Shields and Secretary, Department of Social Services (Social services second review)
[2015] AATA 759
•28 September 2015
Shields and Secretary, Department of Social Services (Social services second review) [2015] AATA 759 (28 September 2015)
| Division | GENERAL DIVISION |
| File Number(s) | 2015/0127 |
| Re | Frederick Shields |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Deputy President F J Alpins |
| Date | 28 September 2015 |
| Place | Melbourne |
The decision under review is affirmed.
.......[sgd].................................................................
Deputy President F J Alpins
SOCIAL SECURITY – disability support pension – spinal condition – spinal canal stenosis – whether applicant’s impairment was of 20 points or more under the Impairment Tables during the relevant period – whether applicant’s condition permanent – whether applicant’s condition had been fully treated and fully stabilised
Legislation
Acts Interpretation Act 1901 (Cth)
Legislative Instruments Act 2003 (Cth) ss 5, 13
Social Security Act 1991 (Cth) ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth) ss 39, 41, 42, 179, Sch 2 cls 3, 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5, 6
Cases
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suntory (Aust) Pty Ltd v Federal Commissioner of Taxation (2009) 177 FCR 140
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
Deputy President F J Alpins
28 September 2015
INTRODUCTION
This application for review concerns the respondent’s decision dated 19 August 2014 to reject the claim of the applicant, Mr Frederick Shields, for a disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (the “Act”) in respect of a spinal condition.
Mr Shields’ claim was rejected on the basis that his impairment did not satisfy s 94(1)(b) of the Act, in that it did not meet the impairment rating of 20 points or more under the Impairment Tables, being the tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”).
The issue is whether Mr Shields was qualified for DSP at any relevant time. As he made his claim for DSP on 7 July 2014, it follows that the relevant period for assessment of his qualification for DSP is the period commencing on that day and ending 13 weeks thereafter, that is to say 7 July 2014 to 6 October 2014 (the “relevant period”) (ss 39(3), 41, 42 and cls 3(1) and 4(1) of Sch 2 to the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”)).
FACTS AND PROCEDURAL HISTORY
Mr Shields’ claim for DSP was made with respect to his diagnosed condition of spinal canal stenosis. In a medical certificate dated 19 September 2013, Dr Marnee Blundell, a general practitioner, certified that Mr Shields was unfit to work for three months (referring, apparently in error, to a period in 2014), given his acute back pain resulting from moderate to severe spinal canal stenosis revealed by a CT scan and also given “[d]egenerative changes”, the date of onset of his condition being 1 May 2013. She opined that his condition was likely to persist and that its functional symptoms included pain in his back, radiating to both legs, and decreased mobility. In the latter regard she said that he was unable to sit, stand or walk for long periods. She said that his prognosis was uncertain and that he was awaiting neurosurgical review.
In a medical certificate dated 28 October 2013, Dr Rachel Lee, also a general practitioner, certified that Mr Shields remained unfit to work for a three-month period commencing on that date. She diagnosed him as suffering from acute back pain, that condition being “temporary”. She described his symptoms as being “pain in back and radiating to both legs, unsteady gait, difficulty with usual tasks” and said his prognosis was uncertain. She noted that he had “[s]ignificant L4/5 disc bulge and pressure on canal”. Furthermore, she noted that he had seen neurosurgeons at St Vincent’s Hospital and that further investigation was required and that he would likely require “considerable” rehabilitation before returning to work.
On 4 February 2014, Mr Shields underwent spinal surgery, specifically a laminectomy.
Dr Lee provided a report dated 2 June 2014 in support of Mr Shields’ claim for DSP. She diagnosed him as suffering from spinal canal stenosis and back pain, referred to his laminectomy on 4 February 2014 and noted that that diagnosis was supported by neurosurgeons at St Vincent’s Hospital. With respect to his current treatment, she noted that he had commenced taking various pain medications on 5 July 2013 and had commenced physiotherapy on 4 September 2013.
With respect to planned treatment, she noted that he was to undergo neurosurgical review and a MRI scan in one month’s time. She said that his current symptoms included back pain, leg pain, difficulty “mobilizing/walking/endurance” and impaired sleep, with those symptoms and also his difficulty with domestic duties affecting his ability to function. She recorded his history as involving spinal cord compression due to bony abnormalities and also “[r]ecurrent symptoms postoperatively”.
