Sultana and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 826
•22 November 2012
[2012] AATA 826
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2705
Re
Victor Sultana
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 22 November 2012 Place Sydney The Tribunal affirms the decision under review.
...........[sgd].............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – back, shoulder, hernia and knee conditions – whether conditions treated and stabilised – Tribunal satisfied that treated and stabilised impairments rated 20 points – not satisfied applicant had continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94 and Sch 1B
Social Security (Administration) Act 1999 s 42 and Sch 2
REASONS FOR DECISION
Senior Member J F Toohey
22 November 2012
BACKGROUND
Mr Victor Sultana suffers from chronic back pain, right shoulder pain, pain in both knees and an umbilical hernia. He seeks review of a decision to refuse his application for a disability support pension (DSP).
To qualify for DSP, Mr Sultana must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, he must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a “continuing inability to work” as defined in the Act.
The respondent accepts that each of Mr Sultana’s conditions is an impairment within the meaning of the Act but says they do not attract the necessary rating and, further, that Mr Sultana does not have a continuing inability to work.
Mr Sultana applied for DSP on 11 August 2011. For his application to succeed, he had to qualify for the pension on, or within 13 weeks of, that date: s 42 and Sch 2 of the Social Security (Administration) Act 1999.
THE ISSUE
I have to decide whether, during the relevant period, being from 11 August 2011 to 10 November 2011, Mr Sultana qualified for DSP. That requires me to determine in relation to each of his conditions:
(i)whether it could be assigned a rating on the Impairment Tables during the relevant period;
(ii)if so, what rating it should be assigned.
If I am satisfied that Mr Sultana’s impairments rated 20 points or more, I then have to determine whether he also had a continuing inability to work.
THE IMPAIRMENT TABLES
The Impairment Tables (the Tables) is a legislative instrument determined by the Minister under s 26 of the Act. They are used to assess the effect of an impairment on a person’s ability to work.
In relation to rating an impairment, the Introduction to the Tables states:
4A 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.
…
5The condition must be considered to be permanent. Once the 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 two years.
6In order to assess whether it 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 two years.
In this context reasonable treatment is taken to be:
treatment is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and whether treatment or procedure is of the 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 that 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.
CAN RATINGS BE ASSIGNED TO MR SULTANA’S IMPAIRMENTS?
Evidence about Mr Sultana’s conditions is found in:
(i)reports from his general practitioner, Dr Maha Mikhail;
(ii)radiological scans and reports;
(iii)reports of Job Capacity Assessments (JCAs) undertaken by Job Capacity Assessors for Centrelink in August 2011 and December 2012;
(iv)a Centrelink Functional Capacity Evaluation Assessment (FCEA) in December 2011; and
(v)reports from the Department of Human Services’ Health Professional Advisory Unit (HPAU).
Mr Sultana made extensive written submissions and gave oral evidence before the Tribunal. Dr Ian Smith, a medical adviser to the HPAU, gave evidence by telephone. Ms Butler gave evidence in person.
Back condition
Mr Sultana has suffered from chronic back pain since a motor vehicle accident in 1986 when he was 19. Dr Mikhail describes his pain as “severe” and says he is unable to lift (she does not specify what weight) and unable to sit, walk or stand for any length of time. In a report in August 2011, she stated that current treatment was rest and analgesia; she expected the pain would persist for more than 24 months and Mr Sultana’s condition was likely to deteriorate. She described him as “very compliant” with treatment.
Although she stated that future treatment comprised a cortisone injection and physiotherapy, Dr Mikhail later confirmed in a conversation with Ms Butler that this was incorrect, and no future treatment was planned.
Mr Sultana gave evidence, which I accept, that he underwent physiotherapy for approximately 12 months after the accident. He also underwent a pain management program comprising occupational therapy, education about pain and medications and alternative treatments, and cognitive behaviour therapy.
Currently, Mr Sultana has massages from time to time, and acupuncture, but he finds it difficult to afford the cost of these treatments on a regular basis. He takes Panadeine Forte on average twice a week but not more because he does not want to become addicted and he does not want kidney damage. He follows what he describes as a pain management program which was devised by a physiotherapist around the time of his accident and which involves daily stretching and strengthening exercises at home. He makes sure he does not aggravate the pain and, for example, sits in a reclining position.
X-rays of Mr Sultana’s thoracic and lumbar spine, and a CT scan of his lumbar spine, in August 2011 showed “a gentle thoracic scoliosis” in his thoracic spine and minor facet joint degenerative change at L4-5 and L5/S1. No significant disc bulging, herniation, exit foraminal stenosis or spinal canal compromise was demonstrated.
