Spiteri and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 598
•10 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 598
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1573
GENERAL ADMINISTRATIVE DIVISION ) Re ALFRED SPITERI Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Miss EA Shanahan, Member Date10 July 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review and does so, on the basis of insufficient medical evidence to support the applicant’s claim for disability support pension. (sgd) E.A. Shanahan
Member
SOCIAL SECURITY – disability support pension – conflicting diagnoses – conflicting impairment assessments – incomplete medical opinion – physical and psychiatric conditions – job capacity assessments – incapacity for work – decision affirmed
Social Security Act 1991 s 94, Schedule 1B
REASONS FOR DECISION
10 July 2008 Miss EA Shanahan, Member 1. Mr Spiteri lodged a claim for disability support pension (DSP) under the Social Security Act 1991 (the Act) on 23 October 2006. His claim was rejected by a delegate of the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) on 3 January 2007 and this decision was affirmed by an authorised review officer (ARO) on 1 February 2007. Mr Spiteri applied for a review by the Social Security Appeals Tribunal (SSAT) and the SSAT affirmed the decision on 29 March 2007. Mr Spiteri lodged a further application for review, this time to the Administrative Appeals Tribunal, on 30 April 2007.
2. The hearing before the Tribunal took place on 12 November 2007. Mr Spiteri was self-represented with assistance from his wife and a Maltese interpreter. The Respondent was represented by Ms Ailsa Bramley, a Centrelink Advocate. Centrelink is the agency providing services to the Department of Families, Housing, Community Services and Indigenous Affairs (the Department). The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and a supplementary set of T-Documents (ST‑Documents).
3. In the interval between the SSAT decision and the hearing before the Tribunal, Mr Spiteri lodged a further claim for DSP dated 8 June 2007. Pursuant to this claim, the Respondent provided treating doctors reports (TDR) from Mr Spiteri’s general practitioner dated 13 June 2007 and from his treating psychiatrist, Dr Parekh, dated 15 June 2007.
4. The Tribunal adjourned the hearing of 12 November 2007 and directed the Respondent to obtain further, more targeted, medical reports and opinions because of the conflicting medical opinions, job capacity assessments, incomplete diagnoses and missing data, namely a full radiology report of the Magnetic Residence Imaging (MRI) scans lodged by the Respondent. The Respondent lodged a further report from an Occupational Health Physician trainee, the missing page of the MRI of the cervical spine and knee report and a report and opinion from the treating psychiatrist, Dr Parekh.
5. The Tribunal requested written submissions. The Respondent provided submissions on 28 May 2008. Mr Spiteri relied on the evidence before the Tribunal.
6. The documents additional to the T-Documents and ST-Documents were not formally tendered at the hearing but have been allotted reference numbers.
·T-Documents -R1
·ST-Documents dated 31 August 2007 – R2
·The Treating Doctors Reports provided in support of the DSP claim of June 2007, dated 13 and 15 June 2007– R3
·Complete report of the MRI scan performed on 8 March 2006 – R4
·Report of the treating psychiatrist Dr Parekh dated 19 March 2008 – R5
·Report of Dr A. James, Occupational Health trainee oversighted by Dr D. Gras dated 23 January 2008 – R6
·The supplementary medical report from Dr James dated 24 March 2008 – R7
BACKGROUND TO THE APPLICATION
7. Mr Spiteri is now 50 years old. He was born and raised in Malta and left school on completion of his primary education. He had a variety of jobs after leaving school including manufacturing tiles, plastering and rock jointing. In 1981 he migrated to Australia and for some nine years worked as a labourer in a fabric manufacturing company. He returned, with his family, to Malta in 1991 and obtained employment in swimming pool construction and then in a water utility. This work was essentially labouring. It involved the daily use of a jackhammer for a period of nine years.
8. From 1999 onwards he experienced neck pain radiating to the head. This pain was investigated in 2001 and Mr Spiteri was told it originated in his neck. Another physician in Malta diagnosed migraine. Mr Spiteri was advised to avoid jackhammering and to reduce his activities to light work.
