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

[2017] AATA 474

Mariadas and Secretary, Department of Social Services (Social services second review) [2017] AATA 474 (12 April 2017)

Division:GENERAL DIVISION

File Number:2016/1971           

Re:Devaraj Mariadas  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:12 April 2017

Place:Sydney

The reviewable decision of the Social Services and Child Support Division dated 8 March 2016 is set aside and in substitution, the Tribunal decides that Devaraj Mariadas satisfied subsections 94(1)(a), (b) and (c) of the Social Services Act 1991 (Cth) at the date of his claim on 15 May 2015.

........................................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – lower limb condition – upper limb condition – spinal condition – mental health condition – diabetes – medical conditions rated more than 20 points under the Impairment Tables – applicant has a continuing inability to work – decision under review set aside and substituted

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

12 April 2017

INTRODUCTION

1. The applicant, Mr Devaraj Mariadas, contacted Centrelink on 15 May 2015 and subsequently lodged a claim for the disability support pension on 29 May 2015.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Mariadas did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 8 March 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Mariadas did not satisfy subsection 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 15 April 2016, Mr Mariadas applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 1 March 2017. Mr Mariadas attended the hearing in person; he was self-represented and assisted by his wife and an interpreter of the Tamil language.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Mariadas must satisfy the requirements of section 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 15 May 2015 and 14 August 2015 (the claim period).

8. The Respondent concedes, and the Tribunal agrees, that Mr Mariadas suffers medical conditions that cause impairment and therefore, he satisfied subsection 94(1)(a) of the Act at the time of his claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the relevant claim period, Mr Mariadas had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in section 94(2) of the Act.

   Does Mr Mariadas have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. 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’.

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that 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).’

14. Mr Mariadas’ medical conditions are complex. This is reflected in both the medical evidence and Mr Mariadas’ evidence at the Tribunal hearing, where Mr Mariadas became extremely distressed and required several adjournments. Some of his conditions are longstanding and relate to two injuries he suffered in June 2003 and January 2006.

15. Relying on the evidence before the Tribunal, I consider that Mr Mariadas’ conditions for the purposes of his claim for the disability support pension are:

    ·left ankle, and right and left knees – lower limb conditions;

    ·right shoulder and arm – upper limb condition;

    ·back / neck pain – spinal condition;

    ·mental health condition;

    ·diabetes; and

    ·other conditions including dizziness, chest pain and memory loss.

16. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Lower limb conditions

17. Mr Mariadas had ankle surgery in 2003 and 2010.[1] In a medical report for disability support pension dated 27 May 2015, Dr Ashraf Aboud (General Practitioner) described a ‘left ankle sprain + fracture’ from June 2003 that is treated with physiotherapy and analgesics.[2]

    [1] Exhibits T1-T4 and T1-T12.

    [2] Exhibit T1-T33, p 181.

18. The evidence before the Tribunal includes a number of MRI reports for Mr Mariadas’ left ankle, and right and left knees.[3] Dr James G Bodel (Orthopaedic Surgeon), in a report dated 3 December 2014, noted that the MRI scans of the left ankle:

    …confirm the fact that there has been a lateral ligament repair which was “anatomic” and also there was evidence of the talar dome lesion on the medial side of the ankle… [4]

    [3] Exhibits T1-T10, T1-T11, T1-T16, T1-T21.

    [4] Exhibit T1-T28, p 132.

19. On 23 January 2015, Mr Mohammed Makkouk (Physiotherapist) explained that he had assisted Mr Mariadas with the post-operative rehabilitation of his ankle and opined that the damage to his left ankle was permanent. He noted the ‘instability of the lesion predisposes him into an ongoing vicious cycle of deterioration of his ankle joint and more specifically to his talar dome’.[5] He prescribed home-based exercises and physiotherapy every 6-8 weeks.

    [5] Exhibit T1-T30, p 137.

