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

[2018] AATA 2667

Perlina and Secretary, Department of Social Services (Social services second review) [2018] AATA 2667 (6 August 2018)

Division:GENERAL DIVISION

File Number:           2017/4319

Re:Gianluca Perlina

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I F Thompson

Date:6 August 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Member I F Thompson

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a "continuing inability to work" – reports of medical practitioners considered – Job Capacity Assessment conducted – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), S 94

Social Security (Administration) Act 1999 (Cth), s 42 & Schedule 2

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations (2007) FCA 404
Gallacher v Secretary, Department of Social Services (2015) FCA 1123

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Member I F Thompson

6 August 2018

INTRODUCTION

1. The applicant Gianluca Perlina, lodged a claim for disability support pension (DSP) on 21 September 2016.  Centrelink rejected the claim in the first instance and Mr Perlina requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Mr Perlina requested a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal.  The decision under review was affirmed.  Mr Perlina applied to the General Division of the tribunal for a second review.

2. The Hearing took place on 12 July 2018. Mr Perlina attended the Hearing with his advocate, Mrs Sheila Perlina. Mr Visser represented the respondent, the Secretary, Department of Human Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

   LEGISLATION AND ISSUES

3. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables.  The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The assessment period in this case is 21 September 2016 to 21 December 2016.

4. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”. 

5. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

6. The Secretary accepted that Mr Perlina suffers from an impairment through a spinal condition and therefor satisfied s 94(1)(a) of the Act.

7. The Secretary contended that Mr Perlina could be assigned an impairment rating of 10 Points for the spinal condition and without a rating of 20 points under the Impairment Tables, he did not have a continuing inability to work and was therefore not qualified for the DSP during the assessment period.

8. Accordingly the main issue for determination is whether Mr Perlina’s impairments could be assigned 20 points or more under the Impairment Tables.  Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.

   IMPAIRMENT TABLES

9. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

10. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

11. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

12. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years. 

13. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

14. The applicable impairment rating for each of Mr Perlina’s conditions will be considered in turn by reference to the Impairment Tables.

    EVIDENCE OF MR PERLINA

15. Mr Perlina gave evidence with the assistance of an interpreter into the English language.  He told the Tribunal that he resides with his wife and two children. He is 51 years old.  He migrated to Australia from Italy five years ago.  In Italy he worked as a pallet maker for about 30 years.  Following his arrival in Australia he has not been able to undertake paid employment because of his spinal condition.  He endeavoured to work as a part time volunteer at an aged care facility with the aim of pursuing a career in that sector.

16. Mr Perlina told the Tribunal that during the assessment period he had difficulties with his neck.  He could not move or turn it and he was always in pain.  He had difficulties with his left shoulder and described the pain as “very strong.”  He also had problems in his back on the left side.  These problems affected his daily activities.  He did not sleep well and would often wake up at three or four in the morning with pain in the back.  He had difficulties caring for his two young children.  He did not undertake any of the domestic work at home.  He said that he did some walking, but no shopping and no gardening.

17. Mr Perlina said that he went to TAFE to learn English.  He was studying full-time initially.  However because of his physical problems he had to reduce his participation to part-time.  He was angry about the pain that he suffered and he felt terrible and frustrated. 

18. Mr Perlina has consulted his general medical practitioner Dr J Dooland for several years.  Dr Dooland has co-ordinated his treatment.  Treatment has included cortisone injections, physiotherapy and medication.  Subsequent to the assessment period Mr Perlina suffered a heart attack.  Also he had a thyroid operation which he regarded as successful as it has helped to calm him down.  Nonetheless his left shoulder and left arm have continued to cause him difficulty and he described the problem with the left arm as the equivalent of it going to sleep.

    CONSIDERATION

19. It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[1] at [34]:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

    [1] [2012] AATA 922.

20. In addition, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions.  In Re Fanning and Secretary, Department of Social Services,[2] DP Handley stated (at 33) that:

    “The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.

    [2] [2014] AATA 447.

21. Further, the Federal Court in Gallacher v Secretary, Department of Social Services[3] stated at paras [26‑28]:

    [3] (2015) FCA 1123.

    “26       In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252, Gyles J said at 253 [1]:

    This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time. 

    (On appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)

    27      In Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466, Deputy President Handley said at 473 [31]:

    In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.

