Di Fiore and Secretary, Department of Social Services (Social services second review)
[2018] AATA 2090
•4 July 2018
Di Fiore and Secretary, Department of Social Services (Social services second review) [2018] AATA 2090 (4 July 2018)
Division:GENERAL DIVISION
File Number: 2016/3624
Re:Mario Di Fiore
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:4 July 2018
Place:Sydney
The Tribunal affirms the reviewable decision, that is, Mr Di Fiore does not qualify for the maximum portability period for the DSP that is an unlimited period.
...............[sgd].........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – unlimited portability – whether applicant has a severe impairment –intellectual disability – whether applicant will have severe impairment for at least the next five years – whether severe impairment would prevent applicant from performing any work independently of a program of support within the next five years – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011
CASES
Daccache and Secretary, Department of Social Services (Social services second review) [2015] AATA 596
Morton and Secretary, Department of Social Services [2014] AATA 949
Shi v Migration Agents’ Registration Authority [2008] HCA 31
Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720WMKR and Secretary, Department of Social Services [2015] AATA 483
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
4 July 2018
WHAT THE CASE IS ABOUT
Mr Di Fiore is seeking maximum portability period for the Disability Support Pension for an unlimited period. The portability period is usually 28 days.
He applied to the Department of Human Services (the department) for the unlimited portability period on 18 May 2015. His application was refused on 8 December 2015. That refusal decision was affirmed by an authorised review officer (ARO) on 25 January 2016. The ARO’s decision was affirmed by the Social Services and Child Support Division of this Tribunal (AAT1) on 2 June 2016. The Tribunal is reviewing the AAT1 decision.
THE REGULATORY SCHEME
Subsection 1218AAA(1) of the Social Security Act 1991 (Cth) (the Act) provides that the Secretary of the department may determine that a person’s maximum portability period for the DSP is an unlimited period if all of the following qualifying circumstances exist:
(a)The person is receiving DSP;
(b)The Secretary is satisfied that the person’s impairment is a severe impairment within the meaning of subsection 94(3B);
(c)The Secretary is satisfied that the person will have that severe impairment for at least the next 5 years; and
(d)The Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
An “impairment” can be physical, intellectual or psychiatric.[1]
[1] Section 94(1)(a) of the Act.
The Social Security (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (the Impairment Tables) requires that an impairment rating can only be assigned if the condition causing that impairment is ”permanent”.
Paragraph 6(4) of the Impairment Tables provides that a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment.
A person’s impairment is a “severe impairment” if the person’s impairment is of 20 points or more under a single Impairment Table.[2]
[2] Section 94(3B) of the Act.
Paragraph 8 of Part 2 of the Impairment Tables provides symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
THE ISSUES
Mr Di Fiore is receiving the DSP. He therefore satisfies the first criterion of section 1218AAA(1). The Tribunal has to consider whether Mr Di Fiore satisfies the remaining three criteria in subsection 1218AAA(1).
The hearing of this matter was almost two and a half years after Mr Di Fiore applied for unlimited portability. The Secretary accepted that it is open to the Tribunal to take into account all evidence of Mr Di Fiore’s medical conditions which is available at the time of the hearing of his application.[3]
[3] Daccache and Secretary, Department of Social Services (Social services second review) [2015] AATA 596; Morton and Secretary, Department of Social Services [2014] AATA 949; WMKR and Secretar,y Department of Social Services [2015] AATA 483 at [31]; Shi v Migration Agents’ Registration Authority [2008] HCA 31, Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720.
THE CLAIMED CONDITIONS
On 18 May 2015, Mr Di Fiore contacted Centrelink to request a determination that his maximum portability period for DSP be an unlimited period because he wished to visit family in Italy. Another person filled out the form. He also provided a Work Capacity Form in May 2015, which the Tribunal infers was also filled out by another person. Taking into account both documents, Mr Di Fiore was claiming that he suffered from the following disabilities, illnesses or injuries at that time:
(a)Epilepsy;
(b)Depression;
(c)Learning disorder;
(d)Transient Ischemic Attack (TIAs) recurring;
(e)Grand mal seizures; and
(f)Sherman’s disease in back.
Mr Di Fiore identified his treating doctors as Dr Pryor and Dr Hampshire and stated that he was taking depression medication.