9. In 2003 Mr Spiteri injured his left knee while climbing out of a trench. A tear of the left medial meniscus was diagnosed and a partial meniscectomy performed. His postoperative course was complicated by a persistent effusion in the knee joint and some three months after surgery his knee pain recurred. Further investigation was planned but was interrupted by Mr Spiteri’s return to Australia in 2004. Mr Spiteri had developed a reactive depressive state secondary to his physical injuries and his inability to work. He received psychiatric treatment in Malta. He has not worked since June 2003 and continues to suffer neck pain, headaches, left knee pain and instability and depression. Since his return to Australia he has been in receipt of Newstart Allowance and applied for the DSP in 2004, 2006 and 2007.
EVIDENCE BEFORE THE TRIBUNAL
10. Mr Spiteri gave evidence that he experienced daily neck pain that did not affect his ability to move around but when combined with pain in the head, he could only obtain relief by lying down. These severe attacks occurred once to twice per week with the last bouts having been on 6, 9 and 10 November 2007. The Tribunal asked if these bouts of pain were precipitated by activity or exertion. Mr Spiteri said he had noted that the pain occurred almost immediately if he bent his neck forwards. The activities most frequently precipitating the severe pain were driving a car for more than half an hour, pruning his roses and cleaning out his bird cages. Panadol did not control the pain but Propanalol (a beta blocker), in increasing dosages, had reduced the attacks from three to two per week.
11. Mr Spiteri described his daily activities as walking (on medical advice), watching television and sleeping. He said he would occasionally peel the potatoes in preparation for the evening meal. His son mowed the lawns. Ideally, he would much prefer to be able to work. The television watching was frustrating because of his poor command of English and his inability to sit for periods greater than one hour. He was able to stand for 15 minutes before his neck pain increased in intensity. He walked for 15 minutes per day to and from a nearby lake except in the cold weather. During these excursions he used a walking stick and avoided rough ground as his left knee frequently gave way. He was particularly worried about walking on his driveway as it was on an incline and walking downhill was more likely to exacerbate his knee pain. He often found it necessary to support himself against the wall when he became dizzy. He said his knee had last given way on the morning of the hearing. Mr Spiteri avoided bending and bumping his knee as this exacerbated his pain. The left knee was numb below the joint line and had been so since his knee surgery in 2003. Although he was able to wash and dress himself, he could not put on his socks.
12. The Tribunal asked Mr Spiteri if his neck was tender to touch and if pressure in this area affected his pain levels. He confirmed local soreness with pressure giving rise almost immediately to more severe pain radiating to the scalp.
13. Mrs Spiteri assisted her husband with some answers and was frequently tearful. She said her husband tried to do things but could not cope without her help. Mrs Spiteri also told the Tribunal that Mr Spiteri was currently seeing a psychiatrist and had been doing so monthly for the past five to six months. Mr Spiteri acknowledged that he became upset very easily.
DOCUMENTARY EVIDENCE
The T-documents (R1)
14. Those entries directly related to Mr Spiteri’s medical status and his work capacity are the most pertinent.
15. Dr Svejda, physician at the Gozo General Hospital, Malta provided a TO WHOM IT MAY CONCERN report, dated 26 March 1999, advising that Mr Spiteri suffered from severe migraine precipitated by his work with a jackhammer and that he avoid such work (T3, p13).
mr aquilina, orthopaedic surgeon
16. Mr Aquilina is an orthopaedic surgeon at the Gozo General Hospital in Malta. Mr Aquilina treated Mr Spiteri for two separate illnesses and provided two reports to Mr Spiteri. The first of these, dated 31 November 2001, says:
I saw this man today. He complains that for a few years he has suffered with headaches radiating from occiput to frontal area, at times very severe. He has been investigated for intracranial pathology and this was negative.
Clinically his pain is more typical of an upper cervical problems (C2). X-Ray films have been reported as showing small dorsal osteophytes in the intervertebral foramina. I feel there is also some interfacetal osteoarthritis between C1, C2 and C3 and this is more relevant to his problem.
In any case heavy work that he has been doing is obviously unsuitable.
I am starting him on anti-arthritic medication and he should go on light duties.