    28      I respectfully agree with the approach taken in those cases.  The approach to be taken in this case was dictated by the terms of the legislation (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] per Kirby J; at 315 [99] per Hayne and Heydon JJ)”.

    Spinal Condition

22. In a report dated 9 February 2017, Dr Dooland wrote that Mr Perlina had suffered chronic neck pain with symptoms to his left shoulder and left arm since 2013.  There was some associated left arm weakness.[4]  An MRI of the neck indicated multi-level degenerative change with bilateral foraminal stenosis.  Dr Dooland reported that treatment had included medication, physiotherapy and two guided steroid injections one of which gave several months of improvement in 2015 and the other in 2016 resulted in no improvement.  Mr Perlina was continuing to get neck and left arm pain.  He had limited ability to lift and carry and had difficulty with periods of prolonged sitting and standing.  Dr Dooland also reported that Mr Perlina was unable to perform overhead activities; he was unable to turn his head without moving his trunk and needed frequent rest breaks from prolonged sitting.  Dr Dooland reported that Mr Perlina had hypertension which was currently controlled.  Finally, he reported that chronic low back pain caused similar issues to the neck pain on a lower scale.  Dr Dooland considered that a primary hyperparathyroidism may have been contributing to ongoing muscle pain.

    [4] Exhibit 1, T18 p 208.

23. Reports from Benson Radiology indicated multi-level cervical degenerative changes involving disc levels at C3/4, C4/5, C5/6 and C6/7.  The ongoing left arm symptoms where consistent with C6 nerve root impingement.[5]  Similarly, a report from Benson Radiology dated 30 August 2016,[6] reported:

    “Posterior uncovertebral disc osteophyte complexes seen between the C3/4 and the C5/6 levels without features of severe central canal narrowing although with multilevel associated foraminal narrowing”

    [5] Exhibit 1, T18, p 188 & 189.

    [6] Exhibit 1, T18, p 193.

24. In a Medical Certificate dated 20 October 2016 Dr Dooland described the medical condition as a flare up of the cervical spine osteoarthritis with symptoms of neck pain and stiffness.  The condition was described as temporary and the treatment planned was analgesic medication, physiotherapy and specialist review.[7]

    [7] Exhibit 1, T19, p 222.

25. A similar certificate was provided by Dr Dooland on 16 November 2016 which is during the assessment period.[8] 

    [8] Exhibit 1, T19, p 223.

26. As previously indicated, Mr Perlina received physiotherapy treatment.  A report from a physiotherapist, Mr R Fuller, dated 20 March 2018 indicated that Mr Perlina had sessions of physiotherapy in 2015 and 2016 because of recurrent episodes of left sided neck, upper back, left shoulder and left upper arm pain.  Mr Fuller reported:

    “On each of these occasions, there has been significant restriction of neck and shoulder movement and function.  Symptoms have improved in response to treatment provided, but never fully settled.  ‘Mr Perlina’ has also been given a programme of home-based exercise to help with symptom management.”[9]

    [9] Exhibit 9, p 26.

27. Dr Dooland’s most recent report was written on 12 February 2018.  While acknowledging that further neurosurgical opinion could be sought in relation to the chronic neck pain, Dr Dooland wrote that Mr Perlina lacked the financial resources to access a private neurosurgeon, while referral through the public health system would result in significant delay.  Dr Dooland reported that Mr Perlina’s hypertension was currently controlled while the chronic low back pain was being managed with an exercise program and weight modification.  Mr Perlina had undergone surgery to resolve the problem with hyperparathyroidism. 

28. In relation to his heart condition, Mr Perlina had been hospitalised for an angiogram in May 2017.  The condition is managed medically and Dr Dooland reported that Mr Perlina has ongoing specialist cardiologist review on an annual basis.

29. The Tribunal accepts that the spinal condition was fully diagnosed, fully treated and fully stabilised at the time of DSP claim and during the assessment period.

30. Impairment Table 4 – Spinal function, is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck.  The diagnosis must be made by an appropriately qualified medical practitioner. 

31. A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)  The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following:

(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)    the person is unable to bend forward to pick up a light object placed at knee height; or

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. Severe functional impact on activities involving spinal function attract 20 points as set out in Impairment Table 4 as follows:

Points

Descriptors

20

There is a severe functional impact on activities involving spinal function.

