Manasse and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1461
•14 September 2017
Manasse and Secretary, Department of Social Services (Social services second review) [2017] AATA 1461 (14 September 2017)
Division:GENERAL DIVISION
File Number: 2017/0074
Re:Michael Manasse
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:14 September 2017
Place:Brisbane
The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014SECONDARY MATERIALS
Guide to Social Security Law, the Family Assistance Guide (2016, Cth)
REASONS FOR DECISION
Member D K Grigg
14 September 2017
INTRODUCTION
On 10 September 2015 Mr Manasse lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as follows:[1]
·below knee amputation
·dislocated hip, hip replacement
·chronic pain
·repetitive strain injury – shoulder restricted movement
[1] Exhibit 1, T Documents, T 16, pages 90 – 116, Mr Manasse’s Claim for DSP dated 4 September 2015.
Mr Manasse claimed that these conditions affect his ability to work because they affect his “mobility/capacity to lift/[ability to] carry out business duties”.[2]
[2] Exhibit 1, T Documents, T 16, page 102, Mr Manasse’s Claim for DSP dated 4 September 2015.
The Department of Human Services (“Centrelink”) rejected Mr Manasse’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T 23, pages 124 – 125, Rejection of claim for DSP dated 18 January 2016.
Claim History
Mr Manasse sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Manasse’s medical conditions did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T 29, pages 150 – 156, Decision of ARO dated 4July 2016.
Mr Manasse lodged an application for review with the Social Services and Child Support Division (“SSCSD”) on 18 August 2016.[5] The SSCSD rejected Mr Manasse’s claim and affirmed the ARO’s decision on 21 November 2016.[6]
[5] Exhibit 1, T Documents, T 1, pages 1 – 3, Application for First Review dated 18 August 2016.
[6] Exhibit 1, T Documents, T2, pages 4 – 11, SSCSD’s Decision and Reasons for Decision dated 21 November
2016.
Mr Manasse has sought a review of the SSCSD’s decision by this Tribunal.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Manasse must have a physical, intellectual or psychiatric impairment;
(b)Mr Manasse’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Mr Manasse has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Manasse meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 10 September 2015), unless Mr Manasse becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Manasse must have met the Section 94 Requirements between 10 September 2015 and 10 December 2015 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Manasse’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[9]
DID MR MANASSE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Mr Manasse’s medical conditions
Lower Limb Conditions
[10] Determination, s 3.
Right Knee Amputation
Following a motorbike accident in 2001 Mr Manasse sustained a right below knee amputation (“the Accident”).[11] Mr Manasse wears a prosthesis which Dr Greg Wren, General Practitioner, reported in January 2016, puts a strain on Mr Manasse’s hips and back.[12]
[11] Exhibit 1, T Documents, T 11, page 71, Report of Dr Morrow dated 5 September 2012.
[12] Exhibit 1, T Documents, T 26, page 136, Report of Dr Wren dated 29 January 2016.
Hip Condition
In the Accident Mr Manasse also dislocated his right hip causing a femoral head necrosis and in 2006 required a right hip replacement.[13] Four weeks later Mr Manasse had a fall and developed increasing pain and an x-ray revealed he may have fractured his acetabulum.[14]
Upper Limb Conditions
[13] Exhibit 1, T Documents, T 26, page 136, Report of Dr Wren dated 29 January 2016; Exhibit 5, Report of Dr Wren
dated 11 August 2017.
[14] Exhibit 1, T Documents, T4, page 62, Referral from Dr Patrick Buxton to Dr David Robertson dated 24 November
2005; T5, page 63, X-Ray report dated 24 November 2005.
Left Elbow
On 21 September 2010 Mr Manasse had an ultrasound guided elbow injection to treat a tear.[15]
[15] Exhibit 1, T Documents, T7, page 65, Ultrasound Report dated 21 September 2010.
An MRI of Mr Manasse’s left elbow in October 2010 found mild-to-moderate degenerative changes and a moderate grade insertional intrasubstance tear of the common extensor tendon at its insertion and tendinopathy of the common flexor origin with small intrasubstance insertional tears.[16]
[16] Exhibit 1, T Documents, T8, page 66, MRI report dated 21 October 2000 and.
In January 2015 a further ultrasound was taken of Mr Manasse’s left elbow and found the common extensor tendon appeared thickened and heterogeneous and that the findings were consistent with lateral epicondylitis.[17]
[17] Exhibit 1, T Documents, T 25, page 134, Ultrasound report dated 3 February 2015.
An ultrasound of Mr Manasse’s left elbow in July 2016 confirmed that Mr Manasse suffered from tennis elbow.[18]
[18] Exhibit 2, Secretary's Statement of Facts Issues and Contentions, Annexure I, Ultrasound Report dated 1 July
2016.
Dr Wren reports that:
(a)Mr Manasse has had chronic severe pain in both elbows since 2012;
(b)Mr Manasse will suffer intermittent pain and chronic weakness in his arms for the rest of his life;[19] and
(c)Mr Manasse’s left elbow condition is “aggravated by having to use his arms in awkward positions due to his lower limb problems”.[20]
[19] Exhibit 1, T Documents, T 26, page 136, report of Dr Wren dated 29 January 2016.
[20] Exhibit 5, Report of Dr Wren dated 11 August 2017.
Right Shoulder
In February 2015 Mr Manasse had an ultrasound of his right shoulder which found mild calcific tendinopathy of the supraspinatus, subscapularis and infraspinatus with overlying bursitis and sebaceous cyst.[21]
[21] Exhibit 1, T Documents, T 14, page 77, Ultrasound Report dated 24 February 2015; T 25, page 135, Ultrasound
Report dated 24 February 2015.
Dr Wren reports that Mr Manasse has had chronic severe pain in his right shoulder since 2012 and that he will suffer intermittent pain and chronic weakness in his arms for the rest of his life.[22]
[22] Exhibit 1, T Documents, T 26, page 136, Report of Dr Wren dated 29 January 2016.
Emphysema
In July 2011 Dr Scott Brown, Thoracic Physician, reported that Mr Manasse has some radiological emphysema but his lung function was very close to normal and that a CT scan showed no evidence of lung cancer.[23]
[23] Exhibit 1, T Documents, T10, pages 69 – 70, Report of Dr Brown dated 21 July 2011.
