Stojanovic and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1202

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1202

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1311

GENERAL ADMINISTRATIVE DIVISION		)
Re		BORIS STOJANOVIC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Peter Taylor SC, Senior Member

Date3 April 2007

PlaceSydney  

Decision The decision under review is affirmed.  

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

Mr Peter Taylor, SC
  Senior Member  

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether functional impairment is eligible for point rating under Impairment Tables – whether condition has been “fully treated” – whether condition has been “fully stabilised” – decision under review affirmed

Social Security Act 1991- sections 94(1)(b), 117, 1065 and Schedule 1B

Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249

Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222   

Tillmanns Butcheries Pty Ltd v Australasian Meet Industry Employees' Union (1979) 42 FLR 331 at 339; (1979) 27 ALR 367

Transport Ministry v Simmonds [1973] 1 NZLR 359

Black v Sumitomo Corp [2003] 3 All ER 643

Three Rivers District Council v Bank of England (No 4) [2002] 4 All ER 881

Cream Holdings Ltd v Banerjee [2003] 2 All ER 318

Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222

REASONS FOR DECISION

3 April 2007	Peter Taylor SC, Senior Member
Background

1.      Mr Stojanovic applied for a Disability Support Pension (“DSP”) on 13 April 2006.  The basis of his claim is chronic back pain causing functional spinal impairment.

2.      Mr Stojanovic first suffered back pain as a result of a disc prolapse at L5 / S1 in August 2000.  It caused him occasional minor pain with sitting, standing and walking and restricted him in moving heavy objects.  In July 2002, and again in March 2003, he suffered further episodes of back pain at work whilst he was employed as a cleaner by the NSW State Rail Authority (“SRA”).  Mr Stojanovic says he had further, though less significant, episodes of aggravated back pain in January and December 2006. 

3.      The incidents in 2002 and 2003 resulted in Mr Stojanovic having time of work – three months in 2002 and six months in 2003.  In about September 2003 he resumed work in accordance with a return to work plan arranged with his employer.  This plan involved him working limited hours and doing light duties.  He started at four hours a day three days a week and built this up to four hours a day five days a week.  His pattern was to work for about three months and then take two weeks off work to rest and recover.  He worked in that way until the SRA terminated his employment in February 2006. 

4.      Imaging studies between 13 August 2002 and 16 January 2006 reveal that Mr Stojanovic has disc bulges at L4 / L5 and L5 / S1.  The most recent available study is an MRI dated 16 January 2006.  It reports desiccation of the intervertebral discs, and “very minor annular bulges” at L4/5 and L5/S1, but no evidence of nerve root compression, nor stenosis.  At other levels, Mr Stojanovic’s lumbar spine is unremarkable.

eligibility for rating under impairment tables

5. The fundamental issue in determining this review application is whether Mr Stojanovic has a functional impairment that is eligible for a point rating under the “Tables for the assessment of work-related impairment for disability support pension” (“Impairment Tables”) in Schedule 1B of the Social Security Act 1991 (“the Act”). A functional impairment point rating of at least 20 points is one of the threshold qualification requirements for receipt of a disability support pension: see s 94(1)(b) of the Act. The Social Security Appeals Tribunal (“SSAT”) decision under review determined that no point score rating was available because Mr Stojanovic’s condition had not been fully treated and was not stable.

6. The Applicant contends that if his condition is eligible the appropriate rating is 20 points under Table 5.2. The Responded contends that if the Applicant's condition is eligible for rating, the assessment should be remitted. Both parties submit that if the applicant satisfies the 20 point rating threshold any decision on whether he has "a continuing inability to work" for the purposes of section 94(1) of the Act should be remitted.

7. A DSP applicant’s functional impairment point rating must be determined “under” the Impairment Tables; s 94(1)(b). The Introduction to the Impairment Tables governs the way the Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment and the stability of an applicant’s condition are particularly relevant considerations in the application of the Impairment Tables. Those paragraphs (with emphasis added) are in the following terms

…

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 medical officer 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.

