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

[2016] AATA 500

Farres and Secretary, Department of Social Services (Social services second review) [2016] AATA 500 (18 July 2016) 

Division	GENERAL DIVISION
File Number	2015/5518
Re	Kamahl Farres
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	18 July 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – multiple medical conditions – impairment rating of 15 points reconsidered and 25 points assigned – definition of severe disability not satisfied – incapacity for work – participation in a program of support not satisfied – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

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

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Miss E A Shanahan, Member

18 July 2016

1. Mr Farres lodged a claim for the Disability Support Pension (DSP) on 9 January 2015.  He had ceased full time work on 24 December 2014.  He suffers from multiple medical conditions identified as dilated cardiomyopathy, sleep apnoea, capsulitis involving both shoulder joints, left rotator cuff syndrome with supraspinatus tear, insulin dependent diabetes, amputation of left great toe, chronic ulceration of right great toe, spinal L4/L5 spondylolisthesis, L5/S1 foraminal stenosis with S1 nerve root compression, right knee arthritis and hypotension. 

2. Medical certification has been provided by two of Mr Farres’s three treating general practitioners: Dr Ng and Dr Rawal.  Neither doctor has provided a complete list of medical conditions as outlined above.

3. A job capacity assessment (JCA) performed on 24 February 2015 by an occupational therapist recommended an impairment rating of 5 points based solely on Mr Farres’s right knee pain. The other conditions were said to attract a zero rating as they did not impact on Mr Farres’s capacity for work.  Based on this report a delegate of Centrelink rejected the claim on 25 February 2015. 

4. Mr Farres sought internal review of this decision and on 27 May 2015 an authorised review officer (ARO) affirmed the decision. The ARO allotted an impairment rating of 5 points in relation to the amputation of Mr Farres’s left great toe.  The ARO found the right knee condition was not fully diagnosed, treated and stabilised and therefore did not attract a rating.

5. Mr Farres applied to the Administrative Appeals Tribunal, Social Services and Child Support Division (First Tier) for a review of the decision and the matter was heard on 29 September 2015.  The decision was affirmed. Member Dr S Lewinski allotted an impairment rating of 15 points consisting of 5 points for the back condition, 5 points for loss of the left great toe and 5 points under Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) Functions requiring Physical Exertion and Stamina for the cardiomyopathy. 

6. On 21 October 2015 Mr Farres lodged an application for review by the Administrative Appeals Tribunal, General Division (Second Tier). 

7. Mr Farres was self-represented at the hearing and assisted by his wife. Mr James Henderson of the Department of Human Services appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) and Mr Farres provided a report from his general practitioner, Dr Rawal dated 17 July 2015.  Mr Farres gave oral evidence before the Tribunal. 

   BACKGROUND TO THE APPLICATION

8. In 1988 Mr Farres injured his back in a motor vehicle accident and in a separate fall from a chair wherein he hit his back on a cement floor. Following these accidents he developed chronic back pain with radiation to his right leg in an S1 distribution.    He did not work for a considerable time and was in receipt of the Disability Support Pension (DSP). He states that over a period of 45 weeks he searched for a job, lodging 120 to 130 unsuccessful applications.

9. Mr Farres’s Centrelink records indicate that between 1989 and 2003 he had an impairment rating of 20 points, and in 2006 he had an impairment rating of 35 points.  The Tribunal notes that this was in a period where assessments were done by medical practitioners as opposed to JCAs. The impairment rating provided related to Mr Farres’s back condition, using the Centrelink’s abbreviation OMS which the Tribunal takes to mean Other – Muscular Skeletal.  Apparently Centrelink were involved in Mr Farres’s job searching and assisted him in obtaining further employment.

10. From 2012 until 2014 Mr Farres worked as a security officer. He was employed at the Returned and Services League in Reservoir.  His duties permitted him to be seated almost entirely throughout the 38 hour week however  he was required occasionally to deal with altercations and rowdy ex-servicemen.  As Mr Farres is six foot four inches tall and weighs 140 kilograms, his size alone acted as a deterrent.  According to the Secretary’s records Mr Farres had no contact with Centrelink between 2006 and January 2015.

