Guy Anderson and Secretary, Department of Social Services
[2013] AATA 915
[2013] AATA 915
Division General Administrative Division File Number
2013/2119
Re
Guy Anderson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 19 December 2013 Place Perth The decision under review is affirmed.
........................[sgd]................................................
S D Hotop
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – portability – applicant qualified for DSP – applicant receiving DSP – applicant's impairment not a severe impairment – applicant not qualified for unlimited portability period for DSP – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94 and s 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member19 December 2013
Introduction
Guy Anderson (“the applicant”) has received disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (“SS Act”) from 20 February 2002 and is presently receiving DSP.
In July 2012 the applicant contacted Centrelink regarding his intention to travel to Indonesia in August 2012 and requested a medical assessment for the purpose of determining his eligibility for unlimited portability of his DSP.
On 8 October 2012, following a Job Capacity Assessment Report dated 15 August 2012, a Centrelink officer decided that the applicant was not qualified for DSP on the ground that he had been “assessed as having an impairment rating of less than 20 points”.
On 22 February 2013, however, an Authorised Review Officer (“ARO”) of Centrelink set aside the abovementioned decision and instead decided that the applicant continued to be qualified for DSP but that he did not satisfy the requirements for unlimited portability of his DSP.
On 22 April 2013 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.
On 7 May 2013 the applicant lodged with the Tribunal an application for review of the SSAT’s decision.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T55, pp 1–288) lodged on behalf of the Secretary, Department of Social Services (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A9 tendered by the applicant; and
·the oral evidence of the applicant.
The Issue
The respondent does not dispute that the applicant has, at all material times, continued to be qualified for DSP under s 94 of the SS Act.
Accordingly, the sole issue for the Tribunal’s determination is whether the applicant is qualified for unlimited portability of his DSP.
The Relevant Legislation
Section 1218AAA of the SS Act provides as follows:
“1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
(i)a serious accident involving the person;
(ii)the hospitalisation of the person; and
(b)the person’s portability period for disability support pension had not ended at the time the event occurred.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
work means work:
(a)that is on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.”
Section 94(3B) of the SS Act provides as follows:
“ Severe impairment
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.”
Section 94(4) of the SS Act provides as follows:
“ Doing work independently of a program of support
A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing”
The phrase “program of support” is defined in s 94(5) of the SS Act to mean:
“ a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.”
The phrase “Impairment Tables” is defined in s 23(1) of the SS Act to mean “the tables determined by an instrument under subsection 26(1)”.
Pursuant to s 26(1) of the SS Act the (former) Minister for Families, Housing, Community Services and Indigenous Affairs made the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), dated 6 December 2011. The Determination commenced to operate on 1 January 2012. The relevant Impairment Tables and other relevant provisions in the Determination will be referred to later in these reasons.
The Applicant’s Evidence regarding his Impairment
The applicant confirmed that he had prepared a Statement of Facts and Contentions for the purpose of this proceeding (Exhibit A1) and earlier statements which are included in the T Documents, namely:
·a statement addressed to the ARO, dated 12 October 2012 (T37);
·a statement addressed to the ARO, dated 7 February 2013 (T44);
·a statement addressed to the Tribunal, dated 30 April 2013, which accompanied his application for review (T1, pp 3–4).
The applicant’s description of the extent of his functional impairment resulting from various medical conditions is most comprehensively set out in his abovementioned statement to the ARO dated 12 October 2012 (T37) which includes the following:
“ …
My illness has been a near two decade ordeal and greatly reduces all my capacities as well as disrupting principal bodily functions that healthy individuals don’t have to worry about. These include sleep function, digestion and elimination, resistance to infection, recovery from activity, repair and generation/healing of bodily tissues, and homeostasis. Despite graduating from school with exemplary grades I have been unable to pursue my chosen career path; I have also been unable to pursue a fulfilling social, personal, sporting or recreational life. Since scaling down my pharmacy degree to an arts degree that I struggled painfully through part-time, my illness has become progressively more severe, and more incapacitating in nature, despite my exhaustive and committed management and efforts at treating it. No matter what the activity is; physical, postural, and/or cognitive, the nature of my illness demands that I discontinue it sooner or later and rest up completely, or risk suffering the consequence of a major increase in the base-line day-to-day level of pain and increase [sic]. This at best could have consequences for a month or so (flare-up for several weeks) or be a permanent neuro-plastic increase in symptoms, as I have previously suffered. This is why any work I have undertaken since graduating from university in 2001 has been temporary only. Recovery and the maintenance of baseline levels of pain and other symptoms mean that I am unable to pursue any given activity to any satisfying degree for a sustained period. The activity, recreational or not, must be discontinued in order for the increased pain level and associated physiological dysfunction (spasm of muscles, exacerbation of associated conditions) that it has generated be allowed return [sic] to table base-line levels. I must perform this cooling down for an indefinite amount of time that is always related to the nature of the activity that has been performed and the length of time that activity has been sustained. The consequences of failure to do this are not an option to me.
I suffer primarily with Post Traumatic Fibromyalgia, and Chronic Myofascial Pain Syndrome. They are still largely misunderstood and maligned diagnosis in uninformed and most unspecialised medical circles, that are both however completely supported globally by clinical data and collaborative and corroborated scientific studies [sic]. For me in 1994 Perth, a relative backwater then, the search for a diagnosis for my severe illness was exhausting and frustrating. My diagnosis therefore was arrived at largely by an exhaustive exclusion process, in which I undertook x-rays, in depth blood testing, neurologist intervention, MRI imaging, monkish [sic] diet restrictions, diet supplementing, and much private research. Most of the doctors I saw had no idea of the pathogenesis of what I was suffering and unfortunately the process of searching for answers was therefore extremely time and money wasting and exhausting. Once I had heard the illness described by a rheumatologist – although one with limited knowledge of the various degrees and severities of the illness – it was clear from the beginning that Fibromyalgia was the correct diagnosis.
It was only once I began to engage with other sufferers through Arthritis Foundation support meetings, that I heard of doctors that were knowledgeable about Fibromyalgia. With the advent of the internet too, I was able to gather a clear and unequivocal understanding of my illness. This led me to a physiatrist; Dr John Whiteside who immediately identified and demonstrated that the extreme pain and discomfort, I was feeling was due to widespread muscle spasm of a severe nature. This was another breakthrough for me but despite hundreds of injections of lidocaine solution into my face, head, neck, back, shoulders that were locked in spasm, my condition remained absolutely refractory. Upon release of the taut muscles that consisted of shortened dynamically contracted sarcomeres and the tubules and their covering fascia, I would experience only very temporary relief if any before the muscles returned to their contracted state. I pursued treatment extensively with John but to no avail and to great financial cost. I later discovered that Fibromyalgia is a CNS sensitization or dysregulation that causes and perpetuates the muscle contractions, and this explains why treatment was so ineffective with John. It was then I began to take amitriptyline for its anti-cholinergic (muscle relaxing and sleep promoting) properties. I had slept only momentarily for months by this stage such was the pain. I saw other practitioners for acupuncture, dry-needling, massage, physiotherapy interventions, eclectic current therapy, cupping, dietary restrictions and supplementing. I got some relief from a chiropractor who identified a twisted and malpositioned axis vertebrae and straightening of the normal cervical curvature in my neck – both proceeds of the heavy whiplash injury that triggered my condition. My improvement over the first two years after getting ill was still grossly inadequate, and I had been forced to drop my intense pharmacy degree, my busy social life, playing the guitar, my heavy swimming regimen, and even split with my long-term girlfriend.