A CT scan of Mr Manasse’s chest was performed on 23 November 2015 and found changes of quite severe COPD.[24]
[24] Exhibit 1, T Documents, T 18, page 118, CT Report dated 23 November 2015; T 19, page 119, Radiologists
Report dated 25 November 2015.
However, in August 2016 Dr Brown reported that Mr Manasse’s emphysema is really not at all severe and that it was a bit hard to understand the degree of his breathlessness based on that alone. Dr Brown wondered whether he might also have asthma and suggested asthma treatment. Dr Brown also thought it was possible that anxiety was magnifying Mr Manasse’s symptoms. Dr Brown recommended another CT scan of his chest, and other associated tests, be taken to see whether there had been any progression of the emphysema and that he would review him again in September 2016.[25]
[25] Exhibit 1, T Documents, T 30, pages 157 – 158, Report of Dr Brown dated 3 August 2016.
In September 2016 Dr Brown reported that Mr Manasse felt his breathing was a lot better and he had not had any attacks of severe breathlessness. Dr Brown reported that his echocardiogram showed normal heart function and a CT scan showed some mild emphysema. Dr Brown reports that Mr Manasse will continue on inhalers and that exercise would improve his health and that he wondered whether anxiety might have precipitated some of the episodes he has had, although he reports that Mr Manasse rejects that idea. Dr Brown reports that Mr Manasse was quite disturbed last year when the CT scan showed severe emphysema and that his lung function is far better than that and that he tried to reassure Mr Manasse that his emphysema is far from severe. Dr Brown planned to see Mr Manasse again in January 2017.[26]
[26] Exhibit 1, T Documents, T 31, page 159, Report of Dr Brown dated 1 September 2016.
Low Testosterone Levels
Dr Morrow, Consultant Physician and Endocrinologist, reported in September 2012 that Mr Manasse has secondary hypogonadism which was most likely caused by his “analgesic usage [as a result of pain he experiences in his right leg] plus or minus significant sleep apnoea”. Dr Morrow thought it was worthwhile for Mr Manasse to continue with testosterone therapy and that further blood tests or follow-up were to occur in 3 months time. Dr Morrow concluded that if Mr Manasse could reduce his analgesic usage he was likely to improve in the area of secondary hypogonadism.[27]
[27] Exhibit 1, T Documents, T 11, pages 71 – 72, Report of Dr Morrow dated 5 September 2012.
Mr Manasse continues to receive testosterone injections.[28]
[28] Exhibit 1, T Documents, T26, page 137, Report of Dr Wren dated 29 January 2016.
Neck/spine
In 1999 Peter Hogg, Physiotherapist, reported that Mr Manasse had a 5 year history of lumbar spine pain and a CT scan had revealed a central bulge at L5/S1. Mr Hogg reported that most of Mr Manasse’s symptoms were felt in the upper lumbar area and that most of his symptoms are facet joint related due to excessive anterior tilting/nodding of the pelvis.[29]
[29] Exhibit 1, T Documents, T 22, page 123, Report of Mr Hogg dated 8 March 1999.
In October 2015 Mr Manasse’s neck and chest was re-examined and a radiologist, Dr Robert Morgan, found no abnormality in the soft tissues, minor degenerative changes in the lower cervical spine and no abnormality in the heart or lungs.[30]
[30] Exhibit 1, T Documents, T 17, page 117, Radiologists Report dated 19 October 2015.
Headaches
In 2008 Mr Manasse had a car accident and suffered whiplash which caused him pain and intermittent headaches.[31]
[31] Exhibit 1, T Documents, T 26, page 136, letter from Dr Wren to Centrelink dated 29 January 2016.
In December 2013 Mr Manasse was reviewed by Dr Peter Georgius, Pain and Rehabilitation Specialist, regarding pain in his head in the bilateral pareital region. Mr Manasse reported to Dr Georgius that in October 2013 he had been knocked off a quad bike and was found by his girlfriend lying on the ground several hours later. Dr Georgius reported that Mr Manasse had post traumatic brain injury headaches which were not responding to medication and that he could not exclude a diffuse external injury component. Dr Georgius requested an MRI scan of Mr Manasse’s brain and cervical spine and planned further review in early 2014.[32]
[32] Exhibit 1, T Documents, T 12, pages 73 – 75, report of Dr Georgius dated 16 December 2013.
Mr Manasses says that he currently treats his headaches with Panadol and on occasion uses a TENS machine on his neck.
Chronic pain
Dr Georgius reviewed Mr Manasse in September 2016 and reported that his overall assessment was that Mr Manasse has multiple sites of pain including occipital neuralgia, mechanical shoulder, elbow pain and left hip joint pain. Dr Georgius noted that Mr Manasse was on an incredibly high dose of opioids and that he discussed with Mr Manasse the extreme risks of high dose opioid use and recommended he discuss with Dr Wren the long-term option of slowly weaning and stopping his benzodiazepines. Dr Georgius referred Mr Manasse to:[33]
(a)Dr Burnett Khan, Psychiatrist, for further assessment and ongoing management; and
(b)to the Noosa Pain Rehabilitation Program.
[33] Exhibit 1, T Documents, T 32, pages 160 – 161, report of Dr Georgius dated 5 September 2016.
Dr Georgius did not feel that there was a role for pain intervention procedures at this stage, in view of the fact that he has multiple sites of pain and that any option to reduce his overall total opioids and benzodiazepine requirements would be of benefit to increase his life expectancy. Dr Georgius planned to review Mr Manasse again in 6 weeks time.[34]
[34] Exhibit 1, T Documents, T 32, pages 160 – 161, report of Dr George S dated 5 September 2016.
Dr Georgius reviewed Mr Manasse again in October 2016 and reported that Mr Manasse was still on a stable dose of opioids and that despite this he was having difficulty maintaining his ability to continue to work reliably in his own business. Dr Georgius had encouraged Mr Manasse to be reviewed by Dr Khan and to attempt the Noosa Pain Rehabilitation Program. In Dr Georgius’s opinion Mr Manasse’s’s condition was stable and stationary, had reached maximum medical improvement and was severe and permanent.[35]
[35] Exhibit 1, T Documents, T 36, page 167, Report of Dr Georgius dated 26 October 2016.
