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

[2019] AATA 544

Nedaee and Secretary, Department of Social Services (Social services second review) [2019] AATA 544 (26 March 2019)

Division:GENERAL DIVISION

File Number(s):2018/1789      

Re:Mir NEDAEE

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:26 March 2019

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – chronic lower back pain – whether applicant qualified for DSP during claim period – whether condition fully diagnosed, treated, stabilised and likely to persist for more than two years – whether the applicant’s impairment attracts 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision under review  affirmed  

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

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

SECONDARY MATERIALS

Professor Jan Hartvigsen et al on behalf of the Lancet Low Back Pain Series Working Group, ‘What low back pain is and why we need to pay attention’ (2018) 391(10137) The Lancet

REASONS FOR DECISION

Dr I Alexander, Member

26 March 2019

1. On 23 November 2017 Mr Nedaee, who is now 29 years old, lodged a claim for Disability Support Pension (DSP).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

3. In an oral decision dated 29 March 2018, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Nedaee’s claim. No written reasons were provided.

4. Mr Nedaee, who was self-represented, attended the hearing by telephone and now seeks review of the decision of the AAT1.

   ISSUES

5. In order to qualify for DSP Mr Nedaee 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 clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 23 November 2017 and 22 February 2018 (the qualification period).

6. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (s 94(1)(a));

   ·the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (s 94(1)(c)(i)).

7. The Respondent concedes, and the Tribunal accepts, that Mr Nedaee suffers a medical condition that causes impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

8. 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)).

9. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

   ·fully treated (paragraph 6(4)(b)); and

   ·fully stabilised (paragraph 6(4)(c)); and

   ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

10. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

11. Mr Nedaee contends that he suffers significant impairment as a result of a medical condition relevantly described as chronic lower back pain.

12. The Respondent contends that, during the qualification period, Mr Nedaee’s medical condition was not fully treated and fully stabilised and, therefore, could not be assessed under the Impairment Tables.

13. Therefore, the definitive issue in this matter is whether, during the qualification period, Mr Nedaee’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had “a continuing inability to work”.

    MR NADAEE’S EVIDENCE  

14. In a written attachment to the claim for DSP Mr Nedaee describes his disability, inter alia, as follows:

    ·Chronic lower back pain with frequent acute exacerbation

    ·Back pain radiating to both legs, right leg with pertain [sic]

    ·I have been suffering from disc bulging in 3discs lumbar spine region since 2006…..

    ·I am also suffering severely aggravating pain in my spine which now a days getting harder and harder

    ·This aggravation pain affects my mobility and strength to perform any physical task

    ·This nerve impingement has causes sever muscle stiffness in my lower back [sic]

    ·This nerve impingement has also prohibited me form sitting, bending and stating frequently [sic]

    ·This nerve compression in my lower back caused excruciating or agonizing pain in my thighs and lower legs

15. In the record of a telephone interview with Mr Nedaee, dated 23 February 2018, the Authorised Review Office (ARO) noted, inter alia, as follows:

    Cust advised that he has been referred to a specialist and saw the Orthopaedic Surgeon last month and is to go back next month (March) …..Cust has advised that the orthopaedic surgeon has suggested a back operation…..

    He said wherever he goes he needs to sit down……he cannot sit for long nor walk for long. I asked how far he can walk for and he said 10 minutes, he said he can drive a car and drives locally …..He always lies down for comfort.

16. At the hearing held on 11 March 2019, Mr Nedaee told the Tribunal that he had suffered lower back pain since an injury at work in 2006 and that currently he suffers pain “every day” and that the pain is getting “worse day by day”.

17. Mr Nedaee stated that his symptoms started to increase on or about November 2016 and got significantly worse during 2017 but was somewhat confused about the actual date of onset.

18. In August 2017 Mr Nedaee’s GP, Dr Yagoub, had arranged a CT scan of the lumbar spine and subsequently referred Mr Nedaee to an orthopaedic surgeon.

19. Mr Nedaee told the Tribunal that he did not make an appointment to see the orthopaedic surgeon until March 2018 and that there were no appointments available for more than 12 months. He conceded that, in fact, he has not yet been seen by the orthopaedic surgeon.

20. I note at this point, that Mr Nedaee’s oral evidence is not consistent with the conversation recorded by the ARO.

21. When asked by the Tribunal to explain the basis of his claim, that he suffered severe symptoms because of “nerve impingement” and “nerve compression”, Mr Nedaee was unable to provide a satisfactory answer.

    MEDICAL EVIDENCE

22. The Tribunal was provided with several reports of imaging studies performed in the period 2006 to 2007. These studies were reported as showing evidence of mild degenerative changes in the lumbar spine with no evidence of nerve impingement.

23. On 14 April 2012 Mr Nedaee presented to the Emergency Department of Auburn Hospital complaining of “acute low back pain”. No significant abnormality was seen on plain x-ray and on the following day, Mr Nedaee was discharged to the care of his GP with a prescription for panadeine forte.

