Malik and Secretary, Department of Social Services (Social services second review)
[2015] AATA 649
•31 August 2015
Malik and Secretary, Department of Social Services (Social services second review) [2015] AATA 649 (31 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/4908
Re
Sam Malik
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 31 August 2015 Place Sydney The decision under review is affirmed.
......................[sgd].............................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – permanent conditions – whether the Applicant had an impairment rating of 20 points or more under the Impairment Tables – whether the Applicant had a “continuing inability to work” – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 27, 94
Social Security (Administration) Act 1999 (Cth) s 80
CASES
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
31 August 2015
BACKGROUND
The Applicant, Sam Malik, was paid disability support pension (DSP) from 1996. In 2012 his entitlement was reviewed and it was decided to cancel his DSP. The decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT), (albeit on slightly different grounds). The Applicant now seeks review of the decision by this Tribunal.
THE LEGISLATION
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Qualification criterion for DSP
The qualification criterion for DSP is set out in s 94 of the Act. It provides that a person is qualified for disability support pension if:
(a)they have a physical, intellectual or psychiatric impairment (s 94(1)(a)), and
(b)that impairment (or impairments in combination) attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)), and
(c)the person has a continuing inability to work (s 94(1)(c)(i)).
Section 27(3) of the Act provides that where a person’s entitlement to DSP is reviewed, the Impairment Tables in force as at the date when the assessment notice was issued are to apply. Centrelink issued the Applicant with an assessment notice on 5 November 2012. Therefore the Impairment Tables that apply are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Relevant date
Under s 80(1) of the Administration Act the decision for this Tribunal is whether the Applicant was qualified for DSP at the date of cancellation: per Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.
ISSUES
The Respondent did not dispute that the Applicant satisfies s 94(1)(a).
The issue is, therefore, whether the Applicant was qualified to receive DSP at the date of cancellation. This depends on whether the Applicant satisfied all other elements of s 94 of the Act, in particular:
·Whether his impairments attracted an impairment rating of at least 20 points, and, if so;
·Whether he had a continuing inability to work.
In considering whether any of the Applicant’s impairments attract an impairment rating I must have regard to the Determination and the requirement that the condition causing the impairment is permanent and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years. A condition is permanent if it is fully diagnosed, treated and stabilised and the condition is more likely than not, in light of available evidence, to persist for more than two years.
THE APPLICANT’S CONDITIONS
On 8 November 2012, following the assessment notice being issued, the Applicant’s GP of about 20 years, Dr David Loh, completed a medical report in which he wrote that the Applicant suffered diabetes with a date of onset in 1996. The impact on the ability to function was reported as poor concentration and sensory neuropathy. He also reported that the Applicant suffered from “DISH (diffuse idiopathic skeletal hyperostosis), crush fracture T8/T9 - osteopenia”. The current symptoms were reported as back pain with impact on ability to function reported as “unable to lift”.
On 9 November 2012 the Applicant listed the disabilities, illnesses or injuries he had as, “Back injury, diabetic, high cholesterol levels, depression and anxiety, carpel tunnel of the hands, chest pain, disease to the dorsal and lumbar spine, eye cataract [and] high blood pressure”.
At the hearing the Applicant gave clear evidence which I found to be sincere and without exaggeration.
Diffuse Idiopathic Skeletal Hyperostosis (DISH)
On 8 November 2012, Dr David Loh reported that the Applicant suffered from “DISH (diffuse idiopathic skeletal hyperostosis), crush fracture T8/T9 - osteopenia”. The current symptoms were reported as back pain with impact on ability to function reported as “unable to lift”.
On 4 December 2012 a registered occupational therapist conducted a face to face Job Capacity Assessment (JCA). At the JCA, the Applicant reported that he experienced persistent back pain associated with stiffness in the upper and lower back region.
On 4 January 2013 Dr Loh completed a medical report in support of the Applicant’s DSP. He reported the date of onset of the Applicant’s DISH as 2006, and the vertebral crush fracture T8/T9 had a date of onset 1996/2011.
