Re Newman and Secretary, Department of Family and Community Services - [2002] AATA 917

DECISION AND REASONS FOR DECISION [2002] AATA 917

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/101
GENERAL ADMINISTRATIVE DIVISION
  Re:         GUY NEWMAN
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             11 October 2002
Place:            Melbourne

Decision:The decision under review is affirmed.

(sgd) M.J. Carstairs
Member
SOCIAL SECURITY – disability support pension – permanent condition - whether condition fully documented, diagnosed, investigated – whether applicant qualified for disability support pension
Social Security Act 1991 s94
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190

REASONS FOR DECISION

11 October 2002 M.J. Carstairs, Member

This is an application by Guy Newman (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 16 August 2001. The SSAT affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent), made on 22 December 2000, that the applicant was not qualified for disability support pension.
At the telephone hearing the applicant represented himself. The respondent was represented by its advocate, Mr D. Perdon.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, numbered T1 to T26, as well as exhibits marked A1 for the applicant, and R1 – R6 for the respondent. After the hearing, the applicant lodged with the Tribunal a report, dated 19 September 2001, by Dr D. Simpkin, one of the applicant's general practitioners, when the applicant lived in New South Wales.
BACKGROUND
The applicant was born on 3 February 1977 and is twenty-five years old. He was injured in a motor vehicle accident in 1996. On 5 December 2000 he lodged a claim for disability support pension. The claim was rejected on 22 December 2000 (T10) on the basis that, although the applicant had an impairment rating of 20 points under the Tables used for assessment, it was considered that he was suitable for retraining.
The applicant sought review by an authorised review officer. However, the decision not to grant disability support pension was affirmed on 7 February 2001. The applicant then applied to the SSAT. The SSAT sought a further medical report from an occupational physician, Dr J. Govind, and discussed the case with the applicant's general practitioner, Dr Earp. The SSAT decided that the applicant did not have a fully documented condition, which had been investigated treated and stabilised and therefore the condition could not be said to be permanent within the meaning of the legislation, this being a requirement for qualification for disability support pension. The applicant sought review of the decision with this Tribunal on 2 October 2001.
EVIDENCE
The applicant gave oral evidence that he has seen twenty doctors who all agreed he should be granted disability support pension. He said that every three months, over a lengthy period of time, when he has been accessing Centrelink benefits and producing medical certificates, doctors have agreed that he is unable to work. He said that the number of those certificates far outweighs the single adverse report of Dr Govind. The applicant said that he objected to Dr Govind's report. He said that prior to that report, the SSAT members had indicated that they accepted that he had the necessary level of impairment for disability support pension. He tendered a letter (exhibit A1), dated 10 September 2002, from Ms T von Sivers who attended the appointment with Dr Govind with the applicant. Ms von Sivers supported the applicant in saying that Dr Govind had a negative attitude. The applicant said the report of Dr D Simpkin (dated 19 September 2001) countered Dr Govind's report.
The applicant said that he suffers from arthrosis, which he said is a condition in which enzymes collect around damaged nerve tissue, and which was diagnosed in his case through magnetic resonance imaging (MRI). He referred to the report of the MRI of his lumbar spine dated 28 February 2001 (T15).
The applicant said he tries to walk every day that he can. He walks up to half a kilometre when he is able and usually walks with a stick. He said he cannot bend, sit or stand and needs to support his weight when sitting or standing. He sleeps poorly, tending to fall asleep at 4:00 a.m. and he lies in till 10:00 a.m., when it is warm enough for him to move around. He lives in a caravan behind a friend's place and his friends look out for him, shop for him, and provide him with food if he needs it. The applicant said he spends a half to one and a half hours, after he rises, doing a form of Tai Chi taught to him in Adelaide. He said that he ensures that he exercises and takes care of his back.