…

8.      The Introduction requires that an applicant’s condition must be “fully diagnosed (and) treated” before the Impairment Tables can be applied to assign an impairment rating: (paragraphs 4 & 6).  Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”: (paragraph 6). 

9.      The Introduction also requires that the applicant’s condition be “permanent” - in the sense of being more likely than not to persist for the foreseeable future – before it can be assigned a rating: (paragraph 5).   Where a diagnosed condition involves irreversible bodily changes there is a sense in which the condition must be regarded as permanent.  This is so in the present case where the imaging investigations referred to above conclusively confirm the existence of lumbar disc desiccation and bulges.  But a diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned: (paragraphs 4 and 6).  A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years: (paragraph 6).  A consequence of this stability requirement is that a diagnosed condition may be permanent, in the sense that it is “more likely than not that it will persist”, and yet not be “stabilised”.  This will be the case where the impairment related to the condition may be such that significant functional improvement within two years is not regarded as unlikely.

The “fully treated” issue

10.     Paragraph 6 of the Introduction to the Impairment Tables requires consideration of past and current treatment.  It hypothesises a further distinction between “planned” and “further reasonable” medical treatment.  Implicitly the Introduction assumes that treatment “planned in the near future” has already been identified by a person’s medical advisers as desirable for the person to undergo, although it does not appear to require that the details of the intended treatment should actually have already been devised or arranged.  On the other hand “further reasonable medical treatment” is treatment that has neither occurred nor been planned but which “can reliably be expected” to produce substantial improvement and is potentially available.  It may include treatment the applicant, and their treating medical advisers, have in fact rejected.

11.     In the present case there is a dispute about what treatment had been planned for Mr Stojanovic.  This dispute involves treatment advice which, though recorded in reports from his General Practitioner (“GP”), Dr Vago and an orthopaedic surgeon, Dr Maniam, Mr Stojanovic denies having been given. 

12.     Mr Stojanovic changed his GP and first consulted Dr Vago in September 2003.  Thereafter he saw him on about a fortnightly basis – until the SRA terminated Mr Stojanovic’s employment in February 2006.  In November 2003 Dr Vago referred him to an orthopaedic surgeon, Dr Maniam.  Mr Stojanovic saw Dr Maniam about every six weeks until February 2006. 

13.     Long before consulting either Dr Vago or Dr Maniam Mr Stojanovic had undertaken physiotherapy for his back.  From October 2002 until March 2003 he attended about 20 physiotherapy sessions.  In January and February 2003 he undertook six sessions of muscle strengthening exercises.  At about the time he first consulted Dr Vago, in September and October 2003, Mr Stojanovic attended a further five physiotherapy sessions.  In January and February 2004, after he first saw Dr Maniam, Mr Stojanovic had three sessions of hydrotherapy.  He had a further four sessions of massage therapy in July and August 2004. 

14.     Mr Stojanovic says that neither Dr Vago nor Dr Maniam ever advised him to undergo physiotherapy.  He says that since August 2004 he has not received any physiotherapy treatment at all. He did not have any further physiotherapy because he did not think it was of any benefit.

15.     Dr Maniam provided a 19 August 2005 report to Mr Stojanovic’s solicitor, apparently in connection with workers compensation proceedings against the SRA.  The report relates to Dr Maniam’s examination of Mr Stojanovic on 22 July 2005.  It records that Mr Stojanovic’s treatment after his first presentation on 21 November 2003, included physiotherapy, medication and hydrotherapy.  After noting that Mr Stojanovic had not made the improvement anticipated Dr Maniam's report continues "he has been asked to remain on physiotherapy for pain relief.  He has also been advised to embark upon a muscle strengthening program at the local gymnasium."  An estimate of costs is set out in the later part of Dr Maniam's report and clearly indicates that Dr Maniam regarded pain management counselling, physiotherapy and a muscle strengthening programme as desirable parts of Mr Stojanovic's further treatment.  Dr Maniam’s program provided for Mr Stojanovic to be doing muscle strengthening twice a week and physiotherapy up to 20 times a year.