She opined that she expected the impact of his condition on his ability to function to persist for three to twelve months and said that its effect on that ability over the next two years was uncertain, as “[a]waiting further surgical review to see if surgically managable [sic] issue” and that “[t]his will determine outcome”.
In his claim for DSP, which as I have said was made on 7 July 2014, Mr Shields stated that he was currently receiving treatment for his spinal canal stenosis, in the form of physiotherapy, medication and surgery. He stated that it was possible that he would have a further spinal operation later that year, the reason being “follow up surgery after past laminectomy and discectomy (possible)”.
A letter dated 9 July 2014 from the waiting list officer for neurosurgery at St Vincent’s Hospital indicated that Mr Shields was at that time placed on the hospital’s waiting list for a further L4-5 laminectomy/discectomy. He had been classified as a patient for whom admission within 90 days was desirable given his clinical condition. As I explain later in these reasons in recounting Mr Shields’ oral evidence, that followed an incident in April 2014.
On 22 July 2014, Mr Shields underwent a job capacity assessment by an occupational therapist, who found that his condition was “not considered fully treated and stable at this time” given that further surgery was to be undertaken.
In a medical certificate dated 2 August 2014, Dr Lee again opined that Mr Shields’ condition was temporary and noted that further surgery was planned. She stated that Mr Shields was on a waiting list for a further laminectomy, that he would need an extended period of rehabilitation following surgery and was likely to need additional support returning to work after the rehabilitation period. She opined that his prognosis was uncertain, as it depended upon the “surgical outcome and recovery”. I note that the Tribunal did not have before it a medical certificate from Dr Lee dated 20 November 2014 which was referred to in the SSAT’s reasons for its decision.
As I have indicated, on 19 August 2014, a Centrelink officer rejected Mr Shields’ claim for DSP.
As anticipated in the hospital’s correspondence, on or about 8 September 2014 Mr Shields underwent a further laminectomy. It follows that Mr Shields’ second spinal surgery was performed a few weeks before the conclusion of the relevant period, on 6 October 2014.
On 13 October 2014, a Centrelink authorised review officer affirmed the decision to reject Mr Shields’ claim, on the basis that, amongst other things, his condition was not accepted as being permanent as it has not been fully treated and stabilised and, therefore, no impairment rating had been assigned to his impairment under the Impairment Tables.
Consequently, Mr Shields appealed to the Social Security Appeals Tribunal (the “SSAT”), which affirmed the respondent’s decision. Mr Shields then made this application for review (see s 179 of the Administration Act).
Also in evidence before the Tribunal were a medical report and consultation notes which were prepared this year. In a report dated 2 March 2015, Dr Stephen Dang, who had been Mr Shields’ general practitioner since 2 February 2015, responded to questions posed by a representative of the respondent with respect to Mr Shields’ qualification for DSP, which he was asked to answer with respect to his spinal condition as it was at the date of the claim or within the ensuing 13 weeks. I note that Mr Shields gave evidence that Dr Dang had become his general practitioner because Dr Lee was on maternity leave.
Dr Dang said that Mr Shields’ spinal canal stenosis had been diagnosed on 6 January 2014. He said that Mr Shields’ condition was “irreversible unless surgically corrected” and that his symptoms would vary in intensity from minor to severe. In answer to a question as to whether Mr Shields’ impairment was likely to persist for more than two years, he opined that his impairment was “likely to be significantly alleviated after surgery” and that if the surgery was “regarded as successful then impairment is unlikely to persist for more than 2 years”.
In answer to questions as to the treatment that Mr Shields had received and undertaken, Dr Dang referred to Mr Shields’ laminectomy and stated that following surgery he had undergone rehabilitation, involving physiotherapy and pain medication and that the expected outcome from that rehabilitation “was to restore functional capacity to the lower spine”. Dr Dang opined that there were not any treatments reasonably available to Mr Shields that would be likely to lead to an improvement in his condition within two years of the relevant time, as he had already undergone the relevant treatment for this condition.
