Morrell and Secretary, Department of Employment and Workplace Relations
[2006] AATA 713
•18 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 713
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2006/36
GENERAL ADMINISTRATIVE DIVISION
Re: GEOFFREY MORRELL
Applicant
And: SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Dr P.D. Fricker, Member
Date: 18 August 2006
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Patricia D. Fricker
Member
SOCIAL SECURITY ‑ disability support pension ‑ lower limb impairment ‑ whether permanent at date of claim or within 13 weeks.
Social Security Act 1991 s 94(1), Schedule 1B
Social Security (Administration) Act 1999 Schedule 2 s 4
REASONS FOR DECISION
18 August 2006 Dr P.D. Fricker, Member
1. This is an application by Geoffrey Morrell (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 14 December 2005. The SSAT affirmed a decision of an authorised review officer (ARO) of Centrelink dated 14 June 2005 not to pay the applicant disability support pension (DSP).
2. At the hearing on 29 June 2006 Mr Morrell represented himself. Ms H Weston, a solicitor from Phillips Fox, appeared on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent).
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T10) together with documents tendered by the applicant (Exhibits A1-A4) and the respondent (Exhibits R1-R2).
BACKGROUND
4. Mr Morrell was born on 3 January 1947. He holds an Art's degree and a Master's degree in Theology. He has experience as a youth worker. He worked as an inquiries officer in the Victorian Department of Justice for seven years until April 2004, when he ceased work for non-medical reasons. He has an 18‑year history of low back pain. He consulted an orthopaedic surgeon, Dr Minoo Patel, in November 2004, having noticed a painful swelling in the second toe of his right foot a month earlier. Mr Morrell and Dr Patel discussed surgical correction of a gross hallux valgus deformity of the big toe and a forefoot reconstruction involving the second and third toes at the consultation but the procedures were deferred until such time as the foot became painful (T10 p73). In late December 2004 Mr Morrell developed an extensive, spontaneous deep vein thrombosis (DVT) of the right leg which was treated at Epworth Hospital with 3 days of intravenous heparin. He was discharged on 24 December 2004 and instructed to take oral anticoagulant therapy for three months (T10 p76).
5. Mr Morrell received Newstart Allowance from 13 August 2004 to 11 February 2005, when this payment was cancelled by Centrelink, which acts as agent for the respondent, because the value of his assets was in excess of the qualifying limit. He claimed DSP on 11 February 2005 and lodged the claim documents with Centrelink on 18 May 2005.
6. Centrelink had Mr Morrell assessed by Health Services Australia (HSA) on 22 March 2005. The Medical Assessor, Dr David Wong Shee, determined that Mr Morrell was temporarily unfit for full-time, open market employment and suggested a review in six to twelve months. Dr Wong Shee commented that the treating doctor had indicated that the impact of Mr Morrell's DVT was likely to persist for less than 2 years. Dr Wong Shee noted that Mr Morrell had developed an infection of the ball of his foot several weeks previously, which had been treated with antibiotics and dressings. He also noted that Mr Morrell had had long standing problems with right hallux valgus and dislocation of the second toe and that surgery had been postponed until leg swelling had resolved. Dr Wong Shee assessed Mr Morrell's low back condition, lumbar spondylosis, as a permanent condition and recorded that there was a loss of a quarter of the normal range of movement and pain on standing for 15 minutes or sitting for 45 minutes.
7. Centrelink rejected Mr Morrell's claim on 27 April 2005. Mr Morrell's treating general practitioner, Dr John MacLean, advised Centrelink, by letter dated 6 May 2005, that Mr Morrell had developed a serious infection of the right foot and advised that surgery ultimately required for orthopaedic problems may have to be brought forward (T10 p79). On 16 May 2005 a neurologist saw Mr Morrell, and after reviewing Mr Morrell on the 18 May 2005, agreed with the treating orthopaedic surgeon, Dr Patel, that Mr Morrell's symptoms and signs were suggestive of an underlying neuropathy affecting his feet and lower legs. On 20 May 2005 Mr Morrell had surgery to his right foot to debride an ulcer and amputate his 2nd right toe and part of his 2nd metatarsal. On 28 June 2005 Dr Jeremy Hammond, who was reviewing Mr Morrell's blood pressure, wrote of Mr Morrell (T10, p83):
…He reported that Mr Patel wants to perform surgery on his foot because of joint disruption of the second and third metatarsus bones in the right foot.
