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

Esposito and Secretary, Department of Social Services (Social services second review) [2017] AATA 907 (26 April 2017)
Division:General Division
File Number(s): 2016/4880
Re: Mr Antonio Esposito
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Anna Burke, Member

Date:26 April 2017
Place:Melbourne

The Tribunal affirms the decision under review.
...................................[sgd].....................................
Member
SOCIAL SECURITY – disability support pension –– whether qualified – lumbar spine disorder fully diagnosed, treated and stabilised – depression not fully diagnosed – whether impairment attracts rating of 20 points or more under impairment tables – 10 impairment points assigned for spinal condition – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; ss 63, 80 & 118(13)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paras 6(3)(a) & 6(4)
Social Security Act 1991; ss 26, 27(3) & 94(1)
REASONS FOR DECISION
Anna Burke, Member
26 April 2017
INTRODUCTION

Mr Antonio (Tony) Esposito (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 12 April 2016 Centrelink found that Mr Esposito was not entitled to DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Social Services.
The application was heard on 23 March 2016. Mr Esposito was self-represented. Mr Pietro Nacion, solicitor in the employ of Sparke Helmore Lawyers, appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Esposito:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Esposito, who is now 62 years of age, has applied unsuccessfully for DSP on numerous occasions on the basis of his chronic back, elbow and shoulder pain and other numerous medical conditions. Mr Esposito worked as a butcher and boner from the age of 17. His back pain is the result of a work place injury which occurred around 1 October 2008. He has not worked full time since.
On the 10 December 2015 Mr Esposito made an application for DSP. On the 18 December 2015 Centerlink wrote to Mr Esposito seeking further medical advice for his DSP claim.
On the 11 April 2016 Centrelink had a job capacity assessment (JCA) conducted on Mr Esposito. The JCA report found that:
(a)spinal condition was fully diagnosed, treated and stabilised assigned 10 points under Table 4 of the Impairment Tables, Spinal Function;
(b)depression was diagnosed, but had not been fully treated and stabilised as it had not been verified by a psychiatrist or clinical psychologist;
(c)diabetes was diagnosed, but not fully treated and stabilised;
(d)epicondylitis was fully diagnosed, but not fully treated and stabilised;
(e)shoulder condition was temporary;
(f)hypercholesterolemia was fully diagnosed, treated and stabilised and assigned nil points as it did not impact on his ability to work;
(g)oesophageal reflux condition was fully diagnosed, treated and stabilised and assigned nil points as it did not impact on his ability to work; and
(h)Mr Esposito was assessed as having a baseline work capacity of 15-22 hours per week within two years (with intervention).
On the 12 April 2016 Centrelink wrote to Mr Esposito to inform him that his DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.
On 3 June 2016, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision. On 24 August 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO. On 12 September 2016 Mr Esposito sought a review of the AAT1 decision by this division of the Tribunal. In accordance with Schedule 2, section 4(1) of the Administration Act Mr Esposito’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 10 March 2017.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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)the person has a continuing inability to work as defined by the Act.
It is agreed that, at the time of application Mr Esposito suffered from medical impairments arising from a lumbar spine condition, depression, left elbow pain, shoulder pain, diabetes, hypercholesterolemia, and an oesophageal reflux condition, that caused impairment and he therefore satisfied s 94(1)(a) of the Act.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
Section 6(4) of the Impairment Tables state that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
In addition, the introduction to Table 5 of the Impairment Tables, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
The determinative issue in this review is whether, at the time of cancellation, Mr Esposito suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included two sets of documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”, the respondent’s application for review and an additional medical report tendered at the hearing.
DOES MR FARRELL HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for disability support pension, in the first instance, that a person suffers from an impairment.
The parties accept that Mr Esposito is suffering from a lumbar spine condition, depression, left elbow pain, shoulder pain, diabetes, hypercholesterolemia, and oesophageal reflux condition. Accordingly, the Tribunal finds that Mr Esposito is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR ESPOSITO HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Lumbar Spine Disorder
Dr Moran, general practitioner, completed a medical report for Mr Esposito’s DSP claim on 14 October 2014 and provided additional advice as requested by Centrelink on 9 December 2014, 6 January 2016, and 10 November 2016. Each report indicates that Mr Esposito is suffering from spinal stenosis as a result of a work place injury. The reports indicated Mr Esposito suffers from spinal stenosis due to the combination of broad based diffuse disc bludge, central disc protrusion and bilateral ligamentum flavum hypertrophy.
