BRENDAN STANFORD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 370

[2013] AATA 370  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5760
Re	BRENDAN STANFORD
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	3 June 2013
Place	Brisbane

The Tribunal affirms the decision under review.

..........................[SGD]..............................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from chronic lumbar back pain and systemic generalised psoriasis – Impairment Tables – Conditions fully diagnosed, treated, stabilised and permanent – Overall impairment rating less than 20 points – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) ss 27, 94

Social Security (Administration) Act 1999 (Cth) Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

1. On 6 July 2012,[1] Mr Stanford (the applicant) made a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 24 August 2012.[2] That decision was affirmed by an authorised review officer on 6 September 2012[3] and by the Social Security Appeals Tribunal on 14 November 2012.[4]

   [1] Exhibit 1, T-documents, pp. 37-66.

   [2] Exhibit 1, T-documents, p.75.

   [3] Exhibit 1, T-documents, p. 77-79.

   [4] Exhibit 1, T-documents, p. 3-8

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a physical impairment in relation to chronic lumbar back pain and systemic generalised psoriasis. The remaining requirements in s 94 of the Act, and the matters in issue, are:

   ·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables[5] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) as required by s 94(1)(b) of the Act; and, if so

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

   [5] See s 27 of the Act.

3. 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 claim or in the period of 13 weeks from the day of the claim.[6] In the applicant's case, that period runs from 6 July 2012 until 5 October 2012 (the relevant period).

   [6] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4. The requirements to be followed in applying the Impairment Tables are set out in Part 2, s 6 of the Determination which is headed Rules for applying the Impairment Tables (the Rules). That section reads:

   6 Applying the Tables

   Assessing functional capacity

   (1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   Note: For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

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

   (b) the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c) the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

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

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (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.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.

   Note: For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a) is available at a location reasonably accessible to the person; and

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f) carries a low risk to the person.

   Impairment has no functional impact

   (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

   Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

   Assessing functional impact of pain

   (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

   (a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

   (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

5. Mr Joe Guthrie, for the respondent, conceded that the applicant’s chronic lumbar back pain and systemic generalised psoriasis were permanent conditions in that they were fully diagnosed, treated and stabilised and likely to persist for more than two years. However, he submitted that the level of overall impairment for those conditions was not sufficient to attract a rating of 20 points under the relevant Impartment Tables. Further, he submitted that there was no appropriate diagnosis for any mental condition before the Tribunal and that, accordingly, no impairment rating could be allocated to any such condition. He also submitted that, in accordance with the findings by the job capacity assessor in the report dated 16 July 2012,[7] the applicant did not satisfy the incapacity for work requirements of s 94(2) of the Act. He submitted that the decision under review should be affirmed.

   [7] Exhibit 1, T-documents, pp. 83-88.

6. The applicant submitted that his conditions were permanent; that they should be allocated an overall impairment rating of at least 20 points under Table 5 of the Impairment Tables; and that he was not capable of undertaking work or retraining for work because of his back and skin conditions. He submitted that his conditions are only stable because of the medication he takes. He submitted that the seriousness of his conditions should be assessed with regard to the fact that if he were not taking the medication he would experience severe symptoms from his back and skin conditions.

   EVIDENCE

   The applicant

7. The applicant described himself as independent in daily living activity but had problems if he attempts to lift anything heavy. He has no vehicle and is able to walk for two kilometres without difficulty. He walks ¾km to and from his shopping centre to complete his shopping responsibilities. He has found relief in cortisone injections which were administered in July and August 2012 and in February 2013. He can only bend to pick up a light object from the floor if he bends his knees; he can turn his trunk from side to side; he is able to turn his head; and is able to sit for 30 minutes or more. His psoriasis is well controlled on medication but he has occasions when symptoms appear on his hands and feet if he has a viral infection, gets stressed or has a skin laceration.

   Dr Draeyer

8. Dr Draeyer is the applicant’s treating doctor. He completed a report for the purposes of the applicant’s claim on 6 July 2012.[8] Dr Draeyer diagnosed chronic lumbar back pain and noted “persistent lower back pain” with treatment being “rest as needed, back exercises, pain killers”. In his report, limitations on functional ability were stated to be:

   daily life tasks possible, not able to stand for extended periods or lift, physical work not possible.

   [8] Exhibit 1, T-documents, pp. 67-74.

9. Dr Draeyer noted that the applicant suffered from systemic generalised psoriasis which had been diagnosed and treated by a specialist. He listed symptoms as “small joint pains” with “skin under control by medication”. He listed various medications including pain killers that the applicant takes for the condition. He described the applicant’s functional limitation from the condition as: “difficult to do physical work”.

10. Dr Draeyer also gave evidence. He confirmed the diagnoses of chronic lumbar back pain and systemic generalised psoriasis and the correctness of his report in relation to functional limitations as at July 2012. He recalled that he spoke to a job capacity assessment (JCA) reporter at that time and provided information about those limitations.

