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

[2020] AATA 2417

Armstrong and Secretary, Department of Social Services (Social services second review) [2020] AATA 2417 (22 July 2020)

Division:GENERAL DIVISION

File Number(s):      2019/7701

Re:Andrew Armstrong

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms L Rieper, Member

Date:22 July 2020

Place:Hobart

The Tribunal affirms the decision under review.

...............................[sgd].........................................

Ms L Rieper, Member

SOCIAL SECURITY – disability support pension – qualification – medical – whether the Applicant had an impairment rating of 20 points of more under the impairment tables -   Tribunal unable to assign impairment ratings – decision affirmed

Legislation

Social Security Act 1991 (Cth)

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

REASONS FOR DECISION

Ms L Rieper, Member

22 July 2020

1. Mr Armstrong seeks review of a decision made by the Social Security and Child Support Division of this Tribunal on 18 November 2019.

2. The issue to be determined is whether Mr Armstrong qualified for disability support pension (DSP) following the claim he submitted on 4 February 2019.

3. A hearing was held by telephone on 19 June 2020.  Mr Armstrong appeared on his own behalf, and the Respondent was represented by Ms Fitt of the Respondent.

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

4. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   94(1) A person is qualified for disability support pension 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)One of the following applies:

   (i)     The person has a continuing inability to work;…

5. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).

6. The Impairment Tables set out the rules for assessing an impairment and assigning a rating.  An impairment rating can only be given to a medical condition that is permanent.  Permanent means:

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   (see paragraph 6(4) of the Impairment Tables).

7. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   (see paragraph 6(5) of the Impairment Tables). 

8. Fully stabilised means

   (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.

   (see paragraph 6(6) of the Impairment Tables).

9. The Respondent conceded, and the Tribunal agrees, that Mr Armstrong had medical conditions that caused impairment during the qualification period and, therefore, paragraph 94(1)(a) of the Act is satisfied. The qualification period is the 13-week period from the date of the claim. Therefore, the qualification period commenced on 4 February 2019 and ended on 6 May 2019.

10. It follows that the issues the Tribunal must determine are whether, during the qualification period, Mr Armstrong had:

    (a)An impairment rating of 20 points or more under the Impairment Tables; and, if so

    (b)A continuing inability to work as defined in section 94(2) of the Act.

    CONSIDERATION

11. The Tribunal notes that Mr Armstrong elected not to give oral evidence or make submissions at the hearing and so therefore the Tribunal’s consideration of Mr Armstrong’s medical conditions is limited to what is contained in the written evidence.

    Mental health condition

12. It is a requirement of the Impairment Tables that the diagnosis of a permanent condition resulting in functional impairment due to a mental health condition 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).  In addition, self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment (see Table 5 of the Impairment Tables).

13. The only medical evidence in respect of Mr Armstrong’s mental health before the Tribunal comes from his General Practitioner, Dr Wild.  In the absence of a diagnosis from a psychiatrist and/or corroborating evidence from a clinical psychologist, the Tribunal is unable to consider an impairment rating in respect of Mr Armstrong’s mental health.

    Left knee

14. Mr Armstrong underwent left knee replacement surgery on 5 September 2018.

15. In a medical statement for the Respondent signed on 29 January 2019 by Dr Wild, the doctor noted that Mr Armstrong had chronic left knee pain.[1]

    [1] T8, T documents, pp 138-139.

16. Mr Fletcher, Orthopaedic Surgeon, performed the knee surgery.  On 20 September 2019 he reported back to Dr Wild that he had seen Mr Armstrong that day with ongoing irritability of his left knee joint.  It was tender to touch and he had a reduced range of knee joint movement.  He had given Mr Armstrong some anti-inflammatories to “take from time to time” and wanted to see him again in 3 months’ time.[2]

    [2] T 17, T documents, p 199.

17. In a further report dated 29 January 2020, Mr Fletcher reported to the Respondent that he had seen Mr Armstrong that day.[3]  He noted that Mr Armstrong had significant pain in the left knee following the surgery with the main problems now being pain and stiffness.  Mr Fletcher reported that he believed Mr Armstrong, but there was little in the way of swelling of the knee and he had a reasonable range of motion although it was irritable.  He diagnosed an ill-defined regional pain syndrome post revision total knee joint replacement.  He said that he expected it to continue but did recommend referral to a pain rehabilitation group.

