Marano and Secretary, Department of Social Services (Social services second review)
[2015] AATA 813
•20 October 2015
Marano and Secretary, Department of Social Services (Social services second review) [2015] AATA 813 (20 October 2015)
Division
GENERAL DIVISION
File Number(s)
2015/0124
Re
Shamshon Marano
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 20 October 2015 Place Sydney The decision under review is affirmed.
........................................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
20 October 2015
BACKGROUND
In 1998, Mr Marano who is now 52 years old injured his neck and right shoulder in a workplace accident. He returned to work but in 2000 injured his lower back in a second workplace accident. He had been receiving regular workers compensation payments until they were ceased in January 2014.
On 4 February 2014 Mr Marano lodged a claim for disability support pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.
Mr Marano’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.
In these proceedings Mr Marano seeks review of the decision of the SSAT dated 17 November 2015 which found that he had a total impairment rating of 15 points under Tables 2 and 4 and did not qualify for DSP.
Mr Marano attended the hearing by telephone and was able to give oral evidence.
ISSUES
In order to qualify for DSP, Mr Marano must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 4 February 2014 and 4 May 2014 (the claim period).
Section 94(1) of the Act provides that a person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
The Respondent concedes, and the Tribunal accepts, that Mr Marano suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The relevant conditions for consideration by the Tribunal are conditions involving spinal function (cervical and lumbar), upper limb function (right and left shoulder) and lower limb function (right and left knee).
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),
·fully treated (paragraph 6(4)(b)),
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
The Respondent accepts that during the claim period the spine and upper limb conditions were permanent for the purposes of the Impairment Determination.
The Respondent contends that Mr Marano’s rating under Impairment Table 2 was 5 points and 10 points under Impairment Table 4.
The Respondent contends that the lower limb conditions were not fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied which means that during the claim period Mr Marano’s total impairment rating was 15 points and he did not satisfy s 94(1)(b) of the Act.
Therefore, the Tribunal must decide whether during the claim period Mr Marano’s Impairment was 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
EVIDENCE
Spine
There is no dispute that Mr Marano has a significant degenerative disease of the spine particularly the cervical spine. He told the Tribunal that his main problem is chronic neck pain which is particularly troublesome at night and interferes with his sleep. His current treatment is based on regular analgesic (Endone, Panadeine Forte) and anti-inflammatory (Voltaren, Naprosyn) medication. He claims to suffer severe impairment as a result of the pain and the side effects of his regular medication.
In a Job Capacity Assessment (JCA) Report submitted on 4 March 2014 the assessor concluded that Mr Marano suffered a moderate impact on activities involving spinal function and recommended a rating of 10 points under Impairment Table 4 on the basis that he is able to sit for at least 30 minutes, is unable to sustain overhead activities, and has difficulty in moving his head to look in all directions.
The assessor also notes that Mr Marano occasionally requires assistance with putting on shirts over his head, is able to drive a car but has some restrictions with head turning, has difficulty with putting on trousers because bending causes pain and wears slip on shoes to reduce bending.
Mr Marano also reported “attempting to do gentle walking exercise daily, having recently obtained a treadmill…slowly increasing his walking tolerance which is under 5 minutes at present”.
The SSAT decided that 10 points under Impairment Table 4 was the correct allocation on the basis that Mr Marano was able to sit in or drive a car for at least 30 minutes and has difficulty moving his head in all directions.
The SSAT also noted that Mr Marano said that “he can attend to his own self-care, get in and out of bed independently, water the garden, use public transport independently, swim in his home pool, and walk around a shopping centre pushing a trolley” and that even though he reports he does not do housework as his wife undertakes all home duties he said “he has never undertaken housework, even prior to having his medical conditions”.
The SSAT observed that Mr Marano can “sit and rise from his chair independently and without difficulty, and lean forward to provide medical documents across the hearing table”.
At the hearing Mr Marano stated that in his view the findings of the SSAT did not correctly represent what he had said. He explained that he could do certain activities only on good days which, in general was two to three days per week and not on the other days. He said that he can’t sit for 30 minutes and can only drive relatively short distances, rarely uses public transport because he or his wife usually drive, does not swim in the pool, and when he goes shopping he sits outside or walks to a coffee shop and sits and waits for his wife. He did concede that he regularly drives two of his children to and from school, can drive to the shopping centre or to appointments and can get in and out of the car without assistance. He said that he spends much of his time at home watching sport on television but tends to get up and walk for about 10 to 15 minutes and often sleeps during the day after he has taken his medication. He also stated that his pain symptoms have become more severe in the last 18 months.
