Romanov-Hughes and Secretary, Department of Family and Community Services
[2006] AATA 143
•22 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 143
ADMINISTRATIVE APPEALS TRIBUNAL № V2003/824
№ V2004/2GENERAL ADMINISTRATIVE DIVISION № V2005/26
Re: ALEXANDER ROMANOV-HUGHES
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:22 February 2006
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) E.A. Shanahan
Member
SOCIAL SECURITY – newstart allowance – disability support pension – temporary or permanent conditions – failure to meet activity test – impairment point rating – failure to reach 20 point impairment rating – functional work assessment determination – claimed fraudulent medical opinions and Centrelink activities
Social Security Act 1991
Re Mifsud and Secretary, Department of Family and Community Services [2000] AATA 737
REASONS FOR DECISION
22 February 2006 Miss E.A. Shanahan, Member
1. On 20 June 1994 Mr Alexander Romanov-Hughes, an administrative officer with the Department of Defence, fell into a trench at the Victoria Barracks in Melbourne. He injured his left ankle and possibly his back. The ankle injury was diagnosed as a sprain and liability was accepted by Comcare. On 23 August 1995, Mr A. McQueen, an orthopaedic surgeon, performed an operation on Mr Romanov‑Hughes' left ankle, following which Mr Romanov‑Hughes returned to work on 2 October 1995. On 18 January 1999 Mr W. Edwards, an orthopaedic surgeon, performed a further exploration of the left ankle, the talo‑navicular joint and the tibialis posterior tendon. Mr Romanov-Hughes returned to work on 31 May 1999 on a graduated program of increasing hours.
2. In the course of the orthopaedic surgical procedures Mr Romanov-Hughes was noted to have flat feet and it was recommended that he have arch supports in order to assist the healing of his left ankle. He was also noted to have bi‑lateral hallux rigidis involving the great toe and these conditions were surgically corrected by two operations, on the left foot on 16 February 1998 and on the right foot on 22 November 1999. Mr Romanov-Hughes also underwent surgical excision of varicose veins in May 1996.
3. In March 1995, during a return to work program, Mr Romanov-Hughes experienced back pain. Once more, liability with respect to the back pain was accepted by Comcare in September 1998. In 1999 Mr Romanov-Hughes experienced increasing knee and thigh pain and an MRI scan revealed a small annular tear of L5/S1 disc with no nerve compression. In November 2000 the severity of the back pain increased. Mr Romanov-Hughes has not worked since 16 November 2000.
4. Mr Romanov-Hughes' back pain was initially treated with anti‑inflammatory medication. His back was later assessed by orthopaedic surgeons who found no indication for surgical intervention. Pain management was recommended and Mr Romanov-Hughes attended a pain management clinic for a period of four weeks with some improvement. Facet joint injections were performed as part of the pain management program; the injections did not reduce his back pain and were of no clinical benefit.
5. Mr Romanov-Hughes has also experienced upper respiratory tract symptoms, commencing in 1990. The diagnosis of these symptoms was not completely established, but has most recently been stated to be due to allergic rhinitis and asthma. The symptoms appear to be well‑controlled with topical medication.
6. Mr Romanov-Hughes applied for disability support pension (DSP) on 19 April 2001. His claim was rejected on 15 May 2001. Initially, Mr Romanov-Hughes had received sickness benefits, but this was cancelled on 27 April 2001 as his medical certificate had expired. Sickness benefits were reinstated, but then cancelled again on 8 May 2001, after Mr Romanov-Hughes failed to attend a pre‑arranged medical examination.
7. Mr Romanov-Hughes was paid newstart allowance (NSA), but NSA was suspended on 13 November 2002 because Mr Romanov-Hughes repeatedly failed to present for an independent medical examination. It would appear that many problems arose from the medical certificates supplied by his treating doctors, Dr H. Sutcliffe, the applicant's treating occupational health physician, Dr M. Georgy, general practitioner and Dr V. Salib, the treating general practitioner). These certificates were brief and covered from 3 days to 8 weeks of ill-health, or were provided where surgery was pending, attracting an inability to work for 6 to 12 months
8. In 2001 Dr Salib, the treating general practitioner, and the HSA medical practitioners regarded Mr Romanov-Hughes' conditions to be temporary. Dr Salib first reported the conditions to be permanent on 20 August 2002.
9. Centrelink recommended a Work Capacity Assessment and made an appointment for 11 February 2003. Mr Romanov-Hughes refused to attend the appointment. He had reported, what he termed, Centrelink staff harassment to the Ombudsman and had lodged a complaint with the Health Services Commissioner regarding the independence and, what he termed were fraudulent reports of HSA's doctors.
10. On 13 February 2003 Dr Salib certified Mr Romanov-Hughes to have symptoms likely to persist were stable but carried an uncertain prognosis (T42). On the basis of this report, Centrelink considered and advised Mr Romanov-Hughes that a DSP may be the appropriate payment once his incapacity was medically assessed by the doctors of HSA. Mr Romanov‑Hughes again refused to attend a HSA doctor.
