Mustafay and Secretary, Department of Family and Community Services

[2004] AATA 819

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/932

GENERAL ADMINISTRATIVE DIVISION		)
Re		ISMET MUSTAFAY

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date6 August 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review. This means Mr Mustafay’s application is unsuccessful.

................[Sgd].......................

EK Christie
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - disability support pension – qualification for pension - spinal function – pain – assessment of impairment – applicant does not have an impairment rating of 20 points or more – decision affirmed

Social Security Act 1991 s 94

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

6 August 2004   Dr E K Christie, Member    

1.      This is an application by Ismet Mustafay for a review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 23 July 2003 to set aside the decision under review and to send the matter back to Centrelink for reconsideration in accordance with a recommendation that Centrelink arrange for an assessment by an orthopaedic surgeon before deciding whether to grant the claim. The earlier decision made by a delegate of Centrelink, on 3 March 2003, was to reject a claim for disability support pension (“DSP”).

2.      In reaching its conclusion, the SSAT considered that the impairment rating for Mr Mustafay’s lower back condition could be assessed under either Table 5.2 (“Thoraco-Lumbar-Sacral Spine”) or Table 20 (“Pain”).

3.      At the hearing, Mr Mustafay represented himself. Ms J Hamilton, a Departmental Advocate represented the respondent. 

4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” documents (Exhibit 1), and the various exhibits lodged by the parties.

5.      At the end of the hearing the Tribunal reserved its decision in order to exert its inquisitorial powers in relation to clarifying some aspects of a medical report prepared by Mr Mustafay’s treating GP (Dr N Woo) on 22 January 2004 (Exhibit 2).  The matters on which Dr Woo’s professional opinion were sought related to the time course of emergence of muscle spasm, the issue of spasmodic pain and its implications and the nature of the prescribed medication regime over time. The Tribunal took this course, given that Mr Mustafay was not represented, to ensure procedural fairness in the evaluation of expert evidence and to ensure the correct and best informed decision could be made. 

Facts

6.      Based on the evidence before it, the SSAT made the following findings of fact:

“1    Mr Mustafay claimed disability support pension on 30 January 2003.

2     He has a proven degenerative condition of his lower spine.

3     He experiences pain related to this condition.”  (T2, Folios 10,11)

and that:

“The Tribunal accepts Ms Trapp’s finding of a loss of a quarter of the normal range of movement in the thoraco-lumbar-sacral spine.”  (T2, Folio 10)

7.      During the hearing, the respondent acknowledged that Mr Mustafay had been incorrectly advised, by a letter dated 5 September 2002, that he was entitled to DSP for a two year period. This error had been quickly remedied following a telephone inquiry made by Mr Mustafay to the Woodridge office of Centrelink five days later [10 September 2002, Exhibit 3].

Issues before the tribunal

8.      There were two issues for the Tribunal to decide:

(a)whether Mr Mustafay had an impairment rating of 20 points or more; and

(b)whether Mr Mustafay had a continuing inability to work.

Statutory Requirements and Relevant Case Law

9.      The relevant legislation is the Social Security Act 1991 (“the Act”). Section 94 of the Act sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.  It provides:

“Qualification for disability support pension—continuing inability to work

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;

…

Meaning of continuing inability

94(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)     either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(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 educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.”

10.     Mr Mustafay’s application for a review of a decision refusing to grant a pension following an application for DSP was made on 30 January 2003.  Accordingly, the principle in Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 is a relevant consideration. In Freeman’s case, Davies J stated at 674:

“Regard must always be had to the nature of the decision under review… This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal’s decision.”

Examination of the Oral Evidence:  Ismet Mustafay

11.     Mr Mustafay challenged the veracity of some statements contained in the expert reports.  Specifically, the statement by Ms M Trapp, a psychologist, that she observed him sitting for 45 minutes.  He stated he did not dispute that he was sitting in the waiting room but that this period was only about 30 minutes. He was concerned that Ms Trapp’s comments could be interpreted as deception on his part. 