In a Centrelink Medical Report dated 31 January 2014 Dr Cywinski, GP lists the diagnosis with most impact as “back problem, neck problem as per CT and MRI” and provides no other relevant information. In response to the request for details as to how the condition and its treatment currently impact on the patient’s ability to function Dr Cywinski, provides no details and simply writes “all above”.
In a report dated 11 February 2014 Dr Guirgis, Orthopaedic Surgeon, notes that Mr Marano complained of a gradual worsening of his neck pain with “more frequent and more persistent episodic severe pain” often associated with severe headaches. The episodes may last for a few hours or days and may be associated with pain and sensory symptoms radiating into the arms. Dr Guirgis describes a similar pattern of episodic pain in the lower back and that during the exacerbations of pain “there is increased stiffness and difficulty to stand or walk for long periods of time”.
On examination Dr Guirgis notes reduced range of movement of the cervical spine as well as some sensory and reflex abnormalities in some cervical dermatomes. He concludes that Mr Marano has “verifiable radiculopathy”.
Dr Guirgis states that although Mr Marano can manage personal care he has become restricted with usual household tasks such as “cooking, vacuuming, making beds or tasks of equal magnitude such as shopping, climbing stairs or walking reasonable distances” but does not indicate which of Mr Marano’s conditions are responsible for the described impairment.
In a report for the Workers Compensation Commission dated 9 February 2015 Dr Berry, Approved Medical Specialist, notes that because of continuing pain in his back, neck and shoulders Mr Marano “saw a neurosurgeon who indicated that his major problems were related to his shoulders”. He was referred to an Orthopaedic Surgeon who carried out arthroscopic surgery on the right shoulder in 2012 and left shoulder in 2013. Present symptoms are described as “pain and clicking in the neck” and back pain with “pain into the right buttock and right thigh”. Physical examination of the cervical spine revealed “approximately one-third of the normal range” but no evidence of radiculopathy. Examination of the thoraco-lumbar spine revealed flexion which brought the hands just to the knees and no evidence of radiculopathy.
Upper Limbs
Mr Marano told the Tribunal that he has had operations on each shoulder and now has difficulty with overhead activities because of pain, intermittent “locking”, reduced lifting tolerance and intermittent sensory symptoms in his fingers. He said that he does not have pain with his arms at rest and is able to write and do up buttons.
In a Centrelink Medical Report dated 31 January 2014 Dr Cywinski, GP, describes the impact on ability to function in respect of the shoulder conditions as “all of it” but provides no relevant details.
In a report dated 11 February 2014 Dr Guirgis , Orthopaedic Surgeon, states as follows:
his right and left shoulder conditions steadily worsened as time passed forcing surgical treatment to be implemented. He had open surgery on his right shoulder on 19-11-2012…The immediate postoperative period passed uneventfully. On presentation he indicated that the pain improved but did not disappear but there was tightness causing stiffness in the shoulder even after the passage of more than one year…
He had open surgery on the left shoulder on 7-11-2013…the immediate postoperative period passed uneventfully. On presentation he indicated that the pain had improved but did not disappear but there was tightness causing stiffness in the shoulder.
Dr Guirgis provides a description of his examination of each shoulder that is in all respects identical. In particular he described “reduced abduction power against resistance”. However, he did not provide any relevant details as to functional impact on activities using hands or arms with respect to most of the descriptors in Impairment Table 2.
In a Job Capacity Assessment (JCA) Report submitted on 4 March 2014 the assessor noted that Mr Marano can manage most daily activities requiring the use of hands and arms but has some difficulty picking up heavier objects, cannot lift arms from the elbows when carrying shopping and has some difficulty reaching up or out to pick up objects. The assessor recommends a rating of 5 points under Impairment Table 2.
In a report for the Workers Compensation Commission dated 9 February 2015 Dr Berry notes Mr Marano’s present symptoms as “both shoulders are stiff but the burning pain seems to have settled“. He states that in February 2014 Dr Guirgis reported a much lesser range of movement than was found on his examination and commented that “over the ensuing year it is possible that this man’s range of movement has increased somewhat as he recovers from his shoulder surgery”.