20. A medical report reviewing Mr Mariadas’ medical history and prepared for the Department of Human Services by Dr Ian Smith (Medical Adviser) on 26 September 2016, stated that Mr Mariadas has a:

    complex left ankle condition and generalised osteoarthritis, and associated pain and restriction: in my opinion Mr Mariadas is unable to walk far outside the home, and retains the capacity to drive and to walk (albeit slowly, and with assistive devices) around a supermarket.[6]

    [6] Exhibit ST1-ST6, p 270.

21. At the Tribunal hearing, Mr Mariadas confirmed that he does drive a car although only to the local shopping centre, which is three to four minutes from his home. He said that he usually stays in the car while his wife does the shopping. He uses a walking stick and requires assistance from a family member to walk as he is unable to bend down or carry anything. He told the Tribunal that he is unable to undertake any household tasks such as washing, and either slips his feet into his shoes or requires assistance from his son to put on his shoes. He stated that his lower limb conditions have been longstanding.

22. Mr Mariadas was able to take a train to the city for the Tribunal hearing. The trip took 20 minutes and Mr Mariadas told the Tribunal he needed to alternate between sitting and standing several times, and would not have been able to undertake the trip without the assistance of his wife.

23. Dr Aboud has provided letters dated 1 August 2016 and 22 August 2016, which affirm Mr Mariadas has chronic pain and suffers multiple falls due to his left ankle dysfunction.[7]

    [7] Exhibits ST1-ST3 and ST1-ST4.

24. A letter from Dr Aboud dated 24 February 2017 refers to the Impairment Tables and to Mr Mariadas’ medical conditions during the relevant claim period. Dr Aboud opined:

    Regarding his Lt ankle it is fully stabilised and no further treatment or operation could alter his condition the intensity is very extreme. I suggest 30 points impairment for his Lt Ankle which is of extreme intensity.[8]

    [8] Exhibit A3.

25. Based on the medical evidence before the Tribunal, I am satisfied that Mr Mariadas’ lower limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 3 – Lower Limb Function, I find that Mr Mariadas’ condition during the claim period had a severe functional impact on activities involving his lower limb function and I assign an impairment rating of 20 points. I am not satisfied that Mr Mariadas suffered an extreme functional impact as he was able to mobilise independently, albeit with difficulty.

    Upper limb condition

26. Dr Aboud stated in a medical report for disability support pension dated 27 May 2015 that Mr Mariadas had ‘Rt shoulder, Rt arm … pain’ that resulted from a fall at work in January 2006 and is treated with analgesics and massage.[9]

    [9] Exhibit T1-T33, pp 178-180.

27. A medical letter from Dr Robert Adler (Consultant in Pain Management) on 20 July 2012, noted that Mr Mariadas has ‘some right arm weakness, related to his C7 radioculopathy’.[10]

    [10] Exhibit T1-T20.

28. An ultrasound of Mr Mariadas’ right elbow by Dr Melvin Chew (Radiologist) on 17 October 2013 concluded: ‘lateral epicondylitis of moderate-grade with intrasubstance tears…’[11] This was treated with a common extensor injection on 7 November 2013.[12]

    [11] Exhibit T1-T23.

    [12] Exhibit T1-T24.

29. On 24 February 2014, Dr Craig Harris (Radiologist) completed an MRI of Mr Mariadas’ right shoulder and concluded:

    Moderate supraspinatus and subscapularis tendinopathy, no tear. Bursitis. Coracoacromial ligament thickening with enthesopathic change.

    Slap tear between 1 o’clock and 10 o’clock, no displaced fragment. LHB tendinopathy through its intra-articular course. Glenohumeral joint effusion with synovitis and capsular oedema raising suspicion of superimposed adhesive capsulitis/frozen shoulder.

    AC join degenerative wear with chondral loss, undersurface osteophyte and synovitis.[13]

    [13] Exhibit T1-T27.

