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

Laverick and Secretary, Department of Social Services (Social services second review) [2019] AATA 3320 (6 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5395
Re:Staton Laverick
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:6 September 2019
Place:Sydney

The reviewable decision is affirmed.
............................[SGD]............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has one or more physical, intellectual or psychiatric impairments – whether condition causing impairment is permanent - applicant suffers from impairments from the conditions of diplopia (double vision), asthma, migraines, tendonitis and sinus condition – whether condition causing impairments are permanent – diplopia not fully treated and stabilised – migraines not fully treated and stabilised – sinus condition not fully diagnosed, treated and stabilised – supraspinatus tendinitis not in issue during the qualification period – asthma fully treated and stabilised - whether applicant has impairment rating of 20 points or more – asthma attracts a rating of zero under Impairment Table 1 – Functions requiring Physical Exertion and Stamina – reviewable decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1)(a), 94(1)(b), 94(1)(c)(i)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 cll 6(3), 6(4), Table 1
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
6 September 2019
The reviewable decision

Mr Staton Laverick is 42 years old. He claimed Disability Support Pension (DSP) on 17 January 2018. His claim was rejected on 19 February 2018. That decision was affirmed by an authorised review officer (ARO) on 8 June 2018. Mr Laverick applied to the Social Services and Child Support Division of this Tribunal (AAT1) for review of that decision. On 29 August 2018, AAT1 affirmed the ARO’s decision. Mr Laverick has applied to this Tribunal for the review of the decision made by AAT1.
The relevant regulatory scheme is set out in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth), and the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The issues that the Tribunal has to decide
To be successful in these proceedings, Mr Laverick must have qualified for DSP during the period 17 January 2018 to 18 April 2018 (the qualification period). Section 94 of the Act sets out the qualification criteria for DSP. To qualify for DSP, during the qualification period, Mr Laverick had to have:
(i)one or more physical, intellectual or psychiatric impairments (s 94(1)(a)); and
(ii)the impairments attracted a rating of 20 points or more under the Impairment Tables (s 94(1)(b)); and
(iii)a continuing inability to work (s 94(1)(c)(i)).
The Secretary, Department of Social Services (the Respondent) accepts that Mr Laverick satisfies s 94(1)(a) of the Act because he suffers from impairments arising from diplopia (double vision), asthma, migraines and tendonitis.
The Applicant argues he also suffers impairment arising from a sinus condition. The Respondent contends the sinus condition is related to the Applicant’s migraine condition. The Tribunal will consider the sinus condition and the migraine condition separately.
The Tribunal will consider whether each condition attracted a rating under the Impairment Tables, and if so, what the rating is.
The Impairment Tables provide that a rating can only be assigned to an impairment if the condition causing that impairment is permanent and the impairment is more likely than not, in light of available evidence, to persist for more than 2 years.[1]
[1] Clause 6(3) of the Impairment Tables
A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised, and the condition is more likely than not, in light of available evidence, to persist for more than 2 years.[2]
[2] Clause 6(4) of the Impairment Tables.
The evidence before the Tribunal for its consideration includes the documents which were provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “T” documents), numerous emails from Mr Laverick which included some medical evidence, and other material provided by the Respondent including Medicare and Pharmaceutical Benefit Scheme records and a referral dated 8 December 2018 for Mr Laverick to see an Otolaryngologist at Royal Melbourne Hospital.
Information provided in support of Mr Laverick’s claim for DSP
Mr Laverick provided the following information in his claim form for DSP.
Under the heading “List any disabilities, illnesses or injuries that you have”, Mr Laverick wrote:
LEFT ORBITAL BLOWOUT
TETHERING OF EYE IN EYE SOCKET
INOPERABLE SCAR TISSUE - PERMANENT
PRESSURISED MIGRAINE AT INJURY SITE
RESTRICTED EYE MOVEMENT
DOUBLE VISION
DELAYED RESPONSES IN SINGLED AND MONOCULAR
INABILITY TO PERFORM TASKS REQUIRING ACCURACY WITH PATCH
NAUSEA VOMITING – FROM INJURY + SIDE AFFECTS OF MEDICATION
