Hejazi and Secretary, Department of Social Services (Social services second review)
[2019] AATA 2116
•23 July 2019
Hejazi and Secretary, Department of Social Services (Social services second review) [2019] AATA 2116 (23 July 2019)
Division:GENERAL DIVISION
File Number: 2018/4208
Re:FERESHTEH HEJAZI
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Member K. Parker
Date:23 July 2019
Place:Melbourne
The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – disability support pension – neck, left arm, right ankle and back conditions – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised and likely to persist for more than two years – whether impairments arising from permanent conditions attracted 20 points or more under the Impairment Tables – eligibility requirements not met – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 37
Social Security Act 1991 (Cth), ss 23, 26, 94
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, ss 3, 6, 11
REASONS FOR DECISION
Member K. Parker
23 July 2019
introduction
1. The Applicant, Mrs Hejazi, has claimed the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act). Mrs Hejazi first claimed the DSP on 21 February 2017. Mrs Hejazi made a second claim for DSP on 10 January 2018.
2. Mrs Hejazi’s two DSP claims were rejected by Centrelink and she sought review by an Authorised Review Officer (ARO). The ARO affirmed Centrelink’s decision to reject both of her DSP claims.
3. Mrs Hejazi sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the ARO’s decision. The AAT1 found that:
a.(a) for the first and second DSP claims made by Mrs Hejazi:
i.(i) her conditions of “neck pain” and “left arm pain” were fully diagnosed, but were not fully treated or fully stabilised and for that reason could not be assigned impairment ratings under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables); and
ii.(ii) her condition of “lower back pain” was fully diagnosed, treated and stabilised. However, there was insufficient medical information available for the AAT1 to be satisfied that it resulted in any appreciable functional incapacity and for this reason, no impairment rating under the Impairment Tables was assigned to this condition by the AAT1;
b.(b) for the first DSP claim, her condition of “right ankle injury” was not diagnosed as the claim was made several months prior to the fracture of the ankle; and
c.(c) for the second DSP claim, her condition of “right ankle injury” was fully diagnosed and treated, but it was not fully stabilised, because there was no explanation, specialist evaluation or management of her ongoing right ankle symptoms and for this reason, no impairment rating under the Impairment Tables could be assigned to it.
d. 4. Mrs Hejazi sought review of the AAT1’s decision by the General Division of the Administrative Appeals Tribunal (this Tribunal).
e. 5. This Tribunal will assess Mrs Hejazi’s two DSP claims on the basis of the conditions identified by her at the hearing before this Tribunal. At the hearing, Mrs Hejazi was assisted by an interpreter in the Farsi (Persian) language. Mrs Hejazi confirmed that she had neck pain; numbness and pain (especially at night) in her left arm; lower back pain; and that she had fractured her ankle.
f. 6. Pursuant to her obligations under s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Secretary, Department of Social Services (the Secretary) lodged sets of documents with the Tribunal on 22 August 2018, 22 January 2019, 2 April 2019 and 8 April 2019 (referred to collectively as the T-Documents) and a copy provided to Mrs Hejazi.
g. 7. On 20 May 2019, Mrs Hejazi provided to the Tribunal a medical report by Ms Anita Huguenin, physiotherapist, which was countersigned by Associate Professor Lynden Roberts, rheumatologist, Monash Medical Centre, and dated 7 February 2019. The Secretary did not object to the late lodgement of this evidence. Instead she provided a further brief written submission to the Tribunal dated 22 May 2019, which was copied to Mrs Hejazi. Mrs Hejazi was given the opportunity to respond to this submission, but did not to do so.
h. 8. The relevant assessment periods in this case extend from:
i.(d) the date that Mrs Hejazi made her first claim for DSP being 21 February 2017 for a period of 13 weeks, ending on 23 May 2017 (Assessment Period #1); and
j.(e) the date that Mrs Hejazi made her second claim for DSP being 10 January 2018 for a period of 13 weeks, ending on 11 April 2018 (Assessment Period #2).
k. 9. The Tribunal has taken into account all of the documentary evidence lodged before and after the hearing of this application, including various medical reports and certificates, a Job Capacity Assessment (JCA) Report dated 15 May 2017, the Department Assessment Services Recommendation for DSPA Medical Eligibility dated 26 February 2018, the Employment Services Assessment Report (ESA Report) dated 15 March 2018, various Centrelink records, the Secretary’s Statement of Facts, Issues and Contentions dated 21 January 2019 (Secretary’s SFIC), the Secretary’s Further Statement of the Facts, Issues and Contentions dated 8 April 2019 (Secretary’s Further SFIC) and the Secretary’s further written submissions by email dated 22 May 2019 (Secretary’s Further Submissions). The Tribunal has also considered the oral submissions made and evidence given by Mrs Hejazi; and the oral submissions made by the Secretary’s representative at the hearing of this application.
l. 10. The Tribunal has decided to affirm the decision under review for the reasons outlined in these Reasons for Decision.
Legislative framework
a. 11. Section 94 of the Act sets out the qualification requirements for the DSP (as relevant to this application):
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(3B)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.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)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.
Other definitions
(5)In this section:
program of support means 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.