On 8 August 2014 Dr Peter Johnson, rheumatologist, to whom the Applicant had been referred by Dr Loh, reported that the Applicant suffers from DISH. He stated that the Applicant had “significant spinal restriction” and the condition is “essentially an untreatable condition where the bones in the spine become joined by bony bridges”. He reported that there is no known treatment and the condition “is seen in increased frequency in patients with diabetes”. He reported that “[t]he only treatment is analgesia which will be of variable success”.
The Applicant said he had tried massage, but had been advised to discontinue after two sessions because his condition was not muscular, but bone-related.
The JCA assessor had considered the condition to be “permanent” and fully diagnosed, but did not consider the condition to be fully treated and stabilised. On 17 December 2012, the Health Professional Advisory Unit (HPAU), Department of Human Services, completed an opinion. HPAU did not consider the Applicant’s DISH to be fully diagnosed, treated and stabilised. The Respondent, however, accepted that as at the date of cancellation the Applicant’s DISH was fully diagnosed and fully treated. In view of the evidence of Dr Johnson, I find the condition to be permanent in that it is fully diagnosed, treated and stabilised. Accordingly, an impairment rating can be assigned.
At the JCA the Applicant reported that he experienced lower back pain associated with stiffness in the upper and lower back region. He advised that he could “manage routine household tasks but could not perform heavy tasks such as gardening, mowing”. The Applicant reported a sitting, standing and walking tolerance of up to 30 minutes and a driving tolerance of up to 60 minutes. The Applicant was critical of the JCA and contended that insufficient information was taken from him. He also was of the view that the outcome, namely cancellation of his DSP, had been a foregone conclusion.
Dr Loh reported in November 2012 that the impact of the condition on the Applicant’s ability to function was an inability to lift. In January 2013 Dr Loh reported the impact on the Applicant’s ability to function as: unable to lift, no repetitive bending, no prolonged standing or walking. Dr Johnson reported that the Applicant “has significant spinal restriction. In fact, he has little flexion at all in his lower back and minimal extension”. He referred to the Applicant’s pain being “constant and present on most activities even walking”.
In a very recent report, dated 7 July 2015, Dr Loh wrote of the Applicant attending on four occasions during the previous year with back pain. He has two crush fractures of his thoracic spine. He has referred chest pain which restricts his exercise capacity.
The Applicant gave evidence to the SSAT that he has difficulty bending and would need to be seated to retrieve an object from the floor. He said he has difficulty working at above shoulder height. He said he is generally not very active and is able to undertake some light types of housework only, such as light cooking, light cleaning and putting the washing in the machine.
His evidence before me was that he has pain all the time, and especially at night when he feels his bones “rubbing [against each other]”. He usually takes 2-4 Panadol daily, but it has limited effect. He said he was able to put on his shoes, but only ties his shoelaces loosely; he can do his hair and dress himself. He can prepare light meals and attends to the small amount of washing up. He attends to the laundry and places items on a rack to dry. He lives quietly, doing internet research about his conditions, shopping, visiting friends or volunteering, to the extent he could help, at the church.
He told me he has difficulty walking and he tries not to have to lift. He can lift, for example, two litres of milk onto the top shelf of the refrigerator.
He said he drives the car – mostly to the shops, church and to visit friends. He needs to only drive for about 15 minutes, but can drive for more than 30 minutes, if necessary.
The SSAT observed the Applicant to sit for more than 30 minutes during the hearing. Similarly, before me, the Applicant remained seated for in excess of an hour.
He told me he was unable to bend, but was observed to pick up his wallet from the floor (from the seated position) without apparent limitation.
A rating under Table 4 is appropriate for a condition that results in a functional impairment in relation to spinal function. That Table provides, relevantly:
Points Descriptors 0 … 5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
I do not consider that at the date of cancellation the evidence supports a finding that the Applicant’s spinal condition resulted in severe functional impact. In particular, there is no medical evidence that he was unable to perform any overhead activities, or turn his head, or bend his neck without moving his trunk or bend forward to pick up a light object from a desk or table or remain seated for more than 10 minutes.
