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

Pezerovic and Secretary, Department of Social Services (Social services second review) [2017] AATA 1210 (1 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5413
Re:Enes Pezerovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Member
Date:1 August 2017
Place:Sydney

The decision under review is affirmed.
...............[sgd].........................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – spine condition – mental health condition – whether applicant’s medical conditions considered permanent – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
1 August 2017
BACKGROUND

Mr Pezerovic, who is now 59 years old, came to Australia from Croatia in 1993.
In 1997, Mr Pezerovic suffered a lower back injury at work that caused severe pain. The injury required surgical intervention. After initial improvement, the pain symptoms recurred and persisted for several years.
In 2005, Mr Pezerovic was involved in a motor vehicle accident which resulted in an injury to his neck that caused severe pain. In 2010, he was again involved in a motor vehicle accident.
On 3 December 2015, Mr Pezerovic lodged a claim for Disability Support Pension (DSP).
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.
In a decision dated 30 August 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Pezerovic’s claim. The AAT1 found that Mr Pezerovic’s medical conditions warranted a total rating of 5 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act.
In this proceeding, Mr Pezerovic seeks review of the decision of the AAT1.
At the hearing Mr Pezerovic was represented by a solicitor and assisted by an interpreter of the Croatian language.
In the course of the hearing Mr Pezerovic became distressed and stated that he did not wish to continue. With the approval of the Tribunal the parties agreed that the best way to proceed was for the Tribunal to decide the matter on the papers alone.
ISSUES
In order to qualify for DSP, Mr Pezerovic 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 3 December 2015 and 3 March 2016 (the claim period).
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)).
The Respondent concedes, and the Tribunal accepts, that Mr Pezerovic suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
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)).
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));
·fully treated (paragraph 6(4)(b));
·fully stabilised (paragraph 6(4)(c));
·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).
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”.
Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where the person has a permanent condition resulting in functional impairment due to a mental health condition”, states that 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)”.
Mr Pezerovic contends that he suffers significant impairment as a result of medical conditions with respect to his spine and his mental health.
The Respondent contends that, during the claim period, the spine condition should be considered as fully diagnosed but not fully treated and fully stabilised and, therefore, cannot be assigned a rating under the Impairment Tables.
Alternatively, if the Tribunal finds that, during the claim period, the spine condition was permanent for the purposes of the Impairment Determination, the Respondent contends the functional impact of this condition was “mild” and that a rating of only 5 points under Impairment Table 4 can be applied.
With respect to the mental health condition, the Respondent contends that, during the claim period, this condition was not fully treated and not fully stabilised, and a rating under the Impairment Tables cannot be applied.
Therefore, the definitive issue in this matter is whether, during the claim period, Mr Pezerovic’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had “a continuing inability to work”.
MEDICAL EVIDENCE
Spine condition
In a report dated 10 May 1999, Dr Bentivoglio, orthopaedic surgeon, stated that he first saw Mr Pezerovic on 22 December 1997 with respect to an incident at work on 8 December 1997. Mr Pezerovic suffered acute onset of severe lower back pain that radiated down to the right lower limb.
Dr Bentivoglio stated that Mr Pezerovic had developed “an L4/5 disc prolapse” and that his symptoms warranted surgical decompression. Surgical decompression of the L4/5 disc space was performed on 23 December 1997, with apparently good postoperative relief of back symptoms but residual symptoms in the right lower limb.
Dr Bentivoglio noted in May 1999 that Mr Pezerovic’s lower back symptoms worsened, were improved by wearing a polypropylene back brace but were still present when he was seen in November 1998.
In a report dated 6 October 1999, Dr Marsden, surgeon, noted that Mr Pezerovic continues to complain of “a lot of pain” and that current treatment consists mainly of analgesic medication (Panadeine Forte, Naprosyn and Panamax).
Dr Marsden expressed the opinion that “the apparent gross restrictions and complaints in the procedures of examination” and some of the symptoms were not entirely consistent with Mr Pezerovic’s organic pathology. Dr Marsden goes on to state that “Current clinical examination and more recent x-rays have not identified any specific neurological pathology consistent with the apparent presentation of gross pain and disability of the spine”.
In a letter dated 15 October 1999 Dr Bentivoglio noted that Mr Pezerovic “now not only has left leg pain but also recurrent right leg pain”. He goes on to state that “The MRI scan shows degenerative disc at L4-5, but no significant disc protrusion, or any reason for him to have severe bilateral leg pain”.
There are no further relevant medical reports until 20 September 2005 when Dr Brennan, neurosurgeon, noted that following a motor vehicle accident in July 2005 Mr Pezerovic “developed immediate pain in his neck and down his left arm” and that his symptoms have continued despite treatment with a “variety of different analgesics and anti-inflammatories”.