8. On 14 June 2005 an authorised review officer (ARO) affirmed the original decision on the basis that Mr Morrell did not have the required number of permanent impairment points under – the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (the Tables) in Schedule 1B of the Social Security Act1991 (the Act); and that he did not have a continuing inability to work.
9. On 14 December 2005 the SSAT affirmed Centrelink's decision.
10. Mr Morrell lodged an application for review of the SSAT decision with the Tribunal on 12 January 2006.
11. The issue before the Tribunal is whether Mr Morrell was qualified to receive DSP at the time he lodged his claim or within 13 weeks of the date of claim.
EVIDENCE
12. At the hearing Mr Morrell presented detailed arguments about why he thought the decision of the SSAT was wrong. He referred to much of the evidence contained in the T documents. He placed particular reliance on answers by Dr MacLean, to the questions of Ms Kayren Paul, a Centrelink advocate then acting in this matter, in a document dated 17 March 2006 (Exhibit A1), an undated medical certificate signed by Dr MacLean and date stamped by Centrelink on 5 July 2005 (Exhibit A4) and the impairment assessment made by Dr Bernard Infeld on 27 October 2005 (T10, p85).
13. In answer to questions from Ms Weston, Mr Morrell confirmed that he was suffering low back pain, peripheral neuritis, DVT and depression. He said that osteoarthritis had been omitted from that list of conditions, indicating that he thought it should have been included. He said that his feet had been painful throughout 2004. He said that initially pain in his foot had been misdiagnosed as gout but that Dr MacLean had disagreed with that diagnosis, requested blood tests and an X-ray and referred him to Dr Patel. He said that he had bearable pain in his left foot but that Dr Patel had only examined his right foot. Ms Weston pointed out that Dr Patel had said that Mr Morrell was free of pain (T10, p73). Mr Morrell said that he had taken pain killers on the day of the consultation that had masked his pain successfully. He said that Dr Infeld had confirmed the diagnosis of neuropathy on 18 May 2005. He said that the surgery he had undergone on 20 May 2005 was to debride an ulcer and relieve the pain from a bone in his toe.
14. In further answer to questions from Ms Weston, Mr Morrell said he was unable to walk or stand for very long because his feet were painful. His feet are the same now as they were then. The operation to correct hallux valgus has not been successful. He has been advised to keep his feet up as much as possible because of swelling of his feet. He wears a pressure stocking on his right leg for the control of lymphoedema. His right foot is worse than his left. He said that fractures of metatarsals in his left foot that occurred in October and December 2005 are being managed conservatively. Mr Morrell agreed that his depression had responded well to treatment and that he had asked if he might cease the medication.
CONSIDERATION OF THE ISSUES
15. Section 94 of the Act sets out the qualifications for DSP:
94.(1) 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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
16. The date at which entitlement is assessed, or the period within which entitlement is assessed, is found at Schedule 2 Section 4(1)(a)-(d) and (2)(a) of the Social Security (Administration) Act 1999:
Start day—early claim
4.(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
17. In order to determine if Mr Morrell was qualified to receive DSP within 13 weeks of the date of claim it is necessary to establish what conditions he was suffering from, what impairment resulted from each of the conditions and whether the conditions were permanent in the sense that they were fully documented, diagnosed conditions that had been fully treated and stabilised; and in the light of the available evidence were likely to persist for at least the next two years.
18. Mr Morrell's evidence before the SSAT was that he claimed DSP on 11 February 2005. A note made by Centrelink staff on the claim form that was lodged on 18 February 2005 (T3, p17) is consistent with this. Therefore, I accept the date of claim as 11 February 2005. The 13 weeks assessment period is from 11 February 2005 to 13 May 2005.
