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

[2017] AATA 1396

Odeshow and Secretary, Department of Social Services (Social services second review) [2017] AATA 1396 (31 August 2017)

Division:GENERAL DIVISION

File Number:           2017/0365

Re:Amir Odeshow Zaya Odeshow

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:31 August 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 condition is 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

31 August 2017

1. The applicant, Amir Odeshow Zaya Odeshow, seeks review of a decision made by the Social Services and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 19 December 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 7 June 2016, and affirmed by an Authorised Review officer (“ARO”) on 8 August 2016, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 22 March 2016.

2. The applicant’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in section 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 and 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 22 March 2016, when he applied for the DSP, or within the following 13 weeks, that is, by 21 June 2016 pursuant to section 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.

6. The issues to be determined in these proceedings is 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

7. The first issue for determination in these proceedings is whether the 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.

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

9. Sections 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:

   (a)it has being fully diagnosed by an appropriately qualified medical practitioner;

   (b)it has been fully treated; fully stabilised; and

   (c)it will more likely than not, persist for more than two years. 

10. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) instructs that a decision- maker must consider:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred; and

    (c)whether treatment is still continuing or is planned in the next two years.

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

    (a)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 2 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 2 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.

12. Reasonable treatment is defined in section 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.

13. 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, section 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)

    Back and Neck Condition – Cervical and Lumbar Disc Disease

14. The applicant has an extensive history of back and neck pain since a motor vehicle accident in February 2012. This is supported by the medical evidence of Dr Nguyen, Dr Hasam, neurologist Dr Teychenne and general surgeon Dr Sanki.

15. In a report dated 11 September 2013, Dr Hasam, the applicant’s general practitioner, notes that chronic back pain is considered permanent with symptoms of pain and stiffness, prognosis is uncertain and treatment is listed as cortisone injection and Panadol. He states that neck and back pain is “likely to show considerable improvement within two years”.

16. As a result of MRI scans performed on the applicant’s spine, Dr Teychenne recommended conservative treatment of both the lumbar and cervical spine; see his reports dated 10 October 2013 and 8 November 2013.

17. Julyana Goergis, physiotherapist, recommends in her report (undated), numerous therapies and exercises to improve the applicant’s overall well-being. The report indicates that with physiotherapy, the applicant’s normal range of movement will be restored. Similarly, Mr Wang, treating physiotherapist, suggests in his report dated 17 September 2013, that physiotherapy made some improvement in reducing the overall muscle soreness over the applicant’s neck and lower back.

18. The Job Capacity Assessment report dated 3 May 2016 (“JCA report”), notes that the applicant reported he takes pain medication and previously attended physiotherapy in 2013 for his back, and in 2014 for his neck. The applicant stated he “had recently been referred to physiotherapy because his symptoms had increased in severity”.

19. A Patient Health Summary dated 12 October 2016; notes that back pain was reported in 2012 and cervical and lumbar disc disease were diagnosed in 2016.

20. In a recent medical certificate dated 30 November 2016, Dr Hasam records a diagnosis of lumbar disc disease and cervical disc disease with a date of onset as 2012. He notes that the condition is permanent and describes the symptoms as “back pain, neck pain, stiffness and difficult turn”. Past current and planned treatment is recorded for the condition, relevantly; Dr Hasam notes planned treatment as “under specialist care”.

21. There is a paucity of medical information between 2013 and 2016. Due to the lack of medical information, the fact that the applicant’s symptoms have recently increased in severity and that the applicant has recently been referred for physiotherapy, I am not satisfied that the applicant’s back and neck condition was fully treated and stabilised during the relevant period. No impairment rating may be assigned to this condition.

    Mental Health Condition

22. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

23. 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)

24. Before functional impact is to be assessed, I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised.

25. There are numerous medical certificates before me from Dr Hasam, noting depression as a condition suffered by the applicant since 2012. In a medical certificate dated 4 August 2016, Dr Hasam again records depression as a condition suffered by the applicant with a date of onset of 5 December 2012. He notes that the condition is “temporary” and that planned treatment involves “counselling”.

26. In a report dated 29 November 2016, Mr S Anthony, a psychologist, notes that he had previously seen the applicant in 2013. Mr Anthony finds that the applicant “suffers from an adjustment disorder with mixed anxiety and depressed mood due to persistent pain and physical restrictions from accident injuries, together with Post Traumatic Stress Disorder”. Mr Anthony advises that the applicant requires CBT along with supportive therapy. At hearing, it was confirmed that Mr Anthony was not a clinical psychologist.

