AAT Overturns Decision By JCA After Doctor Testifies
Aug 26, 2016 8:48:25 GMT 7
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Post by Banjo on Aug 26, 2016 8:48:25 GMT 7
You can see here the importance of proper preparation with the full support of your medical practitioner.
Slee and Secretary, Department of Social Services (Social services second review) [2016] AATA 594 (12 August 2016)
mail-attachment.googleusercontent.com/attachment/u/1/?ui=2&ik=dee2ded660&view=att&th=156badd1e31a6d40&attid=0.1&disp=inline&realattid=f_is8f054d0&safe=1&zw&saddbat=ANGjdJ9otr3UmhZjL-Msn9p869NW9Aul5zTFa4jxBAQD8xr9qLwZnBltrpZlqB9FxFwLtZXmB0wskB1SSdFu3-UTIkwNA1GKtZy1HGBMWIDgAQM1Kows2qWMn5UR7hS8LGW_71YTvtQ_xTaEQ8x-LqKARNqrwSlGZ750bJU4wYPg4CcZCt8AmW391jfY8l4YNn-UZ__r0Jp0zAD6mKWd-WCEt52WEmr9RnOPAvoUDBW9AiRXH3g0Yh9pGfSQ0B8K_e7Ka1Q2SMkTkhLZf7kUCZTjEAvefxlQQR1ie97yBV-IgdOf-Gs76N489oxGmfmhP8smrWouaBJ2SqXsSlIvPkE7_GL7E-01GkIQSTsYlNML5sFp0apHC7yQgBb5PatmDxln8qCFC2FrfLip5D6vmL0OfrETsDppQDXKhX8YX5cTkTn77aYbhR5nxGokvpGYIVv8L2-SKLGF86kRcDzNhFx0vnykUXpXJplzWVwQWZSLCvOxOiDdUy0mAuRe8pwZM3en4LaKir0975bIwFyoswnd70FRZiqD6NTi8EovHM8_G-02GEqOVho7ZeILK802cmMogSu7h8Okr4aXWiwmwutMDfgnLUjFvE3Q1I-i2WNcJTMcCaQX-9kcEyBnNwqD7tFTOh-Wx0wTwd1QfJweea3_V_ZJpZIrxn4BAy_ZVQ
BACKGROUND
The material facts in these proceedings are not in dispute and are largely extracted from the statement of facts and contentions of the respondent.
As part of his claim for DSP the applicant also lodged a “Medical Report – disability support pension” form dated 24 March 2015.[2] This was completed by his treating practitioner, Dr R Gadd. In the medical report form Dr Gadd records that the applicant had consulted Professor David Shaw concerning the chronic post viral syndrome.[3]
On 5 May 2015, a Job Capacity Assessment was conducted to assist in the determination of the applicant’s qualification for DSP.[4] The assessor found that the applicant suffered from a spinal disorder, a chronic post viral syndrome, a gastroenterological condition and a right little finger amputation. Of all these conditions, only the amputation was considered by the assessor to be fully diagnosed, fully treated and fully stabilised and thus capable of having an impairment rating assigned to it under the Impairment Tables. The assessor assigned an impairment rating of zero points for this condition under Table 2.
The assessor said in relation to the spinal disorder that (1) there is no verified evidence of any involvement with a specialist to advise on appropriate treatment options; (2) there is no verified evidence of involvement with any physical therapy; and (3) there is no evidence of involvement with any pain management clinics/specialists. The assessor also said that the applicant may benefit from a multi-disciplinary approach to pain management with advice on pain perceptions, strategic use of appropriate medications, bench marking and pacing techniques, and appropriate physical therapy and activity levels.
In his medical report, Dr Gadd reported that the applicant is unable to perform any overhead activities and that he is unable to move his head without moving his trunk.
The respondent submitted that the applicant’s qualification for DSP is to be solely determined during the Relevant Period and that the decisions of the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[5] and Re Fanning and Secretary, Department of Social Services[6] were relevant, as were the decisions of the Federal Court in Harris v Secretary, Department of Employment and Workplace Relations[7] and Gallacher v Secretary, Department of Social Services[8].
EVIDENCE
Evidence of Applicant
It was the applicant’s evidence that he had been involved in a motorbike accident in 2000 and he said his hips “don’t sit square”. In 2011, a friend had asked him to help change a tyre on a car, but when the tyre lever slipped the tip of his right little finger was amputated. When the amputated tip could not be reattached, he had to have an operation to trim the stump, and later operations were also necessary. He said he had not been undertaking any physical therapies and had not seen any osteoarthritis specialists. He had seen Professor Shaw at the Royal Adelaide Hospital in relation to the CMV (CMV – cytomegalovirus) infection.
