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

[2020] AATA 1914

Hamed and Secretary, Department of Social Services (Social services second review) [2020] AATA 1914 (25 June 2020)

Division:GENERAL DIVISION

File Number:2019/4198          

Re:Gamal Hamed  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:25 June 2020  

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

SOCIAL SECURITY – Disability Support Pension – cancellation – spinal condition – fully diagnosed, treated and stabilised – moderate impairment – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

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

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

Secondary Materials

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

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

REASONS FOR DECISION

Member West

25 June 2020

BACKGROUND

1. This matter concerns the decision to cancel the Applicant’s Disability Support Pension (DSP), affirmed by the Social Services and Child Support Division of this Tribunal on 12 June 2019, and is a second tier review of that decision.

2. The relevant history of the matter is as follows:

   a.    The Applicant is 63 years old.  He previously worked as a driver.  He was granted a DSP on 13 July 2006.

   b.    In the course of assessing whether the Applicant could be granted an indefinite portability period for travel overseas, he was assessed by a Job Capacity Assessor (JCA) on 24 October 2018.

   c.     On 4 January 2019 an officer of the Respondent, having regard to the JCA report, decided to cancel the Applicant’s DSP on the basis that the Applicant no longer satisfied the eligibility criteria for a DSP (Initial Decision).

   d.    On 27 February 2019 the Applicant’s eligibility for a DSP was assessed by the Respondent’s Health Professional Advisory Unit (HPAU).  The HPAU reported on 14 March 2019 that the Applicant did not meet the eligibility criteria for a DSP.

   e.    On 29 March 2019 an authorised review officer (ARO) affirmed the Initial Decision (ARO Decision).

   f.   The Applicant sought a review of the ARO Decision by the Social Services and Child Support Division of this Tribunal (First Tier Review).

   g.    On 12 June 2019 the First Tier Review affirmed the ARO Decision.

   h.    On 12 July 2019 the Applicant sought a review of the First Tier Review by the General Division of this Tribunal (Second Tier Review).

3. A hearing in relation to the Second Tier Review was held by telephone on 14 April 2020.  Applicant was self-represented and had the assistance of an Arabic interpreter.  The Respondent was represented by Ms Sophie Roberts, a solicitor with Services Australia.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic.  These restrictions necessitated that the hearing not be conducted in person.  The Applicant and the Respondent each consented to the hearing proceeding on 14 April 2020 on the basis that it was conducted by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination): a determination made by the Minister under s 26(1) of the Act that came into effect on 6 December 2011 which contains the Impairment Tables;

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

   ·Administrative Appeals Tribunal Act 1975.

   RELEVANT DATE

6. In reviewing a decision to cancel the DSP the Tribunal must assess whether the Applicant satisfies the eligibility criteria for payment under s 94 of the Act as at the date of cancellation, in this case 4 January 2019.

7. Evidence of the claimant’s condition subsequent to the cancellation date is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the claimant’s condition at the relevant date.[1]

   [1] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; and Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]-[35].

   DSP QUALIFICATION

8. To qualify for a DSP an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed at the cancellation date.

9. In essence, s 94(1) of the Act and s 6 of the Determination require that:

   ·the Applicant has a physical, intellectual or psychiatric impairment; and

   ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

   ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

   ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

10. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

11. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

12. In conducting the Second Tier Review the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Documents), and:

    ·     the oral evidence of the Applicant;

    ·     a report of Dr Joseph Slesenger, dated 15 October 2019 (Exhibit R1);

    ·     an advisory note of the Western Australian Therapeutic Advisory Group, setting out guidelines for the pharmacological treatment of neuropathic pain (Exhibit R2);

    ·     the Applicant’s Pharmaceutical Benefit’s Scheme (PBS) Patient Summary, dated 12 December 2019 (Exhibit R3); and

    ·     the Applicant’s Medicare Record, dated 12 December 2019 (Exhibit R4).

    The Claim

13. The Applicant’s claim relates to a spinal condition.  The medical records on file indicate that the Applicant also suffers from other medical conditions including, diabetes, bladder cancer, bone cyst upper dental, hypertension, depression/anxiety and gastro-oesophageal reflux disease. In the First Tier Review, the Applicant accepted that these further conditions were generally well managed and did not give rise to an impairment to his capacity to function.[2]  The Applicant confirmed this position at the outset of the hearing and agreed that the Second Tier Review was solely concerned with his spinal condition.