Dr Georgius reviewed Mr Manasse again in January 2017 and confirmed that in his opinion the combination of multiple sites of pain, his mood disorder, and lung disease mean that Mr Manasse will never be able to perform any meaningful work again.[36]
[36] Exhibit 2, Secretary's Statement of Facts Issues and Contentions, Annexure B, Report of Dr Georgius dated 25
January 2017.
Mental Health
Dr Gay Fitzgerald, Mr Manasse’s General Practitioner, reported in August 2015 that Mr Manasse had low mood and motivation / depression which was being treated with Lexapro but that the condition was generally well managed and causing minimal or limited impact.[37]
[37] Exhibit 1, T Documents, T 15, page 88, Medical Report of Dr Fitzgerald dated 18 August 2015.
Dr Wren reported in January 2016 that due to Mr Manasse’s chronic injuries, his disability and associated treatments, that he also suffers from chronic depression which is being treated with medication and counselling and will be recurrent the rest of his life.[38]
[38] Exhibit 1, T Documents, T 26, page 136, Report of Dr Wren dated 29 January 2016.
At Dr Georgius’ recommendation Mr Manasse was scheduled to have a consultation with Dr Burnett Khan, Consultant Psychiatrist, on 27 October 2016.[39]
[39] Exhibit 1, T Documents, T 35, page 166, Letter from Dr Kann to Mr Manasse dated 15 September 2016.
Dr Khan reviewed Mr Manasse in October 2016 and reported that Mr Manasse’s mood was at least dysthymic and mildly dysphoric and that Mr Manasse had admitted to fleeting suicidal ideas but had said he would never act on them. In Dr Khan’s opinion Mr Manasse could not sustain employment due to his physical conditions of chronic pain and disability and that he suffers psychiatric morbidity with features of persistent depressive disorder and cannot work in any capacity in any form of work on an indefinite basis. Dr Khan recommended further review in 3 to 4 weeks.[40]
[40] Exhibit 1, T Documents, T 37, pages 168 – 169, Report of Dr Kann dated 8 November 2016.
In February 2017 Dr Jeremy Gelb, Consultant Psychiatrist, reported that he had treated Mr Manasse for post-traumatic stress disorder, depression and anxiety between 1997 and 2005 in relation to severe family problems, the tragic spinal injury of his wife, and later his own devastating accident resulting in the amputation of his leg. Dr Gelb reported that at that time his psychiatric symptoms were extremely severe and required extensive treatment. Dr Gelb says he fully supports Mr Manasse’s application for DSP.[41]
[41] Exhibit 2, Secretary's Statement of Facts Issues and Contentions, Annexure D, Report of Dr Gelb dated 14
February 2017.
In February 2017 Dr Khan reports that in addition to his diagnosis of persistent depressive disorder, Mr Manasse also suffers anxiety with features of PTSD, and that the combination of persistent psychiatric and physical morbidity including chronic pain serves to incapacitate Mr Manasse such that he will not achieve capacity to work again in any role.[42]
[42] Exhibit 2, Sec's statement of facts issues and contentions, and annexure E, report of Dr Kann dated 22 February
2017
Mr Manasse told the Tribunal he has been taking anti-depressants since 2005.
Conclusion on Impairment
The Secretary accepts that Mr Manasse suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[43]
[43] See Exhibit 2, Secretary's Statement of Facts and Contentions, para 5.6.
In light of the above medical evidence I conclude that at the Qualification Date Mr Manasse suffered Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
DOES MR MANASSE’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[44] They are function based[45] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[46]
[44] Determination, s 4(2) and 5(2)(a).
[45] Determination, s 5(2)(b) and (c).
[46] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[47]
(a)Mr Manasse’s condition causing that impairment is “permanent”; and
(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.
[47] Determination, see s 6(3).
Mr Manasse’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[48]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[48] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[49] the following must be considered:[50]
(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.
[49] For the purposes of ss 6(4)(a) and (b) of the Determination.
[50] Determination, see s 6(5).
A condition is fully stabilised[51] if:[52]
(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[53]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[51] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[52] Determination, see s 6(6).
[53] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Mr Manasse’s medical history, in relation to the condition causing the Impairments.[54]
[54] Determination, see s 6(2).
ARE MR MANASSE’S LOWER LIMB IMPAIRMENTS PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The evidence of Dr Georgius, the Pain and Rehabilitation Specialist, and other medical evidence, establishes that Mr Manasse has suffered from chronic pain in relation to his right knee amputation and hip replacement since the Accident.
The issue for determination is whether or not Mr Manasse’s Lower Limb Impairments were fully treated and fully stabilised during the Qualification Period.
For several years prior to the Qualification Period Mr Manasse has been treated at pain clinics,[55] had acupuncture, and had taken pain medication.[56] In 2013 Dr Georgius recommended continued pharmacology therapy and noted that if there were no significant gains that greater and lesser occipital nerve radiofrequency neurotomy could be performed.[57]
[55] Exhibit 1, T Documents, T 11, page 71, report of Dr Morrow dated 5 September 2012.
[56] Exhibit 1, T Documents, T 15, pages 82 – 83, report of Dr Fitzgerald dated 18 August 2015.
[57] Exhibit 1, T Documents, T 12, page 74, report of Dr Georgius dated 16 December 2013.
In 2015 Dr Fitzgerald reported that the impact of these conditions was likely to affect Mr Manasse’s ability to function for more than 24 months and that the effect of these conditions on his ability to function was expected to fluctuate over the next 2 years.[58]
[58] Exhibit 1, T Documents, T 15, page 84, report of Dr Fitzgerald dated 18 August 2015
Dr Wren reports that:[59]
(a)there has been no need to change the dosage of pain medication in the last 5 years;
(b)Mr Manasse’s amputation and phantom limb pain and hip pain are fully diagnosed, fully treated and fully stabilised; and
(c)there are no new treatments which will improve Mr Manasses pain, mobility or ability to work.
[59] Exhibit 5, Report of Dr Wren dated 11 August 2017.