Dr Brennan stated that an MRI was reported as showing “foraminal stenosis” at a number of levels, particularly at C6/7and most markedly on the right side.
In a letter dated 27 September 2005, Dr Brennan confirmed that the MRI showed that most of the nerve root stenosis is on the right side with only “a little bit of narrowing” around the left C7 nerve root, which was quite minimal. He goes on to the express the opinion that the “most likely diagnosis is a traumatic C7 radiculopathy” with trauma to the nerve root being done at the time of the accident.
Dr Brennan expressed reservation with respect to surgical decompression but suggested that nerve root blocks may be of some benefit.
In a letter dated 28 October 2005, Dr Ditton, consultant in pain management, stated that Mr Pezerovic should be assessed by a physiotherapist and clinical psychologist in order to consider his suitability for a Pain Education Programme.
In a letter dated 10 February 2006, Professor Cameron, rehabilitation medicine physician, noted that Mr Pezerovic’s symptoms and signs are consistent with irritation of the left C7 nerve but “do not satisfy the diagnostic criteria for radiculopathy using the MAA Impairment Guidelines”.
Professor Cameron also noted that Mr Pezerovic “has high levels of emotional distress and disability and is taking significant doses of analgesics including an opioid” and expressed the opinion that he would potentially benefit from a pain management program.
In a letter dated 5 July 2006, Ms Bousfield, clinical psychologist, noted that Mr Pezerovic presented with persistent pain following a motor vehicle accident in 2005 and that he has a long history of low back pain which he reported as no longer being problematic.
Ms Bousfield stated that Mr Pezerovic is depressed and meets DSM IV criteria for “Adjustment Disorder with Depressed Mood”, and that he may benefit from a cognitive behavioural intervention to improve his ability to adapt to pain. However, she expressed only qualified confidence that Mr Pezerovic could progress with this kind of treatment and raised various difficulties that may interfere with the treatment.
Despite her reservations Ms Bousfield offered a trial of five sessions. There is no documentary evidence before the Tribunal to indicate that the sessions were undertaken.
In a report dated 30 November 2006, Dr Allnutt, forensic psychiatrist, expressed the opinion that Mr Pezerovic’s symptoms were consistent with a “Depressive Disorder, with associated posttraumatic stress and panic symptoms”. Dr Allnutt recommended referral to a psychiatrist, instigation of antidepressant medication and possible counselling with a psychologist. There is no documentary evidence before the Tribunal that Mr Pezerovic, was referred to a psychiatrist or started on medication at that time.
In a report dated 18 October 2011, Dr Bodel, orthopaedic surgeon, noted that in February 2010 Mr Pezerovic was involved in a motor vehicle accident which caused him to suffer pain in the head, neck, left shoulder and lower back. He noted that Mr Pezerovic complained of severe constant lower back pain that radiated to both legs as well as “tolerable” neck pain.
Dr Bodel expressed the opinion that Mr Pezerovic has suffered “soft tissue aggravation of previous injuries in the neck and the back” as a consequence of the motor vehicle accident.
There was no other relevant documentary evidence with respect to Mr Pezerovic’s symptoms until October 2015. In a letter dated 23 October 2015, A/Professor Aggarwal, rehabilitation and pain physician, stated inter alia the following:
He is a 57 year old man who I last reviewed in 2013 … At the time he had a chronic neuropathic pain syndrome, which did not respond to Amitriptyline or Lyrica and Epilim was tried.
…
Subsequently, he was commenced on the Fentanyl patch with the dose being increased to 50mcg every 3 days. He feels that this has helped improve his pain, especially at night. He still however does still take Oxycontin 20mg at night.
…
Mr Pezerovic continues to describe lower lumbar back pain, radiating down both legs to his toes.
…
He had reduced range of movement of his lumbar spine in all directions with forward flexion to the knee, extension to 10 degrees
…
Since Mr Pezerovic’s last review, there has been a new analgesic which has been recently introduced to the Australian market and I have commenced him on Tapentadol SR 200mg twice per day in place of the 50 mcg Fentanyl patch and Oxycontin at night.
…
I have also provided him with a script for Endone 5mg for breakthrough pain at night.
[emphasis added]
In a letter dated 22 December 2015, A/Professor Aggarwal stated inter alia the following:
He has noticed a marked improvement in his pain since commencing Tapentadol and increasing the dose to 250mg in the morning, 200mg in the afternoon and 250mg at night. He feels that his pain has improved by at least 30% to a point now where he is able to manage his pain much better and he is able to function better. He also has increased his range of movement of his lumbar spine
…
He is tolerating Tapentadol well without side effects.
…
Mr Pezerovic had improved range of movement of his lumbar spine with extension now to 15 degrees and forward flexion to just below the knee.
…
he is taking higher than the recommended dose of Tapentadol … I am happy for him to remain on his current dose … Once he is managing his pain better, then I will consider reducing his midday dose to a more acceptable level.
[emphasis added]
In a letter dated 15 June 2016, A/Professor Aggarwal stated inter alia the following:
He feels there has been an improvement in his pain once again since recommending Lyrica. He is currently on 150mg at night and Tapentadol SR 250mg in the morning and 150mg at night
…
He had reduced range of movement of his lumbar spine with forward flexion down to the knee, extension to 10 degrees
…
