Visvalingam and Secretary, Department of Social Services (Social services second review)

Visvalingam and Secretary, Department of Social Services (Social services second review) [2022] AATA 2346 (20 July 2022)
Division:GENERAL DIVISION
File Number: 2020/7754
Re:Sundravel Visvalingam
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:20 July 2022
Place:Sydney

The decision under review is affirmed.
.............................[SGD].........................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the qualification period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) sch 2, s 42
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
REASONS FOR DECISION
Dr L Bygrave, Member
20 July 2022
INTRODUCTION

Mr Sundravel Visvalingam lodged a claim for disability support pension on 26 August 2019.
Services Australia[1], both initially and on review, rejected Mr Visvalingam’s claim for disability support pension on the basis that he did not meet the requirements set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).
[1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.
Mr Visvalingam subsequently applied for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 10 November 2020, the AAT1 affirmed the decision of Services Australia.
On 24 November 2020, Mr Visvalingam made an application for review of decision to the General Division of the Tribunal.
The application was heard by the Tribunal in Sydney on 5 July 2022. As Mr Visvalingam was overseas, he did not attend the hearing and requested the matter be heard ‘on the papers’. I have marked the documents filed by the Secretary in accordance with section 37 of the Administrative Appeals Tribunal 1975 Act (Cth) as Exhibit ‘T’ (T1–T53). Additional documents filed by the Secretary and Mr Visvalingam have also been marked as listed in Annexure A.
RELEVANT LEGISLATION
Qualification for disability support pension
The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and include the requirement for Mr Visvalingam to show he has:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
Mr Visvalingam must satisfy the qualification criteria on 26 August 2019, the date he made his claim for disability support pension, or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the qualification period).
Rules for assigning impairment ratings
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).
The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it may be rated between nil and 30 points.
An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider whether it has been fully diagnosed by an appropriately qualified medical practitioner; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.
Reasonable treatment is described as treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person: subsection 6(7) of the Impairment Tables Determination.
CONSIDERATION
The medical evidence shows Mr Visvalingam has been diagnosed with bilateral knees osteoarthritis, a spinal condition and diabetes. Consequently, the Secretary accepts – and I also find – that Mr Visvalingam had physical impairments during the qualification period and therefore satisfies paragraph 94(1)(a) of the Act.
It follows that the determinative issues in this matter are whether, during the qualification period, Mr Visvalingam had:
·an impairment rating of 20 points or more under the Impairment Tables as required by paragraph 94(1)(b) of the Act; and
·a continuing inability to work as required by paragraph 94(1)(c) of the Act.
Does Mr Visvalingam have an impairment rating of 20 points or more under the Impairment Tables?
Bilateral knees osteoarthritis
Mr Visvalingam’s condition of bilateral knees osteoarthritis has been verified in medical imaging reports including an ultrasound of his right knee dated 17 November 2016, x-rays of his right and left knees dated 29 March 2017, a bone scan dated 30 March 2017 and a bilateral knees x-ray dated 10 July 2018.
A report by Dr Nasr Ragy (general practitioner) dated 28 October 2019 stated that Mr Visvalingam suffers from ‘chronic stage 4 arthritis painful joints’ and has ‘limited movement associated with knee pain’.[2] Dr Ragy also wrote that Mr Visvalingam was ‘under the care of Dr Patapainan [sic] rheumatologist’.[3]
[2] Exhibit T-T36.
[3] Exhibit T-T36.
Dr Harry Patapanian (consultant rheumatologist and physician) completed written medical reports dated 10 July 2018, 3 August 2018, 3 September 2019 and 6 February 2022. On 3 August 2018, Dr Patapanian stated the following about Mr Visvalingam’s knees:
Plain x-ray imaging of [his] knees shows end-stage, grade 4 osteoarthritis with early medial/varus angulation of the knees without chondrocalcinosis. The patella has been deviated laterally on both sides.
…
He will require bilateral total knee joint replacement arthroplasty and he will consult you for a referral to an orthopaedic surgeon of your choice… [W]e should expedite the referrals, because the waiting list in our local public hospital is around 12 – 18 months…
They will only do one knee joint at a time, so it might be three years by the time both knees are completed and his health will otherwise deteriorate.
Significant and sustained weight loss and quadriceps exercises are essential, but he is not keen on steroid injections and cannot manage without voltaren, on a daily basis.[4]
[4] Exhibit T-T22.
Dr Patapanian further reported on 3 September 2019, during the relevant qualification period, that Mr Visvalingam:
has been very diligent with his weight loss and exercise program… He uses voltaren 50mg twice daily as required. His walking distance are [sic] still only around 200m and he will continue hydrotherapy and using exercise bicycle in continuing weight loss.[5]
[5] Exhibit T-T32.
A medical certificate by Dr Patapanian on 4 February 2020 stated that Mr Visvalingam experienced symptoms of ‘severe bilateral knee pain’ and described his treatment as ‘steroid injections, NSAIDS [non-steroidal anti-inflammatory drugs], home exercises, TKR R&L [total knee reconstruction right and left]’.[6] He opined Mr Visvalingam could not undertake his ‘usual work’ but could do ‘other work’, which he described as ‘sedentary desk work’, for eight hours or more per week.[7]
[6] Exhibit T-T43.
[7] Exhibit T-T43.
Prior to the hearing, Mr Visvalingam filed further reports written by Dr Ragy on 28 January 2022 and Dr Patapanian on 6 February 2022. I note these reports are dated more than two years after the qualification period.
Relevant to the treatment of Mr Visvalingam’s bilateral knees osteoarthritis, Dr Patapanian reported on 6 February 2022 that Mr Visvalingam ‘felt that he could not proceed’ with surgery and stated:
The only definitive and appropriate treatment available to [Mr Visvalingam] is total knee replacement arthroplasty and he is aware of his unsatisfactory remaining palliative options including NSAID/ preferential COX-2 blockers, steroid injections and ongoing exercises and the control of his body weight.[8] [emphasis added]
[8] Exhibit A4.
Dr Patapanian also reported on 6 February 2022 in relation to Mr Visvalingam’s function that he ‘cannot walk for longer than five minutes on level ground’, can ‘manage his personal hygiene and the shower’, has ‘declined the use of a walking stick or frame’ and is ‘still able to [drive] for variable periods’.[9]