11. At his initial presentation to Centrelink he was described as having a shoulder and upper arm disorder and a spinal disorder which was listed separate to a musculoskeletal disorder other.  Mr Farres has suffered from diabetes for many years and has been on insulin for 15 years.  He has more recently been changed to a newer insulin modality to effect better control of his blood sugars. 

12. As a complication of his diabetes he has peripheral neuropathy and recurrent foot ulceration.  His left great toe was amputated because of diabetic complications and he now suffers from an ulcer on the medial aspect of his right foot near his great toe.  This has healed and broken down repeatedly and is the source of both ulceration and recurrent infection. He has been admitted to hospital for recurrent infections related to his diabetes on about six occasions. 

13. Mr Farres first noted symptoms related to his cardiac condition in 2010.  These are not delineated in the history but are referred to.  Over the years these symptoms progressed until 2013 when he was diagnosed with a non-ischaemic form of cardiomyopathy.  He has attended the Royal Melbourne Hospital since 2012 and has been prescribed anti-hypertensive medication, two diuretics, a beta-blocker, aspirin and a statin to reduce his cholesterol levels.  Symptoms relating to his cardiomyopathy appear to be shortness of breath on exertion, tiredness and lethargy and limitation of his walking distance. At times he becomes lightheaded due to hypotension.  More recent investigations have revealed that he has severe sleep apnoea which is being treated with controlled positive airways pressure (CPAP). Despite this he remains lethargic.  

14. In October 2015 Mr Farres underwent radio-nuclear investigation of his cardiac function which revealed an ejection fraction of 37 per cent.  The results have not been provided to the Tribunal by the Royal Melbourne Hospital, however the Tribunal member is aware of the normal levels, which are 55 per cent or above.  Associate Professor Wong has provided data and opinion that this ejection fraction of 37 per cent represents a moderate degree of left ventricular dysfunction. 

15. When seen at the Royal Melbourne Hospital Cardiomyopathy Clinic in March 2015, Mr Farres was noted to be more tired and lethargic. In a report dated 23 September 2015 the Royal Melbourne Hospital advised that a recent thallium stress scan had revealed a reduction in Mr Farres’s ejection fraction to 30 per cent. Such a reading would raise the possibility of insertion of a pacemaker to improve left ventricular function and would also mean that Mr Farres cardiomyopathy was now at a severely dysfunctional level.  Further review of this reading and calculations resulted in the ejection fraction being corrected to 37 per cent.  Plans for the insertion of a pacemaker have been put on hold. 

16. Mr Farres’s cardiomyopathy and cardiac dysfunction resulting therefrom have impacted on the treatment of his other conditions.  He has bilateral shoulder capsulitis but more particularly has a large tear in his left supraspinatus muscle and a ruptured long head of biceps tendon.  He was referred to the Orthopaedic Department at the Royal Melbourne Hospital for consideration of surgical correction of the left shoulder pathology but this has been declined. He is considered unfit, because of his cardiomyopathy, for a surgical approach even if performed in a sitting position. 

17. Mr Farres’s diabetes has resulted in peripheral neuropathy according to Dr Rawal and as a result he has developed chronic ulceration and infection in both feet. The first episode necessitated amputation of his left great toe and for the past 16 months he has had recurrent ulceration of his right foot adjacent to his great toe.  As the amputation of his left great toe and the ulcerated right great toe have contributed to Mr Farres’s inability to walk and lack of balance he needs to use a walking stick.  

18. Mr Farres’s right knee condition was described in his initial application as being arthritis with right knee pain.

19. Mr Farres’s right knee has apparently been investigated however the Tribunal has not been provided with any medical reports or imaging studies.  According to Mr Farres his knee pain limits his walking distance and limits his activities both walking and driving. He says he has been told he has degenerative cartilages and tendons and may need a right knee replacement in the future.  

