Jason WALLIS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 479
[2013] AATA 479
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5181
Re
Jason WALLIS
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Ion Alexander
Date 9 July 2013 Place Sydney Decision Summary
The decision under review is set aside and substituted by a decision that during the 13 week assessment period Mr Wallis satisfied the requirements of section 91(a), (b) and (c) of the Act and was qualified for DSP.
........................................................................
Dr Ion Alexander
CATCHWORDS
SOCIAL SECURITY – disability support pension – 13 week assessment period – impairment table – continuing inability to work – fully diagnosed, treated and stabilised – severe impairment – the decision under review is set aside and substituted by a decision that during the 13 week assessment period Mr Wallis satisfied the requirements of section 91(a), (b) and (c) of the Act and was qualified for DSP.
LEGISLATION
Social Security Act 1991 ss 94(1); 94(3B); 94(2); 94(1)(b); 91
REASONS FOR DECISION
Dr Ion Alexander
9 July 2013
On the 11 April 2012 Mr Wallis lodged an application for Disability Support Pension (DSP) in which he claimed he suffered impairment in respect of “popliteal aneurysm of the right leg” and bulging “discs in the lower back”.
His application was rejected by Centrelink and subsequently the Social Security Appeals Tribunal (SSAT) and he now seeks review of that decision.
The Respondent contends that Mr Wallis did not satisfy the requirements of section 94(1) of the Social Security Act1991 (the Act) during the 13 week assessment period. In particular he did not satisfy section 94(1)(b), in that his rating under the relevant Impairment Tables was less than 20 points and, alternatively, section 94(1)(c), in that he did not have a continuing inability to work as defined by section 94(1)(2).
At the hearing Mr Wallis was unrepresented but gave oral evidence.
ISSUES
It is agreed by the parties that, for present purposes, Mr Wallis suffers a medical condition of the right leg and a medical condition of the lower back.
The right leg condition has been variously described as “popliteal aneurysm”, “occluded right popliteal artery & runoff”, and peripheral vascular disease.
The Respondent concedes that the leg condition is fully diagnosed, treated and stabilised, and contends that an impairment of 10 points under Impairment Table 3 is appropriate.
The lower back condition has been variously described as “lower back pain”, “lumbosacral disc bulges” and “multi-level lumbar disc prolapse”.
The Respondent contends that the back condition is not fully treated and stabilised so that an impairment rating cannot be assigned.
The Respondent also contends that if the Tribunal were to find that Mr Wallis did have an impairment rating of 20 points, he did not have a continuing inability to work as defined in the Act.
Therefore, the issues to be considered are:
(a)whether Mr Wallis had an impairment rating of at least 20 points, and if so,
(b)whether Mr Wallis had a continuing inability to work as defined under the Act?
MR WALLIS’ EVIDENCE
Mr Wallis explained that while in prison in 2007 he suffered from lower back pain and pain in his right leg.
He was referred to an orthopaedic surgeon and CT scan and MRI scan were performed.
Mr Wallis claims he was told that he had the back of a 50 year old man but that his condition did not warrant an operation. Physiotherapy treatment was recommended but was of no benefit and was stopped after several sessions.
After being released from gaol in October 2010, Mr Wallis continued to have problems with his back with pain on walking and bending. He was again referred for orthopaedic assessment, but because of financial impediments he has not been able to see an orthopaedic surgeon. He explained that, even with the assistance of several GPs, he has been unsuccessful in finding a suitable orthopaedic specialist, because the lowest initial consultation fee he was able to find was $465.00, which he could not afford.
Mr Wallis said that he has back pain and stiffness most days, particularly first thing in the morning when he is often bent over until he warms up. The pain and stiffness gets better with movement but recurs with sitting. Sometimes when he wakes up he can’t get up and has to call his sister to help him.
In respect of his right leg Mr Wallis explained that in about December 2011 he found that it was getting hard to walk, because of pain around his knee after walking short distances.
In about March 2012 his then GP referred Mr Wallis for x-ray and ultrasound of his right knee.
