ARMITAGE-CHRYSTAL And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 502

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0934

GENERAL ADMINISTRATIVE DIVISION		)
Re		LARMA ARMITAGE-CHRYSTAL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date22 July 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – Disability support pension – Impairment tables – Conditions not fully diagnosed, treated or stabilised – Decision under review affirmed

Social Security Act 1991 (Cth) s 94

REASONS FOR DECISION

22 July 2011 Mr R G Kenny, Senior Member    

Background

1.      On 1 October 2010, Larma Armitage-Chrystal lodged a claim with Centrelink for payment of disability support pension having expressed an intention to do so on 21 September 2010. In his claim form, he nominated his disabilities as “recurring back strain & cramps to hips & legs. Have been diagnosed with hepatitis C”. On 10 November 2010, a delegate of Centrelink rejected that claim. That decision was affirmed by an authorised review officer on 20 January 2011 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 12 February 2011. 

Legislation, Issues and Submissions

2. The qualifications to receive a disability support pension are set out in s 94 of the Social Security Act 1991 (Cth) (the Act). It is common ground that Mr Armitage‑Chrystal meets the age and residency requirements of that provision. The remaining requirements thereof are:

·whether Mr Armitage-Chrystal has a physical, intellectual or psychiatric impairment; and, if so

·whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act[1] as required by paragraph 94(1)(b) thereof; and, if so

·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

[1] Tables for the assessment of work-related impairment for disability support pension.

3.      Mr Armitage-Chrystal lodged a formal claim for disability support pension within 14 days of expressing an intention to do so on 21 September 2010 and, accordingly, that date is taken to be his initial claim date[2]. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of three months starting immediately after the day of the claim[3]. This is from 21 September 2010 until 21 December 2010 (the relevant period).

[2] See s 13(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

[3] See Sch 2, cl 3 and cl 4 of the Administration Act.

4. For the respondent, Michelle Brazier submitted that Mr Armitage-Chrystal has not demonstrated any incapacity from his hepatitis C or depression and that, accordingly, no impairment may be allocated to those conditions. She conceded that Mr Armitage-Chrystal is incapacitated by his spinal condition in that he experiences daily back pain. However, she referred to medical evidence relating to the relevant period and submitted that this demonstrated that the back condition had not been fully investigated, treated and stabilised at that time and that, as a result, no impairment rating could be allocated to it. She also submitted that the evidence of job capacity assessors was that Mr Armitage-Chrystal did not have a continuing inability to work as required by s 94 of the Act.

5.      Mr Armitage-Chrystal conceded that he experienced no incapacity from his hepatitis C or depression but contended that his spinal degeneration was permanent and was responsible for his taking daily medication to ameliorate pain. He submitted that he met the qualifying criteria for the disability support pension.

Evidence

6.      Mr Armitage-Chrystal gave the following evidence. He injured his back in 2005 and this resulted in a worsening of pain sensation in his spine. He underwent a three month course of physiotherapy at that time. Despite that, his pain has continued and increased during 2010. His treating doctors have prescribed pain-killing mediation in the form of Zydol and Codeine, both of which he takes on a daily basis. He has a health care card from Centrelink to assist him in purchasing this medication.

7.      Mr Armitage-Chrystal would like to be in employment and considered that he could re-engage in the type of work he previously undertook which was the making of jewellery. He believes that he could do this for short periods each day but the unpredictability of his pain levels would make it difficult to work consistently for 15 hours per week. He self-assessed his pain as being at a level of 2 to 3 on a scale of 1 to 10. He attended sessions with Epic Employment Service Inc. in late 2010 and early 2011 but was not successful in obtaining employment. He has been referred to another employment service but has not yet attended any sessions there. Mr Armitage-Chrystal was referred to a rehabilitation program at the Sunshine Coast Rehabilitation Services. He attended that program in May 2011.