Dr Pryor, Physician, completed the accompanying medical report dated 6 May 2015. He listed the condition with most impact as:
Mental retardation }
Epilepsy }
He listed Dr Hampshire, Psychiatrist, and Prof Somerville, Neurologist, as specialists who confirmed his diagnosis. He gave the date of onset as 1968. The current treatment was Valium which commenced in 2013. Dr Pryor noted past treatment was anti-epilepsy drugs and future/planned treatment as “Trials of medications” and listed current symptoms as “Episodes every 2 – 4 weeks”. Dr Pryor stated that the condition impacted on Mr Di Fiore’s ability to function in “Decision making & behaviour problems”. His view was that the condition would remain unchanged.
Dr Pryor then, confusingly, listed Mental retardation as condition 2, current treatment was “support”, and past treatment was “Psychiatric care” from 2006, which was “continuing”.
The evidence of Mr Di Fiore’s neurological/cognitive/mental health conditions
Both Dr Pryor and Dr Hampshire have noted difficulties in identifying Mr Di Fiore’s neurological/cognitive/mental health conditions. There is no doubt that Mr Di Fiore has a history of epilepsy.
Dr Pryor completed a Medical Report for Centrelink on 24 October 2007 about Mr Di Fiore’s “Idiopathic epilepsy”. He had been treating Mr Di Fiore since 27 October 2004. Dr Pryor reported that Mr Di Fiore had had major and minor seizures from age six. He listed under the heading “Current symptoms”, “Occasional blackouts, Headaches, Learning disability”. He stated that Mr Di Fiore was not taking anticonvulsants, but had in the past, and proposed no change in treatment. Dr Pryor listed the following effects on Mr Di Fiore’s ability to function: “Supervision due to episodic loss of consciousness, Learning disability”. He expected that impact on function to continue for more than 24 months and to remain unchanged within the next two years.
Dr Pryor’s report and a Job Capacity Assessment Report (JCA) carried out on 12 December 2007 were prepared in relation to a review of portability of the DSP. The assessor recorded Mr Di Fiore’s comments that when the epileptic attacks occur he often loses his ability to speak for a couple of hours, his hands shake, and he cannot write, which is what Mr Di Fiore told the Tribunal. The assessor also reported that Mr Di Fiore said heat or too much activity can trigger an attack. The impairment rating the assessor gave does not assist the Tribunal because the Impairment Tables have changed since that time.
Also in relation to the review of portability of the DSP, Mr Littleton, Psychologist, carried out a psychological assessment of Mr Di Fiore on 11 January 2008. He reported that Mr Di Fiore “was somewhat disgruntled” and told Mr Littleton:
He had been diagnosed with Epilepsy and had been on the DSP for 20+ years and did not believe (being under the old system) that he was required to undertake a review and was only being reviewed because he was moving to New Zealand with his parents.
Mr Littleton administered the Wechsler Adult Intelligence Scale – III test. He concluded that Mr Di Fiore’s IQ is 72 placing him in the borderline range of intellectual functioning. He assessed Mr Di Fiore as needing supervision for daily activities such as domestic duties, shopping and financial transactions, and as having no significant emotional or behavioural problems.
Mr Littleton detailed Mr Di Fiore’s behaviour during the assessment, which indicated one of three options:
·He is resentful of the assessment and feels it is a formality so is less motivated to engage.
·Has significant brain damage to specific areas of the brain (possible right hemisphere) from lifelong condition of epilepsy which affect certain cognitive processes
·In his own situation is attempting to manipulate results of the IQ test to make sure he continues to qualify for the DSP.
Mr Littleton recounted his interview with Dr Pryor to clarify those issues. Dr Pryor told him that:
·An MRI scan showed no structural abnormalities;
·An Electro-Encephalograph (EEG) showed high levels of epileptic activity in the brain which were indicative of someone who has fits and seizures, but Mr Dr Fiore has not had them in some time. However, his lack of employment and poor education has made it very hard for him to find work;
·He felt that Mr Di Fiore was honest and if his behaviour was indignant or sabotaging, it was most likely being done unconsciously.
A Quantitative EEG Report dated 23 December 2010 was prepared by Ms Adam, Consultant Psychologist, on referral from Dr Hampshire “regarding suspected brain damage”. Mr Di Fiore’s mother reported that he suffered hypoxia due to near drowning when he was 10 months old, had a history of epilepsy but stopped using medication several years ago and has no seizures.