I will review him in due course. (T4, p14)
17. The second report, dated 29 September 2004, summarises Mr Aquilina’s treatment of Mr Spiteri between November 2001 and September 2004. The entries regarding the neck and head pain had already been covered in the earlier report. Mr Aquilina had seen Mr Spiteri again in June 2003 in relation to left knee pain. Mr Spiteri had jolted his knee at work while climbing out of a trench. A tear of the left medial meniscus was suspected and confirmed by arthroscopy one month later. The torn anterior segment of the meniscus was excised. Mr Spiteri’s recovery after surgery was slow because of a persistent effusion. In September 2003 the knee pain recurred and Mr Aquilina then queried an anterior cruciate ligament tear. An MRI of the knee was planned but did not take place.
18. At a review of his condition, in September 2004, Mr Spiteri complained of intermittent pain, rendered tolerable by limiting his activities. No abnormality was detected in the knee but the left quadriceps muscle was noted to be wasted. The neck symptoms had reduced to episodes of stiffness and ache. Cervical spinal movement was minimally reduced. An MRI of his left knee was planned but had to be cancelled as Mr Spiteri was returning to Australia.
dr navani, general practitioner
19. Dr Navani has provided four treating doctors reports. All the reports diagnosed degenerative changes in the cervical spine also termed cervical spondylosis or cervical osteoarthritis; a left knee soft tissue injury (at times nominated to be a ruptured anterior cruciate ligament); and as of 23 October 2006, anxiety and depression. Migraine is also mentioned on two occasions. The TDR of 13 June 2007 (ST2 R3) listed the diagnoses as osteoarthritis of the cervical spine of eight years duration; major depression and anxiety of seven years duration; migraine and a ruptured anterior cruciate ligament, both of one year duration. All conditions were assessed as likely to persist for more than 24 months and also likely to fluctuate in severity. (Two of the job capacity assessors had tried unsuccessfully to make telephone contact with Dr Navani to obtain further information.)
dr parekh, treating psychiatrist
20. Dr Parekh completed a TDR on 15 June 2007 stating that Mr Spiteri had not worked for four years because of his physical injuries and as a result had become progressively depressed (ST1 R3). Dr Parekh had been treating Mr Spiteri since May 2007 continuing him on Endep and adding Antivox to the regime. He was seeing Mr Spiteri monthly and estimated that the treatment would be required for a very long time.
21. The Tribunal requested that the Respondent obtain a more detailed report from Dr Parekh (R5). Dr Parekh listed Mr Spiteri’s symptoms as neck and left knee pain, irritability, becoming upset easily, poor sleep, mood fluctuations, impatience, arguing with his children, heightened nervousness when associating with people outside his home, tearfulness and the belief that people do not like him and want to hurt him. Mental state examination revealed Mr Spiteri to be irritable, anxious and depressed, guarded and somewhat paranoid. Memory, concentration and attention span were normal. Moderately severe depression and paranoia were diagnosed with associated dismotivation. Dr Parekh assessed the impairment at 20 points under Table 6 of the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables). Mr Spiteri’s prognosis, with respect to work capacity, was poor in that Dr Parekh believed his paranoia would make it difficult for Mr Spiteri to hold a job for any substantial length of time.
Dr A James, occupational health physician in training (R6 & R7)
22. The Respondent had arranged for Mr Spiteri to be assessed by an occupational health physician, as requested by the Tribunal. The Tribunal had found the medical reports available at the hearing of 12 November 2007 deficient. In particular, the various impairment ratings assigned by Job Capacity Assessors, a Health Services Australia doctor and the SSAT varied considerably. Mr Aquilina’s opinion that Mr Spiteri’s neck and head pain was more typical of an upper cervical problem and that he should avoid the heavy jackhammering work he was doing appeared clinically sound to the Tribunal. (Tribunal Note: the Tribunal, whose medical opinion is not relevant to the decision making process in this matter, felt Mr Spiteri’s history and symptoms were typical occipital neuralgia, a condition which has been associated with the use of a jackhammer). Mr Aquilina and his reports did not use the term occipital neuralgia.
23. Dr James obtained a detailed history of Mr Spiteri’s injuries and diseases as narrated above. She had available to her three reports from a consultant rheumatologist regarding Mr Spiteri’s left knee condition. The Tribunal had only been provided with a letter, dated 15 February 2006, wherein Dr Stockman certified Mr Spiteri unfit for work because of chronic left knee and neck pain. Dr James noted that an MRI of the left knee ordered by Dr Stockman had excluded any evidence of an anterior cruciate tear but did show degenerative changes in both lateral and residual medial menisci with a small tear in the posterior horn of the residual medial meniscus. Dr James assessed Mr Spiteri’s knee impairment rating at 10 points under the Impairment Tables, at the present time and retrospectively to late 2006.
