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

[2021] AATA 55

Doneski and Secretary, Department of Social Services (Social services second review) [2021] AATA 55 (27 January 2021)

Division:GENERAL DIVISION

File Number(s):      2019/4395

Re:Bill Doneski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:27 January 2021

Place:Melbourne

The Tribunal affirms the decision under review.

........................................................................

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – rotator cuff injury and subacromial bursitis- left talus exostosis and severe left ankle pain – lumbar disc prolapse at L5/S1, sciatica to the left thigh and leg, and loss of cervical lordosis - chronic fatigue-depression - anxiety – whether conditions fully treated and stabilised in the qualification period –  whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member West

27 January 2021

BACKGROUND

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 14 June 2019 affirming the decision of Centrelink to refuse the Applicant’s claim for the Disability Support Pension (DSP).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 25 June 2018.

   ·The application was assessed and refused on 21 August 2018 (Initial Decision).

   ·An authorised review officer (ARO) affirmed this decision on 3 January 2019 (ARO Decision).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 14 June 2019.

   ·The Applicant applied for a Second Tier Review on 23 July 2019.

3. A hearing in relation to the Second Tier Review was held by telephone on 14 October 2020.  The Applicant was self-represented.  The Respondent was represented by Ms Ulrich, a solicitor with the Australian Government Solicitor.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on 14 October 2020 on the basis that it was conducted by telephone. The Tribunal determined pursuant to s.33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) to conduct the hearing by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 25 June 2018 and ended on

   
   

   24 September 2018 (qualification period).

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight, the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in section 94(1) of the Act as assessed during the qualification period.

10. In essence, section 94(1) of the Act requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment; and

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    THE EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 and s.38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents) and the oral evidence of the Applicant.

14. The Tribunal also considered the following documents filed by the Applicant:

    a. Client Exit Letter from MatchWorks dated 19 September 2019 (Exhibit A1); and

    b. Report from Daliborka Lazarevic dated 22 November 2019 (Exhibit A2).

    CONSIDERATION OF ISSUES

15. The Applicant’s claim on review relates to the following conditions:

    (1)rotator cuff injury and subacromial bursitis;

    (2)left talus exostosis and severe left ankle pain;

    (3)lumbar disc prolapse at L5/S1, sciatica to the left thigh and leg, and loss of cervical lordosis;

    (4)chronic fatigue; and

    (5)anxiety and depression.

    THE APPLICANT’S EVIDENCE

16. The Applicant was invited to comment on the statement of his evidence to the Tribunal recorded in the AAT1 decision.[3]  He confirmed that the decision accurately represented his evidence to the Tribunal on that occasion and he confirmed that evidence for the purpose of these proceedings. That evidence was:

    [3] T2 at [13]-[21]

    a.He has been sick with lower back problems since 2006 but he continued working while attending chiropractic treatment for four or five years. He suffered a lot of pain and fatigue. In 2009, he experienced muscle spasm and “bunching” in his left shoulder, and he had an x-ray to rule out cancer. He continued having chiropractic treatment and acupuncture and had his first CT scan on his lower back in 2012, which found he had a prolapsed disc and stenosis. His doctor then found his left leg had shrunk to half the size it should have been and he recommended that he rest. However, the Applicant continued working and by 2013, his problems became permanent, that is the pain did not go away with rest. He started experiencing chronic pain and chronic fatigue.

    b.In March 2016, he had surgery on his ankle which was not successful as he continued to experience pain. Three months later, he had surgery on his left shoulder; a rotator cuff repair. The surgery did not help. He continues to have the same problems in his neck and shoulder and the pain radiates to his arms.

    c.After his ankle and shoulder surgeries, he consulted Cohealth in relation to his lower back. He had an MRI and they discussed his situation. He was told he had a degenerative condition and it was unlikely he will recover to do more than a couple of hours per day of light work. Surgery was not an option for his condition and therefore was not recommended.

    d.He has been living with his pain and disability since. His treatment has involved some physiotherapy and osteopathy. As a result of his chronic pain and limitations, he developed depression and anxiety. He started seeing a psychologist, Mr Ramzi Mohammad, in early 2018. He has not attended a psychiatrist or clinical psychologist.

    e.He has problems sleeping due to pain. He even has problems feeding himself because his pain radiates from his neck and shoulders and down his arms. He lives independently and does minimum activities. For example, he does not cook every day. When he feels up to it, he undertakes domestic chores such as washing the dishes or wiping down the table. He is in pain with most activities. He shops once a fortnight and it is difficult. He carries small items and keeps his shopping bags manageable; he carries up to 3-5 kg. He avoids repetitive lifting. He is able to write as he has no issue with hand movement, he has problems with his shoulders. It is the left side of his body that is a problem from the neck down including his lower back.

