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

[2017] AATA 2285

Meeldijk and Secretary, Department of Social Services (Social services second review) [2017] AATA 2285 (22 November 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6670

Re:Ariejan Meeldijk

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:22 November 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) Sch 2, s 42

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A Poljak

22 November 2017

1. Ariejan Meeldijk, the applicant, seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 16 September 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 2 May 2016, and affirmed by an Authorised Review Officer (“ARO”) on 16 June 2016, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 13 January 2016.

2. The applicant’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, he had to satisfy these criteria on 13 January 2016, when he applied for the DSP, or within the following 13 weeks, that is, by 13 April 2016 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that the applicant was qualified for DSP during the relevant period.

5. The Secretary accepts that the applicant suffered from a number of conditions during the relevant period. He therefore satisfies section 94(1)(a) of the Act. The issues to be determined in these proceedings are whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether he has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the applicant’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (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 two 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 two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c) 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 (emphasis added)

    CONSIDERATION

    Back pain - disc bulges and degenerative change

13. The applicant has a long-standing history of chronic back pain due to disc bulges and degenerative change.

14. Medical imaging conducted of the lumbar spine on 17 August 2015 revealed mild degenerative change of the L3-4 and L4-5 discs.

15. In a medical certificate dated 2 September 2015, Dr Govindarajan notes that the applicant’s lower back pain is temporary.

16. Associate Professor Peter J Papantoniou, orthopaedic and spinal surgeon, notes in his report dated 22 December 2015 that the applicant “is a 45-year-old gentleman who has had lower back pain and not been working for 20 years. He presents with ongoing lower back pain radiating into both thighs and the L5 distribution on the right more so than the left”. An MRI of the applicant’s lumbar spine “demonstrates L3-4 disc desiccation and loss of height. There is a posterior bulge at L3-4 level. He has Modic changes of the posterior edge of L3-4. He has L4-5 disc desiccation and minor bulges at multiple levels with minor osteoarthritis of the facet joint”. In regards to treatment, Assoc. Professor Papantoniou says in his report that the applicant “takes Neurofen Plus, but does not take anything stronger...He has not had any physical therapy. There is no past history of any operations or injections.” Assoc. Professor Papantoniou further explains that the applicant does not need any surgical intervention and he is best treated non-operatively. He advised the applicant to see about having a course of physiotherapy at the public hospital. Relevantly he opines that the applicant’s pain is directly related to the L3-4 disc pathology. This is in addition to the mild-to-moderate osteoarthritis of the facets.

17. In a Medical Certificate dated 6 April 2016, Dr Richard Morrow, general practitioner, describes the applicant’s lower back pain as chronic and permanent. Dr Morrow repeats this opinion in further Medical Certificates dated 5 May 2016, 27 July 2016 and in an un-dated letter.

18. Ricky Li, physiotherapist, advises in a report dated 3 May 2016, that the applicant has “been having physiotherapy this year for a chronic lower back pain problem. He suffers from back pain secondary to disc bulges and degenerative changes. He has reduced movement and lifting capacity. His back pain is likely to be relatively ongoing, but hopefully there is some long-term improvement in function”.

19. On 4 October 2016, Dr Vanessa Alexander describes the applicant’s “chronic back pain, osteoarthritis of spine, L3-L4 disc pathology”, as chronic and permanent.

20. Prior to and during the relevant period, all investigations and medical evidence in regards to the applicant’s back pain were predominantly focused on degenerative changes in the spine; including disc bulges. However since this time, additional medical evidence has been obtained which suggests that further investigation is required. Despite this evidence being obtained after the relevant period, it does shed light on the possible diagnosis of the condition as it was during the relevant period.

21. In a report of Dr Burneikis, an orthopaedic surgeon, dated 1 December 2016, it was reported that the pain in the applicant’s spine could be linked to wider spread joint pain. He recommended review by a rheumatologist for a “systemic diagnosis” such as “polymyalgia, fibromyalgia or inflammatory arthropathy”. There is no evidence of these conditions being considered before this date. In light of this evidence, I am not satisfied that the applicant’s back pain was fully diagnosed during the relevant period.

