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

[2017] AATA 2379

Davies and Secretary, Department of Social Services (Social services second review) [2017] AATA 2379 (28 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2006

Re:Geoffrey Davies

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 November 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) Sch 2, s 42

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

28 November 2017

1. Mr Geoffrey Davies, the applicant, seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 23 March 2017. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 13 April 2016, and affirmed by an Authorised Review Officer (“ARO”) on 11 November 2016, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 11 February 2016.

2. The applicant’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, he had to satisfy these criteria on 11 February 2016, when he applied for the DSP, or within the following 13 weeks, that is, by 12 May 2016 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that the applicant was qualified for DSP during the relevant period.

5. The Secretary accepts that the applicant suffered from a number of conditions during the relevant period. He therefore satisfies s 94(1)(a) of the Act. The issues to be determined in these proceedings are whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether he has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the applicant’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (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 two 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 two 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.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

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

    (b)is at a reasonable cost; and

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

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    CONSIDERATION

    Cardiomyopathy

13. The Secretary accepts, and I agree, that this condition was fully diagnosed, treated and stabilised during the relevant period. This is supported by the medical evidence of Dr Harvey, general practitioner, and Dr Hatton, cardiologist. Therefore, the question to be determined in these proceedings is the level of functional impairment.

14. In written submissions attached to the applicant’s claim for DSP dated 11 February 2016, he advises that “combined heart medications cause drowsiness and occasional postural hypertension, reducing day to day ability to walk any distance, climb stairs, standing for any periods, any attempts to undertake work of a physical nature results in fatigue of effort, excess sweating and breathlessness”. While I have considered these submissions, it is important to note that pursuant to the Impairment Tables, self-reporting alone of symptoms is insufficient; corroborating medical evidence must support them.

15. In Medical Certificates dated 6 January 2015, 25 February 2015 and 27 November 2015, Dr Harvey notes the symptoms of the condition as fatigue of effort.  In the Medical Certificate dated 27 November 2015, Dr Harvey also adds “breathlessness, oedema, chest pains [angina]”.

16. A Job Capacity Assessment Report (“JCA”) dated 11 April 2016, notes Dr Davies’ advice that the applicant was able to use public transport and can walk around a shopping centre or supermarket; climbing stairs or sweeping paths would produce symptoms of breathlessness/chest pain; and the applicant is able to attend to work-related tasks which do not require a high level of physical exertion.

17. The applicant accepts that his condition of cardiomyopathy warrants 10 points under the Impairment Tables.

18. For all the above reasons I am satisfied that 10 points under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina) is the appropriate rating for this condition.

    Spinal Condition

19. The Secretary contends that the applicant’s spinal condition was not fully diagnosed, treated and stabilised during the relevant period. I do not agree for the following reasons.

20. An x-ray report by Dr Smith dated 31 October 2011, of the lumbosacral spine revealed lumbar spondylosis with early loss of disc height at L4/5 and L5/S1 levels. There was mild scoliosis convex to the right.

21. A more recent x-ray report by Dr MacDonald dated 23 December 2014, of the lumbosacral spine revealed “mild scoliosis convex to the right centred on L1/L2. There is a mild degree of generalised lumbar degeneration most marked at L5/S1. Mild anterior slip of L5 on S1 is noted possibly related to adjacent facet joint degeneration as I had not seen any pars defects. There is mild S1 joint degeneration”.

22. In a report dated 10 March 2017, Dr Harvey notes that the applicant has considerable problems with his cervical and lumbar spine. He states that the applicant “has severe belt level, lumbar pain which restricts all lumbar movement, his agility and flexibility. He therefore is unable to lift bend and carry. It limits mobility and hence unable to catch public transport (relies on own transport and parking authority is required)”.

23. Dr Harvey provided a report dated 1 June 2017 in support of these proceedings. He states that the applicant “has a severe long-standing cervical spine pain due to industrial accidents to his neck. He has a consequence for many years a radiculopathy to the C6 region of his right upper limb. This is a long-standing problem, has resisted all treatment. His only option a cervical spinal decompression for which there are risks of failure and his overall anaesthetic risk due to his cardiomyopathy”. He also notes that the applicant has “similar issues, long-standing with his lumbar spine and sciatica to his right S1 distribution, as he has damaged L5/S1 disc disorders, lumbar spondylosis etc. There is no surgical cure for this”. Dr Harvey advised that these conditions give rise to difficult pain management issues. He says that the applicant has tried and continues with physiotherapy and analgesia and has tried other alternatives such as hydrotherapy. In conclusion Dr Harvey reiterates “these are old injuries not recent events… They are long-standing problems and they are therefore chronic”.