Having had to accept that what I had was serious and refractory, I pulled myself up and enrolled in uni again but with some 25 percent of my former capacities and energy, and in a less intensive faculty and degree course. By this time the muscle had just dropped of [sic] me. My head was in a constant tremor from the spasmed shoulder, cervical muscles and cranial muscles. I could sleep again due to the Amitriptyline but sleep was light and dreamy and unrefreshing. I struggled on for five years to complete my course whilst pursuing further answers from the Perth medical community. During this time my pain and the constant draining spasm continued to spread. Not only that but I developed a characteristic associated condition where my bowel locked up into a string of painful knots – permanently. For two years I would only be able to pass waste when the pain had reached 10 out of 10 and I would be beset with cramping diarrhoea that had my [sic] on the toilet or squatting wherever I could till my legs went numb, and tears and perspiration smeared my face.
It wasn’t until I met Doctor Carr at the Dunsborough Medical Centre, who described the smooth muscle contractions and gave me a smooth muscle relaxant Mebeverine that I had any relief. During the hiatus my capacities had greatly reduced and socializing was usually impossible due to the foul gas and embarrassing sounds and bloating that emanated from my now permanently spasmed colon. With the mebeverine I was able to re-enrol in university and tediously and exhaustingly grind out my degree. I doggedly pursued more answers during this period and gradually the condition spread to all four quadrants of my body. The hip spasm and pain that spread down the side of both legs was particularly agonizing and would occur with any prolonged standing or sitting or physical activity. I continued to take mebeverine that is patented and expensive in increasingly large doses. I also felt groggy from the medication and exhausted all the time from the non-restorative sleep. During this time I read and purchased a number of books and articles about my condition and my knowledge of it increased dramatically. I was able to identify what had beset me as Post-Traumatic fibromyalgia (specifically the most incapacitating and severe of the sub-sets), refractory secondary Myofascial Pain Syndrome, and secondary severe IBS or ‘spastic colon’ which is generated peripherally through referred pain pathways, and centrally by all the intractable and sustained muscle tension and lack of rest and recovery due to it. Physician authors such as Mark Pellegrino, and Robert Bennett, are seminal in their understanding of and experience with fibromyalgia. Travell and Simons, document and clearly explain the nature and mechanisms of Myofascial Pain Syndrome better than anyone else I’ve found. The literature gave me understanding, but did nothing to relieve my suffering which continued to mount.
I finally graduated from uni and went up north to Canarvon [sic] camping with a friend only to be hit by a major flare [sic] of my symptoms. I remember being in agony with the new level of spasm, had severe vertigo and unable to take my sunglasses off due to the central sensitization, let alone help pack up, and made tens of agonizing toilet stops in the spinifex on the evacuation route. I was in bed for 4 months with severe vertigo and pain after which I moved down to Denmark, with the aid of a close mate, and was alone on an isolated property bent in pain, and severe dizziness, mentally confused, emotionally spent with a cluster of sensitivities including most painfully photo sensitivity, and out of control widespread Myofascial Pain Syndrome with a shocking permanent tension headache much worse than that I already suffered. My already heightened CNS sensitization had undergone an increase through the forcing measures that I had to adopt to grind through my uni course grossly un-medicated. I had burst through a threshold level of pain due to long hours forcing concentration from myself whilst so distracted by pain. My nervous system went up a notch in sensitization and this change was as permanent as the initial onset of symptoms in late 1994 – six months after my severe whiplash injury. During a period of two years after this spike in symptoms that didn’t appear to be reversing itself I tried many medications including the artificial opiods [sic], tramadol, neurontin, lyrica, muscle relaxants like Baclofen and Norflex, and others – a list of which I recently compiled and provided to Dr Brian Galton-Fenzi. I had no negligible [sic] relief from these medications and experienced appalling dizziness from the Baclofen.
After seemingly interminable suffering I had the fortune, in spring 2004, of meeting with Dr Malcolm McCallum, at that point a recently retired orthopaedic surgeon who researched further with me on the internet, and referred me to a Pain Specialist Dr Andrew Dean. I had been very ill and almost completely incapacitated non-vocationally included for more that [sic] two years. I saw a Physiotherapist also of Malcolm’s recommendation, who identified my thoracic region as totally locked-up and immobile and we based our time around mobilizing it but with no success – the muscles remained dynamically taut. Dr Dean however, by the grace of god, was full bottle on chronic pain mechanisms and neuroplasticity (an unfortunate mechanism whereby the nervous system adapts to constant noxious stimuli by actually becoming more sensitive. Mechanisms that are thought to underpin Fibromyalgia come into play: peripheral and central gating mechanisms fail, wind-up of pain signals occurs in areas of the spinal cord and subsequently the brain, and new pain relaying neurons even sprout. He put me on Avanza a heavily sedating anti-depressant with additional merits for pain, as well as Effexor which is a nSRI, a nor-epinephrine and serotonin re-uptake inhibitor with central activity at blunting pain processing in vital parts of the brain. I slept for 2 months and gradually found that muscles that had been locked in spasm and refractory to all modalities could be stretched out somewhat for the first time in a decade. The medications are synergistic in their disruption of the vicious cycle of the mechanisms of chronic pain in Fibromyalgia and Chronic Myofascial Pain Syndrome, and their subversion of peripheral and central pain processing. My relief however is still temporary, and is reliant equally upon my deep breathing, gentle stretching and meditation techniques to achieve. The relief too only lasts until the next aggravating activity which includes any physical or mental activity that repeated or sustained [sic]. I have found injection of botox into my neck muscles the most sustained and effective treatment for the spasm, but its cost is prohibitive. My life is a constant battle to walk the tight-rope. Living increases the pain and fatigue, and associated disorders and this must be managed because it only feeds on itself, and snowballs. I get sick every day and then with my meds and my prone meditation, acupressure balls, and breathing some of the spasm can be unlocked again, but before long I must have total rest again. I have been able to include paced walking at regular intervals during periods of stability, with some sporadic and limited amount of swimming. I find that I only tolerate swimming in the ocean because of the increased buoyancy and spinal support from this as well as the decreased weight and resistance of one’s body in the water. My muscles tense and lock up if I try to swim in a chlorinated pool, and these spasms are areas of local hypoxia, are extremely painful and draining and transmit and refer pain and drive my allodynia and CNS sensitization, and my secondary associated conditions for days after the swim. I suffer flare-ups constantly from emotional and environmental stressors, and try to have two breathing sessions during my short day (sleep 10-12 hrs a night) that last generally 1 to 1 and a half hours before the level of spasm is tolerable again, and my anxiety and confusion reduce. I have suffered greatly from return trips to Australia. I have extreme symptoms for up to ten days now following each leg of the journey back and forth. I have also been getting a flu that has lasted up to six weeks on almost every trip back or forth. The altered routine imposed by flight times, the cramped travelling and sustained postural positions, the cognitive stress of organising documents and tickets etc in pressured situations, the vertigo and anxiety of being airborne in rough weather, as well as the anxiety and mental processing of constantly interchanging my living environment, increases the pain significantly and this consistently runs me down to the point of viral infection or at the very least a strep throat. I also suffer with much increased tension and pain, difficulty concentrating bordering on confusion, and extreme vertigo each trip. I require several days in bed on the end of each journey to recover my base-line level of symptoms.