12.     In addition, Mr Mustafay questioned the statements of Dr P Fitzpatrick, an orthopaedic surgeon, that he could squat without any problems. He said that he found this statement as “unbelievable”.  He said that he would fall over on his back if he attempted to squat and that he could only squat, holding this position, by balancing against the wall.  Pain accompanied him if he held this position.

13.     Mr Mustafay acknowledged that the following observation made by Dr Fitzpatrick (T22, Folio 100) was correct in some circumstances but, nevertheless pain was always present:

“When asked to disrobe for the examination there was some bizarre positioning in order to remove the shoes and socks, the shirt and singlet, however I noted that when Mr Mustafay went to dress he appeared to do so with much more ease and was able to flex significantly more easily than was evidenced throughout the formal examination.”

14.     Mr Mustafay said that he would work if his conditions would allow him to do so.  Since his accident in 2001 his quality of life had deteriorated.  He was no longer able to play active sports as he had done in the past.  His weight had dropped from 75kg to 65kg.  He was on constant medication – both antidepressants and pain killers.

Contentions of the Parties

15.     Ms Hamilton, for the respondent, submitted that the Work Capacity/ Participation Assessment Report (T10, 25 February 2003) undertaken by Ms Trapp, a psychologist, was a relevant consideration. Ms Hamilton submitted that it was relevant that Ms Trapp had contacted Dr Woo when preparing her report and that Dr Woo had informed her that “[Mr Mustafay had] confirmed exaggerated presentation and low pain tolerance.  Discussed MRI results that demonstrated mild degenerative changes” (T10, Folio 70). Ms Hamilton contended that Ms Trapp’s assessment of impairment rating of 5 points under Table 5.2 was the appropriate rating given that Mr Mustafay had a loss of one quarter of the normal range of movement.  Moreover, she submitted that the SSAT had also accepted the loss of one quarter of the normal range of movement.

16.     Ms Hamilton stated that Centrelink had pursued the SSAT direction to have Mr Mustafay assessed by an orthopaedic surgeon.  The assessment was made by Dr P Fitzpatrick. Dr Fitzpatrick’s opinion was that Mr Mustafay’s presentation was not consistent with his condition:

“Mr Mustafay suffers from lumbar disc degeneration.  On examination today there were numerous inconsistent signs throughout the examination and evidence of overstatement of symptomatology.  There was evidence of non-organic pathology.” (T22, Folio 101)

and:

“On examination today there were numerous inconsistent findings and signs of symptom overlay.”  (T22, Folio 102)

17.     Furthermore, Ms Hamilton contended that it was relevant that Dr Fitzpatrick had expressed the following opinion:

“Mr Mustafay does have some degeneration in his lumbar spine.  This may ‘cause intermittent episodes of lower back pain’, however this degree of degeneration is no more severe than would be found in a large percentage of the population and should not preclude Mr Mustafay from being able to find gainful employment.” (T22, Folio 101)

18.     Ms Hamilton then referred the Tribunal to the medical report of Dr R Edmonds who assessed Mr Mustafay as having an impairment rating of 15 points under Table 20:

“Moderate symptoms causing mild to moderate impact on ability to perform work related tasks but full time work is still possible.”

19.     Ms Hamilton acknowledged some concerns raised by Mr Mustafay that medical evidence had not been sought from Dr R Williams, consultant orthopaedic surgeon from Princess Alexandra Hospital, who referred Mr Mustafay to a radiologist. However, she referred the Tribunal to Dr Anderson’s report that was contained in the “T” documents (T5, Folio 19) for which Dr Williams was the referring doctor. 

20.     Ms Hamilton concluded that Mr Mustafay was ineligible for DSP as he failed to qualify under the requirements for impairment ratings as well as failing to meet the requirements for having a continuing inability to work. That is, he failed both statutory tests.

21.     Mr Mustafay contended that Dr Woo’s medical evidence should be preferred by the Tribunal rather than the medical evidence of Dr Fitzpatrick and Dr Edmonds  and the assessment by Ms Trapp.  Dr Woo had been his treating GP for three years. 