The ultrasound examination revealed an aneurysm at the back of his right knee and, about a week later, Mr Wallis was admitted to Liverpool District Hospital (LDH) under the care of Dr Farmer, Vascular Surgeon.
While in LDH, Mr Wallis was told that surgical treatment was not possible because of “poor run off” and that he had a good chance of losing his leg.
Mr Wallis said that he was told that the only possible treatment was anticoagulation and that he needed to take special care of his lower leg and foot.
Mr Wallis explained that Mr Farmer said that “I can’t wear socks, can’t wear boots ,can’t wear shoes, can’t cut my nails, can’t get blisters, can’t cut my foot” and that “I have to treat my right leg like if I had diabetes, and if I get the slightest cut, if I get cuts or bruises to my leg I’ve got to get them seen medically because they can bleed internally”.
Mr Wallis was immediately started on anticoagulation treatment with injections of Clexane and oral Warfarin. He remains on oral Warfarin which requires weekly monitoring with INR blood testing.
Mr Wallis explained that because he is being treated with Warfarin he has restrictions on his diet and analgesic medication. In particular, non-steroidal anti-inflammatory medications are prohibited.
Mr Wallis explained that there has been significant muscle wasting in his lower right leg and that “it goes white a lot” and also numb when walking. He said that he can usually walk about 50 to 60 metres on the flat before he needs to stop because of pain. When he stops he tries to sit down and it usually takes about five to six minutes before he can start walking again. When walking on an incline or upstairs his pain comes on more quickly.
In respect of stairs Mr Wallis indicated that he can manage up to three steps alone, but otherwise needs to support himself with a handrail or needs the assistance of another person.
Mr Wallis said that he can drive a car but now rarely drives and only when someone is with him. He finds it “scary to drive” because with prolonged sitting his leg often goes numb and he is unable to feel his foot, which cause difficulty with braking. He also indicated that his surgeon had recommended that he should not drive.
Mr Wallis explained that since October 2102 he has been living with his sister and her family. He said that he is able to care for himself but that his sister does his washing and the shopping.
Mr Wallis agreed that he does go to the shops but only in the company of another person, usually one of his friends. He explained that a friend usually drives him to the shopping centre and tries to park near the entrance or drops him off near the entrance and parks elsewhere.
When shopping, Mr Wallis explained that he needs to stop and sit frequently, and that he has particular difficulty near refrigeration because the cold makes his foot go numb.
Mr Wallis said he spends a lot of time at home sitting on the lounge watching television with his right leg elevated. The elevation of his leg helps to prevent pain and numbness in the foot.
In response to questions put by the Respondent’s representative, Mr Wallis indicated that he does not go anywhere by himself and is usually accompanied by a friend or his sister.
When asked whether he needed a walking frame or walking stick, Mr Wallis said that his surgeon had recommended he use a walking stick and that he often uses it, but has found that this often aggravates his back symptoms. He said that he had also tried crutches but this was not successful because of back symptoms.
In response to questions to the Tribunal, Mr Wallis explained that since being released from gaol he was placed on unemployment benefits, and he has regularly attended various approved disability support programs as required by Centrelink. Some of these programs required attendance up to four times per week and he needed assistance from a friend to drive him around.
Mr Wallis explained that finding suitable work was difficult because once he explained his medical history, and that he was unable to wear boots, no-one wanted to employ him. He also explained that he tried TAFE but that “they politely kicked me out of TAFE because I can’t handle the stairs, the long walks, and they don’t want to take the responsibility because I can’t wear shoes. They politely asked me to leave”.
MEDICAL EVIDENCE
The report of a CT scan of the lumbar spine performed on 5 March 2007 states that there is a prominent midline disc bulge at the L4/L5 level, and a broad based disc bulge at the L5-S1 level, but no lumbar canal stenosis or impingement on the exiting lumbar nerve roots. Minor degenerative change in the right sacro-iliac joint and lower lumbar facet joints was also noted.
The report of an MRI scan of the lumbar spine performed on 7 July 2008 notes mild degenerative changes in the lumbosacral spine, most marked at L4/L5, with no significant nerve root compression.