19. There is no dispute that Mr Morrell satisfies Section 94(1)(a) of the Act. Section 94(1)(a) provides that in order to qualify for DSP a person must have a physical, intellectual or psychiatric impairment. I accept that he suffered from chronic back pain, depression, asthma and an impairment of his lower limbs.
20. Section 94(1)(b) requires that a person’s impairment attracts 20 impairment points or more. The Introduction to the Tables provides guidance as to how the Tables are to be applied, and states in part:
4. …For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...
and further:
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
21. The first question that must be resolved is: from what fully documented, diagnosed conditions was Mr Morrell suffering.
22. Mr Morrell submitted that Dr Wong Shee made no mention of osteoarthritis in his feet, that he lumped together the DVT, plantar ulcer, hallux valgus and various toe dislocations/disruptions of Mr Morrell's right lower limb, withheld rating his right lower limb impairment because these conditions had not been fully treated and stabilised and only diagnosed impairment in the right lower limb, when the left lower limb was also impaired.
23. Mr Morrell's treating general practitioner, Dr MacLean, completed a Treating Doctor's Report (TDR) on 18 February 2005. He listed Mr Morrell's conditions as; chronic low back pain, deep venous thrombosis right leg, reactive depression and osteoarthritic feet particularly affecting metatarsophalangeal joints on the right. In a letter dated 17 March 2006 Dr MacLean stated that he referred Mr Morrell for X‑rays to establish the last diagnosis (Exhibit A1). The report of an X-ray of right foot, dated 6 October 2004 (T10, p72) reads as follows:
…A dorsal dislocation of the base of the proximal phalanx of the second toe in relation to the head of the second metatarsal is shown. Extensive periosteal reaction is noted about the neck of the third metatarsal where presumably a stress fracture has occurred with only minor deformity noted.
24. When Dr Patel saw Mr Morrell for the first time on 15 November 2004 he acknowledged that Mr Morrell had problems with his right foot but at no time did he refer to a diagnosis of osteoarthritis. In his letter to Dr MacLean (T10 p73) Dr Patel stated:
…Clinically there is a gross hallux valgus deformity in the big toe. There is an associated fixed flexion deformity of 15 degrees in the second PIP and 5 degrees deformity in the second DIP joints. There is also dorsal subluxation of the base of the proximal phalanx over the head of the metatarsal in the second toe. Indeed there is even a mild dorsal subluxation in the third MTP...It is very likely that the local pain and inflammation was due to the stress fracture rather than the subluxation of the second MTP joint which probably is long standing as a result of the hallux valgus and the secondary changes in the second toe.
Dr Patel does not mention a diagnosis of osteoarthritis in the letter of support that he wrote in March 2006, in which he provides a detailed account of Mr Morrell's foot problems.
24. It would appear reasonable to conclude that when Dr MacLean referred to osteoarthritis he was referring to the condition reported in the X-ray report and described by Dr Patel and not to some other condition not referred to by any other contemporary primary source. I accept that Mr Morrell had been suffering from hallux valgus for some time before he consulted Dr Patel. Although Dr Patel's attention was drawn by Dr MacLean to the right foot by reason of the pain Dr Patel refers to him having a month previously, it is possible that both feet were affected to some degree at the time. Hallux Valgus of the right foot was documented and diagnosed on 5 October 2004 on X-ray (T10, p72). It is quite clear from Dr Patel's report that at the time of the consultation Mr Morrell's foot was not causing him pain. I do not accept that Dr Patel would base this finding on observations made on the day of the consultation alone but would most probably also rely on the history supplied to him by the patient. At this point there is a diagnosed foot deformity and a decision to defer surgical treatment until such time as it became necessary. Dr Patel attributed the pain that Mr Morrell experienced before he consulted him to a stress fracture. I do not accept that the evidence shows that Mr Morrell had been suffering from painful osteoarthritis during 2004.