LAZY EYE – STIGMATA
LESIONS EYE PATCH
BRONCHIAL ASTHMA
In response to the question about current treatment, Mr Laverick listed the following:
ON GOING TREATMENT PLAN – GP
EYE SPECIALISTS
MEDICAL CERTIFICATES
DISABILITY JOBSEARCH ASST
PHARMACEUTICALS / MEDICATION
DISABILITY STUDY COUNSELLING
SPECIALISED TRANSPORT
OPTOMETRIST
LIASON WITH UNIVERSITY
FOR MEDICAL ADVANCES
EYE EXCERCISES RE MOBILITY
ULTRASOUNDS
SLEEP APENEA
FAMILY + FRIENDS SUPPORT
BETA BLOCKER TREATMENT
CAUSES UNCONSCIOUSNESS
Dr Soe’s letter dated 12 January 2016 was provided in support of the claim for DSP. It attached copies of Tables 1, 12 and 15 from the Impairment Tables. Dr Soe wrote:
I certify that I have examined/attended to Mr Staton Laverick and believe he has
1.Mild functional impairment for Physical exertion and Stamina because of his Asthma and frequent Migraine attacks.
2.Moderate functional impairment of his visual function because of his previous eye operation.
3.No impairment in function of consciousness.
Taking into account the other information available about Mr Laverick’s eye condition, the Tribunal understands that, as at 12 January 2016, Dr Soe considered that Mr Laverick suffered from three conditions which resulted in a degree of functional impairment: diplopia, asthma and migraine.
Before considering the conditions referred to in the claim for DSP and that arose from other evidence, the Tribunal notes that Mr Laverick was very concerned about the process undertaken when he applied for DSP in 2015 which he had pursued with the Respondent and the Ombudsman. He had also made other inquiries relating to his concerns. On several occasions, the Tribunal explained to Mr Laverick that its jurisdiction is limited to considering his 2018 DSP claim, however he continued to raise his concern about the 2015 claim process. The Tribunal gave the 2015 Job Capacity Assessment (JCA) very little weight in the context of other substantive medical evidence before it.
The Tribunal has taken into account all the evidence before it, including:
·medical reports from treating doctors and specialists.
·some reports from other sources, such as Dr Healey, an Examining Medical Practitioner and the Job Capacity Assessor in 2018.
·various other JCAs before it, including those dated 31 August 2015 and 25 May 2016.
·Mr Laverick’s written and oral evidence.
Diplopia (double vision)
Mr Laverick has suffered from diplopia since receiving a blow to his left eye in January 1995 which resulted in a left orbital fracture which had been treated but the consequence was diplopia, “consistent with some tethering of the left inferior rectus muscle in an orbital fracture”.[3] The Respondent dealt with the left orbital fracture separately from the diplopia, however, the Tribunal deals with them together in the sense that the consequence of that injury was diplopia. There was no other consequence.
[3] Report of Dr William Nardi, ophthalmic surgeon, 18 July 2000.
The Respondent accepted that diplopia had been fully diagnosed as at the qualification period but argued that Mr Laverick’s diplopia was not permanent because it had not been fully treated and stabilised as at the qualification period because there were further treatments, namely optometric and ophthalmological treatment, which were likely to result in significant functional improvement to enable Mr Laverick to undertake work for at least 15 hours per week.
There were various medical reports about this condition dating from an ophthalmic surgeon’s report of 31 March 1995. Only the first page of the report was before the Tribunal. It referred to Mr Laverick receiving a blow to his left eye in January 1995 which resulted in a left orbital fracture which had been treated but which had resulted in diplopia on elevation and depression of gaze “and it is still worrying him considerably”. The doctor wrote that it is “probably beyond the time duration which would normally see spontaneous recover of eye movements, secondary to orbital and extraocular muscle oedema” and suggested:
That he is seen by an ophthalmic plastic surgeon which can be arranged through Sydney Eye Hospital as he may need further exploration of the orbit to see if there are trapped extraocular muscles …If this course of action is taken, it would be best if he were seen in the next couple of weeks, (END OF AVAILABLE REPORT)
Dr Heine, ophthalmologist, assessed Mr Laverick and reported to a general practitioner on 18 December 1997. Dr Heine referred to the history of Mr Laverick’s left eye injury and subsequent diplopia. Dr Heine concluded that Mr Laverick’s limited vertical movement of the left eye “may be due to tethering” and suggested he consult a particular specialist in the area of ocular movement problems.
