilised during the claim period.
In determining whether a condition is fully treated and stabilised para 6(5) of the Determination states that:
“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 the treatment is continuing or is planned in the next 2 years
It clear that from Mr Roux’s letter of 24 October 2012 that Mr Naba’s condition was fully diagnosed since at least 31 October 2010 when he commenced a pain management program. The somewhat brief letter, in my view, implies that Mr Naba continued in that program treatment program for about 18 months until 22 May 2012 with only marginal benefit with respect to the amelioration of his symptoms.
In the letter Mr Roux indicates that Mr Naba did not wish to have further psychological treatment but provides no recommendation or rationale as to the benefits for continuing such treatment.
Mr Naba’s evidence, which is supported by the documentary medical evidence, indicates that he has been treated with continuous oral and topical medication for almost 4 years and at least 2 years since the date of his application for DSP.
The treatment appears to have been has fairly consistent with relative minor variation and there is no evidence to suggest that any other treatment is likely have added benefit.
Therefore, I am satisfied that Mr Naba’s condition was fully diagnosed and treated during the claim period.
In determining whether a condition is fully stabilised para 6(6)((a) the Determination states that 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…….
On reviewing all the evidence before the Tribunal I am satisfied that, during the claim period, Mr Naba had undertaken reasonable treatment for his condition and that any further reasonable treatment was unlikely to result in significant functional improvement in the subsequent 2 years.
It follows that during the claim period Mr Naba’s condition was permanent within the meaning of the Act and that a rating under the Impairment Tables can be assigned.
The Determination does not have a Table dealing specifically with pain and paragraph 6(9)(c) states that ‘chronic pain is a condition and, any resulting impairment should be assessed using the Table relevant to the area of function affected’.
The allocation of an impairment rating in this matter presents certain difficulties namely the paucity of corroborating medical evidence and the unusual nature of Mr Naba’s condition which could assessed either under Table 10 - Digestive and Reproductive Function or Table 14 – Functions of the Skin
For present purposes, and without deciding, I have considered both Tables in light of the all the evidence and I am satisfied that an impairment rating of no greater than 10 points in either Table would be the most likely result.
Mr Naba’s Mental Health Condition
In his report of 21 August 2012 Dr Bulbulia diagnoses Anxiety and Depression as a condition causing most impact but provides little other useful information about the condition.
I note that functional impairment caused by a mental health condition is assessed under Impairment Table 5 and that the Introduction to the Table stipulates that the diagnosis of a condition must be “made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
Although Mr Naba was treated by a clinical psychologist for his neuropathic pain there is no evidence before Tribunal in respect of a mental health condition diagnosed by either a clinical psychologist or a psychiatrist.
Therefore, an impairment rating for Mr Naba’s purported mental health condition cannot be assigned.
Mr Naba’s upper limb condition
Mr Naba claims that he suffers from arthritis of both hands but was unable to provide a clear history in respect of functional impact other than a claimed difficulty with his grip and an inability to punch because of pain.
In his report of 21 August 2012 Dr Bulbulia lists “arthritis of the hands” as a condition that is well managed and causes minimal or limited impact and is treated with analgesics.
An X–ray examination of both hands performed on 21 August 2012 is reported as showing “typical mild, diffuse, age-related degenerative change at most of the IPJs. There is an old united fracture at the proximal end of the first metacarpal. Short, slightly misshapen 4th and 5th metacarpal is present at both hands. This may idiopathic (9% of normal)…”
I accept that during the claim period Mr Naba’s condition of arthritis was permanent within the meaning of the Act but find that the evidence before the Tribunal would only support an impairment rating of nil points.
DECISION
For the reasons set out above, I am satisfied that during the claim period Mr Naba’s impairment rating under the Impairment Tables was less than 20 points.
This means that Mr Naba did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ........................................................................
Associate
Dated 12 September 2014
Date of hearing 4 September 2014 Applicant In person Solicitors for the Respondent Mr George Lozynsky, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Chronic Pain
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Permanent Condition
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