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Paternostro and Secretary, Department of Social Services [2014] AATA 739 (14 October 2014)
Last Updated: 14 October 2014
[2014] AATA 739
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2014/1478
Re
Toni PATERNOSTRO
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Dr Ion Alexander, Member
Date
14 October 2014
Place
Perth
The decision under review is affirmed.
......Sgd (I Alexander)..................................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
14 October 2014
BACKGROUND
On 20 August 2012, Mr Paternostro lodged a claim for Disability Support Pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function. The conditions as described in the claim form included “cancer of the right kidney and conditions of the back, neck, left ankle right shoulder and left hip”.
Mr Paternostro’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (“the Act”), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.
In this proceeding Mr Paternostro seeks review of the decision of the SSAT.
The hearing was conducted by telephone as Mr Paternostro is currently living in Cambodia.
ISSUES
In order to qualify for DSP Mr Paternostro had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the Claim Period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 20 August 2012 and 19 November August 2012.
The medical conditions which Mr Paternostro claims are causing functional impairment are somewhat unclear, however, the respondent accepts that, during the claim period Mr Paternostro satisfied s 94(1)(a) of the Act, in so far as he had various medical conditions but that his total impairment rating is nil points.
For the purposes of this proceeding, after having considered all the relevant documents the medical conditions that need to be considered include:
Cancer of the right kidney
A mental health condition
A spinal condition
Other conditions involving the right upper limb, the right lower limb and the chest
The central issue to be considered in this proceeding is whether, during the claim period, Mr Paternostro had an impairment rating of 20 points under the Impairment Tables.
IMPAIRMENT RATING
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner and that in the assessment of a person’s impairment there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
Mr Paternostro’s Condition of Cancer of the Right Kidney
Mr Paternostro’s claim was supported by a Centrelink Medical Report dated 20 August 2012, in which Dr Sam, general practitioner, lists cancer of the right kidney as a condition with most functional impact.
I note Dr Sam’s report is difficult to read and provides little useful information particularly in respect of how this condition affects Mr Paternostro’s ability to function.
In a letter, dated 19 September 2012, Dr Han, urology fellow, notes that it is 6 months after laparoscopic right nephrectomy for renal cell carcinoma and that there is no evidence of metastatic disease or local recurrence.
In the letter there is no mention of any other treatment, other than six monthly reviews with CT scanning. There is no reference to functional impairment.
In a letter, dated 20 March 2013, Dr Kong, urology registrar, confirms that Mr Paternostro has continued on six monthly CAT scan surveillance.
A CT scan report, dated 19 March 2013, notes no significant change in comparison with the previous CT scan on 14 September 2012, apart from a lesion in the liver with the features of a simple hepatic cyst.
In a Centrelink medical report, dated 17 June 2013, Dr Davies, general practitioner, lists renal cell carcinoma as condition with most functional impact and describes the impact as “nausea pain”.
At the hearing Mr Paternostro agreed that he was currently not receiving any treatment for his renal carcinoma and was unable to describe any significant functional impact. He indicated that he was returning to Australia in November 2014 for his next CT scan.
I find that Mr Paternostro’s condition of renal cell carcinoma is permanent within the meaning of the Act.
However, in my view, there is insufficient evidence before the Tribunal to support a conclusion that, during the claim period, there was any significant functional impact as a result of this condition and therefore the impairment rating is nil.
Mr Paternostro’s Mental Health Condition
In his report of 20 August 2012, Dr Lam lists PTSD as a medical condition generally well managed and which causes minimal or limited impact.
Dr Davies, in his report of 16 June 2013, lists “generalised anxiety disorder” as a medical condition with most impact and describes the impact as “decreased memory & concentration.”
At the hearing Mr Paternostro denied having a mental health condition.
I note that functional impairment caused by a mental health condition is assessed under Impairment Table 5 and that the Introduction to the Table stipulates that the diagnosis of a condition must be “made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
As there has been no diagnosis by a psychiatrist or clinical psychologist I find that Mr Paternostro’s purported mental health condition was not fully diagnosed during the claim period and therefore a rating under the Impairment Tables cannot be allocated.
Mr Paternostro’s spinal condition
Mr Paternostro claims that he suffers from chronic back pain since an accident at work in 1994 and also complains of ill-defined neck symptoms.
In his report of 20 August 2012, Dr Sam lists “back injury” as a condition with significant impact but his description of functional impact is illegible.
Dr Sam makes a largely illegible reference to the “neck” as a condition with minimal or limited impact.
Dr Davies in his report lists “low back pain” as a condition with the most impact and describes the impact as “decrease ROM pain on prolonged standing.”