…
“training activity” means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
a. (a) education;
b. (b) pre-vocational training;
c. (c) vocational training;
d. (d) vocational rehabilitation;
e. (e) work-related training (including on-the-job training).
Work means work:
a. (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
b. (b) that exists in Australia, even if not within the person’s locally accessible labour market.
12. ‘Impairment Tables’ is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years. The Impairment Tables assign ratings to determine the level of the functional impact.
13. “Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
14. The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition 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 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
15. Section 6(1) in Part 2 of the Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do; not on the basis of what the person chooses to do or what others do for the person. Section 6(2) also provides that the person’s medical history must be considered before applying the Impairment Tables to a person’s impairment.
16. Further, section 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Section 11(4) provides that 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.
issues
17. The issues to be determined are, as at the time of the assessment periods:
a.(a) whether Mrs Hejazi had any physical, intellectual, or psychiatric impairments;
b.(b) whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
c.(c) if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
d.(d) if so, whether Mrs Hejazi had a continuing inability to work; and
a.(e) unless the Tribunal finds that Mrs Hejazi had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one Table), whether she had satisfied the program of support requirements.
evidence before the Tribunal
Information provided by Mrs Hejazi on her DSP claim form
a. 18. The T-Documents included:
b.(f) an extract (pages 3, 4, 27-32) of the claim form completed by Mrs Hejazi on 2 February 2017 in relation to her first DSP claim (T-Documents T5); and
c.(g) an extract (pages 3, 4, 26-32 only) of the claim form completed by Mrs Hejazi on 5 January 2018 in relation to her second DSP claim (T-Documents T15).
d. 19. Those extracts contain statements by Mrs Hejazi that she was born in September 1962. She is 56 years old and lives in an outer suburb of Melbourne. The addresses shown on those claim forms are different. Mrs Hejazi had moved house between lodging the first and second claim form. Mrs Hejazi states on both forms that her preferred language was Persian (Farsi).
e. 20. On the first claim form, Mrs Hejazi’s “disabilities, illnesses or injuries” were listed as follows:
Sever(sic) cervical spinal canal and bilateral neural exit foramen stenosis at C5/C6. Moderate C6/C7 spinal canal and L/neural exit stenosis.
*C5/C6 – spinal canal stenosis with compression of the cord.
C6/C7 – thecal sac contacting the cord.
a. 21. On the second claim form, Mrs Hejazi’s “disabilities, illnesses or injuries” were listed as follows:
Chronic neck pain, radiating to left arm. Daily analgesic use has minimal benefit in controlling the pain. I have attended physiotherapy sessions but the pain has not settled. MRI reported severe changes in spinal canal. Currently on waiting list to see neurosurgeon.
Chronic lower back pain with disc bulge. Physiotherapy and hydrotherapy did not help. It has affected my ability to performing daily routines.
Right ankle fracture on 21/7/17 which has been treated surgically in Box Hill hospital. The pain has not settled despite treatment.
a. 22. On both claim forms, Mrs Hejazi indicated that she did not “believe that [she] required nursing home level of care, frequent support or supervision from a carer, or palliative care”. Mrs Hejazi listed the current treatment on the first claim form as “medication – NSAIDs. Physiotherapy. Specialist referred (con. Neurosurgeon) – awaiting for the date” and on the second claim form as “regular analgesics (Panadol)(Oxycodone), Physiotherapy, Hydrotherapy”. On both claim forms, Mrs Hejazi indicated that she was not expecting to have an operation in the future.
b. 23. On the first claim from, Mrs Hejazi listed Dr Siranthi Sandamali Hetti Aranchchige Perera, general practitioner, in Rowville; and on her second claim form, Dr Ali Soleimani, general practitioner, and two physiotherapists, “David” and “[Dianna] Sorbello”, as persons who could provide information about her disabilities, illnesses or injuries.
c. 24. Mrs Hejazi stated on her second claim form that she could not work due to her treatment. She stated that she had completed a Bachelor in Nursing. On her first claim from, Mrs Hejazi stated that she been granted a drivers’ licence. No history of employment was provided.
d. 25. Mrs Hejazi indicated on the first claim form that she had not participated in a program of support over the last three years and that she was not sure when she could do any activities that would help her prepare for work.
Medical evidence
Radiological findings – MRI cervical spine; CT scan lumbar spine
a. 26. On 4 January 2017, an MRI was performed on Mrs Hejazi’s cervical spine and a radiologist concluded as follows:
Severe spinal canal and bilateral neural exist foramen stenosis at C5/6.
Neurosurgical review is recommended.
Moderate C6/7 spinal canal and left neural exist foramen stenosis.
a. 27. On 31 March 2017, a CT scan was performed on Mrs Hejazi’s lumbar spine and a radiologist concluded as follows:
Posterior disc bulges from L3/4 to L5/S1 resulting in mild spinal canal stenosis. Associated mild left L5/S1 and right L4/5 neural exit foreman stenosis.
a. 28. In the CT report, the radiological results record that “disc bulge at L5/S1 indented the anterior thecal sac resulting in mild spinal canal stenosis contacting the descending S1 nerve roots” with “no evidence of neural compression”.