30. Dr Smith’s medical report dated 26 September 2016 summarised Mr Mariadas’ upper limb pathology as ‘particularly affecting the shoulders but also involving the right C7 radiculopathy and right common extensor origin epicondylitis (‘tennis elbow’)’, which had a moderate functional impact.[14]

    [14] Exhibit ST1-ST6, p 270.

31. Mr Mariadas told the Tribunal that he is unable to carry or pick up anything. He is only able to hold a pen to sign his name; his wife completes any handwritten forms and his daughter types any letters to Centrelink.

32. I am satisfied that Mr Mariadas’ upper limb condition was fully diagnosed, fully treated and fully stabilised during the claim period on the basis of the medical evidence. In accordance with the information at Table 2 – Upper Limb Function, I find that Mr Mariadas’ condition during the claim period had a moderate functional impact on activities using his hands or arms and I assign an impairment rating of 10 points.

    Spinal condition

33. Dr Aboud stated in his medical report for disability support pension dated 27 May 2015 that Mr Mariadas has neck and back pain dating from January 2006.

34. Mr Mariadas has undertaken MRIs of and cortisone injection treatment to his cervical spine since 2007.[15]  An MRI of his cervical spine dated 11 May 2012 indicated mild posterior bulge at C6/7 with bilateral foraminal narrowing and prominent right sided C3/4 uncovertebral and facet arthrosis narrowing the intervertebral foramen.[16]

    [15] Exhibits T1-T5, T1-T8, T1-T10, T1-T14.

    [16] Exhibit T1-T19.

35. Dr Siri Kannangara (Consultant Physician, Rheumatology and Sports Medicine) reported on 11 December 2015 that he had treated Mr Mariadas for ‘a number of years’ when he had presented with ‘a number of musculoskeletal problems’.[17] He confirmed Mr Mariadas’ complains of:

    low back pain without any radicular symptoms and he was found to have L4/5 and L5/S1 disc desiccation and degeneration with disc bulging at L4/5 and L5/S1 respectively without any nerve involvement. There was bilateral facet arthropathy of the lower two facet joints at L4/5 and L5/S1 respectively…

    [17] Exhibit ST1-ST5, p 261.

36. In a medical report dated 26 September 2016, Dr Smith acknowledged Mr Mariadas has a range of orthopaedic conditions. He noted Mr Mariadas has spondylosis, particularly of the cervical and lumbar regions, and radiculopathy of right C7 is persistent.[18]

    [18] Exhibit ST1-ST6, p 270.

37. At the Tribunal hearing, Mr Mariadas was able to sit for more than 10 minutes but was clearly distressed from the pain. During the course of the hearing, adjournments were taken to enable Mr Mariadas to rest and lie down. He told the Tribunal that he is in constant pain and requires continual assistance from his family. He showers sitting down and when he drives for three to four minutes from his home to the local shops, he uses the side and rear mirrors as he is unable to turn his head. He told the Tribunal these functional impairments were longstanding but worsening.

38. Based on the medical evidence before the Tribunal, I am satisfied that Mr Mariadas’ spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Mr Mariadas’ condition during the claim period had a severe functional impact on activities involving spinal function and I assign an impairment rating of 20 points.

39. In making this decision, I have had regard to all the medical reports from Dr Aboud, which show a comprehensive knowledge of Mr Mariadas’ spinal condition and its’ functional impact over a period of years. A letter from Dr Aboud dated 24 February 2017, which refers to the Impairment Tables and to Mr Mariadas’ medical conditions during the relevant claim period, stated that Mr Mariadas’ spinal conditions are of severe intensity and warrant 20 points.[19]

    [19] Exhibit A3.

