Foad Solaiman and Secretary, Department of Social Services
[2015] AATA 161
•19 March 2015
[2015] AATA 161
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1668
Re
Foad Solaiman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin, QC, Deputy President
Date 19 March 2015 Place Sydney The decision of the Social Security Appeals Tribunal dated 25 March 2014 is affirmed.
...............................[sgd].........................................
The Hon. Brian Tamberlin, QC, Deputy President
Catchwords
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – whether conditions can be assigned a combined rating of 20 impairment points – whether continuing inability to work – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94.
Social Security (Administration) Act 1999 (Cth) s13(1), Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
The Hon. Brian Tamberlin, QC, Deputy President
This is an application for a review for a decision made by the Social Security Appeals Tribunal (SSAT) on 25 March 2014. The SSAT affirmed a decision of the Authorised Review Officer (ARO) dated 20 February 2014, to reject the Applicant’s claim for Disability Support Pension (DSP) as he did not satisfy s 94 of the Social Security Act 1991 (the Act).
Section 94(1) of the Act provides that a person is qualified for 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)one of the following applies:
(i) the person has a continuing inability to work;
...
It is agreed that the Applicant has medical conditions of back pain, shoulder pain, knee pain, anxiety and depression. The Applicant therefore satisfies s 94(1)(a) of the Act.
However, the Respondent submits that the Applicant’s impairment cannot be accorded a combined impairment rating of 20 points or more under the Impairment Tables.
In this case the Applicant must be assessed under the criteria set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The Impairment Tables are not diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to attribute ratings to determine the level of functional impact of impairments and not to assess conditions.
“Impairment” is defined to mean a loss of a functional capacity affecting a person’s ability to work that results from the person’s condition.
The Tables provide that a person’s impairment must be assessed on the basis of what the person can or could do and not the basis of what the person choses to do or what others do for the person. The Tables may only be applied after the person’s medical history has been considered and a rating assigned only if the condition causing the impairment is permanent. A condition is permanent if it is fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.
In this case the relevant period for assessment of the Applicant’s condition relates to the period 23 October 2013, when the Applicant lodged his claim for DSP, and the 13 weeks thereafter.
BACKGROUND
The Applicant is 46 years old and has been in receipt of Newstart allowance since 4 October 2013. On 12 July 2012 a CT scan of the lumbar spine, undertaken by Dr Wing, reported that there were small posterior disc bulges at L4/L5 and L5/S1. There was no canal stenosis or definite compression upon the existing nerve roots.
On 5 July 2013, an x-ray and ultrasound of the left shoulder revealed “subacromial/subdeltoid bursitis”.
An ultrasound guided cortisone injection was performed on 19 September 2013.
On 25 September 2013, Dr Guirgis, orthopaedic surgeon, prepared a report which referred to presenting symptoms and provided a diagnosis of chronic mechanical derangement of the lumbar area of the spine caused by discopathic and spondylotic changes. This was diagnosed as causing right L5 radiculopathy. He also referred to a diagnosis of rotator cuff arthropathy in the left shoulder with impingement, osteoarthritis of the left knee, and signs and symptoms of chronic pain/anxiety/depression.
Dr Guirgis advised that the Applicant should continue with conservative treatment. He noted that, at the time, the Applicant’s present problem was “chronic pain syndrome with a pain cycle initiated by the ongoing pathology and ending in impairment disability and handicap”. The objective of management was to challenge the cycle and minimise the effects of the chronic pain syndrome. He expressed the opinion that the Applicant’s state at that time meant that he could not maintain a job, even if suitable, day in and day out without taking periods of leave during his acute episodes.
On 2 October 2013, the Applicant contacted Centrelink and expressed his intention to claim DSP.
On 11 October 2013, Dr Dib Kak issued a medical report in respect of the Applicant’s claim for DSP.
Dr Kak did not report that the Applicant was receiving treatment with respect to his back condition at that time. He stated that the Applicant had previously undertaken physiotherapy, analgesic and pain relief medication, and specialist review. With respect to future treatment, he stated that there was “no cure for problem, chronic, permanent medical problem which has been fully treated”. He reported that the Applicant suffers “severe frequent lower back pain. Daily symptoms. Pain radiates to left lower limb causing prasthesia and weakness. Stiffness and inability to stand/sit for long periods (more than 10-15 minutes)”.
With respect to the Applicant’s shoulder condition, Dr Kak reported that he suffers from “rotator cuff arthropathy with impingement bursitis, tendonitis of the left”. He noted that the Applicant had consulted a specialist, being Dr Guirgis, and that his current treatment consisted of:
oEndore 5mg when required;
oTramal 50-100mg BD;
oCommenced Panadol Osteo in 2011; and
oPhysiotherapy.