When asked to describe any changes in Mr Shields’ condition since 7 July 2014, Dr Dang said that “[d]ue to the moderate success of his first surgery, a secondary surgery was performed due to severe reoccurrence of his initial complaint on the 8/9/2014”.
I note that Dr Dang pointed out that he had “not treated [Mr Shields] or diagnosed his past medical conditions directly”; however, did not specify any primary material or other source upon which his conclusions were based. He suggested that a specialist report from the neurosurgeon who performed Mr Shields’ surgery and an occupational health physician “may provide greater clarity of [sic] his diagnosis and prognosis as well as impact/impairment”.
Mr Shields relied upon consultation notes dated 4 May 2015 prepared by Dr Omprakash Damodaran, a “spine fellow” at St Vincent’s Hospital, with respect to Mr Shields as a neurosurgery outpatient. I note that, on Mr Shields’ oral evidence, Dr Damodaran did not perform his surgery. Despite Dr Dang’s suggestion, there was no report before the Tribunal from a neurosurgeon who had performed Mr Shields’ surgery. Furthermore, I note that the Tribunal did not have before it a discharge summary from St Vincent’s Hospital following his admission in September 2014 which was referred to in the SSAT’s reasons.
In his notes, Dr Damodaran referred to Mr Shields’ two surgical procedures in 2014, which he described as L4/5 microdiscectomy for recurrent disc protusion. He said that:
“Since his second spinal surgery he still has ongoing back pain and leg pain which limits his mobility and daily activities. At best he is able to walk on a flat surface for 10 minutes before taking breaks. His daily activities are considerably restricted by pain. The pain is neuropathic in nature and he is on multiple analgesic agents for pain control. Given his pain is neuropathic in nature and there [sic] no compressive lesions, he does [sic?] need any further surgery at this stage. His long term improvement in pain and mobility is difficult to predict, as this is neuropathic pain.”
I have assumed that Dr Damodoran omitted a word in saying that “he does need any further surgery” – read in context of the balance of the sentence, he appears to have intended to say that Mr Shields does not need any further surgery at this stage. In any event, for the reasons that follow, nothing turns on that point.
Mr Shields gave oral evidence before the Tribunal and was cross-examined. He recounted that he had first raised the issue of his back pain with his general practitioner in May 2013, which had resulted in his spinal surgery in February 2014. He said that he had understood following that surgery that no further surgery would be required. He had believed that to be the case because after that first surgery, the surgeon or a doctor at the hospital had said words to that effect and had told him that the surgery had been successful. He therefore thought that his spinal condition was “over”, although he was told that he would have to “take things easy”, such as by avoiding carrying heavy shopping.
He said that his spinal surgery in February 2014 had reduced, but not eliminated, his back pain. However, following that surgery, he had experienced severe back pain bending forward while raking leaves in April 2014, despite believing that to be a safe activity in which to engage. He then returned to see his general practitioner and consequently had further tests at St Vincent’s Hospital, resulting in his second surgery in September 2014.
Mr Shields said that the surgeon had told him before that second surgery that he was “sorry to see him again” and told him after that surgery that he was “reluctant” to perform any further spinal surgery with respect to his condition. I note that Mr Shields said that the statement in the SSAT’s reasons for its decision that “[h]e is reluctant to try a third surgery” was erroneous to the extent that it suggested that such reluctance was his own, as it was in fact his surgeon’s reluctance, as expressed to him. I note that Mr Shields did not take issue with the subsequent statement in the SSAT’s reasons to the effect that he had undergone post-operative review at the hospital on 25 November 2014 and that at that stage he had a further review appointment scheduled on 21 April 2015.
With respect to the severity of his condition, Mr Shields said under cross-examination that before each surgery he was unable to leave his house while after each surgery he was able to do so.
Mr Shields said that he had seen a physiotherapist for weekly or fortnightly treatments following his first and second surgeries; he had had six consultations following his second surgery. He said at one point in his evidence that he had seen a physiotherapist on a fortnightly basis and at another point that he had seen a physiotherapist for about six weeks after his surgery.