The report stated that Mr Di Fiore:
presented with epileptiform EEG, consistent with petit mal or absence seizures. This is likely to, even without any overt symptoms of epilepsy, impair information processing and have strong impact on his ability to sustain focus needed for processing of complex thought and, consequently, mimics attention deficit.
QEEG findings indicate a profile of sustained cerebral pathology and organic damage that is frequently seen in mild to moderate cases of traumatic brain injury (TBI). Increased delta and theta frontally, with decrease in relative beta posteriorly, implies decreased function in areas involved in attention and affective regulation. The increased temporal theta and alpha suggest a disturbance in areas involved in comprehension and memory.
The history of near drowning at the age of 10 months is likely to exert further affect on the social aspects of his behaviour.
Ms Adam suggested Neurotherapy training, in light of Mr Di Fiore’s negative experience with anticonvulsant medication.
The only report from Dr Hampshire before the Tribunal was dated 22 March 2013. It was addressed to a solicitor and was prepared for forensic purposes. Dr Hampshire was attempting to understand why Mr Di Fiore had committed criminal acts “which essentially involved tax fraud, BAS fraud or bounced cheques”.
(Mr Di Fiore told the Tribunal that he was in gaol for 15 months from 2013 to 2015 and then on parole for two years. He said that he did the “criminal stuff” from 2003 until 2008 and he was under investigation for five or six years before going to court and entering a “plea deal”.)
Dr Hampshire said that Mr Di Fiore was referred to him by his general practitioner on 24 July 2006 to review his medication. The general practitioner thought that Mr Di Fiore “may be depressed and stressed”. Dr Hampshire had seen Mr Di Fiore since then, frequently every two weeks and sometimes once every two months, but as a rule every three to four weeks.
Dr Hampshire set out a history of childhood epilepsy, with seizures appearing to stop and from age 13 or 14, anticonvulsant medications being slowly ceased until Mr Di Fiore was not taking medications from age 15. He noted that Mr Di Fiore was hospitalised after being left in a bath briefly and appearing to suffer a grand mal seizure. After extensive neuropsychological testing, it was concluded that he did not suffer brain damage but continued to have grand mal seizures for the next six to seven years.
Dr Hampshire was puzzled “somewhat” by Mr Di Fiore’s attending a special school because his Mental State examination did not indicate that he required a “Special School”, and commented that:
in many ways his IQ his (sic) very sharp. His (sic) has a formidable memory, behaves very appropriately and has a warm and gentle manner about him.
Dr Hampshire then commented that Mr Di Fiore’s capacity to do cognitive testing indicated:
that his IQ may in in fact be in the dull normal range at best. Again, interestingly, this is not how he presents. He presents with high social skills, relates warmly and does not given (sic) any indication that his mathematical skills are poor. He also has a specific learning disorder such that he really struggles to read and write and requires a computer to do so. …
He has the capacity to scheme, to dream, to fantasise and to make logistical arguments and put together complex algorithms as it appeared he did when he defrauded the Federal Government. … Interestingly, he has never worked which I find perplexing. I have … attempted to find work for him, but he has always been unsuccessful.
He commented:
I can only assume that the mechanism by which he conducted his fraudulent behaviour was somewhat sophisticated which belies his inability to do maths.
Dr Hampshire wrote that he had arranged a job for Mr Di Fiore as a packer in a market but he was:
unable to complete these jobs. In some ways I think this indicates the structural brain defects this young man has. On one hand he has a certain brightness and on the other hand he has specific learning disorder and is almost certainly unemployable.
Dr Hampshire stated that he had referred Mr Di Fiore to Prof Summerville, Professor of Neurology, who did an EEG and was unable to detect the presence of seizures. He had sent Prof Summerville Ms Adam’s EEGs of Mr Fiore which she believed showed “he was having virtually perpetual mini epileptic seizures, virtually 24 hours a day”. He had spoken to both of them about the apparent conflict in measurement:
and both agree that seizure activity can only be measured when one is having a seizure. Both agreed that he may not have been having a seizure when Prof. Summerville saw him and that when Prof. Adam saw him he was frequently having minor seizures.
Dr Hampshire referred Mr Di Fiore to a geneticist who conducted:
an extensive series of chromosomal studies and concluded that Mr Di Fiore’s possible neuropsychiatric features, history of seizures and learning disability, were not related to any genetic pathology.