An MRI of the lumbar spine dated 27 April 2011 found significant compression of the T12 vertebral body, broad based posterior disc bulge at L3/L4, L5/S1 and L4/L5 with possible impingement of the left L4 and L5 nerve roots.
On 14 October 2014 Dr Moran reported that Mr Esposito managed his condition with exercise and pain relief, and that surgery was not currently proposed. Further, Mr Esposito was unable to bend, lift, stand or sit for prolong periods and had poor endurance.
On 18 September 2015 Dr Moran further reported that Mr Esposito has developed paraesthesia in both legs with right leg sciatica.
A JCA report dated 11 April 2011 found spinal condition could only be awarded a rating of 10 points as Mr Esposito could sit for longer than 10 minutes; that he was able to drive a car for 30 minutes; he was unable to sustain overhead activity; he had difficulty moving his head to look in all directions; and that he was unable to bend forward to pick up a light object.
Mr Esposito reported during the JCA interview that he is able to self-care but that his wife does all the house work and he can no longer do maintenance on his home. He reports he now has sciatic pains and sensations in his legs, and these are worsening over time. He reports that drives his car locally but tires after more than 5 minutes.
Depression
On 12 December 2014 Dr Moran diagnosed depression which caused minimal or limited impact on Mr Esposito’s ability to function. Dr Moran said that this was a result of a number of family issues that are still present and unlikely to resolve, as well as chronic back pain.
Mr Esposito saw Mr Robert Leardi, clinical psychologist, who observed symptoms of depression and anxiety as a result of complex family issues. Mr Leardi reports that Mr Esposito’s inability to see his grandchildren was having a severe impact on his mental health but that he could not diagnose depression as Mr Esposito’s condition was mild.
Left elbow
A medical certificate from Dr Moran dated 12 December 2014 reported temporary lateral epicondylitis, causing pain and tenderness in the left elbow resulting in Mr Esposito being unable to lift his arm.
An MRI dated 31 January 2016 confirmed Dr Moran’s diagnoses, finding acute tendinosis of the common extensor with a partial tear in left elbow which may be amenable to injection with corticosteroids.
A medical report from Dr Moran on 6 January 2016 reported chronic problems with the left elbow that has not responded to treatment with nonsteroidal anti-inflammatory drugs and steroid injections.
Shoulder
A medical certificate from Dr Moran dated 16 November 2015 reported an increase in pain in Mr Esposito’s left shoulder which was causing him restriction of movement and the inability to raise his arm above his head.
Diabetes
A report from Dr Moran 9 December 2015 noted a recent diagnosis of type 2 diabetes currently being managed with diet.
Additionally, a report from Dr Moran 6 January 2016 indicated that medication has now been introduced to better manage the type 2 diabetes.
Hypercholesterolemia
A report from Dr Moran 6 January 2016 indicates Mr Esposito is suffering from hypercholesterolemia which is currently controlled by diet and medication.
Oesophageal reflux condition
Dr Moran’s report also indicated that Mr Esposito was suffering from oesophageal reflux condition resulting in chronic GORD (gastro-oesophageal reflux disease) symptoms, which were currently being controlled by medication.
DOES MR ESPOSITO HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr Esposito must not only satisfy the requirement that he has an impairment with a rating of 20 points or more, he must also have actively participated in a program of support within the meaning of section 94(3C) prior to the Applicant’s claim for DSP. If he has not done so, he cannot be found to have a continuing inability to work.
Mr Esposito has completed a program of support with Disability Employment Services, of 18.5 months.
FINDINGS
Mr Esposito contends that given all the medical evidence and his extensive medical history that he has provided sufficient evidence to demonstrate he meets the criteria to be awarded a DSP.
At the hearing, Mr Esposito presented as a pleasant genial character. He gave testimony that he has worked hard all his life to provide for his family; that he loved the meat industry and took great pride in his work; that he was adamant he would rather be working than sitting around at home; that he could be earning a great deal more working and that his trade had provided extremely well for himself and his family; he had a very nice home and been able to take many overseas trips. He had attempted to obtain employment in the meat industry, as he has many contacts there, but everyone has told him “Tony you would be a liability.”
Mr Esposito stated at the hearing that he has great faith in his general practitioner, Dr Moran who he has been consulting for many years and that he relies on his advice in respect of undertaking any form of treatment.
The respondent has contended in the Statement of Facts and Contentions, and reiterated during the hearing, that Mr Esposito has not undertaken all treatment to fully stabilise and treat his lumbar spine condition. Mr Esposito affirmed at the hearing that he was not keen for the surgery that he had not been guaranteed that it would resolve his issues. In addition to this, he contended that no one could guarantee surgery would make his pain go away. Mr Esposito had not seen another specialist as his doctor had not recommended doing so. Mr Esposito takes his doctor’s advice on medical matters at all times and “if Doctor says go, he goes”. The Tribunal accepts that Mr Esposito’s condition has been fully diagnosed, stabilised and treated that his decision to take a conservative approach to his spinal condition is reasonable and valid.