In January 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Manasse and a Registered Occupational Therapist. The JCA reported that the pain experienced as a result of the Lower Limb Impairments had been recently exacerbated due to recent problems with his hip which caused Mr Manasse to not wear his prosthesis. The JCA reported that Mr Manasse said he had mainly been mobilising with crutches and a wheelchair. The JCA reported that Mr Manasse had not had his right hip reviewed since his symptoms had exacerbated. The JCA concluded that although Mr Manasse’s amputated leg could be considered fully diagnosed, treated and stabilised, that the current levels of pain Mr Manasseh was experiencing had not been fully treated and stabilised.[60]
[60] Exhibit 1, T Documents, T 24, pages 126 – 127, JCA report dated 14 January 2016.
In January 2017 Dr Toby Cohen, Vascular and Endovascular Surgeon, reported that Mr Manasse was going to Sydney to obtain a formal opinion regarding below knee prosthesis that involves a permanent fixation to the tibial. Dr Cohen reported that for the last 2 months Mr Manasse had complained of ongoing stump pain corresponding to an episode where his gardening shears pierced his kneecap. Dr Cohen is of the opinion that the stump pain may relate to an infection and recommended that Mr Manasse obtain a new prosthesis every 12 months.[61]
[61] Exhibit 2, Secretary’s Statement of Facts Issues and Contentions, Annexure a, Report of Dr Cohen dated 12
January 2017.
The Secretary contends that Mr Manasse’s Lower Limb Impairments were not fully diagnosed, treated and stabilised during the Qualification Period because Mr Manasse required adjustments to his prosthesis, requires further revision and that the medication used to treat his chronic pain was not stabilised. The Secretary points to the medical evidence that Mr Manasse was continuing to be reviewed by Dr Georgius and was referred to the Noosa Pain Rehabilitation Program. The Secretary also refers to the report of Dr Wren dated 5 June 2017 where he states that Mr Manasse had looked into further operative treatment to improve his chronic pain resulting from his amputation, including having a permanent prosthesis, but as a result of an ultrasound report on review by a vascular surgeon it was determined that surgery was not appropriate. The Secretary submits that because Dr Wren’s June 2017 report and the review by the vascular surgeon occurred after the Qualification Period, Mr Manasse’s Lower Limb Impairments could not be considered fully diagnosed, treated and stabilised and further that the prohibitive cost of treatment does not support a finding that the proposed treatment is not reasonable.[62]
[62] Exhibit 2, Secretary's Statement of Facts and Contentions, para is 5.22 – 5.43.
The JCA makes no reference to the fact that Mr Manasse had been seen on several occasions by Dr Georgius who was a pain management specialist. The very nature of pain is that it may be episodic and fluctuate in its rendition and that there may be occasional flareups due to accidents such as those reported by Dr Georgius. There is no doubt from the medical evidence that Mr Manasse suffers from chronic pain and that that pain has been fully diagnosed (see paragraphs 52-59 above). There is no evidence that anything has changed. The treatment in Mr Manasse’s case is continuing because the treatment that he has received to date has not assisted Mr Manasse to completely reduce the pain and suffering. Prostheses do require review and adjustment at times and that is borne out by the fact that it was recommended to Mr Manasse that he change his prosthesis every 12 months.[63] While I accept that it may not have been known at the Qualification Period whether or not surgery may have assisted to relieve pain in December 2015, there was not even a suggestion or recommendation made to Mr Manasse that that was a possible treatment as at the Qualification Period. A submission that Mr Manasse’s leg amputation and hip condition was not fully treated because he had to change his prosthesis, or because in 2017 the possibility of surgery was investigated, is not supported by the evidence. There was no recommendation made by Dr Georgius, the pain specialist treating Mr Manasse in 2013, that surgery should be contemplated in relation to his neuropathic stump pain. Dr Wren reports in January 2016, just after the expiry of the Qualification Period, that Mr Manasse’s condition is chronic, will persist and slowly get worse over the course of his life. It is not clear to me what reasonable treatment it is that Mr Manasse should have undertaken as at the Qualification Period in order for these conditions to not be considered fully treated and fully stabilised.
[63] Exhibit 2, Secretary’s Statement of Facts and Contentions, Annexure A. Report of Dr Toby Cohen dated 12 January 2017.
The Secretary submitted that because Dr Georgius recommended that Mr Manasse reduce his opiod intake that this means he was not fully treated. However, pain medication is the recommended treatment. Whether Mr Manasse takes more pain medication or less pain medication than is recommended is a different issue. Further, both Dr Wren and Dr Georgius report that Mr Manasse’s medication is stable.
The JCA accepted that Mr Manasse’s amputation was fully diagnosed, treated and stabilised. The issue for the JCA seemed to be that because Mr Manasse:
(a)had reported increased difficulties in the last couple of months resulting from his hip pain; and
(b)had not worn his prosthesis; that
therefore the “condition” had not been fully treated.[64]
[64] Exhibit 1, T Documents, T24, pp.127-128, JCA Report dated 14 January 2016
The only condition that the JCA can be referring to is one of chronic pain. However the medical evidence overwhelmingly supports that Mr Manasse has chronic pain and that that pain fluctuates. The evidence supports a finding that what was happening as at the Qualification Period was a fluctuation of the degree of pain and discomfort that Mr Manasse was experiencing. This does not mean that Mr Manasse’s Lower Limb Impairments were not fully treated, fully diagnosed and fully stabilised.
The difficulty the JCA had was how to assign an impairment rating given that before Mr Manasse’s most recent exacerbation of pain, he had reported that he was able to be mobile with this prosthesis and had been able to ascend and descend stairs. At the hearing Mr Manasse disputed that he had told the JCA that and said it was incorrect.
I find that Mr Manasse’s Lower Limb Impairments were permanent during the Qualification Period and an impairment rating can therefore be assigned.
Using The Impairment Tables
I have to assess the level of impact of Mr Manasse’s Lower Limb Impairments against the descriptors[65] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[66]
[65]Determination, see ss 3 and 5(3).
[66] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[67]
[67] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[68]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[68] Determination, see s 7.
I must not take into account the following information in applying the Tables:[69]
(a)symptoms reported by Mr Manasse in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Manasse’s local community.
[69] Determination, see s 8.
Which Tables are appropriate are determined by:[70]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[70] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[71]
[71]Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[72]
[72]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[73]
[73]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[74]
[74]Determination, see s 11(5).