Once I have finally recovered from the CNS sensitization and increased illness caused by the journey I am vastly more relaxed, and have access to more affordable physical therapy as well as social/family support, here in Java. Massage therapy is the best tolerated and most effective physical modality of treatment for Chronic Myofascial Pain syndrome, and I try to get it as often as I can, when I am well enough – sometimes twice weekly – something I cannot afford to do in Australia. The masseuse also visits so I am not faced with a journey in a vehicle (which one usually is in Australia) that undoes a good degree of the benefit. Socially, I have the support of my wife Sumiati, and young children, whom I am struggling to spend enough quality time with at the moment. In Australia I feel isolated socially in an increasingly individualistic culture, impoverished, and frustrated at my capacity in comparison to friends my age. I also cannot afford physical treatment to any satisfactory level, and will be forced to suffer the unbearable emotional burden of separation from my wife and children, if I am forced to return full-time, because my uneducated non-English speaking wife is reluctant to move to Australia, where she will suffer obvious isolation familially, linguistically and culturally, and be without any domestic assistance. In Indonesia we have assistance from my wife’s family, and paid help with domestic duties, including babysitting, that has been indispensable considering my limited physical endurance. In Indonesia we can also afford to eat fresh vegetables and fruits on a daily basis which, of course, help with our overall health.
To wrap up, I suffer from the Fibromyalgia with widespread pain, secondary insomnia (except when sleep is induced artificially), CNS sensitization [to loud sounds (I never forget my earplugs in Indo and I’m wearing a pair now), light, movement, and posture], impaired ‘alpha/delta’ sleep disorder that persists despite meds, low resistance to stress and infection, poor recovery from all activity, dizziness, secondary generalized anxiety disorder that is directly governed by my current pain levels, secondary depression, irritable bowel symptoms, widespread shooting and aching pains. I also have Chronic Post Traumatic Myofascial Pain Syndrome, which is a constant drain and agony to me. I must always regulate the level of muscle spasm and get prone and relaxed before it becomes too severe because any recovery hinges on reducing the spasm and pain and avoiding a lengthy self-perpetuating cycle of spasm and pain and CNS sensitization. I have recently due to the stress of waiting on matters outside my control and the constant journeying, been suffering a prolonged episode of increased Myofascial pain with to [sic] the point that it has triggered nausea and vomiting after swimming and daily diarrhoea for a period of two and a half weeks. These gastric and bowel symptoms always arise once that contractions in paraspinal regions of my thoracic and lumbar musculature reach severe levels. I also deal with major side effects of my medications like nausea, sexual dysfunction, sleepiness, poor concentration, and weight gain which increases the mechanical load on already dysfunctional muscles. My conditions are managed to current scientific standards as well as a large effort from me personally.
My current treatment is totally in line with globally recognised, current scientific standards of treatment based on in-depth research into my illnesses, and equally it is the culmination of 18 years of dogged resolve to get well that has included so much trial and error and the development of a suitable day-to-day home treatment plan. …” (T37, pp 185–189)
In his oral evidence the applicant said that the following Impairment Tables were most applicable in assessing the degree of his functional impairment:
·Table 1 – Functions requiring Physical Exertion and Stamina;
·Table 4 – Spinal Function;
·Table 10 – Digestive and Reproductive Function.
Table 1 – Functions requiring Physical Exertion and Stamina
As regards functions requiring physical exertion and stamina (Table 1) the applicant said that he has “constant fatigue” and “spends a large amount of time in bed sleeping off medications” and trying to ease the spasms around his spine and widespread spasms affecting other parts of his body including his shoulders, bowels, legs and feet. He said that his condition “interferes with household duties on a daily basis”, and he added that he is “unable to sustain work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours”.
The applicant said that the medical diagnosis of this condition is “chronic pain or fibromyalgia” and that he relied on the reports of Dr Salmon, Dr Whiteside and physiotherapists (set out below) for corroboration of his impairment.
In response to questions from the respondent, the applicant said that he can do household chores such as making his bed, carrying washing, putting it into the washing machine or dryer, and vacuuming his room, “but not on a consistent basis”. He added that he is able to perform these activities “a couple of days a week for short periods”.
Table 4 – Spinal Function
The applicant said that he cannot normally perform any overhead activities for any length of time “without having the pain increase straight away”. He said that he experiences the pain in his head, face, neck and “all the way down to the base of [his] spine” including the paraspinal muscles especially through the mid back, and “shooting pain” in his elbows and hands. He said that he relied, for corroboration of this impairment, on the report of Mr Stovell, Physiotherapist, the report of Dr Whiteside and the report of Dr Ken Maguire (set out below).
In response to a question from the respondent, the applicant confirmed that he can wash his hair and said that he does this “every couple of days”.
Table 10 – Digestive and Reproductive Function
The applicant said that spasm in his back has over time “triggered a change in the tone of [his] digestive system”. He said that this started with cramps and eventually became “spastic” and “locked up”. He said that there is a “constant state of spasm in the bowel” and that he gets “gastric reflux the whole time”.
The applicant referred to the descriptors in Table 10 and acknowledged that he did not always meet the descriptor for 20 points and that he “fluctuates” between the descriptor for 10 points and the descriptor for 20 points.
Recent Medical Material
The following recent medical material is in evidence.
Dr Venay Haripersad
Dr Haripersad, the applicant’s treating general practitioner, completed a Centrelink Medical Report form, dated 26 July 2012, in which he indicated as follows:
·the applicant has medical conditions which have a significant impact on his ability to function, namely, “chronic fibromyalgia” and “anxiety/depression”;
·as regards fibromyalgia:
- the diagnosis is confirmed;
- the current symptoms are “ongoing pain”;
- its impact on the applicant’s ability to function is that he is “unable to do physical activity without pain” resulting in “increased anxiety/depression” and “sleep deprivation”;
- its current impact on the applicant’s ability to function is expected to persist for “more than 5 years”;
- in his opinion the applicant “cannot currently do their usual work or study or any other work for 8 hours or more per week”. (T30)
A letter from Dr Haripersad, dated 9 January 2013, which is addressed “To Whom It May Concern”, states as follows:
“ Mr Guy Anderson is a known patient of Dalkeith Medical Centre since December 2000 and has being diagnosed and treated for a long time with Chronic Fibromyalgia.