On 12 August 1998, Dr David Healey, an Examining Medical Practitioner, completed an Approved Medical Report for the then Department of Social Security. It includes the following information provided by Mr Laverick:
·Mr Laverick had seen specialists at the Sydney Eye Hospital, his double vision is due to a muscle that has been trapped within the fractured cheek bone which can be corrected by an operation on his right eye.
·He does not want that operation and puts up with the problem.
In a further report dated 13 August 1998, Dr Healey wrote that Mr Laverick’s diplopia could be cured by wearing an eye patch but that was unacceptable to the patient.
Dr William Nardi, ophthalmic surgeon, reported to Dr Douglas at Health Services Australia on 18 July 2000, including that:
·Mr Laverick told him that at Sydney Eye Hospital they wanted to operate on his right eye as there was too much scar tissue in his left eye. Dr Nardi had not seen any report from that hospital.
·On examination, Mr Laverick’s vision was 6/6 right and 6/6-2 left. The left vision improved to 6/6 with a very small astigmatic correction. Mr Laverick seemed to get some improvement in his diplopia with some vertical prisms in his glasses. He does not appear anxious to wear glasses.
Dr Nardi concluded:
Diplopia is a very subjective phenomenon. It would seem to me that if he had severe diplopia that he would seek further surgical treatment. It would seem by adopting various head postures that he can get single vision. Should he wish to pursue further surgery he would need to be reviewed in the plastic clinic at Sydney Eye Hospital. He may require further investigations such as a CAT scan of the orbit. There is no doubt that he does have diplopia that would make some jobs difficult.
Dr Soe, general practitioner, wrote on 11 September 2015 that Mr Laverick’s diplopia “is permanent and cannot be repaired due to scar tissue tethering”.
On 14 September 2015, Senthil Murugappa, optometrist referred Mr Laverick to “Ophthalmolgist Sydney Eye Hospital” “for assessment for Orbital surgery for management of his diplopia symptoms, as per his request”. No report from such referral was in evidence.
Mr Knight, optometrist, wrote a report dated 8 May 2018 at Mr Laverick’s request to support his application for work with the Antarctic Division. Mr Knight referred to medical reports about a traumatic injury to Mr Laverick’s left orbital floor which was surgically repaired and post-surgery problems with double vision:
Staton has minor diplopia (he sees double) in straight ahead gaze, it is worse if he looks up or downwards. It makes sense that there is some tethering of the inferior rectus muscle.
3 diopters of prism which the base at 300 degrees ie infer temp over the LE gives him single vision in primary or straight ahead gaze but because the muscle action varies whenever he moves his eyes, he easily de-compensates to double vision again.
He also has a small spectacle prescription of … (technical specification).
Staton seems ok with his small amount of double vision, the condition is stable and not likely to change.
Mr Laverick saw several optometrists in August to October 2018. He said that he was trying to get a prescription he could see with. He was seeing them about his astigmatism. He uses eye drops. He said that he has a script but cannot afford to get it filled.
He saw a Dr Yu, ophthalmology registrar, The Prince of Wales Hospital, on 26 September 2018. Mr Laverick said that he did this at the request of the Tribunal. He provided a copy of three pages of handwritten Progress/clinical Notes of that consultation attached to an email dated 25 January 2019. In the email, he stated that a full report “is currently being dictated” however this may not be received in time for the hearing. No report was provided. Mr Laverick wrote that a diagnosis of mild blepharitis has been added to astigmatism and diplopia. The notes refer to discharge from eye last 2 months. The Tribunal can see no diagnosis of mild blepharitis.
The clinical notes referred to Dr Black. Mr Laverick said he was going to see Dr Black, an eye specialist, about his diplopia. Mr Laverick said that there was a 50% chance of a good result from surgery. He is not prepared to risk losing his sight. He said that he had spoken to an eye surgeon at Brighton in March 2019. The result of surgery could be terminal blindness.
Mr Laverick told the Tribunal that when he wears an eye patch he sweats profusely and that causes irritation around the patch. If he uses just one eye, it is difficult to gauge distance, for example, to grasp something. It is not practical for him.
