Gilbert and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 198

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 198

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2450

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		MURRAY GILBERT

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date4 April 2012

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent.

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

Member

SOCIAL SECURITY ‑ disability support pension – job capacity assessments – multiple medical conditions- insufficient medical evidence to warrant allocation of impairment points- remittal to respondent.  

Social Security Act 1991 s 94(1)

Social Security Act 1991 Schedule 1B

REASONS FOR DECISION

1.      Mr Murray Gilbert, who is 62 years old, lodged a claim for disability support pension (DSP) on 10 December 2010, having notified Centrelink of his intention to claim on 30 November 2010.  In support of his claim, he provided a treating doctor’s report (TDR) from his general practitioner, Dr S Haripersad, dated 3 December 2010. A registered psychologist conducted a job capacity assessment on 10 December 2010.  Centrelink rejected the claim on 2 February 2011 because Mr Gilbert did not score the necessary 20 impairment points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent).

2.      Mr Gilbert lodged a second medical report on 21 February 2011 from Dr Haripersad (dated 18 February 2011). He had a second job capacity assessment made by an accredited exercise physiologist after a file assessment on 28 February 2011. Centrelink rejected the claim on 3 March 2011, again because Mr Gilbert did not score the necessary 20 impairment points on the Impairment Tables. On 30 March 2011 an authorised review officer from Centrelink affirmed the decision.  Mr Gilbert then sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 26 May 2011 the SSAT also affirmed the decision.  Mr Gilbert now seeks review of the SSAT decision by this Tribunal.

3.        Mr Gilbert contends that he suffers from a number of medical conditions, including an incisional hernia, frozen left shoulder, pancreatitis and gout, which severely affect his capacity to work. He believes that he should be awarded 20 impairment points on the Impairment Tables, and is therefore entitled to DSP.

4.      In his statement of facts and contentions, the respondent indicated that he accepted the SSAT findings, namely an assessment of an impairment rating of 5 points under Table 3 of the Impairment Tables for the frozen left shoulder; and no impairment rating for the incisional hernia, as it was not fully treated and stabilised. With regard to Mr Gilbert’s other conditions, the respondent held that these were either not fully treated and stabilised (pancreatitis and gout); or were well controlled and caused minimal or limited impact on functional capacity (hypertension and migraine). 

ISSUES

5.      The issues to be determined are:

·From what permanent medical conditions does Mr Gilbert suffer?

·What impairment ratings do his conditions attract?

·And, if the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

6.      The relevant assessment period is from 30 November 2010 and the subsequent 13 weeks.

LEGISLATION

7. The relevant legislation includes s 94(1) of the Act and the Impairment Tables. Section 94(1) of the Act provides:

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;

…

8.      The Introduction to the Impairment Tables provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.        The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

MR GILBERT’S EVIDENCE

9.      Mr Gilbert gave sworn evidence about his medical conditions, including an abdominal incisional hernia, a frozen left shoulder, pancreatitis, gout and excessive use of alcohol.  The Tribunal invited him to deal with each condition, in the order of its impact on him. He began by talking about his hernia.

10.     With regard to the hernia, he recounted being taken to Western General Hospital urgently in 2003 or 2005 for an abdominal abscess that had burst. There were complications that led to a second urgent operation. Following this operation, he was in an induced coma in intensive care for eight days and in hospital for thirty-three days. He required a colostomy bag for twenty-two months. He was unsure of exactly what was done at surgery but thought that some bowel had been removed, bowel had been rejoined, and the surgery was difficult because of scar tissue. He was unaware if his general practitioner had received reports from the hospital or his surgeon. No reports have been provided to the Tribunal. (Tribunal Note: this account differs in some respects from the account recorded by the SSAT although both accounts note the urgency of the second operation, the difficulty of the surgery and the time spent in intensive care).

11.     Following these operations he had an incisional hernia on the right side of his abdomen, which has steadily enlarged in size. He stated that for some months after the surgery he saw his surgeon regularly for review and asked each time about surgery for the hernia. He said the surgeon was extremely reluctant to undertake further surgery because of scar tissue and because he was lucky to survive the earlier surgery. He has not seen a surgeon for several years.