22. Dr Stephen Potter, rheumatologist, reviewed the applicant on 9 January 2017 and advised in a report of the same date that the applicant was suffering from widespread chronic pain. He advised, “Weight gain is a problem. His sleep pattern is a problem.” He said that the “musculoskeletal concern herein is global pain every day, all day”. Dr Potter noted that previous radiological studies and blood tests had been completed without any positive findings and in conclusion reiterated, “…everywhere palpated is sore. This is therefore chronic pain. It is chronic widespread pain. He requires ongoing pain care. He has not yet been to a pain clinic”.

23. In regards to treatment, it was only after the report of Dr Burneikis that further treatment was considered, such as referral to a pain clinic. This was recommended by Dr Potter in a letter to the Gosford District Hospital Pain Clinic (“Pain Clinic”) dated 9 January 2017, in which he said, “[applicant] has chronic widespread pain…He would be wise to approach your group to have a multidisciplinary pain approach with physical medicine, psychological medicine and pain management…”.

24. On 22 June 2017, the applicant attended an assessment at the Pain Clinic with Dr Jane Standen who recommended a programme designed to assist the applicant to “increase functional activity despite pain”. The program included attempts at weight loss; increasing daily activity and exercise; and several sessions with a psychologist and physiotherapist.

25. In a letter dated 2 August 2017, it is noted by Mr Simon Scarr that the applicant met with a psychologist and physiotherapist on 2 August 2017 and had embarked upon a graded activity programme and has set short-term weight loss goals.

26. While I commend the applicant for embarking on this current treatment plan, unfortunately it is of little relevance to these proceedings. As I am bound to consider the circumstances as they were during the relevant period, it is plain on the evidence that the applicant has only recently commenced the treatment programme recommended by the Pain Clinic. Once he has completed this treatment, it will of course be relevant for any future application he wishes to make for the DSP.

27. Accordingly, for all the above reasons I am not satisfied that the applicant’s back pain was fully diagnosed, treated and stabilised during the relevant period. No impairment rating may be given for this condition.

    Joint pain (shoulders, wrist and knee)

28. The Secretary acknowledges that the applicant suffered from joint pain, particularly in his shoulders, wrist and knee during the relevant period. However, as already outlined above, the medical evidence shows that the applicant’s pain condition is likely to be related to a systemic disorder. The treatment for this condition is the same as what is recommended by the Pain Clinic; which is detailed above. It follows that I am not satisfied that this condition was fully diagnosed, treated and stabilised during the relevant period and no impairment rating is warranted.

    Mental health condition or neurological issue

29. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    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). (emphasis added)

30. In a report dated 28 November 2016, Associate Professor Robert Heard, neurologist, reported that in summary, the applicant’s “neurological examination is normal”. He said “I am not able to assess him from the point of view of mental health or intellectual disability and you might consider referring him to a clinical psychologist and/or social worker for further information”.

31. While I note that the applicant has been referred to a psychologist as part of his programme with the Pain Clinic and attended a consultation with a psychiatrist on 10 January 2017, there is no evidence that he suffered from a mental health condition during the relevant period. Therefore, no impairment rating is warranted for this condition. 

    High blood pressure/cholesterol

32. The applicant advised in his application for DSP that he suffered from high blood pressure and high cholesterol and was taking medication for these conditions. There is no evidence before me regarding any functional impact of these conditions. Additionally, there is insufficient medical evidence to verify this condition and to make a finding that it was fully diagnosed, treated and stabilised during the relevant period. No impairment rating can be given for this condition.

    CONCLUSION

33. The applicant’s conditions during the relevant period warrant a total impairment rating of zero points, accordingly he does not satisfy s 94(1)(b) of the Act.

34. As the applicant’s total impairment rating does not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.

35. I affirm the decision under review.  The applicant may apply for DSP again at any time.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 22 November 2017

Date(s) of hearing:	23 August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services