JCA report August 2011
In her first JCA, which she conducted with the assistance of another assessor, Ms Butler recorded that she had spoken with Dr Mikhail who confirmed the treatment program described by Mr Sultana. Ms Butler concluded, given the long-standing nature of his condition, that he had undergone physiotherapy, and no change in his treatment was anticipated, that Mr Sultana’s back condition was fully diagnosed, treated and stabilised.
Ms Butler noted that Mr Sultana’s back pain affected his ability to complete all aspects of daily living and his ability to engage in work related activities, and assigned a rating of TWENTY points on Table 20: Miscellaneous conditions including chronic fatigue or pain. She included the chronic pain from his right knee in that rating.
Functional Capacity Evaluation Assessment
A detailed FCEA was undertaken in December 2011. The report of the assessment recorded Mr Sultana’s typical daily activities, reported tolerances for various activities, and range of movement. The assessor concluded that he “demonstrated inconsistencies in task performance” throughout the examination and that a reliable determination of his functional impairment could not be made. She thought the inconsistencies indicated “possible non-organic causes of pain”. She concluded that he might benefit from pain management review and from “disability education” so that he would better understand his symptoms and the tasks that were likely to exacerbate them.
HPAU advice
In January 2012, a registered nurse at the HPAU reviewed Mr Sultana’s file. She concluded there was sufficient evidence from which to conclude that his back condition was permanent, fully diagnosed, treated and stabilised. She agreed with the rating assigned by Ms Butler.
JCA report January 2012
In January 2012, Ms Butler completed a second JCA. She rated Mr Sultana according to Table 5.2: Thoraco-lumbar-sacral spine on the basis that following the FCEA and advice from a registered nurse at the HPAU, she considered Table 5.2 more appropriate. The nurse’s advice was to the effect that Mr Sultana had not explored “reasonable treatment and management options” for chronic pain.
Ms Butler referred in her report to the FCEA report and noted that Mr Sultana had “loss of half range of normal movement with sitting tolerance of 5-10 minutes and a standing tolerance of 10 minutes”. On this basis, she assigned TWENTY points on Table 5.2.
The Authorised Review Officer’s decision
In January 2012, after Mr Sultana requested a review of the decision to refuse his application, an Authorised Review Officer (ARO) determined that his chronic back pain was permanent, fully diagnosed, treated and stabilised, and rated TWENTY points on Table 5.2. However, the ARO was not satisfied that Mr Sultana had a continuing inability to work and rejected his application on that ground.
The reviewable decision
In May 2012, the Social Security Appeals Tribunal (SSAT) heard Mr Sultana’s application for review of Centrelink’s decision. The SSAT “was not convinced” that Mr Sultana had “significant functional impairment from his back” and concluded it “[did] not attract an impairment rating”. In my view, the tests which the SSAT apparently imported into its determination are not reflected in the legislation or the Tables.
In these proceedings, the respondent contends that Mr Sultana’s back condition is not fully diagnosed, treated and stabilised. For the reasons which follow, I do not agree.
Dr Smith’s evidence
Dr Smith reviewed Mr Sultana’s case in September 2012 for the purposes of the Tribunal hearing. He considered the radiological scans, various medical reports and the JCAs and the FCEA, and spoke to Dr Mikhail. He has not examined Mr Sultana in person.
Dr Smith gave evidence that the gentle scoliosis shown on x-rays of Mr Sultana’s thoracic spine indicated that it was mild, and it was probably an incidental finding, given that Mr Sultana complained of pain in the lumbar spine. Dr Smith thought the “minor degenerative change” shown in Mr Sultana’s lumbar spine fairly typical of men of his age.
Dr Smith gave evidence that x-rays and scans are not indicators of pain, and a person may have extreme pain with minimal radiological findings. He did not dispute the level of pain reported by Mr Sultana but said he could find no evidence of features such as a disc prolapse that might explain it.
Asked whether he thought Mr Sultana’s back condition was treated and stabilised at the relevant time, Dr Smith said he thought chronic pain, with more or less incidental radiological findings, required “more vigorous” investigation to determine its cause. He thought Mr Sultana should have seen a sports medicine specialist or an orthopaedic specialist for a thorough examination. For that reason, he did not think Mr Sultana’s back pain was fully diagnosed, treated and stabilised.
Dr Smith acknowledged that conditions cannot be investigated “to the nth degree”. He said opinions differ as to whether a formal diagnosis of chronic pain, or chronic regional pain syndrome, are necessary but he thought Mr Sultana’s chronic pain could arguably be rated under Table 20 without a formal diagnosis.