The applicant said he has had numerous hospitalisations when his pain is unbearable. He takes the following medications: glucosamine, panadol forte, morphine (irregularly, the last time being three weeks ago) and endone. He said he spends his time reading, and playing his guitar, if he is not in too much pain. He said he cannot do anything for long and spends a lot of time in bed.
The applicant told the Tribunal that he has worked since the accident in 1996. However, he has not done so recently, after finding problems with insurance and the unpredictable onset of back pain. He said that he would be able to access other benefits and retraining if he was on a pension. He said Dr Urie has recently referred him to the Barbara Walker Pain Management Clinic at St Vincent's Hospital.
Under cross-examination, the applicant said that he doubted that he had told the SSAT that he would not attend the pain clinic to which he was referred, when still living in New South Wales, in 2001. He said, however, that Dr Govind ran that pain clinic. He also said that it was a lengthy train journey to attend (he has difficulty with public transport). He acknowledged that his treating doctors, Dr Earp and Dr Simpkin had recommended attendance at a pain clinic.
In a written report dated 4 August 2001 (T19) Dr Govind stated:
…
a.     A tallish, thinnish individual with severe acne affecting the greater portion of the posterior thoracic cage. He was unable to ambulate unassisted, being very dependent on his female companion and with accompanying paralingual vocalisation.
b.     Cervical spine – Generalised tenderness to light touch, gross reduction in joint mobility in all six directions, level of distress expressed disproportionate to standard testing (e.g. cervical compression test for cervical radicular pain, neck movements against resistance, and palpation of the lateral masses).
c.     Thoracic spine – Normal configuration, somewhat laboured respiratory excursions (with paralingual vocalisation) and generally tender to light touch.
d.     Lumbar spine – Mr. Newman was unable to stand unassisted for more than 5 minutes. He complained of widespread generaIised tenderness affecting the thoracic spine, lumbar spine, iliac crest and the sacro-coccygeal area. Thoracic and lumbar spinal movements were completely absent, Mr. Newman claiming escalating pain level (with accompanying paralingual vocalisation).
e.     Both upper limbs – Range of movements around the major joints showed significant reduction. By measurement there was no muscle wasting. Reflexes were equally sluggish and he claimed lack of appreciation to pin-prick stimulation affecting the right arm. Vibration sensation was poorly discriminated on the left arm. Muscle strength was barely perceptible and on a scale of 5 muscle strength was rated to be "1" (movements barely perceptible against gravity).
…
Investigations –
1.     No X-rays were available.
2.The following report was noted: Computerised tomography (CT) cervical spine: - "No significant disc herniation could be detected on non-contrast CT images. At C4/5 there is some anterior and right lateral osteophyte formation and there is mild narrowing of the right C4/5 neural exit foramen. The central canal appears of adequate dimension at all levels and no other significant degenerative changes are detected." (Dr. Roger Bain, May 4, 2000: Gippsland Diagnostic Services).
Diagnostic Assessment:
Injury – Given the general behavioural pattern,
the paucity of physical findings,
the constellation of symptoms (implicating multi-system disorder),
the poor correlation between symptomatology, physical findings and imaging studies (CT cervical spine),
and given the gross inconsistency (past history of paralysis, loss of vibration sense, loss of pin-prick sensation, total loss of spinal movements)
I am unable to formulate a specific disorder affecting either the axial (cervical, thoracic or lumbar spine) or the appendicular (arms and legs) skeleton. (The absence of an MRI or the findings contained therein does not particularly disadvantage Mr. Newman. Even if it did show annular tears, herniations, bulges, etc. he could not explain all his symptoms. Unfortunately, he has a fixation on MRI findings which he directly attributes to the motor vehicle accident.)…
In his written report (19 September 2001), Dr D M Simpkin stated as follows:
…
Is very annoyed with Dr Govind for "telling lies about me" insist that he is not morphine dependent and does not abuse the morphine - has quite a bit of morphine at home still that he has not used. Insists that he only uses it as a last resort. {And certainly we have ordered very little for him.}
…
September 26 2001 …
Has seen the neurologist - they had an early cancellation - he suggests referral to the pain clinic.
