Elisha and Secretary, Department of Social Services (Social services second review)
[2020] AATA 736
•7 April 2020
Elisha and Secretary, Department of Social Services (Social services second review) [2020] AATA 736 (7 April 2020)
Division:GENERAL DIVISION
File Number:2019/5276
Re:Mr Smith Elisha
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Belinda Pola, Senior Member
Date:7 April 2020
Place:Brisbane
The decision under review is affirmed.
..............................[Sgd]............................................
Senior Member Belinda Pola
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – Whether medical conditions fully diagnosed, fully treated and fully stabilised – Whether 20 points or more under the Impairment Tables during the Relevant Period – Decision under review affirmed.
LEGISLATION
Social Security (Administration Act) 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2ALD 60; 46 FLR 409
Fanning and Secretary, Department of Social Services [2014] 144 ALDA 133; AATA 447
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Livermore and Secretary, Department of Social Services [2013] AATA 747
Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379
REASONS FOR DECISION
Belinda Pola, Senior Member
7 April 2020
BACKGROUND
On 1 July 2018[1] the Applicant, Mr Smith Elisha[2], signed an Application for the Disability Support Pension (‘DSP’), which was received by the Department of Human Services (the ‘Department’) on 3 July 2018[3].
[1] Exhibit 1, T38, page 214.
[2] The Tribunal notes there is some confusion as to the Applicant’s name, with the Applicant confirming in the hearing that they were to be referred to as “Mr Elisha Smith”. The Tribunal has referred to the Applicant by the name outlined in this paragraph of the Decision. This is consistent with the Application which was completed by the Applicant and submitted to the Tribunal (per Exhibit 1, T1, page 1).
[3] Exhibit 1, T38, page 183.
On 19 October 2018[4], the Applicant was advised by the Department that their claim for the DSP was rejected. The decision to reject the Applicant’s claim for the DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Department on 13 February 2019[5].
[4] Exhibit 1, T41, pages 224 to 225.
[5] Exhibit 1, T42, pages 226 to 232.
On 9 April 2019[6], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject the claim for DSP. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for DSP on 17 July 2019[7].
[6] Exhibit 1, T43, pages 233 to 234.
[7] Exhibit 1, T2, pages 3 to 44.
The Applicant applied to the Tribunal for a second review of this decision on 20 August 2019[8].
[8] Exhibit 1, T1, pages 1 to 2.
JURISDICTION
This is an Application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
The Applicant’s claim of 3 July 2018 has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal.
In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 3 July 2018.
ISSUES
The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 3 July 2018, and ending 13 weeks later on 2 October 2018[9].
[9] The Qualification Period is discussed in later paragraphs of this Decision.
For the purposes of this Application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (the ‘Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[10].
[10] Exhibit 3, page 9, paragraph 4.22.
The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:
(a)whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ‘Determination’) within the Qualification Period; and
(b)if so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Act:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.
Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
It is the Tribunal’s role to stand in the shoes of the original decision-maker[11] and determine whether the decision was the correct or preferable one on the material before the Tribunal[12]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[11] Faulkner and Comcare [2007] AATA 1541 [27].
[12] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 46 FLR 409, 419 per Bowen CJ and Deane J.
Section 6 of the Determination provides that “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[13]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[14].
[13] Section 6(1) of the Determination.
[14] Section 6(2) of the Determination.
An impairment rating may only be assigned to an impairment if[15]:
(a)the person’s condition causing the impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
[15] Section 6(3) of the Determination.
Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[16]:
·be fully diagnosed by an appropriately qualified medical practitioner; and
·be fully treated; and
·be fully stabilised; and
·be more likely than not, in light of available evidence, to persist for more than 2 years.
[16] Section 6(4) of the Determination.
When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[17]:
(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 treatment is continuing or is planned in the next 2 years.
[17] Section 6(5) of the Determination.
A condition is considered fully stabilised if[18]:
(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
(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 2 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.