Lower limb nerve conduction studies showed no evidence of peripheral nerve dysfunction and lower limb somatosensory potentials were normal. EMG studies showed no evidence of chronic denervation.
[emphasis added]
In a letter dated 14 September 2016, A/Professor Aggarwal stated inter alia the following:
his pain has not been very well controlled since his last review. He has remained on Tapentadol SR 250mg in the morning and 150mg at night and Lyrica 150mg at night
…
he has increased pain … he would like to go back to the Fentanyl patches, which he felt were helping his pain much more
…
He had reduced range of movement of his lumbar spine with forward flexion now to the mid thigh, extension to 10 degrees
…
I have suggested he cease Tapentadol and I have recommended him on the 50mcg Fentanyl patch every 3 days
…
I have made it very clear that if his function does not improve … then the Fentanyl patch will be ceased at next review.
In a letter dated 14 December 2016, A/Professor Aggarwal stated that Mr Pezerovic’s pain had not been well controlled and treatment remained essentially the same apart from increasing Lyrica to twice a day and adding antidepressant medication, Duloxetine. “He had reduced range of movement of his lumbar spine with flexion to mid–thigh, extension to 0 degrees.” [emphasis added]
A/Professor Aggarwal confirmed that nerve conduction and EMG studies showed no evidence of nerve dysfunction but expressed the opinion that “Mr Pezerovic continues to have signs of chronic neuropathic pain syndrome”.
In a letter dated 8 March 2017, A/Professor Aggarwal states that he considers Mr Pezerovic’s spinal condition to be “diagnosed, fully treated and stabilised and is unlikely to improve in the next 2 years”. With respect to Impairment Table 4, A/Professor Aggarwal considered “Mr Pezerovic to have a moderate functional impact on his activities involving spinal function as he is able to sit in a car for 20 minutes and is unable to bend forward to pick up a light object placed at knee height”.
Consideration
The available documentary evidence clearly indicates Mr Pezerovic has complained of constant severe lower back pain since 2013. He claims that the pain is caused by lumbar spine pathology and has a significant impact on activities involving spinal function.
It is also clear that during this period Mr Pezerovic’s pain symptoms have required treatment with high dose opiate medication with only limited success.
I note Mr Pezerovic has been diagnosed as suffering from “chronic neuropathic pain syndrome” with little evidence of significant lower spine pathology and no objective evidence of neural injury.
Nevertheless, for present purposes I accept that, during the claim period, the condition of chronic neuropathic pain syndrome can be considered as fully diagnosed.
The Respondent contends that the condition was not fully treated and fully stabilised during the claim period and relies on the letters provided by A/Professor Aggarwal dated 23 October 2015 and 22 December 2015. In these letters, A/Professor Aggarwal indicated that following the introduction of a new medication, Tapentadol, Mr Pezerovic had experienced an improvement in symptoms and function.
The new medication appears to have been a newer form of opiate and the clinical improvement appears to have been obtained with a higher than recommended maximum dose. This is a situation which, in my view, could not have continued without the risk of significant side effects. In fact, by June 2016 the dose of Tapentadol had been significantly reduced and another drug, Lyrica, had been introduced. However, although there had been some improvement in Mr Pezerovic’s level of pain, his lumbar spine function had returned to previous levels.
By September 2016 Mr Pezerovic’s pain was again reported to be poorly controlled and lumbar spine function appeared to have deteriorated.
Notwithstanding the variation in Mr Pezerovic treatment with analgesic medication, I am satisfied that between December 2015 and March 2017, which includes the claim period, Mr Pezerovic’s condition was fully treated and fully stabilised. The variation in his symptoms and relatively minor changes in function, in my view, can be considered as consistent with the nature of the condition being treated.
However, the available evidence with respect to the level of functional impact on Mr Pezerovic’s activities involving spinal during the claim period is, in my view, incomplete and unclear.
A/Professor Aggarwal in his letter of 8 March 2017 suggested a moderate functional impact which appears to be based on Mr Pezerovic’s self-report of how long he can sit in a car and that he “is unable to bend forward to pick up a light object placed at knee height”. [emphasis added]
The relevant descriptors in Impairment Table 4 state the following:
·“There is a mild functional impact on activities involving spinal function” if the person has some difficulty “bending to knee level and straightening up again without difficulty”.
·“There is a moderate functional impact on activities involving spinal function” if “the person is able to sit in or drive a car for at least 30 minutes” and “the person is unable to bend forward to pick up a light object placed at knee height”. [emphasis added]
In the letters between 22 December 2015 and 15 June 2016, A/Professor Aggarwal states that Mr Pezerovic was able to forward flex to knee level. This would suggest that during this time he should have been able to bend forward to pick up a light object placed at knee height which would have been consistent with a mild functional impact on activities involving spinal function.
On 14 September 2016 and 14 December 2016, more than six months after the claim period, A/Professor Aggarwal noted that Mr Pezerovic was only able to forward flex to mid-thigh. This would suggest that Mr Pezerovic had suffered some deterioration in function consistent with moderate functional impact on activities involving spinal function.