11. Mr Romanov-Hughes had been assessed by Dr P. Mutton, a Health Services Australia (HSA) occupational physician, on 21 December 2000. While noting Mr Romanov-Hughes' allergic rhinitis, MRI evidence of mild degenerative changes at L5/S1, a normal bone scan and pain in the left ankle despite a normal range of movement, Dr Mutton had found no incapacity for normal work duties.
12. Dr S. Jensen, an occupational health physician, on 6 September 2001 (on referral from Dr Sutcliffe) recommended that Mr Romanov-Hughes attend a pain clinic. He commented that, in his opinion, the applicant had some capacity for work given that his normal work was sedentary, administrative duties.
13. Centrelink acts as the agent of the Secretary to the Department of Family and Community Services (the respondent). A Centrelink officer cancelled Mr Romanov-Hughes' NSA on 22 January 2003, on the basis that his conditions did not preclude the applicant from working eight hours or more per week; the applicant’s incapacity was temporary; the applicant had refused to undertake a Work Capacity Assessment; and had not, and did not, satisfy the activity test. The SSAT affirmed the decision. Mr Romanov-Hughes sought review of this decision by the Tribunal on 29 July 2003 (V2003/824).
14. On 19 April 2001 a Centrelink delegate also rejected Mr Romanov-Hughes’ claim for DSP. Mr Romanov-Hughes applied to the SSAT for review of the delegate's decision. On 2 December 2003 the SSAT affirmed the decision on the basis that all of Mr Romanov-Hughes' conditions had not been fully diagnosed, treated and stabilised as at 20 July 2001; and that his treating general practitioner had expected that he would return to work in 6 to 12 months. The SSAT found that s 94(1)(b) of the Social Security Act 1991 (the Act) was not satisfied, as no impairment points could be assigned. Mr Romanov-Hughes sought review by the Tribunal of this decision on 5 January 2004 (V2004/2).
15. Mr Romanov-Hughes lodged a further claim for DSP on 30 September 2003. This claim was rejected by a Centrelink delegate of the Department on 17 December 2003. While the applicant's low back pain, left ankle pain and right wrist pain were regarded as permanent and stabilised, his impairment rating was assessed at TEN points for the back pain and NIL for the left ankle and right wrist, under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Act. Thus, he did not meet the requirement of TWENTY impairment points under s 94(1)(b) of the Act. The SSAT affirmed this decision on 13 December 2004. Mr Romanov-Hughes sought review by the Tribunal of this decision on 14 January 2005 (V2005/26).
16. The three applications were considered by this Tribunal at the one hearing on 29 July 2005. Mr Romanov-Hughes was given leave to lodge his final written submissions after a separate claim against Comcare Australia had been decided by another Member of the Administrative Appeals Tribunal (AAT). He subsequently requested a directions hearing because all his income support payments from Centrelink had been cancelled, which he believed would affect the decision. The Tribunal made it clear that it could only consider the evidence presented to the Centrelink delegates and to the SSAT at the times of their respective decisions. On 14 December 2005 the Tribunal made a formal direction that Mr Romanov-Hughes was to provide to the Tribunal and serve on the respondent a copy of his submissions by 21 December 2005. In the interim, Mr Romanov-Hughes' Comcare application had been dealt with by another Member of the AAT and he had been unsuccessful. The Tribunal received Mr Romanov-Hughes' final submissions on 19 December 2005.
17. The issues before the Tribunal are whether Mr Romanov-Hughes' NSA was cancelled in accordance with the Act; and whether Mr Romanov-Hughes' claims for DSP were rejected in accordance with s 94(1) of the Act.
18. For the reasons given below, the Tribunal affirms all the decisions before it.
19. Mr Romanov-Hughes was self‑represented. Mr D. Perdon, a Centrelink advocate, appeared for the respondent. Ms W.J. Hall‑Wiggins, a senior occupational therapist from Advanced Personnel Management (APM), gave evidence on behalf of the respondent. Mr Romanov-Hughes confined his evidence to the content of his statement of facts and contentions and the written submissions. Mr Romanov-Hughes tendered
a report from Dr Steven Jensen dated 29 March 2005 Exhibit A1
a report from Dr Sutcliffe dated 28 June 2005 Exhibit A2
and a series of photographs of Mr Romanov-Hughes Exhibit A3
on crutches and in a wheelchair with a below knee left legplaster, taken some time in 1999
The respondent tendered
a Work Capacity/Participation Assessment Report Exhibit R1
dated 14 June 2005
20. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 relating to applications V2003/824, V2004/2 and V2005/26 (the T‑documents).
21. At the commencement of the hearing Mr Romanov-Hughes requested an adjournment because he was waiting for a decision of the AAT with respect to a claim he had lodged for workers' compensation for his medical conditions. He believed that this decision could impact on the matters before this Tribunal regarding his income support from Centrelink. The respondent opposed the application for adjournment on the basis that the resolution of the compensation claim would not impinge upon the matters before this Tribunal; which were, essentially, related to qualification by Mr Romanov-Hughes for NSA and a DSP. These questions of qualification would not be impacted upon by the workers' compensation claim, although they would perhaps affect the rate of a social security payment if Mr Romanov-Hughes' claim against Comcare Australia was successful. The adjournment was not granted.