Consideration
Dr Smith’s evidence was careful and considered. He did not dispute the severity of pain that Mr Sultana says he experiences, only its cause. I accept the possibility that referral to a specialist might lead to a diagnosis from which further or different treatment might be recommended.
On balance, however, I am satisfied that Mr Sultana’s back condition is fully diagnosed, treated and stabilised. In coming to this conclusion, I have taken into account the fact that Mr Sultana’s back condition has been ongoing for more than 20 years, that he has had conservative treatment, including following his own daily exercise regime, throughout that time. It is relevant that Dr Mikhail has referred him to a specialist for his shoulder, knees and hernia conditions, but has not seen reason to refer him to a specialist for his back.
Mr Sultana gave evidence that Dr Mikhail has only been his doctor since about 2010, and before that he would see different doctors from time to time but generally tried to keep away from them. It is probable, if any previous doctor thought a referral to a specialist was warranted, that it would have happened. I note that Dr Mikhail says Mr Sultana is very compliant with treatment.
Taking into account all of the evidence, I am satisfied, and find, that Mr Sultana’s back condition was fully diagnosed, treated and stabilised at the relevant period.
Rating
Paragraph 8 of the Introduction to the Tables states:
In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the assessor is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table that otherwise would be used to assess the loss of function to which the pain relates. Assessors must use their judgment and be convinced that pain or fatigue is a significant factor contributing to the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic or entrenched pain or fatigue.
Dr Smith thought Mr Sultana’s condition could arguably be rated under Table 20 but it is not necessary, for present purposes, to determine whether that is so. The Introduction to the Tables makes clear that Table 20 is used where the relevant Table for the spinal condition underestimates the level of disability.
Table 5.2 assigns the following ratings to lumbosacral impairment:
Rating
Criteria
NIL
Normal or nearly normal range of movement.
FIVE
Loss of one quarter of normal range of movement.
TEN
Loss of one‑quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.or
Loss of half of normal range of movement.
TWENTY
Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.or
Loss of three quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint.
I agree with Ms Butler that a rating of TWENTY points under Table 5.2 is appropriate. As that is sufficient to satisfy s 94(1)(b) of the Act, whether it underestimates the level of disability, and whether Table 20 might be used, are immaterial.
Right shoulder condition
Mr Sultana has suffered from a painful tendonitis in his right shoulder since a bike accident in about 1979. He says it “came good by itself” and the pain was no more than an occasional niggle until it flared up during 2010. Since then it has caused him constant severe pain and loss of movement. It has not responded to physiotherapy.
In August 2011, Dr Mikhail reported that Mr Sultana’s shoulder condition was likely to last for more than 24 months and was likely to deteriorate. She thought it might need surgery.
Mr Sultana gave evidence that Dr Mikhail has now referred him to a specialist. A copy of the referral letter is in evidence. Mr Sultana agreed that his shoulder is not fully treated and stabilised.
In contrast, Dr Smith gave evidence that Mr Sultana’s shoulder probably could be considered fully treated and stabilised because it seemed likely that it would persist with or without treatment. That said, he thought it would rate NIL points on Table 3: Upper Limb Function.
I am satisfied that Mr Sultana’s shoulder condition is permanent but I am not satisfied that it was fully treated and stabilised during the relevant period. Dr Smith was somewhat equivocal in his opinion, and it goes more to the question of whether the condition is permanent, rather than whether it is fully treated and can be assigned a rating. Previous surgery apparently gave relief for many years and Mr Sultana’s treating doctor believes it is warranted again. Mr Sultana does not dispute this.
Taking these matters into account, I am satisfied Mr Sultana’s shoulder condition cannot be assigned an impairment rating.
Knee condition
Mr Sultana sustained an injury to his right knee in the late 1980s. He underwent surgery in the late 1980s and again in the early 1990s. He gave evidence that, at the time of his claim for DSP, the pain was becoming worse. In the past six months or so, he injured his left knee. He now has pain in both knees and the pain in the right knee is getting worse.
Because Mr Sultana’s claim for DSP was made on the basis of his right knee only, no determination has been made in relation to his left knee and I must disregard it.
Dr Mikhail reports that Mr Sultana underwent physiotherapy for 12 months after each operation and he maintains a home-based exercise program. She has now referred him to a specialist. In her report in August 2011, she listed his knee condition in that part of the form that asks about “any other medical conditions that are generally well managed and that cause limited or minimal impact on ability to function”. Under “Impact on ability to function” she wrote “Severe”.
Mr Sultana contends that his right knee is fully treated and stabilised. At the time of her assessment, Ms Butler thought it was fully diagnosed, treated and stabilised. At that time, Dr Mikhail had not referred Mr Sultana to a specialist. That has now changed.
