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

[2018] AATA 4122

Gerges and Secretary, Department of Social Services (Social services second review) [2018] AATA 4122 (5 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1700

Re:George Gerges

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:5 November 2018

Place:Canberra

The decision under review is affirmed

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

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – amputated right thumb – full tears of supraspinatus tendons – uncontrolled diabetes mellitus – lumbar condition – mental health – whether conditions fully treated and fully stabilised – rating for severity – Table 2 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 38AA
Social Security Act 1991, ss 26, 94
Social Security (Administration) Act 1999, ss 37, 42, Schedule 2

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

Cases

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

REASONS FOR DECISION

Mark Hyman, Member

5 November 2018

1. This decision is about whether the applicant, Mr George Gerges, qualifies for disability support pension (DSP). Mr Gerges was granted DSP from 20 August 2016, but the payment was cancelled on 1 January 2017 because Mr Gerges was over the assets limit. Mr Gerges lodged a new claim for DSP on 14 March 2017; he withdrew the claim twice in the course of 2017, and the Department of Human Services – Centrelink (the Department) rejected it once for lack of supporting medical evidence; but ultimately the claim was reinstated in December 2017. The Department then made an assessment of the claim, based on the medical evidence that had now been submitted, and rejected the claim on 11 December 2017. Mr Gerges sought review, and his claim was rejected again twice on review, including most recently by the Social Services and Child Support Division of this tribunal. On 29 March 2018 Mr Gerges applied to this tribunal for further review.

2. The tribunal held a hearing on 8 October 2018. Mr Gerges appeared in person and gave evidence. Ms Sally Moore, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter.

3. The documentary evidence before the tribunal comprised documents submitted under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the “T-documents” and supplementary T-documents); and a report dated 4 July 2018 by Dr Domonic Manassa, Mr Gerges’ general practitioner (GP), with attachments (exhibit A1).

   LEGISLATION

4. The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:

   94(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;

   …

5. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

6. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. Section 6 of the Rules for Applying the Impairment Tables (the Rules) provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.    

7. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g., Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

8. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

1. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that to succeed in his claim Mr Gerges must have been qualified in the period from 14 March to 13 June 2017. The qualification period is important in this case because some of Mr Gerges’ medical conditions are dynamic, becoming significantly worse with time; the qualification period prevents developments in his conditions occurring after 13 June 2017 from being taken into account. This was explained in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   … it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

   ISSUES

2. The issues before the tribunal in this matter are:

   ·whether Mr Gerges has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether he has a continuing inability to work.

   MR GERGES’ MEDICAL CONDITIONS

3. The context to Mr Gerges’ claim is that he migrated to Australia from Lebanon to escape the conflict there more than 30 years ago, taking up work here as an expert tree lopper. This was a physically demanding but remunerative line of work from which Mr Gerges did well. But it is also a hazardous form of work and he suffered injuries which led to the amputation of his right thumb and injury to his shoulder tendons. In his tree lopping business Mr Gerges had equipment worth a large sum – perhaps $1.5 million. Once he could no longer work he sold the equipment at a substantial discount. He now lives on a farm where he grows some vegetables, produces some honey and runs a few sheep. He says that he makes no profit from his farm. Mr Gerges says that he has always enjoyed working; he is now frustrated because his doctors tell him that he should not work because of the risk to himself and others.

4. Mr Gerges suffers from a number of significant medical conditions: he has an amputated right thumb; he has injuries to both shoulders; and he has an imperfectly controlled form of diabetes mellitus. There is also evidence that relates to lumbar spondylosis and a mental health condition. It is common ground that Mr Gerges meets paragraph 94(1)(a) of the Act. In what follows the evidence regarding each of Mr Gerges’ conditions is examined in turn.