I find, though, that the Applicant’s evidence is consistent with a finding that, at the date of cancellation, his spinal condition caused a moderate functional impact attracting an impairment rating of 10 points.
Diabetes
In his report of 8 November 2012 Dr Loh noted that the Applicant suffered diabetes with a date of onset in 1996. He reported that the Applicant’s HbA1c reading was 8.4% and that the impact on the Applicant’s ability to function due to diabetes was poor concentration and sensory neuropathy. In his recent report, Dr Loh observed that the Applicant’s diabetic control has been deteriorating since 1996. The Applicant had described cramps in his hands and feet as a result of his diabetes. He has to massage his hands and his foot due to his cramps from poor diabetes control. The frequency of his diabetic visits was 10 visits in the past year.
Dr Loh wrote that the Applicant’s diabetes was associated with chest pain although investigations showed a normal Computerised Tomography Angiogram in August 2011 and May 2013. There had been a false positive stress test in December 2012. The Applicant’s evidence was that investigations are continuing because it is unclear if his chest complaints are as a result of his spinal condition affecting his ribs, or if he also has a heart condition.
The Applicant gave evidence to the SSAT that although Dr Loh had suggested he start insulin injections he was reluctant to commence at this stage and was attempting to lose weight to achieve better diabetic control. In his recent report Dr Loh referred to the Applicant’s medication and the Applicant’s “probable” phobia to injections.
The Applicant’s evidence was that he was diagnosed with diabetes in about 1992 or 1994. He was immediately placed on medication. He has been trialled on different medication over the years. One was abruptly stopped when its use was found to be related to cardiac problems. Currently he takes six tablets a day. He tests his blood sugars twice daily if he feels unwell, but otherwise, every second day. Notwithstanding his medication, his blood sugars remain unpredictable – sometimes inexplicably high or low, irrespective of his diet. His evidence was of no management strategy, if, having taken his six tablets (diaformin and Amaryl), his blood sugars remain high. He is managed by Dr Loh, and has not been referred to an endocrinologist. He undertakes a fasting blood test every three months.
He described sometimes feeling weak and lacking in energy and not wanting to get up. He has a lot of cramps. When his blood sugars are high he feels sweaty. When his blood sugars are low he becomes anxious as to the cause.
He said he has a burning sensation on the soles of his feet which started about 3-4 years ago. He also described a grating of the bones in his feet which makes going barefoot difficult. He said his “burning” feet mean he is sometimes unable to walk or stand for a long period because of pain. He has tried to find special shoes with “jelly” inserts and these sometimes help.
He said he has weakness in his knees. Sometimes his vision feels “dark”, and, he told the JCA assessor, he was referred to an opthalmologist in 2005. He said his doctor said all these symptoms were related to his diabetes.
As to his decision to postpone insulin injections, the Applicant explained that once he went onto insulin there would be no going back. He understood there was a trial soon of implants and wanted to try that instead. He confirmed Dr Loh’s suspicion of a needle phobia.
The Respondent submitted that the Applicant’s diabetes and the associated medical issues are not fully treated and stabilised. As such, no impairment rating may be assigned. It relied on the JCA conducted on 4 December 2012 where the Applicant reported that he may need insulin therapy to control the elevated blood sugar levels. The JCA considered his diabetes was “permanent” and fully diagnosed, but did not fulfil the criteria to be regarded as fully treated and stabilised. HPAU also did not consider the condition to be fully diagnosed, treated and stabilised as it was not well controlled and further treatment was to be undertaken.
The Determination states that 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.
Reasonable treatment is defined in subs 6(7) of the Determination.
