Robert MURPHY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2012] AATA 711

[2012] AATA 711

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2627
Re	Robert MURPHY
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Kerry Breen, Member
Date	15 October 2012
Place	Melbourne

The Tribunal affirms the decision under review

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

Dr Kerry Breen, Member

CATCHWORDS

Disability support pension – plantar fasciitis – depression – conditions not fully treated or stabilised

LEGISLATION

Social Security Act 1991 sections 94(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 sections 6(3), 6(4), 6(5), 6(6) and 6(7)

REASONS FOR DECISION

Dr Kerry Breen, Member

15 October 2012

Mr Robert Murphy, aged 64 years, applied to Centrelink for a disability support pension (DSP) on 9 January 2012. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs. His application was supported by a treating doctor’s report (TDR) dated 9 January 2012. The TDR gave a diagnosis of rupture of planter [sic] fascia and an expectation that this condition would impact on Mr Murphy’s ability to function for 3 to 24 months. On 20 January 2012 a Centrelink officer rejected Mr Murphy’s DSP claim.
Mr Murphy believed that his treating doctor had checked the wrong box in regard to the prognosis. So, he asked his doctor for a second TDR which he then submitted to the respondent. This TDR, dated 22 February 2012, gave essentially the same diagnosis but with an expectation that the condition would last for more than 24 months. Mr Murphy sought review of the original decision from a Centrelink authorised review officer (ARO) who affirmed it on 13 April 2012.
Mr Murphy applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. During the SSAT hearing, Mr Murphy provided medical evidence of a second condition, depression. The SSAT affirmed the ARO’s decision on 1 June 2012. On 25 June 2012 Mr Murphy applied to this Tribunal for a review of the SSAT decision.

ISSUES

The issues to be determined are:

Does Mr Murphy have a physical, intellectual or psychiatric impairment?
What impairment ratings do his conditions attract? and
If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
The relevant assessment period is from 9 January 2012 and the subsequent 13 weeks.

LEGISLATION

The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables determined by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) made pursuant to s 26(1) of the Act. The Determination came into effect from 1 January 2012 and is relevant to this application.
Section 94 (1) of the Act 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; …
The Determination provides:
6(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

6(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

6(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and

(c) whether treatment is continuing or is planned in the next 2 years.

6(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

(a) either 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.

6(7) For the purposes of subsection 6(6), reasonable treatment is 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.

CONTENTIONS

Mr Murphy contends that, as his treating doctor and at least two treating podiatrists have informed him that his foot condition is severe and likely to last for more than 24 months, he meets the requirements for DSP.
The respondent contends that the applicant’s condition does not comply with the Act as his condition has not been fully treated and stabilised. Hence, it cannot be deemed to be permanent.