Dr Siranthi Sandamali Hetti Aranchchige Perera, former GP
a. 29. On 28 March 2017, Dr Perera issued a medical report stating that Mrs Hejazi had been suffering from “chronic neck pain” and “radiculopathy pain”; and that an MRI had shown the following:
Severe spinal canal and B/L neural exit foramen stenosis at C5/C6 with compression of cord but no associated signal changes. Moderate spinal canal and left neural exit foreman stenosis.
a. 30. In this report, Dr Perera stated that Mrs Hejazi had, currently, been “taking medication for pain and doing physiotherapy”. The doctor stated that Mr Hejazi had been referred to a specialist and was on the waiting list. Dr Perera stated:
Her condition is permanent unless she is undergone a surgery, still she is on the waiting list for specialist review.
a. 31. Dr Perera issued a further medical report dated 20 April 2017 in similar terms. It included the following additional information:
… Pain is radiating along the L/ arm and because of the L/ arm pain, movements of the L/ arm is reduced.
…
Her second problem is Posterior disc bulges from L3/L4 to L5/S1 resulting in mild spinal canal stenosis and mild neural exist foreman stenosis. She is doing physiotherapy for her lower back pain as well.
Ms Dianna Sorbello, physiotherapist
a. 32. Ms Sorbello, physiotherapist at Monash Health, wrote to Dr Perera on 21 July 2017 to report the following:
Thank you for referring Mrs Hejazi, regarding her neck and left arm pain. Mrs Hejazi was seen in the Back and Neck Clinic.
Mrs Hejazi reports neck and left arm pain that began five years ago of insidious onset. It was initially managed in Iran with injections with some benefit. Mrs Hejazi reports a flare-up of this pain in 2016, and it began radiating further down the left shoulder and into the left arm. She attributes this flare up to possibly carrying heavy bags while travelling. Treatment to date has been five visits with physiotherapy, where she was provided with manual therapy and home exercises that provided short term relief. Mrs Hejazi is also attending hydrotherapy weekly and finds this very helpful and takes regular Panadol.
Mrs Hejazi’s current symptoms are constant pain in the posterior left shoulder radiating down the left arm towards the forearm and constant numbness in the left thumb, second and third finger. Aggravating factors are using her left arm, lying on her left side, performing her household tasks and carrying anything with her left arm. It is eased with Panadol 2 to 6 per day and hydrotherapy. Mrs Hejazi does describe waking at night, five to six times, due to this pain. She denies any particular morning symptoms.
Mrs Hejazi’s past medical history includes low back pain of two to three years with no radicular symptoms that she self-manages and right knee osteoarthritis. Her only regular medicine is Panadol. She denies any unexpected low of weight, loss of appetite, fevers, or night sweats. Mrs Hejazi has not bladder/bowel disturbance, saddle anaesthesia and or falls in the past 12 months. She does get giving way once a month in her right knee, which she attributes to her osteoarthritis. Mrs Hejazi denies any pain or neurological symptoms in her right arm.
Mrs Hejazi lives at home with her husband and children. She moved from Iran nine months ago. Mrs Hejazi previously worked as a nurse for 25 years in Iran but is not working now. She is using a single-point stick for the past 12 months for mobility due to her right knee pain and low back pain. She is right-hand dominant.
On assessment today, Mrs Hejazi has no obvious muscle wasting in the upper or lower limbs. Her gait was independent with nil aids and with her single point stick. It was not antalgic or ataxic. Mrs Hejazi had reduced cervical extension and left lateral flexion range limited by local cervical pain. There was no reproduction of any arm symptoms with cervical range of motion. Mrs Hejazi’s neurological examination in the upper limb demonstrated reduced power 4/5 in the left C4, 5, 6 and 8 myotomes with some pain associated with this. Right upper limb myotome power were all 5/5. There was reduced sensation in the left upper limb globally. Babinski was down-going bilaterally. Clonus, Hoffman’s and limb tone were all NAD. Both upper and lower limb reflexes were all equal and symmetrical bilaterally.
…[reference to radiological results of MRI cervical spine and CT scan of lumber spine]
Based on today’s assessment Mrs Hejazi main issue is multilevel degenerative change in her cervical spine, worst at C5/6 resulting in neck and left arm pian. She has reduced power and sensation in her left upper limb but reflexes remain intact. There are no right arm symptoms or UMN signs. Mrs Hejazi also has multilevel degenerative change in her lumbar spine that she feels is manageable.
Mr Hejazi was reviewed by the consultant rheumatologist, Dr Lynden Roberts, today. The options for management for her neck and arm symptoms were discussed, including physiotherapy, analgesia management and operative management. Mrs Hejazi reports she is not keen on any operative management or injection at this stage. She prefers to continue with non-operative management. It was suggested that Mrs Hejazi see you to optimise her analgesia regime. She will continue on with her physiotherapy and hydrotherapy as she does find this helpful.