20. Doctors Ng and Rawal have provided reports. Dr Ng nominated the medical conditions as being L4/L5 spondylolisthesis and L5/S1 and L3/L4 (no condition recorded).  The right knee arthritis is also listed, with the treatment being physiotherapy and analgesia. The report states that Mr Farres has been seen by a consultant orthopaedic surgeon at the Royal Melbourne Hospital and may require knee replacement. 

21. The other conditions which have been reported but are said not to have any functional impact on Mr Farres are capsulitis of both shoulders, diabetes mellitus, amputation of left great toe, enlarged heart and hypertension.  No findings on physical examination have been provided.  Mr Farres has confirmed that his general practitioners rarely perform a physical examination.  Dr Ng has provided several further medical certificates relating to Mr Farres’s great right toe ulceration.

22. Dr Rawal provided several reports to the Secretary detailing the presence of cardiomyopathy causing easy fatigue, sleep apnoea, left shoulder rotator cuff tear. In her opinion Mr Farres has an impairment rating of greater than 20 points.  Again, no physical examination findings, such as range of movement in various joints and in particular of the back, have been provided.  

23. Associate Professor Wong’s detailed reports relate almost entirely to Mr Farres’s cardiac status but also confirm that he has been advised by the orthopaedic surgeons that orthopaedic surgery could not be conducted given Mr Farres’s cardiac status as the associated risk was too high. 

    EVIDENCE BEFORE THE TRIBUNAL

24. Mr Farres’s evidence has been summarised above in paragraphs 8 - 23.  He  also provided additional information relating to the frequency of his visits to the Outpatient Clinic at the Royal Melbourne Hospital where he is seen in the Diabetes Clinic every two to three months and the Cardiomyopathy Clinic every two to three months. He has had three admissions relating to his cardiomyopathy in the past four to five years and six admissions relating to his diabetes and recurrent infections. There were two admissions for the amputation of his left great toe.

25. Mr Farres has endeavoured to obtain a more detailed report from one of his three general practitioners but could not afford the $300.00 fee for the provision of such a report. Neither of the two of his three general practitioners who provided reports have addressed the requirements of the Impairment Tables.  Nor, as far as this Tribunal can tell have they actually examined Mr Farres.  He requires the help of his wife to perform many tasks particularly in relation to his right foot ulcer. Mrs Farres does most of the driving of their motor vehicle.

26. Since ceasing work on 24 December 2014, Mr Farres said he has not sought employment or even part time work or retraining. He has made applications for customer service work, all of which have been unsuccessful.  He believes that even if he got such a position he would not be able to perform the required tasks as his right knee prohibits him from standing for any length of time and his left arm curtails his lifting to very minor weights.

    DOCUMENTARY EVIDENCE

27. The medical reports, albeit few in number and range, have been summarised in paragraphs 8 - 23. 

28. The Tribunal assumes that the job capacity assessor was restricted in their interpretation of the conditions by the lack of detail in the medical reports.  For example, the assessor states that the L/4/L5 spondylolisthesis created symptoms in 1988 and while he has back pain and sciatica daily the condition has been fully diagnosed, treated and stabilised and attracts an impairment rating of zero.  This is said to have been determined by the medical reports not indicating any functional impact. 

29. As previously stated the medical reports did not provide any physical examination findings with respect to range of movement, pain on movement etc.  In relation to the bilateral shoulder capsulitis and the left shoulder tendon rupture and supraspinatus tear it was determined that there was no functional impact and the recommended rating was again zero.  In relation to the cardiomyopathy the recommended rating was zero based on Table 1 as no functional impact had been indicated in the medical reports or assessment report. The impairment rating was limited to 5 points in relation to Mr Farres’s diabetes and lower limb function in that he had difficulty walking, climbing stairs and needed to use a walking stick.  One assumes this is for the amputated left great toe as the ulcer on the right toe is not mentioned in the assessment.