…
Previous Prescriptions:
26 June 2001         MS CONTIN SR TABLET              10mg    1 daily p.r.n.
6 July 2001             ENDONE TABLET  5mg      1 t.i.d p.r.n.
13 August 2001       ENDONE TABLET  5mg      1 t.i.d. p.r.n.
13 August 2001       MORPHINE SULFATE                 15mg/mL         1mL q.4.h. p.r.n. for severe pain
  INJECTION
19 September 2001 MORPHINE SULFATE                 30mg     1 daily p.r.n.
  BP S R TABLET
19 September 2001 ENDONE TABLET  5mg      1 t.i.d. p.r.n.
In a written report dated 29 January 1999 (T6), Professor A. Kaye, neurosurgeon, noted that the applicant had a large central L4/L5 disc bulge that was the likely cause of symptoms of low back pain and sciatica. He organized an MRI to assess ongoing pathology. Professor Kaye's next report dated 22 March 1999 (T6), addressed to Dr G McFarlane, stated that there was a broad based central disc protrusion as L4/L5 which would account for some of the leg and back symptoms which the applicant was feeling. His report continued:
… I would advise continuing with conservative management for the time being, as the leg symptoms referable to the lumbar disc pathology are not particularly incapacitating and I would doubt that he would be symptomatically much improved by surgery.
Dr R. Stubbs, general practitioner, in a report dated 27 November 2000 (T5), diagnosed …L4-5 disc prolapse, dating from 1996. This condition was said to be long term. Dr Stubbs stated that the applicant had been his patient since October 2000. He considered that the applicant would take more than two years to return to any full-time work or study. He also considered that he would not benefit from any vocational training. He considered that the applicant would be constrained in mobility in some situations and would be unable to lift, carry and move objects. In a report dated 27 January 2001(T6), Dr Stubbs indicated that the applicant would be able to work for at least 8 hours per week within 12–24 months.
A scan of the cervical spine, conducted by Gippsland Diagnostic Services on 4 May 2000 (T6), found that cervical bodies were normal, that there was no herniation although there was mild narrowing of the space where nerves exit.
Dr P. Kamenyitzky, of Health Services Australia, in a report dated 19 December 2000 (T7), diagnosed the following conditions L4/L5 disc prolapse - considered to be permanent.
Dr Kamenyitzky rated the condition at 20 points under Table 5.2, finding on examination that there was loss of half the range of spinal movement. He stated that the applicant would be unable to return to his usual work within two years. He also stated that the applicant was unable to lift, carry and move objects). Dr Kamenyitzky considered that the applicant was able to study and would be able to return to work in 6-12 months. He stated that training could be helpful.
Dr Kamenyitzky stated:
…
He has a lumbar disc prolapse and has seen numerous specialists over the last few years, none of whom plan to operate.
He has a stiff lumbar spine and has probably lost at least half of the normal movements with voluntary guarding being very evident during the formal examination.
He has a poor sitting tolerance of less than 20 minutes but had no problems standing throughout the interview after he had walked for over 1 km to get to the Centrelink appointment today.
He takes oral morphine when the pain is bad and had to take about 20 tablets over the last month.
Both his hands were soiled and roughened consistent with recent use. He has no fixed place of living and says he is now camping in the bush in a tent. The state of his hands would be consistent with that.
He probably has a combined impairment rating of 20, however on purely medical grounds he could do light, mostly standing full-time work in the next two years after suitable vocational training and vocational rehabilitation. He could be a toll collector or car park attendant. He has already been to the CRS in another state and they found him work but he was unable to do this as there was some problem with the worker's comp insurance at the site. There are now multiple non medical issues coming in to play as he no longer has a driver's license and can't afford the $5,000 fine and he also has an itinerant lifestyle.