There is no medical evidence corroborating Mr Laverick’s claims that surgery for diplopia has a 50% chance of a good result, or may result in terminal blindness or that Sydney Eye Hospital wanted to operate on his right eye because of scar tissue on his left eye. Mr Laverick has had a number of referrals for advice about surgery but does not appear to have seen the specialists to whom he was referred. There is no report from around the time of the 1995 injury that talks about surgery to correct the diplopia. Without any medical evidence about the nature or risk of the surgery, the Tribunal is not satisfied that Mr Laverick’s not wanting to have the surgery is reasonable. It notes Dr Nardi’s opinion that if his diplopia was severe, Mr Laverick would seek further treatment.
The Tribunal is not satisfied that Mr Laverick’s diplopia has been fully treated and stabilised as at the qualification period and therefore it cannot be rated under the Impairment Tables.
Asthma
The most recent record of Mr Laverick’s Asthma condition is in the clinical notes of Dr Nachiappan, general practitioner, who saw Mr Laverick on 3 January 2019. Those notes record that Mr Laverick has had Asthma – Chronic Persistent since 1984, has been treated with various medications, and currently is on Atrovent and Ventolin, “Keeps fit” and “uses Prednisolone as required”.
Mr Laverick provided a print out about Prednisolone from St Vincent’s Hospital, Melbourne. He pointed to the side effects listed and claimed that such a medication is “life changing” and compound his symptoms associated with the “original injury” with micro sleeps, insomnia, fatigue, dizziness, lack of coordination etc.
The Tribunal accepts that this condition is permanent, that is, it has been fully diagnosed, treated and stabilised.
Impairment Table 1 – Functions requiring Physical Exertion and Stamina is relevant.
Dr Soe’s assessment of mild functional impairment for physical exertion and stamina does not assist because he included both asthma and migraine, which for the reasons that follow, the Tribunal has found was not permanent and therefore cannot be rated under the Impairment Tables. Further, Dr Soe provided no details of the functional impairment.
There is no medical evidence supporting Mr Laverick’s claims to suffer side effects from using Prednisolone.
The JCA conducted face to face in Dubbo on 23 May 2018 reported that Mr Laverick said:
·He suffered intermittent shortness of breath on any physical exercise and when walking up a hill he needs to stop and rest.
·He reported exercising daily, walking a minimum of 2 km daily and runs between 5 and 10 km at least once per week.
When asked about that report at the hearing, Mr Laverick said that he had exercised in the past but cannot now, that the last time he ran was eight years ago; it is not recommended and he cannot do it without incident. He also said that he has worked since July 2016 maintaining five properties that are between 10 metres and 2 kilometres from where he lives, which he walks to. He also said that he has been asked not to walk because of tendonitis in the foot. Dr Nachiappan’s clinical note as at 3 January 2019 lists Plantar fasciitis (left) under the heading “Inactive” against a date of 20 June 2018. Mr Laverick was clearly referring to that condition. He gave evidence about the work he does around his home.
Dr Nachiappan’s clinical note in the context of asthma, that Mr Laverick keeps fit, is inconsistent with Mr Laverick’s evidence that he does not exercise.
The Tribunal finds that Mr Laverick is able to undertake exercise appropriate to his age for at least 30 minutes at a time and has no difficulty completing physically active tasks around his home and community. There is no functional limitation on activities requiring physical exertion or stamina and a rating of 0 points is appropriate.
Migraine
In his report dated 13 August 1998, referred to above, Dr David Healey wrote that Mr Laverick said the following:
·After the injury in January 1995, he noticed frequent left sided headaches of 1-2 hour’s duration which might occur twice a week.
·Excessive television watching can bring on a headache.
·He treats his headaches by lying down and resting.
·Previously, regular Sandomigran helped these headaches, but he no longer takes them.
Sandomigran is used to prevent migraine.
Mr Laverick told the Tribunal the following:
·He gets a migraine at least once a week and they last from one to eight hours.
·He is light sensitive and suffers throbbing pain.
·He takes aspirin when he feels one coming on or when he thinks he will get one. He has less “down time” with Aspirin than if he takes Panadol.
The Tribunal accepts Mr Laverick’s evidence that in recent times he only took Panadol and Aspirin for his migraines until he was prescribed amitriptyline (Endep) on 31 December 2018 which was supplied on 2 January 2019, according to the Pharmaceutical Benefits Scheme evidence for the period 22 October 2014 to 21 January 2019.