We will review Mrs Hejazi in approximately six months to reassess her progress…
Dr Ali Soleimani, general practitioner
a. 33. Dr Soleimani issued a medical report dated 31 December 2017 stating that Mrs Hejazi suffered from “multiple chronic medical conditions which have severe impact on her life and affected her capacity for work”. Dr Soleimani referred to her chronic neck pain with radiation to her left arm and chronic back pain. In relation to her ankle, Dr Soleimani stated that she had fractured it on 21 July 2017 and that it had been “fixed surgically”. Dr Soleimani also stated that “the pain had not settled yet” and had “restricted her walking and prolonged standing significantly”. Dr Soleimani stated that Mrs Hejazi’s “quality of life had been affected dramatically”.
b. 34. At the hearing, Mrs Hejazi produced a further referral letter from Dr Soleimani addressed to the Neurology Outpatient Clinic at Monash Health dated 10 November 2018. This letter states that Mrs Hejazi has been suffering from “chronic neck pain and had tried painkiller, NSAIDS and physiotherapy with minimal effects”. The doctor diagnosed her condition as follows:
Severe spinal canal and bilateral neural exit foreman stenosis at C5/6.
Moderate C6/7 spinal canal and left neural exit foramen stenosis.
Ms Anita Huguenin, treating physiotherapist
a. 35. Ms Huguenin from Monash Health issued a medical report dated 7 February 2019, which was countersigned by Associate Professor Lynden Roberts, rheumatologist on 9 May 2019.
b. 36. In this report, Ms Huguenin recorded that when Mrs Hejazi was seen in July 2017, the options discussed with her included physiotherapy, analgesia and injection. The report states that Mr Hejazi was “keen to continue non-operative management inclusive of analgesia, physiotherapy and hydrotherapy”.
c. 37. The report also records as follows:
Fereshteh returned for review in January 2018. Her improvements were complicated by a fractured ankle. She was now complaining of numbness to her left thumb and second and third fingers. Her neurology had not worsened since her last review. She appeared clinically similar and there were no upper motor neuron signs. At that appointment, it was decided to continue with physiotherapy. Fereshteh was not keen on injection at that stage.
Given the MRI findings of canal stenosis, it was thought best to review her once again. Fereshteh returned for her second review appointment today. She has undergone two injections to date which she reports lasted six to eight months each time. She reports that her neck and left arm pain has increased since her last visit. Her numbness and pins and needles are the same.
She also complains of accompanying low back pain. She reports attending hydrotherapy fix to six times weekly. Her gait was normal and no ataxia was noted. She walks with a single-point stick. There was no significant weakness noted to her left arm. Reflexes were present and symmetrical bilaterally to her upper limbs. There was no increased tone. Babinski was down-going bilaterally.
Clinically, Fereshteh has a left C6 sensory radiculopathy and pain amplification syndrome. We discussed the management options available. In this situation, it is not possible to be confident about the benefits of surgery, however, there may some improvement in her left arm pain, say around 30%.
Fereshteh was not keen on this unless there was 100% improvement guaranteed for her. We also offered a further steroid injection to the left C6 nerve root for which Fereshteh was amenable. Fereshteh was reviewed by Dr Lynden Roberts, Rheumatologist, who felt that given her condition, activities related to heavy use of the upper limbs would be likely exacerbate her condition, and these would be best avoided.
Our plan from her is to continue with regular hydrotherapy and to undergo a further left C6 nerve root injection. At this stage, ongoing review is not required but Fereshteh is welcome to return to us if her condition deteriorates.
…
Letter reviews, approved and electronically signed by Dr Lynden Roberts, Rheumatologist, Head of Back and Neck Clinic.
a. 38. At the hearing, Mrs Hejazi told the Tribunal that she had seen A/Prof Roberts on 7 February 2019 and the consultation lasted for about 45 minutes. She said she had asked for an appointment with a neurosurgeon; but “they” had made an appointment for her to see a rheumatologist.
b. 39. At the hearing, Mrs Hejazi was asked whether it remained her view not to have an operation unless a 100% improvement could be guaranteed. Mrs Hejazi said that she would have been happy it there was going to be an 80% to 100% improvement, but she said the doctor had said it could be a 30% improvement. Mrs Hejazi said that she decided not to have the operation and she also intimated that this was the doctor’s recommendation as well. Subsequently, she told the Tribunal that the doctor at Monash told her it was the last thing he would recommend. Mrs Hejazi also told the Tribunal she had agreed to have the operation “if the pain became unbearable”.
c. 40. Mrs Hejazi said she was told the injection would help her for four to five months but she decided not to have it because of the side-effects, being osteoporosis. She said she asked the doctor about osteoporosis and “they agreed”. She said she was “more cautious” because she was “aware of the medical issues”.
d. 41. The Tribunal provided Mrs Hejazi with a further opportunity to obtain a medical report from A/Prof Roberts to confirm his recommendations to her, and in particular, whether he had recommended that she not proceed with the operation. The Tribunal made a direction to this effect at the end of the hearing. The Tribunal informed Mrs Hejazi at the hearing that this further letter from A/Prof Roberts should make it clear what he had recommended to her, if anything, in relation to future treatment. Mrs Hejazi subsequently lodged a copy of the letter referred to in paragraph [36] and [37] above, countersigned by A/Prof Roberts. The letter did not contain confirmation as to his recommendations to Mrs Hejazi.
e. 42. At the hearing, Mrs Hejazi confirmed that she was scheduled to have the cortisone injection on 6 March 2019. She confirmed that this was expected to provide her with three to four months of relief but it was not a “permanent solution”. Mrs Hejazi said she was concerned about having neck surgery because “neck surgery is very dangerous because the risk of bleeding is very high”. Mrs Hejazi said she had worked full-time as a theatre nurse for 25 years.