He said that he had no pending appointments with doctors or neurosurgeons with respect to his spinal condition and that he had completed his physiotherapy treatment. He said that his condition is now managed by him following the physiotherapist’s regimen and taking pain medication prescribed by his general practitioner.
Mr Shields described his current symptoms of his condition. He said that he must sit down to peel potatoes; he uses a chair in the shower, as he is fearful of falling. He said that his pain tends to compel him to change his position in 10 to 20 minute cycles. He says that he tries to have three gentle walks per day and that if does not have walks his back “freezes up”. Others assist him with tasks like shopping.
LEGISLATION AND RELEVANT PRINCIPLES
Section 94 and the Determination
Section 94 of the Act relevantly provides:
“(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 term “Impairment Tables” referred to in s 94(1)(b) is defined to mean the tables determined by an instrument under s 26(1) of the Act (s 23 of the Act). As I have indicated, that instrument is the Determination, which contains tables relating to the assessment of work-related impairment for DSP and the rules that are to be complied with in applying them for the purposes of ss 26(1) and 26(3) of the Act respectively.
Relevantly, s 6 of the Determination provides:
“6 Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
...
Permanency of conditions
(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.
Fully diagnosed and fully treated
(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.
Fully stabilised
(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.
...
Reasonable treatment
(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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.”
The term “condition” is defined for the purposes of the Determination to mean a medical condition; the term “impairment” is defined to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” (s 3).
As the Determination is a form of delegated legislation, it is to be construed in accordance with general principles of statutory interpretation (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398, applying King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195 per Dixon J; Whittaker v Comcare (1998) 86 FCR 532 at 543).
Furthermore, as the Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (the “Instruments Act”) (see s 5), the Acts Interpretation Act 1901 (Cth) applies to the Determination as if it were an Act and as if each provision of the Determination were a section of an Act (s 13(1)(a)) of the Instruments Act). Also, expressions used in the Determination have the same meaning as in the Act (s 13(1)(b)). Moreover, the Determination is to be read and construed subject to the Act (s 13(1)(c)).
Section 6(5) of the Determination, by employing the expression “the following is to be considered”, enumerates matters to which regard must be had in determining whether a condition has been “fully diagnosed” and “fully treated” for the purposes of s 6(4)(a) and (b) respectively and is thus “permanent” on those accounts for the purposes of s 6(3)(a) of the Determination. Paragraphs (a) to (c) of s 6(5) raises questions of fact (see Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252 at [20] per Gyles J). In my view the terms “fully diagnosed” and “fully treated” nevertheless bear their ordinary meaning, having regard to their context and purpose. In other words, while the matters to be considered for the purposes of s 6(5) of the Determination are exhaustively enumerated, they are not definitive as to whether a condition has been fully diagnosed and fully treated for the purposes of s 6(4)(a) and (b).
The immediate context with respect to the statutory meaning of those terms (especially the use of the word “fully”) includes the fact that s 6(5)(c) confines the requisite focus to treatment planned in the ensuing period of 2 years, which accords with the prescribed time periods in ss 6(3)(b) and 6(6) of the Determination. (I note that, while s 6(5)(b) refers to both past treatment and rehabilitation, s 6(5)(c) refers only to continuing and planned treatment, and not to such rehabilitation.) The wider context includes the fact that those expressions bear upon whether the prerequisites to the assignment of an impairment rating for the purposes of s 6(3) of the Determination are met and thus bear upon qualification for DSP under s 94(1)(b) of the Act (see also s 5(2)(a) of the Determination).
By way of contradistinction, in my view s 6(6) is exhaustively definitive as to the circumstances in which a condition is “fully stabilised” for the purposes of s 6(4)(c) of the Determination, although I note that s 6(4)(c) in fact requires that a condition “has been” fully stabilised. Paragraphs (a) and (b) of s 6(6), like the paragraphs contained in s 6(5), raise questions of fact (see Harris at [20]). Consonantly, s 6(4), being the overarching provision which employs each of the expressions to which I have referred, is exhaustively definitive as to whether a condition is “permanent” for the purposes of s 6(3)(a) of the Determination.