16.     In his evidence to the Tribunal Mr Stojanovic denied that Dr Maniam had ever given him any advice to undertake physiotherapy or muscle strengthening.  He claimed that Dr Maniam had in fact told him verbally that physiotherapy was not required.  Mr Stojanovic thought that the explicit references to physiotherapy and muscle strengthening in Dr Maniam's 19 August 2005 report were just part of Dr Maniam’s standard procedures when writing reports.

17.     Dr Vago completed and signed a Centrelink “Treating doctor’s report” dated 11 April 2006.  This report accompanied Mr Stojanovic’s DSP application.  Part A of the report requested details of Mr Stojanovic’s past, current and planned treatment.  Dr Vago provided the details that Mr Stojanovic's past treatment included analgesic medication and physiotherapy.  His current treatment involved only medication. His planned future treatment involved medication, physiotherapy and hydrotherapy.  In this report Dr Vago described Mr Stojanovic as "very compliant" with recommended treatment.

18.     Despite the contents of the 11 April 2006 report, Mr Stojanovic also denied that Dr Vago had ever recommended physiotherapy treatment.  Mr Stojanovic said he had queried Dr Vago about this report.  He said Dr Vago had told him that he just wrote the reference to physiotherapy treatment out of habit and that he had clarified with Mr Stojanovic that physiotherapy was not required. 

19.     In support of this assertion Mr Stojanovic tendered two further documents apparently signed by Dr Vago.  The first of them was a two sentence report dated 28 September 2006.  In this report Dr Vago asserted that Mr Stojanovic had undergone four years of rehabilitation and two years of physiotherapy and that this was “sufficient” treatment.  The second statement from Dr Vago was dated 9 February 2007.  It asserts that Stojanovic's treatment was under the supervision of Dr Maniam and that Dr Maniam recommended only “conservative” treatment.  But the context in which this statement appears in Dr Vago’s statement suggests that Dr Maniam’s recommendations included physiotherapy – as indeed Dr Maniam’s 19 August 2005 report evidences.  Dr Vago’s 9 February 2007 statement goes on to say that Mr Stojanovic’s treatment followed Dr Maniam’s recommendations that no other treatment was warranted.  Dr Vago concludes that by April 2006 Mr Stojanovic had “sufficient” treatment. 

20.     I do not accept Mr Stojanovic’s claim that Dr Maniam did not advise him to undertake further physiotherapy and strengthening exercises.  The proposition that Dr Maniam’s advice in his 19 August 2005 report is merely a matter of routine that was contradicted by his oral advice to Mr Stojanovic is inherently difficult to accept and derives no support from the context of the report itself.  The report is addressed to Mr Stojanovic’s solicitor (presumably for the purpose of proceedings against the SRA) and comprises six pages of details specifically related to Mr Stojanovic's history and treatment.  It records the history given by Mr Stojanovic.  It reports that the treatment given after Dr Maniam's first consultation on 21 November 2003 included physiotherapy, medication and the commencement of hydrotherapy.  The report goes on to record the results of Dr Maniam’s examination of him on 22 July 2005.  Immediately after setting out those examination findings Dr Maniam comments that Mr Stojanovic had not made the improvement anticipated and then records the advice that Mr Stojanovic should “remain” on physiotherapy and embark on a muscle strengthening program.  The expression that Mr Stojanovic should “remain” on physiotherapy confirms that Dr Maniam had given similar advice, about the desirability of physiotherapy, in November 2003.  Indeed the existence of such advice is consistent with (i) the fact of Mr Stojanovic’s attendance at hydrotherapy in early 2004 and massage therapy in July and August 2004 (ii) the treatment described by Dr Vago in his 11 April 2006 “Treating doctor’s report” and (iii) the context of Dr Vago’s references to Dr Maniam’s advice in his 9 February 2007 statement.

21.     Neither do I accept Mr Stojanovic’s claim that Dr Vago simply wrote his 11 April 2006 report out of habit and never advised him to undergo physiotherapy as desirable treatment.  In his 11 April 2006 “Treating doctor’s report” Dr Vago distinguished between past treatment (which did include physiotherapy), current treatment (which did not), and future treatment (which also included both physiotherapy and hydrotherapy).  This deliberate distinction in Dr Vago's treatment descriptions suggests a considered recognition of the desirability and utility of physiotherapy treatment for Mr Stojanovic’s condition.  It certainly does not suggest a conclusion that by April 2006 Mr Stojanovic had received “sufficient” treatment. 