He has seen several Physicians and Allied Health Practitioners; namely Rheumatologist, Pain Specialist, Physiotherapists/occupational therapist and Psychologist over this long period and these are still ongoing as needed.
It is evident that his medical issues are chronic and persisting, though variable in intensity at different times, in spite of the various medical and allied interventions.
His usual daily physical activities are tolerated minimally and he has to often rest/break to help decrease the ongoing pain.
It is again evident that his condition will be ongoing and any medical therapy/treatment is only of temporary relief.
Mr Anderson’s chronic condition has invariably lead to mental issues of anxiety/depression and social withdrawal. In the recent past his mental/patience tolerance has being grossly reduced, becomes easily agitated and his flow of thoughts of possible self harm/suicide, though not overt, is becoming apparent.
I am sure your Department takes all necessary care to assess your clients judiciously. However I would strongly recommend that all the medical facts be relooked at as Mr Anderson’s primary chronic fibromyalgia is now only part of his total medical disability/issues.
As Mr Anderson’s present medical issues are now quite complex, I happy to be contacted to clarify any aspect.” [sic] (T42)
Dr Brian Galton-Fenzi
Dr Galton-Fenzi, Occupational Physician, Musculoskeletal Medicine and Pain Management, provided a report, dated 13 June 2011, to Dr Haripersad which states as follows:
“ Thank you for your referral of Mr Anderson who saw me at my Osborne Park rooms on 08/06/2011.
History: He stated that in November 1994 he had an abrupt onset lower spinal and buttock aches and pains following his attempt at ‘high kicking’ a large tree whilst under the influence of alcohol. Following investigations he was told that he had ‘soft tissue damage’. Whilst the main symptoms may have settled, he continued with ‘dizziness and wired up. He did not feel right’.
Subsequently, over the next three months he had spent time surfing which had resulted in right leg spasms after his surfing activity and later developed ‘left shoulder spasms and tension’.
Mr Anderson describes generalised aches and pains ‘spreading throughout the body’ over the next three years, and continued with neck symptoms. He had visited the chiropractic and recalls ‘injection therapy’ with Dr J Whiteside. He had gone to university not completing the initial pharmacy degree, though did complete an arts degree. Throughout this period he had significant counselling and saw psychologists and psychiatrists. In 2004 he saw a pain specialist and recalls being treated with Efexor and Avanza. During this period his anxieties had increased, so these had helped. However, his weight increased. He had also seen Dr P Graziotti, asking him for ‘Botox’ which despite Dr Graziotti’s reluctance, was given which ‘relaxed his muscles for three months’.
Mr Anderson indicates that he has continued to see Paulien De Boer at Dalkeith Medical Centre. He also stated that he has had ‘glandular fever’ a few times.
Current Symptoms: He states that he has ‘muscle spasm and muscle tension’ in his neck, shoulders, down his spine (paraspinal) largely around the neck and thoracic spinal regions. He states that ‘these are difficult to unknot’.He has ‘hip pains which radiate into both legs’ with associated ‘twitching and tension’. He has ‘gut tension’ and stomach problems.
He stated that he had asked to see me for ‘prolotherapy’.
Other Medical History: He states that he has asthma and currently takes nightly Ventolin. He states that he is ‘allergic to fish oil’ and speculated whether he was allergic to anti-inflammatories.
Current Medication: Pristiq 100 mg daily; Amitriptyline 25 mg at 8.00 pm. He has been on Mebeverine for ‘bowel cramps’, though has not had this for four weeks, finding he is under less stress at the moment. He takes Ventolin each night.
He states that in the past he has been on Efexor and Avanza, which helped his anxiety symptoms though increased his weight.
He states he receives no current physical therapy, though when in Indonesia (where he is currently living with his wife and her family) he receives massage.
Social/Recreational: He is a non-smoker. Very intermittently he has alcohol, though did not have any following earlier periods of binge drinking, though may binge now once a month.
He walks some 4-5 km for some forty-five minutes with some jogging on a daily basis He tries to play the classical guitar though his aches and pains tend to deter him.
Clinical review: He presents as a tall, solid and mildly overweight man. He was intense in personality, worried and anxious in presentation. There were no obvious physical disabilities.
On observation he exhibits a normal gait; he sat without trouble; he undressed and redressed without difficulty and got on to and off the examination couch readily.
There is no clinical anaemia, no jaundice and no lymphadenopathy.
Supine blood pressure was 130/60 with a regular pulse of 72/min. There were no other cardiovascular findings.
The respiratory system reveals widespread expiratory rhonchi, most focused in the right mid-zone (he states he has a productive cough without coloured sputum).
Abdominal examination was unrewarding, with no organomegaly.
Musculoskeletal review reveals a normal spine, though there was general increase in tension and discomfort at end-of-range with movements in the cervical, thoracic and lumbosacral spines. Upper and lower limb review was normal.
Neurologically there were no abnormal findings with cranial nerves II – XII NAD, symmetrical and normal reflexes, normal muscle strength throughout proximally and distally, and normal dermatomal sensations.
I utilised the opportunity to briefly review the available radiological investigations: former x-rays of the lumbosacral region, upper limbs and hands were normal.
Summary: Mr Anderson complains of muscle spasms and muscle tension predominantly in the cervical and thoracic spinal regions and shoulder areas, tending to be related to physical activities. He has evidence of a centrally generated neurogenic sensitisation – not strictly a neuropathic pain syndrome. He has what is loosely characterised as ‘fibromyalgia’ with ongoing anxiety.
Recommended Medical Management:
1.He is to continue with his Pristiq 100 mg per day, as this does also have central pain modifying effects.
2.Amitriptyline (Endep) 25 mg each evening (though I would recommend he take this 6:00 – 7:00 pm, rather than later in the evening) and consideration could be given to reducing this to a 10-20 mg does, given his statements of ‘tiredness’.
3.He should continue with his daily activity encouraging a 30-mintue walk at brisk pace on a daily basis.
4.Cognitive behavioural therapy towards a better understanding of his condition for six sessions using the Primary Care Access of five sessions under Medicare Benefits. A number of psychologists specialise in this area of pain management.
5.I explained the inadequacies of prolotherapy in these particular conditions, as it is a specific sclerosant for the sacrospinous and sacrotuberous ligaments. Evidence-based medicine in fact not supporting any prolotherapy, anywhere in the body.
6.Consideration could be given to a trial of Gabapentin 300 mg od – tds which will be expensive for at least six months along with long-acting paracetamol (Panadol Osteo) two tablets tds for the same period, which could rectify his central neurogenic pain condition of fibromyalgia.
7.These conditions remain medically controversial, though working in pain medicine as I have now done for some considerable period, we have identified a number of medications have [sic] been shown to be of benefit, which include paracetamol, SNRI’s, TCA’s along with aerobic activities. It is important to stay clear of opioids of course.