Relevant period and evidence
It is implicit in the terms of s 39(3) of the Administration Act, which concerns circumstances where a person makes a claim for a social security payment and (only) subsequently becomes qualified for that payment within the period of 13 weeks thereafter, that a person may become qualified for DSP within 13 weeks of having made a claim for it (De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 at [12] per Mortimer J).
As much is also implicit from the following provisions of the Administration Act. A social security payment becomes payable to a person on the person’s start day, being the day worked out in accordance with Sch 2 to the Administration Act (ss 41, 42 of the Administration Act). That start day will, according to the general rule, be the day on which the claim is made (cl 3 of Sch 2), but in cases where the person becomes qualified within the period of 13 weeks after the day on which the claim is made, the claim is taken to be made on the first day on which the person is qualified (cl 4 of Sch 2) (see Harris at [1] per Gyles J).
It follows that the requirement in s 6(3) of the Determination that a person’s condition causing the relevant impairment be “permanent” “is a requirement which applies as at the date the claim for a pension is lodged, or a period up to 13 weeks thereafter” (De Vries at [12]). Accordingly, any “subsequent change in a [claimant’s] health is irrelevant to the questions which arise ... except insofar as it may cast light on the position at the relevant time” (Harris at [1]). Therefore, evidence which came into existence after the 13 week period following the making of a claim for DSP, such as medical reports prepared after that period, is relevant only to the extent that it bears upon a claimant’s qualification for DSP during that period (Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [31], [35]). The nature of the decision under review and the terms of the provisions to which I have referred which govern the temporal aspects of qualification for DSP evince a legislative intention the Tribunal’s consideration of such evidence be confined in such a manner (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [43], [99]).
While the language of ss 6(5) and 6(6) of the Determination has prospective aspects, particularly in the questions as to whether treatment “is planned” (s 6(5)), whether any further reasonable treatment “is unlikely” to result in significant functional improvement (s 6(6)(a)) and whether significant functional improvement “is not expected” to result (s 6(6)(b)(i)), those questions are to be answered according to the time of the claim and the ensuing 13 week period, not according to an analysis based on hindsight and direct reliance on evidence of treatment and its efficacy after the relevant period. Evidence which comes into existence after the relevant period is only relevant to the extent that it is probative with respect to the claimant’s circumstances during the relevant period (Re Fanning at [33]-[35]).
It is worthwhile to note that, while the permanency of a claimant’s condition is to be assessed for the period of 13 weeks commencing when the claim for DSP is made, that does not mean that the period preceding that period is irrelevant. As I have indicated, the questions to be addressed in determining whether a person’s condition is “permanent” for the purposes of s 6(3) of the Determination are whether that condition “has been” fully diagnosed, fully treated and fully stabilised for the purposes of s 6(4). Those expressions, by use of the present perfect tense, indicated by the expression “has been” preceding the relevant requirements, evince a legislative intention that a condition can properly be said to be “permanent” if each of the constituent elements of that provision has been satisfied at some indeterminate point of time in the past (cf Suntory (Aust) Pty Ltd v Federal Commissioner of Taxation (2009) 177 FCR 140 at [37] and Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 661), even if it precedes the relevant period.
That much is apparent from the fact that, in considering whether a condition is permanent as at the date the claim is made, it will necessarily be the case that the condition could only have been “fully diagnosed”, “fully treated” and “fully stabilized” at a time preceding the commencement of the relevant period.
CONSIDERATION
It was not in dispute that Mr Shields had an impairment for the purposes of s 94 of the Act and the Determination during the relevant period caused by his spinal canal stenosis, being the relevant condition from which he suffered for the purposes of the Determination.
Furthermore, with respect to the satisfaction of s 94(1)(b) of the Act, it was not in dispute that his condition had been “fully diagnosed by an appropriately qualified medical practitioner” during the relevant period for the purposes of s 6(4)(a) of the Determination.
It is convenient to set out the respondent’s contentions first. The respondent contended that Mr Shields’ condition was not “permanent” at any time during the relevant period for the purposes of s 6(3) of the Determination because had not been “fully treated” for the purposes of s 6(4)(b), nor had it been “fully stabilised” for the purposes of s 6(4)(c). In substance, the respondent contended that, as the requirements of s 6(3) are conjunctive, it followed that no impairment rating could be assigned to Mr Shields’ impairment.