25. Within the assessment period, Mr Morrell's diagnosed conditions were hallux valgus of the right foot, a DVT in the right leg, plantar ulceration and infection of the right foot, chronic low back pain and reactive depression.
26. It is quite clear that during the assessment period hallux valgus of either foot and plantar ulceration and infection of the right foot had not been treated. Mr Morrell had surgery to debride the ulcer and remove infected bone on 20 May 2005 and surgery in an attempt to correct the hallux valgus in August 2005.
27. There is a question as to whether swelling related to the DVT could be considered to be fully stabilised during the assessment period. On 9 February 2005 Dr Lim noted that right leg pain had settled but the swelling remained unchanged (T10, p76). His reference to the provision of all going well to enable surgery on the toes in the future suggests an expectation of improvement. At 18 February 2005 Dr MacLean regarded Mr Morrell's DVT to be temporary and the prognosis for the symptoms to be uncertain (T4, p38). On 22 March 2005 Dr Wong Shee noted that Mr Morrell had moderate to severe leg swelling which was gradually improving. On the medical certificate provided to Centrelink on 5 July 2005 (Exhibit A4) Dr MacLean stated that the condition was permanent and likely to persist. The undated report of Dr Patel (T10, p87), clearly written late in or after the second half of 2005, refers to swelling in both feet and referral to a Lymphoedema Clinic; raising the question of how much of the persisting swelling of the right leg is due to the DVT and how much to other foot pathology and also whether the lymphoedema had even then been fully treated. Dr Infeld made a similar observation in his report of 27 October 2005 (T10, p85) in which he stated:
...Mr Morrell is now in the recovery phase of after this series of operations and infections. His ongoing impairments/disabilities probably originate from a combination of his underlying neuropathy and the pain related to his surgical procedures and infections…Both feet were generally swollen, worse on the right.
28. The evidence indicates that during the assessment period Dr Paulson's assessment that it was then too soon after the DVT for complete functional recovery is the preferred one. Further, although it is now clear that Mr Morrell has some residual swelling of his right leg due to the DVT, he has problems with swelling of both his feet making precise assessment of the contribution being made by the DVT sequelae difficult. This difficulty emphasises the need to assess impairment related conditions of the lower limbs as a whole, as it is this impairment that will ultimately need to be made to determine impairment for work.
29. Dr Infeld documented his diagnosis of peripheral neuritis on 18 May 2005. He agreed with Dr Patel that the history and signs were suggestive of an underlying neuropathy raising the probability that Dr Patel had suspected the diagnosis a few days earlier. Dr Infeld stated in that report that tests to rule out thyroid disease, Vitamin B12 deficiency and autoimmune problems had all come back normal thus confirming on 18 May that the condition was fully investigated and that he was unable to recommend any specific treatment. According to the legislative requirement that a condition be fully documented, diagnosed and treated and likely to persist, strictly speaking this did not happen until 18 May 2005.
30. If it were accepted that the peripheral neuritis was a diagnosed condition at 13 May 2005, it would be possible to assign it an impairment rating. As I understand it, Mr Morrell argued that peripheral neuritis, by commencing a chain of pathological conditions, is the root cause of all his foot pathology and should be accorded a substantial impairment rating which recognises the impairment produced by all the sequelae. This is not possible as conditions such as hallux valgus, bone infection, and foot ulceration are all capable of producing a functional impairment of the lower limb, each with a different prognosis. It is necessary to look at the impairment caused by each condition, to establish if that condition is treated and stabilised and then take care not to double count it.
31. The first assessment of impairment related to peripheral neuritis of Mr Morrell's lower leg(s) that it is possible to make is based on the examination findings of Dr Infeld on 18 May 2005, who stated as follows:
…Tone, power and reflexes were normal and symmetrical and both plantars were flexor. There was a diminution in sensation to pinprick extending a quarter of the way up both legs and this was worse on the right. There was diminished joint position sense on the right only.
For a lower limb condition to attract an impairment rating of more than zero under Table 4 it must cause, at a minimum, a moderate interference with walking. If Mr Morrell's peripheral neuritis were to have been assessed independently of the other conditions at this time, I do not accept that the impairment described above would be such as to cause moderate interference with walking.