EVIDENCE BEFORE THE TRIBUNAL
Ms Wendy Hall‑Wiggins
22. Ms Hall‑Wiggins prepared a Work Capacity/Participation Assessment Report dated 14 June 2005. Ms Hall‑Wiggins is a senior occupational therapist, employed by Advanced Personnel Management (APM). APM had contracted with Centrelink to provide work capacity assessments in 2002. Ms Hall‑Wiggins outlined her extensive qualifications and experience in work capacity assessment. On the day the assessment was conducted, 14 June 2005, Mr Romanov-Hughes did not agree to a formal range of movement testing with respect to his spine, left leg and right wrist. Ms Hall‑Wiggins therefore relied on her observations of his level of movement and activity during the 1 hour 45 minute interview.
23. From the history Ms Hall‑Wiggins obtained from Mr Romanov-Hughes and her observations of his range of movement, she concluded that Mr Romanov‑Hughes' L5/S1 disc lesion, degenerative disease, left ankle injury, right wrist and elbow pain and asthma and hay fever were all permanent conditions. Using able 5.2 of the Impairment Tables, Ms Hall‑Wiggins concluded that Mr Romanov-Hughes had suffered a loss of a quarter of the range of movement in his spine, in addition to (based on subjective reporting) back pain with many physical activities. She assigned an impairment rating of TEN points for that condition. She assessed Mr Romanov-Hughes' left ankle injury under Table 4 of the Impairment Tables. She assigned the ankle an impairment rating of NIL points, as he was observed to walk without difficulty and gave a history of walking on various terrains at varying speeds for more than 500 metres. Ms Hall‑Wiggins assessed Mr Romanov-Hughes' right wrist and elbow pain under Table 3 of the Impairment Tables. She assigned those conditions an impairment rating of NIL points, as Mr Romanov-Hughes was observed to use his right upper limb effectively. Ms Hall‑Wiggins assessed Mr Romanov-Hughes' allergic conditions, asthma and hay fever under Table 20 of the Impairment Tables. She assigned those conditions an impairment rating of NIL points, because she noted that Mr Romanov-Hughes' symptoms were minor and well‑tolerated, and would have no appreciable effect on his ability to work. The most relevant information upon which this assessment was based was the history given by Mr Romanov-Hughes that he was able to perform day‑to‑day activities, including
· personal care;
· walking between 1½ to 2 hours per day;
· the use of public transport without difficulty;
· frequently riding a bicycle on flat terrain and downhill, but not uphill;
· lacing-up his boots;
and· he was able to bend from the sitting position and to pick up articles from the floor; and
· using his right arm without restraint.
Ms Hall‑Wiggins also observed Mr Romanov-Hughes during the 1 hour 45 minute interview to sit in the same position without adjustment or the need to stand up or to move about.
24. In addition, Ms Hall‑Wiggins assessed Mr Romanov-Hughes' skills and work history. She stated that Mr Romanov-Hughes has a long working history in the administrative field and he is computer literate. She nominated occupations such as an accountant (for which he is qualified), bank teller, betting clerk, costing clerk, clerical clerk, despatch clerk, payroll clerk or research assistant as being suitable. Ms Hall‑Wiggins recommended that Mr Romanov-Hughes could return to work at a rate of 15 to 29 hours per week immediately and should be able to work more than 30 hours per work within a 6‑month period. In her examination‑in‑chief Ms Hall‑Wiggins confirmed the results of her history taking, observations and the conclusions she drew. She acknowledge that Mr Romanov-Hughes did report some levels of pain, although at the time of the assessment he was only taking a maximum of one to two Paracetamol‑type tablets a week (trans p 13). She disagreed with Dr Jensen's assignment of a 10 point impairment rating for the left ankle condition (Exhibit A1-see later). She pointed out that the work capacity assessment was very much a functional assessment, regardless of the underlying diagnosis. Ms Hall‑Wiggins was directed to the latest report of Dr Sutcliffe (Exhibit A2 – see later) and, in particular, Dr Sutcliffe's impairment rating of TWENTY points under Table 5.2 for Mr Romanov-Hughes’ back condition. Ms Hall‑Wiggins disagreed with this rating, as in order to attract TWENTY points under this Table the range of movement of his spine would need to be reduced by 50 to 75 per cent. She maintained that if the range of movement of his spine was reduced by 50 to 75 per cent, Mr Romanov-Hughes would be incapable of tying his shoe laces, putting on socks and picking up items from the floor.
25. Mr Romanov-Hughes questioned Ms Hall‑Wiggins' expertise in reaching an assessment of TEN impairment points in light of Dr Sutcliffe's rating of THIRTY points (TWENTY points for his back and TEN points for the left ankle), given that Dr Sutcliffe was a medical practitioner with post-graduate qualifications in occupational health and Ms Hall‑Wiggins was an occupational therapist. Ms Hall‑Wiggins agreed that she did not have a medical degree. She said her expertise lay in the assessment of a person's functional capacity regardless of their underlying medical diagnosis and their symptoms (trans p17), and her familiarity with the requirements and purpose of the Impairment Tables.