    [3] Respondent’s Statement of Facts, Issues and Contentions, Annexure B.

18. Dr Wild has provided two recent reports.  On 13 February 2020 he reported to the Respondent that Mr Armstrong had left knee pain and loss of function despite a left total knee replacement in September 2019.[4]  He said that Mr Armstrong had a chronic neuropathic pain syndrome post-operatively.  He noted that in respect of the left knee, and also a hip condition, Mr Armstrong had undertaken prolonged and still ongoing physiotherapy with graded and going strengthening and exercise programs.  He had fully rehabilitated to his current levels with no further improvements in the last six months or so.  The Tribunal takes this to mean that improvement ceased around August 2019.  In respect of medication, he noted that he had had trials of pregabalin and gabapentin with minimal success and remained on amitriptyline which helped marginally but not completely.  He was also taking Panadol osteo and had tramadol to use for acute episodes.

    [4] Ibid, Annexure A.

19. In a further report to the Respondent dated 14 April 2020, Dr Wild opined that based on the criteria in Table 3 of the Impairment Tables, Mr Armstrong had a “moderate functional incapacity” impacting his left lower limb.[5]  The Tribunal interprets this to mean that Dr Wild’s opinion is that there is a moderate functional impact on activities using lower limbs.  This equates to an impairment score of 10 points using Table 3 of the Impairment Tables.

    [5] Exhibit R4, Medical Report of Dr Wild dated 14 April 2020.

20. The Respondent’s position with regards to Mr Armstrong’s left knee is that it was fully diagnosed within the qualification period but that it was not fully treated or stabilised.

21. The Tribunal notes that evidence before the Tribunal, in the form of a schedule from the Pharmaceutical Benefits Scheme, shows that some of the medications being used to treat the symptoms from Mr Armstrong’s left knee, including amitriptyline, were first dispensed to Mr Armstrong late in the qualification period.  In the case of the amitriptyline it was first supplied on 2 April 2019.  In addition, Mr Fletcher reported on 20 September 2019 that he had provided Mr Armstrong with anti-inflammatories.[6]  This was after the qualification period.  The Tribunal is also unable to ignore the evidence from Dr White that the improvements from the physiotherapy Mr Armstrong underwent were ongoing until around August 2019, which is after the qualification period.  It also appears from Mr Fletcher’s evidence that there may be further treatment possible in the form of attendance at a pain rehabilitation group.

    [6] T17, T documents, p 199.

22. Therefore, whilst the evidence suggests that Mr Armstrong now has a functional impairment which could attract a rating of 10 points using Table 3 of the Impairment Tables, the Tribunal is satisfied that the left knee condition was not fully treated and fully stabilised within the meaning of the Impairment Tables within the qualification period.  This means that an impairment score cannot be given in respect of the claim made on 4 February 2019.

    Right hip

23. Mr Armstrong underwent a right total hip replacement on 29 May 2017.[7]

    [7] T8, T documents, p 140.

24. Mr Armstrong’s evidence to the Tribunal in the first instance was apparently to the effect that his hip problem was not as bad as it used to be but that he still had the “odd occasional niggle”.[8]

    [8] T2, T documents, p 10.

25. Whilst the surgery was more than 12 months before the knee replacement, the evidence from Dr Wild is that the treatments in the form of physiotherapy and medications aimed at treating the symptoms in Mr Armstrong’s left knee were also aimed at treating his right hip symptoms.  He opined that Mr Armstrong has reduced function and ongoing chronic pain in his right hip.

26. There is nothing in the evidence from Dr Wild to suggest that the hip had stabilised any earlier than the left knee and of course some of the medication was not commenced until well into the qualification period.

27. The Tribunal notes that Dr Wild also opined in his report of 14 April 2020 that Mr Armstrong has a 10% impairment under Table 3 with respect to his right hip.[9]

    [9] Exhibit R4, Medical report of Dr Wild dated 14 April 2020.