24. In a referral for physiotherapy dated 18 April 2012 Dr Yagoub stated that Mr Nedaee had an “acute exacerbation of work related lower back pain”.

25. An MRI scan of the lumbosacral spine performed on 25 May 2012 is reported as showing “posterior disc bulging with small posterior central disc protrusion of L2/3, no annulus tear. Mild central canal stenosis. Mild posterior annulus bulges of L3/4 and L4/5 without canal stenosis or foraminal compromise”.

26. In a Centrelink medical certificate dated 26 July 2012 Dr Yagoub noted a diagnosis of “chronic low back pain” with symptoms described as “recurrent lower back pain” but provided no other clinical or other details.

27. In the documents provided to the Tribunal there are no other medical reports or certificates until August 2017.

28. The report of a CT scan of the lumbar spine, arranged by Dr Yagoub, dated 10 August 2017 is reported as follows:

    Impression: Mild congenital spinal narrowing / stenosis exacerbated by mild disc bulges and flaval thickening at L3/4, L4/5 and L5/S1 levels. Mild bilateral proximal to mid foraminal stenosis also seen at this level which could be causing intermittent irritation of the exiting nerves.

29. In a referral letter dated 19 October 2017 Dr Yagoub notes the presenting problem as “chronic lower back pain radiating to both legs, rt leg with parasthaesia, has frequent acute exacerbations affecting his daily activities”.

30. Dr Yagoub provided 5 Centrelink medical certificates from 19 October 2017 to 15 January 2018 which are essentially the same. The certificates note a diagnosis of “chronic back pain”, a description of symptoms as “back pain affecting his mobility” but no other clinical details or any assessment of functional impairment.

    CONSIDERATION

31. Mr Nedaee contends that during the qualification period he suffered severe functional impact on activities involving spinal function because of a permanent medical condition which is described as “chronic low back pain”.

32. The difficulty for Mr Nedaee is that his contention is based mainly on his own self-report of symptoms and the available medical evidence, which can at best be described as incomplete and somewhat superficial, in my view, does not provide sufficient corroboration to support his contention.

33. The available evidence does support Mr Nedaee’s claim that he has suffered intermittent episodes of low back pain since 2006 and the reports of various imaging confirm that he has some mild abnormalities of the lumbar spine.

34. However, the relevance of these radiological abnormalities with respect to Mr Nedaee’s symptoms is unclear.

35. The available evidence does suggest that, in the period August 2017 to October 2017, just before the date of claim, Mr Nedaee suffered an acute exacerbation of his symptoms. He claims that the symptoms have persisted and increased in severity so that he now suffers severe impairment.

36. The question as to whether, during the qualification period, Mr Nedaee’s condition of “lower back pain” was fully diagnosed, treated and stabilised is problematic.

37. Low back pain is generally considered to be a “symptom”, and not a “disease,” which can result from several different known or unknown abnormalities or diseases.[1] For nearly all people presenting with low back pain, “the specific nociceptive source cannot be identified and those affected are then classified as having so-called non-specific low back pain”.[2] Most episodes of non-specific low back pain “are short-lasting with little or no consequence”.[3]

    [1] Professor Jan Hartvigsen et al on behalf of the Lancet Low Back Pain Series Working Group, ‘What low back pain is and why we need to pay attention’ (2018) 391(10137) The Lancet.

    [2] Ibid.

    [3] Ibid.

38. If I were to accept that the diagnosis of Mr Nedaee’s condition is “non-specific low back pain”, I would be satisfied that the available evidence does support a conclusion that, during the relevant qualification period, his condition was fully treated and fully stabilised.

39. However, Mr Nedaee’s evidence is that, since November 2017, his symptoms have not only persisted but that his constant severe pain has resulted in severe functional impairment.

40. The medical evidence before the Tribunal provides no plausible explanation as to why Mr Nedaee’s symptoms have persisted and caused the severity of functional impairment which he describes.

41. Therefore, I cannot be satisfied that, during the qualification period, the cause of Mr Nedaee’s persistent severe symptoms and claimed functional impairment was fully diagnosed, fully treated and fully stabilised.

42. This means that a rating under the Impairment Tables cannot be assigned.

43. Furthermore, even if I were to accept that, during the qualification period, Mr Nedaee suffered a medical condition of the lumbar spine that was permanent for the purposes of the Impairment Determination, there is insufficient corroborating evidence of his claimed impairment to allow for any reasonable assessment of the functional impact on Mr Nedaee’s activities involving spinal function as set out in Impairment Table 4.

44. The medical certificates provided by Dr Yagoub are of no assistance as they provide no relevant clinical details or any assessment of functional impairment.

45. Therefore, a rating under the Impairment Tables could not have been assigned.

    DECISION

46. For the reasons set out above the Tribunal is satisfied that, during the qualification period, Mr Nedaee’s impairment was not 20 points or more under the Impairment Tables so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

47. The decision under review is affirmed.

I certify that the preceding  (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated: 26 March 2019

Date of hearing:	11 March 2019
Applicant:	In person
Solicitor for the Respondent:	Ms S Pringle, Department of Human Services