[18] Section 6(6) of the Determination.
Reasonable treatment is a treatment that[19]:
(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.
[19] Section 6(7) of the Determination.
Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.
In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
While s11(1)(c) of the Determination provides that in assigning an impairment rating “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”.
Continuing inability to work
As previously detailed in paragraph 10 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A severe impairment is defined in s94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).
QUALIFICATION PERIOD
Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[20].
[20] Part 2, clause 4(1)(d) of the Administration Act.
For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 3 July 2018[21], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 2 October 2018.
[21] Exhibit 1, T38, page 183.
This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[22].
[22] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services [2014] 144 ALDA 133; AATA 447 [31].
CONSIDERATION
The Application was heard in Brisbane on 17 March 2020, with the Applicant appearing via telephone, and the Respondent represented in person by Ms Gillian Gehrke. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)
In the Applicant’s claim for the DSP signed on 1 July 2018, the following impairments were listed in the medical details section[23]:
“R – DISLOCATED WRIST.
L – BROKEN WRIST.
LEFT 4TH FINGER BROKEN.
POST TRAUMA FROM ACCIDIENT.
ARTHRITIS.”
[23] Exhibit 1, T13, page 117.
The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the Qualification Period in terms of s94(1)(a) of the Act, a point which was accepted by the Respondent[24]. The Tribunal finds the following impairments relevant to this Application:
(a)Upper limbs condition;
(b)Spinal condition;
(c)Lower left leg pain; and
(d)Mental health condition.
Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
[24] Exhibit 3, page 9, paragraph 4.22.
The Tribunal will consider each impairment identified in the abovementioned paragraph in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.
(a) Upper limbs condition
The Tribunal heard evidence from the Applicant that he was involved in a motor vehicle accident on 29 May 2017 in Tanzania, and as a result had sustained a right wrist fracture, a left wrist fracture, and a fracture to their fourth finger on their left hand[25]. The Applicant was initially treated in Hospital in Tanzania, and upon return to Australia was admitted into Logan Hospital on 4 June 2017[26].
[25] Transcript, page 12, lines 26 to 43.
[26] Exhibit 1, T6, pages 83 to 91. The Tribunal notes that the Logan Hospital Emergency Department Clinical Summary refers to the Applicant as “In Uganda on holiday”.
In regards to the diagnosis of the Applicant’s upper limbs condition, the Tribunal notes the following submitted evidence:
(a)Clinical notes of 4 June 2017 from the Applicant’s admission to Logan Hospital, including:
(i)An X-Ray undertaken during admission, stating, “Fracture dislocation right wrist, (reduced), comminuted fracture of radial styloid and dorsal lip of distal radius. Fracture of tip of radial styloid and ulnar styloid,? Triquetral fracture. Mallet fracture of distal phalanx of left ring finger, with subluxation of DIPJ. No fracture of left shoulder, left knee and ankle seen. Imp: Comminuted fracture dislocation of right wrist (reduced), fracture of tip of radial and ulnar styloid of left wrist, Mallet fracture of left ring finger” [27].
[27] Exhibit 1, T7, page 99.
(ii)
Clinical notes from the admission relating to an examination by
Dr Benjamin Kenny, Orthopaedic Surgeon, stating, “Dr Kenny informed patient that the best choice for patient would be surgery. Due to social situation, the decision was made by patient and Dr Kenny for a LMT plate of R wrist and fix of L mallet deformity… Plan: … Booked on trauma list for time period of 1-2 weeks”[28].
(iii)Clinical notes which state that the Applicant had a planned operation cancelled, “Cancelled from OT Wednesday due to time/staff constraints … Will need Trauma Booking for L Mallet Finger Fixation”[29].