Dr Davies lists “degenerative cervical spine disorder” as a condition with minimal or limited impact but provides no information for the basis of his diagnosis.
In a report of a lumbar spine CT scan, dated 14 March 2013, it is noted that there small central calcified disc bulges from L2/3 to lumbosacral levels with a possible impingement on the L5 nerve root but no evidence of foraminal narrowing.
This scan was performed almost 4 months after the end of the claim period and the relevance to Mr Paternostro’s claimed symptoms is unclear.
In respect of Mr Paternostro’s claimed neck symptoms there is no satisfactory medical evidence before the Tribunal to support a diagnosis.
I conclude that the evidence before the Tribunal is insufficient to be satisfied that Mr Paternostro’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period and therefore a rating under the Impairment Tables cannot be allocated.
Mr Paternostro’s Other Conditions
Mr Paternostro claims that he suffers ongoing impairment from past injuries to his left ankle, right shoulder and chest.
Dr Lam, in his report of 20 August 2012, makes reference to the left ankle and right shoulder as conditions with minimal or limited impact but provides no other relevant information. He makes no reference to any chest injury.
The report of an X-ray of the left ankle, dated 5 August 2010, notes the presence of a “posterior chondral chip fracture.”
The report of an X-ray of the left ankle, dated 25 February 2013, notes that “There is possibly a little irregularity of texture of the lower fibula which may be related to the previous injury. No more definite joint abnormality. No specific cause for pain or intermittent swelling identified.”
The report of a chest x-ray and right rib x-ray, dated 21 December 2011, notes “a very subtle area of lucency associated with subtle contour abnormality of the posterolateral 9th rib, suggestive of a subtle fracture.”
The report of a chest x-ray, dated 19 March 2013, notes no abnormality of the lungs or ribs.
In my view the limited medical evidence in respect of Mr Paternostro’s claimed past injuries is not sufficient to support a conclusion that, during the claim, any of these conditions were fully diagnosed, fully treated and fully stabilised and, therefore a rating under the Impairment Tables cannot be allocated.
DECISION
For the reasons set out above, I am satisfied that during the claim period Mr Paternostro’s total impairment rating under the Impairment Tables was nil
This means that Mr Paternostro did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member
.....Sgd (A Tran)...................................................................
Associate
Dated 14 October 2014
Date of hearing
1 September 2014
Applicant
Solicitor for the Respondent
By Telephone
Ms S Vahala, Australian Government Solicitor
Last Updated: 14 October 2014
[2014] AATA 739
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2014/1478
Re
Toni PATERNOSTRO
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Dr Ion Alexander, Member
Date
14 October 2014
Place
Perth
The decision under review is affirmed.
......Sgd (I Alexander)..................................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
14 October 2014
BACKGROUND
On 20 August 2012, Mr Paternostro lodged a claim for Disability Support Pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function. The conditions as described in the claim form included “cancer of the right kidney and conditions of the back, neck, left ankle right shoulder and left hip”.
Mr Paternostro’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (“the Act”), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.
In this proceeding Mr Paternostro seeks review of the decision of the SSAT.
The hearing was conducted by telephone as Mr Paternostro is currently living in Cambodia.
ISSUES
In order to qualify for DSP Mr Paternostro had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the Claim Period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 20 August 2012 and 19 November August 2012.
The medical conditions which Mr Paternostro claims are causing functional impairment are somewhat unclear, however, the respondent accepts that, during the claim period Mr Paternostro satisfied s 94(1)(a) of the Act, in so far as he had various medical conditions but that his total impairment rating is nil points.
For the purposes of this proceeding, after having considered all the relevant documents the medical conditions that need to be considered include:
Cancer of the right kidney
A mental health condition
A spinal condition
Other conditions involving the right upper limb, the right lower limb and the chest
The central issue to be considered in this proceeding is whether, during the claim period, Mr Paternostro had an impairment rating of 20 points under the Impairment Tables.
IMPAIRMENT RATING
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner and that in the assessment of a person’s impairment there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
Mr Paternostro’s Condition of Cancer of the Right Kidney
Mr Paternostro’s claim was supported by a Centrelink Medical Report dated 20 August 2012, in which Dr Sam, general practitioner, lists cancer of the right kidney as a condition with most functional impact.
I note Dr Sam’s report is difficult to read and provides little useful information particularly in respect of how this condition affects Mr Paternostro’s ability to function.
In a letter, dated 19 September 2012, Dr Han, urology fellow, notes that it is 6 months after laparoscopic right nephrectomy for renal cell carcinoma and that there is no evidence of metastatic disease or local recurrence.
In the letter there is no mention of any other treatment, other than six monthly reviews with CT scanning. There is no reference to functional impairment.