Evidence Identifying The Loss Of Function
In 2013 Dr Georgius reported that:[75]
(a)Mr Manasse’s pain severely interferes with activities, in particular work, enjoyment of life, mood and relationships and that at that time he had been unable to work due to his pain;
(b)Mr Manasse is independent by walking and with all activities of daily living;
(c)Mr Manasse is restricted to light duties;
(d)Mr Manasse has normal power of the hips and knees and normal tone of the lower limbs.
[75] Exhibit 1, T Documents, T 12, pages 73 – 74, Report of Dr Georgius dated 16 December 2013.
In 2015 Dr Fitzgerald reported that Mr Manasse has right hip pain and phantom pain in his right leg and stump and that the pain is aggravated by standing and walking.[76]
[76] Exhibit 1, T Documents, T 15, pages 83 – 84, Report of Dr Fitzgerald dated 18 August 2015.
In January 2016 and April 2016 the JCA recorded that Mr Manasse said that his hip was clicking and he had increased difficulties the last couple of months and had not worn his prosthesis for the past 12 months as it was a bad fit and was exacerbating his pain. Mr Manasse reported he is unable to undertake tasks that require prolonged walking or standing such as mowing or cooking but remains independent of self-care.[77]
[77] Exhibit 1, T Documents, T 24, pages 126 – 127, JCA report dated 14 January 2016; T 28, page 141, JCA Report
dated 7 April 2016.
Dr Wren, Mr Manasse’s long-term general practitioner, provided a medical certificate on 29 March 2017. In that medical certificate Dr Wren reports that since 10 September 2015 (i.e. as at the Qualification Period):[78]
(a)Mr Manasse regularly needs assistance at work and at home;
(b)Mr Manasse’s Lower Limb Impairments are causing “SEVERE” functional impact on activities;
(c)Mr Manasse regularly needs to leave his prosthesis off and “use crutches which means poor mobility as well as his hands being used crutches means he has trouble carrying things”;
(d)Mr Manasse requires assistance to use public transport;
(e)Mr Manasse requires assistance to transfer to and from a wheelchair;
(f)“has severe difficulty handling, moving, or carrying objects” and
(g)“his ability to work 15 or more hours per week is compromised and not possible long term which means continuing inability now and for the rest of his life/greater than 2 years”.
[78]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Annexure F, Report of Dr Wren dated 29 March 2017.
In June 2017 Dr Wren reported that Mr Manasse:[79]
(a)is unable to walk far outside his home;
(b)needs to drive or be driven to local shops;
(c)requires assistance using stairs;
(d)is unable to stand for more than 5 minutes;
(e)has great difficulty standing and walking even at the shops;
(f)can use public transport for short trips; and
(g)has some more mobility if he leaves his prosthesis off and uses crutches.
[79] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Annexure G, Report of Dr Wren dated 5 June
2017.
The Secretary submits that that report should be given little weight because it has been provided more than 12 months after the Qualification Period and is inconsistent with the information provided by Mr Manasse himself to the JCA. However, I note that the Secretary did not require Dr Wren be available for cross-examination in order to query the accuracy of his reports. Mr Manasse disputes what the JCA reported he said. The January JCA saw Mr Manasse once for a brief period of time and Dr Wren has been Mr Manasse’s treating doctor for 9 years.
Mr Manasse told the Tribunal that he had made brackets to assist him getting out of a chair and that he uses crutches when at home and cannot walk up stairs.
Relevant Impairment Table And Impairment Rating
Table 3 of the Determination, which deals with lower limb function, is the relevant Table.
The introduction to Table 3 provides that:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes.
The evidence demonstrates that the extent of the pain and impact of Mr Manasse’s Lower Limb Impairments fluctuates. 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.[80]
[80] Determination, see s 11(4).
Mr Manasse submits that an Impairment Rating of 20 points is the appropriate rating.
The Secretary submits that in the event that an impairment rating is assigned to Mr Manasse’s Lower Limb Impairments that the condition ought to be assigned a moderate 10 point rating only.[81]
[81] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, paras 5.44 – 5.53.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities using the lower limbs.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities using lower limbs.
(1)At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities using the lower limbs.
The Descriptors for an Impairment Rating of 20 points are:
(1) The person:
(a) is unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance;
(ii)walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid effectively, but needs to use a lower limb prosthesis or a walking stick.
The corroborating evidence available regarding Mr Manasse’s ability to function during the Qualification Period does not support an impairment rating of 20 points. There is no evidence that Mr Manasse’s cannot sit or stand up from a sitting position without assistance. Mr Manasse gave evidence that he uses various devices and supports in order to move about independently and in particular to stand up from a sitting position. Mr Manasse acknowledged that there is not always a person around that can assist him and that he manages to do it on his own.
Dr Wren reports that Mr Manasse’s Lower Limb Impairments are having a severe functional impact on his ability to function.[82] However, while Dr Wren says Mr Manasse can use crutches for mobility, he does not say that Mr Manasse needs assistance from another person to walk on some surfaces, and cannot move independently. The reports of Dr Wren support a 10-point rating.
[82]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Annexure F, Report of Dr Wren dated 29 March 2017.
I find that the evidence supports a finding of a moderate functional impact, not a severe functional impact. This is because Mr Manasse is able, according to the evidence available, to mobilise with crutches, which is one of the requirements for an impairment rating of 10 points. There is simply no evidence to support a finding that Mr Manasse could not move independently around a workplace or training facility, even when using a walking aid, and therefore Mr Manasse’s Lower Limb Impairments do not attract an impairment rating of 20 points.
In the event that Mr Manasse’s ability to function as a result of his Lower Limb Impairments has deteriorated he should consider making a new DSP application.
ARE MR MANASSE’S UPPER LIMB IMPAIRMENTS PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
In 2015 Dr Fitzgerald reported that:[83]
(a)Mr Manasse had had right shoulder bursitis and bilateral lateral epicondylitis on off for some years;
(b)Mr Manasse had been treated with steroid injections, elbow surgery, physiotherapy and analgesics:
(c)future treatment may require further steroid injections or specialist review if it does not settle;
(d)Mr Manasse’s upper limb impairments cause him pain and restricted movement;
(e)pain is aggravated by lifting at work and the reduced strength in his arms.
