Brett Harper and Secretary, Department of Social Services

[2015] AATA 21

[2015] AATA 21

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3856
Re	Brett Harper
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	16 January 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – applicant did not satisfy legislative criteria within the relevant period or subsequent 13 weeks – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), ss 41, 42, Schedule 2

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), ss 10, 11

Guidelines to the Tables for the Assessment of Work-related Impairment

Guide to Social Security Law

REASONS FOR DECISION

Senior Member A C Cotter

16 January 2015

INTRODUCTION

1. The Applicant, Mr Brett Harper, lodged a claim with Centrelink for a disability support pension (“DSP”) on 18 February 2014. The claim was expressed to be in respect of impairment caused by chronic neck and back pain suffered by him.

2. The claim was rejected on the ground that Mr Harper did not have an impairment rating of 20 points or more as required by s 94(1)(b) of the Social Security Act 1991 (Cth) (“Act”).

3. An internal review by an Authorised Review Officer (“ARO”) confirmed the rejection of the claim on the basis that that Mr Harper’s impairment attracted only a rating of five points on the applicable Impairment Table and that in any event, Mr Harper did not have a continuing inability to work.

4. The Social Security Appeals Tribunal (“SSAT”) affirmed the original decision to reject the claim, but on the basis that since the neck and back impairment was fully diagnosed but not fully treated and stabilised, no rating could be assigned under the Impairment Tables. Mr Harper seeks a review of the SSAT’s decision to reject his claim.

5. Since the SSAT decision and Mr Harper’s subsequent application to this Tribunal, further reports have been obtained at the instigation of the Respondent, the Secretary, Department of Social Services (“Secretary”). Those reports, to which I will refer in detail later, have contributed greatly to the resolution of some issues and the narrowing of others, so that the remaining matters for the Tribunal’s consideration are of a relatively narrow compass.

6. The Secretary accepts that Mr Harper has cervical spine degeneration and lumbar spine degeneration, and so satisfies the criterion in s 94(1)(a) of the Act. It is also accepted by the Secretary that the spinal condition was fully diagnosed, treated and stabilised as at the date of the claim, such that it is capable of being assigned an impairment rating.[1]

   [1] Exhibit 2: Secretary’s Statement of Facts and Contentions, paragraphs [24] and [25].

7. Consequently, the remaining ‘live’ issues that fall to be determined are whether

   
   

   Mr Harper’s impairment attracts 20 points or more under the Impairment Tables and if so, whether he has a continuing inability to work.

   THE LEGISLATIVE FRAMEWORK

8. Before considering those issues, it is timely to highlight some aspects of the legislative framework which have a particular bearing on this matter.

9. Section 94 of the Act prescribes the criteria necessary to qualify for the DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work. As I mentioned earlier, the first of those requirements is accepted as being satisfied in this instance.

10. The Social Security (Administration ) Act 1999 (Cth) makes it clear that qualification for the DSP and the relevant impairment ratings are to be determined as at the date of claim (in this case, 18 February 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for the DSP is the date the person becomes qualified.[2] Therefore, the relevant period for considering whether Mr Harper qualified for the DSP is between 18 February 2014 and 20 May 2014.

    [2] See ss 41, 42, and Schedule 2 cl 3 of the Social Security (Administration) Act 1999 (Cth).

11. There are a number of rules governing the application and use of the Impairment Tables[3] which have particular significance in this matter.

    [3] Contained in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

12. Subsection 6(9)(b) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”) (Cth) states that there is no Table dealing specifically with pain, and that when assessing pain, the following matter, amongst others, is to be considered:

    [C]hronic 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.

13. Where two or more conditions cause a common or combined impairment, a single rating is to be assigned to that common or combined impairment under a single Impairment Table. In that case, it is considered inappropriate to assign a separate impairment rating for each condition, as that would result in the same impairment being assessed more than once.[4]

    [4] See ss 10(5) and (6) of the Determination.

14. A rating cannot be assigned between consecutive impairment ratings.  If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned; the higher rating is not to be assigned unless all the descriptors for that level of impairment are satisfied.[5]

    [5] See s 11(1)(b) of the Determination.

15. The Determination also makes it clear that, when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.[6]

    CONSIDERATION

    Do Mr Harper’s impairments attract 20 points or more under the Impairment Tables?

    [6] See s 11(4) of the Determination.

    Which Table(s)?

16. Table 4 of the Impairment Tables relates to spinal function, it pertaining to 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).

17. In his report of 24 March 2014, Mr Harper’s general practitioner, Dr James Kazamias, noted that Mr Harper experienced paraesthesia in his right arm and left lower limb, they being identified as symptoms of the degeneration of the cervical spine and lumbar spine respectively.[7]

    [7] See Exhibit 1: T8, ff99 and 102.

18. While Table 4 is clearly appropriate for assessing Mr Harper’s spinal function impairment, the question arises as to whether other tables, such as those for upper and lower limb functions, should also be utilised to assign a rating in this case.