24. Dr James obtained a 10 year history from Mr Spiteri, of neck pain radiating over the head with aggravation on bending forward and lifting. The pain was described as being more severe in 2008 than it had been in 2006. Dr James referred to Mr Aquilina and Dr Stockman’s findings of the normal cervical spine range of movement.
25. Dr James noted the cervical spine MRI results and described them as showing mild to moderate degenerative changes with no comment made by the Radiologist regarding the intervertebral discs. (Tribunal note: this is incorrect. At line seven, the report states Mild degrees of T2 signal loss are noted at each disc level between C2 and C7, with slight loss of disc space height at C5-6).
26. Mr Spiteri’s headaches over a 10 year duration were regarded as being due to migraine, based on Dr Svejda’s report (T3). Mr Spiteri told Dr James that he had poor control with Propranolol and as a result had been referred to a neurologist, Dr Freilich and Sandomigran had been commenced. This latter drug had not controlled the headaches. The Tribunal has not been provided with any reports from Dr Freilich.
27. Mr Spiteri told Dr James he had been treated for depression in Malta. Dr Navani had first mentioned depression in the medical certificate dated 6 January 2006 (T8) and had prescribed Endep (amitriptyline); and in April 2007 referred Mr Spiteri to Dr Parekh for further management.
28. On examination, Dr James found the left knee to be normal with half a centimetre of left quadriceps wasting; tenderness was elicited over the cervical spine and the range of movement was decreased by 10 degrees from normal in extension, 10 degrees in lateral flexion to the left, and rotation to the right by 25 degrees and to the left by 35 degrees. All cervical movements caused pain. Grip strength was normal in both hands.
29. A Beck’s Depression Inventory Test was used to assess Mr Spiteri’s depression. He scored 33/63, indicating severe depression. Dr James accepted the diagnoses previously made by other doctors. She concluded that the left knee condition and cervical spine condition were permanent and had been fully investigated and treated. She estimated the left knee pathology to have caused an impairment rating of 10 points and the cervical spine condition five points at the present time (but zero points in late 2006), based on Dr Stockman’s assessment.
30. Dr James regarded Mr Spiteri’s major incapacitating condition to be his depression. However, as the conditions of migraine and depression had not been subjected to treatment by appropriate specialists until early 2007. Dr James felt that they could not be considered as having been fully treated and stabilised so as to attract an impairment rating.
31. Dr James’ first report made no reference to a possible diagnosis of occipital neuralgia as raised by the Tribunal Member. It would appear Ms Bramley contacted Dr James and sought a supplementary report and this was provided on 4 April 2006 and dated 24 March 2008 (R7). In the supplementary report, Dr James expressed the opinion that occipital neuralgia was a possible diagnosis but noted that neither Dr Stockman nor Dr Freilich had considered this diagnosis and a diagnostic blockade of the occipital nerve had not been suggested. Dr James was also influenced by the MRI scan report indicating mild to moderate degenerative changes with no focal nerve root impingement and unremarkable images at the C2‑C3 spinal level.
32. Dr James also advised that her role was to provide an assessment of Mr Spiteri’s functional capacity and an impairment rating and not to make a diagnosis.
Dr Lane, health services australia medical officer
33. Dr Lane assessed Mr Spiteri on the 18 November 2004 in relation to a 2004 application by Mr Spiteri for the DSP (T7, p25). Dr Lane recorded a history of neck pain since 2001 and noted that this had been attributed to degenerative disease of the cervical spine and had not prevented Mr Spiteri from performing light duties. Dr Lane recorded a loss of one quarter to one half of the normal range of movement and associated pain on examination. The pain was precipitated by raising the left arm, turning the head and lifting. With respect to the left knee, Dr Lane recorded the past history of surgery and recurrent pain and a mild laxity of the anterior cruciate ligament, as detected by Mr Aquilina.