The medical certificates in evidence were two certificates completed by Dr R Stubbs, on 8 November 2000 (exhibit R2) and on 27 January 2001 (T6). In addition, there were scans of the cervical spine dated 4 May 2000 (T6), an X-ray of the lumbo-sacral spine dated 6 December 1997 (T20) and MRI's of the lumbar and cervical spine dated 28 February 2001 (T15). Other medical certificates were those of Dr D M Simpkin dated 26 September 2001 (R3), a report of Dr A Willis dated 29 March 2001 (T17), and two reports of Dr J P Urie, dated 20 February 2002 and 23 May 2002 (exhibits R4 and R5). After the hearing the applicant lodged with the Tribunal a medical certificate completed by Dr S Das, dated 12 September 2002.
CONSIDERATION OF THE ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) relevantly provides:
94.(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;
...
Mr Perdon submitted that the question of qualification for disability support pension must be determined at the date of claim. In this case, that is December 2000. He further submitted that qualification for disability support pension requires that there be a permanent condition, which is not likely to change. Referring to the Introduction to the Tables for the Assessment of Work-Related Impairment for Diasability Support Pension, he said that the condition has to be a …fully documented diagnosed condition which has been investigated, treated and stabilised and is likely to persist for at least 2 years .
Mr Perdon submitted that the evidence before the Tribunal showed that the applicant's condition was not treated and stabilised. Therefore, it could not be rated under the Tables in Schedule 1B of the Act. He submitted that the applicant's evidence that his current medical practitioner, Dr Das, is referring him to a pain management clinic shows that full treatment has not occurred. Even taking into account Dr Das's view that the applicant was presently incapacitated for work (with which the respondent was in agreement), Mr Perdon submitted that Dr Das's view, that the applicant was 20 per cent incapacitated, was not expressed in terms of the Tables under the legislation.
The applicant submitted that Dr Govind's report should be disregarded and greater weight given to the numerous reports which stated that he is incapacitated. He submitted that the doctor from Health Services Australia, Dr Kamenyitzky, had assigned 20 points to his back condition. He submitted that there was no further reasonable treatment available and he had learned those things that he could do to improve his back. He submitted that treatment implies some cure, however his arthrosis was not going to go away. He said that pain management is not treatment.
The applicant submitted that he would be unable to work or retrain as he cannot sit for long and finds it hard to write.
The Tribunal reached a decision taking into account the oral and documentary evidence and the submissions made at the hearing. The Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act provides:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.

The question of determining whether a condition is temporary or permanent was considered in the case of Re Tlonan and Secretary Department of Social Security (1997) 24 AAR 467 and in Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190). In Tlonan the Tribunal stated, at page 475:
…
44. If a person is qualified for a DSP, it may not be payable. … As a general rule, a person's provisional commencement day is the day on which he or she lodges a claim for a DSP. In some cases, a person is not qualified on that day but later becomes qualified. …
45. No provision is made for the case in which the person first becomes qualified for the DSP at some date later than 3 months after he or she lodged the claim. In view of that, there is no provisional commencement day specified for such a person. ...
Despite some legislative changes since Tlonan was decided, it remains the case that qualification for disability support pension must be established within three months of a claim (clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999). The Tribunal in Tlonan also looked at the meaning of treated as used in the introductory words to the Tables. The Tribunal said:
What is meant by the requirement that the condition be treated? The word "treatment" means, among other things, "...the application of medical care or attention to a patient, ailment etc ..." (The New Shorter Oxford English Dictionary, 1993) …
These meanings must be considered in the light of the context in which the word "treated" is used in Schedule 1B of the Act. Taken in that context, it seems to me that it should not be given a restrictive meaning. That is to say, it should not be limited to medical treatment in the sense of surgery or the prescription of medication. In its context, the word "treatment" refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling. What amounts to the treatment in any particular case will depend on the individual circumstances of that case.