[9] Exhibit A4.
Based on the medical evidence, I am satisfied Mr Visvalingam’s bilateral knees osteoarthritis was fully diagnosed, but not fully treated and fully stabilised during the qualification period. I accept that, prior to and during the qualification period, Mr Visvalingam had participated in treatments that included pain medication, weight loss and exercises, steroid injections, and ongoing specialist review. However, he had not undertaken (and, indeed, later declined to undertake) total knee replacement arthroplasty, which was described by Dr Patapanian on 6 February 2022 as the ‘only definitive and appropriate treatment’ for his bilateral knees osteoarthritis.
As I find that Mr Visvalingam’s bilateral knees osteoarthritis was not permanent during the qualification period, I cannot assign points for this condition under the Impairment Tables Determination.
Having regard to the descriptors in Table 3 – Lower Limb Function of the Impairment Tables Determination, I also note Dr Patapanian’s reporting of Mr Visvalingam’s lower limb function included that he could walk for 200 metres, participate in hydrotherapy and use an exercise bicycle on 3 September 2019, and did not require the use of a walking stick or frame on 6 February 2022. I further note that Mr Visvalingam’s immigration records show he departed Australia on 12 April 2019 and arrived in Australia on 14 August 2019, less than two weeks before he lodged his claim for disability support pension. He again departed Australia on 20 February 2020, approximately three months after the qualification period. I am satisfied this evidence does not support a finding during the qualification period that Mr Visvalingam was ‘unable to stand for more than 10 minutes’ or required a walking stick to ‘mobilise effectively’ as stipulated in the descriptors for a mild functional impact on activities using his lower limbs under Table 3 – Lower Limb Function of the Impairment Tables Determination.
Spinal condition
On 23 September 2015, following a CT lumbar spine on 3 September 2015, Dr Ragy referred Mr Visvalingam to a physiotherapist and a neurosurgeon in relation to his back pain. Mr Visvalingam underwent further medical imaging with a bone scan on 30 March 2017 and a CT of his lumbar sacral spine on 10 July 2018.
On 3 August 2018, Dr Patapanian stated in relation to Mr Visvalingam’s lumbar spine:
His lumbar spine shows severe degenerative disease throughout.
He has at least moderate spinal canal stenosis at the L2/3 and L3/4 levels, as well as the 4/5, with multiple levels of the bilateral neural foramen stenoses, gross facet joint hypertrophy, advanced disc disease with positive gas signs in the area is suggestive of stability, but without signs of any malignancy.[10]
[10] Exhibit T-T22.
There is limited medical evidence regarding treatment undertaken by Mr Visvalingam in relation to his spinal condition. A medical certificate completed by Dr Patapanian on 4 February 2020 jointly outlined Mr Visvalingam’s condition of ‘advanced spinal stenosis’ with his diagnosis of osteoarthritis in his knees and described treatment as including ‘steroid injections, NSAIDS, home exercises’.[11] It is unclear whether these treatments were for Mr Visvalingam’s bilateral knees osteoarthritis or spinal condition or both conditions.
[11] Exhibit T-T43.
A report by Dr Ragy dated 28 January 2022 also provides the following general comments about Mr Visvalingam’s medical conditions:
He experiences daily chronic pain of his joints and ongoing leg pain, he finds difficulty in doing his daily chores and his personal care…
Due to his increasing pain and progressive symptoms, he will require long term treatment and pain killers for more than 2 years, and will require regular follow-up and investigations for management of his debilitating chronic medical conditions.
…
His treatment included medications referrals to specialists for his conditions physiotherapy follow up with investigations and appointment attendance.
Mr Visvalingam is always compliant with all recommended treatments and advice from his health care providers.
He has been referred to the appropriate specialist since the onset of his pain and medical issues, his medical conditions are long term and he will require regular management and medications.[12]
[12] Exhibit A3.
However, I place limited weight on this report as it is dated more than two years after the qualification period and it is unclear whether this information relates specifically to treatment undertaken by Mr Visvalingam for his spinal condition.
Dr Patapanian reported on 6 February 2022 that Mr Visvalingam had not been treated with steroid injections to the lumbar spine in the previous two years, and further noted Mr Visvalingam had concerns ‘about the potential ramifications of steroid injection therapy for the lumbar spine’ and opined ‘these can be undertaken with an acceptable risk/benefit ratio’.[13]
[13] Exhibit A4.
Based on the available evidence, I am satisfied Mr Visvalingam’s spinal condition was fully diagnosed during the qualification period. However, I find there is insufficient medical evidence to show this condition was fully treated and fully stabilised during the qualification period. As I am not satisfied the condition was permanent during the qualification period, I am unable to assign points in accordance with the Impairment Tables Determination.
Diabetes
Dr Eddy Tabet (endocrinologist) provided a report dated 12 September 2019, in which he stated Mr Visvalingam was diagnosed with diabetes in ‘late 2018’ and had ‘poorly controlled diabetes and symptomatic hyperglycaemia’.[14]
[14] Exhibit T-T33.
Dr Tabet also reported on 12 September 2019 that he had ‘arranged urgent biochemistry and autoantibody testing’ and on receiving the results, advised Mr Visvalingam to ‘present to the emergency department urgently for fluids and insulin’ but he did ‘not follow this recommendation’.[15] He opined that Mr Visvalingam ‘likely has type 2 diabetes with severe insulin resistance and is currently glucose toxic’, and he had reviewed his insulin medication and arranged urgent review with an educator at Bankstown hospital.[16]
[15] Exhibit T-T33.
[16] Exhibit T-T33.
In a further report on 12 December 2019, Dr Tabet opined that Mr Visvalingam’s ‘adherence to his medication is an issue’.[17]
[17] Exhibit T-T42.
I note the reports of Dr Tabet are dated during and shortly after the qualification period. Based on this medical evidence, I am satisfied Mr Visvalingam’s diabetes was fully diagnosed, but not fully treated and fully stabilised during the qualification period. For this reason, I cannot assign points for this condition under the Impairment Tables Determination.
CONCLUSION
Based on the evidence, I am not satisfied that Mr Visvalingam met the requirement in paragraph 94(1)(b) of the Act during the qualification period because his impairments were not rated at 20 or more points under the Impairment Tables.
As I find Mr Visvalingam did not meet the disability support pension criteria in paragraph 94(1)(b) of the Act, it is not necessary to consider whether he had a continuing inability to work as required by paragraph 94(1)(c) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 20 July 2022