Should you feel that a further review of Mr Anderson is warranted, say in six months, I would be happy to do this.” (original emphasis) (T24)
Dr Galton-Fenzi completed a Centrelink Medical Report form, dated 3 August 2012, in which he indicated as follows:
·the applicant has medical conditions which have a significant impact on his ability to function, namely, “fibromyalgia syndrome”, “irritable bowel syndrome”, “asthma”, and “depression”;
·as regards “fibromyalgia”:
- the diagnosis is confirmed;
- the current symptoms are “muscle tension/discomfort/spasms neck, shoulders, spinal”;
- its impact on the applicant’s ability to function is that “tiredness” impacts on his “endurance”, and also results in “ongoing anxiety and low resilience”;
- its current impact on the applicant’s ability to function is expected to persist for “2–5 years”. (T31)
Dr John Salmon
Dr Salmon, Specialist in Pain Management, provided a report, dated 26 February 2013, to Dr Haripersad. In that report Dr Salmon set out the applicant’s history, and previous and current treatment, as follows:
“ Thank you for asking me to see Guy Anderson.
Guy describes the development of persistent pain after he did a ‘high kick’ in 1994 at the age of 18 years. He developed severe neck and mid dorsal region pain, dizziness and neck stiffness and had to cease his pharmacy studies for a couple of weeks.
However the pain became persistent and over a further period of time extended into the abdominal region and also diffuse head pain.
He had to cease his pharmacy studies and also developed markedly disturbed sleep.
He saw Dr Paul Zilko, rheumatologist, later that year who diagnosed fibromyalgia and prescribed nigh time amitriptyline which had some modest benefit.
He then started an arts degree which he eventually finished after 5 years but this was a considerable struggle because of widespread pain. During this period pain extended into the lateral legs to the feet and he developed more severe bowel dysfunction with variable constipation and nausea which did improve somewhat on the anti spasmodic mebeverine.
By 2002 the pain had increased further and he had to cease surfing activities and was unable to work and developed increasing anxiety and later depression.
In 2004 he saw Dr Andrew Dean, physician who started him on the anti-depressant efexor and avanza which significantly improved his sleep and mood.
He went to Indonesia in 2006 and married an Indonesian girl and they have child [sic] aged 3 years and also a step son.
In recent years he has been living part-time in Indonesia but recently this has become much more difficult because of hassles with social security.
Currently he describes widespread continuous aching, burning or shooting pain intensity 2-5/10 which is most troublesome in the head and neck and upper to mid dorsal regions but also variably extends to the lumbar region, abdominal region and lateral legs to the feet and also down the arms to the middle fingers.
The pain is provoked by sitting longer than about 30 minutes as well as activity with a walking tolerance of 40 minutes.
He has not worked for a considerable period of time.
…
Previous treatment has included review by a large number of specialists including Malcolm McCallum, orthopaedic surgeon, John Whiteside who performed trigger point treatment without benefit and Paul Graziotti who performed a botox injection to the neck which had temporary benefit.
He has also seen Stephanie Davies, pain specialist at Bethesda Hospital some years ago and more recently he has been attending the pain education services given by John Quintner at Shenton Park.
He has also recently had some dry needling from Mark Stovell, physiotherapist at Shenton Park.
He has an appointment to attend the Sir Charles Gairdner Hospital pain management centre referred by the psychiatrist Dr Hussain and he is also currently seeing a psychologist, Neil Leroux.
Current analgesic medication consists of amitriptyline 25-50 mg at night sometimes with additional avanza if he needs more night time sedation and pristiq 100 mg once a day and mebeverine.
He has tried tramadol, lyrica and cymbalta but did not obtain benefit or side-effects were a problem.
A physical examination was not conducted today, psychometrics showed anxiety and depression scores with in [sic] the normal range on the DASS questionnaire but he had a low pain self-efficacy score of 17.”
Dr Salmon also set out a management plan for the applicant’s future treatment as follows:
“ …
I have recommended a combined treatment approach comprising multi-disciplinary CBT based pain management and more specific additional treatment of his neural sensitization mediated pain.
With this in mind I have referred him for multi-disciplinary assessment and treatment at the Wray Avenue Clinic, Fremantle.
Additional analgesic medication options include trial of low dose opiate such as norspan 10-20 mg patches changed weekly and possibly a trial of low dose targin or methadone or jurnista.
A further trial of anti-convulsant medication could be considered such as epilim or lamictal.
There is also the theoretical trial of Nevro high-frequency cervical spinal cord stimulation which we have found during the last year or so to be effective on a number of patients with widespread neuropathic pain including fibromyalgia type presentations.
We discussed this treatment process including the trial treatment protocol briefly today.
He would need to complete multi-disciplinary assessment at the Wray Avenue Clinic, Fremantle before this treatment could be considered further.
I have asked to see him again in about a month.” (Exhibit A7)
Dr Salmon provided a follow-up report, dated 28 March 2013, to Dr Haripersad as follows:
“ I reviewed Guy Anderson at Cottesloe rooms on 28 March.
He has been trying the norspan patches, he initially noted significant side-effects but also reduction in his pain symptoms and over a period of time the side-effects have receded and amongst the benefits he notes significant improvement in sleep.
We have agreed that he should continue on the norspan 20 mg and he needs to remember to take adequate coloxyl and senna for any constipation side-effects.
He feels that efexor was more effective for his anxiety symptoms than the pristiq and this may well be the case and I think he should be able to return to efexor if necessary.
He also needs to be careful to adjust the night-time dose of amitriptyline so that it doesn’t cause daytime drowsiness.
He has not yet taken up my referrals for multi-disciplinary assessment and treatment at the Wray Avenue Clinic – he is concerned about the efficacy of this approach having seen a lot of individual therapists and is currently engaged with a psychologist that he is happy with. I have suggested that he sees the occupational therapist Julia Kingsley and the physiotherapist only at the Wray Avenue Clinic initially. He should not underestimate the markedly improved efficacy of an adequately integrated team approach to his management compared to individual therapy.
He has recently been reviewed by Dr Hussain psychiatrist at Sir Charles Gairdner Hospital and mention was made of referral to the pain management unit there and this would of course be much less costly than treatment in the private sector but he would not find the treatment approach would be flexible to his situation.
He remains distressed about difficulties with obtaining an accurate assessment of his problems by Centrelink and the impact on his capacity to visit his wife and child in Indonesia.
He clearly has a significantly disabling diffuse neuropathic pain disorder interactive with significant psychological dysfunction. Classification as a ‘somatoform’ disorder does not adequately capture the physiology and complexity of his condition, and indeed this term is rarely used in the pain medicine literature nowadays.
I have asked to see him again in about six weeks.” (Exhibit A8)
Dr John Whiteside
A letter from Dr Whiteside, dated 9 January 2013, regarding the applicant, which is addressed to Centrelink, states as follows:
“ I am a qualified medical practitioner. I have specialized in the area of soft tissue pain for the past 25 years.