Dr Kak stated that future treatment would be “as above” and that the Applicant’s current symptoms were “severe, constant pain in left shoulder, numbness and weakness in left arm”. The impact of the condition on the Applicant’s ability to function was reported as “affecting lifting, carrying and manipulation objects doe to pain. Has difficulty with meal preparation/dressing due to pain in left upper limb”.
Dr Kak reported that the Applicant’s conditions of osteoarthritis of the left knee and chronic pain/anxiety/depression were generally well managed and cause minimal or limited impact.
On 21 October 2013 Dr Guirgis completed a medical report in respect of the claim. He reiterated his opinion as contained in his earlier report.
On 23 October 2013, the Applicant lodged a claim for DSP stating he suffered pain in his back and in his left shoulder, and had no feeling in his left leg. He stated that he felt that he loses balance, feels that his body is heavy and he feels sleepy.
A job capacity assessor conducted a face-to-face work capacity assessment on 12 November 2013 and was of the opinion that the back condition, left shoulder condition and osteoarthritis were permanent at the date of the claim. The assessor assigned 5 points to the back under Table 5, 5 points for the shoulder under Table 2, and no points for the knee condition under Table 3. The assessor recommended that the Applicant’s baseline work capacity was 15-22 hours per week and 23-29 hours per week with intervention.
On 19 November 2013, Centrelink rejected the Applicant’s claim for the DSP.
Further medical evidence was provided by Dr Dib Kak in the form of a report dated 23 June 2014. As a result, a file assessment was undertaken and the Applicant was given an impairment rating of 5 points under spinal function. A rating of nil points was allocated under upper limb function, and the left knee pain and depression and anxiety were considered not fully diagnosed, treated or stabilised. The Applicant’s baseline work capacity was assessed by the counsellor as 15-22 hours per week and 23-29 hours week with intervention. Dr Dib Kak later amended the 23 June report by inserting an additional paragraph. He stated that Mr Solaiman’s conditions deteriorated after the “relevant period”. He noted, however, that the information contained in his report was referable to the Applicant’s medical conditions in the period between 23 October 2013 and 22 January 2014. Dr Dib Kak stated that Applicant’s functional capacity was not likely to improve in the next two years even with the most appropriate treatment. Dr Dib Kak considered that the Applicant’s functional ability had not improved since 23 October 2013.
LEGISLATION
The relevant legislation is the Social Security (Administration) Act 1999; the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011.
No further evidence was presented by the Applicant at the hearing apart from a consultation report of clinical findings and recommendations by Dr Guirgis as to worsening symptoms and signs of left L5 lumbosciatica. MRI scans were arranged for further evaluation for current situation. The diagnosis was mechanical derangement of the lumbar area of the spine caused by discopathic and spondylotic changes causing left L5 radiculopathy; rotator cuff arthropathy in the left shoulder with impingement; osteoarthritis of the left knee and symptoms and signs of chronic pain/anxiety/depression. This report however is more than one year after the expiry of the relevant period.
I now turn to the specific condition in respect of which the claim for DSP is made.
On 12 July 2012 a CT scan of the lumbar spine was performed by Dr Wing which showed small bulges and no canal stenos or compression on nerve roots.
Dr Guirgis and Dr Dib Kak respectively recommended conservative treatment. They noted severe frequent lower back pain with daily symptoms affecting his ability to sit, stand or move. The Applicant told the SSAT that he had some difficulty with overhead activities and with bending, however that Tribunal noted that at the hearing he was able to bend forward and pick up papers on the table in front of him and did not need assistance to get out of his chair.
The SSAT accepted that the Applicant’s condition of the back pain was permanent and assigned a rating of 5 points.
The guidelines to the Tables for assessment note that there is no Table specifically dealing with pain, and that determination of the descriptor that best fits the person’s impairment level must be based on the available medical evidence, including the person’s medical history, investigations, results and clinical findings. A person’s self-reported symptoms must not solely be relied upon where the level of functional impairment is not consistent with the medical evidence available.
The Respondent submits, and I accept, that the medical evidence supports a finding that a rating of not more than 5 points was appropriate, having regard to the clinical findings of the CT scan which suggests a mild impairment of ability to function.
