Norton and Secretary, Department of Social Services (Social services second review)
[2016] AATA 79
•17 February 2016
Norton and Secretary, Department of Social Services (Social services second review) [2016] AATA 79 (17 February 2016)
Division
GENERAL DIVISION
File Number
2015/4006
Re
Phillip Norton
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 17 February 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan
SOCIAL SECURITY – pensions benefits allowances – disability support pension – Reiter’s Syndrome – Psoriatic arthritis – paucity of medical evidence and expert opinion – whether fully diagnosed, treated and stabilised - impairment rating – whether 20 points attracted – capacity for work – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2002] AATA 922
REASONS FOR DECISION
Miss E A Shanahan, Member
17 February 2016
Mr Norton lodged a claim for the disability support pension (DSP) on 28 October 2014, citing his disabilities as Reiter’s syndrome, scoliosis, chronic arthritis and flat feet. He stated that these conditions impacted on his ability to bend, twist, sit, walk and lift.
His claim was supported by a medical statement completed by his general practitioner, Dr Bernardo, dated 5 January 2015 (T11) and a report from his treating rheumatologist, Dr Boers, dated 8 December 2014. According to Dr Bernardo, his prognosis and the duration of his incapacity were uncertain.
On 17 February 2015 the delegate of Centrelink rejected the claim. Following Mr Norton’s application for internal review, an authorised review officer (ARO) affirmed the determination on 28 April 2015.
Mr Norton lodged an application with the Social Security Appeals Tribunal (SSAT) for a further review of the determination on 5 May 2015.This was heard by the Administrative Appeals Tribunal (AAT) (first review) on 14 July 2015. The decision to reject his claim was affirmed. On 7 August 2015, Mr Norton lodged an application with the AAT for a second review.
The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). Mr Norton tendered a report of an MRI undertaken on 6 January 2016 (Exhibit A1). Mr Norton was self-represented but was assisted by a friend. Mr Tim de Uray, Principal Government Lawyer, Department of Human Services appeared for the respondent.
BACKGROUND TO THE APPLICATION
Mr Norton was diagnosed with Reiter’s Syndrome in 1993. This syndrome is a collection of symptoms relating to conjunctivitis, urethritis and arthritis and may also be accompanied by skin lesions. It is considered to be secondary to an acute bacterial or viral infection. This diagnosis was confirmed as being permanent and incapacitating him at least for the next two years by the Australian Government Health Service examining medical officer, Dr M Soo, on 25 October 1996 (T1) and Mr Norton qualified for the disability support pension (DSP).
Mr Norton has changed his name by deed poll on three occasions and his Centrelink records reflect these name changes. Mr Norton lived in various states in the late 1990s, but in 2000 returned to his family home in Morwell to care for his elderly mother. He had resumed some work after his diagnosis of Reiter’s syndrome but ceased work in 2001. His most recent employment was with Willkie Printing. Mr Norton had also worked on a casual basis with the Herald Sun, again in the printing area.
On his return to Morwell, having been on the newstart allowance (NA), Mr Norton stated that he was advised by Centrelink to change to a carer allowance given his mother’s ill-health. His mother’s health gradually deteriorated and in October 2014 she was admitted to a nursing home for permanent aged care. Mr Norton continues to live in the family home, although his mother pays all outgoings on the property.
While some of Mr Norton’s Reiter’s syndrome symptoms have resolved (conjunctivitis and urethritis), his joint pains and swelling, maximal in his ankles and wrists, has persisted.
Mr Norton informed the Tribunal that he is HLA-B27 positive (Human Leukocyte Antigen Positive), a genetic abnormality associated with reactive arthritis (as Reiter’s syndrome is now called) and also psoriatic arthritis. Mr Norton says he has psoriasis involving his elbows and forearms and he has been told he has psoriatic arthritis.
Mr Norton’s exact diagnosis is unclear, but his treating rheumatologist Dr Boers has provided a diagnosis of degenerative and low grade rheumatoid arthritis i.e. osteoarthrosis and an inflammatory arthritis (rheumatoid). Treatment has been with sulphadiazine three grams (3000 milligrams) in divided doses daily, and Celebrex 200 milligrams once daily. Occasionally, he says he requires a course of prednisolone over a period of 10 days but cannot tolerate the depressive side effects of prednisolone beyond a period of 10 days.
Mr Norton describes episodes of collapse when he states he falls to the ground without warning. This he attributes to his claimed scoliosis. Apparently, the precipitating symptom is severe pain in his thoracic region.
Dr Boers’ report is limited to the diagnosis of degenerative arthritis and low grade rheumatoid arthritis and he regards Mr Norton’s clinical status to be stable. He has not provided a prognosis or any detail about Mr Norton’s work capacity. Dr Bernardo, the treating general practitioner, has provided several reports and relies on Dr Boers’ opinion. At the respondent’s request, she provided an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), allotting 5 points under the upper limb table, 5 points under the lower limb table and 10 points under the spinal table. This impairment rating determination by Dr Bernardo was dated 20 September 2015. Mr Norton was described as having shown a poor response to treatment and would most likely deteriorate further.
According to Dr Bernado’s report, x-rays have shown cervical spinal kyphosis due to spondylosis (osteoarthrosis of the spine), minor thoracic scoliosis, normal sacroiliac joints, normal knee joints and fusion of the metacarpophalangeal joint of the left big toe. Both wrists on x-ray show mild arthritic changes and possible right scapho-lunate ligament disruption.