12.     The hernia gives him constant pain and he takes pain killers regularly (he takes pain killers for his other painful conditions and the medications are detailed below).  He stated that he could not lift anything heavier than about two kilograms, as this increased the pain from his hernia. He tried to use a support truss for the hernia but this gave him more pain. He stated that the hernia was now about the size of a rock melon.

13.     He reported that, in association with his hernia and/or the past bowel surgery, he is regularly troubled either by frequent loose bowel actions of up to twelve a day or by episodes of constipation that can last three to four days. He was unclear what the cause of this problem was and was unsure if it had been investigated.

14.     Mr Gilbert next recounted the history of his left shoulder condition.  He injured his left shoulder at work in around 2003, when a 120 pound gas bottle rolled away from him and he tried to grab it. He felt something go bang in his shoulder. He was unable to explain what the specific injury was but over subsequent months he received treatment including six cortisone injections, two hydrodilatations and an operation in 2006. He now has a frozen shoulder which causes continuous pain and greatly restricted movement. He demonstrated that he could elevate his left arm to just less than ninety degrees and could extend the arm backwards approximately 10 degrees.

15.     The operation on his shoulder provided little benefit and the surgeon advised him to have a second operation. He declined this, stating to the Tribunal that he was told that there was no guarantee the surgery would help him. He tried to return to his former work place on light duties but this was unsuccessful. He has not worked since 2004. He has been given exercises to do at home but these are difficult because of pain.

16.     In the context of his shoulder condition, Mr Gilbert was asked about his daily activities. He is right-handed. He is able to shower but has trouble dressing himself and on some days has to seek assistance for this. He can cook for himself and can lift a full kettle. He can do his own washing up. He can make his own bed. He can lift up to two kilograms with his right hand and arm but anything heavier increases the pain in his incisional hernia.

17.     Mr Gilbert’s pancreatitis first caused symptoms (upper abdominal pain going around to his back) in 2005. He had three brief admissions to Western General Hospital for this problem. He was told that the pancreatitis is due to his heavy drinking. He has some pain from this condition on most days and then has superimposed more severe episodes of pain.

18.     Mr Gilbert stated that before his shoulder injury he wasn’t such a big drinker; mainly drinking at the weekends. He began to drink more heavily after he lost his job subsequent to his shoulder injury. His current pattern of drinking is to be driven to the hotel each day at around 10.00 to 11.00 am and staying there until 3.00 pm. While at the hotel, he estimates that he drinks two beers and twelve full scotches. Upon returning home, he will continue to drink beer and whisky. He estimated that at home he drinks two bottles of whisky per week.

19.     Mr Gilbert was advised to stop drinking but is reluctant to do so. He has not been referred to any clinic or specialist for help or advice; and it was unclear if he would act on such a referral. He stated that nobody can help me but myself. His reasons for drinking include that drinking helps to settle me down, quieten me down and also helps reduce some of his pain. He recognises that his alcohol use makes his pancreatitis worse.

20.     After one admission to hospital, Mr Gilbert was prescribed Campral (which is intended to make him feel very ill if he drinks). He took this for two weeks, while still drinking but then stopped it because it made him violently ill. When he was asked what happens if he tries to go without alcohol, he stated that he feels weak, very jumpy and shaky.

21.     Mr Gilbert also suffers from gout.  This began in his late 30s, in a big toe. He stated that he now has pain from the gout every day in many joints including his right ankle, left knee, both wrists and his right elbow. He takes Indocid tablets for his gout.  He takes up to six per day when it is bad but this can cause his stomach to play up.

22.     Mr Gilbert stated that on most days the gout causes him to limp but there have been times that it was so painful that he had to crawl down the passage. He has never seen a specialist for this problem. He has been advised that his alcohol use makes his gout worse and he acknowledges this.

23.     For pain relief, Mr Gilbert takes Endone (5 mg) tablets, one at night and one during the day. He stated that he took this for his shoulder pain and the pain from the incisional hernia. This makes his pain better for a couple of hours. He takes Murelax each night to help him sleep.