22.     Neither does the history of Mr Stojanovic’s treatment justify that conclusion.  Since the March 2003 incident involving aggravation of his back pain, he had not undertaken any muscle strengthening and had very few physiotherapy sessions, none after August 2004.  This was despite the July 2005 treatment advice recorded in Dr Maniam’s August 2005 report – particularly the advice that he “remain” on physiotherapy and embark on regular muscle strengthening exercises.

23.     The history of failure to comply with Dr Maniam’s treatment advice would justify a conclusion that Mr Stojanovic’s condition had not been fully treated.  That conclusion is reinforced by the medical assessment report Centrelink subsequently obtained on Mr Stojanovic from Health Services Australia.  This report, by Dr Lovett-Iskandar is dated 5 June 2006.  Dr Lovett-Iskandar noted that Mr Stojanovic had received no physiotherapy or hydrotherapy since 2004 and that his current treatment was confined to analgesic medication and rest.  She noted, and expressly disagreed with, Dr Vago's opinion (contained in Dr Vago's 11 April 2006 “Treating doctor’s report”) that Mr Stojanovic was "totally unfit for work on a permanent basis".  Dr Lovett-Iskandar thought that the functional impact of Mr Stojanovic's condition should be regarded as temporary.  She considered that he "may benefit from further physio & hydrotherapy” as well as referral to a pain management clinic. 

24.     Dr Lovett-Iskandar’s treatment suggestions were taken up by the Authorised Review Officer (“ARO”) after the initial rejection of Mr Stojanovic’s claim.  The ARO contacted Dr Vago on 17 August 2006 and put to him the Health Services Australia recommendation that Mr Stojanovic may benefit from further physiotherapy hydrotherapy and pain management clinic treatment.  In the note of this conversation Dr Vago is recorded as agreeing with the treatment recommendation and with a further description of Mr Stojanovic's past treatment as conservative.  In the note, Dr Vago refrains from expressing any opinion as to whether or not the proposed further treatment would significantly improve Mr Stojanovic's condition, but he is recorded as saying that Mt Stojanovic “could do with the treatment suggested” – because he is young enough to try and improve his condition.

25.     Previous decisions of the Tribunal have held that an applicant's failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been "fully treated": Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment). In the present case, notwithstanding the absence of physiotherapy treatment, or attempts to undertake muscle strengthening, since at least August 2004, the Applicant contends that his condition should nevertheless be regarded as fully treated. This contention involves three points

(a)That Mr Stojanovic in fact complied with medical advice about required treatment.

(b)That absence of past treatment is irrelevant to the issue of full treatment.  The relevant enquiry is simply whether the hypothesised treatment “is likely to lead to significant functional improvement.”

(c)There is no evidence that the hypothesised further treatment would be available at reasonable cost.

26.     The first contention fails for the reasons I have already given.  Mr Stojanovic simply did not comply with Dr Maniam's advice - certainly after July 2005 and, more likely than not, for a considerable period prior to that.

27.     The second contention assumes that treatment recommendations that have been denied or disregarded by a patient should nevertheless be regarded as “further” reasonable medical treatment in assessing whether a condition has been fully treated.  (I am content to make the same assumption.  But as I point out later, the fact that treating doctors have in fact recommended particular treatment is capable of influencing an assessment of the likely effect of the “further” treatment.)  The contention relies on the language of part of paragraph 6 of the Introduction to the Impairment Tables.  It contrasts the expression “likely to lead to significant functional improvement” with Dr Lovett-Iskandar’s opinion that Mr Stojanovic “may benefit” from further physiotherapy, hydrotherapy and pain management referral.  In the Applicant’s submission Dr Lovett-Iskandar’s opinion merely recognises a possibility.  Mere possibility is not sufficient to demonstrate the utility of future treatment and consequently Mr Stojanovic’s condition should be regarded as “fully treated”.