Evidence given by Mrs Hejazi at the hearing
a. 43. At the hearing, Mrs Hejazi told the Tribunal that she lived with her two children, aged 23 and 31, both university students, and her husband, who she said “had Parkinson’s”. She said she could not read English. She said her children were fluent in the English language, but they could not understand medical terminology.
b. 44. Before arriving in Australia, Mrs Hejazi worked as a theatre nurse in Iran for approximately 25 years.
c. 45. Mrs Hejazi told the Tribunal that she suffered a fracture to her right ankle after a fall when getting out of a car. She confirmed that she had suffered from the neck and back pain while she was living in Iran. She said it arose spontaneously in the middle of the night. She said she had been “in the gym” the day before and that she had been told it might have been the weights she had lifted. She told the Tribunal that the pain has been very severe and that “even morphine wasn’t helping”. She said she was unable to continue her job and was required to have injections. She said she did not have any medical evidence relating to the treatment she had in Iran because she was a refugee. She said she had not been in contact with “her neurologist” in Iran to obtain a copy of her medical records; and that since arriving in Australia she had seen Australian doctors.
d. 46. Mrs Hejazi said she arrived in Australia in September 2016. She said she had lifted 20kg of luggage and was “under stress so I didn’t pay attention that I shouldn’t be doing this”. She said that she went to see a doctor about her neck 20 days after arriving in Australia.
e. 47. Mrs Hejazi told the Tribunal that she had surgery about two weeks after she fractured her right ankle. She said the fracture had healed but she still carried the walking stick because she did not want to lose her balance. She said if she walks for too long, her ankle becomes sore and swollen. She said she had returned to the surgeon a few times for post-operative reviews and the surgeon was “hopeful” of the healing process. She said she last saw the surgeon about seven or eight months ago. She said that three to four months ago she was experiencing pain if she walked too far but that there was much less pain now, because she was doing hydrotherapy. She said she was waiting for a further appointment.
f. 48. Mrs Hejazi told the Tribunal that her children do the grocery shopping. She said her daughter and son do the cooking and that sometimes her husband cooks. She said she is unable to help them with the cooking. She said that after the neck pain first started, she was unable to do anything for six to seven months. She said that she commenced cooking for a while, but the pain increased, so she stopped cooking completely. She said she was not able to make a sandwich for herself but she could pour a cup of tea with her right hand.
g. 49. Mrs Hejazi said she can undertake the task of separating the laundry and then her son or daughter will put them in the washing machine to wash. She said she cannot hang out the laundry. She said she is able to fold the laundry with her right arm.
h. 50. Mrs Hejazi said she uses a mobile telephone to access the internet. She said she is careful not to look at the screen for too long because it will hurt her neck. She said she watches about an hour and a half of television in the evenings. When asked what she does during the day, Mrs Hejazi said that five or six days per week she will go to hydrotherapy, “otherwise the pain will get worse”. She said that they go to the pool for about one hour. She said she goes with her husband, son, daughter, or her friend will take them to the pool. She said she does not drive the car and has a driver’s licence to use it as a form of identification. She said their family has two cars, one for each child. She said she did not think she was capable of driving because of her neck and back pain and because she could not sit for long. She said she had used public transport a few times before the family had its own cars.
51. Mrs Hejazi said her son looks after the garden and that “twice we had someone come to clean”. She said her son also does the vacuuming.
j. 52. Mrs Hejazi said that the other things she does with her days includes looking at English language videos on her mobile; talking to her friends by telephone (for about five to ten minutes using the speaker phone); and doing small things around the house, such as playing with and putting the food out for her dogs and “putting everything in order” on the table. She said she felt sleepy because of the medication she was on and that she woke up at 10am, because of the pain she is in during the night. She said she naps during the day from 1pm to 4pm and goes to hydrotherapy after 4pm.
k. 53. When asked about travel, Mrs Hejazi said that she travelled to Hobart with her husband about ten months ago, for about one week, to visit some friends who had recently come to Australia as refugees. She also said that about two weeks before the hearing she had been to Canberra to visit the Iranian embassy following an invitation to do so; following which she visited her niece and nephews in Sydney, where she stayed for three to four days.
l. 54. Mrs Hejazi said that she thought she was able to walk for about five minutes. She said she might be able to walk for ten to fifteen minutes but she would have pain in her ankle because it would swell up. She said she did not want to “do nothing” and that she did “hydro every day, walk maybe twice a week”. She said she was “getting depressed and my doctor recommended that I go out more often. I was crying for no reason”.
m. 55. Mrs Hejazi said that she is able to remain seated for about one hour and then she would need to lie down. She said that “for days like this” (meaning to attend the hearing at the Tribunal), she puts up with it. She said she can pick an item up off the floor but it is “very painful” to do so. She said she can move her head from side-to-side but moving it to the right was “very painful”.