Dr Hampshire carried out a mental state examination and referred to IQ testing in 1996 that indicated that Mr Di Fiore’s:
intellectual capacity was around the 55-75 IQ range, which would put him in the mild to moderate mental retardation range. However, that psychology report also noted that his cognitive defects were patchy and the author concluded that he should be seen in the upper mild to borderline range of intellectual disability only. That report also indicated that he had only a very basic understanding of money, and did not have the capacity to understand the consequences of his actions.
Dr Hampshire referred to the opinions of two other psychiatrists who had seen Mr Di Fiore in 1996 and 1998, and the conflicting views of Prof Summerville and a radiologist about MRIs being normal/abnormal. He concluded:
I believe that Mr Di Fiore is suffering from borderline to mild mental retardation, with dependent traits. He also appears to have psychopathic traits to his personality structure. …
I conclude that Mr Di Fiore is borderline to mildly mentally retarded and in my opinion has significant organic pathology in his brain, possibly in the frontal lobes, the evidence for the organic brain damage, however, is somewhat conflicting and contradictory as outlined above …
This evidence is contradictory evidence of organic brain damage, in the presence of a man with mental retardation, and also somewhat contradictory with the nature of the crimes to which he is currently before the courts.
Despite a lengthy and detailed report, why Dr Hampshire was seeing Mr Di Fiore regularly over several years, is not apparent to the Tribunal. Dr Hampshire does not identify a condition or treatment he was addressing.
An EEG dated 6 March 2015 reported by Dr D Pryor/M. Akpinar, commented:
The EEG remains HIGHLY ABNORMAL, with almost continues (sic) generalised, but predominantly bi-frontal epileptiform activity.
Dr Pryor’s report dated 23 September 2015 was in response to questions from the department. Dr Pryor stated that Mr Di Fiore was reporting epileptic seizures every two to four weeks. He stated that Mr Di Fiore’s “neurological/cognitive functioning” interferes with his concentration, decision making, memory and problem solving. He referred to the IQ testing score of between 55 and 75. He did not expect medications would lead to significant improvement in ability to function. He recommended reference to Dr Hampshire’s 22 March 2013 report.
On 14 October 2015, Ms Adam did a Quantitative Electro-Encephalography Review of the 2010 QEEG she had done, at Mr Di Fiore’s request. She recorded that he was complaining of recently feeling worse, suffering from frequent dizzy spells and memory
problems, and that he was ill during last year, suffered a seizure, and had to be taken to hospital. She reported that the EEG again included “deviant signal that matched the one recorded in 2010”.
She wrote:
This EEG shows clinically significant deviance in Mr Di Fiore’s brain function which is consistent with mild to moderate neuropsychological impairment. It is likely to, (sic) produce significant negative effect on his life. Not only is there strong probability that he may experience epileptic seizures but his information processing, ability to focus, pay attention and process complex thought are likely to be significantly impaired.
Ms Bridge, Psychologist, administered an Adaptive Behaviour Assessment System (2nd Ed) (ABAS-II) test to Mr Di Fiore on 19 October 2015 and prepared a report at the request of the department. His mother completed the ABAS-II test. The result was that Mr Di Fiore’s adaptive behaviour is in the extremely low range (GAC = 40). Ms Bridge said that result was not consistent with his presentation during assessment and considered that the “results be viewed cautiously given the subjective nature of the tests, in addition to inconsistencies of the evidence presented”.
A “face to face” JCA was carried out on 23 July 2015, by a rehabilitation counsellor with contribution from a psychologist. It was not submitted until 19 November 2015. Mr Di Fiore told the assessor:
·He needs assistance with activities of daily living, cooking and cleaning.
·He is very forgetful.
·He has poor literacy and learning skills, requires support to fill out forms and comprehend written material.
·He does not know how to read maps or read timetables for travel and gets lost travelling to new places.
·He had returned to studying for a Diploma in Film and Production in February 2015, after a year’s break when he was incarcerated. It was a two year course. He attended on two non-consecutive days per week, that is, nine hours class time. He had assistance with reading and writing and additional time to complete assessments. His previous study included Certificates and a Diploma in tourism. He used the Disability Support Units whenever he studied.
·He worked briefly in 2006-2007 in a call centre but it was not for him because it was too stressful with constant calls coming in and performance targets to be met.