(b)A letter of 31 July 2017 from Dr Kenny, stating, “… we are in a difficult situation in which we were unable to perform the surgery initially due to time constraints and nursing cancelling his theatre case and then further complicated by the fact that he failed to attend to his rebooking of his operation. He is now being treated for 8 weeks non-operatively with a cast to his right side and a brace to his left. The x-rays today confirm that the right radial carpal joint has remained enlocated and therefore we are commencing hand therapy in a range of movement exercises. I have placed him in a Grenace splint to his right side with ongoing review in a further 2 weeks time. His left mallet finger to his ring finger is still subluxed and is chronic in nature and will require further intervention if his pain profile does not settle down. His radial styloid and ulnar styloid facture remains un-united; however, I believe that at this juncture it is important that we focus on functionality. I have advised him that if pain is ongoing, we may have to perform a radial styloidectomy to help with his pain relief. There is no evidence of any distal radial ulnar joint subluxation and he options a full rotation of profile. I will continue to keep you informed of his progress with a further review in 2 weeks time”[30].
(c)An undated hand written letter from Dr Kenny, stating, “The initial plan was surgical fixation, however theatre was cancelled by nursing staff due to time constraints, and Mr Elisha did not turn up for theatre the following week. Therefore, we have managed these injuries conservatively with casts/splints and therapy. The plan is to continue non-operative management. However, long term, Mr Elisha will likely require salvageable procedures such as a wrist anthmodesis and DIPJ Arthrodesis at some point. I will continue to review him”[31].
(d)An Independent Medical Report of 5 September 2018 by Dr Mark Shaw, General Orthopaedic Surgeon stated the following in relation to the Applicant’s conditions, “he sustained fracture dislocation of the left distal radius and radiocarpal joint with ulna styloid fracture, minimally displaced fractures of the left radial styloid and ulna styloid with triquetral fracture, and displaced intra-articular fracture of the distal phalanx left ring finger… [the Applicant] has developed post-traumatic osteoarthritis of the right and left ring finger DIP joint as a result of the injuries. He requires a right wrist arthrodesis and fusion left ring finger DIP joint”[32].
[28] Exhibit 1, T7, page 99.
[29] Exhibit 1, T7, page 100.
[30] Exhibit 1, T8, page 104.
[31] Exhibit 1, T17, page 125. Whilst this letter was undated, it was produced 3 months post the Applicant’s injury, in September of 2017.
[32] Exhibit 1, T2, page 21.
The Tribunal is satisfied based on the opinions of Dr Kenny (Orthopaedic Surgeon), and Dr Shaw (General Orthopaedic Surgeon), that the Applicant’s upper limbs condition was fully diagnosed prior to the Qualification Period in accordance with the Determination. The Tribunal notes the diagnosis made by Dr Kenny and Dr Shaw is consistent with the requirement of Table 2 – Upper Limb Function in the Determination[33], as they are both appropriately qualified medical practitioners.
[33] The Determination, page 66.
The Tribunal notes that on 4 May 2018, Dr Tarunisha Sharma, the Applicant’s Rehabilitation Physician, advised through a letter to the Applicant’s treating General Practitioner, Dr Elizabeth Hayem that the Applicant was, “due to get a second opinion from the orthopaedic team at The Wesley Hospital for the management of his wrist injuries… I will review him again after his appointment with the Orthopaedic team at The Wesley Hospital”[34].
[34] Exhibit 1, T25, page 143.
The Applicant gave evidence to the Tribunal that they did attend The Wesley Hospital, and obtained a second opinion in regards to the upper limbs condition[35]. The Applicant’s evidence was the procedure would be cost prohibitive given their financial circumstances, and (in the Applicant’s opinion), there was a chance that the surgery may improve their condition, it was not guaranteed to improve their condition[36]. The Tribunal notes that no corroborating medical evidence was submitted by the Applicant to verify the examination which is claimed to have been undertaken at The Wesley Hospital.
[35] Transcript, pages 16 to 18.
[36] Transcript, page 17, lines 6 to 26.