The report of a CT scan of the lumbar spine performed 7 March 2011 notes a central posterior disc bulge at L3/L4, L4/L5 and L5/S1 levels, with possible bilateral nerve root impingement at all levels. At L2/L3 a left para-central disc bulge with possible impingement on the left L3 nerve was also noted. Mild degenerative changes of the sacroiliac joints are noted bilaterally.
In a medical report dated 8 March 2011, Dr Louka, General Practitioner, lists “multi-level lumbar disc prolapse” as a condition, which has a significant impact on Mr Wallis’ ability to function.
Dr Louka describes symptoms of lower back stiffness and pain radiating to the right leg and foot, with associated numbness in the right foot. Current treatment lists Panadol-osteo and Panadeine Forte and future treatment includes analgesia and referral to an orthopaedic specialist. Functional impairment is described as “unable to stand or walk for a period of time. Gets back pain with minimal spinal movements.”
In a medical report dated 18 April 2011 Dr Chan lists “prolapsed discs lumbar spine” as a condition having significant impact on Mr Wallis’ ability to function.
Dr Chan notes a history of several years of increasing back pain from years of labouring work, and lists symptoms of chronic back pain, inability to lift heavy objects and inability to bend repetitively.
In a referral letter to an orthopaedic specialist dated 29 March 2012, Dr Wellington, GP, notes that Mr Wallis had recent worsening of right leg pain with loss of muscle mass in the right leg. On examination she noted “wasting of the right thigh and lower leg” and expressed concern about possible lumbar nerve root impingement.
Subsequently, Mr Wallis was found to have a “right popliteal aneurysm” and on 3 April Mr Wallis was admitted to the Vascular Surgery service at LDH under the care of Dr Farmer.
In a hospital discharge summary, dated 12 April 2012, it is noted that at presentation Mr Wallis described recent onset of short distance claudication associated with knee pain and altered sensations. Examination of the right leg revealed femoral and popliteal pulses present but distal pulses absent.
The initial treatment plan was an arterial bypass operation but for various reasons it was decided to delay bypass surgery and treat Mr Wallis with anticoagulation therapy. He was discharged on short term subcutaneous Clexane and long term oral Warfarin.
The report of a CT angiogram dated 4 April 2012 notes that in the right leg there is an “aneurysm of the right popliteal artery” with occlusion of the level of the aneurysm and no flow within the aneurysm. The aneurysm is completely thrombosed and distal to the aneurysm and the entire right popliteal artery is occluded.
The report also notes that the “proximal tibioperoneal trunk is occluded, the right anterior tibial artery is patent with reduced calibre” and that there is “markedly reduced calibre of the posterior tibial artery and the peroneal artery with only minimal amount of flow detected within these arteries.” The arteries of the right calf are supplied by collaterals and that there is reduced flow to the foot via the right anterior tibial artery.
In a medical report, dated 10 April 2012, Dr Raj lists “popliteal aneurysm on right side” and “peripheral vascular disease” as conditions that have a significant impact on Mr Wallis’ ability to function and notes and the impact of the conditions will affect Mr Wallis’ for more than 24 months.
In a Medical Certificate, dated 12 April 2012, Dr Raj lists “popliteal aneurysm” and “peripheral vascular disease” as permanent medical conditions which impact on Mr Wallis’ capacity for work or study.
The doctor notes functional symptoms as severe pain on walking which is limited to 50-60 metres.
In respect of fitness to work or study the doctor indicates that Mr Wallis cannot do work that involves excessive walking, and that he was not able to any other work for eight hours or more per week.
In a Medical Report, dated 10 May 2012, Dr Farmer, vascular surgeon, confirms the diagnosis of “occluded right popliteal artery” and notes that surgery is not contemplated because of “poor runoff”. He notes that Mr Wallis cannot walk any distance, that his treatment is Warfarin and that he “may sit at a job”.
Dr Farmer also notes that this condition will have a significant impact on Mr Wallis’ ability to function and that the impact is expected to persist for more the two years and remain unchanged.