    Spinal Condition

    [2] T documents, T2 at p.11 [32].

14. The Respondent accepts that the Applicant’s spinal condition was fully diagnosed at the date of cancellation and that it satisfies the definition of a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act. However, the Respondent asserted that the spinal condition, while fully diagnosed, was not fully treated or fully stabilised at the cancellation date and therefore could not be rated under the Impairment Tables. In the alternative, the Respondent contends that, if able to be rated, the Applicant’s spinal condition did not attract a rating of more than five points under Table 4 of the Impairment Tables.

    Was the Applicant’s Spinal Condition fully treated and fully stabilised at the cancellation date?

15. Section 6(3) of the Determination makes it clear that an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent. Rule 6(4) states that a condition is only permanent if it is fully diagnosed, fully treated and fully stabilised at the relevant time.

16. The Tribunal is satisfied that the Applicant’s condition was fully diagnosed at the cancellation date.  His spinal condition is of long-standing.  A radiology report by Dr R Faris dated 17 June 2004[3] noted minimal bulging of the L5-S1 disc but no significant protrusion or feature suggestive of spinal stenosis.  Dr Richard Sullivan noted

    degenerative disc disease at C4-5…with marginal spur formation at C6-7 that does not compress the cord. There is no definite soft disc herniation.[4]  

    A further radiological report on 18 March 2005[5] noted the traversing left …(indistinct) nerve root is contacted and displaced in the subarticular lateral recess by a small left paracentral disc protrusion. Dr A Coates noted on 14 April 2005[6] that there was [s]ome spondylitic changes with narrowing of interverterbral formina at several levels most marked at the left C6-7 level and on each side at the C7-D1 level.  A radiological report by Dr Raymond Shafik-Eid on 23 January 2019[7] noted that:

    [w]ithin the cervical spine there is advanced degenerative disc disease particularly at C6/C7 and C7/T1.  There is left C6/C7 foraminal narrowing with mild compression of the exiting nerve root. Quite pronounced bilateral foraminal narrowing is demonstrated at C7/T1 with moderate contact of both exiting nerve roots.

    [3] Ibid T4 at p.92.

    [4] Ibid T5 at p.93.

    [5] Ibid T6 at p.94.

    [6] Ibid T7 at p.95.

    [7] Ibid T21 at p.148.

17. The Applicant’s DSP was cancelled on 4 January 2019 following an assessment by a JCA on 24 October 2018.[8]  The JCA report notes that the Applicant had been diagnosed by his general practitioner, Dr Thomas Everitt on 17 September 2018[9] with back and neck pain, with symptoms described as low back/neck pain – chronic, daily with a reduced capacity for lifting and movements.  The JCA accepted this diagnosis and that the Applicant’s condition was permanent but concluded that there was no medical evidence to confirm that reasonable treatment had been undertaken.  The JCA identified such treatments as neurosurgical review, pain specialist review, review of medication and participation in pain management programs.  The JCA expressed the view that such interventions could reasonably be expected to identify alternative treatments and improve the level of functioning.

    [8] Ibid T19 at p.137-138.

    [9] Ibid T17.

18. On 27 February 2019 the Applicant’s file was referred to the Department of Human Services’ (as it was then known) HPAU for its consideration.  The HPAU reported on 14 March 2019[10] and concluded that the Applicant’s spinal condition was fully diagnosed, treated and stabilised and met the requirements for a rating of 5 points under Table 4 of the Impairment Tables. 

    [10] Ibid T24 at p.151.

19. In reaching its conclusion, the HPAU relied on information provided by Dr Everitt that the Applicant’s then current treatment was analgesics and that he had physiotherapy for years, with no further treatment planned.  The HPAU also referred to the statement Dr Everitt made in his brief letter to Centrelink on 24 January 2019[11] that the Applicant has had many treatments including physical ther[a]pies, NSAI’s, analgesics and seen specialists.  Dr Everitt advised the HPAU that the Applicant had seen an orthopaedic specialist, Dr Griffin, in the past but he did not have any specialist reports on his file.  The HPAU report notes that Dr Everitt was of the opinion that the Applicant did not require specialist review; he was being optimally treated and his symptoms did not warrant referral to a pain management program.