19. The Secretary contended that that would amount to double counting in this instance because both incidents of paraesthesia result from Mr Harper’s spinal condition. 

20. Based on Dr Kazamias’ report, I accept that the paraesthesia in both the right arm and left lower limb result from the spinal condition. In those circumstances, I agree with the Secretary’s contention that the functional impairment is adequately assessed under

    
    

    Table 4. 

21. In reaching that conclusion, I have also had reference to the Guidelines to the Tables for the Assessment of Work-related Impairment (“Guidelines”) that were applicable at the date of Mr Harper’s claim and during the relevant period referred to in paragraph 10. While the Tribunal is not bound by such policy guidelines, it will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.[8] In the absence of any suggestion that the Guidelines are unlawful or result in an unjust outcome in this instance, I propose to rely on them.

    [8]  Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

22. The Guidelines to Table 2 (Upper Limb Function) caution:

    To avoid double-counting… upper limb impairment resulting from a spinal condition, which restricts overhead tasks, should be rated under Table 4-Spinal Function only. Restrictions on overhead tasks which result from conditions of the shoulder should be rated under Table 2 only.[9]

    [9] Australian Government, Guide to Social Security Law 3.6.3.20 Guidelines to Table 2 – Upper Limb Function, viewed 9 January 2014.

23. A similar instruction is to be found in the Guidelines to Table 3 (Lower Limb Function):

    To avoid double counting… Table 3 should not be used to assess impairment to lower limbs resulting from a spinal condition. Table 4 -Spinal Function should be used where the impairment results from a spinal condition.[10]

    [10] Australian Government, Guide to Social Security Law 3.6.3.30 Guidelines to Table 3 – Lower Limb Function,    viewed 9 January 2014.

24. I therefore consider that it is appropriate that Mr Harper’s impairment be assessed by reference to Table 4 – Spinal Function only, and that it is not appropriate to assign additional impairment ratings under Tables 2 or 3 in respect of the paraesthesia in his right arm and left lower limb.

    Assessment and Impairment Rating

25. In his claim form dated 4 February 2014, Mr Harper noted the fluctuating effect of his condition: “[s]ome days I’m in pain. Other days I have no pain but can’t feel my legs to walk.”[11]  

    [11] Exhibit 1: T6, f68.

26. In the same form, he noted that his condition did not make it difficult for him to care for himself, or to use public transport.[12]

    [12] Exhibit 1:T6, f81.

27. He expanded on the functional impact of his condition in a face to face interview with a registered nurse as part of a Job Capacity Assessment (“JCA”) on 7 March 2014.[13] The comments appear to have been repeated, or at least were not contradicted, at a second JCA face to face interview, this time with a rehabilitation counsellor, on 8 April 2014.[14]  In summary, Mr Harper reported the following to the assessors:

    [13] See Exhibit 2: Secretary’s Statement of Facts and Contentions, Attachment A. 

    [14] See Exhibit 1: T9, f108.

    (a)He does his own housework; he can vacuum and mop and attend to all activities of daily living himself. However, he is unable to do this when he is having a bad day. He does his own washing and carries the clothes basket himself to the clothes line where he hangs the washing out himself. He cooks his own meals and does his own dishes.

    (b)He watches television some days and catches up with friends at his place or theirs. Sometimes he goes fishing with his friends and occasionally, with his father in the tinnie.

    (c)He drives his manual car himself. He drives to the supermarket to go shopping and to go fishing at Nudgee Beach or Woody Point and to visit friends.[15]

    (d)He can sit for around one to one and a half hours on a good day, but on a bad day he needs to keep changing positions as he cannot get comfortable.

    (e)He does his shopping with a trolley. He can walk from the car to the supermarket unassisted. He does a big shop every fortnight.

    (f)He can walk up and down stairs if necessary.

    (g)He can pick up objects off the floor but finds that difficult. He can pick objects up off a table or bench. He can carry a two litre bottle of milk without any issues.

    (h)On a good day, he can mow the lawn when it needs it. He is able to carry the mower catcher full of grass on a good day but not on a bad day.

    (i)He has bad days once or twice a week. He usually spends them lying in bed.

    (j)He said that physiotherapy had helped his neck a great deal in that it had improved the range of movement in his neck. However, physiotherapy had not helped with his back.

    (k)As to the reference in earlier medical reports to his collapsing or blacking out, he had not experienced that for a long time.

    [15] Estimated as a 4.6 kilometre (7 minute) trip to Nudgee Beach and approximately 22 kilometre (20 to 25 minute) trip to Woody Point: see Exhibit 2: Secretary’s Statement of Facts and Contentions, Attachment C.

