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

[2023] AATA 2315

Jahandideh and Secretary, Department of Social Services (Social services second review) [2023] AATA 2315 (2 August 2023)

Division:                  GENERAL DIVISION

File Number:          2022/5904

Re:Mohsen Jahandideh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:2 August 2023

Place:Sydney

The reviewable decision is affirmed.

...............................[SGD].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant satisfied the qualification criteria at the date of his claim or during the qualification period – whether applicant has impairments that had been fully diagnosed, treated and stabilised – whether reasonable treatment was undertaken for his conditions – whether applicant’s conditions were permanent – reviewable decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

2 August 2023

Introduction

1. The Applicant, Mr Jahandideh, is seeking review of the decision made by the Social Services and Child Support Division of the Tribunal (AAT1) on 24 May 2022 to reject his claim for Disability Support Pension (DSP) which was lodged on 20 November 2020.

   Issues

2. The issue to be decided is whether the Applicant qualified for DSP at the date he made his claim, 20 November 2020, or within 13 weeks thereafter, that is from 20 November 2020 to 19 February 2021 (the qualification period). That means that evidence that has come into existence after that period is only relevant to the extent it casts light on the Applicant’s condition during the qualification period.

3. The Applicant has to satisfy all the criteria set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) during the qualification period. Those criteria are that he had:

   a.A physical, intellectual or psychiatric impairment(s) for the purpose of paragraph 94(1)(a) of the Act;

   b.Impairment(s) that were fully diagnosed, treated and stabilised, and attracted an impairment rating of at least 20 points under the Social Security (Table for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for the purpose of paragraph 94(1)(b) of the Act;

   c.a continuing inability to work (CITW) for the purpose of paragraph 94(1)(c) of the Act.

4. I note that on 28 February 2023, the Minister made the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (F2023L00188) (the 2023 Impairment Tables), which commenced on 1 April 2023. By section 27(1) in Part 1.3 of the Act, the 2023 Impairment Tables apply to any claim for DSP made on or after 1 April 2023. By section 27(2) of the Act, where the claim for DSP was made, or taken to be made, on or before 31 March 2023, the previous 2011 Impairment Tables must be applied to the determination of an application for review by the Secretary and by the Tribunal. The determination in the Applicant’s case was made before 31 March 2023 and therefore the 2011 Impairment Tables apply.

5. The Secretary, Department of Services (the Secretary) accepts that the Applicant had physical impairments during the qualification period and therefore satisfies subsection 94(1)(a) of the Act.

6. The Secretary contends that the Applicant’s conditions do not attract an impairment rating of 20 points or more under the Impairment Tables as required by subsection 94(1)(b) of the Act because they are not fully treated and stabilised and therefore points cannot be assigned.

   The conditions suffered by the Applicant

7. The Secretary identified the following conditions suffered by the Applicant:

   ·Chronic pain and spinal degeneration;

   ·Left shoulder condition

8. I agree that those conditions have been appropriately identified and will consider each in turn. Before doing so, I will summarise the Applicant’s medical history to provide context for the medical evidence, and then summarise the legal requirements that flow from the Impairment Tables.

   Summary of the Applicant’s medical history

9. The following is based on the expert medico-legal report dated 28 September 2021, written by Associate Professor Boesel (Dr Boesel), pain medicine physician. It was apparently prepared in the context of a legal dispute with the Applicant’s former employer. Dr Boesel referred to ‘the file’ he had but does not list the material it contained. He does refer to various doctors and investigations in his report.

10. The Applicant arrived in Australia from Iran in about 2001. He worked briefly as a security officer and then got a job with a supermarket chain as a night filler from 2004 to 2013. His employment was terminated in 2016. 

11. In October 2005 he suffered an injury to his left shoulder which caused pain. He presented to North Shore Hospital Emergency where he was not diagnosed with any significant structural derangement of his shoulder. He was managed conservatively and returned to work on light duties. A number of specialists were involved in his care, including Dr Seamus Dalton, Dr Rob Duckworth, Dr Doron Sher and Dr Cusi. The general approach was recommending against invasive treatments. Rehabilitative measures were undertaken.