[83] Exhibit 1, T Documents, T 15, pages 85 – 87, Report of Dr Fitzgerald dated 18 August 2015
In 2015 Dr Fitzgerald felt that this condition was only expected to persist for 3 to 12 months.
The JCA concluded in January 2016 that the Upper Limb Impairments were not fully treated and fully stabilised because:[84]
(a)Mr Manasse reported limited recent intervention; and
(b)the condition had flared due to altered mobility (because he was using crutches).
[84] Exhibit 1, T Documents, T 24, pages 126 – 127, JCA Report dated 14 January 2016.
In January 2016 Dr Wren reported that Mr Manasse had chronic pain in relation to his elbow and right shoulder and that steroid injections are of little use due to the ultrasound documented torn tendons. Dr Wren reports that as a result Mr Manasse will suffer intermittent pain in his arms for the rest of his life.[85]
[85] Exhibit 1, T Documents, T 26, page 136, Report of Dr Wren dated 29 January 2016
The JCA conducted in March 2016 again found that because Mr Manasse had had minimal recent intervention that the Upper Limb Impairments were not fully treated and stabilised.[86]
[86] Exhibit 1, T Documents, T 28, page 140, JCA Report dated 7 April 2016.
However it is unclear what treatment it is that the JCA considered he should have been given as the treatment that he had already had, had not assisted him. There is also no medical evidence to suggest that further treatment or specialist review or surgery had in fact been recommended or suggested to Mr Manasse. In the circumstances I find that the Upper Limb Impairments are fully treated, fully diagnosed, and fully stabilised and an impairment rating can be assigned.
The Secretary accepts that Mr Manasse’s Upper Limb Impairments are fully diagnosed, fully treated and fully stabilised.[87]
[87] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 5.60.
Evidence Identifying The Loss Of Function
In 2013 Dr Georgius reported that:[88]
(a)Mr Manasse’s pain severely interferes with activities in particular work, enjoyment of life, mood and relationships and that at that time he had been unable to work due to his pain;
(b)Mr Manasse is independent with all activities of daily living;
(c)Mr Manasse is restricted to light duties;
(d)Mr Manasse has normal power of the shoulders, elbows, wrists, fingers and thumb, and had normal tone of the upper limbs.
[88] Exhibit 1, T Documents, T 12, pages 73 – 74, Report of Dr Georgius dated 16 December 2013.
In 2015 Dr Fitzgerald reported that Mr Manasse had pain and restricted movement in the right shoulder and pain in both elbows, reduced strength in his arms and that the pain was aggravated by lifting at work.[89]
[89] Exhibit 1, T Documents, T 15, pages 86 – 87, Report of Dr Fitzgerald dated 18 August 2015.
In January 2016 Mr Manasse reported to the JCA that:[90]
(a)he had increased pain due to the use of crutches over the past few months;
(b)he has intermittent pain;
(c)he can lift his right arm to shoulder height;
(d)using tools at work is okay;
(e)repetitive movement and pushing his motorbike increases the pain;
(f)he can cook and shop if not on crutches;
(g)he is able to complete work tasks between flare ups of the condition.
[90] Exhibit 1, T Documents, T 24, pages 127, JCA Report dated 14 January 2016.
In June 2017 Dr Wren reported that Mr Manasse experiences moderate functional impact using his right arm which causes him difficulty picking up a 1 litre carton full of liquid, picking up light but bulky objects, tying shoelaces, holding his arm up to use a computer keyboard and using his arm to unscrew a soft drink bottle.[91]
[91] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Annexure G, Report of Dr Wren dated 5 June
2017.
Relevant Impairment Table And Impairment Rating
Table 2 of the Determination, which deals with upper limb function, is the relevant Table.
The introduction to Table 2 provides that:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table upper limbs extend from the shoulder to the fingers.
Mr Manasse submits that an Impairment Rating of 10 points is the appropriate rating.
The Secretary submits that an appropriate impairment rating to be assigned to Mr Manasse’s upper limb impairments is 5 points.[92]
[92] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, paras 5.61 – 5.62.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities using the lower limbs.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities using hands or arms.
(1)The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities using the lower limbs.
The Descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities using hands or arms.
(1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
The corroborating evidence of Dr Wren supports an impairment rating of 10 points be assigned to Mr Manasse’s Upper Limb Impairments.
IS MR MANASSE’S EMPHYSEMA IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence confirms that as at the Qualification Period Mr Manasse had been diagnosed with emphysema.
However the issue is whether or not this condition has been fully treated and fully stabilised.
In 2011 Dr Brown reported that Mr Manasse had noticed breathlessness over the last year and that Salbutamol and Symbicort had made no difference although Tiotropium, which had been using the last 5 days, had led to some improvement. At that time Dr Brown recommended that the biggest issue Mr Manasse has was quitting smoking completely and that he should engage in regular exercise.[93]
[93] Exhibit 1, T Documents, T10, page 69, Report of Dr Brown dated 21 July 2011.
There was no reference made to Mr Manasse’s emphysema in Dr Fitzgerald medical report, filed in support of Mr Manasse’s DSP claim.[94]
[94] Exhibit 1, T documents, T 15, pages 78-89, Medical Report of Dr Fitzgerald dated 18 August 2015.
Mr Manasse reported to the January JCA that he had ceased smoking, was taking Ventolin and a preventative medication, but that he had not seen a specialist since 2011 when he saw Dr Brown. As a result the JCA concluded that this condition could not be fully treated and stabilised due to the limited medical information and limited treatment interventions, particularly given that Mr Manasse had only recently ceased smoking, had not had specialist review and had not participated in a respiratory rehabilitation program.[95]
[95] Exhibit 1, T Documents, T 24, page 129, JCA Report dated 14 January 2016.