On consideration of the limited available evidence I am satisfied that, during the claim period, as a result of the condition of chronic neuropathic pain syndrome, there was a mild functional impact on Mr Pezerovic’s activities involving spinal function. Therefore, a rating of 5 points under Impairment Table 4 can be applied.
Mental health condition
As noted above, in 2006 Mr Pezerovic was diagnosed as suffering from “depression” by a forensic psychiatrist and a clinical psychologist. Psychological treatment and antidepressant medication was recommended.
There is no documentary evidence before the Tribunal with respect to Mr Pezerovic’s mental health or any treatment for “depression” between November 2006 and January 2017.
In a letter dated 16 January 2017 Dr Tomic, clinical psychologist, states that Mr Pezerovic was referred on 29 November 2016 for psychological assessment and treatment.
Dr Tomic diagnosed “Major Depressive Disorder” and “Pain Disorder associated with both physical and psychological factors”.
In my view, a diagnosis of “depression” nine years prior to the date of claim with no corroborative evidence of follow-up or treatment does not satisfy the requirements of the Impairment Determination with respect to diagnosis.
Furthermore, even if I were to accept that the condition of “depression” had been fully diagnosed at the date of claim, there is no evidence to support a conclusion that, prior to or during the claim period, the condition was fully treated and fully stabilised. This means that a rating under Impairment Table 4 cannot be applied.
DECISION
For the reasons set out above, the Tribunal is satisfied that during the claim period Mr Pezerovic’s impairment was not 20 points or more under the Impairment Tables. Therefore, he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...............[sgd].........................................................
Associate
Dated: 1 August 2017

Date of hearing: 6 July 2017

Solicitors for the Applicant: Mr R Haralovic, Hal Lawyers

Solicitors for the Respondent: Mr L Dennis, Department of Human Services

[2017] AATA 1210

1 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	6 July 2017
Solicitors for the Applicant:	Mr R Haralovic, Hal Lawyers
Solicitors for the Respondent:	Mr L Dennis, Department of Human Services