THE EVIDENCE

Until he was made redundant in May 2011, Mr Murphy worked as a forklift driver for over three years. At some point during this time, he began to experience pain in his right foot which gradually increased over several months. Mr Murphy was uncertain about the date of onset of the condition. However, he told the SSAT in June that the onset was around 12 to 16 months earlier.
Mr Murphy thought the pain was made worse by having to repeatedly get on and off forklift trucks. He first attended a medical practitioner in Laverton and then a second medical practitioner in Footscray. He stated that the second doctor had referred him for a cortisone injection. He next sought the assistance of a podiatrist who had told him that his foot condition was a very bad case.
He moved to live in Sunbury, where he began attending his current treating doctor, Dr Rowshanul Alam of the Sunbury Medical Centre. Dr Alam diagnosed Mr Murphy’s foot condition as plantar fasciitis. He referred Mr Murphy to a second podiatrist, Mr Andrew Ferguson at the Macedon Ranges and Sunbury Foot Clinic. Mr Murphy stated that Mr Ferguson informed him that his plantar fasciitis was the second worst case he had encountered.
The Tribunal received two TDRs from Dr Alam, dated 9 January 2012 and 22 February 2012, into evidence. The Tribunal also received two reports from the podiatrist, Mr Ferguson, dated 23 December 2011 and 3 April 2012 respectively.
In the first TDR dated 9 January 2012, Dr Alam provided the diagnosis as chronic right heel and sole of the foot – ultrasound rupture of planter [sic] fascia – multiple areas. He gave the date of onset as January 2011 and noted the current symptoms as right sole pain worsening pain. Difficulty to walk. He noted x-ray - large calcaneal spur. He recorded current treatment as Podiatrist review – camboot/cast/pain medications – no significant response and that future treatment was to see foot specialist Dr Hamish Curry. He ticked the box corresponding to 3-24 months, as the expected duration of the impact of the condition on Mr Murphy’s ability to function. In response to question J on the TDR which asked: Within the next 2 years the effect of this condition on the patient’s ability to function, Dr Alam ticked uncertain.
In the second TDR dated 22 February 2012, Dr Alam wrote that the diagnosis was multiple partial thickness tear of right planter [sic] fascitis [sic] with large calcaneal spur. He noted that current treatment was ongoing podiatrist review. Referred to Orthopaedic surgeon (Foo) for further management and that future treatment was ongoing review with podiatrist. Await orthopaedic review ? repair. On this occasion, he ticked the box corresponding to more than 24 months, as the expected duration of the impact of the condition on Mr Murphy’s ability to function. In response to question J on the TDR which asked: Within the next 2 years the effect of this condition on the patient’s ability to function, Dr Alam again ticked uncertain.
When questioned by the Tribunal, Mr Murphy could not recall a referral by Dr Alam to an orthopaedic surgeon named Dr Foo. He agreed that Dr Alam had advised him to attend the orthopaedic surgeon Dr Hamish Curry as a private patient but stated that he had eventually decided not to see him because of concern over the out-of-pocket expenses that he would have incurred. He recalled a discussion with Dr Alam about a referral to a public hospital and explained that he had not pursued this option because of long waiting times. When Mr Murphy was asked if he was referring to long waiting times for an outpatient appointment or long waiting times for any proposed surgery, he was unable to say.
The Tribunal asked Mr Murphy if he had any fears, reluctance or objection to possible surgical treatment for his plantar fasciitis. Mr Murphy explained that if he was to be advised to have surgery by a specialist, he would not decline. However, he had so far been slow to pursue this option because he believed that two podiatrists had advised against it. He quoted one podiatrist as saying this was very dangerous and should only be used as a last resort.
In his first report, dated 23 December 2011, Mr Ferguson wrote that Mr Murphy first attended on 21 November 2011 with
a 12 month+ history of severe R medial longitudinal arch and heel pain…Robert has been to 4 different doctors without resolution. Quaterzone [sic] injections have proved unsuccessful in relieving symptoms. Previous X-ray scans show a large calcaneal spur. Previous ultrasound scans reported nothing remarkable…I referred him to get a new ultrasound scan…[which] revealed thickening of the plantar fascia in comparison to the asymptomatic left, multiple partial thickness tears… and associated subfascial oedema.
Mr Ferguson’s report documented treatment initially with a cam walker boot device for three weeks and then a fibreglass low dye cast. The report also canvassed other treatment options including ultrasound guided quaterzone [sic] injection, enriched plasma injection course and other casting techniques. He added, given Robert’s history and the chronic nature of his injury I believe it this [sic] will take some time to heal.
Mr Ferguson’s second report, dated 3 April 2012, appeared to be an update that repeated much of the content of the first report. It included a comment that the use of the fibreglass low dye cast...was also not very effective. The report repeated the earlier advice about other treatment options and added that I have advised Robert that we have exhausted the more conservative treatments and it is my opinion that custom orthoitc [sic] combined with injection therapy is the best option at this stage. The report then stated Robert’s GP has also indicated that he would like Robert to see an orthopaedic surgeon for a surgical opinion.
Mr Murphy explained to the Tribunal that he had not taken up Mr Ferguson’s advice about custom-made orthotics because his own inquiries revealed this could cost him up to $1000.
The only documented medical evidence about Mr Murphy’s second condition of depression was a copy of a GP Mental Health Care Plan (the plan) prepared by Dr Alam, dated 27 March 2012. To the plan was attached a K10 form (a scoring system for depressive symptoms). The plan noted a diagnosis of depressive illness, issues of low in mood, loneliness, lack of motivation, insomnia, previous depression, has chronic dysthymia, recurrence of depression in the context of medical illness. It noted that Mr Murphy was not keen on antidepressants at this stage and identified treatment as CBT with psychologist Peter Pinney. [Tribunal Note: CBT refers to cognitive behavioural therapy.]
In his oral evidence, Mr Murphy confirmed a past history of depression in the context of a marriage break-up. He recalled being prescribed anti-depressants which made me much more depressed. He was not taking anti-depressants now for this reason; a decision that he said his doctor agreed with. He sees Mr Pinney every two weeks and understands that his depression is stabilised. He described treatment with pain management techniques and hypnotherapy. He has not seen a psychiatrist.