Mr Laverick said had trialled Sandomigran in about 2001 and 2008 but ceased using it because of the side effects. There is no contemporaneous medical evidence corroborating that he suffered side effects. Dr Healey’s report was comprehensive and detailed but did not mention that Mr Laverick stopped taking the medication because of side effects.
Mr Laverick said that after the AAT1 hearing, he was prescribed Endep (amitriptyline) which he takes at night to prevent migraine, with no great success. Dr Nachiappan’s clinical notes dated 3 January 2019 reflect that Endep was prescribed. Mr Laverick said that the side effects include dizziness and he is not allowed to drive or operate machinery because it affects him the next day. He said that he had not taken it the night before the hearing because he would have had slurred speech and his thinking would not have been clear.
He provided a print out from “activas” about amitriptyline and pointed to the side effects listed which he claimed were “life changing” and compound his symptoms associated with the “original injury” with micro sleeps, insomnia, fatigue, dizziness, lack of coordination etc.
Mr Laverick said that the CT scan of 14 August 2018 showed that they cannot find a reason for his migraines. There is no abnormality to warrant seeing a migraine specialist.
The subject line of that report was “CT Sinuses Non-IV Contrast”. The scan was of the brain and sinuses. The CT report concluded:
Normal brain. Mild changes of rhinitis but no nasal polyps. Mild mucosal thickening within the ethmoidal aircells.
There is no suggestion in the evidence, including from Mr Laverick, that he has ever seen a specialist medical practitioner about migraines. The Tribunal does not accept Mr Laverick’s opinion that because there was no abnormality of the brain reported in the 14 August 2018 CT scan that there is no need to see a migraine specialist.
Mr Laverick did not take prescription medication for migraine from about 2008 until January 2019.
The evidence shows that the condition had not been fully treated and stabilised as at the qualification period and is therefore not permanent and no rating can be assessed under the Impairment Tables.
Sinus
Mr Laverick told the Tribunal that he was not aware that he had a blocked sinus until the CT scan was done on 14 August 2018. He said that his sinus pain started in December 2017.
The Tribunal does not understand the CT report to conclude that Mr Laverick has a blocked sinus. The Tribunal understands the reference to “Clinical Details: Right sided sinus blockage” in the details set out at the beginning of the report to refer to the clinical concern the general practitioner had and which was the reason he referred Mr Laverick for the scan. Neither the findings nor the conclusion in the report state the Mr Laverick has a blocked sinus.
Mr Laverick asked the Tribunal to note from the 26 September 2019 Progress/Clinical notes the specialist’s request for the GP to refer him to an ENT (ear, nose and throat) specialist in relation to diagnosis of tonsillitis and sinus “based upon conclusive medical evidence of blocked sinus”, blocked tear ducts, infected throat & recurring ear infection. The Tribunal can see a note which indicates that the specialist was going to advise the general practitioner to refer Mr Laverick to an ENT for review for sinus. There is also a note about what Mr Laverick reported about his sinus issues.
Dr Win wrote a referral to Otolaryngology, Royal Melbourne Hospital on 8 December 2018. No report from such a specialist was in evidence.
There was no suggestion in the medical evidence that Mr Laverick suffered a sinus condition during the qualification period. The sinus condition had not been fully diagnosed, treated or stabilised as at the qualification period and is therefore is not permanent as required by the Impairment Tables, and no rating can be given.
Supraspinatus Tendinitis
The Respondent addressed the condition “tendonitis”. Mr Laverick had told AAT1 that he had been diagnosed with it two months before that hearing which was in August 2018. He also talked about that condition before this Tribunal. As set out above, the Tribunal finds that Mr Laverick was referring to plantar fasciitis, a condition of the feet which the clinical notes show was diagnosed on 20 June 2018 and was listed under the heading “Inactive” as at 3 January 2019. The condition supraspinatus tendinitis was also listed under the heading “Inactive” in Dr Nachiappan’s clinical notes dated 3 January 2019. It had been diagnosed on 22 October 2014 but it was “not an issue currently”. It is not a condition that was relevant during the qualification period.
Decision
Mr Laverick’s rating under the Impairment Tables is 0. He did not qualify for DSP during the qualification period. The reviewable decision is affirmed.
It is open to Mr Laverick make another claim for DSP supported but relevant medical evidence at that time.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[SGD].......................................
Associate
Dated: 6 September 2019

Date(s) of hearing: 10 July 2019

Applicant: In person

Solicitors for the Respondent: Mr P Nacion, Sparke Helmore Lawyers

[2019] AATA 3320

6 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date(s) of hearing:	10 July 2019
Applicant:	In person
Solicitors for the Respondent:	Mr P Nacion, Sparke Helmore Lawyers