The gist of the respondent’s case was that at the date of Mr Shields’ claim, he was continuing to have specialist consultations and to undergo rehabilitation following his surgery in February 2014 and was awaiting further surgery. Furthermore, the respondent submitted that Mr Shields’ condition had not been “fully stabilised” at any time during the relevant period as he could not be said to have undertaken reasonable treatment and s 6(6)(b) was not otherwise satisfied.
In the alternative, the respondent contended that Mr Shields’ impairment did not attract an impairment rating of 20 points or more under the Impairment Tables and so s 94(1)(b) of the Act was not satisfied in any event during the relevant period. The respondent therefore contended that it was unnecessary to consider the application of s 94(1)(c).
Mr Shields contended that during the relevant period his condition had been “fully treated” and “fully stabilised” for the purposes of s 6(4) of the Determination, including when he lodged his claim for DSP. He submitted that his condition was fully treated and fully stabilised once he underwent his first spinal surgery in February 2014 and completed his physiotherapy; alternatively that that was so once he underwent his second spinal surgery in September 2014 and completed his physiotherapy following that surgery.
With respect to his primary contention that his condition was fully treated and fully stabilised following his first surgery, Mr Shields submitted that, once he was discharged from hospital and had his physiotherapy sessions, there was “nothing more to be done” prior to lodging his claim in July 2014. In the alternative, he said that was so after his second surgery. He contended that the evidence showed that his condition was degenerative and irreversible.
I am not satisfied that Mr Shields’ spinal canal stenosis had been “fully treated” for the purposes of s 6(4) of the Determination as at the date when his claim was made, nor at any other time during the relevant period. It is true that, at the date of Mr Shields’ claim, made on 7 July 2014, he had undergone surgery and rehabilitation for his condition. However, the contents of Dr Lee’s report dated 2 June 2014, the letter from St Vincent’s Hospital dated 9 July 2014 and Dr Lee’s medical certificate dated 2 August 2014 establish that further surgery was envisaged at the time when Mr Shields’ claim was made, as Mr Shields acknowledged in his claim form in stating that it was “possible” that he would undergo further spinal surgery later that year.
Although Mr Shields gave oral evidence that he understood after his first surgery in February 2014 that no further surgery would be required, and relied upon that evidence in support of his submission that his condition was fully treated for the purposes of s 6(4) following his first surgery, the true question is whether, during the relevant period, his condition could properly be said to have been fully treated; given the aggravation of Mr Shields’ condition in April 2014, greater weight must be given to the contemporaneous medical evidence. In any event, I prefer the medical evidence as being more probative for the purposes of the application of the Determination than his oral evidence (see s 6(2) of the Determination).
Just two days after the making of his claim, Mr Shields was placed on a waitlist for further surgery, which was performed on 8 September 2014, merely a few weeks before the conclusion of the relevant period, on 6 October 2014. Given the evidence before Tribunal to which I have just referred, I am not satisfied that Mr Shields’ condition had been fully treated at any time prior to his second surgery.
That leaves the question of whether the evidence before the Tribunal supports the conclusion that Mr Shields’ condition had been fully treated at any time during the portion of the relevant period falling after his second surgery. In my view different considerations arise at that point of time given that the further surgery which was contemplated at the time Mr Shields’ claim was made, and shortly thereafter chosen as the course to be undertaken, had in fact been performed.
I am not satisfied, based upon the evidence before the Tribunal, that Mr Shields’ condition could properly be said to have been fully treated during the remaining few weeks of the relevant period following his further laminectomy in September 2014. At all times during that remaining portion of the relevant period, Mr Shields was yet to undergo post-operative review. Although Mr Shields gave evidence that he recalled that the surgeon had expressed reluctance following that second surgery to perform a third surgery, that does not support the conclusion that a decision had been made prior to the conclusion of the relevant period as to whether Mr Shields would undergo further surgery. I infer from the evidence before the Tribunal that any decision about whether Mr Shields should undergo further surgery was to be made after the conclusion of the relevant period.