In establishing whether the Applicant’s upper limbs condition was fully treated and fully stabilised prior to or during the Qualification Period, the Tribunal notes the following submitted evidence:
(a)The Applicant’s treating General Practitioner, Dr Elizabeth Hayem, in a Medical Certificate of 6 March 2017 (covering the period of 23 August 2017 to 23 November 2017), regarding the Applicant’s, “bilateral lower arm post traumatic arthritis”, offered a prognosis that the symptoms would last, “More than 24 months”, and that, “chronic pain from bilateral wrist fractures and L) finger fracture. One remains non-united. The other is relocated. This has now become chronic arthritis. He will continue seeing specialists for review and trial of certain hand therapies. There is significant pain due to the ongoing fractures which are still healing. cannot use hands at all at this stage”. Further Dr Hayem mentioned that treatment included, “ongoing specialist review, possible surgery in the future”[37].
(b)A letter from Dr Hayem, of 11 September 2017 stating, “Diagnosis: Communited Fracture of R) wrist and dislocation AND Fracture L) ulnar styloid and radius tip … Prognosis: These fractures are difficult to predict prognosis. There is a risk that they will never heal (permanent non-union). If they do heal, the will most likely develop permanent post-trauma arthritis. The specialists are still reviewing him and it is up to them if they will recommend more surgery... Diagnosis: Fracture L) 4th digit – Mallet Fracture … Prognosis: Permanent condition unless the specialists consider surgery is appropriate (still waiting on their review). But most likely he will develop permanent post-trauma arthritis if the fracture heals”[38]. [Errors in original]
(c)A letter to Dr Hayem of 9 November 2017, stating, “Mr Elisha was assessed in his home by physiotherapy and occupational therapy however has identified no functional concerns and goals. He did express difficulties with cognition and transportation”[39].
(d)In a Medical Certificate of 14 March 2018 and 13 June 2018, the Applicant’s General Practitioner, Dr Anoop Raman stated that in relation to the Applicant’s “bilateral lower arm post traumatic arthritis”, he offered a prognosis that the symptoms would last, “More than 24 months”, and that, “chronic pain from bilateral wrist fractures and L) finger fracture. One remains non-united. The other is relocated. This has now become chronic arthritis. He will continue seeing specialists for review and trial of certain hand therapies. There is significant pain due to the ongoing fractures which are still healing. cannot use hands at all at this stage”. Further Dr Raman mentioned that treatment included, “ongoing specialist review, possible surgery in the future”[40].
(e)A letter from Mater Hospital of 19 June 2018 addressed to the Applicant confirmed that they had been transferred to their waitlist for specialist care for the Plastic / Reconstructive / Burns clinic[41].
(f)A letter from Dr Raman of 27 June 2018 stating, “He [the Applicant] had multiple injuries to both his wrists and left hand. He is under care of Specialist orthopaedic surgeons and Rehabilitation specialist from different hospitals including Logan, PAH and Mater. His wrists are currently non functional and will need extensive surgeries to fix his problem”[42].
(g)A Medical Report of 5 September 2018 by Dr Shaw, stating the Applicant, “…requires a right wrist arthrodesis and fusion of the left ring finger DIP joint… [the Applicant] will develop post-traumatic osteoarthritis of the right and left ring finger DIP joint. He is in need of fusions to these joints. He will be better off with fusions performed in the near future rather than later on due to the severity of pain from his injuries”[43].
(h)A Job Capacity Assessment Report completed by an assessor (Rehabilitation Counsellor) on 21 September 2018 commented in relation to the Applicant’s upper limbs condition, “While the clients functional loss is severe and he has engaged with multiple specialists there is still a likelihood of further treatment which will improve his functional capacity. This condition has been deemed fully diagnosed but not fully treated or stable for the purpose of this assessment”[44].
[37] Exhibit 1, T9, page 105.
[38] Exhibit 1, T11, pages 112 and 113.
