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

[2016] AATA 21

Anderson and Secretary, Department of Social Services (Social services second review) [2016] AATA 21 (22 January 2016)

Division	GENERAL DIVISION
File Number	2015/3052
Re	Joseph Anderson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	22 January 2016
Place	Brisbane

The decision under review is affirmed.

.......................[Sgd].................................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – continuing inability to work - value of medical evidence – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 27, 94

Social Security (Administration) Act 1999 (Cth), ss 63, 80

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member A C Cotter

22 January 2016

INTRODUCTION

1. In November 2014, Mr Joseph Anderson lodged a claim for Disability Support Pension (“DSP”), listing his disabilities as “lifting, bending, sitting, grasping, standing, operation on C6/C7 disc, bulging disc in lower back”.[1]

   [1] Exhibit 1, T Documents, T 15, page 76, DSP claim form dated 2 November 2014.

2. A supporting medical report was provided by his general practitioner, Dr Tom Valena. He identified two conditions which had an impact on Mr Anderson’s ability to function: lower back pain with bilateral S1 radiation, and prolapsed disc at C6/C7 with discectomy and fusion.[2]

   [2] Exhibit 1, T Documents, T 14, pages 56 and 59, Medical Report of Dr Tom Valena dated 31 October 2014.

3. A Job Capacity Assessment (“JCA”) was subsequently undertaken, with the assessor recommending that Mr Anderson be assigned 15 impairment points in respect of his impairments.[3]

   [3] Exhibit 1, T Documents, T 18, pages 94-99, JCA Report dated 19 January 2015.

4. The claim was in turn rejected on the basis that Mr Anderson did not have an impairment rating of 20 points or more.[4]

   [4] Exhibit 1, T Documents, T 19, pages 100-101, Centrelink rejection letter dated 20 January 2015.

5. Mr Anderson lodged a further report from Dr Valena, which noted, in connection with the neck disorder, a weakness in Mr Anderson’s left hand. The doctor also listed another condition, secondary anxiety and depression, as being generally well managed and that caused minimal or limited impact on ability to function. He added that Mr Anderson also had traits of agoraphobia and obsessive compulsive disorder.[5]

   [5] Exhibit 1, T Documents, T 21, pages 103-113, Medical Report of Dr Tom Valena dated 2 February 2015.

6. Another JCA was conducted, but there was no change in the recommendation concerning impairment points.[6]

   [6] Exhibit 1, T Documents, T 22, pages 114-120, JCA Report dated 17 March 2015.

7. A review by an Authorised Review Officer (“ARO”) was unsuccessful, with him affirming the original decision.[7]

   [7] Exhibit 1, T Documents, T 24, pages 122-125, ARO letter dated 26 March 2015.

8. Mr Anderson sought a review of that decision by the then Social Security Appeals Tribunal (“SSAT”), producing a further report from Dr Valena regarding the lower back pain condition.[8] Despite that further report, the SSAT affirmed the ARO’s decision.[9]

   [8] Exhibit 1, T Documents, T 28, pages 129-138, Medical Report of Dr Tom Valena dated 10 April 2015.

   [9] Exhibit 1, T Documents, T 2, pages 3-8, SSAT’s Decision and Reasons for Decision dated 27 May 2015.

9. Dissatisfied with the outcome, Mr Anderson has sought a review of the SSAT’s decision by this Tribunal. He had also lodged two further reports from Dr Valena.[10] In light of the additional reports, a further JCA was also conducted. Again, there was no change in the recommendation of the impairment points to be assigned in respect of Mr Anderson’s impairments.[11]

   [10] Exhibit 1, T Documents, T31, pages 141-151, Medical Report of Dr Tom Valena dated 19 June 2015 and Exhibit 2(a), Attachment A to Secretary’s Statement of Facts and Contentions (Medical Report of Dr Tom Valena dated 25 August 2015).