34. Dr Lane felt both conditions required further investigation and treatment. Light work as an office helper or process worker was recommended as was English education, retraining and vocational rehabilitation.
job capacity assessment
35. Mr Spiteri has undergone three job capacity assessments. These were conducted on 17 October 2006 (T12), 4 December 2006 (T16) and 20 June 2007 (ST3 R3).
36. Mr Vincent Fisicaro, psychologist, assessed Mr Spiteri on 17 October 2006 and summarised his assessment as follows:
Client is a 48 year old who was accompanied by his wife to the interview who assisted when the client did not understand my questions. He reported that he was born in Malta and came to Australia in 1981. He reported that he moved back to Malta in 1991 and then in 2004 moved back to Australia for which he reported would be permanent. The client provided a TDR at interview.
Client reported that he completed primary school and is illiterate in Maltese and English. His wife wrote the address and date for him when he signed the Consent to Release Information form. Client reported that in Malta he worked as a plasterer before working with the water service for nine years. He reported that his main duty was to use the jack hammer every working day. When he was in Australia from 1981 to 1991 he worked as a labourer within the textile industry.
In June 2003, the client reported that he sustained an injury to his left knee. The following month he had an operation which saw him immobile for 3 months. Although he can now walk, he reported that he does so with pain and he cannot walk up or down stairs without severe pain. He reported that he underwent physiotherapy and walked as much as he can to prevent muscle wastage of the left leg.
The client reported that general wear and tear of using the jack hammer over a nine year period has also caused problems with his cervical spine. he also reported referred head pain to his head which presents as severe migraine pain. Client reported that he cannot perform any physical activities without feeling dizzy or being at risk of loosing balance. He reported that he spends most days at home either watching television or in bed. He reported that he if he tried to do any work at home he will spend the next day in bed due to pain and restricted movement in his neck. The client also suffers from depression due to his very limited physical abilities and was visibly upset when he described his limited functional abilities. He reported that his doctor has informed him that there is nothing further than can be done about his neck disorder/migraine headaches.
Without further medical investigation, it is unlikely that the clients functional capacity will significantly improve within the next two years to enable him to seek employment. it is recommended that the client considers seeking further medical advice regarding the neck and knee conditions.
37. Mr Fisicaro determined the lower limb deficiency and neck disorders to be permanent. He assessed Mr Spiteri’s temporary capacity and future capacity for work without intervention and future capacity for work with intervention were all assessed at zero to seven hours per week. He did not assign any impairment rating points, nor did he nominate any suitable work.
38. Ms K Barnard, psychologist, conducted a further assessment on 4 December 2006. She considered Mr Spiteri’s conditions of neck disorder, migraine and lower limb deficiency to be permanent and the depression temporary. A recommended rating of zero points under the Impairment Tables for the neck disorder was based on a near normal range of movement. She rated the migraine and lower limb disorder at zero points, the migraine because Mr Spiteri had worked until 2004 despite his headaches and the lower limb disorder because Mr Spiteri walked for 15 to 20 minutes daily, albeit on medical advice. The assessment summary made by Ms Barnard is an exact copy of that made by Mr Fisicaro.
39. The interventions identified as applicable to Mr Spiteri were further medical investigations and treatment, surgical treatment of the knee and literacy and numeracy assessment and training.
40. Ms Barnard assessed Mr Spiteri’s temporary capacity for work as zero to seven hours per week, his current capacity for work at 30 plus hours per week, future capacity without intervention as zero to seven hours per week and future capacity with intervention at 30 plus hours per week.
41. Ms Barnard identified suitable work as light, semi-skilled and suggested examples such as customer service officer, sales assistant and light process worker (seated).
42. Both psychologists listed Mr Spiteri’s preferred language as English (T12, p50 and T16, p75) although they note he is illiterate in both English and Maltese and had to obtain their information from Mrs Spiteri, who speaks English.
43. These assessments occurred within or very close to the relevant period, 23 October 2006 to 22 January 2007.
44. Ms Rizalina Cazar, social worker, conducted a further assessment on 20 June 2007, following Mr Spiteri’s lodgement of a further claim for DSP on 8 June 2007. She nominated Mr Spiteri’s preferred language as English but in the following entry stated a Maltese interpreter was required. The medical conditions addressed were termed osteoarthritis of the cervical spine, depression, migraine and lower limb deficiency all of which were permanent, and with the exception of Mr Spiteri’s depression, fully diagnosed, treated and stabilised. She assessed the cervical spine condition as having a rating of 10 impairment points and all the other conditions at zero points, as they had only a mild impact on Mr Spiteri’s work capacity; or, in the case of the migraine, was well managed by Mr Spiteri.