    f.He cannot do a lot because fatigue sets in. He goes to his local shops by car, he would not be able to use public transport. He may walk for 20 or 30 minutes but it would be at a slow pace. Generally, he may spend 20 minutes at the shopping centre, and he uses a trolley. His problem is ongoing pain and fatigue.

    g.He saw a consultant rheumatologist, Dr Cecil Hor, in relation to his lower back in 2016. He also saw a physiotherapist from Cohealth but the physiotherapist would not touch his back. He has not had any specific treatment otherwise. He has had no improvement in his low back pain since 2012. He has not attended a specialist since 2016 and has not attended a pain management or rehabilitation program for his back.

    h.He does not believe he has chronic fatigue syndrome, rather he experiences fatigue as a result of his lower back pain and his other injuries. He has spoken to his general practitioner about this but has not attended a specialist. After he walks, he experiences fatigue and then needs to lie down to recover. His fatigue comes on after activity, for example, standing for 10 minutes will bring on fatigue because pressure builds up in his lower back.  He is currently treated with the medications Mobic and Panadol Osteo. In the past, he took Panamax and Voltaren but they did not help. He previously also took strong analgesics, Tramadol and OxyNorm, but he stopped these medications because of side effects including severe constipation.

    i.He also had a left knee problem and had an x-ray of the knee in 2011. He has self-managed this condition and has not had medical follow-up.

17. In cross examination, the Applicant confirmed that he was able to do his laundry by putting clothes in the washing machine and hanging them on a low clothesline outside or on a clothes horse inside. He said he had tried Lyrica on the recommendation of Dr Hor for 3 months in 2016, but it didn’t help.  He confirmed that he had not seen an orthopaedic surgeon of a pain specialist for his back but was now on a waiting list to see a neurosurgeon.  He said he had received injections for his ankle and shoulder but not for his back.

18. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment.  An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment is permanent, that is, fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[4]

    [4] The Act, s 94(1).

    Rotator cuff injury and subacromial bursitis

19. The Respondent accepts that this condition was fully diagnosed, fully treated and fully stabilised during the qualification period and likely to persist for two years and contends that the condition should be attributed an impairment rating of 5 points under Table 2 of the Impairment Tables.

20. The Applicant’s shoulder condition was noted in ultrasound reports which confirmed partial thickness tear of the anterior supraspinatus insertion and mild subacromial bursitis in the left and right shoulders.[5]  Dr Hor noted, in January 2015 that the Applicant was experiencing pain in the left shoulder on abduction past 90 degrees.[6]  Reports by Western Health in May 2016 confirmed that he had undergone left shoulder arthroscopic biceps tenotomy, RCR and SAD.[7]  The Applicant’s continuing left shoulder condition was further noted by Mr. David Bergin, musculoskeletal physiotherapist,  in May 2018[8] and Dr Chavali in June 2018[9] whose reports confirm that he had received cortisone injections and physiotherapy without a significant improvement in his symptoms and recommended continuing physiotherapy, nonsteroidal anti-inflammatory drugs (NSAIDs) and opioids.

    [5] T16 and T17

    [6] T31

    [7] T39

    [8] T59

    [9] T61

21. On the basis of this evidence, the Tribunal accepts that the Applicant’s left shoulder condition was fully diagnosed, stabilised and treated during the qualification period.  The Tribunal is also satisfied that the appropriate Table to assess the impairment resulting from this condition is Table 2 – Upper Limb Function.

22. The Applicant gave specific evidence in relation to the criteria set out in Table 2 and his impairment during the qualification period.  He stated that:

    a.he could pick up a 2-litre carton or a shopping bag;

    b.he had difficulty reaching above his head and experienced muscle spasms;

    c.he could do up buttons, but slowly;

    d.he found it hard to pick up coins;

    e.he was able to pick up an empty cardboard box if it was close to his body, but he has problems extending his arms forward;

    f.he does not tie shoelaces as he uses slip on shoes

    g.it was hard for him to unscrew the lid of a jar;

    h.he could use a computer keyboard and write small amounts with a pen and paper; and

    i.he could turn the pages of a book when reading.

23. On the basis of the Applicant’s own evidence, his impairment does not satisfy the majority of the criteria for a moderate functional impact stated in Table 2, but it does meet the criteria for a mild functional impact. A job capacity assessor (JCA) assessment of the Applicant’s condition conducted in August 2018,[10] during the qualification period, noted that the Applicant had no issues with fine motor skills and was able to live independently and attend to his self-care needs.  This assessment is in broad agreement with the Applicant’s own evidence.  Dr Chavali’s report of June 2018[11] noted that the condition caused the Applicant pain and limited abduction, but the only functional limitation noted was that the Applicant could not lift heavy weights. Mr Bergin did note in May 2018 that the Applicant presented with a very low functional level due to multiple pain presentations but his report was based on self-reporting functional scales filled out by the Applicant.  This self-reported assessment was at odds with the Applicant’s own evidence to the Tribunal and the JCA report, and the Tribunal prefers that evidence.