   [11] Exhibit 2(b), Attachment B to Secretary’s Statement of Facts and Contentions (JCA Report dated 20 October 2015).

10. Before I deal with the issues in this matter, I summarise below the key legislative provisions relevant to my considerations.

    THE LEGISLATIVE FRAMEWORK

11. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

12. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 3 November 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[12] Therefore, the relevant period for considering whether Mr Anderson qualified for DSP is between 3 November 2014 and 2 February 2015.

    [12] See ss 41 and 42, and cll 3 and s 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

13. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[13] The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[15]

    [13] See s 26(1) of the Act.

    [14] See s 5(2) of the Determination.

    [15] See s 6(1) of the Determination.

14. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[16] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[17]

    [16] See s 6(3) of the Determination.

    [17] See s 6(4) of the Determination.

15. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: 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.[18]

    [18] See s 6(5) of the Determination.

16. A condition is “fully stabilised” if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[19]

    [19] See s 6(6) of the Determination.

17. “Reasonable treatment” is 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.[20]

    [20] See s 6(7) of the Determination.

18. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[21]

    [21] See s 11(1) of the Determination.

19. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

    ISSUES FOR THE TRIBUNAL

20. Based on the significant amount of medical evidence that has been provided, there is no dispute that Mr Anderson suffers from a number of medical conditions (namely, his neck and lower back conditions and his psychological conditions) and that he has physical and psychiatric impairments arising as a consequence.[22] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.

    [22] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 24 November 2015, paragraph [26].

21. The remaining issues for me to consider are therefore:

    (d)Whether, at the relevant time, Mr Anderson’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

    (e)If so, whether Mr Anderson had a continuing inability to work.

    CONSIDERATION

    Did Mr Anderson’s impairments attract 20 points or more under the Impairment Tables?

22. I address this question by reference to Mr Anderson’s medical conditions mentioned above.

    Spinal conditions – neck and lower back conditions

23. There is no dispute that the neck condition and the lower back condition are fully diagnosed, treated and stabilised. The Secretary acknowledged that in the Respondent’s Statement of Facts and Contentions.[23] Having regard to the medical evidence produced, I think that is a reasonable and appropriate concession to make.

    [23] Ibid. paragraphs [35]-[37].

24. That means that a rating can be assigned in respect of those conditions, with the potentially relevant tables being Table 4 (Spinal Function), Table 2 (Upper Limb Function) and Table 3 (Lower Limb Function).

    Table 4

25. Table 4 is to be used when the person has a permanent condition resulting in functional impairment when performing activities involving spinal function (that is, bending or turning the back, trunk or neck). As both Mr Anderson’s neck and lower back conditions result in functional impairment when performing those activities, care needs to be exercised to avoid “double counting” of ratings. Section 10(5) of the Determination provides that where two or more conditions cause a common or combined impairment, a single rating is to be assigned; subsection (6) states that in doing so, it is inappropriate to assign a separate rating for each condition as that would result in the same impairment being assessed more than once.

26. In his various medical reports provided in support of Mr Anderson’s claim, Dr Valena has noted that Mr Anderson has limited movement in the cervical spine;[24] cannot sit for a prolonged period of time;[25] cannot rotate his neck/head;[26] and cannot bend, lift, pull or push.[27]

    [24] Exhibit 1, T Documents, T 31, page 149, Medical Report of Dr Tom Valena dated 19 June 2015.

    [25] Exhibit 1, T Documents, T 14, page 58, Medical Report of Dr Tom Valena dated 31 October 2014.

    [26] Exhibit 1, T Documents, T 14, page 61, Medical Report of Dr Tom Valena dated 31 October 2014.

    [27] Exhibit 1, T Documents, T 28, page 134, Medical Report of Dr Tom Valena dated 10 April 2015.