Medical evidence

8.      Mr Armitage-Chrystal has seen medical practitioners Dr John Kavanagh and Dr Nicholas Kahl at the Noosa Clinic. Dr Kavanagh completed a report on 1 October 2010. In reliance on CT scans taken on 28 September 2010 and 1 October 2010, he diagnosed “central canal stenosis L3/4” and “moderate degenerative change esp C5/6”. He noted that Mr Armitage-Chrystal had not attended a doctor for the previous 5 years and had received no treatment for his back complaints. He wrote that the conditions caused pain with limitations on ability to sit, stand and move. Dr Kavanagh indicated that “perhaps physio” might be a form of treatment. He also referred to the possibility of surgery. His opinion was that Mr Armitage-Chrystal’s ability to function would be impacted upon for more than 24 months.

9.      Dr Kahl completed reports on 18 November 2010, 9 February 2011 and 14 April 2011. He also gave oral evidence. In his first report, Dr Kahl diagnosed “severe degenerative arthritis of cervical and lumbar spine” with “multi level spinal stenosis lumbar spine, severe at L3/4 with bilateral nerve entrapment at that level”. He described symptoms of “chronic back and neck pain” with “referred pain to buttocks and legs” which was worse “with activity, work and lifting.” Dr Kahl considered that future treatment would comprise the use of analgesics and physiotherapy and he noted the prospect of surgery. He described an impact on the ability to function as lasting for more than 24 months with no likelihood of natural improvement. Dr Kahl also diagnosed hepatitis C with no symptoms at that time and depression for which Mr Armitage-Chrystal was taking medication in the form of Pristiq but which was causing limited impact on Mr Armitage-Chrystal’s ability to function.

10.     In his later reports, Dr Kahl confirmed his diagnosis in relation to Mr Armitage‑Chrystal’s spine and described significant, persistent and debilitating pain which prevented him from doing any consistent work. In the February report, he referred to the long waiting list for any remedial surgery for Mr Armitage-Chrystal’s spinal condition while, in his last report, he wrote that remedial surgery was no longer an option for him. In his evidence, he said that the only treatments available were analgesic medication and pain-killing injections. Dr Kahl referred Mr Armitage‑Chrystal to rehabilitation program for pain management in early 2011 and said that was not a treatment option but one which was designed to educate Mr Armitage-Chrystal to cope with his disability. His opinion was that Mr Armitage‑Chrystal would be able to undertake light work using his upper body but that the unpredictability of his pain severity made it difficult to assess the number of hours per week he could be employed.

Capacity Assessments

11.     Occupational therapist Pam Walker completed a Functional Capacity Evaluation Report on 7 December 2010. She saw Mr Armitage-Chrystal and had access to the first report from Dr Kahl as well as x-rays and CT scans. Mr Armitage‑Chrystal reported pain at the 2-3 out of 10 level but, after doing tests with Ms Walker, he described this at 4 out of 10. He reported that he had begun to work with Dr Kahl to improve management of his back problems and had experienced a definite improvement in pain control with use of Zydol medication and improved mobility with four sessions of physiotherapy. On examination, Ms Walker noted that Mr Armitage-Chrystal displayed no limitations in movement for his neck, trunk or low back. She described limitations of capacity in prolonged standing, sitting, squatting, kneeling and use of stairs. Ms Walker considered that Mr Armitage‑Chrystal would be able to undertake more than 14 hours work per week, in light work, within two years if he were to engage in further treatment and rehabilitation. She noted that he was to attend a pain rehabilitation program and her opinion was that this could be expected to result in a significant improvement in his capacity.

12.     In evidence was a report dated, 6 June 2011, from Sunshine Coast Rehabilitation Services. The team members identified in the report comprised orthopaedic surgeon Dr Peter Winstanley, psychologist Pam Hennessy, exercise physiologist Glenn Kirby, physiotherapist Colin Cope and occupational therapist Libby Chambers. The report notes Mr Armitage-Chrystal’s attendance from 18 to 27 May 2011 and his failure to attend on one day which included the assessment day. It describes Mr Armitage-Chrystal as having contributed minimally in the program and as having good functional movement and occasional but inconsistent guarding of his lumbar spine with some compromising tasks. His symptoms were noted to be somewhat consistent with his radiological investigations but his clinical signs were unremarkable and he displayed functional movements. Although he chose to avoid the exercise component of the program because of pain he was noted to move freely and display a full range of motion with minimal observed functional restrictions. Also, despite declaring that he had a sitting tolerance of only 15 minutes, he was observed to sit for 60 minutes on a number of occasions, to ascend and descend stairs and to bend to lift a pen from the ground without difficulty. 