11. In relation to the applicant’s back condition, Dr Draeyer was referred to Table 4 of the Impairment Tables. He agreed that the applicant was able to bend to pick up a light object but also noted that it would be preferable for him to do so by bending his knees. He described limited movement of the trunk and no difficulty with turning his head. He also considered that the applicant had difficulty with activities over head height but only in the context of having to do so on a repetitive basis. He considered that bending to knee level and then straightening, turning the trunk or moving the head were not limitations for the applicant.

12. Dr Draeyer confirmed that the applicant’s psoriasis was kept under control with Cyclosporin. He described this as an immunosuppressant drug which has the potential to reduce the activity of the immune system. Dr Draeyer said that while this made the applicant more liable to have “flare-ups” of the psoriasis, the applicant had not experienced these during his treatment. His opinion was that the applicant may experience skin reactions if he was exposed to agents such as detergents or grease or if he was required to use mechanical tools with his hands. However, he considered that the applicant could undertake light duties such as office work.

    Dr Arthur McKenna

13. Dr McKenna conducted a CT of the applicant’s lumbar spine on 3 April 2012 and provided a report in which he noted that the applicant suffered “lower back pain for one year” which had been persistent for the previous two months “radiating to the right thigh”. Dr McKenna concluded that the applicant had demonstrated “degenerative disc and facet joint changes most pronounced at L5/S1 where both descending S1 nerves are abutted”.[9]

    [9] Exhibit 1, T-documents, pp. 28-29.

    JCA report

14. A JCA was completed by registered psychologist “Sean”, with the assistance of registered occupational therapist “Andrea”, on 16 July 2012. In relation to the back condition and psoriasis, the JCA report reiterated the opinions of Dr Draeyer and concluded that the conditions are permanent.[10] The functional impact for the spinal condition was described as:

    There is no functional impact on activities involving spinal function. The customer can bend to pick a light object off the floor; turn his trunk from side to side; and turn his head to look to the sides and upwards.

    After speaking with Dr Draeyer, the reporter wrote that the applicant was able to remain seated for more than 10 minutes, had no difficulty performing overhead activities or bending forward to pick up an object. The report referred to Table 4 of the Impairment Tables and recommended a nil rating.

    [10] Exhibit 1, T-documents, pp. 83-88.

15. For psoriasis, the report described “no functional impact requiring healthy, undamaged skin”. After speaking with Dr Draeyer, the JCA reporters wrote that the applicant was under the care of a specialist, that the condition was well controlled by medication with no impact on the skin at that time. They noted his advice that no further precautions regarding sunlight were required and that the applicant would be better suited to light, sedentary work such as an administration officer. The report referred to Table 14 of the Impairment Tables and recommended a nil rating.

16. The JCA reporters’ opinion was that the applicant had a base-line work capacity of 15-22 hours in light, less skilled activity in work such as gatekeeper, ticket collector, store greeter or clerical/administrative duties.

    CONSIDERATION

17. As noted above,[11] the requirements to be followed in applying the Impairment Tables are set out in s 6 of the Rules. On the medical evidence before me and having regard to the Introductions to Tables 4 and 14 of the Impairment Tables, as set out below, I accept as correct Mr Guthrie’s concession that the applicant’s conditions of chronic lumbar back pain and systemic generalised psoriasis are permanent. Some reference is made in the applicant’s documents to a “mental” condition. The applicant denied such a condition and there is no diagnosis by a medical practitioner of any such condition. Accordingly, I am satisfied that there is no psychological impairment which needs to be considered under s 94 of the Act.

    [11] See para 4 (above).

18. Table 4 is the relevant table under the Impairment Tables for the applicant’s back condition. It reads:

    Table 4 – Spinal Function

Introduction to Table 4

·     Table 4 is to be used where 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.

·      The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·      Self-report of symptoms alone is insufficient.

·      There must be corroborating evidence of the person’s impairment.

·      Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

·   a report from the person’s treating doctor;

·   a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

·   a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·       In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

 Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)        The person can:

(a)       bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)      turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)        The person has some difficulty in:

(a)       activities over head height (e.g. activities requiring the person to look  upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or  upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)       the person is unable to bend forward to pick up a light object placed at   knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)        The person is unable to:

(a)       perform any overhead activities; or

(b)       turn their head, or bend their neck, without moving their trunk; or

(c)       bend forward to pick up a light object from a desk or table; or

(d)       remain seated for at least 10 minutes.

30

There is an extreme functional impact on activities involving spinal function.

(1)        The person is:

(a)       completely unable to perform activities involving spinal function; or

(b)       unable to bend or turn their trunk or their neck to complete the most basic    of daily activities (e.g. dressing, bathing, showering or light housework).

1. Table 14, the relevant table under the Impairment Tables for the applicant’s psoriasis, reads:

   Table 14 – Functions of the Skin

Introduction to Table 14

·     Table 14 is to be used where the person has a permanent condition resulting in functional impairment related to disorders of, or injury to, the skin.