When cross-examined by Mr Visser, the applicant said that he no longer consumed alcohol, that he could wash his hair in the bath and that he did not shower unless he had to. At his home, there were no high cupboards because they were all shoulder height and he could lean forward to reach them. He was constantly in pain in his shoulders, his hips and his neck. In his kitchen he had to stand because all the shelves were in the middle of the room. When he was asked what caused pain in his spine, the applicant said it was fibromyalgia. He said he walked with his dog two times each day for 10-15 minutes. He could not wear lace-up shoes because he could not bend over to tie the laces. His shirts were not buttoned and were all pull ons.
Evidence of Dr Gadd
For the applicant, Dr Gadd gave evidence by telephone. When he was referred to his medical report, he noted that the applicant’s “Condition 1” was osteoarthritis affecting spine. He then referred to page 21 concerning Table 4 of the Impairment Tables in the Determination.[10] In the descriptors for 20 points under Table 4 (severe functional impact on activities involving spinal function) the person is unable to:
(a) perform any overhead activities; or
(b) turn their head or bend their neck without moving their trunk.
When asked about the other descriptors, Dr Gadd said that the applicant satisfied the first two and as they were alternatives he only needed to satisfy one. When he was told that the job capacity assessor had not assigned any points under Table 4, Dr Gadd questioned how the assessor could ignore his own tables for impairment. He then said he wanted to know where the assessor had got his medical degree from. He said his qualification was because he was the applicant’s treating doctor. He reiterated that he rated the applicant’s impairment from what he saw of him, from radiology examination and from clinical assessment. He said that on that item alone, he believed the applicant qualified for 20 points for osteoarthritis affecting the spine.
Dr Gadd then referred to item (i) on page 9 of his medical report (impact on ability to function),[11] where he noted that the applicant was
“unable to perform light day to day household actions eg folding and putting away laundry or light gardening and has difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours”.
When referred to Table 1 (Functions requiring Physical Exertion and Stamina), he said the applicant satisfied (1)(a)(ii) and (b)(ii) in the 10 point descriptor for moderate functional impact on activities requiring physical exertion or stamina in that Table. In doing so, he said the applicant gained another 10 points under Table 1 for the post-viral condition, totalling overall 30 impairment points. When questioned further, Dr Gadd was unable to comment on any instructions about the applicant’s conditions once he had reached 20 points.
Mr Visser cross-examined Dr Gadd about radiological investigations. When Mr Visser suggested that the radiological examination did not showing anything particularly bad, Dr Gadd said that when assessing a patient’s physical disabilities, radiology only gives part of the picture and the other part is the clinical assessment of the patient’s range of movement. He said that unfortunately radiology is not absolutely specific. At its best, radiology gives an indication as to the structure, but it does not say very much at all about the function. When asked whether the applicant had fibromyalgia, Dr Gadd said fibromyalgia would be more consistent with the applicant’s post-viral type syndrome and there is no test that can either prove or disprove it, as it is based on clinical assessment. He said that he did not know whether the applicant had been seen by a physiotherapist, but it would make no difference anyway. He also said that the applicant had “difficulty” moving his head, without moving his whole trunk. And in this, difficulty meant pain. Mr Visser asked why, in the medical certificates he had provided to the respondent, Dr Gadd had not written that the applicant was suffering from osteoarthritis of the spine. Dr Gadd said that, in the certificate on 12 May 2015,[12] the viral arthropathy, the CMV and the amputated little finger were the major factors why the applicant was unable to perform work. The viral arthropathy and the amputated right little finger were affecting him more than a severe impairment of his spine. Dr Gadd also said that he was writing medical certificates as to why the applicant was unable to work, not necessarily providing a complete report on his disabilities. In relation to the CMV condition, he sent the applicant to Professor Shaw in relation to his history of CMV. So when the Professor says the current symptoms do not fit that of CMV, he is talking about acute CMV.[13]
I referred Dr Gadd to Table 4 and his opinion that the osteoarthritis was severe. That the respondent had done a review of the applicant’s claim, and that the ARO had said that the condition was permanent, but it could not be considered to be fully diagnosed, treated and stabilised. In responding to what I put to him, Dr Gadd said he could not understand how the respondent could say that, given that (1) he has radiological evidence of arthropathy, and (2) his clinical assessment is to address the requirement for functional impact on activities. Table 4 does not say anatomical impact, it says functional impact. He said that when he mentioned clinical assessment, this implies that he has actually assessed the individual’s range of movement and their ability to perform the activities that are described in the Impairment Tables. And that assessment would have been made at or around the time of his medical report dated 24 March 2015.