27. Dr Valena gave evidence at the hearing by telephone. In response to the question whether Mr Anderson could rotate his head/neck slightly or at all, Dr Valena said that his ability was limited by the fusion surgery he underwent, but symptoms could vary according to the pain which Mr Anderson was experiencing on a particular day (which was variable). He said that Mr Anderson was able to work following the fusion, but in October 2014, his lower back condition flared up, causing him to cease work; that continued into 2015. He also began experiencing pain in his left arm at about that time. Asked as to whether Mr Anderson could bend at all, Dr Valena said that he did not know; he did say, however, that Mr Anderson had limited movement of the lumbar spine. He agreed with the Secretary’s representative that Mr Anderson could probably bend to pick up a light object, such as a pen, from a table, but said that he would experience difficulty doing so. As to Mr Anderson’s ability to stand and sit, Dr Valena said that he could do so for 10 minutes but would suffer discomfort.

28. Mr Anderson also gave evidence by telephone. During his evidence in chief, he said that he cannot turn his head without moving his body. He is unable to look up using his head; he is unable to hang clothes on the clothes line. He said that he cannot sit for more than 10 minutes and that walking causes him a lot of pain in his neck.

29. During cross-examination by the Secretary’s representative, Mr Anderson agreed that his fusion surgery in 2012 was successful but did not completely resolve his neck problems; he still experiences pain in his shoulder and neck, and his left hand is weak. He agreed that his lower back condition flared up in October 2014 when he was working on his mother-in-law’s car; he recalls that bending forward over the bonnet aggravated his back condition.

30. A number of comments recorded by the JCA assessors over the life of the claim were put to Mr Anderson. In January 2015, the assessor noted that Mr Anderson told her that the impact on his spinal function did not prevent him from sitting for more than 30 minutes, but it did cause him difficulty with moving his head to look in all directions. It also prevented him from bending forward to pick up a light object at knee height (such as a cup off a coffee table) when standing.[28] While he strongly disagreed with the comment concerning sitting for 30 minutes, Mr Anderson conceded that he must have told the assessor about his ability to pick up an object. He said that he could not recall telling the assessor about his ability to move his head, saying that since his operation, he had to turn his whole trunk.

    [28] Exhibit 1, T Documents, T 18, page 95, JCA Report dated 19 January 2015.

31. Comments made to the assessor in March 2015 were also put to Mr Anderson. On that occasion, he reported pain in the spine with reduced movement and stiffness in the neck.[29]  He agreed with the Secretary’s representative that he could move his neck, but it was painful. He said that his neck condition had worsened since October 2014.

    [29] Exhibit 1, T Documents, T 22, page 115, JCA Report dated 17 March 2015.

32. Mr Anderson was also asked if bending caused him pain. He said that it did, saying that he would need to kneel to pick up a pen off a table. Dr Valena’s comments of February 2015 were put to him, that he had limited capacity to stand /walk for prolonged periods of time (meaning greater than 20 minutes).[30] He agreed that he probably reported that to the doctor.

    [30] Exhibit 1, T Documents, T 21, page 111, Medical Report of Dr Tom Valena dated 2 February 2015.

33. What was reported to the JCA assessors was also consistent with what Mr Anderson told the SSAT. He was able to sit in a car for at least 30 minutes.[31] He had difficulty bending his neck forward and turning to the right, as well as difficulty bending.[32]

    [31] Exhibit 1, T Documents, T2 page 6 paragraph [21], SSAT’s Decision and Reasons for Decision dated 27 May 2015.

    [32] Ibid. page 5, paragraph [14].

34. Turning to the table, I believe that Mr Anderson at least satisfies the descriptors for moderate functional impact (10 points). The question is whether he is able to meet the requirements for a severe rating of 20 points. I do not think that the evidence before me is sufficient to satisfy the relevant descriptors for that rating.