[39] Exhibit 1, T14, page 122.
[40] Exhibit 1, T18, page 126; and Exhibit 1, T33, page 152.
[41] Exhibit 1, T35, page 155.
[42] Exhibit 1, T37, pages 181 to 182.
[43] Exhibit 1, T2, page 20.
[44] Exhibit 1, T40, page 219.
Proposed treatment for the Applicant’s upper limbs condition, put forward by two Orthopaedic Surgeons (Dr Kenny and Dr Shaw) and supported by two General Practitioners (Dr Hayem and Dr Raman), is that the Applicant required surgery for their condition. The Tribunal notes that the recommendation that the Applicant requires surgery for their upper limbs condition was not supported by the Applicant’s Rehabilitation Physician, Dr Sharma.
In a letter of 15 June 2018, Dr Sharma, stated:
“He was managed conservatively in a right wrist cast and left wrist brace for 10 weeks. Repeat investigations performed after this at Logan Hospital revealed non-union of the right hand, radial and ulnar styloid fractures and a subluxed right finger. He was offered an option of surgical fusion of right wrist which he decided not to avail as it was unlikely to guarantee an improvement in his prognosis. He underwent a period of hand therapy and is currently on an appropriate analgesic routine. Based on his overall progress so far, any further treatment interventions are unlikely to guarantee any improvement in his chronic pain status or function of both upper limbs”[45].
[45] Exhibit 1, T34, page 153 and 154.
The Tribunal agrees with the Respondent’s contention that that the medical opinion expressed by Orthopaedic Surgeons Dr Kenny and Dr Shaw, regarding the recommended treatment (surgery) for the Applicant’s upper limbs condition is the preferred opinion over Dr Sharma as a rehabilitation physician[46]. Further to this, the Tribunal is of the view that the recommended surgeries for the Applicant’s upper limbs condition would be considered “reasonable treatment” in accordance with the Determination.
[46] Exhibit 2, paragraph 4.45, page 12.
When assessing whether the Applicant’s condition was fully treated, the Tribunal has regard to numerous decisions which have clearly established that a condition is not fully treated if treatment is required after the Qualification Period.
In Livermore and Secretary, Department of Social Services [2013] AATA 747, Senior Member Toohey at paragraph 20 stated:
“As Mr Livermore was still awaiting surgery during the relevant period, his back condition was not fully treated and stabilised during that time, and it cannot be given a rating on the Impairment Tables”.
In Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379, Member Breen at paragraphs 34 and 35 stated:
“Given that the surgery for the right-sided hernia took place after the DSP qualifying period, it is clear that at the time of Mr Toma’s DSP claim, this condition had not been fully treated. As of October 2012, Mr Toma had not had surgery for his left-sided hernia. Therefore, Mr Toma’s left-sided hernia had also not been fully treated at the time of his DSP claim”.
Further, the Tribunal notes that Dr Sharma referred to the Applicant as suffering “chronic pain” in relation to their upper limbs condition.[47] The Tribunal was not presented with evidence regarding treatment for this (such as, for example, referral and participation in a multi-disciplinary pain management program) prior to or during the Qualification Period for this Application.
[47] Exhibit 1, T34, pages 153 and 154.
The Tribunal is of the view that the Applicant’s upper limbs condition was not fully treated, and in turn not fully stabilised prior to or during the Qualification Period for this Application in accordance with the Determination.
As the Tribunal has found that the Applicant’s upper limbs condition was not fully treated and in turn not fully stabilised prior to or during the Qualification Period, the Tribunal is unable to assign an Impairment Rating for this condition.