(1)  The person is unable to:

(a)    perform any overhead activities; or

(b)    turn their head, or bend their neck, without moving their trunk; or

(c)    bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

1. The Secretary obtained a medical review from Dr I Smith of the Health Professional Advisory Unit (HPAU) which is attached to the Australian Government Department of Human Services.  Dr Smith provided a written report dated 20 December 2017[10] and he gave evidence by telephone to the Tribunal.  In compiling the report, Dr Smith had conferred with Dr Dooland. 

   [10] Exhibit 5.

2. Dr Smith wrote that the principal medical issue at the time of the DSP claim was cervical spondylosis.  He noted that Mr Perlina had also been diagnosed with primary hyperparathyroidism and subsequently sustained a myocardial infarction in May 2017.  Dr Smith considered that the condition of cervical spondylosis was correctly regarded as fully diagnosed, treated and stabilised.  Mr Perlina had undertaken appropriate physical and pharmacological interventions and he had been reviewed by a spinal surgeon.  He was taking a nerve stabilising agent and he had undergone steroid injections in 2015 and 2016.  Dr Smith wrote that an overall moderate functional impact best equated with the totality of the available evidence. Dr Smith confirmed his opinion in giving his oral evidence. He considered that the estimate of rotational range of movement of the neck would be a one half loss, which is 45 degrees in either direction.  He said that typically the spinal condition of this kind would wax and wane and while he hadn’t specifically commented in his report about Mr Perlina’s left shoulder and left arm, he maintained that overall there was a moderate level of impairment.

3. Dr Dooland also gave evidence to the Tribunal.  In cross examination he agreed that a range of movement of the neck of 45 degrees in either direction was an appropriate estimate.

1. Dr Smith stated in his report that Mr Perlina could perform some sedentary work so long as the work place was set up appropriately and there was an opportunity for rest and stretching breaks.

2. A JCA report submitted on 14 October 2016,[11] during the assessment period, concluded that Mr Perlina’s work capacity was in the range of 15 to 22 hours per week due to the impact of chronic pain and physical limitations.

   [11] Exhibit 24, T15 p 168-172.

3. Subsequently a JCA report submitted on 17 February 2017[12] suggested a capacity for work within two years with intervention of 15 to 22 hours per week. The assessment noted that Mr Perlina experienced pain from his neck into his left arm which “blocks” him and prevents him from doing anything which requires strength in the arm. The report noted that his wife occasionally provides assistance with showering and dressing. It noted further that Mr Perlina reported that he could obtain items from the fridge and lift utensils such as a saucepan. However, he could not lift above shoulder height.

   [12] Exhibit 24, T16 p 173-180.

4. Having heard Mr Perlina’s evidence and taking into account the medical evidence the Tribunal considers that the conclusion about functional impairment which Dr Smith has drawn regarding the spinal condition is accurate.  The Tribunal finds that there is a moderate functional impact on activities involving the spinal function which includes difficulties which Mr Perlina had in sustaining over head activities and moving his head to look in all directions.  Based on all of the evidence relating to the spinal condition a rating of 10 impairment points under Impairment Table 4 is appropriate.

   Other Conditions

5. Reference has been made previously to the myocardial infarction and the hyperparathyroidism.  It was not suggested that either of these conditions can be relied upon in a substantive way to support the DSP claim.

   CONCLUSION

6. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

7. As outlined, the Tribunal finds that Mr Perlina’s spinal condition was fully diagnosed, fully treated and fully stabilised during the assessment period.  The appropriate rating for the spinal condition is 10 impairment points.

8. With a total of 10 impairment points. Mr Perlina does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore he does not satisfy s 94(1)(b) of the Act.

9. In these circumstances it is not necessary to consider whether or not during the assessment period Mr Perlina had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

10. As Mr Perlina was not qualified for DSP at the time he lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review. 

11. Mr Perlina’s case was well prepared and well presented at the hearing.  Together with his advocate Mrs Perlina, the documentation and written summary which they provided to the Tribunal was thorough and helpful.  The impact of the Tribunal’s decision does not involve an underestimation of the difficulties with which Mr Perlina has had to contend.  Put simply, the effect of the Tribunal’s decision is that he did not meet the necessary criteria for qualification for DSP at the time that he lodged the claim and during the subsequent assessment period.

    DECISION

12. The Tribunal affirms the decision under review.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Member I F Thompson

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Administrative Assistant

Dated: 6 August 2018

Date(s) of hearing:	12 July 2018
Applicant:	In person
Advocate for the Applicant:	Mrs S Perlina
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Department of Human Services