Mr Di Fiore told the ARO on 21 January 2016 that:
·He has very bad epilepsy and bad dizziness, cannot work, and his mother has to be with him all the time.
·He had studied in the past and would be unreliable for employment or study.
·He gets really bad headaches and sickness and sometimes cannot get out of bed.
·He was nearly hit be a train recently due to his dizziness.
·He had recently been diagnosed with arthritis in the knee.
On 18 April 2017, a JCA was held face to face, by a physiotherapist with contribution from a clinical psychologist. The report was submitted on 12 May 2017. Mr Di Fiore told the assessor the following:
·He had not taken medication for epilepsy since he was 16 years old.
·He suffers from seizures three to four times a week which last 30 to 60 minutes and cause slurred speech, he cannot write or concentrate and his legs become weak. Afterwards he has to lie down and sleep for several hours.
·The assessor also recorded that Mr Di Fiore’s “current” reports indicate a frequency of epileptic seizures every two to three weeks.
·The onset of bilateral knee pain was three years ago. The right is worse than the left.
·He had two injections in the right knee in 2016 with no relief.
·He attended the assessment using a walking stick and he can only walk for three minutes without stopping. He goes shopping with his mother, leaning on the trolley for support. He does not drive and uses public transport.
·The onset of his back pain was many years ago. The pain disappeared but returned when he was incarcerated in 2013. He has medication and saw his Neurosurgeon, Dr Kumar, in 2016. He suffers low back pain, with pain and numbness in both legs. He cannot take the trash out, which he used to do until two years ago.
·He had not engaged in secondary rehabilitation, including physiotherapy, hydrotherapy, weight loss program or pain management program for his knees or his back.
·He suffered from an episode of light-headedness earlier in the year and had infrequently suffered episodes of the same symptoms since.
·He takes Cartia as prescribed.
·He had completed a Certificate III and a Diploma in Tourism at TAFE in 2008 with support from the TAFE Disability Consultant and home tutoring. He started a Diploma in Media Communication but had not finished it.
Finding about reliability of Mr Di Fiore’s evidence
The Tribunal finds that Mr Di Fiore’s evidence is unreliable based on the inconsistencies apparent between his claimed capacity and apparent capacity, in Dr Hampshire’s report, the reports of Mr Littleton and Ms Bridge, Psychologists, referred to above, and Dr Bhimani, Orthopaedic Surgeon, discussed later in this decision.
That finding is reinforced by his reports of his epileptic fits which are inconsistent in terms of frequency, and in his report to Dr Alkhateeb in September 2017 that he has not had any fits for the last several years.
The Tribunal does not accept Mr Di Fiore’s evidence unless it is corroborated by reliable evidence.
Epilepsy
The Secretary accepts that Mr Di Fiore’s epilepsy is fully diagnosed, treated and stabilised and submits that the appropriate rating is 5 points for mild functional impact under Table 15 for Functions of Consciousness. The Secretary submits that the Applicant is unable to attract a higher rating given his demonstrated ability to undertake a Diploma of Film and Television at TAFE, as he said at the AAT1 hearing.
When Mr Di Fiore saw Dr Alkhateeb on 11 September 2017 about the pain in his lower back and knees, he told the doctor that he had not had any epileptic fits for the last several years. As set out above, he has given other inconsistent reports as to the frequency of his fits. The Tribunal has taken into account Mr Di Fiore’s evidence that the frequency of attacks has increased. He said that when he was younger he had fits once a year but since 2013 he has an attack every couple of weeks, and sometimes a couple of times a month. He said that he needs to sleep after an attack. For example, recently he had an attack in the afternoon and went to bed and did not wake up until 10 or 11 am the next day.
The Tribunal does not accept that Mr Di Fiore has in fact suffered epileptic fits since the review of portability of DSP began. It has taken into account his mother’s evidence that he takes turns all the time and loses the ability to speak, but gives it little weight as it
contradicts his evidence about the nature of his attacks. It has taken into account the evidence of Dr Pryor, but does not consider that is corroborative because he is relying on reports from Mr Di Fiore.
The Tribunal has taken into account the EEG results of abnormal brain function, but does not accept that they reflect that he has suffered the fits he complains of. In the most recent QEEG report, Ms Adam wrote that there was a “strong probability that” Mr Di Fiore may experience epileptic seizures. The Tribunal accepts that the Mr Di Fiore may have “mild to moderate neuropsychological impairment”, but considers that is related to his intellectual function, which is assessed under Table 9.