    [11] Ibid T22 at p.149.

20. The HPAU also noted the Applicant’s statement to the JCA that he was taking Brufen, Panadeine Forte and Panadol, and performing daily stretching. He also recalled having a cortisone injection and manipulation of his neck many years ago.  The Applicant also said that he had not participated in any pain management programs.

21. The documents produced to the Tribunal do not identify any specialist medical reports, nor do they disclose any physical therapy undertaken by the Applicant.

22. The Respondent provided to the Tribunal a PBS Patient Summary for the Applicant[12] which shows that in the four years prior to the cancellation date the Applicant obtained only the following pain medication on prescription: paracetamol + codeine (x20) on 29 August 2017 and oxycodone (x8) on 3 December 2018.

    [12] Exhibit R3.

23. The Respondent also produced the Applicant’s Medicare Patient History Report for the period from 12 December 2014 to 2 December 2019.[13]  It did not identify any referral of the Applicant to a mental health professional, a pain specialist or access to a physical therapist at any time in the four years prior to the cancellation date.

    [13] Exhibit R4.

24. Neither the PBS Patient Summary nor the Medicare Patient History Report were available to the HPAU at the time of preparing their report of 14 March 2019.

25. The Respondent relied on the expert advice in the Western Australia Therapeutic Advisory Group (WATAG) Neuropathic Pain Guidelines 2017[14] which set out a comprehensive five stage program of therapeutic options for the pharmacological treatment of various chronic pain conditions.

    [14] Exhibit R2.

26. The report of Dr Slesenger, dated 15 October 2019,[15] notes that since the cancellation of the Applicant’s DSP he has seen both a psychologist and a physiotherapist, and has been recommended to undergo a pain management program.  Notwithstanding these measures, Dr Slesenger concluded that he thought the Applicant, by reason of his physical impairment alone, was unlikely to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.  While noting that there were opportunities for further treatment, Dr Slesenger doubted that they would alter the Applicant’s occupational capacity to the point where he could re-enter the workforce on a consistent and reliable basis.

    [15] Exhibit R1.

27. The Tribunal finds that at the cancellation date the following situation pertained to the Applicant:

    a.First, there is no evidence, beyond Dr Everitt’s non-specific assurance to the HPAU, that the Applicant’s spinal condition had ever been assessed by a specialist, and based on the Medicare Patient History Report certainly not in the four years prior to the cancellation date.

    b.Secondly, the Applicant had not undertaken any physical therapy for at least four years prior to the cancellation date.

    c.Thirdly, the Applicant had not been undertaking a program of medically supervised pharmacological treatment for his condition over the four years prior to the cancellation date.

    d.Fourthly, the Applicant has not at any time undertaken any pain management treatment at a pain management clinic or similar facility.

28. Section 6(6) of the Determination states that a condition is fully stabilised if either:

    a.the person has undergone reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years, or

    b.if the person has not undertaken reasonable treatment and significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result even if the person undertakes reasonable treatment or there is medical or other compelling reason for the person not to undertake reasonable treatment.

29. The Tribunal is satisfied that reasonable treatment was available to the Applicant, including prescribed pharmacological treatment as outlined in the WATAG Guidelines, treatment by a psychologist and physiotherapist, as provided subsequent to the cancellation of the DSP, and a pain management program, as recommended to the Applicant by his current vocational assessment team.  Clearly this treatment was not undertaken prior to the cancellation date.  However, the question arises whether such treatment could be expected to result in a significant functional improvement to the Applicant’s condition to a level enabling him to undertake work in the next two years.

30. The only medical evidence available to the Tribunal to make this assessment is the report of Dr Slesenger, the HPAU report and the brief reports of Dr Everitt.  Dr Slesenger is clearly of the view that further treatment is unlikely to alter the Applicant’s occupational capacity.  Dr Everitt was of the opinion that the Applicant did not require specialist review, he was being optimally treated and his symptoms did not warrant referral to a pain management program.  The HPAU concluded, albeit on the basis of incomplete information regarding the Applicant’s treatment provided by Dr Everitt, that the Applicant’s condition was fully stabilised at the cancellation date.