The Full Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428 considered the question of whether a person had a medical or compelling reason to refuse treatment. At the time the Impairment Tables were located in Schedule 1B of the Act. The Court held (at 438):
… the appropriate question for the decision-maker to ask is, “Am I satisfied that there is a reason that compels [the person] not to undertake treatment?” Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of cl 6.
The Court also stated (at 436):
We accept the respondent’s submission that a “medical or other compelling reason” for a person not undertaking treatment covers more than a reference to the “risks and side-effects” of the treatment. There is also much force in the respondent’s submission that, in context, “other compelling reason” may include physical, legal and moral concerns, however it is not necessary for us to consider that issue here.
I accept that the Applicant may have a “phobia” about needles. More compelling, though, is his concern about “never being able to go back” once insulin injections are commenced. I accept that, with the exception of this final treatment step the Applicant has been given a variety of medication for about 20 years in an attempt to manage his diabetes. There was no evidence that he was not compliant.
I therefore accept that his condition may be regarded as fully treated. It has stabilised, in that it is not going to improve; it can only be managed, and to the extent that the Applicant has not undertaken reasonable treatment he had a medical or other compelling reason for not doing so. As such, an impairment rating may be assigned.
The Respondent pointed out, and I agree, that the appropriate Table under which to assess the condition is Table 1. That Table provides, relevantly:
Points Descriptor 0 There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5 There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
I do not consider that the evidence supports a finding of an impairment rating greater than 0.
Ischaemic heart disease
On 19 December 2012 Dr Raul Amor, cardiologist, reported that he had examined the Applicant and found that he has ischemic heart disease. He reported that the Applicant was “not fit to return to work until further notice”. No further information was provided. Dr Loh reported that the date of onset of ischemic heart disease was “29 November 2012” with a date of diagnosis of 19 December 2012. The Applicant is shortly to see another cardiologist. It cannot be said that, at the date of cancellation, his cardiac condition, if any, has been fully diagnosed, treated and stabilised.
Psychiatric condition
On 7 April 2015, following a referral from Dr Loh, Ms Rachael Haynes, psychologist, reported that the Applicant was experiencing major depression. She reported that Cognitive Behavioural Therapy had been “used extensively”. She reported that the Applicant would benefit from continuing therapy to continue to build his coping skills. It cannot be said that at the date of cancellation that his psychiatric condition, if any, has been fully diagnosed, treated and stabilised. Dr Loh’s 2015 report notes that the Applicant has suffered from depression since 2015 although he has been on Zoloft since November 2014. Ms Haynes encouraged the Applicant to adhere to anti-depressant medication.
Other conditions
In addition to the above conditions the Applicant referred to suffering high cholesterol levels, carpel tunnel of the hands, eye cataract and high blood pressure. Dr Loh, in his recent report noted the Applicant is taking medication for cholesterol and metoprolol is for hypertension. However, in neither of Dr Loh’s reports prepared around the time of the cancellation does the doctor identify these conditions as having a significant impact on the Applicant’s ability to function. In my view there was no evidence that the conditions were, at the date of cancellation, fully diagnosed, treated and stabilised.
In his recent report, Dr Loh referred to a diagnosis of anaemia in April 2014. The Applicant was referred to a gastroenterologist. On 1 September 2014 a panendoscopy, gastroscopy (which showed duodenal erosions) and a colonoscopy (which also showed haemorrhoids) were performed. Dr Loh also referred to a fractured left toe and minor osteoarthritis of his right first metatarsal bone being revealed by an x-ray performed in March 2015. None of those conditions were, at the date of cancellation, fully diagnosed, treated and stabilised.
In summary, the Applicant’s total impairment rating is 10 points. The Applicant therefore does not meet s 94(1)(b) of the Act. Consequently, he is unable to satisfy all criteria for the DSP. Having come to that view it is not necessary to consider whether the Applicant has a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ..................[sgd].................................................
Associate
Dated 31 August 2015
Date of hearing 21 July 2015 Applicant In person Solicitor for the Respondent Ms S Wavamunno, Department of Human Services
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