I am satisfied Mr Sultana’s right knee condition is permanent but, given that he is still to see a specialist, I do not agree that it is fully treated and stabilised.
If I am wrong, and if Mr Sultana’s right knee condition can be assigned a rating, the appropriate Table is Table 4: Function of the Lower Limbs which assigns the following ratings:
Rating
Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250 500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50 250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self propelled wheelchair.
According to the report of the FCEA, Mr Sultana reported that his knee feels “loose” on waking up and “clicks into place” after 10 minutes to one hour. The pain is sharp and intense, and worse in wet or cold weather. It increases with prolonged standing and decreases with light exercises and stretching. The assessor recorded that Mr Sultana had full range of flexion in both knees and could extend both; no difficulties were observed. Mr Sultana reported that he could walk for 15 minutes, which the assessor estimated was equivalent to 500 - 1000 metres. She noted that, despite his reported pain, he put weight on his right knee when kneeling and climbing stairs.
Ms Butler assigned a rating of NIL points. Dr Smith gave evidence that he would assign the same rating.
Taking into account what Mr Sultana reported to the FCEA assessor, the findings of the FCEA, and Ms Butler’s and Dr Smith’s opinions, I find that, if it can be assigned a rating, Mr Sultana’s right knee would attract a NIL rating.
Umbilical hernia
According to Dr Mikhail, Mr Sultana’s umbilical hernia will improve significantly with surgery. Mr Sultana accepts her advice and is on a waiting list for surgery. He agrees his hernia is not treated and stabilised and cannot be assigned a rating. I am satisfied that is correct.
DID MR SULTANA HAVE A CONTINUING INABILITY TO WORK?
At the relevant time, s 94(2) provided:
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person's locally accessible labour market: s 94(5).
In deciding whether or not a person has a continuing inability to work because of an impairment, regard is not to be had to the availability to the person of a training activity or the availability to the person of work in the person's locally accessible labour market: s 94(3).
Mr Sultana gave evidence that he left school in Year 8, when he was about 13. He said he “kicked around” at home with his father and occasionally helped out in his transport business. In about 1993 or 1994, he started his own transport business. He employed drivers and occasionally drove himself but was limited because of his back pain. He sold the business in 2003 or 2004 when it was not doing well. He did not work again until 2007 when he started another transport business. He spent about an hour each day managing the business but was limited by his back pain and his staff did most of the work. He sold the business in 2008 when it went “belly up” and ceased trading in November 2008. He has not worked since.
Mr Sultana gave evidence that he would like to manage his own business again but says he would need to employ others to do all the work. He says he cannot undertake a retraining program because he cannot concentrate on account of his chronic pain. Dr Mikhail supports unable to work or do any courses.
At the time of her assessment in August 2011, Ms Butler thought Mr Sultana’s capacity for work was 0-7 hours per week. This was on account of the recent aggravation of his right shoulder pain which needed time to settle before he could participate in vocational activities. She thought Mr Sultana had the capacity work 15 to 22 hours per week within two years with assistance to help him manage his health conditions, support to participate in vocational activities and in securing suitable employment. She considered that light semi-skilled work such as customer service would be suitable.
Ms Butler reported that Mr Sultana needed “specialised assistance” to secure employment and ongoing post-placement support to ensure he could safely sustain duties. She identified appropriate “interventions” as adult vocational course, vocational assessment and counselling, job search skills, help with job-seeking and with post-placement support.
Ms Butler has been a Job Capacity Assessor since 2007. She impressed me as a compassionate and objective person. She gave evidence that she has worked with many people with disabilities. She recognised Mr Sultana’s pain but said she felt strongly that he could work for 15 hours a week within two years with assistance. She acknowledged his need for assistance, including with pain management, and had referred him to a Disability Service Provider.
Mr Sultana acknowledged in evidence that his businesses failed for reasons other than his impairments. He has not attempted work since. I have no doubt that he suffers from pain which is severe at times and which limits him. Ms Butler’s report recognises the assistance he would need in order to sustain employment. That assistance is available to him. In the absence of any evidence that he has tried and been unable to work for 15 hours or more a week, I am not satisfied that Mr Sultana has a continuing inability to work.
CONCLUSION
Mr Sultana impressed me as a truthful person who has struggled with pain for many years. He has seen two businesses fail. For a relatively young man, he faces considerable difficulties. However, for the reasons I have given, I affirm the decision under review.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey .........[sgd]...............................................................
Associate
Dated 22 November 2012
Date(s) of hearing 6 November 2012 Date final submissions received 15 November 2012 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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