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

[2017] AATA 3054

Baker and Secretary, Department of Social Services (Social services second review) [2017] AATA 3054 (24 October 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6425

Re:Darren Baker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:24 October 2017

Place:Sydney

The decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 16 November 2016 is affirmed. 

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

Mrs J C Kelly, Senior Member

Catchwords

SOCIAL SECURITY – Disability Support Pension – cervical spine condition – rotator cuff disease - epicondylitis – applicant has a physical impairment – applicant’s impairments cannot be rated under the Impairment Tables – applicant’s impairments are not fully treated and stabilised – decision under review affirmed 

Legislation

Social Security Act 1991 (Cth)

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

24 October 2017

The decision under review

1. The Tribunal is reviewing a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 16 November 2016.  That decision affirmed a decision made by an Authorised Review Officer (ARO) on 4 August 2016 which found that the decision made on 10 June 2016 to reject Mr Baker’s claim for Disability Support Pension (DSP) was correct. 

   The relevant legislative scheme

2. Section 94 of the Social Security Act 1991 (the Act) sets out the qualification criteria for DSP:  The person is qualified if:

   (a)They have a physical, intellectual or psychiatric impairment(s);

   (b)That impairment(s) attract(s) an impairment rating of 20 points or more from the Impairment Tables; and

   (c)The person has a “continuing inability to work”.

3. The Impairment Tables are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. To attract an impairment rating, the condition must be fully diagnosed, treated and stabilised.

   The issues in this case

4. It is not in contention that Mr Baker lodged an effective claim for DSP on 29 March 2016. Accordingly, the qualification period for the DSP is from 29 March 2016 to 28 June 2016 (the qualification period).

5. The Secretary accepts that during the qualification period Mr Baker had physical impairments and satisfied s 94(1)(a) of the Act. Those impairments were:

   (a)Spinal condition (degenerative disc disease survival spine);

   (b)Degenerative disease right rotator cuff, right lateral epicondylitis;

   (c)Bilateral carpal tunnel syndrome.

6. The issue in dispute is whether Mr Baker’s impairments attract a rating of 20 points or more according to the Impairment Tables (s 94(b)).  In order for a condition to be given a rating Clause 6 of the Impairment Tables requires that the condition is permanent, that is, it has been fully diagnosed by an appropriately qualified medical practitioner, and fully treated and fully stabilised.  Those terms are defined in cl 6(5), (6) and (7).

   Mr Baker’s evidence

7. Mr Baker gave evidence by telephone. His evidence is summarised below. 

8. His neck is his most significant problem. His neck condition began in 2009. It stops him from doing things. It is the same now as it was in 2016.  It is sore all the time.  The longer he walks, the sorer it gets, and he just wants to lie down.  After an hour or one and a half hours, he just wants to lie down.

9. He also has pain in his back and shoulder.

10. He injured his right arm in 2008. He uses his left hand to hold things. His right arm does get very sore but his neck restricts what he can do.

11. He has had no treatment since 2012 because the insurer stopped paying.  It did not help in any event, he cannot afford treatment, and he does not see that further treatment will help. He does take pain killers.

12. He showers himself, washes his hair with his left arm, but he cannot wash his back. During the day he lies on the bed, gets up and sits in the recliner, goes to the kitchen table and sits in a chair, or sits in a lounge chair but most of the time he just lies down.

13. He denied saying that he goes shopping three times a week. He said that he goes out three times a week: shopping on one day, to job search on another day, and on another day he goes to see a friend. He and his friend sit and talk and he stays at her house that night. She picks him up or he gets a lift. Her house is 20 minutes by car from his.

14. Mr Baker says that the shops are five minutes’ drive away from his home and everything is there, the hospital, the police and the court. He shops with his mother. He just walks around with her and sometimes pushes the trolley. His mother picks up things off the shelves. He could get things off the shelf but not if the shelf was high. It is just a chance for him to get out of the house.

15. Mr Baker said that he does not turn his head when he is driving. He drives along the main road which has traffic lights and so there is no need to turn his head.  He uses the car mirrors. He has his right arm on the armrest, his right hand holds the bottom of the steering wheel and his left hand holds the left side. He borrows an automatic car for appointments.

16. He wears joggers. He ties the shoelaces by sitting on the bed, and lifting his leg onto the bed ledge.

    The evidence of Dr Mark Liew

17. Dr Mark Liew, rheumatologist, provided a report dated 13 January 2016 to support the DSP application.  He also wrote a report dated 6 February 2017 in response to specific questions asked of him by a conference registrar of this Tribunal. 

18. In his 2016 report, Dr Liew said the following:

    ·Mr Baker said that his neck, right shoulder and elbow condition had “gradually deteriorated with increasing pain and stiffness to the neck, shoulder and arm and inability to sustain any activities for any period of time as he continued to work” and had not “improved significantly despite a prolonged rest from strenuous/sustained activities since he ceased work.”