22.     Mr Mustafay submitted that he was willing to try any work but he did not know whether the state of his general health and back condition would allow him to be capable of working – regardless of what form the work took.  The pain he endured would not allow him to continue working constantly without frequent breaks to deal with pain. The lack of continuity in his capacity to work would make him unemployable.

Supplementary Evidence

23.     Following a Telephone Directions Hearing on 25 May 2004, the Tribunal issued a Direction to clarify some aspects of the expert report of Dr P Fitzpatrick (an orthopaedic surgeon) and the conclusions contained in an MRI Scan performed on 20 June 2002 (T22, Folio 101).  Mr Mustafay had been referred for the MRI Scan by Dr R Williams, a consultant orthopaedic surgeon at Princess Alexandra Hospital.

24.     In her response to this request (24 June 2004), Dr Fitzpatrick states:

“3.I wrote in my report that the MRI scan on 20 June 2002 shows some disc degeneration, particularly at L2/3 and L3/4, but no significant nerve root compromise or encroachment on the thecal sac.  The actual MRI report shows that there are marked degenerative changes at L2/3 and L3/4.  There is minor disc bulging at these levels, but also at L4/5 and L5/S1 without significant compromise of the thecal sac.  Specifically, this report means that there is degenerative disc disease at L2/3 and L3/4 without any significant nerve root compromise or encroachment on the thecal sac.

…

5.Mr Mustafay is 46 years of age.  If we were to perform an MRI scan of every 46 year-old gentleman in the community, a significant proportion of them would show some degenerative disc changes, as noted in Mr Mustafay’s report.  The important thing with regards his MRI scan is that there is no nerve root encroachment and no thecal sac encroachment.  I therefore feel that the comments made in my initial report are appropriate.”  [Emphasis added]

25.     Supplementary submissions on Dr Fitzpatrick’s response were received from the respondent on 16 July 2004.  Mr Mustafay did not make any further submissions.

Consideration of the Issues

26.     The object of the Tribunal is to review administrative decisions, not only on their merits but in accordance with the law at all times.

27.     The first issue for the Tribunal to decide is to determine whether Mr Mustafay satisfies the requirements of having an impairment rating of 20 points or more under either Table 5.2 (“Thoraco-Lumbar-Sacral Spine”) or Table 20 (“Pain”).  It is clear that the outcome of this issue is directly dependent on the expert medical evidence before the Tribunal – Dr N Woo, Dr P Fitzpatrick and Dr R Edmonds, as well as Ms M Trapp’s report.

28.     Medical opinion evidence is based on (i) the symptoms of the condition given by the patient to the doctor; (ii) diagnostic tests and physical examinations undertaken by the doctor to investigate the symptoms of the patient together with; (iii) the observations made by the doctor during the consultation and (iv) the connection between the patient’s symptoms, observations during consultation, diagnostic tests, medical condition diagnosed and impairment rating.

29.     Dr P Fitzpatrick examined the following diagnostic tests undertaken over time on Mr Mustafay and which she had considered in her final opinion:

(a)Plain X-rays of the lumbosacral spine (8 February 2001);

(b)CT Scan of the lumbar spine (6 March 2001);

(c)Report of an MRI Scan (20 June 2002).

30.     Dr Fitzpatrick concluded that whilst Mr Mustafay did have some degeneration in his lumbar spine which “may cause intermittent episodes of lower back pain”, the degree of degeneration was no more severe than would be found in a large proportion of the population.

31.     Based on Dr Fitzpatrick’s report, Dr Edmonds, a workplace health, medical practitioner, assessed an impairment rating of 15 points under Table 20 (“Pain”).

32.     Ms M Trapp, a psychologist, in her work capacity assessment report, assessed the impairment at a rating of 5 under Table 5.2 (“Thoraco-Lumbar-Sacral-Spine”) based on a loss of one quarter of the normal range of movement.  Furthermore, the SSAT accepted these findings and the rating of 5 under Table 5.2.