45. Ms Cazar assessed Mr Spiteri’s temporary capacity for work at zero to seven hours per week until 20 January 2008, his current capacity at 15 to 22 hours per week until 20 June 2009, future capacity without intervention as zero to seven hours per week and future capacity with intervention at 15 to 22 hours per week. She recommended vocational rehabilitation, increasing his social skills, psychiatric treatment, personal development, literacy training and job seeking and search skills. She suggested suitable jobs were retail work, sales assistant, office cleaner, light courier and work in the service industry. She assessed his impairment rating at 10 points for the cervical spine disorder and zero points for all other conditions.
THE DECISION OF SSAT (T2)
46. The SSAT confirmed the decision of the Department delegate, finding Mr Spiteri did not meet s 94(1)(b) of the Act. He did not have a 20 point impairment rating in accordance with the Impairment Tables set out in Schedule 1B of the Act. The SSAT allotted 10 impairment points for Mr Spiteri’s left knee condition and zero points for the neck pain having found his symptom due to osteoarthritis of the cervical spine. The headache and depression required further investigation and treatment. The zero rating of the cervical spine condition was attracted by the minimal reduction in the range of movement. The SSAT expressed its concern regarding the lack of a clear diagnosis in relation to Mr Spiteri’s increasingly severe headaches and also that Mr Spiteri’s psychiatric condition was far more profound than had been recognised by his treating general practitioner.
The ARO, N Carroll (T22)
47. Ms N Carroll was the Centrelink ARO. Her notes are of relevance, in that she says the reports of Mr Aquilina and Dr Svejda add historical perspective but are of no value in the present context due to the age of reports (T22, p99).
48. The ARO rang Mr Spiteri to discuss his health issues and clarify some of the reports. She spoke with Mrs Spiteri. Mrs Spiteri said her husband did not have migraine and this had been confirmed by Mr Aquilina. They had been told that the pain arose in the neck and sometimes radiated to the head. Mrs Spiteri told the ARO she had called the police to their house the day before as Mr Spiteri had lost his temper and become aggressive. She was considering moving out of the house as she had had enough. The ARO offered the assistance of a Centrelink social worker. Mrs Spiteri confirmed that her husband had been prescribed Endep and when he did not take it his mood changed and behavioural problems occurred. Mrs Spiteri advised the ARO that her husband had seen a psychiatrist in Malta and been treated for depression but had not seen a psychiatrist in Australia.
49. As a result of this conversation the ARO concluded that Mr Spiteri did not have migraine and that his headaches were associated with his neck pain.
LEGISLATION
50. Section 94 of the Act details the qualifications for DSP and states:
(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…
Section 94(5) provides the following definition:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
51. The Introduction to the Impairment Tables contained in Schedule 1B of the Act are relevant and state:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
The guide also provides a definition of work:
(B) DEFINITION OF WORK – (PARAGRAPH 1)
What is considered “work” for disability support pension purposes.
Work is defined in section 94(5) of the Social Security Act `1991. For these purposes, work should be for at least 30 hours per week (ie on a full-time basis) at award wages or above and should exist in Australia, even if not within the person’s locally accessible labour market.
In considering a persons’ capacity for “work” as defined, it would be reasonable to expect that they must be capable of reliably performing such work on a sustainable basis, that is, for a reasonable period of time without requiring excessive leave or work absences. Further, it would be expected that such work is in open, unsupported employment and that the person does not require excessive support (ie more than what is usually considered reasonable adjustments and/or normal supervision) to perform the work. It is considered that the Tables refer to work in this context with regard to the assessment of work-related impairment…
SUBMISSIONS
52. Mr Spiteri did not provide a written submission. He relied on the evidence before the Tribunal, having been given this option by the Tribunal on 12 May 2008.
53. Ms Bramley provided the document entitled the Secretary’s Supplementary Statement dated 28 May 2008. The Tribunal has considered this submission in conjunction with the Respondent’s Statement of Facts and Contentions of 31 August 2007.