26. Mr Romanov-Hughes asked Ms Hall‑Wiggins if she was aware of the Oswestry Pain Assessment performed by Dr Jensen, as she had not referred to it in her evidence. Ms Hall‑Wiggins said that she had seen the report and that the test had indicated that Mr Romanov-Hughes scored in the "crippled" range (trans p18), which was not supported by his ability to perform most of the activities of daily living. Ms Hall‑Wiggins acknowledged that Mr Romanov-Hughes had pain in his back and left ankle; and reiterated that her report was a functional capacity assessment, i.e. what the applicant was capable of doing in terms of physical activity, despite the presence of pain, at the time she saw him. She had not assessed Mr Romanov‑Hughes in 2000 when he claimed he was unable to perform his work duties.
27. Mr Romanov-Hughes showed Ms Hall‑Wiggins the photographs taken in 1999 (Exhibit A3) in support of his evidence and contentions in his statement of facts and contentions, that he had undergone left ankle surgery. Ms Hall‑Wiggins said that she did not doubt that he had had ankle surgery, but on her assessment this condition was fully treated, stabilised and did not affect his functional capacity despite causing him pain. Similarly, Ms Hall‑Wiggins, while acknowledging the Mr Romanov-Hughes reported chronic back pain, maintained that this impacted only mildly on his spinal function in terms of a range of movement.
28. Mr Romanov-Hughes contended that Ms Hall‑Wiggins' opinion and assessment was not that of an independent expert, as she was a full‑time employee of a company contracted to the Australian Government for functional assessment services. Ms Hall‑Wiggins refuted this suggestion, outlined the tendering process and advised that Centrelink had provided training sessions to the company's personnel solely in the area of the interpretation of the Impairment Tables. Ms Hall‑Wiggins informed the Tribunal that most of her assessments were performed for the purpose of appeals to the AAT. Mr Romanov-Hughes asked Ms Hall‑Wiggins detailed questions regarding the Impairment Tables, as he disagreed with or found the descriptions in the Tables wanting. Mr Perdon objected to this line of questioning on the basis that, if Mr Romanov-Hughes disagreed with the Impairment Tables, he should "take that up with the Parliament, not the witness". The Tribunal agreed.
29. In her report, Ms Hall‑Wiggins had noted that Mr Romanov-Hughes had sat for 1 hour and 45 minutes during the course of her assessment without changing his position. Mr Romanov-Hughes queried the significance of this observation. Ms Hall‑Wiggins said that it was usual for persons with back pain to change position more frequently than those with a normal spine, who adjust their position every 10 to 15 minutes. She had observed that Mr Romanov-Hughes did not adjust his position either at the assessment or during the time he had been cross‑examining her while seated at the bar table.
30. Mr Romanov-Hughes informed Ms Hall‑Wiggins that he had attended a pain management course. He asked Ms Hall‑Wiggins if she was aware what this entailed. Ms Hall‑Wiggins outlined her extensive knowledge and experience (trans p29), which included her contribution as a guest lecturer in occupational rehabilitation to the pain management clinic personnel.
31. Mr Romanov-Hughes pointed out to Ms Hall‑Wiggins that Dr Jensen (Exhibit A1) had assessed his impairment at TEN points for loss of function of the spine and FIFTEEN points for pain in the spine. At this stage the Tribunal intervened (trans p30) and explained that the guidelines to the Impairment Tables precluded the use of multiple tables as this was considered to be double‑dipping. The Tribunal also explained that neither Dr Jensen nor Dr Sutcliffe had provided examination data on which they based their impairment point assessment, such as a range of movement. The Tribunal asked Mr Romanov-Hughes how long he could sit at his computer to which he answered "…it may go into hours" (trans p32). The Tribunal also asked why he could not work from home as an accountant. In response to the last question Mr Romanov-Hughes replied, "Well, I – I mean, I have some ability to do some work, but it is very much secondary to pain management…" (trans p32).
32. Mr Romanov-Hughes did not give sworn evidence and relied on his detailed statement of facts and contentions in all three matters. In his opening address to the Tribunal Mr Romanov-Hughes had succinctly summarised the matters before it as:
There is three matters: V2003/824, V2004/002, V2005/26. They actually aren't in chronological order of how they actually occurred because V2003/824 relations to a suspension of Newstart allowance in November 2002. Now that related to my refusal to attend a medical examination by Health Services Australia Ltd. I pointed out to – well, I was – firstly, I wasn't contacted by Centrelink to attend that examination, I was contacted direct by Health Services Australia Ltd and I told them that, you know, I – they had previously issued a false medical report that has resulted in the termination of my employment so I didn't want to have anything to do with them.