28. At the hearing before the SSAT, Mr Harper expanded further on some of those matters, saying that he cannot bend from the waist to pick something off the floor, and that he uses his knees to bend down to do so. As to mowing, he told the SSAT that it takes him three quarters of a day, whereas it might take someone else 15 to 20 minutes. He said he could turn his head in each direction from 12:00 to 10:00 and then from 12:00 to 2:00.  On a good day, he could walk between 200 metres and a kilometre or two, but on a bad day, he cannot even walk to his mail box to collect the mail.[16]

    [16] See Exhibit 1: T1, f10, paragraph [23].

29. In his sworn testimony before the Tribunal, Mr Harper confirmed that he had reported the matters set out in paragraph 27 to the assessor at the March 2014 interview. He went on to say that the incidence of bad days increases during the winter months. He also expressed the view that his condition was slowly getting worse and that he was on a “downward spiral”.

30. Dr Kazamias’ report of 24 March 2014 observed that Mr Harper’s neck problem caused him pain which reduced his endurance and concentration. The pain and paraesthesia from his back complaint also reduced his endurance, movement and concentration.[17]

    [17] See Exhibit 1: T8, ff100 and 103.

31. Ms Rebecca Tweedy, a specialist orthopaedic physiotherapist from the Royal Brisbane and Women’s Hospital, observed:

    Brett’s lumbar AROM [active range of movement] was limited into flexion (to knees) and extension (¼ ROM hinge at L5S1). His cervical AROM was very limited in all directions (rotation 40° bilaterally and extension ¼ ROM). Hip AROM and SIJ [sacro-iliac joint] were pain-free and SLR [straight leg raising] was 40° bilaterally.[18] 

    [18] See Exhibit 1: T13, f130.

32. The Secretary says that this demonstrates that while Mr Harper’s range of movement at the time was limited, it was not to the extent that he was unable to turn his head or bend his neck without moving his trunk.

33. For the purposes of the current application, the Secretary obtained a further report from an occupational therapist, Ms Miriam Squire, who undertook a file JCA as at the relevant period.[19] She concluded that there was a moderate functional impact on activities involving spinal function, and assigned an impairment rating of 10 points. In particular, she observed that Mr Harper was not precluded from: performing any overhead activities; turning his head, or bending his neck, without moving his trunk; bending forward to pick up a light object from a desk or table; or remaining seated for at least

    
    

    10 minutes (they being the descriptors required to attract a 20 point impairment rating). She expressly noted that she had taken into consideration the fluctuations in function, with the assessed rating reflecting “usual function”. 

    [19] See Exhibit 2, Attachment C. 

34. That assessment is to be compared with the opinion expressed by Dr Kazamias in his further report of 10 September 2014, in which he concluded that at the relevant period, Mr Harper’s impairment fluctuated between moderate (10) and severe (20).[20]

    [20] See Exhibit 2: Secretary’s Statement of Facts and Contentions, Attachment B.

35. There is no doubt that during the relevant period, Mr Harper had his good and bad days and that on bad days, he would likely meet the descriptors for 20 points – on those days, he is basically confined to bed and is essentially unable to undertake the normal activities of daily life. As mentioned in paragraph 15 above, in such cases, a rating needs to be assigned which reflects the “overall functional impact” of those impairments, “taking into account the severity, duration and frequency” of the episodes or fluctuations as appropriate.

36. On the issue of frequency of good and bad days, Ms Squire relies on Mr Harper’s

    
    

    March 2014 self-reporting to the initial JCA assessor, that he experienced one or two bad days a week. While Dr Kazamias also noted in his later report that Mr Harper was bed bound a couple of days a week from his neck pain, he also observed that his back pain would be severe four or so days a week.

37. The matter has been further complicated by Mr Harper’s own observation that, since the March 2014 interview (which he accepts as an accurate reflection at the time), his condition has deteriorated further (not helped by the intervening winter months) and that he is on a “downward spiral”.

38. The Tribunal, however, has to consider the question of whether Mr Harper qualified for the DSP as at the time of the application (and the 13 weeks subsequent). I consider the best available evidence of the severity, duration and frequency of Mr Harper’s episodes or fluctuations is his own account to the initial assessor in March 2014, of one to two bad days a week. On that basis, I accept the assessment of Ms Squire, as contended for by the Secretary, that a rating of 10 points should be assigned to Mr Harper’s impairment at the relevant time.

    CONCLUSION

39. As a result, Mr Harper does not qualify for the DSP since he did not satisfy the criterion in s 94(1)(b) of the Act at the relevant time, or during the relevant period. Consequently, it is unnecessary to consider whether he has a continuing inability to work. The decision under review is therefore affirmed.

40. I appreciate that this is a disappointing outcome for Mr Harper, but note that there is nothing to prevent him from making a fresh claim for DSP, especially in light of his deteriorating condition.

    DECISION

41. The decision under review is affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated 16 January 2015

Date of hearing	10 December 2014
Applicant	In person
Solicitors for the Respondent	Donna Smith, Department of Human Services