24.     Mr Gilbert takes Karvea for high blood pressure and stated that his blood pressure is up and down.

25.     At some time in the past, Mr Gilbert experienced a blackout and fell, hitting his head on the lounge room floor. Now he sometimes feels dizzy if he stands up quickly. Many years ago he had an operation on his right elbow for tennis elbow.

26.     When Mr Gilbert was asked if he had ever been diagnosed with depression, he stated that he had been prescribed an antidepressant after he had lost his job in around 2004. He did not think he was depressed now but spoke of being knackered, fatigued all the time. He stated that in the past his depression was associated with mood swings. Now, he feels happy if I get a few grogs in me.

27.     At some point in time, Mr Gilbert had an MRI scan of the brain and has been told there is a white spot, raising the possibility of a past injury of some sort.

28.     Mr Gilbert smokes 20 to 25 cigarettes per day.

29.     In the week before this hearing, he was again admitted to Western General Hospital because of pain in the chest and pain and pins and needles in his left arm. He was also experiencing worsening upper abdominal pain, which extended to his back. He stated that several issues arose from this admission, including x-ray evidence of fractures in his thoracic spine and the need for a Holter monitor test for his heart. He was prescribed 100 mg of aspirin per day and advised to restart medication to reduce cholesterol. He stated that he had also been started on an additional tablet called Oxynorm, for his pain.

THE MEDICAL EVIDENCE

30.     Dr Haripersad is the general practitioner that Mr Gilbert attends regularly. Dr Haripersad initially provided a TDR dated 3 December 2010 and a medical report dated 18 February 2011. He wrote a letter dated 19 September 2011 addressed to the respondent and he wrote a further report dated 20 February 2012 addressed to whom it may concern.

31.     In the TDR dated 3 December 2010, Dr Haripersad diagnosed left shoulder adhesive capsulitis causing severe restriction of movement and incisional hernia following colostomy/bowel surgery for perforation of a diverticular abscess. He noted that the shoulder condition caused severe restriction of movements. In response to the question regarding any other medical conditions that are generally well managed and cause limited or minimal impact on ability to function, Dr Haripersad listed pancreatitis, gout and hypertension.

32.     In his medical report dated 18 February 2011, Dr Haripersad gave the first diagnosis as a frozen left shoulder following work related injury in 2002 and noted Murray still has pain/severe limitation of all movements. He gave a second diagnosis as incisional hernias on abdominal wall ffg [following] bowel surgery x2. In response to the question regarding any other medical conditions that are generally well managed and cause limited or minimal impact on ability to function, he listed pancreatitis, hypertension, chronic headaches fllg [following] fall and gout. 

33.     In the letter dated 19 September 2011 addressed to the respondent, Dr  Haripersad summarised information about five medical conditions, namely:

(1) chronic alcohol abuse with recurrent pancreatitis and gout; he is in       constant pain and is on Endone (opioid analgesic) on a daily basis;

(2) chronic pain as a result of his pancreatitis; 

(3) incisional abdominal hernia, following surgery for perforated sigmoid     diverticulitis in 2003 ;

(4) chronic (L) shoulder pain from a work related injury in 2002 and

(5) hypertension on treatment which is stable.

34.      Dr Haripersad added all of Mr Gilbert’s conditions are of a chronic nature and despite all the treatments Mr Gilbert’s conditions have not improved resulting in him taking medications to provide continued relief.

35.     Prior to this hearing, the respondent requested additional information from Dr Haripersad by way of a series of four questions on a single page. The page is undated but was forwarded to the Tribunal with a covering letter from the respondent dated 30 November 2011. Dr Haripersad’s answers confirmed the past brief use of Campral and Mr Gilbert’s reluctance to accept referral to a drug and alcohol clinic. In answer to a question as to whether Mr Gilbert’s pancreatitis represents end organ damage related to alcohol consumption, Dr Haripersad wrote no.