JOB CAPACITY ASSESSMENT (JCA) REPORT
The Respondent relies on a JCA report dated 25 May 2012 undertaken by a psychologist with contributions by two exercise physiologists.
The assessors conclude that Mr Wallis’ spinal condition is permanent and fully diagnosed.
However, on the advice of one of the exercise physiologists, it is deemed that the condition is not fully treated and stabilised on the basis that Mr Wallis “may benefit from accessing Specialist interventions”.
The assessors do not indicate what the “specialist interventions” are or what the possible benefits might be.
In respect of Mr Wallis’ peripheral vascular disease, the assessors conclude that the condition is permanent, fully diagnosed and fully treated and stabilised.
The assessors assign an impairment rating of 10 points on the basis of Mr Wallis’ disclosed information and the medical documentation alone, because it was decided that the administration of Functional Capacity Evaluation would be contraindicated due to the nature of Mr Wallis’ lower limb condition.
The assessors assigned a work capacity of 8-14 hours per week but predict a future work capacity of 15-22 hours per week with intervention.
CONSIDERATION
At the hearing Mr Wallis’ oral evidence, which was given in a matter of fact manner with no apparent embellishment or exaggeration, was not challenged by the Respondent.
After having considered Mr Wallis’ evidence and the various medical documents, I have come to the conclusion that previous assessments of the impact of the peripheral vascular disease on Mr Wallis’ ability to function have underestimated the severity of his condition and the impact it has on his capacity to work.
The CT angiogram of 4 April 2012 clearly demonstrates that the blood circulation in Mr Wallis’ lower leg and foot is significantly reduced, which explains his severely limited capacity to walk and difficulties with abnormal sensory symptoms.
The medical evidence also suggests that the circulation in the lower right leg is unlikely to improve in the foreseeable future and may get worse.
I accept that although Mr Wallis is able to undertake self-care and simple domestic tasks, in my view the evidence suggests that he requires significant assistance from family and friends in order to engage in activities outside the home such as shopping, medical appointments and attendance at support programs.
I accept his evidence that he does not generally leave the house unaccompanied and requires assistance with public transport.
I also accept that he rarely drives himself because of the risks posed by the sensory changes in his foot associated with prolonged sitting.
Although Mr Wallis can walk around a shopping centre without direct physical assistance, the nature of his condition is such that his capacity to do so appears to be significantly impaired.
For the above reasons I am satisfied that as a result of Mr Wallis’ peripheral vascular disease of the right lower limb there is a severe functional impact on activities using that limb, and that the preferable impairment rating under Table 3 (Lower Limb Function) is 20 points. This means that he has a “severe impairment” as defined in section 94(3B) of the Act.
At the hearing, with respect to Mr Wallis’ lumbosacral spine condition, the Respondent submitted that “there is no evidence to suggest that this condition is fully diagnosed, treated and stabilised” during the 13 week assessment period, on the basis that the doctors’ reports indicate that future treatment does not include referrals to specialists and that he has not had further treatment such as physiotherapy.
I have some difficulty with this submission.
Prior to the date of claim, Mr Wallis has had two CT scans and an MRI scan of the lumbosacral spine which clearly demonstrate evidence of multilevel spinal degenerative disease.
I note that a comparison of the CT scans of March 2007 and March 2011 shows that over a four year period there has been no significant change in the structural pathology of Mr Wallis’ lumbosacral spine.
Mr Wallis’ evidence is that he was assessed by an orthopaedic surgeon while in gaol and the only treatment recommended was physiotherapy and analgesia. Although there are no contemporaneous medical notes before the Tribunal confirming the orthopaedic consultation, I have no reason to doubt Mr Wallis’ evidence particularly as in 2008 it was standard medical practice that an MRI scan required specialist referral.
I note that in March 2011 Dr Louka diagnosed “multi-level lumbar disc prolapse” and proposed treatment with analgesia and referral to an orthopaedic surgeon
I also note that in April 2011 Dr Chan also diagnosed “prolapsed discs lumbar spine”.