There was a number of letters that went back and forth between myself and Health Services Australia Ltd over that and eventually Health Services Australia Ltd notified Centrelink that I had not been in contact with them and, on that basis, Centrelink cancelled Newstart allowance. So that is the basis of that matter. V2004/002 there, that relates to an earlier application for a Disability Support Pension. At the time I made the application, this was in2001, I was being harassed by Centrelink and they were trying to arrange a medical examination for me in relation to – no, I think it was actually, technically, "sickness allowance" at that time, or it may have been Newstart.
But they were trying arrange a medical examination for me in relation to either sickness allowance or Newstart allowance and I, at that time, had just lodged an application for a Disability Support Pension and I – there was an appointment made with Health Services Australia Ltd and I rang up and cancelled that appointment and I told them that it wasn't convenient for me to go there; I was still waiting to see a specialist and I wrote to Centrelink and explained the situation to them as well.
However, at that appointment that I cancelled, Health Services Australia Ltd went ahead and prepared a report without even seeing me and while I was, as I say I was making arrangements to see a specialist to have an MRI scan on my spine and I was preparing for a medical examination in relation to this DSP application, I received notification that the claim had been rejected because of this medical report by this doctor that I had never seen, and I don't believe the doctor had my permission to have any access to any medical records without me. So that is the second matter.
And the third matter is a later claim for a Disability Support Pension and the matter relates to a medical report by Health Services Australia Ltd. I was put into a position where I basically had to deal with this contractor because Centrelink refused to arrange a medical examination by anybody else and I believe that doctor at Health Services Australia Ltd – the report he produced gave a false opinion on the severity of my injuries. So that is just a basic outline of the three matters that are before the Tribunal today. (trans p7)
Mr Perdon agreed with Mr Romanov-Hughes' summary of the events and the decisions made.
DOCUMENTARY EVIDENCE
Medical Certificates
33. All three files contain numerous certificates from treating doctors attesting to Mr Romanov-Hughes' incapacity for work because of ill-health. However, it was not until 20 August 2002 that Dr Salib (the treating general practitioner) certified Mr Romanov-Hughes' medical condition to be permanent; that is unlikely to permit work for more than two years.
34. Dr Sutcliffe, the treating occupational health physician, provided 6 reports and 10 certificates for incapacity for work. The certificates were provided between 18 August 1998 and 27 October 1999, and relate to temporary illness preventing work. These certificates provided diagnoses of left ankle pain, mid back/lower back musculoskeletal strain. At the time of the reports left ankle surgery was pending and temporary incapacity was predicted.
35. Dr Sutcliffe provided Mr Romanov-Hughes with an unaddressed report dated 20 February 2004 (T102). In this report she confirmed she had been treating the applicant since 26 June 1998, when he first attended her practice, complaining of back pain. The back pain first occurred while he was performing alternate duties (photocopying) while recovering from a left ankle injury. Dr Sutcliffe was aware of the left ankle injury, which had required surgery, but does not date this injury. Dr Sutcliffe ordered an MRI of the lumbar spine and reported that this showed …small disc derangement was noted, and facet joint abnormalities displayed (T102). Facet joint injections were performed at the Royal Melbourne Hospital but were of no benefit. As at February 2004, Mr Romanov-Hughes reported "…persisting back pain, limiting activity, restricting movement and resulting in sleep disruption" (T102).
36. Dr Sutcliffe's examination of Mr Romanov-Hughes in February 2004 showed "…limitation of movement of the back, but no signs of weakness or nerve root irritation" (T102). An MRI on 13 October 2003 was reported as normal except for mild desiccation of the L5/S1 disc (T102). This was compared with the MRI report of 2001, which showed degenerative L5/S1 disc changes with an annular disruption posteriorly.
37. Dr Sutcliffe concluded that Mr Romanov-Hughes' back pain was related to his work duties of 1998 and had persisted thereafter. A pain clinic management program and a physical program were recommended. Dr Sutcliffe regarded Mr Romanov-Hughes' capacity for employment to be limited as he was unable to work or stand for long periods of time. Dr Sutcliffe did not provide an impairment rating.
38. Dr Sutcliffe's report dated 28 June 2005 (Exhibit A2) was provided after the SSAT's decision of 13 December 2004. However, the Tribunal admitted it into evidence. This report does not add to the report dated 20 February 2004; and in particular, there is no report of any examination finding. However, Dr Sutcliffe has provided an impairment assessment rating of TEN points for the left ankle under Table 4 and TWENTY points for lumbar spine under Table 5.2. The basis for Dr Sutcliffe’s impairment rating is not clear.
Dr Jensen
39. Dr Jensen is a specialist in musculoskeletal medicine. He provided two reports dated 6 September 2001 and 29 March 2005 (Exhibit A1). He first saw Mr Romanov-Hughes on 6 September 2001 on referral from Dr Sutcliffe. Dr Jensen obtained a history of the left ankle and back injury (in 1994), when the applicant attempted to jump across a trench and fell. Pain in the back and ankle had persisted since that injury despite treatment. Dr Jensen noted that in the Oswestry Pain Disability Questionnaire, Mr Romanov-Hughes had rated 72 per cent, which placed him in the "cripple" category. Dr Jensen's examination of Mr Romanov-Hughes revealed a full range of movement in the left ankle despite some swelling and moderate restriction of lumbar spinal movement. There was no evidence of nerve root compression.