5. In cross-examining Mr Gerges Ms Moore adduced evidence relating to Mr Gerges’ capacity to undertake various forms of activity, such as driving a car or undertaking international travel, that might have been relevant in assessing the severity of some of his conditions provided they met the tests of permanence in the Impairment Tables (or might have touched on whether he has a continuing inability to work). For reasons that will become clear I have not found it necessary to rate the severity of a number of Mr Gerges’ conditions, and the evidence is therefore not relevant to my decision. Ms Moore also adduced evidence about the scale and financial worth of the farm, but once again I have not found it relevant to the decisions I have been called on to make.

   Amputated thumb

6. Mr Gerges earned his living as a tree lopper, an occupation that carries with it certain risks of physical injury. In 1989 Mr Gerges sustained a crush injury to his right thumb and the injury was exacerbated by a workplace fall in 2005[1]. The thumb was amputated, and the amputation was accompanied or followed by skin grafts and fixation with plates and screws[2]. The actual date of amputation is unclear, although it appears from the report of Dr David Yee, hand surgeon[3], dated 26 October 2005, that Mr Gerges underwent some form of surgery on his hand at about that time. Mr Gerges is right hand dominant[4].

   [1] T9, folio 120; T10, folio 122.

   [2] T9, folio 120; T37, folio 321.

   [3] T9.

   [4] T43, folio 330, report by Dr Manassa dated 16 January 2018, refers to “left thumb amputation” plainly in error, given Mr Gerges’ visibly absent right thumb.

7. The injury also appears to have left Mr Gerges with more generalised arthritic degeneration in the right hand, although the evidence of this broader issue is somewhat sketchy[5].

   [5] T10, folio 122.

8. In some earlier assessments decision-makers have found that Mr Gerges’ right hand injury is not fully treated and stabilised (although I note that was not the finding at first review by this tribunal). I cannot see how an amputation done at least 13 years ago can be so regarded. The Secretary did not put forward that argument and thus it is common ground that the condition of Mr Gerges’ right hand is fully diagnosed, fully treated and fully stabilised. It is permanent for the purposes of assessment for DSP.

   Shoulder injury

9. Mr Gerges has significant injuries to both shoulders. This appears in part to have resulted from assaults that he suffered in 2016, although some injury was already apparent by that date. The first evidence appears to be imaging reports from 2008; an ultrasound of the left shoulder dated 31 July 2008 noted a full thickness tear of the supraspinatus, with retraction of the tendon[6]. An X-ray of the right shoulder dated 13 February 2016 reported irregularity of the superior aspect of the glenoid rim, indicative of chronic trauma and suggesting superior instability or a superior labral tear. The radiologist noted mild acromioclavicular joint osteoarthritis[7]. Ultrasound images of both shoulders, dated 10 May 2016, identified full thickness tears of the supraspinatus tendons on both sides with retraction, and thinning of the subscapularis tendons suggesting full thickness tears[8]. Further degenerative change was also noted. The radiologists preparing these reports note that the tendon tears are old injuries rather than the result of recent events.

   [6] T12, folio 129.

   [7] T23, folio 171.

   [8] T24, folio 172.

10. Mr Gerges’ shoulder condition has been the subject of a number of imaging reports over the past few years, and it appears that by the time of the qualification period the extensive damage to his shoulders was well understood. I find his shoulder condition to be fully diagnosed. The papers contain some debate, however, about whether Mr Gerges’ shoulder condition can be regarded as fully treated and fully stabilised. At various points there is mention of surgical options, but there is no specialist report dealing with the possibility or advisability of such an option. Mr Gerges said at the hearing that he is hoping an operation will improve his shoulder, but the surgeons he has consulted have differing views on whether an operation will produce the benefits he is hoping for. Dr Manassa said in a report dated 16 January 2018[9] that Mr Gerges “suffers from chronic pain which is only marginally responsive to analgesia”. In a later report, dated 4 July 2018[10], Dr Manassa said that he has discussed Mr Gerges’ shoulder injuries with orthopaedic specialists who have suggested that “operative management” is not an option and that regular physiotherapy is the optimal form of treatment.