From the medical evidence available it would appear that Mr Manasse was not reviewed by Dr Brown after 2011 until August 2016. While Dr Brown’s report in August 2016 confirms that Mr Manasse has emphysema, Dr Brown suggested that Mr Manasse might almost have asthma, and that anxiety may be impacting on Mr Manasse’s symptoms and that further tests and review would be required.[96] When Dr Brown reviewed Mr Manasse again a month later in September 2016 in it would appear that the asthma inhalers had contributed to Mr Manasse feeling his breathing was a lot better. What is clear from these later reports of Dr Brown however is that Mr Manasse’s symptoms appeared to have been exacerbated, most likely due to a CT scan performed in November 2015 which reported that Mr Manasse had severe COPD. However, upon seeing Dr Brown again as a result of this report it was confirmed that Mr Manasse’s emphysema is not as severe at all and that his increased degree of breathlessness was most likely based on anxiety as a result of receiving that earlier diagnosis.[97]
[96] Exhibit 1, T Documents, T30, pages 157-158, Report of Dr Scott Brown dated 3 August 2016
[97] Exhibit 1, T Documents, T31, page 159, Report of Dr Scott Brown dated 1 September 2016.
This is a difficult impairment to assess because, but for the finding of a severe COPD, one could easily conclude that at the Qualification Period Mr Manasse’s emphysema was stable. It also appears that once being informed that his emphysema was not severe, Mr Manasse’s symptoms returned to a level of stability, albeit after the Qualification Period.
There is no evidence to indicate that any further treatment needed to be considered or that the condition was not stable. In the circumstances, I find that this condition was fully treated and fully stabilised during the Qualification Period and as a result an impairment rating can be assigned.
Evidence Identifying The Loss Of Function
In 2013 Dr Georgius reported that Mr Manasse is independent with all activities of daily living.[98]
[98] Exhibit 1, T Documents, T 12, pages 73 – 74, Report of Dr Georgius dated 16 December 2013.
In January 2016 Mr Manasse reported to the JCA that he can get short of breath if he panics, when swimming, cleaning the pool, mopping the deck and vacuuming.[99]
[99] Exhibit 1, T Documents, T 24, pages 129, JCA Report dated 14 January 2016.
Relevant Impairment Table And Impairment Rating
Table one of the Determination, which deals with functions requiring physical exertion and stamina, is the relevant Table.
The introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
The Secretary submits that, if the Tribunal decided to assign an impairment rating, that an appropriate impairment rating to be assigned to Mr Manasse’s emphysema impairments is zero points.[100]
[100] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 5.70.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities requiring physical exertional stammer.
The Descriptors for an Impairment Rating of 5 points are:
(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).
The corroborating evidence demonstrates that Mr Manasse experiences shortness of breath when performing physically active tasks, for example swimming and vacuuming, and that he is able to perform most other work-related tasks that do not involve heavy manual labour. Therefore the appropriate Impairment Rating to be assigned to Mr Manasse’s emphysema impairment is 5 points.
IS MR MANASSE’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Medical evidence confirms that Mr Manasse had mental health impairments between 1997 and 2005 and again in August 2015.
It is clear that Mr Manasse was being treated for depression by his general practitioner and was taking antidepressants during the Qualification Period.
Mr Manasse was clearly diagnosed by a psychiatrist (as required by Table 5 of the Determination) with depression, anxiety and PTSD prior to the Qualification Period.
It is clear from the psychiatric reviews of Mr Manasse between October 2016 and February 2017 that Mr Manasse’s depressive disorder along with features of PTSD is persistent. It is also clear from the report of Dr Gelb, the treating psychiatrist between 1997 and 2005, that Mr Manasse had quite extensive treatment during that period for his extremely severe psychiatric symptoms. I find that Mr Manasse’s Mental Health Impairments are permanent and an Impairment Rating can be assigned
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
To assign an Impairment Rating of 20 points the evidence would need to show that Mr Manasse’s Mental Health Impairment is having a severe functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Evidence Identifying The Loss Of Function
Dr Fitzgerald reported in August 2015 that Mr Manasse had low mood and depression but that it was generally well managed and caused minimal or limited impact on his ability to function;[101]
[101] Exhibit 1, T Documents, T 15, page 88, Medical Report of Dr Fitzgerald dated 18 August 2015.
However, in June 2017 Dr Wren reported that Mr Manasse:[102]
[102] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Annexure G, Report of Dr Wren dated 5 June
2017.
(a)has no interest in nutrition and hygiene when he lives by himself and needs supervision by a live in girlfriend or frequent visits from his daughter;
(b)does not socialise
(c)actively avoids out of work social contacts and engagements;
(d)has difficulty maintaining interpersonal relationships;
(e)often has friction with his daughter;
(f)has “gone through a number of live in girlfriends who offered to care for him but who were alienated by his depression and depression related attitudes;
(g)has a short attention span;
(h)great difficulty completing the tasks needed (to prepare for this dsp application) due to difficulty understanding complex instructions;
(i)requires his daughter to do the bulk of the work at his mechanical business;
(j)needs help at home;
(k)has reduced activity levels; and
(l)difficulty coping with even mildly stressful situations.
Mr Manasse gave evidence at the hearing that he is independent with all activities of daily living. However, I note the introduction to Table 5 provides that a person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects.
Based on the evidence available, I find that an Impairment Rating of 10 points is appropriate for Mr Manasse’s Mental Health Impairment.
IS MR MANASSE’S NECK/SPINE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
In 1999 Peter Hogg, Physiotherapist, reported that Mr Manasse had a 5 year history of lumbar spine pain and a CT scan revealed a central bulge at L5/S1. Mr Hogg reported that most of Mr Manasse’s symptoms were felt in the upper lumbar area and that most of his symptoms are facet joint related due to excessive anterior tilting/nodding of the pelvis.[103]
[103] Exhibit 1, T Documents, T 22, page 123, Report of Mr Hogg dated 8 March 1999.
In October 2015 Mr Manasse’s neck and chest was re-examined and a radiologist, Dr Robert Morgan, found no abnormality in the soft tissues, minor degenerative changes in the lower cervical spine and no abnormality in the heart or lungs.[104]
[104] Exhibit 1, T Documents, T 17, page 117, Radiologists report dated 19 October 2015.
Mr Manasse did not refer to any neck/spine condition in his DSP application, although he did report to the JCA in January 2016 that he had some constant pain, difficulties with bending, shovelling, lifting and maintaining forward flexion. There is also a reference in Dr Wren’s report of 29 January 2016 that Mr Manasse’s prosthesis puts strain on his hips and his back.[105]
[105] Exhibit 1, T Documents, T 26, pages 136 – 137, report of Dr Wren dated 29 January 2016.