n. 56. Mrs Hejazi said she will shower only at the hydrotherapy pool and that her husband helped her with some of the dressing tasks because she could not lift her left arm without pain. She said she could lift her right arm and that her husband helped her with the rest of dressing and watched her to make sure she did not fall.
o. 57. Mrs Hejazi said that she took Panadol and two more painkillers. She said she took Panadol during the day and “the rest at night”. She said she has a strong painkiller to take when the pain is “really bad”. She said she thinks it is “Panamax” and “Oxycodone”. She said she took the Oxycodone two or three times per week. Mrs Hejazi said she has always taken these three medications; and will take more or less depending on her level of pain.
p. 58. Mrs Hejazi said that if she goes out of the house, she will definitely use the walking stick to help her balance and to prevent her from falling. She said she does not use it all the time while at home. She said she cannot get up from a sitting position on the floor but she can get up out of a chair without help. She said that sometimes, if she is in pain, her daughter will help her to get up out of a chair. She said she would love to be able to work but she could not. She did not accept that she could work 15 to 20 hours per week as suggested by the job capacity assessor. She said the last time she visited the “job seeker place” they told her not to come back because she was in pain. When asked whether she would like to have a job that did not involve physical activity, such as giving advice over the telephone, she said she would “love that, but it would depend on her level of English”. She also said she could work for one hour but then would need to sleep for an hour because of her back pain.
q. 59. When asked what meetings or classes she had been to with the employment service providers, Mrs Hejazi said that they had “not allocated or recommended any programs anymore because they know I’m not able”. She said she had attended English classes two days per week about two months after arriving in Australia but stopped them because she fractured her ankle. She said she went back six months later. She said she had attended them on and off. She said her son or friends would drive her to the English classes. She said they went from 9am to 2pm but she could only stay for two hours from 10am until 12 noon because she would have to rest. She said she would normally go to another room and lie on the floor.
r. 60. In relation to her back condition, Mrs Hejazi said that the hydrotherapy was helping her and that the physiotherapist had given her some exercises.
s. 61. Mrs Hejazi said she goes shopping once every two to three months but her daughter has to go with her. She said if she stays at home, she “just starts crying”.
consideration
62. In considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris) at paragraph [1]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
Is the first requirement under s 94(1)(a) of the Act met?
63. Section 94(1)(a) of the Act requires the Tribunal to determine whether as at the time of the assessment periods, Mrs Hejazi had a physical, intellectual or psychiatric impairment. Impairment is defined by s 3 of the Determination – see paragraph [11]. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because Mrs Hejazi’s physical medical conditions resulted in a loss of functional capacity affecting her ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
64. The second requirement that Mrs Hejazi must meet is that her impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years. Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, treated and stabilised as at the time of the qualification period (i.e. Assessment Period #1 and/or Assessment Period #2) and more likely than not to persist for more than two years.
Neck condition (and associated left arm pain)
65. An MRI of Mrs Hejazi’s cervical spine on January 2017 revealed that she had a multilevel degenerative neck condition. Specifically, those radiological findings revealed that Mrs Hejazi had, “severe spinal canal and bilateral neural exist foramen stenosis at C5/6 and moderate C6/7 spinal canal and left neural exit foramen stenosis”. This diagnosis was subsequently confirmed on 28 March 2017 by her treating general practitioner, Dr Perera – see paragraphs [29] to [31]. Accordingly, the Tribunal finds that as at Assessment Period #1 and as at Assessment Period #2, Mrs Hejazi’s neck condition (and associated left arm pain) was fully diagnosed.
66. The Secretary does not accept that Mrs Hejazi’s neck condition was fully treated or stabilised because she contended that reasonable treatment had not been undertaken by Mrs Hejazi for her neck condition before the end of either of the assessment periods.
67. In relation to the first claim, the Secretary relied upon the recommendation that was made by the radiologist who performed the MRI in January 2017 on Mrs Hejazi’s cervical spine that she should undergo “neurosurgical review” – see paragraph [26]. The Secretary also relied upon the referral that was made by Mr Perera (see letters dated 28 March 2017 and 20 April 2017) for Mrs Hejazi, indicating that she was awaiting review by a specialist at Monash Health.
68. In relation to the second claim, the Secretary relied on a letter dated 21 July 2017 (authored by a physiotherapist at Monash Health, and countersigned by a consultant rheumatologist) – in particular, the second last paragraph of this letter, as set out in paragraph [32]. The Secretary relied upon the reference in this letter to treatment in the form of “physiotherapy, injections and operative management”, which was stated in this letter to have been discussed with Mrs Hejazi to address her neck and arm symptoms. This letter also noted that Mrs Hejazi was reported as “not keen on any operative management or injection at that stage”.
69. The Secretary also relied upon a further letter dated 7 February 2019 from the same clinic (authored by a different physiotherapist and the same consultant rheumatologist) – see paragraph [35] to [37] – referring to discussions with Mrs Hejazi about treatment options included “injections and surgery” and a note that Mrs Hejazi would continue with regular hydrotherapy and agreed to C6 nerve root injection – see paragraph [35].
70. Finally, the Secretary suggested, citing a number of medical articles that “other reasonable treatments” that Mrs Hejazi could undergo, included “participation in a multidisciplinary pain management program, strength/conditioning sessions, chiropractic treatment, different analgesia trials and cortico-steroid injections (amongst others) - none of which had been undertaken”.