Slee and Secretary, Department of Social Services (Social services second review) [2016] AATA 594 (12 August 2016)
mail-attachment.googleusercontent.com/attachment/u/1/?ui=2&ik=dee2ded660&view=att&th=156badd1e31a6d40&attid=0.1&disp=inline&realattid=f_is8f054d0&safe=1&zw&saddbat=ANGjdJ9otr3UmhZjL-Msn9p869NW9Aul5zTFa4jxBAQD8xr9qLwZnBltrpZlqB9FxFwLtZXmB0wskB1SSdFu3-UTIkwNA1GKtZy1HGBMWIDgAQM1Kows2qWMn5UR7hS8LGW_71YTvtQ_xTaEQ8x-LqKARNqrwSlGZ750bJU4wYPg4CcZCt8AmW391jfY8l4YNn-UZ__r0Jp0zAD6mKWd-WCEt52WEmr9RnOPAvoUDBW9AiRXH3g0Yh9pGfSQ0B8K_e7Ka1Q2SMkTkhLZf7kUCZTjEAvefxlQQR1ie97yBV-IgdOf-Gs76N489oxGmfmhP8smrWouaBJ2SqXsSlIvPkE7_GL7E-01GkIQSTsYlNML5sFp0apHC7yQgBb5PatmDxln8qCFC2FrfLip5D6vmL0OfrETsDppQDXKhX8YX5cTkTn77aYbhR5nxGokvpGYIVv8L2-SKLGF86kRcDzNhFx0vnykUXpXJplzWVwQWZSLCvOxOiDdUy0mAuRe8pwZM3en4LaKir0975bIwFyoswnd70FRZiqD6NTi8EovHM8_G-02GEqOVho7ZeILK802cmMogSu7h8Okr4aXWiwmwutMDfgnLUjFvE3Q1I-i2WNcJTMcCaQX-9kcEyBnNwqD7tFTOh-Wx0wTwd1QfJweea3_V_ZJpZIrxn4BAy_ZVQ
BACKGROUND
The material facts in these proceedings are not in dispute and are largely extracted from the statement of facts and contentions of the respondent.
As part of his claim for DSP the applicant also lodged a “Medical Report – disability support pension” form dated 24 March 2015.[2] This was completed by his treating practitioner, Dr R Gadd. In the medical report form Dr Gadd records that the applicant had consulted Professor David Shaw concerning the chronic post viral syndrome.[3]
On 5 May 2015, a Job Capacity Assessment was conducted to assist in the determination of the applicant’s qualification for DSP.[4] The assessor found that the applicant suffered from a spinal disorder, a chronic post viral syndrome, a gastroenterological condition and a right little finger amputation. Of all these conditions, only the amputation was considered by the assessor to be fully diagnosed, fully treated and fully stabilised and thus capable of having an impairment rating assigned to it under the Impairment Tables. The assessor assigned an impairment rating of zero points for this condition under Table 2.
The assessor said in relation to the spinal disorder that (1) there is no verified evidence of any involvement with a specialist to advise on appropriate treatment options; (2) there is no verified evidence of involvement with any physical therapy; and (3) there is no evidence of involvement with any pain management clinics/specialists. The assessor also said that the applicant may benefit from a multi-disciplinary approach to pain management with advice on pain perceptions, strategic use of appropriate medications, bench marking and pacing techniques, and appropriate physical therapy and activity levels.
In his medical report, Dr Gadd reported that the applicant is unable to perform any overhead activities and that he is unable to move his head without moving his trunk.
The respondent submitted that the applicant’s qualification for DSP is to be solely determined during the Relevant Period and that the decisions of the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[5] and Re Fanning and Secretary, Department of Social Services[6] were relevant, as were the decisions of the Federal Court in Harris v Secretary, Department of Employment and Workplace Relations[7] and Gallacher v Secretary, Department of Social Services[8].
EVIDENCE
Evidence of Applicant
It was the applicant’s evidence that he had been involved in a motorbike accident in 2000 and he said his hips “don’t sit square”. In 2011, a friend had asked him to help change a tyre on a car, but when the tyre lever slipped the tip of his right little finger was amputated. When the amputated tip could not be reattached, he had to have an operation to trim the stump, and later operations were also necessary. He said he had not been undertaking any physical therapies and had not seen any osteoarthritis specialists. He had seen Professor Shaw at the Royal Adelaide Hospital in relation to the CMV (CMV – cytomegalovirus) infection.