It accepts that the condition of epilepsy has been fully diagnosed, treated and stabilised. Applying Impairment Table 15, it considers that a rating of 0 points is appropriate.
Intellectual disability
The Tribunal has considered the evidence about Mr Di Fiore’s intellectual disability, the earliest of which is a report from Dr Pryor in 2007. The Tribunal accepts the Secretary’s position that the condition has been fully diagnosed, treated and stabilised. The appropriate rating is 20 points under Table 9 based on the assessments undertaken by Mr Littlemore and Ms Bridge, although noting their comments qualifying the results because of the subjective nature of the tests. The Tribunal’s reason for accepting that rating is based in part on the QEEG reports.
Mr Di Fiore’s intellectual disability is a severe impairment. The Tribunal is satisfied that he will have that severe impairment for at least the next five years.
Mental health condition
Mr Di Fiore has been under the care of Dr Hampshire since 2006. As explained above, it is not apparent to the Tribunal for which condition or the nature of care being provided.
In his letter dated 16 October 2017, Dr Kalsi wrote that Mr Di Fiore is still “under” Dr Hampshire “for his mental health”. Anxiety and depression are noted in the past history given by Dr Kalsi with the date “17/07/2017”. On 11 September 2017, Mr Di Fiore told Dr Alkhateeb that he had “depression, anxiety and stresses” and that he sees a psychiatrist in Sydney “every now and then”. Mr Di Fiore told the JCA assessor in November 2015 that Dr Hampshire had been treating him for depression for many years. There is no evidence from a psychiatrist or clinical psychologist about those conditions, including the report of Dr Hampshire.
The Tribunal finds that neither anxiety nor depression has been diagnosed. No rating can be given to the condition.
Partial hearing loss
The Secretary accepts that the Applicant’s partial hearing loss is fully diagnosed, treated and stabilised and submits that a rating of 0 points is appropriate under Table 11 for Hearing and other Functions of the Ear. This is consistent with the Applicant’s reporting outlined in the Job Capacity Assessment Report dated 12 May 2017. The only medical report before the Tribunal about this condition is from Dr Tamhane, Ear, Nose and Throat Surgeon, in which the doctor writes that Mr Di Fiore has been his patient since 1985. Mr Di Fiore presented with a history of non-functioning left ear since birth. He reviewed Mr Di Fiore on 2 November 2015 and removed impacted wax from both ears. Dr Tamhane reported that an audiogram performed on that day confirmed that Mr Di Fiore has normal hearing in his right ear. He wrote that the hearing loss in the left ear is permanent. He gave no opinion about the impact on function.
The 2017 JCA assessor reported that Mr Di Fiore:
(a) can hear a conversation at average volume in a room with an average level of background noise (e.g. other people talking quietly in the background) …
(b) does not have to turn the television volume up louder than others in the household to hear clearly …
(c) does not need to use a hearing aid, cochlear implant or other assistive listening device.
The Tribunal accepts that Mr Di Fiore cannot hear when his right ear is against a pillow, however, that does not affect the rating under the Impairment Table.
He therefore qualifies for a rating of 0 points under Table 11 of the Impairment Tables.
Spine, lower limb deficiency, circulatory system and memory issues/dementia
In relation to the Applicant’s spinal disorder (pain and stiffness in his spine), lower limb deficiency (patellofemoral arthritis), and circulatory system (stenosis of right internal carotid artery), the Secretary contends that there has been limited intervention for these conditions and no medical evidence regarding prognosis, treatment plans and functional impact. Therefore, the Secretary contends that those conditions cannot be accepted as fully diagnosed, treated and stabilised.
The Tribunal has copies of the following imaging reports and other investigations in relation to the spine, hips, and lower limbs:
·CT lumbar spine, for “low back pain” dated 7 March 2013;
·MRI right knee to “assess for ACL tear. Instability” dated 25 February 2015;
·MRI left knee dated 9 March 2015;
·X-ray both knees and MRI right knee, with a “history of fall. Patellofemoral OA. Worsening knee symptoms” dated 14 December 2015;
·X-ray pelvis and right hip and x-ray right knee dated 27 July 2016;
·MRI right knee dated 6 October 2016;
·Bone scintigraphy of the knees dated 13 October 2016;
·Thoracolumbar spine X-ray dated 21 October 2016;
·CT lumbar spine dated 22 November 2016;
·MRI right knee dated 23 December 2016;
·MRI left knee, pelvis and both hips dated 29 December 2016;
·Bone scintigraphy of the thoracolumbar spine dated 10 January 2017, which referred to a previous bone scan having been done on 13 October 2016;
·Ultrasound right hip for right hip pain dated 21 June 2017;
·CT lumbar spine and right hip, in relation to “right hip, thigh and lower back pain, ? cause” dated 20 July 2017.