71. In relation to the first claim, by the end of Assessment Period #1 Mrs Hejazi had been suffering from her neck condition for approximately 10 years. The Tribunal was not presented with any documentary evidence of the treatment Mrs Hejazi said she had received for her neck condition and left arm pain while she was still living in Iran. The Tribunal accepts that Mrs Hejazi left Iran as a refugee and for this reason does not have immediate access to such documentation.
72. Since arriving in Australia, the Tribunal finds that Mrs Hejazi has received treatment for her neck by attending regular hydrotherapy and physiotherapy, and taking daily analgesic medication as prescribed by her general practitioner. More recently, in 2017 and 2018, Mrs Hejazi also underwent specialist review (on two occasions) by a consultant rheumatologist and physiotherapist at the Back and Neck Clinic at Monash Health.
73. However, the Secretary contends that Mrs Hejazi’s spinal (including her neck) condition was not fully treated as at the time of either of the two assessment periods, as it was recommended that Mrs Hejazi consult a neurologist, which she has not yet done, and because the option of surgery had not been pursued.
74. The Tribunal considers that Mrs Hejazi is likely to have an indefinite ongoing need for analgesic medication, regular hydrotherapy and physiotherapy, as supervised by her treating general practitioner, to manage her neck and left arm symptoms. This is likely to be the case even when her neck condition reaches a state where it is able to be characterised as fully treated and fully stabilised.
75. However, the Tribunal is required to assess Mrs Hejazi’s position as it was at the time of the two assessment periods.
76. As at the time of Assessment Period #1, the Tribunal finds that Mrs Hejazi was still awaiting further treatment in the form of specialist review, which she was on a waiting list to receive. The Tribunal finds that this proposed part of her treatment was “reasonable” because it was recommended by the radiologist who performed the MRI in January 2017 – see paragraph [26] – and also because Mrs Hejazi was referred for specialist review by her treating general practitioner, Mr Perera.
77. The specialist review did not take place until about 21 July 2017, being two months after the end of Assessment Period #1. For this reason alone, the Tribunal finds that Mrs Hejazi’s spinal condition (including her neck condition and associated left arm pain) was not fully treated before the end of Assessment Period #1. Accordingly, the Tribunal finds that Mrs Hejazi’s spinal condition (including her neck condition and associated left arm pain) was not “permanent” as at Assessment Period #1. Therefore, any impairment(s) arising from this condition could not be assigned a rating under the Impairment Tables for the purpose of assessing Mrs Hejazi’s first claim.
78. In relation to Mrs Hejazi’s second claim, the Tribunal notes that the first and second specialist reviews (on 21 July 2017 and in January 2018) had both taken place before the end of Assessment Period #2 (i.e. which ended on 18 April 2018). The Tribunal finds that Mrs Hejazi had completed this aspect of treatment within the required time for the purpose of her second claim. The Tribunal also notes that the report dated 7 February 2018 indicates that the specialists were not planning to review her again other than an invitation they issued to her to contact them if her condition deteriorated.
79. However, the Tribunal is satisfied that Mrs Hejazi had not completed reasonable treatment of her condition before the end of Assessment Period #2. The specialists had discussed with Mrs Hejazi the option of surgery or “operative management” of her condition. The specialists informed her that such surgery may result in an improvement in the order of 30%. The specialists did not clearly state in their report whether they recommended such surgery. The Tribunal made a direction at the end of the hearing (on 4 March 2019) to invite Mrs Hejazi to submit further medical evidence which set out the specialists’ prognosis and recommendations for her conditions. No new medical evidence (created after the date of the Tribunal’s direction) was lodged with the Tribunal. The Tribunal was left to make its assessment based on the medical evidence that had been presented to it earlier.
80. The Tribunal considers that the mention by the specialists of surgical intervention, in both of their two medical reports issued on 21 July 2017 and on 7 February 2018 respectively, is indicative that a treatment option the specialists were actively considering for Mrs Hejazi was surgical intervention. It is also evident from those reports that Mrs Hejazi had on both occasions rejected the option of surgical intervention. The Tribunal finds that she did so on the basis of her own opinion as to the risks that might be involved if she went ahead with it, given her long previous career as a theatre nurse. The Tribunal notes there was no indication in the two reports from the specialist that the surgery discussed with Mrs Hejazi had any special risks attached to it beyond the usual risks inherent in surgical intervention. Importantly, there was also no written confirmation from the specialists to the effect that they had advised Mrs Hejazi’s against having such surgery. Instead, they raised it with Mrs Hejazi for a second time in January 2018.
81. On the basis of the above, the Tribunal finds that surgical intervention on Mrs Hejazi’s cervical spine was a reasonable treatment that she had not yet undertaken before the end of Assessment Period #2; which treatment, if it was undertaken, may have led to a significant improvement (in the order of 30%) to her neck and left arm symptoms arising from this condition. For this reason, the Tribunal concludes that Mrs Hejazi’s neck condition and associated left arm pain was not fully treated as at Assessment Period #2 and was not a “permanent” condition for the purpose of assessing her second claim. As such it cannot be assigned an impairment rating for the purpose of assessing her second DSP claim.
