Rotundo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 484
•11 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 484
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0292
GENERAL ADMINISTRATIVE DIVISION ) Re ANTONIO ROTUNDO Applicant
And
SECRETARY, DEPARTMENT OF
FAMILIES, HOUSING, COMMUNITY
SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr K Breen, Member Date11 June 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
...................[Sgd]......................
Dr K Breen
Member
SOCIAL SECURITY – disability support pension - supraspinatus tear right shoulder - spondylosis/ disc degeneration of the thoracic and lumbar spines - coronary heart disease – whether applicant has a continuing inability to work
Social Security Act 1991
Social Security (Administration) Act 1999
Secretary, Department of Family and Community Services v Michael [2001] FCA 1811
Latchford and Secretary, Department of Employment and Workplace Relations [2007] AATA 1459,
REASONS FOR DECISION
Dr K Breen, Member 1. Mr Antonio Rotundo, now 61 years old, lodged a claim with Centrelink for Disability Support Pension (DSP) on 28 August 2006. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs. The claim was accompanied by a treating doctor’s report (TDR) dated 25 August 2006 from his general practitioner, Dr Matthew Soccio. The TDR identified Mr Rotundo’s conditions as supraspinatus (rotator cuff) tear right shoulder, spondylosis/disc degeneration of the thoracic and lumbar spines and coronary heart disease. The claim was rejected by a Centrelink officer on 19 September 2006. The rejection was based on an assessment by a job capacity assessor who had concluded that the rotator cuff injury was temporary and that the two other medical conditions, while permanent, attracted only five impairment points each under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act), which was insufficient to qualify for DSP under Section 94 of the Act.
2. Mr Rotundo requested a review of that decision. On 9 October 2006 he was informed in a letter from the original officer that because he had a capacity to work for more than 15 hours per week within the next two years, the decision would not be altered. As requested, the officer referred the matter to an Authorised Review Officer (ARO), who affirmed the decision on 14 November 2006. In affirming the decision not to grant DSP, the ARO found that Mr Rotundo’s shoulder condition could not be assigned an impairment rating as the condition had not been fully treated and stabilised. Furthermore, the ARO found that his other two conditions (the back condition and the heart condition) were permanent and attracted a total of 10 impairment points. Thus Mr Rotundo did not satisfy the minimum requirement of 20 impairment points under Section 94 of the Act.
3. Mr Rotundo then sought review of the Centrelink decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the Centrelink decision, although on different grounds. The SSAT agreed with Centrelink that the shoulder problem was not yet fully treated and stabilised. The SSAT found that Mr Rotundo’s heart condition attracted 20 impairment points and that his back condition attracted ten points, giving him a total of 30 impairment points. However, the SSAT found he did not satisfy the work capacity requirements of Section 94(1)(c) of the Act and thus was not eligible for DSP.
4. Mr Rotundo now seeks review of the SSAT decision by this Tribunal on the grounds that as he is in receipt of several medical reports which describe his disabilities, he feels that denial of DSP is unfair.
5. The respondent contends, in brief, that I should accept the report of a Job Capacity Assessor dated 12 December 2007, which stated that Mr Rotundo, as at the time of his claim, had a current capacity for work of 15 - 22 hours per week, as conclusive of the issue.
The Issues
6. The issues before me therefore are:
·From what permanent medical conditions does Mr Saunders suffer?
·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?
7. The relevant assessment period is not in issue but I note that as Mr Rotundo had contacted Centrelink about his intention to claim on 24 August 2006, four days before he lodged his claim, the respondent accepts that the relevant period is from 24 August 2006 to 23 November 2006.
The Relevant Legislation
8. The relevant legislation includes s94 of the Act and the Impairment Tables contained in Schedule 1B of the Act. I also had regard to Schedule 2, sub‑clause 4 of the Social Security (Administration) Act 1999 (the Administration Act).
9. Section 94 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;
10. The Introduction to the Impairment Tables in Schedule 1B of the Act provides as follows:
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.