    ·Mr Baker had received physiotherapy and took pain management medications with no benefit.

    ·Mr Baker said that “he could hardly maintain his neck in flexion for more than 10 minutes at a time” and he was unable to carry or lift any heavy objects more than a few kilograms and was unable to sustain any activities with his right hand for more than a few minutes, in particular his work as a butcher.

    ·Mr Baker said that he had been carrying out some household tasks but he has to take his time and have plenty of rest breaks.

    ·He has only been taking paracetamol p.m.

    ·On examination, Dr Liew found the following:  Reasonable spinal posture but ROM [Range of Movement] cervical spine moderately marked limited and with discomfort/pain with movement in all directions. He was quite tender on the right shoulder girdle muscles. There is marked tenderness to distal supraspinatus tendon and to its insertion to greater tuberosity. Moderate limited ROM shoulder with pain with movement, in particular abduction and rotation with armed raised. Significant weakness with abduction and resisted abduction caused intense pain. Marked tenderness lateral epicondyle right elbow and significant weakness extensive compartment right forearm. Grip strength diminished right side. Tinel’s sign weakly positive for carpal tunnel syndrome bilaterally. No demonstrable wasting small muscles hands.

    ·Dr Liew assessed the functional impact of Mr Baker’s conditions “perusing the Social Security tables”. He assessed moderate functional impact on activities using his right hand or arm (10 points), mild impact on activities using left hand (5 points) and severe functional impact on activities with cervical spine (20 points).

19. Following is a summary of Dr Liew’s 2017 report:

    ·Mr Baker’s “conditions of degenerative disc disease cervical spine, degenerative disease right rotator cuff, right lateral epicondylitis and bilateral carpal tunnel syndrome were fully treated and stabilised as at 29 March 2016 or within 13 weeks of that date.”

    ·On review on 30 January 2017, he “obtained a comprehensive list of treatments in detail, including two prolonged courses of physiotherapy, acupuncture, pain management and rehabilitation by the Nepean Pain Management Centre for extended period of six months, and attended occupational/rehabilitation therapy, extended lists of pain management medication, including narcotic preparation and currently on Voltaren and Tramal and three cortisone injections.” Mr Baker did “trial a conditioning/strengthening exercise, which apparently only aggravated his pain. These therapeutic interventions were carried out from 2008 until 2012.”

    ·Applying the impairment table, he assessed that “there is severe functional impact (20 points) on activities involving spinal function due to degenerative disease cervical spine.”

    ·He assessed “mild-to-moderate functional impact (5 to 10 points) on activities using his hands or shoulders.”

    ·The disabilities outlined are related to pain, weakness, and poor exercise tolerance due to the degenerative disease of spine, joints, tendons, ligaments and enthesis.

    ·As at 29 March 2016, Mr Baker “did not have the capacity to work 15 hours per week within the next two years due to severity of symptoms of pain, weakness and rather poor exercise tolerance.”

20. Mr Baker told the Tribunal that he had seen Dr Liew “when he was under insurance” and that Dr Liew got the information off his computer.  There is no suggestion in the reports of Dr Liew that he had seen Mr Baker before the consultation in January 2016.

    Other evidence before the Tribunal

21. There were two bundles of documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”.  In addition to the two reports from Dr Liew, the T documents and Supplementary T documents included the results of various investigations, dating from 2008, which consider various parts of Mr Baker’s body, including MRIs, an ultrasound, and X-rays, and a neurophysiology test, reports from his General Practitioner, Dr Richardson, and Job Capacity Reports dated 9 November 2012, 12 August 2015, 10 June 2016 and 17 February 2017.  There were also Employment Services Assessment Reports dated 27 March 2013 and 27 June 2014. The T documents and Supplementary T documents also included Centrelink applications and related administrative documents. The T documents contained evidence provided by Mr Baker that showed appointments and referrals for treatments from 2005 until the middle of June 2011.  Those treatments included pain management, occupational therapy, physiotherapy, hand and arm therapy and steroid injection to the right elbow.   

    Consideration and findings

22. The evidence clearly demonstrates that Mr Baker has had no investigations or treatment for any of the conditions that are the subject of this decision since 2011, apart from pain medication. 

    Cervical spinal condition – degenerative disc disease cervical spine

23. The Secretary submitted that Mr Baker’s cervical spinal condition had not been fully treated and stabilised during the qualification period because, based on the 2016 and 2017 Job Capacity Assessment (JCA) reports, he had not received treatment since 2010 and would benefit from review by a specialist.  The Secretary also considered there was insufficient evidence that reasonable treatment had been undertaken since 2012 to minimise/prevent generalised deconditioning.

24. The Secretary also pointed to the reports of Dr Richardson, dated 17 October 2012 and 11 May 2015, which stated that further treatment was planned.  It has not been undertaken.

