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

Arber and Secretary, Department of Social Services (Social services second review) [2020] AATA 491 (13 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3272
Re:Bronwyn Arber
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Dr I Alexander, Senior Member
Date:13 March 2020
Place:Sydney

The decision under review is affirmed.
........................[SGD]................................................
Dr I Alexander, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cervical spine condition – whether applicant had severe functional impairment – opiate dependence – moderate functional impairment – decision under review affirmed
LEGISLATION
Social Security Act 1991(Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Senior Member
13 March 2020
BACKGROUND

In 2008 Miss Arber suffered an injury at work.
An MRI scan performed in August 2009 revealed “C5/6 moderate disc protrusion with compression on the right C6 nerve root”.[1]
[1] A2, report of Professor Ghabrial dated 18 November 2010.
In March 2010 “right C5/6 disc excision and foraminotomy” was performed with improvement in right arm radiculopathy.[2]
[2] Ibid.
On 3 December 2012 Miss Arber lodged a claim for disability support pension (DSP).
On 6 September 2013 the Social Security Appeals Tribunal set aside a decision by Centrelink to reject Miss Arber’s claim.
On 16 March 2014 Miss Arber was awarded compensation for a work-related injury which resulted in a compensation preclusion period for social security purposes which expired in November/December 2018.
On 1 November 2018 Miss Arber again lodged a claim for DSP.
The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.
In a decision dated 30 May 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Miss Arber had a total rating of 10 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings Miss Arber seeks review of the decision of the AAT1.
Miss Arber, who was self-represented, attended the hearing by telephone.
ISSUES
In order to qualify for DSP Miss Arber must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth). That is, Miss Arber must satisfy the requirements between 1 November 2018 to and 29 January 2019 (the qualification period).
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work as defined by the Act.
The Respondent concedes, and the Tribunal accepts, that Miss Arber suffers a medical condition that causes impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).
The introduction to each relevant Table requires that “there must be corroborating evidence of the person’s impairment” and that “self-report of symptoms alone is insufficient”.
The Respondent concedes and the Tribunal accepts that, during the qualification period, Miss Arber suffered a cervical spine condition that was permanent for the purposes of the impairment determination.
The Respondent contends that, during the qualification period, Miss Arber’s cervical spine condition warranted a rating of no more than 10 points under Impairment Table 4 and, as there were no other permanent medical conditions, she did not satisfy section 94(1)(b) of the Act.
The Respondent also contends that, during the qualification period, Miss Arber could not satisfy s 94(1)(c) of the Act as she did not have a continuing inability to work because she had not actively participated in a program of support (POS) as required by s 94(2)(aa) of the Act .
Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”.
Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.
It is agreed that, prior to the date of claim, Miss Arber had not actively participated in a POS. However, Miss Arber contends that during the qualification period, as a result of her cervical spine condition, she suffered a severe functional impact on her activities involving spinal function and, therefore, a rating of 20 points under Impairment Table 4 can be assigned.
It follows that the determinative issue in this matter is whether, during the qualification period, Miss Arber suffered an impairment of 20 points or more under an Impairment Table and, if so, whether she had a continuing inability to work.
Miss Arber
At the hearing Miss Arber told the Tribunal that over the last 10 years she has suffered persistent and severe chronic pain involving her neck, arms and lower back. She also suffers frequent headaches which describes as “migraines”. She also describes symptoms of paraesthesia and numbness and attributes her chronic pain to “nerve damage” in the cervical spine. The primary treatment for her chronic pain has been opiate analgesia.
Miss Arber explained that as a result of the pain her physical activities are restricted but she is able to attend to her own self-care. She complained of significant problems with sleeping but explained that following a recent change in her opiate medication this has significantly improved and she is now able to sleep for at least six hours each night.
Despite her chronic symptoms Miss Arber agreed the she is able to drive a car and that prior to and during the qualification period, she was employed as a casual driver to drive several disabled boys to and from school during school terms. This involved driving for about 2 ¾ hours per day for five days per week.[3]
Medical evidence
[3] Section 37 documents – T35: 16 November 2018 - “Employed as casual driver for J & M Sinclair P/L, works 2.75 hours per day”
Dr Holland – general practitioner
In a letter dated 29 October 2018 Dr Holland stated inter alia as follows:
Her last review by the neurosurgeon was in 2014 following her last MRI. At that time he was confident that her ongoing pain was not due to further anatomical abnormalities…despite this she is left with ongoing radiculopathy[4] in the right arm and pain and stiffness in her neck. She currently requires daily Endone to manage her pain and has been referred again to the Hunter pain Clinic…