    [9] T43, folio 330.

    [10] Exhibit A1.

11. In my experience a specialist is reluctant to give a definitive opinion about treatment without personally viewing relevant reports and examining a patient. I would be much more comfortable in reaching a conclusion about the extent to which treatment options for Mr Gerges have been considered if I had an opinion from someone other than Dr Manassa. I sense that Dr Manassa has done his best for his patient, but as noted below in the context of diabetes, his opinion is not one on which I am happy to rely completely. Clearly Mr Gerges has seriously compromised shoulder function but I am not satisfied that the possibilities for treating his shoulder condition have been properly and thoroughly considered. I do not have any reports from the surgeons Mr Gerges says he has consulted. I cannot find that his shoulder condition is fully treated and fully stabilised.

    Diabetes mellitus

12. Mr Gerges appears to have been first diagnosed with insulin-dependent diabetes mellitus in 2005, according to Dr Ashraf Sakla, one of Mr Gerges’ GPs[11]. There is abundant medical evidence dealing with Mr Gerges’ diabetes, most of it relating to his frequent episodes of hyperglycaemia. The condition is evidently not at all well controlled. Mr Gerges’ blood sugar levels are mostly reported in terms of a percentage figure for glycated haemoglobin. The normal range is 4%-6%; Mr Gerges’ reported values range from 1%-2%[12] up to 37%[13], with the majority of the reports showing him to be moderately to extremely hyperglycaemic. These reports cover various periods, in particular from June 2015 to February 2017 and a period of weeks in May 2016 in which Mr Gerges went through a family crisis involving extended conflicts with his wife and presented on a number of occasions to hospital. There are also occasional reports from other periods[14] illustrating that the high values recorded in May 2017 were not an isolated occurrence. From these records it appears that the treatment for Mr Gerges’ diabetes comprises monitoring his blood sugar levels, administering insulin by injection, controlling his diet and prescribing appropriate medication. Mr Gerges plainly abides by this treatment regime in a patchy and irregular fashion.

    [11] T18, folio 148, DSP medical report, 20 March 2014.

    [12] T35, folio 234.

    [13] T35, folio 239.

    [14] T17, folio 142, dated 21 January 2014; T25, folio 173, dated 31 January 2017.

13. In a later report[15] (dated 4 July 2018) Dr Manassa explained the uncontrolled nature of Mr Gerges’ condition as the result of several other health-related factors, in particular that Mr Gerges’ amputated thumb made it difficult for him to administer his insulin injections and to prepare a diet that was suitable for his diabetes; and also that his vision was affected by diabetes to the point where he could not measure his blood sugar accurately, and as a result could not maintain the proper insulin dose.

    [15] Exhibit A1.

14. I am prepared to accept that Dr Manassa’s report refers back to the qualification period (although he does not specifically assert that it does), but I find it difficult to rely on his statement nonetheless. Although the loss of the thumb on the dominant hand must make it difficult for him to inject himself, Mr Gerges has had a long time to learn to cope. The difficulty of preparing a suitable meal is essentially the same as the difficulty of preparing an unsuitable one. And there is no corroboration of the degree to which Mr Gerges’ vision is compromised; surely if his vision was so badly affected he would have consulted an ophthalmologist, but no report from such a specialist is available. What is more, there is ample evidence that Mr Gerges is an uncooperative patient as far as compliance with a treatment regime is concerned[16], and I am therefore unconvinced that his propensity to become hyperglycaemic is largely the result of his difficulties with medicating himself and preparing food.

    [16] See for example T32, folios 212, 213, 214, 215, 217; T35, folios 237, 239, 243, 247, 248, 250, 252, 256, 257, 265; T43, folio 330.