35. While I appreciate that Mr Anderson has difficulty in turning his head and bending his neck, the relevant test for meeting a 20 points rating under Table 4 is that the person is unable to perform the relevant activities. Dr Valena said that he had limited movement, which depended on the pain Mr Anderson was experiencing on a particular day. That is consistent with what Mr Anderson told the JCA assessor in January 2015 (that is, during the period relevant to this claim) and what he told the SSAT.  While Dr Valena said that he did not know whether Mr Anderson could bend at all, he accepted that he could probably bend enough to pick up a pen from a table, although with some difficulty. That is consistent with what a JCA assessor reported in March (and with which Mr Anderson did not disagree), that he was able to pick up a light object from a table at waist height. Mr Anderson strongly disputed the same assessor’s note that he was able to remain seated for 30 minutes. However, the SSAT also recorded that he told it that he could sit in a car for at least 30 minutes. Mr Anderson, however, did acknowledge that he probably told Dr Valena that he had limited capacity to stand or walk for prolonged periods (being greater than 20 minutes).

36. Taking those matters into account, I do not consider there is sufficiently clear evidence to satisfy the descriptors for severe functional impact (20 points). I therefore find that his impairments attract a rating of 10 points under Table 4.

    Table 2

37. Dr Valena’s initial report noted that Mr Anderson had weakness in his left hand, such that he dropped things and on and off had a tingling little finger.[33] In a later report, the doctor stated that Mr Anderson could not lift or carry objects.[34]

    [33] Exhibit 1, T Documents, T 14, page 61, Medical Report of Dr Tom Valena dated 31 October 2014.

    [34] Exhibit 1, T Documents, T 21, page 111, Medical Report of Dr Tom Valena dated 2 February 2015.

38. While Mr Anderson’s upper limb impairment satisfied the mild five point rating, I do not think there is sufficiently clear evidence to satisfy the descriptors for 10 points. On the contrary, one JCA assessor noted that Mr Anderson reported that he could pick up a light bulky object, hold and use a pencil and use a standard keyboard, highlighting the fact that he did not meet most of the descriptors for 10 points.[35]

    [35] Exhibit 1, T Documents, T 22, page 118, JCA Report dated 17 March 2015.

39. I therefore accept that this impairment attracts five impairment points.

    Table 3

40. Table 3 is used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

41. For a rating of five points (mild functional impact), the person must satisfy one or more of the descriptors in (1) as well as at least one of the descriptors in (2).

1. There is no doubt that Mr Anderson can meet the requirements in (1), in that he has some difficulty walking to local facilities or around a shopping mall without rest. Mr Anderson also testified at the hearing that he has some difficulty walking up stairs, needing to use handrails.

2. The descriptor in (2)(a) does not apply, as Mr Anderson is capable of standing for more than 10 minutes. The other descriptor, in (2)(b), applies where the person can mobilise effectively but needs to use a prosthesis or walking stick. The first and only reference to Mr Anderson’s need or use of a walking stick was in the report of Dr Valena of 25 August 2015, in which he noted that Mr Anderson has a walking stick, which he has to use when his pain is severe.[36]  At the hearing, Mr Anderson confirmed that he uses a walking stick when his pain is severe; he estimated that he would use it weekly. Given the frequency of the episodes of severe pain and Mr Anderson’s consequent need to use a walking stick, I believe that (2)(b) is satisfied.

   [36] Exhibit 2(a), Attachment A to the Secretary’s Statement of Facts and Contentions (Medical Report of Dr Tom Valena dated 25 August 2015, page 2 paragraphs 7 and 8).

3. Accordingly, I find that a rating of five points is to be assigned under Table 3.

   Psychological condition

4. This condition was first raised by Dr Valena in his report of 2 February 2015, describing Mr Anderson’s secondary anxiety/depression as a condition that was generally well managed and which caused minimal or limited impact on ability to function. He also noted that Mr Anderson had traits of agoraphobia and obsessive compulsive disorder.[37]

   [37] Exhibit 1, T Documents, T 21, page 112, Medical Report of Dr Tom Valena dated 2 February 2015.