Her pain is constant and severe at times with background level allowing her to perform most of her ADL’s[5]. She is unable to do the more physical home maintenance tasks such as lawn mowing etc. Sleep is difficult and disturbed due to her pain …She also suffers from migraines 1-2 x a week these are triggered when her neck pain are at its worst.
She currently works 15 hours a week which she tolerates. She is still bound by work limitations of lifting no more than 2 kg and no pushing/pulling. She has to be able to take rests from sitting/standing when required. Her current role as driving children with disabilities meet these requirements but even this can exacerbate her pain with multiple journeys per day.
[4] I note that Dr Holland details no clinical signs consistent with radiculopathy.
[5] Activities of daily living.
Mr Kelly – physiotherapist
In a letter dated 28 March 2019 Mr Kelly stated inter alia as follows:
Bronwyn has attended…today for assessment of CSP[6] and overall physical capacity …Bronwyn has experienced ongoing pain and limitations to her CSP and R shoulder/arm with ongoing difficulty with functional tasks including driving, hanging out washing, cleaning etc.
[6] Cervical spine.
Today I have assessed her with the following capacity:
CSP: ROM < 40% all axis with neuropathic pain reproduced with L lateral flexion
Push: 11kg – before TSP pain onset;
Pull: 11kg before shoulder pain/CSP pain onset;
Lift from floor: 4kg for < 3 lifts with pain in LSP,[7] CSP and apprehension ++;
Carry 5kg at waist height for 10 metres before pain onset;
Sitting: 40 mins before general spinal pain;
Sleeping: 2 hours maximum before needing to move around,
Walking: 30 minutes before LSP pain;
Driving: 40 minutes freeway, pain ++ with using mirrors/reversing/turning etc.
[7] Lower spine.
At the hearing Miss Arber told the Tribunal that she was not entirely happy with the assessment which was completed in about 20 minutes and may have been affected by the fact that she had just taken her pain medication.
Dr M Danesh – Hunter Pain Clinic
In a letter to Dr Holland dated 15 May 2019 Dr Danesh stated inter alia as follows:
Bronwyn is a 42 year old lady who was injured at work eleven years ago…she developed neck pain and bilateral upper limb pain and subsequently underwent a foraminotomy of C5/6 level…in 2010 which didn’t improve her right upper limb pain. She continues to experience right upper limb pain in a non-dermatomal fashion as well as neck pain and headaches…
Bronwyn reports her right upper limb [sic] to be a very high pitched ache with a constant zinging property which radiates from the right shoulder…there is no report of weakness. Bronwyn experiences all of her fingers go completely numb after a few minutes of laying down flat and she needs to shake her hand in order to improve the sensation in her right upper limb. She is currently taking five Endones daily and has been on and off this medication for the last four years…
An MRI of the cervical spine performed in January 2017 has shown mild diffuse disc bulge at C4/5 level, moderated diffuse disc bulge at C5/6 level, mild diffuse disc bulge at C6/7 level with no convincing evidence of nerve root contact…
She has started smoking around four years ago and smokes 10-15 cigarettes daily now
Neurological examination of the upper limbs showed diffuse reduced light touch sensation in a non-dermatomal fashion in the right upper limb. Power of both limbs is symmetrical. There is no evidence of muscle atrophy in either of the upper limbs…
Bronwyn has got a mixed picture of nociceptive muscle imbalance related pain in her bilateral shoulders and neck due to taut trapezius muscles and neuropathic pain in her right upper limb in the setting of previous discogenic neural compression with some probable postoperative changes. She has also developed significant disability associated with chronic pain and dependence to Endone.
I fully support your decision to start Palexia slow release for this lady to replace Endone with. Today I have taken some time to go through the long term side effects of pure opioid receptor agonists[8] …..
Smoking negatively impacts on pain management by contributing to painful conditions e.g. osteoporosis and deterioration of spinal discs; increasing pain perception and sensitivity to pain; interference with analgesics
I have booked this lady to re-present to my clinic in around four weeks time
[8] At the hearing Miss Arber indicated that her current medication regime is Palexia (6am), Endone (11am), Palexia (6 pm), Endone (11pm) with the result that she now can sleep through for 6 hours.
Dr S Armstrong, medical adviser, Health Professional Advisory Unit
In a report dated 19 September 2019 Dr Armstrong stated inter alia as follows:
On 13/9/19 I spoke to Dr Holland and she told me that she had not clinically examined Ms Arber’s neck for some time and was not entirely sure about the level of impairment of her cervical spine…I asked if Dr Holland was aware of the 28/3/19 letter from J Kelly physiotherapist and she said that she was not aware of it.[9] I advised her that this letter indicated Ms Arber’s cervical spine range of movement was less than 40% and she said that “sounds about right”. Ms Arber does not need assistance getting out of a chair and could pick up something light from a coffee table. Dr Holland did not think that she had a separate issue with her right shoulder, as she had “no particular problem with it on examination”, but use of her right arm was limited by pain [from radiculopathy]…Ms Arber can write, handle coins and do up buttons, but would be unable to pick up heavier objects and would have difficulty reaching out for things on a repeated basis…Dr Holland commented that answering these sorts of questions is difficult because she relies on what Ms Arber tells her.