30. The cardiomyopathy was said to have no functional impact based on the medical reports and confirmed by the client and therefore a rating of zero was recommended. The Tribunal acknowledges that it is somewhat difficult to assign Mr Farres’s numerous symptoms to a particular condition because of the overlapping of such symptoms.  The assessor found Mr Farres’s work capacity was currently 0 to 7 hours per week but this was a temporary state for the next two weeks.  Thereafter his baseline work capacity was 15 to 22 hours per week.  Referral to the Disability Management Service was recommended.

31. Mr Farres has been referred to and seen by Campbell Page Employment Assistance in Broadmeadows, his first appointment being 18 August 2015.  This is the date of commencement of his program of support. 

    RELEVANT LEGISLATION

32. Section 94 of the Social Security Act 1991 (the Act) provides for the criteria for qualification for the DSP and states:

    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 ...

33. Clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) limit review of the qualification period to 13 weeks from the date of lodgement of the claim. In this matter the period is from 9 January 2015 to 10 April 2015.

34. The program of participation is delineated in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the program of support) and requires the individual claiming the DSP to have participated in a program of support for 18 months in the three year period prior to lodging their claim. A program of support is not required if the claimant has a severe disability defined as being a single condition that attracts an impairment rating of 20 points or more.

    SUBMISSIONS

35. Mr Farres did not make any formal submissions relying on his evidence and the supporting medical reports. 

36. Mr Henderson on behalf of the Secretary, outlined the legislation, the requirement for a program of support if there is no severe disability attracting greater than 20 impairment points in rating. As Mr Farres had not undertaken a program of support as required by the Act he could not satisfy s 94(1)(c) particularly as Dr Ng had in his treating doctor’s report of 13 January 2015, stated that Mr Farres’s lumbar back pain and sciatica and his cardiomyopathy had no functional impact on his ability or capacity to work. Dr Rawal’s reports were described as being inconsistent with this earlier treating doctor’s report and had not provided an impairment rating based on a consideration of the Impairment Tables.

37. Mr Henderson submitted that Mr Farres’s right knee condition had not been fully diagnosed, treated and stabilised and therefore could not attract an impairment rating and the other conditions such as his diabetes, shoulder pathology and right great toe ulceration were either not fully diagnosed, treated and stabilised or had no impact on Mr Farres’s work capacity. 

    TRIBUNAL’S DELIBERATIONS

38. Mr Farres satisfies s 94(1)(a) of the Act as he has a surfeit of medical conditions, the most severe of which are the dilated cardiomyopathy, his lumbar spinal L4/L5 spondylolisthesis and foraminal stenosis causing compression of the S1 nerve root and several complications of his diabetes mellitus.

39. Based on the medical reports provided at the time of Mr Farres’s lodgement of claim for the DSP in January 2015, he was assessed by the JCA as having an impairment rating totalling 5 impairment points, due to mild functional impact on activities using his lower limbs. This appears to have been attracted because of the amputation of Mr Farres’s left great toe a complication of his insulin dependent diabetes. The assessment report is unclear on this point as the medical report had declared the diabetic state as having minimal impact on function, although being fully diagnosed, treated and stabilised. It would appear that the functional impairment rating was based on his use of a walking stick and his need to drive to access the community as well as his difficulties in climbing stairs. All other conditions were rated as having no impact on function, with the exception of right knee pain which was said to be not fully diagnosed, treated and stabilised. On this basis Mr Farres did not satisfy s 94(1)(b) of the Act and his claim for the DSP was rejected.

40. At the Social Services and Child Support Division (First Tier) a rating of 15 points was assigned by the Member; 5 points for the cardiomyopathy under Table 1, 5 points for the amputation of the left great toe under Table 3 and 5 points for the lumbar spinal pain and sciatica under Table 4. Again this did not satisfy the requirements of s 94(1)(b).

41. I believe that Mr Farres’s impairment rating has been under assessed because of the lack of information provided in the medical reports and the complete absence of any physical examination by any of the general practitioners which would go to an assessment of functional impairment.  I would assign an impairment rating of 10 points for Mr Farres’s cardiomyopathy based on Table 1, as he experiences frequent shortness of breath and fatigue performing day to day activities, he is unable to walk far outside the home, he needs to drive or get other transport to local shops or community facilities and has difficulty performing day to day household activities.  He is however able to use public transport, walk for a short period of time and perform tasks of a sedentary or stationary nature.