28.     The terms of paragraph 6 are prescriptive of the topics that must be taken into account in the assessment of whether a condition has been “fully” treated.  Those topics are past, planned and hypothesised “reasonable” medical treatment.  But paragraph 6 is not prescriptive of the degree of satisfaction the assessor must achieve in relation to those topics.  Whilst hypothesised “further reasonable medical treatment” and its prospects of success must be considered, the assessment of whether a condition has been "fully treated" is not expressly made conditional upon actual satisfaction that the treatment is likely to lead to significant functional improvement.  Furthermore there is a difference between the wording of paragraph 5 and 6 in the Introduction.   In paragraph 5, the explicit criterion for determining whether or not a condition is "permanent" is a conclusion that "it is more likely than not" to persist for the foreseeable future.  In paragraph 6 the assessment of whether full treatment has occurred is to be carried out having regard to the whether or not the hypothesised treatment is “likely” to lead to significant functional improvement.  The context implies the deliberate rejection of the probability criterion used in paragraph 5 and the substitution, for the purpose of paragraph 6, of a less onerous criterion in which the word “likely” is used in the sense of an apparent suitability, capacity or qualification to bring about a stated result.  The connotation is more of reasonable belief in the prospect of a particular outcome, than satisfaction of the actual probability of its occurrence.  This contextual inference is complemented by the further explanation of “reasonable treatment” in paragraph 6.  The later part of paragraph 6 proceeds to explain that “reasonable treatment” is taken to be treatment that is feasible, accessible, regularly undertaken, has a high success rate and low risk and “where a substantial improvement can be reliably expected”.  The language of reliable expectation used there is again more suggestive of reasonable expectation than actual satisfaction about the probable outcome of the hypothesised treatment. 

29.     The word “likely” is well recognised as meaning either a balance of probability or a significantly lesser degree of possibility.  This was recognised by Bowen CJ  in Tillmanns Butcheries Pty Ltd v Australasian Meet Industry Employees' Union (1979) 42 FLR 331 at 339; (1979) 27 ALR 367 at 375 where he said

The word “likely” is one which has various shades of meaning. It may mean “probable” in the sense of “more probable than not” — “more than a 50 per cent chance”. It may mean “material risk” as seen by a reasonable man “such as might happen”. It may mean “some possibility” — more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

30.     Similarly, in Transport Ministry v Simmonds [1973] 1 NZLR 359 at 363, McMullin J. said

The Shorter Oxford English Dictionary gives one meaning of the word "likely" as being "probable", but it also gives as another "such as might well happen".  That "likely" may mean something less than "probable" is suggested by the fact that very often it is accompanied by the use of "very", "most" or "more".  In my view the meeting to be given to the word "likely" where it is used in a statute or regulation will depend upon the statute or regulation and the context in which the word is used.  An event which is likely may be an event which is probable that it may also be an event which, while not probable, could well happen.  But it must be more than a bare possibility.

31.     In the preceding citation McMullin J. recognises that in any particular case the meaning to be given to the word "likely" depends both upon the verbal context in which it is used and the intrinsic nature of the inquiry involved.  Where the enquiry involves an assessment of the “likelihood” of an outcome based on future events, the assessment is necessarily impressionistic and based on expectations derived from a general understanding of the events contemplated to occur as well as either past experience of their effect in similar circumstances or a satisfaction of their apparent capacity to produce a particular outcome.  In such a situation it will often be reasonable to infer that an enquiry as whether a particular outcome is “likely” does not require positive satisfaction on the balance of probability:  see Black v Sumitomo Corp [2003] 3 All ER 643 per Rix LJ at [72]; Three Rivers District Council v Bank Of England (No 4) [2002] 4 All ER 881 at [33]. This will particularly be the case where the matter to which the question of likelihood is addressed involves an essentially discretionary assessment on a matter that is preliminary to the determination of a final substantive entitlement – such as the issue of discoverability in the Three Rivers case and the risk of prejudicial publication in Cream Holdings Ltd v Banerjee [2003] 2 All ER 318 at [12], [75] & [76]. In the interpretation of paragraph 6 of the Introduction to the Impairment Tables the enquiry as to whether further treatment is “likely” to lead to significant functional improvement can be regarded as a discretionary assessment of this kind – because it is not expressed to be determinative, of itself, of the question whether the particular condition has been “fully treated”. The criterion of “full” treatment inherently suggests an enquiry as to whether all recommended, and also all feasible and accessible, treatments have been brought to bear in an attempt to ameliorate the particular condition. That suggestion of completeness in the treatment options implemented is encouraged by the explanatory exegesis in paragraph 6. It requires “reasonable treatment” to be evaluated according to whether it “can reliably be expected” to lead to improvement. That expression points more to the existence of an objectively reasonable basis to undergo the treatment proposed than to an actual belief that the desired outcome will probably be achieved.