12. The Applicant suffered a second injury in August 2011. The Applicant reported experiencing a sudden onset of neck, back and worsened left shoulder pain, after lifting some cartons of toilet paper. He was managed conservatively and returned to light duties until 2013. During that period, he developed some sensory impairment subjectively in both upper limbs and worsening shoulder pain. He underwent a number of cervical spine injections without much benefit and also saw Dr David Manohar who diagnosed lumbar pathology and recommended a procedure and treatments thereafter which were not approved by the insurer.

13. In 2013 he stopped working. His General Practitioner (GP) has been the ‘mainstay’ of his medical care. He has been prescribed analgesics in the form of tramadol. He has had physical therapy and numerous shoulder injections. There has been no active pain management since his insurer refused to fund the injections Dr Manohar recommended.

    Requirements of the Impairment Tables

14. ‘Impairment’ means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[1]

    [1] Impairment Tables, section 3.

15. The assignment of ratings under the Impairment Tables depends on function rather than diagnosis.[2] The assessment is to be based on what a person can or could do rather than on what the person chooses to do or what others do for that person.[3]

    [2] Impairment Tables, section 5(2).

    [3] Impairment Tables, subsection 6(1).

16. An impairment rating can only be assigned if a condition is ‘permanent’ and likely to persist for more than two years.[4]

    [4] Impairment Tables, subsection 6(3).

17. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.[5]

    [5] Impairment Tables, subsection 6(4), (5) and (6).

    Chronic pain and spinal degeneration                  

18. The Secretary accepts that the Applicant’s chronic pain and spinal degeneration was fully diagnosed in the qualification period but contends that it was not fully treated and stabilised at that time. 

19. On 5 November 2013, Dr Manohar (interventional pain physician) recommended a ‘Diagnostic neural blockade bilaterally to identify the pain generator and if there is a positive response’ then it can be followed by an ‘RF procedure to provide long term relief and increase his function”.  As stated above, those procedures were never carried out.

20. The Applicant said that he had injections into his back three or four times in 2018 and 2019.  On the latter occasion they only helped for a few days. His doctor has not told him to get any more.

21. On 11 February 2019, Dr Bulbulia (GP) reported that past treatment was analgesics, no current or planned treatment was reported.

22. On 10 September 2019, Dr Bulbulia reported the same.

23. On 23 September 2020, Dr Sim (radiologist) recommended a ‘CT-guided L4/L5 epidural injection…for diagnostic/therapeutic purposes’. There is no medical evidence to suggest that this injection was ever given. The Applicant did not say that he had injections since that report. He has had physiotherapy but not regularly.  He saw a chiropractor this year because the pain went into his leg again but it was much worse than before.

24. On 15 February 2021, Dr Bulbulia reported that current treatment was analgesic.

25. On 28 September 2021, Dr Boesel observed that there had been a progressive deterioration of both the cervical and particularly the lumbar spine and the Applicant had not been in an active pain management paradigm for a number of years. He expressed the opinion that the Applicant had an undertreated pain disorder and would benefit from ‘a formal course of pain medicine physician involvement including medication rationalisation, some attempts at interventional pain management for the pain generators in his lumbar spine, and the development of improved self-management strategies through the involvement of a pain physiotherapist, pain psychology and attendance of the pain management programme’. The overall cost would be $6,000 to $8,000 ‘for the insurer’. He would be a candidate to attend an interdisciplinary group pain management programme, such as the ADAPT Programme at North Shore. The cost is around $10,000.

26. On 14 November 2022, Dr Abdalla (GP) reported that the Applicant is on “continuous medications and had physiotherapy…”.

27. The Applicant provided reports about CT scans of the cervical spine and lumbosacral spine dated 1 November 2022. They do not assist because they do not provide information about the treatment being undertaken or the impact of the Applicant’s impairments on his function which are the issues in this case.

28. The evidence does not enable me to decide whether the treatment Dr Boesel endorses is ‘reasonable treatment’ pursuant to subsection 6(7) of the Impairment Tables. To make such a finding I would have to be satisfied that it is available at a location that is reasonably accessible to the person at a reasonable cost and can be reliably expected to result in a substantial improvement in functional capacity, is regularly undertaken and has a high success rate and carried a low risk to the person. Those criteria were not specifically addressed by Dr Boesel whose report was prepared in relation to other legal proceedings.  While I might infer from the fact that Dr Boesel has endorsed the treatment that the answer to the three latter criteria is yes, I am unable to draw such an inference in relation to whether the cost involved is reasonable and whether the treatment would be reliably expected to result in a substantial improvement in functional capacity.  