I examined Guy today. He has easily palpable Myofascial trigger points in the following muscles – bilaterally, worse on the right.
Sternocleidomastoid
Posterior cervicals
Upper and lower trapezii
Rhomboids
Erector spinae full length
Tensor fascia latae
Vastus lateralis
These physical findings confirm the level of disability he has documented for you in his submission.” (T43)
A letter from Dr Whiteside, dated 30 August 2013, regarding the applicant, which is addressed to Centrelink, states as follows:
“ I am a qualified medical practitioner. I have specialized in the area of soft tissue pain for the past 25 years.
I examined Guy today. He has easily palpable Myofascial trigger points in the following muscles – bilaterally, worse on the right.
Sternocleidomastoid
Posterior cervicals
Upper and lower trapezii
Rhomboids
Erector spinae full length
Tensor fascia latae
Vastus lateralis
These physical findings confirm the level of disability he has documented for you in his submission, ‘Attention Authorised Review Officer’ dated 12/10/12.” (Exhibit A5)
[The Tribunal infers that the document referred to in the last sentence of Dr Whiteside’s letter is document T37 whose contents were set out in paragraph 16 above.]
Dr Cynthia Acacio and Dr Salam Hussain
A report of Dr Acacio, Psychiatric Registrar, and Dr Hussain, Consultant Psychiatrist, Sir Charles Gairdner Hospital, dated 12 March 2013, which is addressed to Dr Haripersad, states as follows:
“ We reviewed Mr Anderson at the Psychiatry Outpatient Clinic today following a referral from Dr Peter Clark, Consultant Psychiatrist who saw Mr Anderson at the Emergency Department of Sir Charles Gairdner Hospital on the 8/4/13.
Mr Anderson had presented on that day quite agitated and had expressed an intent to kill a Centrelink Officer who he believed was writing false information so that he would not be able to get his disability pension.
This is on a background of longstanding chronic pain issues following a soft tissue injury (whiplash) in his early 20s which he reports has prevented him from pursuing a career despite being able to finish a university degree in Arts and Indonesian studies. He sees Dr John Salmon, a pain specialist, for management of his chronic pain.
He is on Desvenlafaxine 100 mg, Amitriptyline 25 mg nocte, Mebeverine, and supplemental magnesium and Vit B tablets.
He has a wife and children in Indonesia who he sees regularly, but has recently been told that his Centrelink benefits may be stopped if keeps [sic] going overseas for extended periods of time, and the uncertainty of when he will see his family again is causing him a lot of stress and anxiety.
Positively, Mr Anderson was engaging during the interview. He has reportedly been reading research studies on pain medication and comes across as articulate, intelligent and motivated to find answers for his longstanding pain. He is amenable to discussion about finding solutions to his predicaments. He does not display symptoms of clinical depression psychosis, suicidality or homicidality. He is insightful into his tendency to poor anger control but he attributes that to the injustice that he felt he experienced with the Centrelink administration.
Our impression is that Mr Anderson displays symptoms consistent with somatoform pain disorder. He acknowledges the link between his pain symptoms, their severity and his emotional state. He also displays symptoms suggestive of a Generalised Anxiety Disorder on a background of anxious perfectionist personality traits.
His symptoms have been perpetuated by his pain syndrome following his accident, which has made a significant impact on his life in terms of not being to [sic] finish studying pharmacy, and get a career.
Our proposed management plan includes:
a)Psychoeducation about the interplay between emotional state and pain symptoms, and how anxiety can also produce and exacerbate physiological symptoms and pain perception and vice versa.
b)Encouragement to continue utilising strategies to help with anxiety and tension, such as meditation, and ongoing engagement with Dr Salmon regarding chronic pain management. It may be prudent to use non-opiate alternatives in the management of his pain considering the evidence in complex presentations similar to Mr Anderson’s.
c)Discussion of changing his 100 mg desvenlafaxine to 225 mg venlafaxine as there is more evidence about Venlafaxine for the treatment of anxiety. We would appreciate it if you could facilitate and monitor this change in medication.
…” (Exhibit A4)
Physiotherapy Reports
A letter from Bernd Adolph, Subiaco Sportsmassage Clinic, dated 29 November 2012, regarding the applicant, which is addressed “To whom it may concern”, states as follows:
“ Guy attended the clinic on Tuesday 27th November 2012. The client sates that in 1995 he was diagnosed with Fibromyalgia and chronic myofascial pain. Guy presented to the clinic complaining of myofascial pain in the back, neck and iliotibial bands. The client described the pain as a dull ache that is ongoing. The client takes his own medication of anti-spasmodic medication to relieve the pain.
The client received deep tissue massage to the back, neck and legs. The treating therapist noticed tensile tissue in the following muscles;
Levator scapulae
Rhomboids
Erector spinae
Quadratus lumborum
Upper trapezius
Iliotibial bands
In particular on the right side of the body.
…” (T40)
A letter from Michael Stovell, Physiotherapist, dated 13 December 2012, regarding the applicant, which is addressed to Dr Haripersad, states as follows:
“ I reviewed Guy on the 30 November 2012 who presented with a long standing history of fibromyalgia which has limited his functional capacity. He reports spasm and increased tone notably across the mid-thoracic, lower cervical and lateral thigh regions with any increased physical activity.
A general musculoskeletal screen identified:
Standing lumbar : flexion to mid tibia
: full range extension
: side flexion left and right to knee joint line
Thoracic rotation : half range and side flexion half range
Thoracic extension : limited with notable stiffness of the T2 – T7 thoracic facet joints on palpation
Hip flexion : full range
Hip extension : 10 degrees limited by iliopsoas
Quadriceps length : Full range
Left hamstring : 45 degrees
Right hamstring : 70 degrees
Tight iliutiul bilaterally
Left dorsiflexion : 5 degrees
Right dorsiflexion : 10 degrees
A tight illiotibial band bilaterally.
There were multiple myofascial trigger points in the upper middle trapezius muscles, rhomboids and lateral thigh musculature.
Guy would benefit from a graduated exercise programme that can be best provided by a specialized Pain Management Clinic.” (T41)
Earlier Medical Material
The following earlier medical material was tendered in evidence by the applicant.
Dr Ken Maguire
A report of Dr Maguire, Consultant Physician in Rheumatic Diseases and Sports Medicine, dated 14 June 2001, which is addressed to Dr Sally Hildred, states as follows:
“ Guy Anderson was reviewed on the 14th June, 2001.
Problem 1 – Spinal Pain:
Guy has a long history of spinal problems particularly involving the right mid to lower cervical spine and lower back. Previous reviews have been undertaken by Physiotherapists and trigger point therapy by Dr John Whiteside. Previous blood tests have suggested perhaps a slight elevation of CPK. Non-steroidals have been used in the past with no benefit.