32.     The preferable interpretation of paragraph 6 is that it permits a conclusion that a condition has not been fully treated if the hypothesised treatment (including treatment that has in fact been recommended by treating medical advisers) is feasible and accessible and provides a reliable expectation of significant functional improvement – even if that reliable expectation is not based on a positive belief in the actual probability of the desired outcome.  Such an approach has been taken in previous decisions of the Tribunal:  see Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 at [31].

33.     Alternatively, even if paragraph 6 does require a positive satisfaction of a significant functional improvement, I consider the evidence provides a sufficient basis for that conclusion in the present case.  The Applicant’s contention to the contrary emphasised the fact that Dr Lovett-Iskandar’s opinion about the effect of the further treatment she recommended was only that the applicant “may” benefit – this was the language of possibility rather than probability.  But Dr Lovett-Iskandar’s comment was merely an elaboration of the reasons for her conclusion that Mr Stojanovic condition was “temporary” and had not “stabilised”.  Elsewhere in her report her assessment was that Mr Stojanovic was “temporarily” unfit for 6 to 12 months.  Her assessment was that Mr Stojanovic would have the capacity to work 8 – 14 hours per week within 6 months and more than 30 hours per week within 2 years.  When Dr Lovett-Iskandar Lovett’s report is read as a whole it conveys her assessment that the treatment she proposed was likely, in the sense of more likely than not, to result in a significant increase in Mr Stojanovic’s functional capacity.

34.     Furthermore, the treatment proposed by Dr Lovett-Iskandar – physiotherapy, hydrotherapy and pain management - is substantially the same as that recommended by Dr Maniam in November 2003 and later in his 19 August 2005 report.  As I have noted earlier, Dr Maniam’s report includes advice that Mr Stojanovic “remain” on physiotherapy and “embark upon” a muscle strengthening program.  The fact that he gave the advice, as part of his treatment regime, and later expressed disappointment that Mr Stojanovic had not made “the improvement that has been anticipated” – a disappointment perhaps justified by Mr Stojanovic’s failure to follow the advice - provides a comfortable basis to conclude that the proposed treatment involving physiotherapy and pain management was “likely” to result in significant improvement.  As the SSAT noted in its 22 September 2006 Reasons for Decision, the proposed treatment is standard, conservative and readily available.  It may readily be inferred that treatments of that kind are recommended by treating doctors, and are standard, precisely because they are widely believed, and have been shown by experience, to be “likely to lead to significant functional improvement”. 