The Tribunal notes the submission of the applicant that numerous medical certificates state that he is incapacitated for work. These are of limited assistance in deciding the question of whether the condition is one of which it can be said that it has been treated and stabilised. The information the certificates provide is limited. Essentially, they provide for medical practitioners ticking boxes without scope for explanation. Dr Urie certified on 20 February 2002 that the applicant would be able to work at least eight hours per week in 6-12 months (exhibit R4). Dr Simpkin certified on 26 September 2001 that the applicant should be able to return to eight hours work or study within 3 months but uncertain (exhibit R3). In a certificate dated 8 November 2000, Dr R Stubbs (exhibit R2) stated that the applicant would likely be able to work full-time or part time within 6–12 months. However, these certificates tell little about the applicant's ability to work or retrain for purposes of disability support pension. The Tribunal accepts that currently Dr Das (report dated 12 September 2002) certifies that the applicant is unable to return to work for eight hours per week or to study, however this is of little assistance as qualification has to be established at the time of the claim.
The more comprehensive reports are those of Dr Stubbs, Dr Kaminyitzky and Dr Govind. On 27 November 2000 Dr Stubbs (who, however, had treated the applicant only since October 2000) stated that the applicant was unable to return to full or part-time work, or to retrain, within two years. On 19 December 2000 Dr Kaminyitzky diagnosed a lumbar disc prolapse and considered that he probably has a combined impairment rating of 20 (T7) though he thought he could do light full-time work. The report of Dr Govind is the most adverse of the medical reports. However Dr govind appears to have had access only to the scan of the cervical spine dated 4 May 2000. No mention is made in Dr Govind's report of the MRI's dated 28 February 2001 (T15).
The applicant has been to a number of medical practitioners and appears to have had a relatively limited time under the care of each. More than one of them has recommended a course of pain management. The applicant agreed that Dr Earp and Dr Simpkin had made that recommendation, as, currently, has Dr Das. Applying the interpretation of the term in Tlonan, treatment is not to be read narrowly, and should encompass a broad range of therapeutic measures, reasonable to adopt in a particular case. Pain management has been recommended to the applicant by three medical practitioners, and is a common form of treatment for intractable back pain. The Tribunal does not accept the submission of the applicant that it does not fall within the concept of treatment under the Act. As the words in the Act set out, reasonable treatment is taken to be treatment that is feasible and accessible and where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
The Tribunal accepts the submission made by Mr Perdon that the SSAT was correct in deciding that the condition was not one where the condition was treated and stabilised. The Tribunal is not satisfied, where treating doctors have recommended a course of pain management program and this has not occurred, that the requirements of the Act can be met.
However the Tribunal does not accept the submission of the respondent that no definitive diagnosis of a condition could be made (relying on the report of Dr Govind). There are numerous medical reports in this case that identify a back condition. While the behaviour of the applicant at the examination by Dr Govind appears to have led Dr Govind to the view that overall diagnosis was uncertain, the Tribunal is satisfied that Dr Govind was disadvantaged by the absence of the MRI reports (T15) in the material forwarded to him. On the basis of the MRI reports and the reports of Dr Stubbs, Dr Kaminyitzky, and Professor Kaye the Tribunal is satisfied that there is a lumbar disc condition, either a lesion or a prolapse: s94(1)(a). The Tribunal does not accept Dr Govind's conclusion that no specific disorder affecting the axial skeleton (T19) can be made. The Tribunal does accept Dr Govind's opinion that there may be other conditions present. However, these have not been identified, and Dr Govind merely states that psychiatric assessment may be needed.
Looking at the evidence as a whole, the Tribunal is reasonably satisfied that, at the time of the claim, in December 2000, or within three months of that time, it could not be said that the applicant had a condition that was treated or stabilised within the meaning of the introductory words to the Tables for assessment under the Act. For these reasons the Tribunal is satisfied that the applicant cannot satisfy s94(1)(b) of the Act and therefore affirms the decision under review.
DECISION
The decision under review is affirmed.
I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of:
M.J.Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  10 September 2002
Date of decision:  11 October 2002
Solicitor for applicant:                  Nil - self-represented
Advocate for respondent:            Mr D. Perdon, Centrelink