11. The meaning of continuing inability to work is set out in s 94(2) of the Act. It provides:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
12. Section 94 (3) of the Act provides:
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
The Relevant Background
13. Mr Rotundo is now 61 years old. He migrated to Australia from Italy, on his own at the age of 19. He is married and has three children. In Italy he left school after Grade 5 and worked as a labourer but at the age of 15 went back to study in a technical school, learning building and design for three and a half years.
14. Mr Rotundo ran his own business in Australia until around 2005, initially undertaking heavy plastering work, but over the last ten years doing lighter work, fitting ornamental mouldings. For his business he depended heavily on his wife, who was competent in English and had experience as a secretary and book keeper. As he has never learned to write in English, he depended on her to create written quotes and invoices for his business for which he provided the information orally. (His spoken English before me was noted to be good).
15. In 1975 Mr Rotundo fell from a scaffold and seriously injured his back. He was off work for two years. On returning to work he tried factory work initially but was not earning enough money to support his family and pay off his mortgage. He then slowly moved back into self-employment doing plastering, concreting, tiling and bricklaying. His back gave him a lot of trouble but he managed to keep the business going by employing others to do the heavier tasks.
16. In 2005 Mr Rotundo experienced an injury to his right shoulder which did not settle on its own and he eventually underwent two unsuccessful operations on that shoulder in 2006.
17. Presently Mr Rotundo is particularly troubled by his shoulder and his back. He has trouble sleeping because of pain and takes up to six Digesic tablets each night. He is very reluctant to go through a third operation on his right shoulder as the surgeon cannot guarantee a good outcome. He stated that he has back pain all the time although its severity fluctuates.
18. Mr Rotundo spends his days mostly at home and at times does some walking. He goes to meet friends but less often than in the past. A friend occasionally takes him fishing where he can change position as needed between sitting and standing. He can drive a car but needs a support for his back and he needs to take frequent breaks.
19. Mr Rotundo was recently told by Dr Soccio that his back has deteriorated and he is now taking tablets for osteoporosis.
From what, if any, Permanent Medical Conditions does Mr rotundo Suffer? Spondylosis/disc degeneration of the thoracic and lumbar spines
20. The medical evidence is clear that Mr Rotundo suffers from a longstanding back problem. Dr Soccio’s records reveal a diagnosis of a compression fracture of vertebra in 2003. In his TDR he recorded that current symptoms included constant lower back pain and thoracic pain and associated R sciatica. He advised that he felt that this was likely to impact on Mr Rotundo’s ability to function for more than 24 months and that in the next two years the back condition was likely to deteriorate. Dr Soccio also provided a report on x-rays taken of Mr Rotundo’s thoracic and lumbar spine on June 10 2003, which noted multiple compressions seen in the mid to lower thoracic spine and narrowed L5/S1 disc space. Dr S Turnbull provided a report, based on his detailed assessment on 29 October 2007, which concludes in regard to the back condition:
The patient has radiological evidence of degenerative lumbar spine disease and has reduced range of movement and chronic back pain. I consider the condition to be fully diagnosed, treated and stabilised as at 2006.
coronary heart disease
21. Dr Soccio’s TDR described Mr Rotundo as undergoing two angioplasties in August 2003 and the subsequent use of regular medications (Astrix, Inderal and Lipitor). In describing the impact of this condition on Mr Rotundo’s ability to function, he wrote minor impairment of ability to perform ADL’s (i.e. activities of daily living). Dr Turnbull confirmed this history and noted that he:
continues to suffer intermittent angina, shortness of breath and reduced exercise tolerance and added that: I consider the condition to be fully diagnosed, treated and stabilised as at 2006.
22. I am therefore satisfied on the available evidence as to the diagnosis of both the back and the heart conditions. I am also satisfied that at the relevant time (August 2006) both conditions had been fully diagnosed, treated and stabilised.
right shoulder supraspinatus tear
23. While there is clear evidence to support this diagnosis, a different issue arises in regard to whether this condition was fully diagnosed, treated and stabilised as at August 2006. I will return to this second issue shortly. The evidence supporting this diagnosis includes the reports of Dr Soccio and of Dr Turnbull and especially the report of orthopaedic surgeon, Mr Robert Howells, who has operated twice on Mr Rotundo’s right shoulder.