54. Ms Bramley identified the issue for decision as whether Mr Spiteri qualified for DSP between 23 October 2006 and 22 January 2007.
55. The Respondent has accepted that Mr Spiteri’s medical conditions in the relevant period were:
· neck pain
· left knee pain
· depression
· headaches
These conditions were based on the then available medical reports.
56. Ms Bramley addressed all the medical reports including those received from the treating doctors in support of Mr Spiteri’s DSP claim of 8 June 2007 and those requested by the Tribunal.
57. Based primarily on the medical data then available, the Respondent accepted that Mr Spiteri’s left knee condition attracted an impairment rating of 10 points and all other conditions a rating of zero points. The Respondent also accepted that Mr Spiteri’s cervical spine condition impairment rating was currently five points as estimated by Dr James in 2008. Dr James had given consideration to the alternative diagnosis of occipital neuralgia as queried by the Tribunal and had regarded this as a possible diagnosis. Ms Bramley submitted that if proven to be the correct diagnosis, that is occipital neuralgia, it would not change the findings as to the level of impairment resulting from this condition as assessed under Table 5.1. Ms Bramley pointed out that it was not the role of the medical officer from Health for Industry to make a diagnosis but rather to assess whether a condition has been fully diagnosed, treated and stabilised. In view of the differences in the opinions offered by Mr Spiteri’s doctors over the years and his recent referral to more specialists, neither the neck pain nor the depression had been fully diagnosed, treated and stabilised between 23 October 2006 and 22 January 2007. Thus the Tribunal should affirm the decision under review.
TRIBUNAL’S DELIBERATIONS
58. The Tribunal accepts the submissions of the Respondent that the conflicting, and in the Tribunal’s opinion incomplete, medical reports available in the relevant period result in an impairment rating of 10 points for Mr Spiteri’s left knee residual medial meniscus tear and other degenerative changes. He thus does not satisfy the requirements of s 94(1)(b) of the Act and the Tribunal must affirm (albeit with some reluctance) the decision under review.
59. The Tribunal’s reluctance is founded in the paucity of medical opinions, particularly those with a definitive diagnosis, conflicting job capacity assessments in terms of the impairment rating and work capacity and the ARO’s assignment of a low value to the reports of Mr Spiteri’s treating doctors in Malta. The conditions of neck pain, knee pain, depression and headaches are symptoms not diagnoses. The only diagnoses proffered by a medical expert were those of Mr Aquilina. It was Mr Aquilina’s report of 31 November 2001 that alerted the Tribunal Member to the possibility of a diagnosis of occipital neuralgia. The greater occipital nerve is the largest cutaneous nerve in the human body and there are multiple ways in which this nerve can be damaged other than by degenerative cervical spinal changes. If the possibility of such a diagnosis was considered and confirmed in the absence of moderate to severe osteoarthrotic changes, the impairment assessment would fall within Table 20 in reference to chronic pain, not Table 5.1 which refers to spinal function.
60. Mr Spiteri’s knee condition (medial meniscal tear and degenerative changes) has been documented as present since June 2003. His cervical pain radiating to the scalp and forehead commenced in 1999 and was investigated in 2001. He received treatment from a psychiatrist in Malta to depression prior to September 2004. All conditions have been at least partially investigated and have failed to respond to treatment. His symptoms as described at the hearing have worsened between 2006 and the present time.
61. Mr Spiteri has seen a rheumatologist (Dr Stockman in 2005 and 2006) and a neurologist (Dr Freilich in 2007) and it appears his symptoms persist despite the treatment these specialists have delivered. The Tribunal was not provided with the medical reports from these doctors.
62. It is Mr Spiteri’s responsibility to provide the relevant evidence to support his case, be it at the primary level or on application for review of the primary decision. Such a responsibility may be beyond the capabilities of some individuals. Mr Spiteri was self-represented, and one assumes was so, for reasons of cost. He left school after completing his primary education. He is illiterate in both English and Maltese. He has only worked in manual labouring positions and suffers from depression. His ability to present his case is limited. Section 33(1AA) of the AAT Act provides as follows:
(1AA)In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
63. The Commonwealth has been regarded as, or aspires to be, a model litigant. Ms Bramley has provided great assistance to the Tribunal; although in retrospect obtaining the opinion of an Occupational Health Physician from Health for Industry may have been of limited benefit given that they regard their function as to assess work capacity and not to reach a medical diagnosis.