    Mental health condition

40. Dr Chris Basten (Clinical Psychologist), in a report dated 17 December 2012, diagnosed Mr Mariadas with Major Depressive Disorder and recommended antidepressant medication and cognitive behaviour therapy. Dr Basten noted that Mr Mariadas was very distressed by his pain and physical limitations due to his injuries, and is likely to benefit from an antidepressant.[20]

    [20] Exhibit T1-T22

41. The Job Capacity Assessment (JCA) Report dated 13 August 2015 noted that Mr Mariadas attempted to use antidepressants (Cymbalta) but ceased in 2012 due to the side effects. The JCA consequently concluded that Mr Mariadas’ depression could not be considered fully treated and stabilised as he is not currently accessing treatment and could benefit from a review with a psychiatrist to discuss medication.[21]

    [21] Exhibit T1-T34, p 190.

42. Based on the evidence before the Tribunal, I am satisfied that Mr Mariadas’ mental health condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. As the condition was not permanent during the claim period, I cannot assign an impairment rating.

    Diabetes

43. The JCA Report dated 13 August 2015 stated Mr Mariadas has non-insulin dependent diabetes, which is fully diagnosed, fully treated and fully stabilised. Mr Mariadas uses medication and, while the condition is chronic, it is well managed and has minimal impact on his ability to function.[22]

    [22] Exhibit T1-T34, p 189.

44. Based on the evidence before the Tribunal, I am satisfied that Mr Mariadas’ diabetes condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have had regard to the information at Table 1 – Functions requiring Physical Exertion and Stamina and am satisfied that Mr Mariadas’ diabetes condition has no functional impact on activities requiring physical exertion or stamina and I assign an impairment rating of nil points.

    Other medical conditions

45. Mr Mariadas reported other medical conditions to the Tribunal, including dizziness, chest pain and memory loss.[23]

    [23] Exhibit T1-T32, p 158.

46. The Secretary has contended that there is no or limited evidence regarding these conditions and their functional impact on Mr Mariadas.[24]

    [24] Secretary’s Statement of Facts & Contentions dated 2 February 2017 paras 84-89.

47. On the basis of the limited evidence before the Tribunal, I cannot be satisfied that Mr Mariadas’ conditions were permanent during the claim period as required by the Impairment Tables Determination. I therefore cannot assign an impairment rating.

    Conclusion

48. In accordance with my findings at paragraphs 25, 32 and 38 above, Mr Mariadas has a total of 50 points under the Impairment Tables and has met the requirement of subsection 94(1)(b) for an impairment rating of 20 points or more.

    Does Mr Mariadas have a continuing inability to work as defined in section 94(2) of the Act?

49. The next issue I must consider is whether, as required by subsection 94(1)(c), Mr Mariadas has a continuing inability to work because of his impairments.

50. Pursuant to section 94(2) of the Act, a person has a ‘continuing inability to work because of an impairment’ where:

    (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; … [emphasis added]

51. Section 94(3B) provides that a person’s impairment is ‘a severe impairment if the person’s impairment is of 20 points of more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.’

52. Mr Mariadas has a severe impairment because he has been assigned 20 points under a single Impairment Table and so he is not required to have actively participated in a program of support.

53. I therefore find that Mr Mariadas satisfies subsection 94(1)(c) of the Act.

    CONCLUSION

54. For the reasons set out above, I am satisfied that Mr Mariadas met the requirements of subsection 94(1)(b) of the Act during the claim period as his impairments were 20 points or more under the Impairment Tables.

55. I also find that Mr Mariadas satisfied subsection 94(1)(c) of the Act because he had a severe impairment and so is not required to have actively participated in a program of support.

    DECISION

56. The reviewable decision of the SSCSD dated 8 March 2016 is set aside and in substitution, the Tribunal decides that Mr Mariadas satisfied subsections 94(1)(a), (b) and (c) of the Act at the date of his claim on 15 May 2015.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

........................[sgd]................................................

Associate

Dated: 12 April 2017

Date(s) of hearing:	1 March 2017
Applicant:	In person
Solicitors for the Respondent:	B Salaji, Department of Human Services