24. At hearing the applicant advised that he had restricted movement of his back such as bending forward to touch his toes and turning his neck. He advised that he was able to drive but relied on his mirrors and struggled to look over his shoulder. He said that he relied on a disability sticker to avoid reverse parking.

25. I am satisfied on the available medical evidence, particularly the radiological evidence and that of Dr Harvey that the applicant’s spinal condition is long-standing and was fully diagnosed, treated and stabilised during the relevant period. Having regard to the descriptors contained in Table 4 of the Impairment Tables (Spinal Function), I find that the applicant’s spinal condition warrants 5 impairment points.

    Lower Limb Function - osteoarthritis of knees and ankles

26. The Secretary accepts, and I agree, that the applicant’s lower limb condition of osteoarthritis of the knees and ankles was fully diagnosed during the relevant period but was not fully treated and stabilised.

27. In a Medical Certificate dated 6 January 2015, Dr Harvey records a diagnosis of “planter fasciitis/right knee” and noted that the applicant’s symptoms included “severe foot pain, arthritis knee”. He advised that the condition was an exacerbation of an existing condition with the date of onset being 15 December 2014. Dr Harvey indicated treatment as “ongoing medication”.

28. In a Medical Certificate dated 25 February 2015, Dr Harvey records a diagnosis of “psoriatic arthritis” with the date of onset as 25 February 2000. On 7 May 2015, Dr Harvey provides a diagnosis of “arthritic injuries” from an exacerbation of an existing condition with the date of onset as 7 May 2000. He describes the symptoms as “OA [osteoarthritis] KNEES HIPS”. In a more contemporaneous Medical Certificate dated 27 November 2015, Dr Harvey records a diagnosis of osteoarthritis. He notes that the condition is permanent with the date of onset as 4 March 2014. He records the applicant’s symptoms as “pain swelling ankles knees spine hips” and advises that it is likely to persist.

29. There is very limited evidence in regards to treatment.

30. A JCA dated 15 May 2015, notes that the applicant was taking pain medication and was being monitored by his GP. In a subsequent JCA dated 11 April 2016, it is recorded that the applicant’s current treatment is with medication, namely Voltaren. He advised that he had never been referred for any physical therapy. This is despite Dr Harvey recommending physiotherapy and splints in a report dated 30 March 2016.

31. In the most recent report of Dr Harvey dated 1 June 2017, he advises that the applicant’s “arthritic conditions are very physically restrictive and there are no options for any improvements. He has tried and continues with physiotherapies and analgesia. He has tried all other alternatives such as hydrotherapy despite them actually aggravating his problem”.

32. As already stated, I accept that the applicant’s lower limb condition of osteoarthritis of the knee and ankles was fully diagnosed during the relevant period. There is however very limited evidence in regards to treatment and as such I cannot be satisfied that the condition was fully treated and stabilised during the relevant period. The most contemporaneous evidence of Dr Harvey shows that the applicant has undertaken some physiotherapy in addition to analgesia, however during the relevant period, on the applicant’s own evidence, it appears that this treatment was recommended but had not yet commenced. It follows that no impairment points may be assigned to this condition.

    Upper Limb Function - carpal tunnel syndrome and right shoulder injury

33. The Secretary accepts, and I agree, that the applicant’s condition of carpal tunnel syndrome was fully diagnosed during the relevant period. This is supported by the results of a nerve conduction study undertaken on 22 May 2015, and the evidence of Dr Harvey, Dr Meads, orthopaedic hand surgeon and Dr Benz, orthopaedic registrar.

34. In a letter dated 7 March 2017, Dr Benz advised that the applicant “will require operative release of both carpal tunnels”. At hearing, the applicant advised that he was recovering from surgery he had undergone on his right hand four weeks earlier. He said that surgery on his left hand was pending.