24. Mr Howells wrote a two page report for the Tribunal, dated 29 May 2007. He noted that he first saw Mr Rotundo in February 2006 and that:
he appeared clinically and radiologically to have a tear of the supraspinatus tendon of the right shoulder together with subacromial impingement and on x-ray evidence of some acromioclavicular joint degeneration and a very large os acromiale.
Mr Howells undertook quite complex surgery including bone grafting to try to repair this situation on 29 March 2006. Three months later, as Mr Rotundo’s reported the return of increasing pain in the right shoulder and investigations showed that the bone had not united, Mr Howells undertook further complex surgery on 25 July 2006. After this operation, Mr Howells reported that Mr Rotundo’s progress:
has been slow and far from complete … whilst we have adopted a conservative path for management of this condition he is aware that further surgery could be undertaken.
Thus I am satisfied as to the diagnosis of the right shoulder condition.
25. I now turn to the second issue of whether the shoulder injury was permanent at the relevant time. Noting that Mr Rotundo reported to Mr Howells that his shoulder injury had occurred in September 2005, that he first saw the surgeon in February 2006, that his first operation on the right shoulder was in late March 2006 and that a second operation was required in July 2006, just one month before Mr Rotundo lodged his claim for DSP, I find it difficult to conclude that this injury had, at the relevant time, been fully treated and stabilised. If I were in any doubt in this regard, Dr Soccio in his TDR (written on 25 August 2006) wrote that his future/planned treatment was physio, mobilisation, rehabilitation... and that while he had severely impaired movement of R shoulder he was likely to somewhat improve within the next two years.
26. Dr Turnbull, although asked via a specific question, failed to comment on this aspect and instead concluded that as at 29 October 2007, he considered the right shoulder to have been fully diagnosed, treated and stabilised. However, even in the absence of a specific comment from Dr Turnbull, I am satisfied from the above evidence of Dr Soccio and Mr Howells that at the relevant time, it would not have been correct to describe this injury as permanent. It follows that I also find that the shoulder condition cannot be considered for an impairment rating under S 94 (1) and paragraph 4 of the Introduction to the Impairment Tables in Schedule 1B of the Act.
What Impairment Ratings Do Mr Rotundo’s Conditions Attract?
coronary heart disease condition
27. I had before me two medical assessments of the impairment caused by this condition. Dr Soccio’s TDR listed this condition under the heading of other medical conditions which are generally well managed and cause minimal or limited impact on ability to function. Dr Turnbull’s more detailed assessment (which I observe in passing clearly fulfils the legal requirement laid down in paragraph 4 of the Introduction to the Impairment Tables; viz A rating is only to be assigned after a comprehensive history and examination) identified that he
continues to suffer intermittent angina, shortness of breath and reduced exercise tolerance and went onto find as follows: using Table 1, Loss of Cardiovascular and/or Respiratory Function, Exercise Tolerance – I consider that the patient is capable of 3-4 mets at average walking pace – this attracts 30 points.
28. I prefer and adopt the assessment of Dr Turnbull on the grounds that he has clearly directed his mind fully to this question. I do not imply any criticism of Dr Soccio’s report, as it should be clear to any one who compares the questions asked in the TDR format and the questions posed to Dr Turnbull, that Dr Soccio has not been asked to turn his mind to the Impairment Tables.
spondylosis/ disc degeneration of the thoracic and lumbar spines
29. Dr Soccio’s TDR is more helpful in regard to the impact of this condition on Mr Rotundo’s ability to function. In response to a question in the form directed at how this condition currently affects the patient’s ability to function, he wrote considerable impairment of all back movements. Impaired concentration.
30. Dr Turnbull measured the range of movement of Mr Rotundo’s back and wrote that:
he has chronic degenerative back pain with a decreased range of movement. He went onto state Using Table 5.2, Thoracolumbar spine – I find that Mr Rotundo has a loss of one quarter of the normal range of movement as well as back pain and referred pain with many physical activities and can stand for a maximum of approximately 30 minutes – this therefore attracts a rating of 10 points.