29. However, because Dr Boesel has recommended the further treatment, I am unable to be satisfied that the treatment the Applicant has already undertaken is reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years pursuant to subsection 6(6)(a) of the Impairment Tables.

30. Dr Sim’s report which suggested further investigation and possible treatment reinforces me in my conclusion.

31. Therefore, I am not satisfied that the condition chronic pain and spinal degeneration has been fully treated and stabilised, and therefore I am not satisfied that the condition is permanent pursuant to section 6(4) of the Impairment Tables.

    Left shoulder condition

32. The Secretary accepts that the left shoulder condition has been fully diagnosed in the qualification period but not fully treated and stabilised.

33. On 11 February 2019 and 10 September 2019, Dr Bulbulia reported that past treatment was analgesic and there was planned treatment of analgesic exercises.

34. On 23 September 2020, Dr Sim recommended an ‘Ultrasound-guided steroid injection of the common glenohumeral joint and subacromial/subdeltoid bursal space’.

35. On 15 February 2021, Dr Bulbulia reported that the Applicant is on a current treatment of analgesia.

36. Dr Boesel’s report of 28 September 2021 is the most relevant and comprehensive evidence about the condition at the relevant time. Having reviewed earlier imaging and the comprehensive narrative description of the imaging from July 2006 through 2008 and 2011 to the present day, Dr Boesel observed:

    It is clear that initially (the Applicant) had small tears at the supraspinatus and infraspinatus tendons, which have then subsequently progressed to full-thickness tears on the most recent imaging.

37. Dr Boesel reported that the Applicant had a grossly impaired range of motion to the point where the shoulder ‘is almost functionally frozen’. His shoulder deterioration has not been evaluated by a specialist shoulder surgeon. Dr Boesel’s opinion was that the Applicant ‘needs to have a further review by a specialist shoulder surgeon in light of the complete rotator cuff tears affecting the supraspinatus and infraspinatus muscles’ and that whilst outside his expertise, he expressed the opinion that the Applicant may be a candidate for a possible surgical correction.

38. On 14 November 2022, Dr Abdalla (GP) reported that the Applicant had “continuous medications and had physiotherapy…”.

39. The Applicant provided a report dated 9 November 2022 about an ultrasound of the left shoulder conducted on that day. The clinical history was ‘flare of chronic anterior and posterior shoulder pain’. The conclusion was ‘Subacromial/subdeltoid bursitis. Partial-thickness tear in subscapularis and supraspinatus.’ The report provided no information about treatment or the impact on function.

40. The Applicant confirmed that he had had injections into his shoulder and neck seven or eight times, but it was a long time ago, about 10 years ago. His doctor has not told him to have injections. I infer that he has also had physiotherapy for this condition.

41. As there has been no review of the Applicant’s shoulder by a specialist shoulder surgeon since the complete rotator cuff tears affecting the supraspinatus and infraspinatus muscles occurred, I am not satisfied that the Applicant’s past treatment has been reasonable for that condition and that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years pursuant to section 6(6)(a) of the Impairment Tables.

42. The left shoulder condition is not permanent pursuant to section 6(4) of the Impairment Tables.

    The impact of the Applicant’s current conditions

43. The Applicant’s chronic pain and spinal degeneration and left shoulder condition seriously adversely impact on his functioning and have done so for some years. He said that his daily life around 20 November 2020 comprised having breakfast, his wife helping him shower, lying down and watching the news for 10 to 15 minutes. He is right handed. His wife makes him a sandwich or a roll which he eats. He can pick up a cup of tea or coffee in his right hand. He spends most of his time indoors. He cannot drive. Both his hands are numb.

44. The Applicant talked about seeing many specialists over the years, many of whom he saw at the request of his former employer. He named several specialists. It seems that most were seen for the purpose of legal proceedings against his employer rather than for the purpose of treatment. 

    Conclusion

45. For the above reasons, while I accept that the Applicant’s conditions seriously adversely impact upon his functional capacity, he does not satisfy the criteria necessary to qualify for DSP during the qualification period.  

    DECISION

46. The reviewable decision is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[SGD].....................................

Associate

Dated: 2 August 2023

Date of hearing:	21 April 2023
Applicant:	In person
Solicitors for the Respondent:	Ms T Balakisnan, Services Australia