The only records of treatment obtained for Mr Manasse’s lumbar spine pain are from 1999 which is 16 years prior to Mr Manasse lodging his DSP claim.
Due to the lack of medical information relevant to the Qualification Period, I am unable to find that Mr Manasse’s neck/spine impairment is permanent for the purposes of the Act and therefore no Impairment Rating can be assigned.
At the hearing Mr Manasse conceded that there is a lack of medical evidence in relation to his back condition.
IS MR MANASSE’S HEADACHE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
In 2008 Mr Manasse had a car accident and suffered whiplash which caused him pain and intermittent headaches.[106]
[106] Exhibit 1, T Documents, T 26, page 136, letter from Dr Wren to Centrelink dated 29 January 2016.
Dr Georgius’ report confirms that Mr Manasse had post traumatic brain injury headaches which were not responding to medication and that he could not exclude a diffuse external injury component. Dr Georgius requested an MRI scan of Mr Manasse’s brain and cervical spine and planned further review in early 2014.[107]
[107] Exhibit 1, T Documents, T 12, pages 73 – 75, report of Dr Georgius dated 16 December 2013.
In August 2017 Mr Manasse had an MRI of his brain and cervical spine which showed:[108]
Cervical spondyloarthropathy with mixed Modic type I and 2 change at C5 and C7. Multilevel foraminal stenosis. Small but probably adequate canal.… No evidence of significant/recent bony/soft tissue injury.
[108] Exhibit 4, Radiology Report dated 15 August 2017.
Mr Manasses says that he currently treats his headaches with Panadol and on occasion uses a TENS machine on his neck.
I note that Mr Manasse did not refer to any headache condition in his DSP application.
The Secretary submitted that the cause of the headaches was not known and therefore the condition could not be considered fully diagnosed. Not knowing what causes the headaches may result in the condition not being fully treated but this does not mean that Mr Manasse’s headaches had not been fully diagnosed. The headaches have been diagnosed by Dr Georgius.
However, there is insufficient evidence of the cause of the headaches and therefore what reasonable treatment should have been undertaken. There is also insufficient evidence of the functional impact of Mr Manasse’s headaches and therefore an impairment rating is unable to be assigned.
IS MR MANASSE’S LOW TESTOSTERONE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Mr Manasse was diagnosed with secondary hypogonadism in September 2012. The recommendation given to Mr Manasse at that time by Dr Morrow was that he reduce his analgesic usage. Other than Dr Morrow’s report of 2012 there is no other medical information concerning the status of this condition during the Qualification Period, and in particular, whether the condition had stabilised or required any ongoing review. I also note that Mr Manasse made no reference to this condition in his application for DSP. Dr Fitzgerald reported that Mr Manasse had low testosterone levels as a result of the side-effects of OxyContin in her medical report of August 2015. This would indicate that either Mr Manasse had not reduced his analgesic usage as recommended by Dr Morrow or alternatively that he had reduced analgesic usage and it had no effect on his testosterone levels. In either event there is no other medical report available concerning this condition.
In the circumstances due to the lack of recent medical information I am unable to find that Mr Manasse’s Low Testosterone Impairment is permanent for the purposes of the Act and therefore no Impairment Rating can be assigned.
CHRONIC PAIN
There is no doubt on the medical evidence that Mr Manasse is in chronic pain.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the impairments causing the chronic pain, the Upper Limb Impairments and Lower Limb Impairments, have been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to those impairments. I do not consider that the evidence justifies any increase in that Impairment Rating.
ARE MR MANASSE’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).
I have found that the total Impairment Rating for Mr Manasse’s permanent impairments was 35 points, therefore Mr Manasse satisfies section 94(1)(b) of the Act.
DID MR MANASSE HAVE A CONTINUING INABILITY TO WORK? (SECTION 94(1)(C))
I have concluded that Mr Manasse’s permanent impairments attract an impairment rating of more than 20 points under the Impairment Tables in the Qualification Period therefore it is necessary for me to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Mr Manasse’s Impairments have not attracted 20 points under one single Impairment Table (i.e. they are not “severe impairments” as defined in s 94(3B)), therefore s 94(2)(aa) is the appropriate section under consideration.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(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.
(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.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (s 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mr Manasse must have actively participated in a program of support for at least 18 months between 10 September 2012 and 10 September 2015.
Unfortunately for Mr Manasse’s DSP claim, he has not participated in a program of support in the relevant period.[109] This is not disputed by Mr Manasse. Mr Manasse told the Tribunal that his doctor told him not to enage in a POS because he could not do it and it would only make things worse. However, a POS is an obligatory requirement, and regardless of the doctor’s well-intentioned advice, an applicant for DSP should ensure that they meet all of the DSP requirements before filing their application and contact Centrelink for information if they are unsure.
[109] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 June 2017, para 5.95-5.100.
Mr Manasse has not satisfied section 7 of the POS Determination, and there are no exceptions which apply because he never enrolled in a POS. There is no way around this requirement of the legislation in circumstances where a single impairment has not had a 20 point impairment rating assigned to it. As a result, Mr Manasse does not satisfy the requirements in section 94(2) of the Act and therefore, has not fulfilled the requirement in section 94(1)(c) of the Act.
Mr Manasse should enrol in a POS and once he has completed it (unless of course he is exempted by virtue of the one of the exceptions in section 7 of the POS Determination) he can lodge another claim for DSP. Examples of exceptions to the POS requirement are set out in sections 7(4)-7(5) of the POS Determination. Pursuant to those exceptions, a person will be taken to have completed a POS if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program;
or
(c)at the end of the relevant period, the person is participating in the program of support; and
(d)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
However, a person must have enrolled in a POS for these exceptions to apply.
CONCLUSION
Mr Manasse’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(c).
The decision under review is affirmed.
I certify that the preceding 175 (one hundred and seventy - five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
......................[Sgd]..................................................
Associate
Dated: 14 September 2017
Dates of hearing: 2 August 2017 and
29 August 2017Applicant:
In person
Solicitors for the Respondent:
Clayton Utz
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Appeal
-
Natural Justice
0
3
0