32. Dr Infeld provided an assessment of the neuropathy in a report dated 27 October 2005 (T10, p85) that stated:
There was some mild weakness of toe extension and flexion. Both knee jerks were present. The left ankle jerk was present and normal, but the right ankle jerk was depressed. In regard to sensation, there was a stocking pattern if sensory loss, typical of an axonal neuropathy. Pinprick sensation was reduced in both feet and legs and this extended to a level halfway up both legs (i.e. midway between the ankles and the knees).
This later report, which assessed Mr Morrell's level of impairment at 10 points was written well outside the assessment period, and indicates that Mr Morrell's peripheral neuritis subsequently deteriorated.
33. Mr Morrell pointed out at the hearing that Dr MacLean had assigned an impairment rating of 15 points under Table 20 for diagnosed chronic low back pain due to spondylosis. Dr MacLean had used Table 20 on the basis that Dr Wong Shee's rating of 10 points under Table 5.2 underestimated his level of disability because of chronic, entrenched pain.
34. The Introduction to the Tables states:
In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.
35. In his assessment Dr Wong Shee acknowledged that Mr Morrell had been suffering from chronic low back pain since 1987 and that the condition was aggravated by many everyday activities including standing for 15 or sitting for 45 minutes. Mr Morrell was further assessed on 24 May 2006 by a rehabilitation consultant, Ms Larissa Natividad, who also has qualifications in physiotherapy. In a report dated 2 June 2006 (Exhibit R2) Ms Natividad reported that the assessment was conducted over 75 minutes and included interview and observation of Mr Morrell and a range of movement assessment. She stated that Mr Morrell told her that he continues to experience intermittent back pain, that he remains independent with all aspects of daily living and continues to be able to complete home maintenance tasks. She observed him to sit for approximately 70 minutes with minimal postural variation, walk with a normal gait pattern and transfer without observed indications of pain. Using Table 5.2, Ms Natividad assessed the permanent impairment relating to Mr Morrell’s back at 10 points. Both Dr Wong Shee and Ms Natividad who have occupational assessment experience assessed Mr Morrell's chronic low back pain using Table 5.2. Both assessors acknowledged that Mr Morrell suffers from chronic, entrenched low back pain; but there is no indication that either considered that the Table 5 assessment underestimated his level of disability related to the condition. There is no convincing evidence that Table 5 underestimates the level of disability relating to Mr Morrell's back condition.
36. Therefore, I find that at the date of claim, and during the assessment period between 11 February and 13 May 2005, Mr Morrell was suffering from chronic low back pain that had been diagnosed, treated and stabilised and was correctly assigned a permanent impairment rating of 10 points. I find that he was suffering from hallux valgus that had not been fully treated and for which surgery was planned. I find that he was suffering from ulceration of his right foot and an infection in one of the bones of his right foot for which he had surgery on 20 May 2005. I also find that he was suffering from depression and the sequelae of a right DVT. However, during the period in question neither of these conditions was fully treated and stabilised such that it could be given a permanent impairment rating. On 18 May a diagnosis of peripheral neuropathy, which was probably suggested a short time earlier, was documented. At that time findings with respect to peripheral neuropathy were consistent with an impairment of nil points under the Tables. Mr Morrell was not suffering from any other condition that attracted an impairment rating. Therefore, Mr Morrell was assessed at a total of 10 permanent impairment points throughout the assessment period. Since this is less than the 20 points required to satisfy s 94(1)(b) he was not qualified to receive DSP at that time.
DECISION
37.The Tribunal affirms the decision under review.
I certify that the thirty-seven [37] preceding paragraphs are a true copy of the reasons for the decision of:
P.D. Fricker, Member
signed: Olympia Sarrinikolaou
Clerk
Date of hearing: 29 June 2006
Date of decision: 18 August 2006
Advocate for applicant: Self-represented
Advocate for respondent: Ms H Weston, Phillips Fox Lawyers
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