35. The Applicant’s third contention was that there was no evidence that the treatment proposed by Dr Lovett-Iskandar was available at a reasonable cost. Mr Stojanovic gave evidence that his past physiotherapy costs had been borne by the SRA and that he could not afford the cost of the physiotherapy sessions suggested by Dr Maniam in his 19 August 2005 report (approximately $45 per session and $900 per year). The concept of “reasonable cost” is used in paragraph 6 of the Introduction to the Impairment Tables as an elaboration of the description of the proposed treatment as “feasible and accessible”. It is addressed to the objective features of the treatment – rather than to an individual person’s capacity to pay – a capacity that must necessarily be limited in the case of any applicant for a DSP, given the application of income and assets restrictions: see ss 117 & 1065 of the Act. But even if an individual’s capacity to pay is a relevant consideration in assessing the reasonableness of the cost, regard must also be had to the nature of the treatment, its actual cost and the hypothesised benefit the treatment is intended to produce. Here the proposed treatment (specifically physiotherapy) is conservative, non-invasive and readily available, the benefit it is reasonably expected to provide is a significant improvement in functional capacity – ultimately with the prospect of a return to employment. In the comparison of cost and benefit even the sessional cost of $45 identified by Dr Maniam readily falls within the concept of reasonable cost for the purpose of paragraph 6. In relation to Dr Maniam’s advice in relation to muscle strengthening, even though Dr Maniam suggested that Mr Stojanovic attend a gymnasium, there seems little reason to doubt that with proper advice from his general practitioner, Mr Stojanovic could not embark on an exercise program at very little cost and without the need for gymnasium attendance.

36.     In my opinion the preceding discussion leads to the result that Mr Stojanovic’s back condition should not be regarded as having been fully treated.  He has not had any physiotherapy at all since August 2004 and before that, only minimal physiotherapy since October 2003.  The balance of medical opinion (Dr Lovett-Iskandar, Dr Maniam and Dr Vago - in his August 2006 conversation with the ARO) supports the view that further physiotherapy is desirable.  Dr Maniam specifically recommended that Mr Stojanovic embark on a muscle strengthening program in his August 2005 report.  Mr Stojanovic has done nothing in that regard since February 2003.  In August 2005 Dr Maniam advised a need for pain management counselling and Dr Lovett-Iskandar repeated that recommendation in June 2006.  Mr Stojanovic has never undertaken any such treatment.

The “fully stabilised” issue

37.     Paragraphs 4 & 6 of the Introduction to the Impairment Tables make full treatment and stabilisation of an impairment condition cumulative pre-requisites to the classification of the condition as “permanent”.  According to paragraph 5 a condition may be regarded as fully stabilised if it is “unlikely there will be any significant functional improvement” within two years, even if the condition is appropriately treated. 

38.     Where further reasonable medical treatment is hypothesised the anticipated effect of that treatment is likely to influence both the conclusion as to whether the condition has been fully treated and also as to whether it is fully stabilised.  This is especially the case if the question of the “likelihood” of “significant functional improvement” (a question that is posed as “likely” in paragraph 6 and as “unlikely” in paragraph 5) is regarded as an enquiring about the existence of a reliable expectation rather than requiring a conclusion as to the probability of improvement.

39.     There will be cases where the question whether a condition has been fully stabilised for the purpose of paragraph 5, needs to be considered separately from the question of the anticipated impact of hypothesised medical treatment.  It would arise in this case, even if Mr Stojanovic’s condition could be regarded as having been fully treated.  It would arise because of the evidence of considerable fluctuations in the extent of Mr Stojanovic’s functional impairment. 

40.     In his 19 August 2005 report Dr Maniam noted that Mr Stojanovic’s symptoms waxed and waned and that there were times when his problems were minimal.  He speculated that the nature of his employment at the SRA may not have been most suitable for Mr Stojanovic’s condition.  He commented that Mr Stojanovic did not seem to be capable of upgrading his hours (beyond four per day) unless his job was changed and he was given a more sedentary position.  But Dr Maniam at least regarded Mr Stojanovic as capable of working part time under the return to work plan at the SRA – as Mr Stojanovic had been doing for a considerable period. 

41.     This view of Mr Stojanovic’s capacity is corroborated by Dr Vago’s 20 February 2006 medical certificate.  This certificate was apparently provided as part of the requirements of Mr Stojanovic’s return to work plan with the SRA.  In the certificate Dr Vago certified Mr Stojanovic’s continued fitness for suitable duties for four hours a day five days a week.  Dr Vago signed the form indicating his agreement to be Mr Stojanovic’s “treating doctor” for the purpose of the return to work plan and to assist in his return to work.  There is a copy of the SRA return to work plan at page 65 of the T documents.  It describes the goal of the return to work plan as having Mr Stojanovic return to his pre-injury duties.  It refers to Dr Vago’s certification, in a 6 February 2006 report, of Mr Stojanovic’s continuing fitness for restricted duties for 20 hours per week.  When this is read with Mr Stojanovic’s evidence that he consulted Dr Vago fortnightly during his employment by the SRA it suggests Dr Vago’s long standing participation in the plan and presumably implies his belief not only of Mr Stojanovic’s fitness to undertake restricted duties but also that his return to his pre-injury duties was a realistically achievable goal.