27. On 19 December 2016, it appears that the applicant saw Dr Teoh, psychiatrist, for the first time. In his report of the same date, Dr Teoh opined that the applicant suffers from “Chronic Adjustment Disorder with Mixed Depression/Anxious Mood”. Dr Teoh commenced the applicant on Mirtazapine and referred him to a colleague for continued management. While this report and diagnosis would be of assistance for any future application for DSP, it is of no assistance in these proceedings as it falls outside of the relevant period.

28. I am not satisfied that the applicant’s mental health condition was fully diagnosed, treated and stabilised during the relevant period. He has only recently been seen and diagnosed by a psychiatrist and treatment has only recently been commenced. It follows that no impairment rating can be given for his mental health condition.

    Diabetes

29. Pathology results of a serum/plasma glucose test dated 1 March 2016, notes hyperglycaemia, reporting that “hyperglycaemia of this degree is diagnostic of diabetes mellitus”.

30. The JCA report notes that the applicant reported recently commencing nightly oral medication for this condition.

31. The applicant gave evidence before the SSCSD that this condition remains “volatile” and that he is on a “watch and wait” program and has been told by his general practitioner but should his level is not stabilised, he will be commenced on insulin. He confirmed that he had no diabetes education and had not seen a specialist.

32. At hearing, the applicant confirmed that he is under the care of his general practitioner and has not been seen by a specialist for this condition. He advised that since the beginning of last year, he has “lost weight and has improved”.

33. Given that the diagnosis of this condition appears to have been uncertain only days prior to the applicant’s DSP claim, and given evidence that the condition is not stabilised and further treatment including specialist review is planned, I am not satisfied that this condition was fully diagnosed, treated and stabilised during the relevant period. It follows that an impairment rating is unable to be assigned to this condition.

    Knee Pain – Osteoarthritis

34. In a medical certificate dated 29 February 2016, Dr Hasam notes “knee pain and osteoarthritis” as a condition, characterising this as “exacerbation of an existing condition” despite describing the conditions prognosis as “stabilised”. No date of onset is recorded.

35. Orthopaedic surgeon, Dr Jay Davè, diagnoses the applicant with advanced osteoarthritis of both knees in his report dated 16 June 2016. He states that there is “no cure and will only get worse with time” and the applicant’s only solution is pain management, physiotherapy, exercises, weight control, cortisone injections and “finally a total knee replacement”, however he says that the applicant is too young to undergo surgery. Dr Davè referred the applicant for cortisone injections and left knee physiotherapy.

36. In a letter dated 21 June 2016, Dr Hasam was of the opinion that the applicant “is suffering from bilateral knees osteoarthritis, waiting intra-articular cortisone injection to left knee by radiologist.”

37. Dr Davè states in his recent report, following consultation on 23 March 2017, that the applicant does not require a knee replacement. He recommends pain management and physical therapies to help him manage his pain. Dr Davè states that the applicant had cortisone injections. At hearing, the applicant confirmed that he had his first cortisone injection in late June or July 2016 but his knees had gotten worse over the last six months. He said he needed to stabilise his diabetes before he could undertake further treatment.  While this evidence may be relevant to any future application for DSP, during the relevant period, the treatment was still yet to be undertaken.

38. Accordingly, while I am satisfied that the applicant’s knee condition was fully treated and stabilised during the relevant period. No impairment rating may be assigned to this condition.

    Carpel Tunnel Syndrome and Supraspinatus Tendonitis

39. Dr Sanki, general surgeon, diagnosed the applicant with right carpal tunnel on 6 May 2013, and organised nerve conduction studies with Dr Teychenne and an ultrasound of the median nerve.

40. The May 2013 ultrasound showed no abnormalities and Dr Teychenne noted in his report dated 16 May 2013, that he “did not find any definite evidence of right carpal tunnel compression on nerve conduction study testing”. The results of these examinations do not support the earlier diagnosis of Dr Sanki.

41. Between 2013 and 2016, there is a paucity of medical information. There have been no further ultrasounds undertaken since 2013. The applicant confirmed at hearing that he had not had any proactive treatment for the management of these conditions.

42. On 1 August 2016, the applicant had an x-ray of the right shoulder and right elbow which showed some osteoarthritis and in a referral letter to Dr Rabie dated 23 January 2017, Dr Hasam records that carpal tunnel syndrome (right) was diagnosed on 22 August 2016. This diagnosis and report, however, fall outside of the relevant period. They are of little assistance in these proceedings but may be relevant to any future applications for DSP.

43. Having regard to the medical evidence before me, I am not satisfied that these conditions were fully diagnosed, treated and stabilised during the relevant period. No impairment rating can be assigned to these conditions.

    CONCLUSION

44. Since the applicant’s conditions do 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.

45. I affirm the decision under review. 

46. The applicant may apply for DSP again at any time.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 31 August 2017

Date of hearing:	18 May 2017
Applicant:	In person
Solicitors for the Respondent:	Ms C Juarez, Department of Human Services