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

·     a report from the person’s treating doctor;

·     a report from a medical specialist (e.g. dermatologist or burns specialist) confirming diagnosis of dermatological conditions or burns;

·     assessments or reports from practitioners specialising in the treatment and management of these conditions such as dermatologists, burn specialists, clinical nurse consultants or nurse practitioners.

Points

Descriptors

0

There is no functional impact on activities requiring healthy, undamaged skin.

(1)The person is able to perform normal daily activities (e.g. washing dishes, shampooing hair, household cleaning and participating in outdoor activities) with no difficulty.

5

There is a mild functional impact on activities requiring healthy, undamaged skin.

(1)        Regarding the minor adaptations to some daily activities that the person has to make, at least one of the following applies:

(a)        the person has minor difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia) and may need to wear protective gloves for some tasks, apply protective cream to the hands, or limit repetitive tasks involving use of the hands;

(b)        the person has minor difficulties performing activities involving use of other parts of the body due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia);

(c)        the person has minor difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications or past history of skin cancers) and needs to take higher than normal precautions to limit exposure to sunlight.

10

There is a moderate functional impact on activities requiring healthy, undamaged skin.

(1)        Regarding the adaptations to several daily activities that the person has to make, at least one of the following applies:

(a)        the person has moderate difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. moderate allodynia) and needs to wear protective gloves for most tasks, avoid contact with all detergents and soaps, or avoid repetitive tasks involving use of the hands;

(b)        the person has moderate difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);

(c)        the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);

(d)        the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).

20

There is a severe functional impact on activities requiring healthy, undamaged skin.

(1)        Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:

(a)        the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving use of the hands;

(b)        the person has severe difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

(c)        the person has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

(d)        the person has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;

(e)        the person is not able to wear clothing or footwear likely to be required in their workplace, including items of personal protective equipment (e.g. protective glasses, ear defenders, safety jacket, gloves, safety boots, safe shoes or hard hat).

30

There is an extreme functional impact on activities requiring healthy, undamaged skin.

(1)        The person has to make major modifications to most daily activities or is unable to perform most daily activities, requires repeated assistance throughout the day and could not attend a work, education or training session for a continuous period of at least 3 hours as at least one of the following applies:

(a)        the person has such extensive damage or scarring of their skin that they are unable to perform most daily activities without significant difficulty or discomfort;

(b)        the person requires continual application or wearing of medically prescribed creams or dressings to most or all of the skin on the body;

(c)        the person has severe reactions to normal exposure to sunlight or skin contact with routine substances found in most households, requiring repeated urgent medical treatment and frequent hospitalisation.

1. The applicant submitted that the real functional impairment from his conditions is masked by the beneficial effects of the medication he takes for them. That aspect of assessment is provided for in s 6(8) of the Rules and the associated example which read:

   (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

   Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

   Accordingly, it is the condition as it presents under the influence of medication which must be assessed.

2. The JCA report reflects the opinions given by Dr Draeyer in his report. Indeed, Dr Draeyer conceded this in his evidence. Significantly, those opinions relate to the applicant’s conditions during the relevant period.

3. Aspects of Dr Draeyer’s evidence contradicted, to some extent, that opinion. For the back condition, he said that the applicant met some of the criteria at the moderate level in Table 4 but agreed that he was able to sit for 30 minutes or more. Indeed, the applicant demonstrated that capacity during the hearing.

4. For a moderate level of functional impairment, it is sufficient if the applicant is able to sit for 30 minutes or more and is also unable to sustain overhead activities (e.g. accessing items over head height). Dr Draeyer’s evidence is that the applicant has no such difficulty except when he is required to undertake the activity on a repetitive basis. In that regard, s 11(3) of the Rules reads:

   (3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

   Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

5. That means that the applicant meets the criteria of 10 points under Table 4. On the basis of Dr Draeyer’s evidence, I am satisfied that the appropriate rating for the applicant’s back condition under Table 4 is 10 points.

6. For the applicant’s psoriasis, the JCA reporters allocated zero points under Table 14. That was consistent with the description of functional limitations identified by Dr Draeyer in his report. In his evidence, Dr Draeyer agreed with the applicant that there was a potential for some of the descriptors at the 20 points level under Table 14 to be met. However, he made it clear that while this could be the case if there was a “flare up” of the psoriasis, this had not occurred while he has been treating the applicant. As noted above, the condition must be assessed as it presents under medication and I am satisfied that the appropriate rating for psoriasis under Table 14 is zero.

7. On the basis of those findings, the applicant’s overall impairment is 10 points. It follows that the threshold of 20 impairment points required under s 94(1) of the Act is not met. The applicant is not qualified for the disability support pension during the relevant period. It is not necessary for consideration to be given to his capacity for work.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

..........................[SGD]..............................................

Associate

Dated 3 June 2013

Date of hearing	27 May 2013
Applicant	In person
Solicitor for the Respondent	Mr Joe Guthrie, Departmental Advocate