Also, in the JCA report of 25 May 2012 Mr Wallis’ spinal disorder was considered to be permanent and fully diagnosed but not fully treated and stabilised, on the basis that he “may benefit from accessing Specialist interventions”. The nature of the interventions or their purported benefits and were not specified.
In the past there were concerns that Mr Wallis’ symptoms in his right leg were due to nerve root impingement, however, currently there is no evidence of radiculopathy and, in retrospect, the leg symptoms were probably due to his evolving vascular disease.
I am satisfied that the evidence before the Tribunal is sufficient to conclude that Mr Wallis’ spinal condition is fully diagnosed and that it has not changed significantly since 2007/2008.
Notwithstanding that Mr Wallis cannot afford to consult an orthopaedic surgeon, I am not satisfied that there is convincing evidence before the Tribunal that such a consultation is necessary or will provide any benefit in respect of his ability to function.
With respect to other treatments, I note that physiotherapy was unhelpful in the past and, in my view, there is no compelling evidence to conclude that it will be of benefit now, particularly when one considers the significant impairment caused by his peripheral vascular disease and the risks associated with Mr Wallis’ anticoagulant therapy. Similarly, any potential benefits of an exercise program must be seen in the context of his lower limb impairment and the risks associated with anticoagulant therapy.
Therefore, on consideration of Mr Wallis’ circumstances and the evidence before the Tribunal, I am satisfied that his lumbosacral spine condition is fully treated and stabilised.
I am also satisfied there is sufficient evidence to support a conclusion that, as a result of this condition, there is a mild functional impact on Mr Wallis’ activities involving spinal function, and that the correct impairment rating under Table 5 (Spinal Function) is 5 points.
The final issue to consider is whether Mr Wallis has a continuing inability to work.
Section 94(2) of the Act states that:
(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)—the person has actively participated in a program of support within the meaning of subsection (3C); 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.
Also section 5 of the Act defines “work” as work that is “for at least 15 hours per week”.
The JCA report of 25 May 2012 assessed Mr Wallis’ baseline work capacity as 8-14 hours per week, but predicted an increased work capacity with intervention within two years.
I agree with the assessment of Mr Wallis’ baseline work capacity as 8-14 hours per week, that is, less than 15 hours per week.
I am not satisfied that there is any convincing evidence before the Tribunal on which to base a conclusion that Mr Wallis’ work capacity is likely to increase to 15-22 hours per week within two years with intervention.
In my view the assessors did not provide satisfactory reasons for such a conclusion. The suggested interventions were, in my view, simply generalisations which did not consider the specific issues confronting Mr Wallis.
I am satisfied that the evidence demonstrates that Mr Wallis’ peripheral vascular disease is a severe medical condition that is essentially untreatable, and causes severe symptoms so that his capacity to work is severely impaired.
The anticoagulation therapy is clearly prophylactic rather than curative in that it is used to prevent further clotting in the lower limb circulation.
Also, there is no convincing evidence before the Tribunal to suggest that any training activity is likely to enable Mr Wallis to work independently of a program of support within the next two years.
It follows that I am satisfied that Mr Wallis has a “continuing inability to work” as defined in the Act.
CONCLUSION
For reasons set out above, I am satisfied that Mr Wallis has an impairment rating of 25 points under the Impairment Tables, with a rating of 20 points due to his medical condition of peripheral vascular disease of the lower right limb alone.
Therefore I find that during the 13 week assessment period Mr Wallis satisfied the requirements of section 94(1)(b) of the Act.
Also I find that Mr Wallis had a continuing inability to work as defined by the Act due to his peripheral vascular disease condition alone.
It follows that during the 13 week assessment period satisfied the requirements of section 91(a), (b) and (c) of the Act and was qualified for DSP.
DECISION
The decision under review is set aside and substituted by a decision that during the 13 week assessment period Mr Wallis satisfied the requirements of section 91(a), (b) and (c) of the Act and was qualified for DSP.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander. ...........[sgd].............................................................
Associate
Dated 9 July 2013
Date(s) of hearing 17 June 2013 Applicant In person Solicitors for the Respondent Ms Kate Martini
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