15. People whose diabetes is stable are often under the supervision of their GP, but that is less likely when a person’s diabetes is uncontrolled. I would have expected that a person whose diabetes is as labile as Mr Gerges’ would have been referred to an endocrinologist. That does not seem to have occurred, and I am unable to conclude that the potential for optimisation of Mr Gerges’ functionality in areas affected by diabetes has been realised. His diabetes is fully diagnosed but it is clearly not fully treated and fully stabilised.

    Other conditions

16. The papers refer to a number of other medical conditions but the evidence in relation to them is very limited.

    Problems with sight

17. Mr Gerges’ compromised vision is not the subject of any useful medical evidence. An assessment of vision for DSP purposes under the relevant table (Table 12 – Visual Function) requires that there be a report from an ophthalmologist, and as noted above, none is available.

    Spinal condition

18. There are some reports of imaging of Mr Gerges’ lumbar spine including radiologists’ reports from 2005: a report of 29 August 2005[17] notes minor disc space narrowing at L5/S1, with anterior osteophyte formation, minimal disc space narrowing at L4/5 and mild degenerative change in the lower facet joints; a report of a CT scan of the lumbar spine dated 6 September 2005[18] notes slight spondylosis at L5/S1, with the disc showing a diffuse annular bulge but no herniation. These imaging results suggest that at that time Mr Gerges was not severely affected, but later comments by his doctor suggest a more severe condition: in a letter of 16 January 2018[19] Dr Manassa states that Mr Gerges suffers from chronic back pain, which is debilitating and progressively worsening; takes panadeine forte to remain functional; and is affected in his daily living activities. In a note dated 4 July 2018[20] Dr Manassa identified the condition as L5 spondylosis and L5/S1 disc herniation.

    [17] T7, folio 118.

    [18] T8, folio 119.

    [19] T43, folio 330.

    [20] Exhibit A1.

19. At a job capacity assessment (JCA) on 9 September 2014 departmental assessors noted that Mr Gerges suffered from spondylosis at L5 and L5/S1 disc herniation. Yet the expert reports available to me do not record a condition of that severity. The 2005 reports referred to above identify conditions as “slight” and “minor”, and specifically note that there was no disc herniation at that time. No doubt the condition has seen some degeneration since that date, but no subsequent imaging reports appear to be available to allow me to form a clear view on the state of the condition at the qualification period. The JCA report refers to reports by “external specialists” dated 25 March 2014 and 27 March 2014; requests to the Department for those reports yielded material already included in the T-documents and a few pages of additional material of uncertain date with no new information. I am unable to form any conclusion about the state of Mr Gerges’ lumbar condition at the qualification period, and cannot arrive at a finding that the condition was fully diagnosed, fully treated and fully stabilised at that time.

    Mental health

1. Limited evidence suggests that Mr Gerges has had some psychosocial problems coping with the medical and financial problems confronting him. On 28 December 2017 Ms Omolewa ‘Lola Erinle, a mental health clinician/social worker from the Southern NSW Local Health District wrote to the Department[21] advising that Mr Gerges was very financially stressed and unable to pay his bills. He had been referred to the local community mental health team with suicidal ideation.

   [21] T41, folio 328.

2. Mental health conditions are assessed under Table 5 – Mental Health Function, which requires that any such condition be diagnosed by a psychiatrist or with input from a clinical psychologist. In this instance no diagnosis of any kind is available. It is not clear that Mr Gerges suffers from a medically identifiable mental health condition, and his mental health problems cannot be taken into account for DSP purposes.

   Other

3. The papers include references to other conditions, notably a bilateral knee condition and neuropathic pain, but the evidence is too sketchy to be useful. I cannot form a view about the permanence of these conditions and I cannot rate them under the Impairment Tables.

   Rating for permanent conditions

4. Only one of Mr Gerges’ medical conditions meets the requirements for permanence set in the Impairment Tables, namely his amputated thumb. The appropriate table to use for rating this condition is Table 2 – Upper Limb Function (the Introduction to that Table specifies that it applies from the shoulders to the fingers). A rating under that Table may be influenced to some extent by any functional limitation deriving from Mr Gerges’ shoulder condition, as it is not possible, in general, to separate out the functional impacts of one condition from the effects of another.