31. Although expressed differently, I find there is little disagreement between the two medical reports and I accept that the awarding of 10 points by Dr Turnbull accurately assessed this impairment at the relevant time.
32. As I have found that at August 2006, Mr Rotundo’s medical conditions attracted more than 20 impairment points, thereby fulfilling the requirement of s 94(1)(b) of the Act, I now turn to the question of his continuing inability to work.
What is the impact of his medical conditions on his capacity to work?
33. The respondent contended, in his Statement of Facts and Contentions, that in the light of the Full Federal Court decision in Secretary, Department of Family and Community Services v Michael [2001] FCA 1811 and the AAT decision of Latchford and Secretary, Department of Employment and Workplace Relations [2007] AATA 1459, only permanent, rateable conditions can be taken into account for deciding the continuing inability to work issue. I have given this issue careful attention and I accept the respondent’s contention.
34. In the Statement of Facts and Contentions, the respondent states that Mr Rotundo’s right shoulder pain…can be regarded as permanent...and attract impairment ratings. However, counsel for the respondent argued before me that at the relevant time, the shoulder condition was regarded as temporary. As I have already found in agreement with the latter view and given my reasons above, I do not need to do any more other than to note this discrepancy.
35. The evidence in regard to Mr Rotundo’s capacity to work consisted of a face- to-face assessment by a Job Capacity Assessor (JCA), Ms Melissa Lehmann, made on 11 September 2006, a file assessment made by another Assessor, Dr Brooklyn Storme on 12 December 2007 (Dr Storme also gave oral evidence to the Tribunal) and the inferences I can draw from the medical reports before me and from Mr Rotundo’s own evidence in this regard.
36. Ms Lehmann’s report is clearly the most contemporaneous and was based, at the time on her understanding that the right shoulder problem was yet to be deemed a permanent condition. In addition, the report was made after meeting and interviewing Mr Rotundo. For these reasons, I am inclined to attach more weight to this report than any other evidence I was provided with. Ms Lehman identified Mr Rotundo’s barriers to employment as including chronic pain, limited skills/experience and literacy/numeracy. She opined that he had a current capacity for 15-22 hours per week of work such as light gardening, newspaper distribution and light caretaking work. Her report assumed that there would be gradual improvement in his right shoulder and she noted that at the time, the shoulder condition prevented him being referred for help in finding light work via the Disability Employment Network.
37. Dr Storme was asked by Centrelink to reassess Mr Rotundo and she did this on 12 December 2007. She wrote in her report and gave evidence at the hearing that she enlisted the advice of two colleagues who were qualified physiotherapists in preparing the report. Her report was based solely on the written reports available and she did not meet Mr Rotundo. Dr Storme also concluded that Mr Rotundo’s work capacity at the relevant time was 15-22 hours per week with and without intervention. She identified potential work positions as including quotation officer for plastering/rendering services, sales representative, consultant, plasterer/renderer supervisor.
38. Dr Turnbull was not called to give evidence and he was not asked and nor did he comment directly, in his detailed report, on Mr Rotundo’s work capacity, now or as at August 2006. However, on pages two and three of his report he obtained the following from Mr Rotundo.
He continues to suffer occasional chest pain and left arm pain... He can walk approximately 300-400 metres slowly and gets short of breath if he walks quickly. He has to stop every couple of hundred metres and gets chest pain on exercise… He states that he gets back pain every day. He has poor sleep due to chronic back pain and has difficulty if he tries to bend over, due to the pain. The pain is worse in the morning and there is radiation down the right leg… Later in his report (page 5) he stated that I consider his ischaemic heart disease may deteriorate in the next two years.
39. Instead Dr Turnbull was asked:
What is the impact of the conditions on his level of functioning, including his ability to undertake everyday tasks and the extent of any interference?
and he wrote:
The patient is presently able to stand for a maximum of half an hour and drive a car for approximately half an hour. He cannot use his right arm above shoulder height at all and he has significant ischaemic heart disease causing angina on exercise and reduced exercise tolerance. He can do sedentary tasks provided he is not required to sit for long periods of time. He copes with minor activities of daily living around the house.