13.     Job capacity assessment reports were completed on 7 October 2010, 17 December 2010 and 30 May 2011. 

14.     The first assessment was undertaken by registered psychologist Jacob Cooney with contribution from physiotherapist Darren White. He saw Mr Armitage‑Chrystal and relied on the medical report of Dr Kavanagh. Mr Cooney recorded a permanent spinal disorder and intervertebral disc disorder. He also noted a temporary shoulder and upper limb disorder which had minimal effect on functioning. He assessed a baseline work capacity of 23 to 29 hours per week in light, less skilled work and noted that Mr Armitage-Chrystal was able to undertake 3 hours of jewellery making during the day, could drive his car, carry out his martial arts exercises and rated his back pain at 2-3 out of 10. Mr Cooney suggested that rehabilitation and pain management programs would improve Mr Armitage-Chrystal’s back management and enable him to develop multidisciplinary strategies to assist in managing pain. Mr Armitage-Chrystal was observed to remain seated with no observable signs of discomfort.  Mr Cooney described no condition which was fully diagnosed, treated and stabilised and was unable to allocate any impairment ratings.  

15.     The second Job Capacity Assessment Report was completed by registered psychologist Mary Curnow with contribution from Ms Walker. Ms Curnow saw Mr Armitage-Chrystal and relied on the first Job Capacity Assessment Report, Ms Walker’s Functional Capacity Assessment Report and medical reports of Dr Kavanagh and Dr Kahl. She identified permanent chronic pain, which related to Mr Armitage-Chrystal’s back condition, permanent hepatitis C, with no symptoms, and temporary depression. She wrote that Mr Armitage-Chrystal was undergoing active treatment at that time and was motivated to seek psychological therapy and attend a pain rehabilitation program which she expected would improve his capacity. Ms Curnow assessed Mr Armitage-Chrystal’s back pain as restricting him to a limited range of suitable employment in the nature of light duties such as jewellery maker, courier driver or sales representative. She considered that he had a baseline work capacity of 15 to 22 hours per week. Ms Curnow wrote that none of Mr Armitage‑Chrystal’s identified conditions was fully diagnosed, treated and stabilised and that she unable to allocate any impairment ratings. 

16.     The final Job Capacity Assessment Report was completed by Ms Walker. She also gave oral evidence. Her report was a file review and Ms Walker consulted the reports noted above as well as the report from Sunshine Coast Rehabilitation Service. She also spoke with Dr Kahl. Ms Walker identified chronic pain associated with Mr Armitage-Chrystal’s spine, hepatitis C and depression. She described no symptoms for hepatitis C and ongoing counselling from Dr Kahl for depression with improvement noted by Mr Armitage-Chrystal. Ms Walker confirmed her opinion that the conditions were not fully diagnosed, treated and stabilised. Her opinion was that Mr Armitage-Chrystal had capacity to undertake light less skilled work such as jewellery making for up to 14 hours per week for the next 2 years but that she anticipated that this would increase to 15 to 22 hours thereafter with intervention.

17.     Darren Walker, the training and placement officer with Epic Employment Service, provided a letter, dated 17 June 2011, in which he advised that Mr Armitage-Chrystal had attended the service regularly on a fortnightly basis since 2 December 2010. Mr Walker advised that no employment was found for Mr Armitage-Chrystal but that he had taken positive steps to overcome his barriers to live a meaningful and productive life.

Consideration

18.     Impairment ratings are allocated in accordance with the content of the Impairment Tables.  The Introduction to the Impairment Tables sets out the manner in which that is done and includes the following:

4...For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. 

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

treatment that is feasible and accessible ie, available locally at a reasonable cost;

where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

19.     In all of the job capacity assessment reports, Mr Armitage-Chrystal’s depression, hepatitis C and back condition are each described as not having been fully diagnosed, treated and stabilised. 