36.     The most recent report from Dr Haripersad dated 20 February 2012 and addressed to whom it may concern contains the same information as the letter mentioned in paragraph 33.

JOB CAPACITY ASSESSMENTS

37.     The first assessment was conducted by a registered psychologist on 10 December 2010. The assessor had available the TDR of Dr Haripersad dated 3 December 2010, which the assessor identifies under reference used as a report of an external specialist. In the assessment report, the assessor wrote in regard to the condition of left adhesive capsulitis that the client is likely to benefit from further active conservative management such as physiotherapy/ hydrotherapy. This condition was assessed as fully diagnosed and permanent. The report gives no impairment rating for this condition

38.     The assessor names the second condition as hernia and assesses it as being permanent, fully diagnosed and fully stabilised. Again, the assessor mentions the reference used as a report of an external specialist dated 10 December 2010. Under Table 11.2 of the Impairment Tables, the recommended rating was 10 points.

39.     On page 5 of the assessment report, the assessor noted that Mr Gilbert reports current heavy drinking and states that he believes this has increased due to his pain levels also increasing.

40.     The second job capacity assessment followed the receipt of the second report from Dr Haripersad dated 18 February 2011. The assessment was done by an accredited exercise physiologist after a file assessment on 28 February 2011. This assessor listed the condition of hernia first and deemed it to be permanent, fully diagnosed, fully treated and fully stabilised. The shoulder condition was also considered to be permanent, fully diagnosed, fully treated and fully stabilised. The other conditions listed were pancreatitis, hypertension, migraine, gout, alcohol dependence and a past right tennis elbow. Although this assessment was described as a file assessment, the assessor made telephone contact with Mr Gilbert and appears to have gathered some additional information. This assessor recommended an impairment rating of 10 points under Table 11.2 – Gastro-intestinal and an impairment rating of 5 points under Table 3 – Upper limb function.

41.     The second job capacity assessor recommended 10 impairment points for the hernia using Table 11.2 – Gastro-intestinal and noted under the heading Functional impact: Colostomy, ileostomy – well controlled. Using Table 3 - Upper limb function, the assessor recommended 5 impairment points for the shoulder condition.

42.     The SSAT regarded the condition of adhesive capsulitis as fully diagnosed, treated and stabilised and gave it an impairment rating of 5 points. However, the SSAT opined as follows with regard to the hernia: The condition has not been reviewed since the urgent and related operations from 2004. There is some indication that the condition cannot be surgically repaired, but this is not clear and there has been no subsequent review specifically in relation to this. Accordingly, the SSAT regarded the hernia as not fully treated or fully stabilised and an impairment rating was not allocated to it.

DISCUSSION OF THE EVIDENCE

43.     Mr Gilbert gave a full account of his health problems. He did not shy away from the extent of some of these problems. Having heard his medical history, it became apparent that previous decision makers were probably hampered in their responsibility by the lack of more detailed medical reports. The two forms completed by Dr Haripersad on 3 December 2010 and 18 February 2011 were quite sparing in their detail. This is partly explained by the design of the form he was required to use. However, the first report suggested that the pancreatitis and gout were well managed and caused little disability and makes no mention of alcohol misuse. The second report added headache and hypertension to the list of conditions that were well managed and caused little disability. However, again it makes no mention of alcohol misuse. Neither of these reports is consistent with the oral evidence of the applicant.

44.     Dr Haripersad’s recent letters dated 19 September 2011 and 20 February 2012 do address the issues of pancreatitis and alcohol misuse but provide little additional detail.  As the relevant considerations for a decision maker include  any advice given to Mr Gilbert regarding further treatment options for his frozen shoulder and incisional hernia, as well as any management plans for his alcohol misuse and related health issues (such as pancreatitis and gout), access to specialist opinions previously provided would have assisted decision making.

45.     In addition, the medical history provided to the Tribunal by Mr Gilbert indicates that his alcohol misuse, pancreatitis and gout were probably more troublesome in December 2010 than suggested by the reports of Dr Haripersad.