Mr Di Fiore had an ultrasound guided injection right trochanteric bursa for trochanteric bursitis on 19 July 2017.Dr Bhimani, Orthopaedic Surgeon, reviewed Mr Di Fiore on 21 December 2015. He noted that Mr Di Fiore has patellofemoral arthritis and that he had explained to Mr Di Fiore that “he is a difficult management problem. We are best treating this with nonoperative measures with activity modifications, a weight loss program and analgesia as required. Mario understands the same”.
Dr Bhimani reviewed Mr Di Fiore on 4 August 2016, and after an MRI and whole body bone scan, reviewed him again and wrote a report dated 20 October 2016. He reported that Mr Di Fiore has:
patello-femoral arthropathy with his pain being much worse than his radiological findings … his symptoms are our (sic) proportion to his radiology.
Dr Bhimani explained to Mr Di Fiore that the only long term solution was knee replacement:
but my concerns are how Mario will feel after a knee replacement. … we might actually make him worse and cause an aggravation of his underlying knee symptoms and .. the knee will not live up to his expectations and given his young age and body habitus that we will have premature wear and loosening of his knee replacement requiring him to have a revision.
At this stage Mario tells me he struggles to walk 250m. He is not currently taking any analgesics. I have suggested to trial some regular Panadol and occasional anti-inflammatory and I have given him a script for some Tramadol as well to see if we can help manage his pain better. I have also suggested using a walking stick and a weight loss program.
… I have asked him to see me again in twelve months with some repeat xrays.
Dr Bhimani reviewed Mr Di Fiore on 7 September 2017. He maintained his view that Mr Di Fiore’s symptoms “are out of proportion to what we are seeing” in radiological findings and repeated his view that “non operative therapy with activity modifications, a weight loss program and pain management” should continue.
Dr Alkhateeb saw Mr Di Fiore on 11 September 2017 in a hospital Pain Clinic and wrote a report dated 18 September 2017. He noted Mr Di Fiore’s complaints of low back pain since childhood when he was diagnosed with Sherman’s (sic) disease and wrote that the pain “used to come every now and then but for the last 2 years seems to be getting worse, particularly the last 6 months”. Dr Alkhateeb noted Mr Di Fiore’s complaints of pain in both knees “but it seems that the pain in the lower back is his main concern”.
Dr Alkhateeb referred to the findings on plain x-ray of the thoracolumbar spine. That X-ray of the dorsal spine was normal and an MRI report about his right and left knee indicated chronic osteochondral lesion.
He reported his findings on examination and concluded that Mr Di Fiore’s “lower back pain is secondary to a disc degenerative disease and facet joint arthropathy confounded by morbid obesity and other confounding factors mentioned earlier”. In his opinion, Mr Di Fiore “may benefit from the group pain management program and hydrotherapy” and provided referrals for those. He recommended Palexia 50 mg SR twice a day instead of Panadeine Forte and Targin, which Mr Di Fiore had reported taking. He also referred Mr Di Fiore to a dietician “to help him reducing his weight as well”.
At the time of the hearing, Mr Di Fiore was waiting to see the spinal surgeon in relation to his low back pain “(due to Lumbar spondylosis”) and OA (Osteoarthritis), as Dr Kalsi, general practitioner, wrote in his letter of 16 October 2017. Dr Kalsi stated that Mr Di Fiore’s “long term prognosis will be more clearer (sic)” after that appointment. Dr Kalsi reported that Mr Di Fiore was using a walking stick. The “Past Medical History” listed at the end of Dr Kalsi’s letter included:
·9/06/2017 Morbid obesity
·9/06/2017 Hip pain
·27/06/2017 Osteoarthritis
·17/07/2017 Anxiety/Depression
·29/07/2017 Lumbar spondylosis
·7/09/2017 Bilateral Knee osteoarthritis
Dr Kalsi’s letter dated 7 September 2017 was in similar terms.