25. The Secretary contended that Dr Liew’s opinion that Mr Baker’s conditions were fully treated and stabilised was based on his list of treatments but because he did not identify which treatment had been for which condition greater clarity was needed. 

26. The Tribunal finds that Dr Liew accepted Mr Baker’s statement that the treatments had not helped.  The Tribunal notes that Mr Baker said at the hearing that he stopped treatment because his insurance payments ceased, he could not afford treatment and he thought it would not help. However, Dr Richardson had planned further treatment in his 2012 and 2015 reports which suggests that he thought it would be beneficial.  

27. The Tribunal accepts the Secretary’s contention that in order to find that a condition has been fully treated and stabilised, it is necessary to know which treatment was received for each condition and its efficacy or otherwise. 

28. After reviewing all the evidence, and in particular T30 which includes many appointment records and referrals in relation to physiotherapists and pain clinics, the Tribunal accepts that Mr Baker has attended pain clinics in relation to his cervical spinal condition, and has had physiotherapy for that condition.  Dr Richardson’s reports support that conclusion because they state that physiotherapy was used to treat the spinal condition.

29. However, the Tribunal is not satisfied that Mr Baker has not had such treatment since 2011 because it will not be of benefit him. That finding is supported by Dr Richardson’s reports which planned further treatment.  Dr Richardson did not indicate that Mr Baker could not afford the planned treatment. 

30. Further, Mr Baker gave several reasons for not having further treatment.  The Tribunal does not accept that those reasons, summarised above, satisfactorily answer the question before it, which is whether the condition has been fully treated and stabilised.  Medical evidence from an appropriately qualified practitioner is necessary to make such a finding.

31. The Tribunal therefore finds that the cervical spinal condition has not been fully treated and stabilised. Therefore, an impairment rating cannot be given.

    Degenerative disease right rotator cuff, right lateral epicondylitis, bilateral carpal tunnel syndrome

32. The 2017 JCA recommended Mr Baker’s conditions of degenerative disease right rotator cuff, right lateral epicondylitis, bilateral carpal tunnel syndrome would benefit from updated radiological and specialist investigation to determine the currency of the conditions and suitable treatment.

33. Mr Baker was given an ultrasound guided steroid injection to the right elbow on 14 July 2008.  In relation to Mr Baker’s right forearm and elbow, in a report dated 2 April 2009 Dr Tonkin stated that Mr Baker had undertaken physiotherapy, massage, acupuncture and a series of cortisone injections with no particular benefit. Dr Tonkin recommended further physiotherapy for three months to bring Mr Baker to a level at which he could return to work or if that were unsuccessful, surgery, which he stated was successful in returning a majority of people, but not all, to their activities. 

34. Mr Baker told the Tribunal that he did not have surgery because his insurance payments were stopped, there was no guarantee of success, and he fears going to hospital because he might die. He also said that surgery would not help his shoulder or elbow.  The Tribunal finds that the proposed surgery was to improve the elbow condition.

35. However, whether that was reasonable treatment as defined in cl 6(7) of the Impairment Tables is doubtful.  Reasonable treatment must have “a high success rate”.  The Tribunal does not consider that success for a “majority” of people, which could be 51 out of 100, is a high success rate. 

36. In any event, Dr Liew did not consider whether there was further reasonable treatment that Mr Baker might undertake.  He appears to have accepted Mr Baker’s claim that past treatment had not helped.  That was only one of the reasons for not having further treatment that Mr Baker told the Tribunal. For the reasons given in relation to the cervical spinal condition, the Tribunal does not consider that Mr Baker’s various reasons for having no further treatment is sufficient to enable the Tribunal to find that the conditions have been fully treated and stabilised.

37. There had been a lapse of at least four years since Mr Baker has had treatment, apart from medications, for any of the claimed conditions. He claimed that his condition had gradually deteriorated. 

38. Mr Baker gave as one of his reasons that he could not afford treatment.  Dr Richardson included physiotherapy as planned treatment for these conditions in his 2012 report and in his 2015 report.  He did not state that such treatment was not possible because Mr Baker could not afford it.

39. The Tribunal finds that there is not cogent evidence before it that, during the qualification period, Mr Baker had undertaken reasonable treatment for the conditions degenerative disease right rotator cuff, right lateral epicondylitis, and bilateral carpal tunnel syndrome. The Tribunal also finds that any further reasonable treatment is unlikely to result in significant improvement to a level enabling him to undertake work in the next 2 years.

40. The Tribunal finds that the degenerative disease right rotator cuff, right lateral epicondylitis, and bilateral carpal tunnel syndrome have not been fully treated and stabilised.  An impairment rating cannot be given to those conditions. 

41. The Tribunal has considered those conditions together because they result in functional impairment that would be appropriately assessed according to Table 2 – Upper Limb Function if they were found to be fully diagnosed, treated and stabilised.

    Decision

42. For the above reasons, the decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 16 November 2016 is affirmed. 

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 24 October 2017

Date(s) of hearing:	15 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services