20.     Dr Kahl diagnosed depression in his initial report but included it under the heading of conditions with minimal or limited impact. It is not referred to in his later reports. Ms Walker’s job capacity assessment report was prepared in consultation with Dr Kahl who advised that he was providing ongoing counselling for Mr Armitage‑Chrystal’s depression in May 2011. Mr Armitage-Chrystal’s evidence was that he does not experience any incapacity related to his depression. Dr Kahl also diagnosed hepatitis C in his first report but noted that there were no symptoms at that time. Even if depression and hepatitis C were fully diagnosed, treated and stabilised in the relevant period, the evidence is that there was no impairment during the relevant period which would enable a rating to be made under the Tables which, in so far as relevant for hepatitis C and depression, respectively, read:

Table 20 – Miscellaneous ..../ .... Liver .... / .... Conditions

NIL - Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

Table 6 – Psychiatric Impairment

NIL - Mild but regular symptoms which tend to cause subjective distress.  On most occasions able to distract themselves from this distress.  Minimal interference with function in everyday situations.  Exacerbation of symptoms may cause occasional days off work.  (eg. There may be some loss of interest in activities previously enjoyed.  There may be occasional friction with family, colleagues or friends)  Medical therapy or some supportive treatment from treating doctor may be required.

21.     I am satisfied that those nil ratings would be appropriate if those conditions were rateable under Schedule 1B of the Act.

22.     Mr Armitage-Chrystal’s spinal conditions have been variously diagnosed as “severe degenerative arthritis of cervical and lumbar spine” with “multi level spinal stenosis lumbar spine, severe at L3/4 with bilateral nerve entrapment at that level”, “central canal stenosis L3/4” and “moderate degenerative change esp C5/6” in the reports of Dr Kahl and Dr Kavanagh. “Chronic pain” has been the focus of those who completed job capacity assessment reports.

23.     I accept Ms Brazier’s submission that, during the relevant period, Mr Armitage-Chrystal’s back condition was not fully diagnosed, treated and stabilised. Apart from a short period of physiotherapy at the time of his back injury five years before he saw Dr Kavanagh, Mr Armitage-Chrystal had no treatment. He commenced taking analgesic medication during the relevant period and that has continued. However, in October 2010, Dr Kavanagh referred to the prospect of treatment in the form of further physiotherapy and he also indicated that surgery was a possibility. Dr Kahl now considers that surgery is not an option for Mr Armitage‑Chrystal’s spinal conditions. However, in November 2010 which was during the relevant period, Dr Kahl noted the possibility of back surgery. He also referred Mr Armitage-Chrystal to a rehabilitation program which he attended after the relevant period. Dr Kahl described that type of program as being educational in purpose. However, Mr Cooney and Mr White, in their job capacity assessment report in October 2010, referred to rehabilitation and pain management programs which would be expected to improve Mr Armitage-Chrystal’s back management and enable him to develop multidisciplinary strategies to assist in managing pain. Ms Walker noted, in her report in December 2010, that he was to attend the program and her opinion was that this could be expected to result in a significant improvement in his capacity. Indeed, Mr Armitage-Chrystal reported to her that he had worked with Dr Kahl to improve management of his back pain and had experienced a definite improvement in pain control with use of Zydol medication and improved mobility with four sessions of physiotherapy. Ms Curnow’s opinion, in her job capacity assessment report in December 2010, was also that a rehabilitation program would be expected to improve Mr Armitage-Chrystal’s capacity.

24.     The evidence in relation to Mr Armitage-Chrystal’s back condition is that there has been deterioration since the end of the relevant period. However, I am reasonably satisfied that it was not fully treated and stabilised at any time during the relevant period and that, accordingly, no impairment rating may be allocated for that condition.

25. A necessary requirement in s 94 of the Act is that Mr Armitage-Chrystal’s impairment must equate to the threshold of 20 points or more points under the relevant Tables in schedule 1B of the Act. That level of impairment was not reached in his case during the relevant period. As Mr Armitage-Chrystal does not meet the threshold impairment requirement, it is unnecessary to consider his capacity for work under paragraph 94(1)(c) of the Act.

Decision

26.     The Tribunal affirms the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ........................[Sgd]...........................................
  Research Associate

Date/s of Hearing  29 June 2011
Date of Decision  22 July 2011
The Applicant was not represented
For the Respondent                  Ms Michelle Brazier, Departmental Advocate