On 16/9/19 I spoke to J Kelly physiotherapist and he told me that he had seen Ms Arber on 2 occasions, the second occasion was 1 week after the first. Mr Kelly confirmed that she had up to 40% of normal range of cervical spine movement and would not need to turn her trunk to turn her head. Mr Kelly said she would have difficulty doing work that “much above eye level” due to restricted movements of her neck. She would be able to do some work overhead, for example “hanging several pairs of socks on a washing line”, but not on a prolonged basis. Ms Arber was able to lift a 4 kg weight from the floor, but complained of significant pain after the 3^rd lift. She would be able to remain seated for 40 minutes.
[9] I note that this letter was addressed to Dr Holland and was apparently sent to her practice address.
After considering the descriptors in Impairment Table 4 Dr Armstrong concluded that available evidence was consistent with an allocation of 10 points but “did not meet the descriptors at the 20 impairment points level”.
Consideration
Miss Arber contends that during the qualification period she suffered a severe functional impact on activities involving spinal function and warranted a rating of 20 points under Impairment Table 4.
Miss Arber’s contention appears to be based on her own assessment of the descriptors in Impairment Table 4 as they apply to her claimed severity of impairment.
The difficulty for Miss Arber is that there is evidence before the Tribunal which is not consistent with her assessment.
The assessment of the impact on Miss Arber’s activities on spinal function is complicated by the fact that her most prominent symptom is “chronic pain” and it is noted that during the qualification period she suffered from a “dependence on Endone”,[10] an issue which had not been previously addressed prior to the date of claim for DSP.
[10] A1, report of Dr Danesh dated 15 May 2019.
The impact of the opiate dependence on Miss Arber’s claimed impairment is unclear. However, in her oral evidence she told the Tribunal that recent changes in her medication had resulted in significant improvement in her problems with sleep. This would suggest that, during the claim period, her medical condition was not fully treated and fully stabilised.
The medical evidence on which Miss Arber relies is, in my view, somewhat limited and does not provide a convincing assessment of the functional impact on her activities involving spinal function.
Dr Holland’s report can best be described as incomplete with no evidence of recent clinical assessment or physical examination and therefore is of limited assistance.
Mr Kelly’s somewhat brief report provides some assistance and tends to support a moderate functional impact on Miss Arber’s activities involving spinal function.
Dr Danesh does not provide any meaningful assessment of the functional impact on Miss Arber’s activities involving spinal function.
Dr Armstrong provides a comprehensive summary and a reasonable assessment of the documentary evidence. Of particular value was the record of conversations with Dr Holland and Mr Kelly.
Notwithstanding the limitations of the available evidence I am satisfied that there is sufficient evidence to address the relevant descriptors in Impairment Table 4.
It is clear from Miss Arber’s own evidence and the letter from her employer that prior to the date of claim for DSP and during the qualification period she was able to sit and drive a car for more than two hours a day for up to 15 hours week.
The proposition that a person with a severe impairment of spinal function can be employed to drive children to and from school on a daily basis is, in my view, somewhat questionable. One would have to assume that the person is clearly able to drive safely and be in complete control of the vehicle in all circumstances.
On consideration of the available evidence I accept that Miss Arber is unable to “sustain overhead activities” but I am not persuaded that she was “unable to perform any overhead activities”. I note that Mr Kelly told Dr Armstrong that Miss Arber “would be able to do some work overhead” but not on a “prolonged basis”.
I accept that Miss Arber has a reduced range of movement of her cervical spine, up to 40% of normal, but I am not persuaded that she is unable to move her head or bend her neck without moving her trunk. Mr Kelly told Dr Armstrong that Miss Arber “would not need to turn her trunk to turn her head”.
Miss Arber was able to lift a 4kg weight from the floor and therefore, clearly, she would be able to “pick up a light object from a desk or table.”
There is no evidence to suggest that Miss Arber needed assistance to get up out of a chair and, clearly, she is not “unable to remain seated for at least 10 minutes.”
On consideration of the available evidence I am satisfied that, during the qualification period Miss Arber suffered a moderate functional impact on activities involving spinal function and therefore a rating of 10 points under Impairment Table 4 can be assigned. It is therefore unnecessary to consider whether Miss Arber had a continuing inability to work. This means Miss Arber did not satisfy s 94(1)(b) and (c) of the Act and did not qualify for DSP.
DECISION
For reasons set out above the Tribunal is satisfied that, during the qualification period, Miss Arber did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

............................[SGD]............................................
Associate
Dated: 13 March 2020

Date(s) of hearing: 27 February 2020

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Services Australia

[2020] AATA 491

13 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	27 February 2020
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Services Australia