    [10] T64

    [11] T61

24. On the basis of all the evidence, the Tribunal concludes that a rating of 5 points under Table 2 is an appropriate assessment of the impairment resulting from the Applicant’s left shoulder condition.

    Left talus exostosis and severe left ankle pain

25. The Respondent accepts that this condition was fully diagnosed, fully treated and fully stabilised during the qualification period and likely to persist for two years and contends that the condition should be attributed an impairment rating of 5 points under Table 3 of the Impairment Tables.

26. The medical evidence includes a referral from Dr Chavali dated 18 June 2014 noting pain in the Applicant’s left ankle and knee[12] an MRI report of 30 April 2017[13] and reports of

    
    

    Mr Bergin dated 9 May 2018 confirming that the Applicant had surgery for a debridement of chondral damage of the talus of the left foot in 2015 and cortisone injections in the left ankle to relive pain in January 2015.[14] Dr Chavali stated in his report of 6 June 2018 that the Applicant had surgical excision on March 2016 which had stabilised the pain in the Applicant’s left talus and ankle.[15]

    [12] T12 at p. 101

    [13] T53

    [14] T59

    [15] T61

27. On the basis of this evidence, the Tribunal accepts that the Applicant’s left talus exostosis and severe left ankle pain condition was fully diagnosed, fully stabilised and fully treated during the qualification period and is able to have an impairment rating attributed to it under Table 3 – Lower Limb Function.

28. The Applicant gave specific evidence in relation to the criteria set out in Table 3 and his impairment during the qualification period.  He stated that:

    a.he could walk but not for long and he used a single forearm crutch for support;

    b.he cannot kneel or squat due to his lower back as well as his ankle;

    c.he cannot stand for more than 10 minutes;

    d.he can walk upstairs but with difficulty and he only does so if it is necessary;

    e.he drives to the shops but finds it hard to get in and out of the car;

    f.he can move around the supermarket with the aid of a trolley and is able to shop for between 30 minutes and an hour;

    g.he can walk around outside his house but is limited as to how far he can walk; and

    h.he can stand up from a seating position in a higher chair but finds it difficult in a lower chair.

29. This evidence is generally consistent with the report of the JCA made during the qualification period[16] and consistent with the findings of the Tribunal in the AAT1 decision.[17]

    [16] T64 at pp.233-234

    [17] T2 at p.10

30. On the basis of this evidence, the Tribunal is satisfied that the impairment satisfies the criteria for a mild functional impact, rating 5 points under Table 3. However, the evidence does not establish that the Applicant meets any of the criteria stated in paragraphs (1) (a)-(c) or (2) for a rating of 10 points.  The Applicant was able to use public transport or a motor vehicle and walk around a supermarket and able to walk outside his home, albeit at a slow pace and he was not unable to stand for more than five minutes or use stairs.

31. Accordingly, the Tribunal is satisfied that a rating of 5 points under Table 3 is appropriate for this condition.

    Lumbar disc prolapse at L5/S1, sciatica to the left thigh and leg, and loss of cervical lordosis

1. The Respondent accepts that this condition was fully diagnosed during the qualification period but was not fully treated and fully stabilised and cannot be attributed an impairment rating under the Impairment Tables.

2. An MRI scan in September 2016[18] showed intervertebral disc disease at L5-S1 with bilateral moderate neural exit stenosis. Dr Chavali’s confirmed in 6 June 2018[19] that the Applicant had lumbar disc prolapse at L5/S1, sciatica to the left thigh and leg, and severe low back pain due to restriction of flexion, extension and rotation of the spine. Dr Chavali also noted in her report that the Applicant suffered from chronic neck pain which was likely to be muscular in nature as MRI scans indicated that the Applicant’s cervical spine was normal. Dr Chavali noted that the Applicant’s current treatment included Voltaren (50mg BD PRN), Mobic 7.5mg cap 1-2 cap daily, Oxynorm cap 5mg, physiotherapy and psychotherapy.

   [18] T45

   [19] T61 at 195

3. The Respondent contends that the spinal condition cannot be considered to be fully treated and stabilised if the Applicant had not explored other reasonable treatment options such as seeing a pain management specialist or a spinal specialist for specialist review and treatment recommendations. The Respondent argued that this is especially the case given that while the Applicant had managed his lower back pain with medication, activity modification and intermittent physiotherapy, there has been no reported improvement, and undertaking treatment recommendations from a pain management or spinal specialist may result in significant functional improvement.