64. The Tribunal is perturbed by the conflicting impairment assessments made by the various assessors, given the reliance placed on these assessments. On Dr Lane’s examination findings, an impairment rating of 5 or 10 points would have been attracted by Mr Spiteri’s diminished range of movement of the cervical spine, as recorded in November 2004. Mr Fisicaro did not recommend any impairment rating as he had concluded that Mr Spiteri’s work capacity would not exceed zero to 7 hours at any time within the next two years. Ms Barnard assessed all conditions at a rating of zero on 4 December 2006 and Ms Cazar recommended 10 points for the neck condition on 20 June 2007 and zero for all other conditions. The SSAT made its own assessment of Mr Spiteri’s knee condition allotting 10 points and rated the neck incapacity as zero on 29 March 2007. The Tribunal cannot discern any logical pattern in these assessments.
65. Dr Parekh assessed Mr Spiteri’s impairment, due to psychiatric factors alone, at 20 points (Table 6) in his report of 19 March 2008 and did not proffer an opinion or assessment retrospectively in relation to Mr Spiteri’s status in 2006. This is the first occasion on which an impairment rating has been provided for Mr Spiteri’s psychiatric condition.
66. The Tribunal finds some of the examples of suitable work suggested by Ms Barnard and Ms Cazar, namely customer service officer, sales assistant, courier, office cleaner or employment in the service industry, disingenuous, to say the least, in light of Mr Spiteri’s education, training, experience and illiteracy. Employment as a light process worker may have been an appropriate recommendation. The job capacity assessors (JCA) reached their conclusions, at least in part, by analysing and relying on the TDRs, the content of the DSP claim form and where available a previous JCA report. Surely this should not extend to adopting verbatim the general summary of the client, their circumstances and the findings and recommendation of the report of an earlier assessor as was the case in the JCA of 4 December 2006.
67. It is neither the role nor the responsibility of the Tribunal, despite her medical qualifications and lengthy experience as a medical specialist, to make diagnoses for incapacity assessments. Any such doubts as to diagnosis can normally be allayed by putting relevant questions to the medical experts at the hearing. The only expert medical report and opinion relevant to the period 23 October 2006 to 22 January 2007 appears to be that of Mr Aquilina whose reports were written for the benefit of other medical practitioners. It was not feasible for Mr Aquilina to give evidence before the Tribunal.
68. The Tribunal’s concern relates not only to Mr Spiteri’s DSP claim but also to his medical treatment which has potentially been hampered by the lack of definitive diagnoses.
69. Mr Spiteri lodged a further application for DSP on 8 June 2007 and there is nothing before the Tribunal to indicate that any decision has yet been made by the Respondent regarding this claim. Presumably this latest claim for DSP will now proceed to assessment and a decision.
70. There is a considerable amount of relevant information regarding occipital neuralgia available on the internet and on MEDLINE which is accessible to medical practitioners. A particularly useful source is the National Institute of Neurological Disorders and Stroke which is part of the National Institutes of Health in Bethesda, Maryland, in the United States. The information page of the Institute nominates nine different causes of occipital neuralgia including lengthy periods of keeping the head in a downward and forward position. Several articles also address the misdiagnosis of migraine when the correct diagnosis is occipital neuralgia. Osteoarthritis of the spinal vertebrae is one of the nine listed causes of occipital neuralgia and the diagnostic test is a positive response to anaesthetic nerve block of the greater occipital nerve.
71. The Tribunal accepts that a diagnosis of occipital neuralgia may be incorrect but to date it has not been pursued. The Tribunal believes it should be considered, given that Mr Spiteri has the classic symptoms of occipital neuralgia; and should such a diagnosis be confirmed, any assessment would need to be rated under a different Table to those already employed.
72. The Tribunal affirms the decision under review.
I certify that the seventy‑two [72] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss EA Shanahan, Member
Signed: Dianne Eva
Clerk
Date of Hearing 12 November 2007
Date of Decision 10 July 2008
Advocate for the Applicant Self‑representedAdvocate for the Respondent Ailsa Bramley, Centrelink Legal Services Branch
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