31. On the basis of this evidence and having regard to Rule 6(6)(b) of the Determination, the Tribunal concludes that, at the cancellation date, further available treatment could not be expected to result in a significant functional improvement to the Applicant’s condition to a level enabling him to undertake work in the following two years. Accordingly, the Tribunal finds that the Applicant’s condition was fully stabilised at the cancellation date.

32. Rule 6(5) of the Determination requires the Tribunal, in deciding whether a condition has been fully treated, to consider whether treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years. In the period of at least four years prior to the cancellation date, the Applicant had essentially self-managed his condition using over-the-counter analgesic medication and daily stretching, with minimal professional medical involvement. Dr Everitt was of the opinion that this was the optimal treatment and that the Applicant did not require specialist review or referral to a pain management program. He indicated at the time the Applicant’s DSP was cancelled that no further treatment was planned. Dr Selenger disputed the utility of further treatment. In the absence of any contrary medical evidence the Tribunal is satisfied that the Applicant’s self-management of his condition amounted to it being fully treated at the cancellation date.

33. On the basis of these findings the Tribunal is satisfied that the Applicant’s condition is permanent for the purpose of Rule 6(3) of the Determination and an impairment rating can be assigned to it under the Impairment Tables.

    What rating should be given to the Applicant’s spinal condition under the Impairment Tables?

34. The Tribunal is satisfied that the appropriate table for assessing the Applicant’s condition is Table 4 – Spinal Function.

35. The Applicant gave evidence to the Tribunal at the hearing that he experiences pain in his lower back and neck.  He said that it is worse in his lower back, especially when he is sitting.  He said he has limited lateral movement in his neck, pain in his legs and feet, and some numbness in the fingers of his right hand.  He said he has headaches all the time and takes painkillers for it.  He said that he cannot sit on a chair for more than 20 minutes and must stand up to relieve the pain.  He is unable to climb stairs and sleeps downstairs at home because of it.

36. He explained that he has travelled to Egypt several times to visit his sick mother and to get away from the cold winters in Australia.  He said he has difficulty on the long flight, needs assistance in placing his bags in the overhead locker and has to stand and walk around the aircraft cabin frequently. 

1. He said he can bend forward to pick things up off a dining table, but not as low as a coffee table.  He said that he can reach above his head and stand up unassisted from a chair if he takes painkillers, but not otherwise.

2. He said he can drive short distances, but his wife usually drives him.  He said driving is difficult because he finds it hard to sit down for a long period of time and his limited neck movement means he cannot use his rear view mirrors (internal and external).  He indicated that he could travel in a car for up to 30 minutes, although he was stiff and lacked mobility when he got out of the car.

3. The Introduction to Table 4 states that the self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment, including from a medically qualified person. Section 8 of the Determination states further that:

   Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

4. There is limited corroboration of the Applicant’s claimed impairment in the reports of his treating doctor, Dr Everitt.  The report of the HPAU notes that Dr Everitt advised the Committee that the Applicant is not on strong medications and does not require opioid analgesia to manage pain.  The report states[16] that Dr Everitt:

   considers Mr Hamed has moderately impaired spinal function, and is probably not able to work.  He indicated that he was unable to comment on his domestic situation or his ability to travel overseas, although he thought it likely that his wife would attend to domestic matters and accompany him when he is travelling.  Dr Everitt indicated that, as per his medical report, Mr Hamed’s other medical conditions are well managed and do not impact on function.

   [16] T documents, T24 at p.152.

5. Dr Slesenger examined the Applicant on 5 October 2019, which was some 10 months after the cancellation date, but there is no evidence of any significant deterioration in the Applicant’s condition over that period and the Tribunal is satisfied that the observations of Dr Slesenger in October 2019 are reflective of the Applicant’s condition as at the cancellation date.  Dr Slesenger noted in his report of 15 October 2019 his observations that the Applicant:

   a.needed assistance to climb in and out of a chair and off a couch;

   b.was able to stand on his tiptoes and heels;

   c.had restricted range of movement in the cervical and lumbar spine; and

   d.had a 20% reduction of power in his upper and lower limbs.

6. The Tribunal notes that the HPAU assessed the Applicant’s condition as resulting in a mild functional impact rating five points under Table 4 and the First Tier Review Decision assessed it as rating 10 points.