(b) Spinal condition
The Tribunal notes the following submitted evidence in relation to the Applicant’s spinal condition:
(a)A Hospital Emergency Department Admission letter, from Princess Alexandra Hospital dated 9 April 2018, by a Clinician stating, “… The presenting problem was Back pain. The diagnosis was Thoracic back pain… He has requested to be referred to the PAH Orthopaedic surgeons for second opinion. We note that he has previously been referred, but failed to attend his outpatient appt in January 2018 and was discharged. Could you please re-refer him for review if he would still like to see them? He is due to see a pain management specialist on Friday and will discuss with then regarding ongoing pain management strategies[48]”.
(b)A letter of 22 May 2018 from Metro South Health advising the Applicant that their referral to the Back Assessment Clinic at Princess Alexandra Hospital had been triaged and that an appointment would take place within 90 days[49].
(c)A CT scan report of 9 June 2018 by Dr Chris Alcock which stated, “There is minor degenerative lumbar spondylosis. No significant lumbar spinal canal stenosis. Increased soft tissue thickening involving the left L3/L4 neural foramen may represent a small disc extrusion or less likely synovial cyst. Further evaluation with MRI is advised to more accurately define. This may be causing irritation to the exiting left L3 nerve root. No other significant neural compromise identified”[50].
(d)A Job Capacity Assessment Report completed by an assessor (Rehabilitation Counsellor) on 21 September 2018 commented in relation to the Applicant’s spinal condition, “Unidentified medical report from the PA Hospital identifies Chronic Thoracic Back Pain with left lower leg reduced sensation over the medial aspect. There is no evidence of specialist engagement, formal diagnosis or treatment in relation to this condition”[51].
[48] Exhibit 1, T20, page 128.
[49] Exhibit 1, T28, page 146.
[50] Exhibit 1, T32, page 151.
[51] Exhibit 1, T40, page 222.
The Tribunal is of the view that there is a lack of evidence confirming a diagnosis of the Applicant’s spinal condition, in accordance with Table 4 – Spinal Function of the Determination[52].
[52] The Determination, page 20.
In the absence of a diagnosis for the Applicant’s spinal condition prior to or during the Qualification Period for the Application, the Tribunal is not able to assign an Impairment Rating for this condition.
(c) Lower left leg pain
The Tribunal notes the following submitted evidence in relation to the Applicant’s lower left leg pain:
(a)Clinical notes of 14 June 2017 from the Applicant’s admission to Logan Hospital, stating, “… Also complaining of pain and swelling in left leg… Left leg swelling, some tenderness of medial side of knee, tenderness along the whole length of tibia, tenderness of both medial and lateral malleolus, some limitation of ROM of ankle, NO joint line tenderness of knee, ACL, PCL, MCL, and LCL clinically intact… ? possible DVT of left leg… USG to rule out DVT of left leg…”[53]. During the hospital admission, an ultrasound was undertaken which confirmed there was no Deep Vein Thrombosis (‘DVT’) of the Applicant’s left leg, and clinical notes further confirmed no fracture existed in the left knee or left ankle[54].
[53] Exhibit 1, T7, page 98.
[54] Exhibit 1, T7, page 97 and 99.
(b)
A letter from Dr Hayem, the Applicant’s treating General Practitioner of
11 September 2017, stating, “… Not seeing specialist for this yet. Preliminary diagnosis by GP Dr Elizabeth Hayem … Pain from L) knee down to L) ankle since accident. Pain is staying the same. He is currently taking Targin 15/7.5mg, Panadol and over the counter anti-inflammatories. As this is preliminary diagnosis we are yet to complete investigations for this. [the Applicant] reports fluctuating intensity and numbness – at its worst he is unable to stand and walk. Prognosis: Difficult to predict – unsure. As the diagnosis is currently under process”[55].
(c)An Assessment Services Recommendation for Disability Support Pension medical eligibility report of 21 September 2017 undertaken by a Psychologist and an Exercise Physiologist stated in relation to the Applicant’s lower left leg pain, “As per report from GP, Doctor Elizabeth Hayem (11/9/17), the client’s lower limb issues are still being diagnosed”[56].