Moreover, the Tribunal notes that the Applicant’s description of symptoms is inconsistent with the clinical findings. The self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. While Dr Dib Kak noted that the Applicant experiences “stiffness and inability to stand, sit for long periods in excess of 15 minutes”, the report is inconsistent with the clinical findings which refer to small posterior disc bulges with no canal stenosis or definite compression on the existing nerve roots. I accept that there is insufficient evidence to indicate that the Applicant meets any of the descriptors for a 10 point rating under Table 4.
SHOULDER CONDITION
The x-ray report and ultrasound of the left shoulder on 5 July 2013 found minor changes of osteoarthrosis at the AC joint. The report refers to some findings being unremarkable and there being a smooth outline. There was no evidence of calcific tendinosis and no evidence of left-sided cervical rib. There was no evidence of tendon tear or tendon sheaf effusion, minor tendons were intact and there was no evidence of enthesopathy. There were some signs of mild bursitis but nothing acute at the relevant joint. There was no evidence of joint effusion.
The conclusion based on the x-ray of the left shoulder was that there was some bursitis.
The Applicant had a cortisone injection on 19 September 2013 and on the material before me, including the reports of Dr Guirgis and Dr Dib Kak, I am satisfied that a rating of zero points under Table 3 is appropriate. The condition was effectively treated with an ultrasound guided injection of steroid and long acting local anaesthetic agents.
LEFT KNEE – OSTEOARTHRITIS
There is a lack of clinical evidence in relation to this condition.
The SSAT, comprised by Dr Glasson, accepted that this condition was not permanent as at the date of claim.
The Impairment Tables provide in Part 2, clause 8(1) that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence in the form of a report from the person’s treating doctor; report from a medical specialist confirming diagnosis; a report from a health practitioner confirming functional impact; results of diagnostic tests; results from physical test.
In this case, the evidence does not establish that the lower limb condition was fully diagnosed, investigated, treated or stabilised during the relevant period. Therefore, it cannot be assessed under the Impairment Tables.
In the absence of satisfactory corroborating evidence, I am not satisfied that the Applicant was entitled to any points in respect of the left knee osteoarthritis.
DEPRESSION AND ANXIETY
In this case there was no evidence from an appropriately qualified medical practitioner, including a psychiatrist or a clinical psychologist, in support of the claim. This is contrary to the requirement in the Introduction to Table 5 that, in the case of a mental health condition, there must be evidence from a properly qualified practitioner in psychiatry or psychology. There also needs to be supporting evidence.
There is no evidence in this case in the relevant period that any diagnosis of depression or anxiety had been confirmed by either a psychiatrist or clinical psychologist. There are no reports by any qualified person and therefore the Applicant’s mental health condition has not been fully diagnosed, treated or stabilised as at the relevant period. It cannot be assessed under the Impairment Tables.
There were several reports submitted after the expiry of the relevant period, but these cannot be relied on in the assessment of impairment ratings in the circumstances of the present claim because they are not referable to the Applicant’s condition during the relevant period.
There is however a letter from Dr Dib Kak of 14 October 2014 which refers to the period from 23 October 2013 to 22 January 2014, which is the relevant period, and states that the Applicant’s condition deteriorated after the expiry of the relevant period. He stated that the Applicant’s functional capacity was not likely to improve in the next two years even with the most appropriate treatments. He also stated that, since 23 October 2013, functional ability had not improved. The difficulty with this statement of opinion is that there is no corroborating evidence from a qualified person about his mental condition. The weight of the evidence supports a conclusion that the mental health condition was not permanent at the relevant time.
CONTINUING INABILITY TO WORK
On the evidence, the Applicant does not satisfy the requirements under s 94(1)(c) of the Act as he does not have a continuing inability to work 15 hours or more per week.
In this case the Applicant was assessed and it was suggested that light less-skilled roles would be appropriate, and reports from the job capacity assessor of 12 November 2013 and 28 July 2014 state that his baseline work capacity is 15 to 22 hours per week increasing to 23-29 hours per week with intervention.
There was no evidence which would support a finding that the Applicant’s impairments would prevent him from undertaking training or education that would enable him to undertake work of at least 15 hours per week within the next two years. Accordingly the Applicant fails to meet the requirements of s 94(1)(c).
CONCLUSION
The Applicant does not have an impairment rating of at least 20 points or more under the Impairment Tables and does not have a continuing inability to work.
DECISION
The decision of the Social Security Appeals Tribunal dated 25 March 2014 is affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President ...........................[sgd].............................................
Associate
Dated 19 March 2015
Date(s) of hearing 16 February 2015 Date final submissions received 16 February 2015 Applicant In person Solicitors for the Respondent B Salaji; Department of Human Services
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