The Tribunal finds that Mr Di Fiore has been diagnosed with patellofemoral arthropathy and lower back pain which is secondary to a disc degenerative disease and facet joint arthropathy of the spine. It does not accept that those conditions have been fully treated and stabilised. Mr Di Fiore has not followed the recommendations to exercise, including hydrotherapy, or weight loss, including seeing a dietician.
The references to Scheuermann’s/Sherman’s disease in the evidence relate to a past history. Mr Di Fiore’s current back complaints relate to the degenerative disease and facet joint arthropathy of the spine. There is no diagnosis of this disease by any medical practitioner. Nil treatment was reported.
Mr Di Fiore has been diagnosed and treated for trochanteric bursitis. It is not clear whether any further treatment was required. The Tribunal did not understand Mr Di Fiore to claim any impairment arose from that condition, as distinct from his lower back pain or knee pain. The evidence is not sufficient for the Tribunal to determine whether the condition has been fully treated and stabilised. No rating can be given for this condition.
The ultrasound carotid artery doppler, for clinical history of “F/H strokes. Recent feeling of lightheadedness. No carotid bruits. Exclude carotid stenosis”, was dated 24 February 2016. The report noted “minor intimal thickening seen in the right carotid bulb and along the origin of right internal carotid artery. It concluded: “Less than 15% stenosis at the origin of right internal carotid artery. No haemodynamically significant plaque or stenosis seen on either side”. The Tribunal finds that “F/H” is an abbreviation of family history. There is no report from a treating doctor addressing the symptoms “lightheadedness” or “dizziness”. The 2017 JCA assessor attributed dizziness to stenosis of right internal carotid artery, which she accepted was being treated with Cartia. The Tribunal finds that the conclusion in the ultrasound report does not support such an inference. There is no report from a treating doctor about the complaints of dizziness and lightheadedness. The Tribunal finds that neither condition of dizziness nor lightheadedness has been fully diagnosed.
Mr Di Fiore told the JCA assessor in November 2015 that he had been having mini Transient Ischaemic Attacks (TIAs) with chest pain in recent months and that he had arranged for a cardiology assessment. On 11 September 2017 Mr Di Fiore told Dr Alkhateeb that Dr Pryor had diagnosed “TIA”. As stated above, there is no medical evidence that Mr Di Fiore has been diagnosed with TIA, including from Dr Pryor. The Tribunal does not accept that TIAs have been fully diagnosed.
There was a CT of the Brain dated 19 July 2017, for “Memory issues, ? dementia onset, ? cause”. The report concluded:
No cause for symptoms has been demonstrated although there is possible parenchymal volume loss
The Tribunal does not accept that memory issues or dementia have been fully diagnosed.
The Tribunal concludes that Mr Di Fiore has one severe impairment, his intellectual disability.
WORK
Mr Di Fiore attended the Parameadows School until he was 16. The evidence about which courses he has completed is inconsistent, but the Tribunal accepts the AAT1 findings that he had completed Certificate II and III in Tourism and a Diploma in Communication and Media. At the time of the AAT1 hearing, he said that he was studying a Diploma of Film and Television at TAFE on a full-time basis, attending nine hours per week face to face.
Before this Tribunal, Mr Di Fiore said that he had stopped doing that sometime in 2015. He denied stopping it to improve his chance of getting portability. The Tribunal finds that he has been able to complete courses at TAFE with some assistance.
Dr Hampshire arranged jobs for him in a food market and at a call centre. Mr Di Fiore said that he left the latter because he could not do the work as it was too stressful. Because the Tribunal does not accept that Mr Di Fiore’s evidence is reliable, it does not accept that he was unable to do to the work.
The Tribunal has also taken into account the JCAs in evidence which support that finding.
The Tribunal does not accept that Mr Di Fiore’s severe impairment, being his intellectual disability, would prevent him from performing any work independently of a program of support within the next five years.
For the above reasons, the Tribunal affirms the reviewable decision.
DECISION
The Tribunal affirms the reviewable decision, that is, Mr Di Fiore does not qualify for the maximum portability period for the DSP that is an unlimited period.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
...............[sgd].........................................................
Associate
Dated: 4 July 2018
Date of hearing: 27 October 2010 Applicant: In person Solicitors for the Respondent: Ms S Sangha, Department of Human Services
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