Knees
Mr Marano told the Tribunal that he suffers from bilateral knee pain which contributes to his limited walking tolerance. He attributes the pain to MRI scan abnormalities and an “ACL reconstruction” of the right knee that was performed some years ago. I note the recent relevant MRI scans were performed in June 2014 after the end of the claim period.
In a brief letter dated 28 January 2014 Dr Sekel, Orthopaedic Surgeon, notes “right knee problem –hot spot on technetium scan. He may benefit in the future from ACL reconstruction + high tibial osteotomy” but provides no other relevant details.
In his report of 31 January 2014 Dr Cywinski notes “both knees problem” as a medical condition that is generally well managed and that causes minimal or limited impact but provides no other relevant details.
There is no mention of any knee problem in the reports of either Dr Guirgis or Dr Berry.
CONSIDERATION
I find the evidence in this matter somewhat problematic in that Mr Marano’s primary complaint is chronic pain, in particular, pain which he attributes to degenerative changes in his cervical and lumbar spine.
Subsection 6 (9) of the Impairment Determination provides as follows
(9) There is no Table dealing specifically with pain and 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 for the purposes of subsections (6)(5) and (6)
In his oral evidence Mr Marano focussed on the long history of his chronic pain, the effects of his current medication and the abnormalities found in various radiological studies. However, he did not provide the Tribunal with a reasonable account of the functional impact of his chronic pain on the various activities listed in the relevant Impairment Tables. The impairment he described appeared to be primarily related to spinal function with some contribution by upper limb function. Also, I note that the description of his impairment was somewhat inconsistent with the JCA report and the findings of the SSAT.
The medical evidence is also somewhat unhelpful. The report of Dr Cywinski dated 31 January 2014 could best be described as incomplete and provided no assistance to the Tribunal.
The reports of Dr Guirgis and Dr Berry which were clearly directed at assessment of “whole person Impairment” for the purposes of workers compensation, demonstrated inconsistency with respect to physical examination and, in my view, did not adequately address the relevant descriptors in the Impairment Tables.
Furthermore Dr Guirgis’ report of his physical examination of the right and left shoulder in which he described identical findings in all aspects of the examination, in my view, raises some concern as to the reliability of those findings.
Nevertheless notwithstanding the difficulties with the evidence I have reached the following conclusions.
I am satisfied that during the claim period Mr Marano’s cervical and lumbar spine conditions were permanent for the purposes of the Impairment Determination and that the evidence before the Tribunal is consistent with the descriptors of a moderate functional impact on spinal function so that rating of 10 points under Impairment Table 4 can be applied.
I am not persuaded that the evidence is sufficient to support a conclusion that during the claim period there was a severe functional impact on activities involving spinal function.
In respect of Mr Marano’s upper limb function I note that on physical examination Dr Berry found a greater range of movement of the shoulders than had been reported by Dr Guirgis and suggested that the improvement could be explained by further recovery following shoulder surgery.
This raises the question as to whether during the claim period the shoulder conditions were fully stabilised. The right shoulder operation was performed in November 2012 whereas the left shoulder operation was performed in November 2013 about three months before the assessment by Dr Guirgis.
I accept that during claim period the right shoulder condition was fully stabilised but I am not persuaded the left shoulder condition was fully stabilised.
Nevertheless for present purposes I accept that a rating under Impairment Table 2 can be applied.
On consideration of the descriptor’s in Impairment Table 2, I am satisfied that the evidence before Tribunal is consistent with a mild functional impact on activities using hands and arms so that a rating of 5 points can be applied.
I am not persuaded that the evidence is sufficient to support a conclusion that during the claim period there was a moderate impact on activities using hands or arms.
In respect of Mr Marano’s knee conditions I find that the evidence before the Tribunal does not support a conclusion that during the claim period these conditions were fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
DECISION
For the reasons set out above the Tribunal is satisfied that during the claim period Mr Marano’s impairment was not 20 points or more under the Impairment Tables so he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member .............................[sgd]...........................................
Associate
Dated 20 October 2015
Date(s) of hearing 7 October 2015 Applicant By phone Solicitors for the Respondent Department of Human Services
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