(d)
A letter from the Princess Alexandra Hospital Emergency Department of
9 April 2018 from a clinician stating, “Thank you for the ongoing care of [the Applicant], who presented to the PAH ED with the following issues … 3. Left lower leg reduced sensation over medial aspect ?secondary to sciatica … He has requested to be referred to the PAH Orthopaedic surgeons for second opinion… He is due to see his pain management specialist on Friday and will discuss with then regarding ongoing pain management strategies”[57]. [Errors in original] [Tribunal insertions for clarity]
(e)A Job Capacity Assessment Report completed by an assessor (Rehabilitation Counsellor) on 21 September 2018 commented in relation to the Applicant’s spinal condition, “Unidentified medical report from the PA Hospital identifies Chronic Thoracic Back Pain with left lower leg reduced sensation over the medial aspect. There is no evidence of specialist engagement, formal diagnosis or treatment in relation to this condition”[58].
[55] Exhibit 1, T11, page 113.
[56] Exhibit 1, T12, pages 114-115.
[57] Exhibit 1, T20, page 128.
[58] Exhibit 1, T40, page 222.
The Tribunal is of the view that there is a lack of evidence confirming the diagnosis of the Applicant’s lower left leg pain, in accordance with Table 3 – Lower Limb Function of the Determination[59].
[59] The Determination, page 17.
In the absence of a diagnosis for the Applicant’s lower left leg pain prior to or during the Qualification Period for the Application, the Tribunal is not able to assign an Impairment Rating for this condition.
(d) Mental health condition
Evidence submitted to the Tribunal regarding the Applicant’s mental health condition included a report of 27 August 2019 from the Applicant’s psychologist, Alan Harrison, which stated that the Applicant, “…is suffering anxiety, depression, and stress arising from these injuries, as well as the responsibility of being a sole carer…”[60].
[60] Exhibit 7 (one page).
Table 5 – Mental Health Function of the Determination expressly stipulates that the diagnosis of a mental health condition (or impairment) “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)”[61].
[61] The Determination, page 22.
The Tribunal notes that Mr Harrison is registered with the Australian Health Practitioner Regulation Agency (‘AHPRA’) as a Psychologist[62].
[62] Exhibit 9; and refer
In the absence of evidence from the Applicant of a diagnosis made by a psychiatrist or evidence from a clinical psychologist, prior to or during the Qualification Period; the Tribunal finds that the Applicant’s mental health condition was not fully diagnosed. Therefore the Tribunal is not able to assign an Impairment Rating for the Applicant’s mental health condition.
Summary - Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the Qualification Period, and therefore does not satisfy s94(1)(b) of the Act.
Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Belinda Pola, Senior Member
.............................[Sgd]........................................
Associate
Dated: 7 April 2020
Date of hearing: 17 March 2020 Applicant: Mr Smith Elisha (telephone) Solicitors for the Respondent: Ms Gillian Gehrke
Department of Human Services
“ANNEXURE 1 – EXHIBIT REGISTER”
Exhibit Number
Description
1
Section 37 T Documents, pages 1 to 278, received 19 September 2019.
2
Applicant’s Statement, paged 1 to 7, received 8 October 2019.
3
Respondent’s Statement of Facts, Issues and Contentions, including Attachment A and B, received 30 January 2020.
4
Applicant’s Statement of Facts, issues and Contentions, paged 1 to 5, received 5 February 2020.
5
Report from Sheryl Pahor APA Musculoskeletal Physiotherapist, 1 page, received 14 October 2019.
6
Report from Dr Tarunisha Sharma, Rehabilitation Physician, 2 pages, received 28 October 2019.
7
Report from Mr Alan Harrison, Psychologist, 1 page, received 28 October 2019.
8
Report from Sion Bassingthwaighte, Physiotherapist, 1 page, received 14 October 2019.
9
Confirmation of registration as a psychologist, Mr Alan Frederick Harrison,
1 page.
0
5
0