1. Mr Farres suffers from peripheral neuropathy in his feet due to his long standing insulin dependent diabetes mellitus, rendering him prone to ulceration of both his right and left great toes and necessitated amputation of his left great toe and continuing treatment of his painful infected ulcer on the right great toe.  In accordance with Table 3 of the Impairment Tables, I believe this would attract a rating of 5 or 10 points in that these conditions contribute to the same functional aspects used in the descriptors of Table 1 and it is impossible to differentiate the contribution of each individual condition. 

2. Mr Farres’s low back pain, spondylolisthesis and right sided sciatica would attract a rating of 5 points as found at the First Tier review and his shoulder must now be considered as fully diagnosed, treated and stabilised in light of decision that Mr Farres is not fit enough from a cardiac viewpoint to undergo left shoulder surgery even in a sitting position.  While the orthopaedic surgeon stated that this procedure was not essential, he also stated there was a 60 per cent chance of considerable improvement in symptoms and function as a result of left arthroscopy and repair of the two damaged tendons. 

3. The MRI confirming the left shoulder diagnosis did not take place until 27 June 2015, however as of that date an impairment rating of 5 or more points would have been attracted.  In total I would assign 25 or 30 points to Mr Farres’s incapacitating medical conditions but on the data provided, no single condition would attract a rating of 20 points.  While my estimates have been made well outside the qualification period and have been assisted by the provision of MRI reports in relation to the left shoulder and the lumbar spine, these conditions have been well documented in Mr Farres’s Centrelink file in the case of his back since 1998 and in the case of his shoulder since 2003. During those earlier periods he had been assigned impairment ratings ranging from 20 to 35.

4. The Tribunal acknowledges that these impairment ratings were estimated in accordance with different tables and different criteria but were in fact undertaken by medically qualified personnel, for example, the rating of 20 impairment points on 22 May 1998 was assigned by a Dr Murray Gee. 

5. Mr Farres’s right knee arthritis was considered not to be fully diagnosed, treated and stabilised although he had been told he had damaged two ligaments and had a meniscal tear and would require knee surgery and perhaps in the longer term a knee replacement.  This has all been self-reported and no data from the Royal Melbourne Hospital where he attends regularly has been provided.  Given he has been declared an operative risk and not accepted for shoulder surgery, it is extremely unlikely at the present or in the future, or at least within the next two years that he will be accepted for such intervention should his cardiac status not improve. 

6. His knee condition, like his shoulder condition must now be considered to be fully diagnosed, treated and stabilised and thus assigned an impairment rating.  This Tribunal does not have sufficient medical data in the way of objective evidence to make an estimation of the impairment rating. 

7. Based on its own assessments this Tribunal finds that Mr Farres satisfies s 94(1)(b) of the Act.

8. As Mr Farres’s claim for the DSP was lodged on 9 January 2015, he is required in the absence of having a severe disability attracting a rating of 20 points, to complete a program of support of 18 months duration during the three years prior to his lodgement of the claim for the DSP. This he has not done and he has not met the requirements or definition of a severe disability. Thus at the time of his application and review by this Tribunal he does not satisfy the requirement of s 94(1)(c) of the Act and does not qualify for the DSP.

9. Mr Farres is awaiting further review of his cardiomyopathy by Associate Professor Wong. In the event of his ejection fraction deteriorating further he may satisfy s 94(3B) of the Act, by meeting the definition of a severe impairment and the attraction of 20 points or more under a single impairment table. It is noted that he has been participating in a program of support since 18 August 2015 and in the expectation that his health will not improve he should then satisfy the requirements of s 94(1)(c).

10. The Tribunal affirms the decision under review.   

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Dated 18 July 2016

Date(s) of hearing
Applicant	In person
Advocate for the Respondent	James Henderson