35. As the applicant has only recently undergone surgery on his right hand for carpal tunnel syndrome and is pending surgery on his left hand, this condition cannot be considered fully treated and stabilised during the relevant period. Following recovery, he still needs to undergo specialist review and assessment to determine the outcome of the surgery. Accordingly, no impairment rating may be assigned to this condition.

36. In addition to the carpal tunnel syndrome, the applicant claims to suffer from a right shoulder injury. There is a paucity of medical evidence relating to the right shoulder injury and any treatment received.

37. In a Medical Certificate dated 25 October 2016, Dr Harvey records a diagnosis of “right upper limb injury, carpal tunnel thoracic outlet problem”. He notes that the condition is permanent with the date of onset as 18 October 2016. He advises that the applicant is awaiting surgery and is “unable to use with pain in his right upper limb”. The recommended treatment is noted as surgery.

38. In a report dated 19 January 2017, Dr Bodel, orthopaedic surgeon, notes an ultrasound that was conducted on the applicant’s right shoulder by Dr Janke on 16 June 2016 which showed evidence of a full thickness tear of the supraspinatus tendon. He noted that the applicant has had minimal treatment for his shoulder and that the applicant would “benefit from referral to an orthopaedic shoulder surgeon about the shoulder, as there may well be a need for injections of cortisone and/or a surgical repair…”. He further advises that “surgery is a reasonably necessary option for the right shoulder in the form of a rotator cuff repair, and for decompressive surgery to the median nerve and the ulnar nerve in the right arm”. In regards to prognosis, Dr Bodel states that there is potential for improvement in function with surgery to the right shoulder.

39. At hearing, the applicant advised that he couldn’t undergo surgery due to his heart condition, however there is no medical evidence before me in support of this submission.

40. The evidence of Dr Harvey diagnosing the right shoulder condition and the report of Dr Bodel fall outside of the relevant period. While this evidence may be of assistance in any future claim for DSP, they are of little assistance in these proceedings.

41. For the above reasons I’m not satisfied the applicant’s right shoulder injury was fully diagnosed during the relevant period. Due to the limited amounts of medical evidence in regards to treatment options for the applicant’s right shoulder, especially in light of the applicant’s heart condition, I am not satisfied that this condition was fully treated and stabilised during the relevant period. It follows that no impairment rating may be assigned to this condition.

    Hearing Loss

42. The applicant suffers from hearing loss. This is accepted by the Secretary. However, it is submitted that the condition has not been optimally treated to a level where no functional improvement is expected in the next two years and as such cannot be considered to be fully treated and stabilised during the relevant period. I agree for the following reasons.

43. In a report dated 15 June 2010, Professor Paul Fagan considers that the applicant’s level of compensable hearing loss would warrant the trial and use of digital hearing aids. He states that he suspects the applicant will “undoubtedly derive benefit from their use including being able to better communicate with family and friends, especially amongst background noise”. He advises consultation with an experienced audiologist to assist with fitting digital hearing aids.

44. The JCA dated 11 April 2016, notes that the applicant advised that the hearing aids were of little benefit and he plans to be reassessed in the near future.

45. In a letter from the applicant dated 25 May 2016, he notes that he has approached Professor Fagan to have additional audiology testing in the future. He says that when the results are ready, he will provide them to the Department.

46. In a further letter from the applicant dated 16 June 2016 (including Audiogram test results dated 10 June 2016), the applicant advises that he “has once again been tested, confirmed to have hearing loss and I am currently waiting fitting of latest hearing aid modules”.

47. At hearing, the applicant stressed that he was currently wearing digital hearing aids and that any adjustments he has in the future are just part of his ongoing management and has nothing to do with improving the condition. I accept this in part. The use of hearing aids is not to improve the condition but they may assist with any functional impact. As the applicant advises that his current hearing aids are of little benefit and that he is in the process of being fitted for the latest hearing aid modules, I am not satisfied that during the relevant period, this condition was fully treated and stabilised.

    CONCLUSION

48. The applicant’s conditions warrant a total impairment rating of 15 impairment points under the Impairment Tables. Since they do not rate 20 or more points, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.

49. I affirm the decision under review.  The applicant may apply for DSP again at any time.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 28 November 2017

Date(s) of hearing:	28 August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services