40. While acknowledging the MRI findings in relation to the L5/S1 disc lesion, Dr Jensen believed that Mr Romanov-Hughes' incapacity was contributing to his back pain. A referral to a pain management clinic was advised. Dr Jensen stated that there was a continuing work capacity in terms of sedentary duties.
41. Dr Jensen provided Mr Romanov-Hughes with a further report dated 29 March 2005 (Exhibit A1), without seeing the applicant. The report said:
…
Dear Mr Romanov-Hughes
I note your correspondence dated 7th March, 2005. I will attempt to address the issues you raised.
In terms of an assessment based on the Tables contained in Schedule 1B of the Social Security Act 1991, a copy of which you have forwarded with your correspondence, I would assess your loss of function as follows based on our last consultation on 10th September, 2004, and the Tables you suggested I should use.
Table 4. Function of Lower Limbs.
I would assess you as having a 10% loss of function based on the criteria outlined.
Table 5.2 Thoracolumbar Sacral Spinal Dysfunction.
I assess you as having a 10% impairment based on the criteria outlined.
Table 20 Miscellaneous (which includes pain).
I assess you as having a 15% impairment based on the criteria outlined.
In relation to the Oswestry Pain Disability questionnaire, I no longer use this questionnaire, as it is designed for use in back pain. As I see patients with problems other than back pain, I now prefer to use a more generic musculoskeletal disability questionnaire, the MOM‑40, which you completed at your last consultation with me on 10th September 2004. I have enclosed a copy of your completed MOM‑40 questionnaire for your records. Utilising this questionnaire, I would assess your perceived subjective physical disability as moderate, with an associated moderate degree of psychosocial distress.
I trust the above is of some assistance in helping you to sort out the relevant legal issues.
I have enclosed my standard accountant for undertaking an impairment assessment.
Yours faithfully
[sgd] Steven Jensen
M.B., B.S., F.A.F.M.M.
Enc.
Dr Jensen provided an impairment assessment based on these findings, totalling THIRTY‑FIVE points. The lower limb loss of function was assessed at TEN points, the thoraco lumbar spine at TEN points and under Table 20 (relating to chronic pain) FIFTEEN points. Dr Jensen's letter states that his assessment was based on "the Tables you suggested I should use" (Exhibit A1).
42. The T‑documents contain the reports of treating orthopaedic surgeons (in relation to the left ankle), general practitioners, a report from the Royal Melbourne Hospital (regarding the results of the facet joint injections) and similar reports, none of which add or detract from the medical reports detailed above and in the introduction to this decision.
43. Dr T. Paulsen, senior medical advisor of HSA, provided a report dated 6 June 2005 based on her review of the medical reports. As she had now seen Mr Romanov-Hughes herself, the respondent did not tender the report or call Dr Paulsen as a witness.
LEGISLATION
44. With respect to NSA the legislation provides that:
593(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that:
(i)throughout the period the person is unemployed; or
(ii)the person is a CDEP Scheme participant in respect of the period; and
Note: For CDEP Scheme participant see section 1188B.
(b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:
(i)satisfies the activity test; or
(ii)is not required to satisfy the activity test; and601(1)
…
603C(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:
(a)throughout the period the person is incapacitated for work because of sickness or an accident; and
(b)the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and
(c)the incapacity is, or is likely to be, of a temporary nature; and
(d)if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and
(e)the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:
(i)the medical practitioner’s diagnosis; and
(ii)the medical practitioner’s prognosis; and
(iii)that the person is incapacitated for work; and
(iv)the period for which the person is incapacitated for work; and
(f)the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.
603C(2) In this section:
work, in relation to a person, means work (whether full-time, part-time, permanent or casual) that:
(a)is of a kind that the person could, in the Secretary’s opinion, be reasonably expected to do; and
(b)is for at least 8 hours per week at award wages or above.
45. Section 80(1) of the Social Security (Administration) Act 1999, as far as it is relevant, provides:
80(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
46. In relation to claims for DSP the Act provides that:
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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
APPICANT'S SUBMISSIONS
47. Mr Romanov-Hughes filed written submissions on 19 December 2005 in which he submitted that he has been permanently disabled since 16 November 2000 "following the collapse" of the L5/S1 disc of his spine. He referred to the MRI reports dated 22 September 1999 and 18 May 2001; and contended that there has been deterioration in his condition. Mr Romanov-Hughes relied on Dr Sutcliffe and Dr Jensen's 2005 impairment assessments. Mr Romanov-Hughes accepted that his numerous other medical conditions would not individually result in incapacity, but when taken together contributed to his incapacity.
48. Mr Romanov-Hughes stated that his bi‑lateral hallux rigidis operations were "deemed" advisable due to his injured left ankle. He last worked in November 2000 and submitted that from 20 June 1994 until 16 November 2000, he only worked full‑time for very short periods and had participated in several part‑time graduated return‑to‑work programs.