5. Table 2 assigns 5 points to a person who can do most daily activities requiring the arms and hands but has “some difficulty” with most of a list requiring picking up a heavier object such as a 2-litre drink container; handling small objects such as coins, doing up buttons and reaching out to pick up objects. This is a mild functional impact. A moderate functional impact is assigned 10 points where a person has “difficulty” with most of a list of tasks, including picking up a 1-litre container; picking up a light object with both hands; holding and using a pen or pencil; doing up buttons or shoelaces; using a computer keyboard; and unscrewing a lid on a soft drink bottle. A person has a severe impact assigned 20 points if most of the following apply: “the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional”; the person has severe difficulty handling, moving or carrying most objects; the person has difficulty using a computer keyboard despite appropriate adaptations; the person has severe difficulty using a pen or pencil; the person has severe difficulty turning the pages of a book unassisted.

6. I take the phrase “most of” in Table 2 to mean “more than half”, which implies three of the four tasks in the 5-point list, at least four of the six in the 10-point list and at least three of the five in the 20-point list. It is also apparent from the Table that the distinction between “some difficulty”, “difficulty” and “severe difficulty” is important in assigning the right rating. In considering the rating it is worth noting the degree to which the loss of a thumb makes the affected hand of limited use for a wide range of purposes that are normal for those who do not share that particular disability: the opposable thumb is generally reckoned to be essential to homo sapiens as a tool-using species.

7. The thumb amputation is a longstanding injury: I believe that what Mr Gerges can do with his hands and arms now will not be significantly different from what he could do in the qualification period. At the hearing I watched Mr Gerges using his left hand and his injured right hand to move light objects, such as an empty soft-drink bottle. I would say that he exhibited “difficulty” in completing that task. I also am ready to arrive at the conclusion that to open a soft-drink bottle he would need to hold the bottle between his knees and open it with his left hand: that too is “difficult” for him. When he completed a DSP review form in March 2014 he sought help, and the form notes that he did so because of the difficulty of writing the answers himself[22]. I cannot believe that he would be able to tie shoelaces very readily and doing up buttons would surely be a challenge. For these reasons I conclude that Mr Gerges meets four of the listed tests in the 10-point rating table and he therefore meets the 10-point rating on Table 2. But I do not believe that he meets the 20-point rating: his right hand is perhaps not so severely affected that it is “non-functional” in all respects; and his difficulties are not so profound as to be rated as “severe”.

   [22] T20, folio 156.

8. I assign Mr Gerges 10 points under Table 2.

   CONCLUSION

9. Mr Gerges has a total of 10 points under the Impairment Tables He does not meet the requirements of paragraph 94(1)(b) of the Act and therefore does not qualify for DSP.

10. Mr Gerges had a successful livelihood as a tree lopper, with very good earnings and the satisfaction of exerting himself physically in the process. But his health has not allowed him to continue: he injured his hand, very possibly his shoulder injuries began at his work, and now various degenerative and other conditions have combined to limit what he can do. It appears that he is now in a difficult financial situation. It was very apparent at the hearing that Mr Gerges is quite severely disabled, with many different parts of his body and system affected. He looks back with nostalgia and regret on his younger days, when he used to lie to his doctors about his injuries so he could continue working. I very much doubt that he could now undertake any work, but the evidence does not meet the criteria for him to be granted DSP. If he were able to assemble sufficient medical evidence, however, he might well satisfy a decision-maker that he qualifies. He is of course free to submit a further application at any time.

38.     I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

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

Associate

Dated: 5 November 2018

Date(s) of hearing:	8 October 2018
Applicant:	In person
Solicitors for the Respondent:	Ms Sally Moore, Department of Human Services