42.     A little over a month later Dr Vago completed a 31 March 2003 report to Centrelink.  In that report he described Mr Stojanovic's lumbar spinal injury as permanent, though not stable.  At that time he gave his opinion that Mr Stojanovic was not likely to be able to return to any work, even on restricted hours, for more than 12 months.  This opinion is very different from his 20 February 2006 medical certificate.

43.      Dr Lovett Iskandar, following her examination in June 2006, reported that Mr Stojanovic's low back pain restricted him to light duties and that he was temporarily unfit for work for the next six to 12 months.  She assessed that even without the benefit of any intervention program Mr Stojanovic would be able to do unskilled light duties work between eight and 14 hours per week within about six months and that within two years he would be able to work in excess of 30 hours per week. 

44.     Following the Dr Lovett-Iskandar’s assessment Mr Stojanovic obtained a further medical certificate from Dr Bern, a locum for Dr Vago.  Mr Stojanovic explained that he obtained this certificate to demonstrate to his former employer, the SRA, his willingness to participate in a return to work plan.  This explanation probably justifies an inference that Mr Stojanovic was highly motivated to resume his employment, but it does not provide a reason to conclude that Dr Bern’s assessment was anything other than a properly based objective medical opinion.  In his 30 June 2006 certificate Dr Bern's certified Mr Stojanovic as fit for "suitable duties" for the period from 3 July 2006 until 3 August 2006.  Unlike Dr Vago’s 20 February 2006 certificate Dr Bern did not indicate any restriction on the nature or duration of Mr Stojanovic's work duties - other than the need to "avoid twisting / turning / bending".  It may be that this latter restriction means that Dr Bern’s certificate should be understood as subject to an implied limitation that Mr Stojanovic is restricted to light duties.  But even so there is no express limitation on Mr Stojanovic’s proposed hours of work.  And when the February and June certificates are read together they both evidence a capacity to work that is consistent with the pattern of Mr Stojanovic’s employment from late 2003 until February 2006.  These assessments are apparently and notably inconsistent with Dr Vago's unequivocal statement (in his 11 April 2006 report) that Mr Stojanovic was "totally unfit for work on a permanent basis".  They are also inconsistent with Dr Lovett-Iskandar’s 5 June 2006 assessment that Mr Stojanovic was likely to be temporarily unfit for any work for six to 12 months.

45.     The preceding paragraph reveals very significant differences in the assessment of Mr Stojanovic’s degree of impairment, within a relatively short period in 2006.  They occurred at a time when Mr Stojanovic was not undergoing any treatment, other than medication.  Yet there is nothing to suggest that the differences in assessment are attributable to the medication, because Mr Stojanovic said that he takes either Tramal, Panadeine or Voltaren most days, though only one tablet a day.  The differences in the assessment of Mr Stojanovic’s functional abilities revealed by these reports indicate that the preferable conclusion is that his condition should not be regarded as fully stabilised.

Conclusion

46. Mr Stojanovic’s diagnosed lumbar condition has not been “fully treated” and is not “fully stabilised”. It is not eligible for a point rating under the Schedule 1B Impairment Tables. Consequently Mr Stojanovic cannot satisfy the requirements of s 94(1)(b) of the Act. The decision of the SSAT is affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Peter Taylor SC, Senior Member

Signed: ……...[Emily Gadsby]...................
  Associate

Date/s of Hearing  2 March 2007
Date of Decision  3 April 2007 
Solicitor for the Applicant          Mr S Hodges 
Solicitor for the Respondent     Mr A Cox of DLA Phillips Fox