He feels that he does have spinal related problems but his other concern is the aching within the muscles. It has been suggested that he does have a fibromyalgia type syndrome for which various tricyclic anti-depressant type medications have been used, some with some benefit. He was concerned, however, there may be an intraspinal pathology and discussed the issue of possible MRI. Certainly he does have restriction of his neck motion to his right and tenderness of the periscapula and erector spinae muscle groups over the right side of his cervical spine. I have suggested proceeding to the MRI in case there is a major discal abnormality contributing to almost a radiculopathy pattern.
I would be pleased to review him thereafter.
…” (Exhibit A9)
Dr Geoffrey Ryan
A report of Dr Ryan, Gastroenterologist, dated 15 January 2011, regarding the applicant, which is addressed to Dr Paulien de Boer, states as follows:
“ Thank you for referring this young man whom I saw on 12 January.
The main aspect of his past history occurred at the age of eighteen years when he fell from a tree and experienced a whiplash injury. He dates a number of health problems from this event including thoracic spinal pain and now ‘fibromyalgia’.
During the last two or three years, he has also had consistent abdominal symptoms, mainly lower abdominal pain and an abnormal bowel habit. The abdominal pain occurs daily and sometimes spreads diffusely through the abdomen. His bowel habit consists of alternating constipation and diarrhoea. He remains constipated for four or five days and then, during the diarrhoeal phase, will pass about three soft or watery motions per day. No rectal bleeding has been observed. During the last two years, he has used mebeverine (Colofac) frequently with considerable benefit.
He has a good appetite, stable body weight and no upper gastrointestinal symptoms.
He does not smoke, he seldom consumes alcohol and takes no regular medication likely to damage the gastrointestinal tract. There is no known family history of digestive disease.
He is single, lives at home with his parents and attends University where is is [sic] studying English and Indonesian.
He has previously worked at various jobs including serving in a bottle shop, gardening and cleaning. He uses doxepin to help with sleep and he has frequent vivid dreams. He feels unrefreshed on waking in the morning but has more satisfactory energy later in the day.
On examination blood pressure was 140/60 in the supine position. There was no pallor jaundice. The abdomen was soft and not distended. There was mild tenderness in the periumbilical region and right iliac fossa. The caecum and sigmoid colon were readily palpable. The findings in the abdomen were otherwise normal.
He has had numerous blood tests over the years but no specific investigations for abdominal symptoms.
His abdominal symptoms are typical of irritable bowel and I feel there is little chance of major organic pathology here. The favourable response to an antispasmodic medication fully supports the diagnosis of irritable bowel and he was seeking reassurance that continuing this treatment was satisfactory. In most patients with irritable bowel, it is possible to withdraw treatment from time to time although relapses are common. In his case, it does appear that he requires virtually constant treatment and I feel this is still the best option for his management. I do not believe there is any urgency about abdominal investigation but I would be pleased to review him and consider this matter if there are major changes in symptoms or any other concerns.
…” (Exhibit A2)
A further report of Dr Ryan, dated 5 November 2002, to Dr de Boer states as follows:
“ Thank you for asking me to review this young man who continues to have abdominal symptoms typical of irritable bowel. I reviewed him on 31 October.
For treatment, he has been using mebeverine (Colofac) for at least a couple of years and he finds this medication quite helpful. Recently, he has also used the motility agent tegaserod (Zelmac) which as expected has produced loose stools at times but does provide an improved sensation of bowel emptying.
On examination there was no pallor or jaundice. The abdomen was soft and not distended. There were no areas of tenderness and no palpable organs or masses.
I do not feel there is a need to investigate him further as there seems little prospect of identifying significant organic disease. He is satisfied to use the above medications as required. I have provided him with a suitable letter which he may use to obtain a rebate from HBF for supplies of tegaserod.” (Exhibit A3)
Analysis and Findings
Section 1218AAA(1) of the SS Act sets out the four “qualifying circumstances” which must exist before a person can be qualified for an unlimited portability period for DSP.
The applicant is receiving DSP
It is common ground that the first of those circumstances, namely, that “the person is receiving disability support pension” (s 1218AAA(1)(a)), exists in this case, and the Tribunal so finds.
Is the applicant’s impairment a “severe impairment”?
The second “qualifying circumstance” is that “the person’s impairment is a severe impairment (within the meaning of subsection 94(3B))” (s1218AAA(1)(b)).
Pursuant to s 94 (3B) of the SS Act, a person’s impairment must, in order to constitute a “severe impairment, be “of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.
The question which must be determined, therefore, is whether the applicant has an impairment of 20 points or more under a single table within the Impairment Tables.
As previously mentioned, the tables within the Impairment Tables, which the applicant considered most applicable in assessing the degree of his functional impairment, are Table 1, Table 4 and Table 10. The Tribunal agrees and notes that, in the Introduction to each of those Tables, the following requirements (inter alia) are specified:
·the diagnosis of the relevant condition must be made by an appropriately qualified medical practitioner;
·self-report of symptoms alone is insufficient;
·there must be corroborating evidence of the person’s impairment, for example, a report from the person’s treating doctor or from an appropriate medical specialist.
Table 1 – Functions requiring Physical Exertion and Stamina
On the basis of the abovementioned reports of Dr Haripersad and Dr Galton-Fenzi, the Tribunal finds that the diagnosis of the relevant condition suffered by the applicant is fibromyalgia. The Tribunal notes that an alternative diagnosis is neuropathic pain disorder, as stated by Dr Salmon.
Table 1 includes five impairment ratings, namely, 0, 5, 10, 20 and 30 points, together with a “descriptor” for each rating describing the level of functional impact appropriate for that rating. The descriptors range from “no functional impact” (0 points) to “extreme functional impact” (30 points). The respondent contends that an impairment rating of 10 points is appropriate, whereas the applicant contends that an impairment rating of at least 20 points is appropriate.
The descriptors relating to the impairment ratings of 10 points and 20 points in Table 1 are as follows:
Points
Descriptors
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (eg shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (eg changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (eg shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (eg folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
According to the applicant’s own evidence, he has “constant fatigue” and his condition “interferes with household duties on a daily basis”. However, in cross-examination he acknowledged that he can do household chores, such as making his bed, carrying washing and putting it into the washing machine or dryer, and vacuuming his room, “a couple of days a week for short periods”. The applicant, furthermore, did not claim to be unable to walk around a shopping centre or supermarket, or from the carpark into a shopping centre or supermarket, without assistance, or to use public transport without assistance. Accordingly, the applicant’s own evidence does not satisfy para 1(a) of the descriptor for a 20 points rating in Table 1. Nor do any of the relevant abovementioned medical reports support the proposition that the descriptor for a 20 points impairment in Table 1 is satisfied in the applicant’s case. Although Dr Whiteside’s letters of 9 January 2013 and 30 August 2013 state that his findings on each of those occasions “confirm the level of disability” described by the applicant in his statement of 12 October 2012 to the ARO (set out in paragraph 16 above), they do not (like the applicant’s statement) specifically address the descriptors in Table 1 and are, accordingly, of little assistance to the Tribunal in determining the appropriate impairment rating for the applicant in Table 1.