Application V 2003/824 (with respect to NSA)
49. Mr Romanov-Hughes submitted that NSA eligibility does not require an applicant to undergo any medical examination. He was asked to do so by Centrelink but refused to attend HSA as an earlier assessment by Dr Mutton had resulted in termination of his employment by the Department of Defence on 13 February 2001. Mr Romanov-Hughes described Dr Mutton's report as fraudulent as it "falsified" facts about his employment and medical conditions. The applicant contended that he notified Centrelink of his concerns regarding HSA, but Centrelink had failed to arrange a suitable alternative medical examination. As a result, Centrelink did not have sufficient current medical information to justify the cancellation of his NSA. Mr Romanov-Hughes submitted that the SSAT found him ineligible for NSA as he had been permanently "incapacitated" since November 2000.
Application V2004/2 (with respect to DSP)
50. Mr Romanov-Hughes submitted that Centrelink failed to arrange a medical examination in relation to this claim, despite his refusal to be examined by a HSA doctor. Centrelink did not address his concerns regarding HSA nor did Centrelink arrange examination by any other doctor.
51. Mr Romanov-Hughes submitted that his spinal condition was fully diagnosed, treated and stabilised when he applied for the DSP and he relied on the findings of the two MRI scans to support his contentions. He also contended that there is no treatment available for his spinal condition, although he has been taking Celebrex since 2000 and underwent physiotherapy regularly in early 2001.
52. Mr Romanov-Hughes contended that the SSAT in its decision on 2 December 2003 "falsified the medical evidence and issued a fraudulent determination based on their lies".
Application V2005/26 (with respect to DSP)
53. Mr Romanov-Hughes submitted that the report from Dr N. Rose of HSA, dated 12 December 2003 (T97), was fraudulent in that it underrated the extent of his spinal injuries, as evidenced by Dr Rose's comments that the MRI showed only minimal degenerative changes; when, in Mr Romanov-Hughes' opinion, the MRIs showed a progressive degenerative deterioration of a more severe nature.
54. Mr Romanov-Hughes submitted that Centrelink had acted improperly by referring him to HSA, given his past complaints regarding its services.
55. Mr Romanov-Hughes submitted that the Impairment Tables do not provide sufficient information to allow an accurate assessment to be made. He also submitted that his treating doctor, since November 2000, had provided certificates that he was unable to work for more than eight hours per week.
56. Mr Romanov-Hughes contended that Dr Paulsen's report and Ms Hall‑Wiggins' evidence were fraudulent as they were based on earlier HSA reports. Mr Romanov-Hughes submitted that the time he spends watching television, using computers and visiting libraries is not evidence of work capacity, as concluded by Ms Hall‑Wiggins, but is part of his pain management strategy.
RESPONDENT'S SUBMISSIONS
Application V2003/824 (with respect to NSA)
57. Mr Perdon submitted that as Mr Romanov-Hughes' medical conditions, particularly those relating to his left ankle and his lumbar spine, were permanent and not temporary, as required by s 603C(1)(c) of the Act, and as Mr Romanov-Hughes acknowledged, he did not satisfy the requirements for an activity statement exemption. Mr Romanov-Hughes had stated on several occasions that he had not looked for work since November 2000.
Application V2004/2 (with respect to DSP)
58. Mr Perdon submitted that on the occasion of Mr Romanov-Hughes' first application for DSP his medical conditions had not yet been documented, diagnosed, treated and stabilised. In fact, Mr Romanov-Hughes did not commence his pain management course until six to seven months after lodging his DSP application, on 19 April 2001. As the conditions had not been fully treated and stabilised, no impairment rating was attracted. Mr Romanov-Hughes did not attend HSA appointments for assessments on several grounds, including that he was still awaiting specialist treatment.
Application V2005/26 with respect to DSP claim lodged on 30 September 2003)
59. Mr Perdon submitted that Mr Romanov-Hughes' impairment rating of TEN points for his lumbar spine, which was assessed by Dr Rose on 12 December 2003, was correct. The other claimed conditions had been rated at NIL points. In her report dated 20 February 2004 (T102), Dr Sutcliffe did not make an impairment assessment. Mr Perdon submitted there was nothing in her report to indicate a greater than TEN point impairment under Table 5.
60. Dr Sutcliffe and Dr Jensen provided further reports (Exhibit A1 and Exhibit A2), both of which post-date the claim for DSP and the SSAT decision. In her report Dr Sutcliffe had assessed the impairment rating for the back at TWENTY points and for the left ankle at TEN POINTS. No examination findings were provided on which such an assessment could be based. Dr Jensen had allotted TEN impairment points for Mr Romanov-Hughes' spinal condition under Table 5 and also FIFTEEN points for chronic back pain under Table 20. Mr Perdon submitted that only one of these Tables should be used, i.e. either the specific Table 5.2 or the general Table 20. Mr Perdon noted that Dr Sutcliffe spinal movement impairment assessment was twice the loss of range of movement reported by any other medical practitioner.
61. Based on the evidence, Mr Perdon submitted that Mr Romanov-Hughes was capable of suitable sedentary work on a full‑time basis.