28. Only one impairment rating can be given under a single Table because each table assesses the functional capacity of a part of the body, in this case the lower limbs which extends from the hips to the toes.  Whilst the Tribunal accepts that Mr Armstrong may well now have a permanent impairment of his lower limbs of 10% under Table 3, arising out of his left knee and potentially with some contribution from his right hip condition, the impairment was not fully treated and fully stabilised within the qualification period and therefore no impairment score can be assigned for the purposes of the current claim.

    Spinal condition

29. In his report dated 13 February 2020, Dr Wild diagnosed chronic lumbosacral back pain secondary to severe spinal canal stenosis from spondylolisthesis maximal at L4/5.[10]  He noted that the symptoms had been slowly worsening over five to six years and had been severe and limiting Mr Armstrong’s activities since 2014 as the condition continued to progress.  The medications for Mr Armstrong’s knee and hip were giving him the best results to date.  He had had a steroid injection into the right sacroiliac joint in October 2019 which had provided moderate improvement for three to four weeks but then there had been a slow worsening in the last four months.  He had been referred for a neurosurgical opinion in February 2019 and was still waiting to be seen (having never been seen following an earlier referral in 2014).

    [10] Respondent’s Statement of Facts, Issues and Contentions, Annexure A.

30. The Tribunal notes that treatment is only considered to be reasonable treatment if, among other things, it is available at a location reasonably accessible to the person and it is regularly undertaken or performed.  Given Dr Wild’s comments regarding the neurosurgical referrals, the Tribunal is not satisfied that treatment by a neurosurgeon is something which is regularly undertaken and available in a location reasonably accessible to Mr Armstrong. 

31. However, the assessment of Mr Armstrong’s spinal condition suffers from the same complication as his knee and hip conditions, in that various treatments were commenced well into or after the qualification period.  Dr Wild said the medications gave Mr Armstrong the best results to date, but the steroid injection, which the evidence suggests gave some short-term relief, was not trialled until well after the qualification period.  The Tribunal is therefore satisfied that not all reasonable treatment had been undertaken during the qualification period.

32. This means that once again the Tribunal cannot assign an impairment rating because the condition was not fully treated and fully stabilised during the qualification period.

    Upper limbs

33. Dr Wild says in his report dated 13 February 2020 that Mr Armstrong has had chronic left shoulder rotator cuff syndrome since 2006 after suffering an injury at work.[11]  He underwent an arthroscopic repair in 2007 but the level of pain and function had worsened over the last 10 years.  The analgesia prescribed for Mr Armstrong had also helped with this condition.

    [11] Respondent’s Statement of Facts, Issues and Contentions, Annexure A.

34. Dr Wild did not offer any opinion as to the level of impairment in Mr Armstrong’s upper limbs in his report of 14 April 2020.[12]

    [12] Exhibit R4, Medical report of Dr Wild dated 14 April 2020.

35. The Tribunal notes that this condition was not considered by the Tribunal at the first instance and it appears that Mr Armstrong’s evidence regarding his impairments was focused on his back, hip and knee conditions, although “reconstructed left shoulder” is noted in the claim for DSP which Mr Armstrong submitted on 4 February 2019.

36. There is simply insufficient evidence before the Tribunal regarding Mr Armstrong’s rotator cuff syndrome for the Tribunal to consider an impairment rating.  There is little evidence before the Tribunal with regards to the symptoms suffered by Mr Armstrong and how they functionally impact on his activities when using his upper limbs.  In addition, the evidence suggests that the condition was also treated by the medications which Mr Armstrong commenced after the qualification period.

    CONCLUSIONS

37. The Tribunal has been unable to assign an impairment rating to any of Mr Armstrong’s impairments.  This means that Mr Armstrong does not meet the threshold requirement for qualification for disability support pension of having impairments of 20 points or more.  It is therefore not necessary to go on and consider whether Mr Armstrong has a continuing inability to work.

38. The Tribunal must therefore affirm the decision under review.

39.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms Lynette Rieper, Member.

.......................[sgd]..............................

Associate

Dated: 22 July 2020

Date of hearing:   19 June 2020

Applicant:   By Phone

Solicitor for the Respondent:             Ms C Fitt