In a letter, dated 20 March 2013, Dr Kong, urology registrar, confirms that Mr Paternostro has continued on six monthly CAT scan surveillance.
A CT scan report, dated 19 March 2013, notes no significant change in comparison with the previous CT scan on 14 September 2012, apart from a lesion in the liver with the features of a simple hepatic cyst.
In a Centrelink medical report, dated 17 June 2013, Dr Davies, general practitioner, lists renal cell carcinoma as condition with most functional impact and describes the impact as “nausea pain”.
At the hearing Mr Paternostro agreed that he was currently not receiving any treatment for his renal carcinoma and was unable to describe any significant functional impact. He indicated that he was returning to Australia in November 2014 for his next CT scan.
I find that Mr Paternostro’s condition of renal cell carcinoma is permanent within the meaning of the Act.
However, in my view, there is insufficient evidence before the Tribunal to support a conclusion that, during the claim period, there was any significant functional impact as a result of this condition and therefore the impairment rating is nil.
Mr Paternostro’s Mental Health Condition
In his report of 20 August 2012, Dr Lam lists PTSD as a medical condition generally well managed and which causes minimal or limited impact.
Dr Davies, in his report of 16 June 2013, lists “generalised anxiety disorder” as a medical condition with most impact and describes the impact as “decreased memory & concentration.”
At the hearing Mr Paternostro denied having a mental health condition.
I note that functional impairment caused by a mental health condition is assessed under Impairment Table 5 and that the Introduction to the Table stipulates that the diagnosis of a condition must be “made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
As there has been no diagnosis by a psychiatrist or clinical psychologist I find that Mr Paternostro’s purported mental health condition was not fully diagnosed during the claim period and therefore a rating under the Impairment Tables cannot be allocated.
Mr Paternostro’s spinal condition
Mr Paternostro claims that he suffers from chronic back pain since an accident at work in 1994 and also complains of ill-defined neck symptoms.
In his report of 20 August 2012, Dr Sam lists “back injury” as a condition with significant impact but his description of functional impact is illegible.
Dr Sam makes a largely illegible reference to the “neck” as a condition with minimal or limited impact.
Dr Davies in his report lists “low back pain” as a condition with the most impact and describes the impact as “decrease ROM pain on prolonged standing.”
Dr Davies lists “degenerative cervical spine disorder” as a condition with minimal or limited impact but provides no information for the basis of his diagnosis.
In a report of a lumbar spine CT scan, dated 14 March 2013, it is noted that there small central calcified disc bulges from L2/3 to lumbosacral levels with a possible impingement on the L5 nerve root but no evidence of foraminal narrowing.
This scan was performed almost 4 months after the end of the claim period and the relevance to Mr Paternostro’s claimed symptoms is unclear.
In respect of Mr Paternostro’s claimed neck symptoms there is no satisfactory medical evidence before the Tribunal to support a diagnosis.
I conclude that the evidence before the Tribunal is insufficient to be satisfied that Mr Paternostro’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period and therefore a rating under the Impairment Tables cannot be allocated.
Mr Paternostro’s Other Conditions
Mr Paternostro claims that he suffers ongoing impairment from past injuries to his left ankle, right shoulder and chest.
Dr Lam, in his report of 20 August 2012, makes reference to the left ankle and right shoulder as conditions with minimal or limited impact but provides no other relevant information. He makes no reference to any chest injury.
The report of an X-ray of the left ankle, dated 5 August 2010, notes the presence of a “posterior chondral chip fracture.”
The report of an X-ray of the left ankle, dated 25 February 2013, notes that “There is possibly a little irregularity of texture of the lower fibula which may be related to the previous injury. No more definite joint abnormality. No specific cause for pain or intermittent swelling identified.”
The report of a chest x-ray and right rib x-ray, dated 21 December 2011, notes “a very subtle area of lucency associated with subtle contour abnormality of the posterolateral 9th rib, suggestive of a subtle fracture.”
The report of a chest x-ray, dated 19 March 2013, notes no abnormality of the lungs or ribs.
In my view the limited medical evidence in respect of Mr Paternostro’s claimed past injuries is not sufficient to support a conclusion that, during the claim, any of these conditions were fully diagnosed, fully treated and fully stabilised and, therefore a rating under the Impairment Tables cannot be allocated.
DECISION
For the reasons set out above, I am satisfied that during the claim period Mr Paternostro’s total impairment rating under the Impairment Tables was nil
This means that Mr Paternostro did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member
.....Sgd (A Tran)...................................................................
Associate
Dated 14 October 2014
Date of hearing
1 September 2014
Applicant
Solicitor for the Respondent
By Telephone
Ms S Vahala, Australian Government Solicitor