TRIBUNAL'S DELIBERATIONS
Cancellation of the NSA
62. Having been in receipt of sickness benefits, Mr Romanov-Hughes claimed NSA on an unknown date. The NSA payments were suspended when Mr Romanov-Hughes failed to lodge an Application for Payment form, or provide the necessary medical certification in support of his exemption from the activity test. Medical certificates were provided, but for periods of two weeks to six months, i.e. they certified temporary illness although the certificates also stated that the prognosis was uncertain. In order to resolve the conflict regarding the permanent or the temporary nature of the conditions, Centrelink sought a medical opinion from HSA and a functional capacity assessment. Mr Romanov-Hughes refused to undertake these assessments. As a result his NSA was cancelled on 3 January 2003. The primary decision‑maker spoke with Mr Romanov-Hughes' general practitioner on 19 February 2003 (T96) to clarify the applicant's medical condition. The Doctor advised that Mr Romanov-Hughes' condition was ongoing and long term; and therefore, suited to DSP payments. Centrelink advised Mr Romanov-Hughes to that effect on 9 March 2003 (T100).
63. Mr Romanov-Hughes was ineligible for exemption from the activity test as his condition was permanent, as he has always insisted. Mr Romanov-Hughes stated that he had not looked for work since 16 November 2000. Centrelink and Mr Romanov-Hughes were possibly misled by the various treating doctors' certificates in that they certified Mr Romanov-Hughes unfit for more than eight hours work per week for variable periods, but never for longer than six months. Mr Romanov-Hughes' refusal to be assessed by HSA doctors further delayed and impacted generally on the status of his NSA and its eventual cancellation. The Tribunal confirms the decision regarding Mr Romanov-Hughes' NSA. Mr Romanov-Hughes was not eligible for exemption from the activity test as his medical condition was in fact permanent and he had no intention of seeking work in order to satisfy the activity test.
Claim for DSP dated 19 April 2001
64. Mr Romanov-Hughes applied for DSP on 19 April 2001, some two years before his NSA was cancelled. His claim was rejected as investigations of his medical conditions were ongoing and the medical certificates indicated that his disabilities were short term, as did the assessment of an HSA doctor (T16). This decision was affirmed by the SSAT on 2 December 2003. This Tribunal affirms that decision.
Claim for DSP dated 13 September 2003
65. Mr Romanov-Hughes again applied for DSP on 13 September 2003. The Tribunal concludes he did so because the investigation of his medical conditions was then completed, his treatment in terms of pain management was of a two-year duration, Centrelink had advised him to apply for DSP on 19 March 2003, and the SSAT had affirmed the decision regarding the NSA cancellation on 27 June 2003. This claim was rejected on the basis of Dr Rose’s report, which assigned TEN impairment points for Mr Romanov-Hughes' spinal condition and NIL points for his other conditions (T97). Dr Rose found the applicant fit for full‑time usual duties. As a result s 94(1)(b) of the Act was not satisfied.
66. Dr Rose's impairment assessment was the only formal assessment in existence until the 2005 reports of Dr Sutcliffe (Exhibit A1) and Dr Jensen (Exhibit A2). These reports were obviously not available to the primary decision‑maker or to the SSAT. This Tribunal has taken these assessments into evidence, but is unable to give them much weight. Dr Sutcliffe has not provided any current examination findings on which she could have based her rating of THIRTY impairment points. Dr Jensen has not provided any examination findings either. In addition he has assessed Mr Romanov-Hughes under a general Table for chronic pain and under the specific Table for the left foot, ankle and the lumbar spine conditions. Dr Jensen has based his impairment ratings on a questionnaire he had administered to Mr Romanov-Hughes in late 2004. This was termed the Musculoskeletal Questionnaire. The questionnaire does not contain any evidence of a physical examination nor does it report a disability score. Dr Jensen (Exhibit A2) has stated that he has used the Tables as suggested by Mr Romanov-Hughes. However, it would appear that he has not read the Introduction to the Impairment Tables. The Tribunal has also had the benefit of seeing Mr Romanov-Hughes throughout the hearing; has observed his level of activity and his ability to remain seated for more than one hour without the need to alter his position. Mr Romanov-Hughes advised the Tribunal, that he can sometime sit at his home computer for several hours. In addition, Mr Romanov-Hughes walks for one to two hours per day and rides a bicycle regularly, although not uphill.
67. The Tribunal finds the assessment of the functional capacity, as reported by Dr Rose and Ms Hall‑Wiggins, (both TEN points for the lumbar spine) to be accurate.
68. The Tribunal does not doubt that Mr Romanov-Hughes has chronic back and left ankle pain, but what has to be assessed is the functional capacity of an individual in relation to work (Re Mifsud and Secretary, Department of Family and Community Services [2000] AATA 737).
DECISION
69. The Tribunal affirms all three decisions under review.
I certify that the sixty‑nine [69] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 29 July 2005
Date of Decision: 22 February 2006
Advocate for the applicant: Self-represented
Advocate for the respondent: Mr D. Perdon, Centrelink
0
1
0