CONSIDERATION OF THE ISSUES

The respondent conceded that Mr Murphy suffered from two medical conditions, namely plantar fasciitis and depression. The Tribunal finds that there is sufficient clear medical evidence to support both diagnoses and thus the applicant meets the requirements of s 94(1)(a) of the Act.
Section 6(3)(a) of the Determination requires that before impairment points can be allocated, a determination needs to be made as to whether either medical condition suffered by Mr Murphy is permanent. Under s 6(4) of the Determination, a condition can only be deemed permanent if the condition has been fully diagnosed, fully treated and fully stabilised.
In regard to the plantar fasciitis, the Tribunal accepts that Mr Murphy is severely handicapped by this painful condition. However, the evidence clearly points to the conclusion that this condition is not fully treated and hence not fully stabilised. While no specialist medical opinion was available to the Tribunal, Mr Murphy’s treating doctor has advised that the opinion of an orthopaedic surgeon should be sought. The Tribunal notes that Mr Ferguson has also listed some other treatment options. [Tribunal Note: it is within the knowledge of the Tribunal that plantar fasciitis is generally a self-limiting condition.]
The Tribunal does not criticise the applicant for not yet seeking the advice of an appropriately experienced orthopaedic surgeon. The Tribunal accepts that Mr Murphy interpreted advice he was given as indicating that surgery should be seen as a last resort and carried some dangers. Without hearing directly from those health professionals who proffered advice, the Tribunal is unable to know precisely what advice was given. It is understandable that Mr Murphy did not take up the suggestion to seek private orthopaedic treatment, given the potential for significant out-of-pocket expenses. It is disappointing that Mr Murphy has not yet made an appointment to obtain such specialist advice via the public hospital system. Whether this has been offered to him as a reasonable alternative is unclear.
With regard to the depression, this condition has only recently been diagnosed. Mr Murphy is currently attending a psychologist for management of this condition. That he has not been advised by his treating doctor or his treating psychologist to consider the use of anti-depressant medication is consistent with the depression being a concomitant of his chronic foot pain and not a seriously disabling condition in its own right.

CONCLUSION

Plantar fasciitis

To be deemed permanent, pursuant to sections 6(3) and 6(4) of the Determination, this condition needs to be fully diagnosed, fully treated and fully stabilised. The reports of Dr Alam and the inclusion of the results of the ultrasound investigation satisfy the Tribunal that the plantar fasciitis has been fully diagnosed by an appropriately qualified medical practitioner. However, in the absence of specialist orthopaedic opinion (and recalling that Dr Alam has advised that this be obtained), it is not possible in law to determine that the condition has been fully treated and fully stabilised.
The Tribunal carefully considered sections 6(5), 6(6) and 6(7) of the Determination but was unable to conclude that Mr Murphy met any of these provisions. It is the Tribunal’s view that orthopaedic surgery is a form of reasonable treatment that is readily available at a reasonable cost and that Mr Murphy has chosen not to pursue this treatment option. His oral evidence made it clear that he does not have a medical or other compelling reason not to pursue this option.
For Mr Murphy to meet any of the remaining elements of sections 6(5), 6(6) and 6(7) of the Determination, the Tribunal would have to engage in conjecture about what an orthopaedic surgeon might say in regard to those subsections of section 6(7) which relevantly refer to treatment that can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person. Since his general practitioner has advised that Mr Murphy at least seek the advice of such a surgeon, it would be inappropriate for the Tribunal to engage in such conjecture.
It follows that the application for DSP based on plantar fasciitis must be rejected. In the circumstances, the Tribunal is not required to consider the remaining provisions in s 94(1) of the Act.

Depression

Although Mr Murphy has a history of depression, his current episode was only diagnosed in March this year. He is receiving counselling from a psychologist but has not seen a psychiatrist and is not taking anti-depressant medications. While no recent medical reports were provided, Mr Murphy’s oral evidence indicated that his depression had probably improved since attending the psychologist. In addition, the mental health care plan prepared by Dr Alam made it clear that the depressive episode was closely linked to the chronic foot pain Mr Murphy was experiencing. This indicated to the Tribunal that until the foot problem is itself fully treated and stabilised, it will not be possible to determine the future course of the depression.
For all of the above reasons, the Tribunal is not satisfied that the depressive illness is permanent for the purposes of the Act. Hence, the Tribunal is not required to consider the remaining provisions in s 94(1) of the Act.
It follows that an application based on depression must also be rejected.

DECISION

I affirm the decision under review.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member.

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

Shivanthi Herath, Associate

Dated 15 October 2012

Date(s) of hearing	24 September 2012
Applicant	In person
Solicitors for the Respondent	Ms Cherie Canning, Australian Government Solicitor