40. Dr Storme gave oral evidence by telephone. Her professional qualifications are in psychology but she has had considerable experience in assessing capacity for work. She explained that 98 per cent of the job capacity assessments she makes are conducted face-to-face. She accepted my proposition that a face-to-face assessment may have altered her perception of Mr Rotundo. Although she stated that she was aware that Mr Rotundo had limited proficiency in English, she was unaware that in the conduct of his own business, he had depended entirely on his wife for written English.
41. Mr Rotundo was invited to give his views on the range of part-time work that had been recommended by the two JCA reports. He pointed out that it would be difficult to be a supervisor of other plasterers as supervisors are expected at times to demonstrate some techniques, involving physical work. He could not see himself doing work as a quotations officer in plastering because he could not write in English. He felt that his current continuing back and shoulder pain would limit his capacity to undertake even light gardening.
42. Dr Storme was asked about the work involved in the roles of car park attendant and light care taking. She accepted that some car park attendants were expected to share some physical work but noted that others only sit or stand in a booth. Mr Rotundo pointed out that caretakers might be expected to take on light physical work as well as make written reports from time to time.
Consideration of The Work Capacity Issue
43. There are some difficulties with the evidence before me. I am not helped by the fact that the second job capacity assessment by Dr Storme was done “on the papers” and not in a face to face interview. I am troubled by Dr Turnbull’s report which depicts a man in constant pain, with quite limited cardiac reserves (and the likelihood of the latter situation worsening) as at August 2006; being now in continuous, although fluctuating, pain from his shoulder condition and his back; as well as being seriously physically limited by the shoulder condition. It is disappointing that Dr Turnbull was not asked to comment on Mr Rotundo’s work capacity as at August 2006. In addition, I am concerned that neither JCA was able to take an appropriately global overview of the work capacity and/or retraining capacity of a man of around sixty years, with no written English, in continuous pain and with a heart and a back condition which, as at August 2006, were only likely to deteriorate in the next two years.
44. I also have to be alert to the likelihood that Mr Rotundo’s perception of himself and his work capacity would have been coloured in August 2006 by his struggle with his two unsuccessful shoulder operations and now in 2008 by the continuation of the shoulder problem and worsening of his back condition. However, I was impressed by his past record of returning to work after a serious back injury and by the sense of realism he conveyed to me about the work opportunities the JCAs were proposing.
45. My task however is to decide Mr Rotundo’s entitlement to DSP at the relevant time, according to the law. While it seems likely, based on the more recent assessment made by Dr Turnbull and the evidence of Mr Rotundo regarding further deterioration of his back condition, that he may now meet the requirements of the Act for DSP, I must put that likelihood to one side.
46. I also must put to one side the very difficult problem Mr Rotundo had and still has, with his right shoulder. As I have found above, this condition as at August 2006, was not yet permanent and thus could not be given an impairment rating. The law thus creates for Mr Rotundo and this Tribunal a somewhat artificial exercise in that I must decide the work capacity issue at the relevant time as if the shoulder injury did not then exist.
47. Although I have expressed above some reservations about the “global” assessment made of Mr Rotundo’s capacity to work, I nevertheless accept the report of Ms Lehmann as being a fair report based on an interview with Mr Rotundo and on her appreciation that his right shoulder condition had to be ignored for the task she was asked to do. I can find no compelling reason to reject her report and based on that report I find that at the relevant time, Mr Rotundo’s permanent medical conditions (viz the back and heart condition) and the impairment associated with them did not cause him to have a continuing inability to work as defined in Sections 94 (2) and (3) of the Act.
48. Accordingly I affirm the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K Breen, Member
Signed: ...............[Sanjiv Shah]........................
AssociateDate of Hearing 22 April 2008
Date of Decision 11 June 2008Solicitor for the Respondent Andrew Carson, Centrelink Legal Services
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