Mr Norton has experienced difficulty in obtaining medical reports and has been charged considerable sums for those he has obtained. He has recently consulted Dr Mark Patrick, a rheumatologist in Melbourne, and is undergoing repeat baseline investigations to determine the exact nature of his arthritis. Mr Norton provided the Tribunal with the report of the whole spine MRI performed on 6 January 2016. This was ordered by Dr Patrick in order to exclude canal stenosis given Mr Norton’s history of collapsing when standing and his leg pains.
The MRI has excluded canal stenosis. It does show some facet joint arthritis, lumbar disc space narrowing but no compressive disc protrusions, no nerve root encroachment or compression except for possible left cervical 5 nerve root, normal vertebral alignment (i.e. no scoliosis) and there was mild oedema (swelling) of the left sacroiliac joint. No evidence of sacroiliac joint ankylosis, which may occur in reactive arthritis, was found. The changes appear to be predominately degenerative and mild to moderate. Mr Norton has not yet been reviewed by Dr Patrick.
As Mr Norton has been attending Dr Boers for some years and has attended the same general practice in Traralgon since 2008. It would appear that there would be far more in the way of medical records that could be accessed. Dr Bernardo is the general practitioner he has been seeing at this clinic for only the past one to two years.
In 2005 Mr Norton received income protection payments from his superannuation fund for a period of two years.
On 3 February 2015, Mr Norton underwent a job capacity assessment (JCA), although this was conducted under the name of Phillip Sedgman. The medical conditions considered were rheumatoid arthritis, osteoarthrosis and psoriatic arthritis, all of which were considered as not being medically verified as fully diagnosed, treated and stabilised and thus did not attract an impairment rating. Mr Norton was assessed as having a baseline work capacity of 8 to 14 hours per week, increasing to 15 to 22 hours per week within two years with specific intervention. The intervention recommended was participation in a pain management program and rehabilitation.
At first review the Tribunal determined that the functional impairment resulting from Mr Norton’s arthritis, whatever its cause, was insufficient to attract an impairment rating given that it did not produce other than mild incapacity. It was suggested that he might consider reapplying if he deteriorated symptomatically and was able to provide recent and complete evidence relating to his medical situation.
EVIDENCE BEFORE THE TRIBUNAL
Mr Norton was the major source of information regarding his medical conditions. Only he was able to provide confirmation, albeit verbal, that he had HLA-B27 status. Similarly, he stated that he has psoriasis involving his elbows and forearms. The medical reports received have been referred to under BACKGROUND TO THE APPLICATION and the only other report obtained is that of a Dr Neels du Toit, who appears to be a sports medicine physician. Dr du Toit saw Mr Norton on one occasion, making a diagnosis of Reiter’s syndrome (for which he took Celebrex and salazopirine), bilateral foot tibialis posterior dysfunction and left first metatarsal phalangeal joint fusion. The major symptom according to Dr du Toit was pain and he attributed this to Reiter’s syndrome, which resulted in difficulty in standing for prolonged periods, bending or extending. Dr du Toit concluded that Mr Norton had no current capacity for work.
RELEVANT LEGISLATION
The qualifications for DSP are outlined in s 94 of the Social Security Act 1991 (the Act).
94 Qualification for disability support pension
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...
Subclause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) defines a period in which this Tribunal can review the decision.
4 Start day—early claim
(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.
SUBMISSIONS
Mr Norton did not make any formal submissions. However, he had provided a considerable volume of data downloaded from the internet regarding reactive arthritis, Reiter’s syndrome and psoriatic arthritis. In his evidence, he referred to the mental depression he suffers if he has prolonged treatment with prednisolone and this has been mentioned as part of his claim but has not been supported by any medical reports.
The respondent accepts that Mr Norton satisfies s 94(1)(a) of the Act but maintains that as his arthritis is not fully diagnosed, treated and stabilised, an impairment rating is not attracted and he does not satisfy s 94(1)(b) of the Act. This is despite accepting the arthritis, whatever its cause, is fully diagnosed, treated and stabilised as it does not incapacitate him to any degree confirming an impairment rating of zero. The respondent also addressed the requirement to undertake a program of support should the applicant have an impairment rating of 20 points for multiple conditions and also the consideration of a continuing incapacity for work.
TRIBUNAL’S DELIBERATIONS
Mr Norton’s claim for DSP is not supported by the medical reports received, except to the extent that in 2015 Dr Bernardo undertook an impairment rating assessment resulting in 20 impairment points. She has not provided such a rating for the period under review, which is 28 October 2014 to 27 January 2015. Dr Boars has not provided any comment regarding incapacity or an impairment rating. Nor has Dr du Toit, other than to say that at the time he saw Mr Norton he was incapable of any work.
The Tribunal accepts that Mr Norton satisfies s 94(1)(a) of the Act in that he has a polyarthritis of unclear origin. As this condition is not fully diagnosed, treated and stabilised, he does not satisfy s 94(1)(b) of the Act. Therefore, his condition does not attract an impairment rating
It is unnecessary for the Tribunal to consider his continuing inability to work or the requirement that he undertake a program of support.
Mr Norton has been advised to obtain more medical information, which should be available given that he has been receiving treatment for his polyarthritis since 1993.
The Tribunal affirms the decision under review.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd]........................................................................
Associate
Dated 17 February 2016
Date of hearing 21 January 2016 Applicant In person Advocate for the Respondent Tim De Uray Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Impairment Rating
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Continuing Inability to Work
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