The Tribunal finds, therefore, that the applicant’s impairment is insufficient to satisfy the descriptor for a 20 points impairment rating in Table 1.
Having made that finding, it is unnecessary, for present purposes, for the Tribunal to make a finding as to which of the impairment ratings below 20 points in Table 1 is appropriate in the applicant’s case.
Table 4 – Spinal Function
The diagnosis of the relevant condition suffered by the applicant, for the purposes of Table 4, is fibromyalgia.
Table 4, like Table 1, includes five impairment ratings and descriptors ranging from 0 points (“no functional impact”) to 30 points (“extreme functional impact”). The respondent contends that an impairment rating of no more than 10 points is appropriate, whereas the applicant contends that an impairment rating of at least 20 points is appropriate.
The descriptors relating to the impairment ratings of 5 points, 10 points and 20 points in Table 4 are as follows:
Points
Descriptors
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (eg activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (eg to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (eg accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (eg turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
The applicant’s evidence was that he cannot normally perform any overhead activities for any length of time without experiencing increased pain. He did not dispute that he is able to:
·turn his head or bend his neck without moving his trunk;
·bend forward to pick up a light object from a desk or table; and
·remain seated for at least 10 minutes.
He said that he relied, for corroboration of his inability to perform any overhead activities, on the abovementioned reports of Mr Stovell, Dr Whiteside and Dr Maguire.
The Tribunal notes that none of those reports (or any of the other medical reports which are in evidence) specifically addresses the performing of overhead activities or confirms that the applicant is unable to perform any such activities. In the opinion of the Tribunal, furthermore, the applicant’s own evidence is more consistent with an inability to “sustain overhead activities” (see the descriptor for 10 impairment points) rather than an inability to “perform any overhead activities” (see the descriptor for 20 impairment points).
Accordingly, the Tribunal finds that the applicant’s impairment is insufficient to satisfy the descriptor for a 20 points impairment rating in Table 4.
Having made that finding, it is unnecessary, for present purposes, for the Tribunal to make a finding as to which of the impairment ratings below 20 points in Table 4 is appropriate in the applicant’s case.
Table 10 – Digestive and Reproductive Function
The diagnosis of the relevant condition suffered by the applicant, for the purposes of Table 10, is irritable bowel syndrome, as confirmed by Dr Ryan, Gastroenterologist, in his abovementioned reports of 16 January 2001 and 5 November 2002, and by Dr Paulien de Boer in a Centrelink Treating Doctor’s Report form completed on 19 September 2008 (T22), and as stated by Dr Galton-Fenzi in the abovementioned Centrelink Medical Report form completed by him on 3 August 2012.
The applicant’s own evidence was that he “fluctuates” between 10 points and 20 points in Table 10. The Tribunal notes, however, that in his statement addressed to the Tribunal, dated 30 April 2013, which accompanied his application for review (T1, pp 3-4), the applicant stated:
“ I will contend that it would be accurate to award me 5 points from Table 10 … because pain, bloating, gas, reflux, bleeding etc etc regularly impair my attention and concentration.”
The descriptors relating to the impairment ratings of 5 points, 10 points and 20 points in Table 10 are as follows:
Points
Descriptors
5
There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least one of the following applies:
(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b) the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
10
There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a) the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b) the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;
(c) the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
20
There is a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a) the person’s attention and concentration at a task is [sic] frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b) the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;
(c) the person’s condition may affect the comfort or attention of co-workers;
(d) the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.
Section 11 in Part 2 of the Determination – “Rules for applying the Impairment Tables” – relevantly states:
“ 11 Assigning an impairment rating
(1) In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; an
…
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
…”
The most recent medical evidence which relates to the applicant’s condition of irritable bowel syndrome is a Centrelink Treating Doctor’s Report form completed by Dr Paulien de Boer on 19 September 2008 in which it is indicated that:
·the current symptoms are “intermittent abdominal pain, alternating constipation and diarrhoea”;
·its impact on the applicant’s ability to function is that it “reduces endurance”. (T22)
Having regard to the applicant’s own evidence, the abovementioned report of Dr de Boer, and the absence of any more recent medical evidence relating to the functional impact of the applicant’s irritable bowel syndrome condition, the Tribunal is satisfied, and finds, that the applicant’s impairment rating is well below 20 points on Table 10.
Having made that finding, it is unnecessary, for present purposes, for the Tribunal to make a finding as to which of the impairment ratings below 20 points in Table 10 is appropriate in the applicant’s case.
Other relevant Impairment Tables
Although the applicant did not seek to rely on any Impairment Tables other than Table 1, Table 4 and Table 10 in this proceeding, the Tribunal (for the sake of completeness) notes that, having regard to the applicant’s diagnosed conditions, Table 2 (Upper Limb Function), Table 3 (Lower Limb Function) and Table 5 (Mental Health Function) may also be relevant.
Having regard to the applicant’s evidence and the medical (including physiotherapy) evidence in this matter, the Tribunal is satisfied, and finds, that the applicant’s impairment rating is well below 20 points on each of Table 2, Table 3 and Table 5.
Finding
Accordingly, the Tribunal finds that the applicant’s impairment is not a “severe impairment”, within the meaning of s 94(3B) of the SS Act, and that, accordingly, the “qualifying circumstance” set out in para (b) of s 1218AAA(1) of the SS Act does not exist in the applicant’s case.
Other “qualifying circumstances”
It necessarily follows that the Tribunal also finds that the “qualifying circumstances” set out in paras (c) and (d) of s 1218AAA(1) of the SS Act – each of which is predicated on the existence of a “severe impairment” – do not exist in the applicant’s case.
As regards the “qualifying circumstance” set out in para (d) of s 1218AAA(1) of the SS Act, furthermore, the Tribunal notes that it is not satisfied that the applicant’s impairment “would prevent [him] from performing any work [as defined in subs (5) of s 1218AAA] independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years”. The Tribunal is not so satisfied having regard to:
·the applicant’s own evidence in which he referred to the preventive effects of his domestic situation and practical considerations rather than his impairment; and
·a report of Dr Sandra Armstrong, Health Professional Advisory Unit, Department of Human Services, which refers to a discussion with Dr Haripersad (the applicant’s treating general practitioner) on 11 February 2013 and states that “Dr Haripersad agreed that [the applicant’s] work capacity for sedentary work would be more than 2 hours per week” (T47).
The Tribunal notes that no evidence was presented to it which indicates that Dr Haripersad does not accept the view attributed to him in Dr Armstrong’s report.
Conclusion
The Tribunal concludes, therefore, that the applicant is not qualified for an unlimited portability period for his DSP, pursuant to s 1218AAA of the SS Act, and it so determines.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member ........[sgd D Brodie]...................................................
Administrative Assistant
Dated 19 December 2013
Date of hearing 15 November 2013 Representative of the Applicant In person (unrepresented) Representative of the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
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Administrative Law
Legal Concepts
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Statutory Interpretation
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Administrative Decision-making
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Judicial Review
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