46.     Mr Gilbert gave an account of the very serious nature of the urgent abdominal surgery that left him with a large symptomatic incisional hernia and of his subsequent repeated discussions with his treating surgeon at follow up visits. This suggests to me that any attempt to treat the hernia surgically will be extremely difficult and involve great risk. However, it would be preferable to have appropriate medical evidence before reaching that conclusion.

47.     In addition, Mr Gilbert’s right to refuse treatment that carries risks unacceptable to him needs to be respected and I refer in particular to Paragraph 6 of the Impairment Tables:

In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

What treatment or rehabilitation has occurred;

Whether treatment is still continuing or is planned in the near future;

Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

In this context, reasonable treatment is taken to be:

Treatment that is feasible and accessible locally at a reasonable cost;

Where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high rate of success and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised. (Emphasis added.)

48.     Mr Gilbert’s account of the size and the degree of disability arising from the incisional hernia suggests that under Table 11.2 – Gastro-intestinal, an impairment rating higher than 10 points might be appropriate. However, in the Tribunal’s view the allocation of impairment points under the Impairment Tables is not a task for the Tribunal.

49.     Similarly, Mr Gilbert’s account of the pain and severe limitation of movement of his non-dominant left shoulder suggests that under Table 3 - Upper limb function an impairment rating of 15 points might be more appropriate than 5 points, the issue being whether he is experiencing moderate versus significant interference with hand function or manual handling.

50.     The situation is complicated by Mr Gilbert’s recent admission to hospital. His account of this admission suggests that he may now have additional, newly recognised health issues.

51.     I have serious reservations about accepting the allocation of any impairment points by the two job capacity assessors. From the evidence presented to me by the applicant and from the additional letters now provided by his treating general practitioner, it is likely that neither assessor had adequate medical information upon which to base their assessments.  However, in view of their professional backgrounds, they should not be expected to recognise the deficiency of the medical information and I make no criticism of either assessor in this regard.

52.     I am puzzled by the reference in both assessors’ reports to their use of a report of an external specialist dated 10 December 2010. As far as I can determine, they are referring to the report (TDR) of the treating general practitioner, who is clearly not a specialist.

53.     The first assessor wrote, in regard to the condition of left adhesive capsulitis, that the client is likely to benefit from further active conservative management such as physiotherapy/ hydrotherapy. This information is not contained in the first TDR from his general practitioner and is unlikely to have been proffered by Mr Gilbert.

54.     In the absence of adequate medical assessment(s), I am very reluctant to make any determination in this matter at present. I believe it to be preferable that I remit the matter back to the respondent with the following recommendation.

55.     The Tribunal recommends that the respondent arrange for a medical examination and report about the current health and past health (as at 10 December 2010) of the applicant. The report should address, as a minimum, the medical conditions currently believed to exist: i.e. incisional abdominal hernia, following surgery for perforated sigmoid diverticulitis, frozen left shoulder, chronic alcohol abuse, recurrent and/or chronic pancreatitis probably secondary to alcohol abuse, gout and hypertension. Given the range of medical conditions, this assessment should preferably be undertaken by either an experienced consultant physician in general internal medicine or a similarly experienced occupational physician.

56.     Without limiting the background material to be provided to the physician who undertakes this task, I recommend that that material include a copy of these reasons for decision.

57.     I have concerns at the expectations placed on job capacity assessors in relation to (a) completing assessments when the medical information is sparse and (b) making allocations of impairment points under the existing Impairment Tables. I am surprised that no attempt was made to obtain additional medical advice or medical information when issues around the possibility of further treatment for either the shoulder condition or the incisional hernia condition were evident or should have been evident. It would seem to me to be desirable that Centrelink should have in place written advice to guide job capacity assessors and decision makers in situations where doubts arise as to the adequacy of medical reports.

DECISION

58.     The Tribunal sets aside the decision under review and remits the matter back to the respondent.

I certify that the fifty-eight [58] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

Signed:  …………[sgd]…………………………….

Associate

Date of hearing:  9 March 2012

Date of decision:  4 April 2012
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Ms Ailsa Bramley, Centrelink Program Litigation          and Review Branch