Date of hearing: 5 July 2022 (Heard on the Papers)

Applicant: Ms S Visvalingam

Solicitors for the Respondent:
Ms E Ulrick, Services Australia

ANNEXURE A

EXHIBITS
Description	Date of document	Exhibit No.
Documents filed by the Secretary in accordance with section 37 of the Administrative Appeals Tribunal 1975 Act (Cth)	Various	T1
AMP Claim Acceptance Letter	1 February 2019	A1
Singapore Airlines Booking Information for Travel	Various	A2
Pathology Report and Medical Report by Dr Ragy	28 January 2022	A3
Rheumatologist Report by Dr Patapanian	6 February 2022	A4
Email to Applicant from Respondent Containing Programs Support Calculation	23 March 2022	A5
Screenshot Showing Claim Submitted on 21 March 2022	Undated	A6
Centrelink Medical Certificate	10 March 2022	A7
Centrelink Medical Certificate	25 March 2022	A8
MRI Report of Right Knee	17 March 2022	A9
MRI Report of Left Knee	17 March 2022	A10
Immigration Advised Movements	2 May 2022	R1

[2022] AATA 2346

20 July 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Date of hearing:	5 July 2022 (Heard on the Papers)
Applicant:	Ms S Visvalingam
Solicitors for the Respondent:	Ms E Ulrick, Services Australia