Back condition
82. A CT scan of Mrs Hejazi’s cervical spine in March 2017 revealed that she had a multilevel lumbar disc bulge resulting in canal stenosis. Specifically, those radiological findings revealed that Mrs Hejazi had, “Posterior disc bulges from L3/4 to L5/S1 resulting in mild spinal canal stenosis. Associated mild left L5/S1 and right L4/5 neural exit foreman stenosis”. This diagnosis was subsequently confirmed on 28 March 2017 by her treating general practitioner, Dr Perera – see paragraphs [29] to [31]. The Tribunal finds that as at Assessment Period #1 and Assessment Period #2, Mrs Hejazi’s back condition was fully diagnosed.
83. The Secretary does not accept that this condition was fully treated and fully stabilised as at the two assessment periods for the same reason as set out in paragraphs [66] to [70] as relevant to Mrs Hejazi’s back or lumbar spine. Much of the evidence relied upon by the Secretary related to Ms Hejazi’s cervical spine, not her lumbar spine.
84. The Tribunal agrees with the observations made by the AAT1 that there was very limited medical evidence referrable to Ms Hejazi’s lumbar spine condition.
85. The Tribunal considers that, as yet, there has not been a sufficient level of specialist review directed specifically to Ms Hejazi’s lumbar spine condition for this Tribunal to make a finding that Ms Hejazi’s back condition was fully treated and fully stabilised as at either Assessment Period #1 or as at Assessment Period #2. Instead, the Tribunal finds that this condition was not fully stabilised or fully treated as at either of those two periods.
86. For this reason, the Tribunal finds that Ms Hejazi’s back condition was not “permanent” as at either of the two assessment periods (because she had not undertaken reasonable treatment for this condition). Any impairments arising from Mrs Hejazi’s back condition cannot be assigned a rating under the Impairment Tables for the purpose of her first and second claims.
Right ankle injury
87. There was no dispute between the parties that Mrs Hejazi has sustained a fracture of her right ankle on 21 July 2017 which resulted in surgical intervention two weeks later. This condition is only potentially relevant to the second claim as the fracture took place after the end of Assessment Period #1. The screw fixing the fracture was surgically removed on 3 November 2017. Dr Soleimani stated in December 2017 that Mrs Hejazi’s right ankle pain had not settled yet. At the hearing, Mrs Hejazi told the Tribunal that she experienced less pain now than she did three or four months ago if she walked too far - see paragraph [47].
88. The Tribunal finds on the medical evidence that Mrs Hejazi right ankle condition is gradually improving as she continues her treatment of regular hydrotherapy. The Tribunal also finds, on Mrs Hejazi’s own evidence, she is waiting to attend another doctor’s appointment about her ankle. Based on these two findings, the Tribunal concludes that Mrs Hejazi’s right ankle condition is not fully stabilised. For this reason, the Tribunal concludes that this condition was not “permanent” as at either of the two assessment periods and any impairments arising from this condition cannot be assigned an impairment rating under the Impairment Tables.
Conclusion
89. In conclusion, the Tribunal has found that, as at the time of Assessment Period #1 and Assessment Period #2, Mrs Hejazi did not have any conditions that could be regarded as “permanent” under the definition in the Act. As such, any impairments arising from her conditions cannot be assigned an impairment rating under the Impairment Tables. This means that Mrs Hejazi does not meet the eligibility requirement under s 94(1)(b) of the Act in respect of her first or second claim.
90. As the Tribunal has concluded that Mrs Hejazi does not meet the eligibility requirement under s 94(1)(b) for either her first or second claim, the Tribunal is not required to consider whether she had met the other mandatory eligibility requirements under the Act during either of the two assessment periods.
91. Accordingly, the Tribunal affirms the decision of the AAT1. This means that Mrs Hejazi is not eligible to receive the DSP as from the date of her first claim on 21 February 2017 or as from the date of her second claim on 10 January 2018.
92. The Tribunal also makes the following observations, purely for the benefit of Mrs Hejazi:
a.(a) as she was advised at the hearing, Mrs Hejazi is entitled to lodge a new DSP claim if she wishes to be reassessed for eligibility to receive the DSP; and
b.(b) in the event that Mrs Hejazi makes a future claim for the DSP, she should consider the provisions of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination). In particular, unless one of the exceptions set out in s 7(2), (3), (4) or (5) of the POS Determination apply to Mrs Hejazi, she is required to participate in a program of support for an aggregate period of at least 18 months in the three-year period preceding the date on which she makes any new claim for the DSP. Importantly, Mrs Hejazi should note s 8 of the POS Determination which provides as follows (emphasis added):
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted as determining, for the purposes of section 7, the length of the period which the person has participated in the program.
1. I certify that the preceding 92 (ninety two) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
.............[sgd]......................................................
Associate
Dated: 23 July 2019
Date of hearing:
Date final evidence/submissions received:
1 March 2019
22 May 2019
Representative for the Applicant: Self-represented Representative for the Respondent: Mr James Henderson, Senior Lawyer
Litigation & Information Release Branch
Legal Services Division
Department of Human Services1.
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
1
2