5. The only other medical evidence provided in relation to this condition was a report of psychiatrist, Dr Andrew Byth, prepared in December 2013 for the purposes of a workers’ compensation claim. Dr Byth diagnosed Mr Anderson as suffering from Dysthymic Disorder (with chronic fluctuating mild to moderate depression); he doubted that the symptoms had been severe enough to warrant the more substantial diagnosis of Major Depression.

6. Dr Byth recommended that Mr Anderson be referred to a specialist psychiatrist for treatment over the following two years. He envisaged that treatment would consist of monthly individual consultations for supportive counselling, review of his anti-depressant medication, and cognitive therapy. While he doubted that Mr Anderson would obtain a full remission with treatment, he expected him to make a partial improvement with counselling and anti-depressant medication over the following two years.[38]

   [38] Exhibit 1, T Documents, T 10, pages 45 and 46, Medical Report of Dr Andrew Byth dated 5 December 2013.

7. At the hearing, I asked Dr Valena whether Dr Byth’s recommendations had been implemented. While he had discussed counselling and trialled a few different medications with Mr Anderson, Dr Valena said that none of the other recommendations had proceeded. He said that Mr Anderson was not keen on counselling, and because he had a good insight to his problems, Dr Valena thought that was optional.  He confirmed that he had made no referral to a psychiatrist. In those circumstances, I am not satisfied that the condition could be said to be fully diagnosed, treated and stabilised. As such, no impairment rating can be assigned to it.

8. Even if a rating could be assigned, I think it would attract zero points in light of Dr Valena’s assessment.

   Summary

9. To summarise, I consider that Mr Anderson’s impairments attract 20 points under the relevant impairment tables, being 10 points under Table 4 and five points each under Tables 2 and 3. Accordingly, I consider that Mr Anderson satisfies the second of the requirements under s 94(1)(b) of the Act.

   Continuing inability to work

10. Although Mr Anderson’s impairments attract 20 points in total under the tables, none of the impairments are rated “severe” in the sense that they attract at least 20 points under a single table (see s 94(3B) of the Act).

11. Under s 94(2)(aa) of the Act, where a person’s impairment is not severe, they are required to have actively participated in a program of support (“POS”) . If they have not done so, they cannot be found to have a continuing inability to work.

12. A person is considered to have actively participated in a POS if they have satisfied the requirements set out in a legislative instrument made by the Minister for the purposes of s 94(3C) of the Act. The Minister may also make relevant guidelines under s 94(3E).

13. The relevant legislative instrument made by the Minister is the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“Active Participation Determination”).

14. Effectively, the Active Participation Determination requires a person who has claimed DSP to have participated in, and complied with, a POS for at least 18 months during the three years before the claim was made.

15. According to the POS Referral Summary[39] produced by the Secretary, there is no evidence that Mr Anderson participated in a POS in the three years preceding the lodging of his claim on 3 November 2015.

    [39] Exhibit 1, T Documents, T 34, page 166, POS Referral Summary.

16. There are certain exceptions set out in s 5 of the Active Participation Determination. The only one which is potentially relevant in the present case is s 5(5), which says that the requirements are satisfied if, at the date of claim, the person is participating in the POS and is prevented, solely because of their impairment, from improving their work capacity through continued participation in the program. However, I do not think that exception is applicable, as it appears that Mr Anderson was not participating in a POS at the time of claim.

17. In those circumstances, I find that Mr Anderson has not actively participated in a POS and therefore, does not satisfy s 94(2)(aa) of the Act.

18. As a result, Mr Anderson cannot be found to have a continuing inability to work. He therefore does not satisfy the last of the requirements in s 94(1) of the Act.

    CONCLUSION

19. To summarise, although Mr Anderson had a total of 20 impairment points derived from several tables, he did not have a continuing inability to work as he had not actively participated in a POS. He therefore did not qualify for DSP at the relevant time.

20. Accordingly, the decision under review is affirmed.

I certify that the preceding  61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

........................[Sgd]................................................

Associate

Dated   22 January 2016

Date of hearing	11 December 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services