4. Mr Silk, advanced practice physiotherapist, noted in November 2016 that the Applicant said he had tried various courses of physiotherapy and other conservative treatments over time but did not find them “particularly helpful”, and that he had tried and failed many different medications. Mr Silk said the Applicant stated he was happy to “manage his back pain himself as he has learned how to do this over time through a combination of activity modification and rest”.[20]

   [20] T49 at p.172

5. The Applicant confirmed in his evidence that he last saw a rheumatologist, Dr Cecil Hor, who recommended conservative treatment in relation to his lower back in 2016 and he has not had any specific treatment otherwise and has not attended a pain management or rehabilitation program for his back. He confirmed that he has had no improvement in his low back pain since 2012.

6. It is clear from the evidence that the Applicant has been self-managing his condition and, at least since November 2016, has not consulted a specialist nor sought assessment from a pain management specialist or a spinal specialist.  His condition has not shown any improvement since 2012.  Mr Bergan  noted in his report of 9 May 2018 that he had tried to provide some symptomatic relief, but it appeared that the Applicant’s condition was resistant to change at this chronic stage.[21]  This indicates that during the qualification period, the Applicant’s condition was unlikely to have stabilised using the self-management and intermittent physiotherapy he had been employing.  It is reasonable to assume that he may have obtained some functional improvement by seeking the assistance of either a pain management specialist or a spinal expert.  In the absence of seeking such assistance, the Tribunal is not satisfied that the Applicant’s condition was fully stabilised or fully treated during the qualification period and it cannot be given a rating under Table 4.

   [21] T59 at p.192

   Chronic fatigue

7. The Respondent contends that this condition was not fully diagnosed, fully treated and fully stabilised during the qualification and cannot be attributed an impairment rating under the Impairment Tables.

8. The Applicant’s evidence to the Tribunal and at the AAT1 hearing was that he did not believe he suffered from chronic fatigue syndrome, rather he said he experiences fatigue as a result of his lower back pain and his other injuries. He said he had spoken to his general practitioner about this, but he had not consulted a specialist.  While the Applicant’s treating doctor, Dr Chavali, noted chronic fatigue syndrome in her medical certificate of 8 December 2014,[22] Dr Ho noted in January 2018[23] that the Applicant had no tender trigger points of fibromyalgia.

   [22] T15

   [23] T31

9. In the absence of a specific diagnosis by an appropriate specialist and given the Applicant’s own evidence and the apparent contradiction between the observations of Dr Chavali and Dr Hor, the Tribunal is not satisfied that the Applicant’s claim of chronic pain can be assessed under the Tables.  The evidence does not establish that the condition was fully diagnosed, fully stabilised or fully treated during the qualification period.

   Anxiety and Depression

10. The Respondent contends that this condition was not fully diagnosed during the qualification period as it had not been diagnosed by a psychiatrist or a clinical psychologist as is necessary under Table 5 of the Impairment Tables and therefore cannot be attributed an impairment rating.

11. The introduction to Table 5 of the Impairment Tables provides that it is necessary that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (which includes a psychiatrist), with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). 

12. The Applicant conceded in his evidence that he had not been assessed by a psychiatrist.  He produced a report[24] from Daliborka Lazarevic, a clinical psychologist confirming a diagnosis of enduring psychological symptomatology and adjustment related difficulties with an enduring state of helplessness. However, the report is dated 22 November 2019, some 14 months after the qualification period. The Applicant did receive some counselling from Mr Ramzi Mohammad, a registered psychologist,[25] and had been diagnosed with severe anxiety and depression and prescribed anti-depressant medication by, his general practitioner, Dr Chavali,[26] but there is no evidence that he had been assessed by a clinical psychologist by the time he made his claim.

    [24] Exhibit A2

    [25] T60

    [26] T28

13. Accordingly, the Applicant’s condition was not fully diagnosed within the qualification period and his claim of anxiety and depression cannot be assessed under Table 5.

    CONCLUSION

14. For the reasons discussed, the Tribunal is satisfied that the Applicant has a physical, intellectual or psychiatric impairment as required by section 94(1)(a) of the Act, but he does not meet the qualification criterion for a DSP under section 94(1)(b) of the Act that he have an impairment which is of 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of his claim.

15. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.

    DECISION

    The Tribunal affirms the decision under review.

I certify that the preceding 46 (forty six) paragraphs are a true copy of the written reasons for the decision of Member Richard West

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

Associate

Dated: 27 January 2021

Date of Hearing:	10 October 2020
Applicant:	Self Represented
Advocate for the Respondent	Elizabeth Ulrick
Solicitors for the Respondent	Services Australia