7. The Tribunal is satisfied that the evidence supports a finding that the Applicant’s spinal condition meets the descriptors for a moderate functional impact attracting 10 points under Table 4 of the Impairment Tables.  The Applicant stated that he could travel in a car for up to 30 minutes, although he was stiff and lacked mobility when he got out of the car.  Although this evidence was not directly corroborated by any medical evidence, the medical evidence did corroborate the Applicant’s claim that he had difficulty moving his head to look in all directions.  Dr Slesenger recorded measurements of his range of movements in his report of October 2019.[17]  Dr Slesenger also confirmed the Applicant’s claim that he could not get up from a chair without assistance. 

   [17] Exhibit R1.

8. The evidence does not establish that the Applicant’s condition meets the descriptors of a severe functional impact under Table 4. 

9. In relation to the descriptor is unable to perform any overhead activities the Applicant gave evidence that he could not place his bag in the overhead locker on a plane but said that he can reach above his head if he has taken a pain killer but not otherwise. The Respondent submits that the Applicant’s level of functional impairment must be assessed when he is taking his usual medication. This issue is not directly addressed in the Determination, although s 9 of Determination provides that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses. In any event the Applicant’s claim that he cannot reach above his head without medication is not corroborated by the medical evidence. Dr Everitt stated that he was unable to comment on his domestic situation or his ability to travel overseas and that the Applicant was not on strong medications.  Dr Slesenger did not examine the Applicant’s ability to reach above his head.

10. In relation to the descriptor is unable to turn their head, or bend their neck, without moving their trunk, the Applicant said that he had limited neck movement and had difficulty driving because he could not use his internal and external mirrors.  He did not directly claim that he was unable to turn his head or bend his neck.  The First Tier Review Decision[18] records that the Applicant described his neck as very stiff and that he could turn his neck about half-way to the right before restricted by pain and to the left very little. The Applicant confirmed this evidence in the hearing but denied that he could look up as the First Tier Review Decision recorded at [28]. Dr Everitt did not report on the Applicant’s neck movement. Dr Slesenger recorded in October 2019 that upon examination of the cervical spine the Applicant had 0 degrees left and right rotation, 20 degrees flexion, 10 degrees extension, and 10 degrees right and left lateral tilting. He also noted that there was tenderness over the cervical spine. The radiological report of Dr Shafik-Eid of 23 January 2019[19] noted the following in relation to the CT scan of the Applicant’s upper cervical spine

    There is preservation of cervical lordosis.  No cervical scoliosis evident. Mild degenerative changes noted between the atlantodental joint.  No disc prolapse is demonstrated at C2/C3 or C3/C4 disc levels.  No foraminal narrowing demonstrated at these levels.

    [18] T documents, T2 at p.11

    [19] Ibid T21 at p.147.

11. Dr Shafik-Eid noted similar findings regarding the C4/C5 and C5/C6 disc levels, but identified significant degenerative disc disease at C6/C7 and C7/T1 levels.  Having regard to all of the evidence the Tribunal is not satisfied that, at the cancellation date, the evidence supports a conclusion that the Applicant was unable to turn his head or to bend his neck without moving his trunk.

12. In relation to the descriptor is unable to bend forward to pick up a light object from a desk or table the Applicant confirmed in his evidence that he could bend forward to reach to a tabletop and pick things up, but not a coffee table.  Dr Slesenger recorded a flexion of 10 degrees of the lumbosacral spine on examination in October 2019.  On the basis of this evidence the Tribunal is satisfied that the Applicant was able to bend and pick up a light object from a desk or table.

13. In relation to the descriptor is unable to remain seated for at least 10 minutes, the Applicant did not make this claim.  He stated that he could sit on a chair for up to 20 minutes and was able to drive or travel in a car for up to 30 minutes and take long flights to Egypt, albeit that he had to get up and walk around in the cabin intermittently to relieve the pain.

    Conclusion

14. On this basis the Tribunal finds that at the cancellation date the Applicant’s spinal condition attracted an impairment rating of 10 points under Table 4 of the Impairment Tables and did not satisfy the requirements of s 94(1)(b) of the Act, that he have an impairment rating of 20 points or more under the Impairment Tables. Accordingly the Applicant was not qualified for a DSP at the cancellation date.

    DECISION

15. The Tribunal affirms the decision under review.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Member R West.

…[sgd]……………………………………………………………

Associate

Dated: 25 June 2020

Date of hearing:	14 April 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms S Roberts, Services Australia