Put in terms of the question of whether treatment was planned in the next 2 years for the purposes of s 6(5)(c) of the Determination during the relevant period, given the proximity of Mr Shields’ second surgery to the conclusion of the relevant period, there is insufficient evidence to support the conclusion that no further treatment was planned in the next 2 years.
It is necessary at this point to address the report of Dr Dang and the consultation notes of Dr Damodaran, which as I have indicated were both prepared this year, some time after the conclusion of the relevant period.
I give little weight to the report of Dr Dang, as it has a number of deficiencies. As I have indicated, Dr Dang had only been Mr Shields’ general practitioner for one month at the time he prepared his report. He stated that he had not treated Mr Shields nor diagnosed his past medical conditions “directly”. I infer from that statement and the brief period for which he had been Mr Shields’ general practitioner that his report was based upon material prepared by other medical practitioners and specialists. However, there is no indication as to what that material might be; nor is any indication given as to the bases upon which he reached his conclusions. Furthermore, the brevity of Dr Dang’s report means that the answers he gave were, in various respects, obscure or unresponsive to the questions posed.
Leaving those criticisms aside, what matters more is that, although Dr Dang was instructed to answer the questions posed by reference to Mr Shields’ conditions as they were during the relevant period, in view of the answers given I am not satisfied that he has in fact done so. In particular, when he has stated that Mr Shields has “already underogne [sic] the relevant treatment for this condition” I am not satisfied that that answer has been given with respect to the relevant period.
I note that Dr Dang’s report does not appear to support Mr Shields’ claim in other respects. However, given its deficiencies, I give it little weight for any purpose.
Although Dr Damodaran apparently stated in his consultation notes of 4 May 2015 that Mr Shields does not need any further surgery “at this stage”, I infer from the balance of the notes and the fact that they are his consultation notes that that opinion was held on the date the notes were prepared; accordingly, for the reasons I have explained above I do not consider it to be probative with respect to Mr Shields’ condition as it was during the relevant period.
Furthermore, I am not satisfied that Mr Shields’ condition had been “fully stabilised” at time during the relevant period. There is insufficient evidence, or alternatively insufficiently probative evidence, to support that conclusion. Given that s 6(6)(a) of the Determination expressly envisages “further reasonable treatment”, I consider that Mr Shields had, at the time he made his claim, “undertaken reasonable treatment” for his spinal canal stenosis by undergoing his first laminectomy. Accordingly, contrary to the respondent’s submission, in my view, s 6(6)(a) arises for consideration, rather than s 6(6)(b); I note in that regard that I consider that the phrase “has undertaken reasonable treatment” is a reference to an indeterminate time the past which may precede the making of the claim.
However, I am not satisfied that prior to Mr Shields’ second laminectomy it was the case that “any further reasonable treatment” was “unlikely to result in significant functional improvement” to a level enabling him to undertake work in the next 2 years. There is insufficient evidence to support that conclusion, and Dr Lee’s report and medical certificates suggest otherwise.
Following Mr Shields’ further surgery in September 2014, there is insufficient evidence to support such a conclusion with respect to the last few weeks of the relevant period, given that Mr Shields was yet to undergo post-operative review. I do not consider Mr Shields evidence recounting his surgeon’s apparent “reluctance” to perform surgery for a third time to be sufficiently probative in that regard.
Given that I am not satisfied that during the relevant period Mr Shields’ condition had been “fully treated” for the purposes of s 6(4) of the Determination, nor that it had been “fully stabilised” for those purposes, it is unnecessary for me to consider whether s 6(4)(d) was satisfied. As Mr Shields’ condition could not therefore be said to be permanent for the purposes of s 6(3)(a) of the Determination, the conjunctive requirement for the assignment of an impairment rating in s 6(3)(b) need not be considered. Given that s 94(1)(b) was not satisfied, it follows that Mr Shields did not qualify for DSP at any time during the relevant period.
CONCLUSION
For the above reasons, the Tribunal will affirm the decision under review.
| I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins |
......[sgd]..................................................................
Associate
Dated 28 September 2015
| Date(s) of hearing | 14 July 2015 |
| Applicant | In person |
| Solicitors for the Respondent | Sparke Helmore Lawyers |
8
5