Mr Esposito’s medical conditions of diabetes, hypercholesterolemia, and oesophageal reflux condition have all been awarded nil points under the Impairment Tables as they do not impact on his ability to work. The Tribunal concurs with this finding. Mr Esposito did state at the hearing that his diabetes has greatly impacted his life as he now takes a great deal of medication and has had to change his diet, but these are not sufficient to be recognised under the Impairment Tables.
Mr Esposito’s depression can be awarded points under Table 5 Impairment Tables, as it has been observed by a clinical psychologist and Mr Esposito has subsequently been placed on anti-depressants. Despite being prescribed anti-depressant medication, there is no supporting diagnosis of depression from his treating clinical psychologist.
Mr Esposito stated at the hearing that seeing the counsellor and taking anti-depressant medication had been of great benefit to him. He previously was getting angry and upset very easily causing tension at home, screaming at his wife and needed to leave the home to get away. Now he is able to deal with the situation, he goes into the garden and takes a nice glass of water and calms down. He does not want to upset his family as “they are everything to him”.
His depression is under control but he is still very upset about not being able to see his grandchildren. He told the Tribunal that he gets very emotional just thinking about them. Mr Esposito attends a local Italian club most days. It is close by and he can walk there.
Mr Esposito’s mental health condition of depression has been awarded nil points under Table 5 of the Impairment Tables as it is mild and not having an impact on his ability care for himself, socialise, relate to his family, concentrate, make decisions or his ability to work. The Tribunal concurs with this finding.
Mr Esposito’s elbow and shoulder pain could be assessed under Table 2, Upper Limb Function of the Impairment Tables as this condition is having an impact on Mr Esposito’s ability to manage many daily functions. However, nil points have been awarded as Dr Moran has described the condition as temporary. The Tribunal concurs therefore with the assignment of nil points for this condition.
On assessing all the evidence before the Tribunal a decision has to be reached about whether Mr Esposito has an accepted diagnosis of spinal stenosis resulting in chronic lower back pain, which meets the required 20 points under Impairment Table 4 as at 13 weeks from the date of his DSP application on 10 December 2015. This would require Mr Esposito to have a severe functional impact on activities involving spinal function, as per Table 4:
(1)The person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend their neck, without moving their trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Mr Esposito stated at the hearing that he does not have an issue with his neck; his problem is with his back, shoulder and left elbow. The pain is now also radiating down his legs.
Mr Esposito stated at the hearing that he is in constant pain, that he requires medication to cope during the day and at night but he still has a great deal of trouble sleeping. He also told the Tribunal that the pain from his back and elbow both contribute to the situation. He wakes during the night regularly and needs to rotate often to find a comfortable position.
Mr Esposito further stated at the hearing that he cannot stand or sit for long periods. As a result of this he no longer likes to drive and has difficulty walking. He gave evidence that on some days he is okay, but on others he cannot get out of bed. He cannot reach overhead. He cannot turn to look around. He can no longer do things around the house like make passata or small goods, these activities are no longer done or performed with friends’ help. His wife takes care of all the household chores.
Under cross examination, Mr Esposito stated he came to the hearing by taxi, that it took 40 minutes, that he was in pain en route, but could hardly ask the cab driver to pull over. He also told the Tribunal that he cannot bend, and that whilst he does care for himself he has modified the house so everything is at his height not overhead or below. For example, the shower has been arranged so he does not need to stretch up or down to get shampoo. The coffee cups are also located at the appropriate height in his home. Further, whilst he could pick up a glass of water whilst seated at the hearing he was not bending and that was all he could manage.

Mr Esposito remained seated during the hearing but often rotated in the chair to find a comfortable spot in which to sit.
Mr Esposito has completed a program of support and therefore satisfies the requirements of the Act.
CONCLUSION
Having carefully considered all the evidence before the tribunal, I find that Mr Esposito’s condition of spinal stenosis resulting in chronic lower back pain, elbow and shoulder pain does not meet the required 20 points. I find that his condition should be assigned a rating of 10 points on Table 4 of the Impairment Tables. As Mr Esposito does not meet the required 20 points, he therefore does not satisfy section 94(1)(b) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Anna Burke, Member

..................................[sgd]......................................
Associate
Dated 26 April 2017

Date of hearing 23 March 2017

Applicant In person

Advocate for the Respondent

Solicitors for the Respondent

Mr Pietro Nacion

Sparke Helmore

[2017] AATA 907

26 April 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

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