33.     Dr Woo, Mr Mustafay’s treating GP, in his report dated 22 January 2004, stated:

“On 30/01/03 I did his TDR when I stated that his symptoms were chronic low back pain with period of severe pain, unable to sit or stand for more than 10 minute, I failed to mention that his severe pain was due to muscles spasm of the lumbar muscles coming from his degenerative lumbar spines.  His muscles spasm is frequent and comes on with most physical activities.  This explained why he has to stand up from a sitting position to straighten his back frequently to ease his pain.”

and:

“I would give him a rating of more than 20 points [under Table 20] as he has loss of half normal range of movement of his spines to no movement at all with frequent lumbar muscles spasm with most physical activities.”

34.     Dr Woo diagnosed Mr Mustafay as having “chronic and severe degeneration disc disease at L2/3 and L3/4” and refers to the results of the MRI Scan (T9).

35.     Dr Fitzpatrick expressed concerns related to numerous inconsistent signs between Mr Mustafay’s symptoms and her assessment of his medical condition.  That is, based on her physical examination during consultation with Mr Mustafay, as well as the diagnostic radiological tests.  This led her to express an opinion that there was “evidence of overstatement of symptomatology”.  Furthermore, that there was “evidence of non-organic pathology”.

36.     In addition, Dr Fitzpatrick stated:

“Essentially Mr Mustafay was unable to move his back at all when requested to do so, however at other times of the examination appeared to move fairly freely.  Pseudorotation of the back exacerbated his lower back pain.”

37.     In terms of Mr Mustafay’s expression of his symptoms, Dr Woo stated, (Exhibit 2, 22 January 2004):

“When I spoke to Ms Trap[p] at the time, I thought his pain was exaggerated but since then I believe his pain is real.  As his pain is spasmodic, his presentation can vary and hence the inconsistency in his finding.”

38.     Both Dr Fitzpatrick and Dr Woo are in agreement that Mr Mustafay’s lower back condition causes him intermittent episodes (or spasms) of lower back pain.  However, both medical opinions can be distinguished with respect to the severity of the degenerative condition of Mr Mustafay’s lower back and its effect on him.

39.     The Tribunal makes the observation that the opinion expressed by Dr Fitzpatrick, a consultant orthopaedic surgeon, on her diagnostic evaluation of Mr Mustafay’s lower back condition and Mr Mustafay’s presentation of his symptoms – specifically the “evidence of overstatement of symptomatology” and “evidence of non-organic pathology” - are a source of concern with respect to Mr Mustafay’s case meeting the legal requirements for proof at the civil standard of proof.

40.     In the circumstances of these conclusions made by Dr Fitzpatrick (T22; and the report dated 24 June 2004) as supported by the expert reports of Dr Edmonds and Ms Trapp (T10, Folio 77), the Tribunal can make no other finding, based on all of the evidence and information before it, other than to conclude that the expert evidence of Dr Fitzpatrick, Dr Edmonds and Ms Trapp is preferred compared to the expert evidence of Dr Woo.

41.     Given this conclusion, the Tribunal finds that Mr Mustafay has the following impairment ratings:

(a)Table 5.2:     5 points

(b)Table 20:      15 points

Based on these impairment ratings, Mr Mustafay’s back condition does not warrant a rating of 20 points under the Impairment Tables and so he does not qualify for disability support pension.

42.     Given this finding, there is no need for the Tribunal to consider whether Mr Mustafay has a continuing inability to work.

43.     For all of the above reasons, Mr Mustafay is not entitled to receive disability support pension as at 30 January 2003, or within 13 weeks of that date.  Whilst this decision may be considered harsh by Mr Mustafay, the Tribunal cannot make any other decision based on the factual evidence before it.  The Tribunal makes the observation that should Mr Mustafay’s back condition deteriorate further over time, he may wish to consider lodging a new application for disability support pension in the future.

44.     The Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:          S Oliver

Associate

Date of Hearing  4 May 2004
Date of Decision  6 August 2004

The Applicant appeared in person
For the Respondent                  Mr J Hamilton, Departmental Advocate