When cross-examined by Mr Visser, the applicant said that he no longer consumed alcohol, that he could wash his hair in the bath and that he did not shower unless he had to. At his home, there were no high cupboards because they were all shoulder height and he could lean forward to reach them. He was constantly in pain in his shoulders, his hips and his neck. In his kitchen he had to stand because all the shelves were in the middle of the room. When he was asked what caused pain in his spine, the applicant said it was fibromyalgia. He said he walked with his dog two times each day for 10-15 minutes. He could not wear lace-up shoes because he could not bend over to tie the laces. His shirts were not buttoned and were all pull ons.
Evidence of Dr Gadd
For the applicant, Dr Gadd gave evidence by telephone. When he was referred to his medical report, he noted that the applicant’s “Condition 1” was osteoarthritis affecting spine. He then referred to page 21 concerning Table 4 of the Impairment Tables in the Determination.[10] In the descriptors for 20 points under Table 4 (severe functional impact on activities involving spinal function) the person is unable to:
(a) perform any overhead activities; or
(b) turn their head or bend their neck without moving their trunk.
When asked about the other descriptors, Dr Gadd said that the applicant satisfied the first two and as they were alternatives he only needed to satisfy one. When he was told that the job capacity assessor had not assigned any points under Table 4, Dr Gadd questioned how the assessor could ignore his own tables for impairment. He then said he wanted to know where the assessor had got his medical degree from. He said his qualification was because he was the applicant’s treating doctor. He reiterated that he rated the applicant’s impairment from what he saw of him, from radiology examination and from clinical assessment. He said that on that item alone, he believed the applicant qualified for 20 points for osteoarthritis affecting the spine.
Dr Gadd then referred to item (i) on page 9 of his medical report (impact on ability to function),[11] where he noted that the applicant was
“unable to perform light day to day household actions eg folding and putting away laundry or light gardening and has difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours”.
When referred to Table 1 (Functions requiring Physical Exertion and Stamina), he said the applicant satisfied (1)(a)(ii) and (b)(ii) in the 10 point descriptor for moderate functional impact on activities requiring physical exertion or stamina in that Table. In doing so, he said the applicant gained another 10 points under Table 1 for the post-viral condition, totalling overall 30 impairment points. When questioned further, Dr Gadd was unable to comment on any instructions about the applicant’s conditions once he had reached 20 points.
Mr Visser cross-examined Dr Gadd about radiological investigations. When Mr Visser suggested that the radiological examination did not showing anything particularly bad, Dr Gadd said that when assessing a patient’s physical disabilities, radiology only gives part of the picture and the other part is the clinical assessment of the patient’s range of movement. He said that unfortunately radiology is not absolutely specific. At its best, radiology gives an indication as to the structure, but it does not say very much at all about the function. When asked whether the applicant had fibromyalgia, Dr Gadd said fibromyalgia would be more consistent with the applicant’s post-viral type syndrome and there is no test that can either prove or disprove it, as it is based on clinical assessment. He said that he did not know whether the applicant had been seen by a physiotherapist, but it would make no difference anyway. He also said that the applicant had “difficulty” moving his head, without moving his whole trunk. And in this, difficulty meant pain. Mr Visser asked why, in the medical certificates he had provided to the respondent, Dr Gadd had not written that the applicant was suffering from osteoarthritis of the spine. Dr Gadd said that, in the certificate on 12 May 2015,[12] the viral arthropathy, the CMV and the amputated little finger were the major factors why the applicant was unable to perform work. The viral arthropathy and the amputated right little finger were affecting him more than a severe impairment of his spine. Dr Gadd also said that he was writing medical certificates as to why the applicant was unable to work, not necessarily providing a complete report on his disabilities. In relation to the CMV condition, he sent the applicant to Professor Shaw in relation to his history of CMV. So when the Professor says the current symptoms do not fit that of CMV, he is talking about acute CMV.[13]
I referred Dr Gadd to Table 4 and his opinion that the osteoarthritis was severe. That the respondent had done a review of the applicant’s claim, and that the ARO had said that the condition was permanent, but it could not be considered to be fully diagnosed, treated and stabilised. In responding to what I put to him, Dr Gadd said he could not understand how the respondent could say that, given that (1) he has radiological evidence of arthropathy, and (2) his clinical assessment is to address the requirement for functional impact on activities. Table 4 does not say anatomical impact, it says functional impact. He said that when he mentioned clinical assessment, this implies that he has actually assessed the individual’s range of movement and their ability to perform the activities that are described in the Impairment Tables. And that assessment would have been made at or around the time of his medical report dated 24 March 2015.
