Brewer; Secretary, Department of Social Services (Social services second review)

[2017] AATA 506

Brewer; Secretary, Department of Social Services (Social services second review) [2017] AATA 506 (13 April 2017)

Division:GENERAL DIVISION

File Number:           2016/0035

Re:Secretary, Department of Social Services

APPLICANT

Shane BrewerAnd  

RESPONDENT

DECISION

Tribunal:Member K Millar

Date:13 April 2017

Place:Adelaide

The decision under review is set aside and substituted with a decision that Mr Brewer is not qualified for a disability support pension.

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Member K Millar

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether respondent's medical conditions are fully diagnosed, fully treated and fully stabilised within 13 weeks of the claim - whether respondent's conditions warrant a rating of 20 points under the Impairment Tables - decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member K Millar

13 April 2017

BACKGROUND

1. As a child, Mr Brewer was hit by a car while he was crossing Shepherd Avenue in Port Lincoln.  His injuries resulted in his left leg being shorter than the right.  Over time this has caused back problems that have been exacerbated by manual work.

2. Mr Brewer applied for a disability support pension (DSP) on 7 May 2015 on the basis of problems with his back and neck, as well as difficulty concentrating due to the pain medication he takes for his back and neck.

3. The requirements for a DSP include that the functional impact of the condition or conditions results in an impairment rating of 20 points or more under an impairment rating table, and that the person has a continuing inability to work. 

4. Mr Brewer’s application was refused on 29 July 2015 because, in the view of the delegate, the impact of his conditions did not result in an impairment rating of at least 20 points under impairment rating tables.  This decision was affirmed by an authorised review officer on 1 October 2015.  On 26 November 2015, the first tier review by this Tribunal set aside the decision to refuse his application, finding that the effect of Mr Brewer’s conditions was such that he met the requirement to achieve at least 20 points under the impairment rating tables and that he also a continuing inability to work. 

5. The Secretary has applied for a review of this decision, and contends that Mr Brewer’s conditions do not meet the required 20 point rating, that his impairment is not a serious impairment, and that he does not have a continuing inability to work.

   CONSIDERATION

6. Section 94 of the Social Security Act 1991 (the Act) sets out the requirements to qualify for disability support pension. At the time Mr Brewer applied for a disability support pension, the requirements included at s 94(1) that:

   (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;

   (ii)    …

7. This leads to the issues of whether Mr Brewer has a physical, intellectual or psychiatric impairment, whether he has an impairment rating of 20 points or more and whether he has a continuing inability to work. 

8. The time in which Mr Brewer must become qualified for the DSP starts on the date he first contacted Centrelink about his payment,[1] and ends 13 weeks after this date.[2]   Mr Brewer first contacted Centrelink on 7 May 2015, and the 13 week period ends on 7 August 2015.  This is the assessment period for the purpose of assessing his claim for DSP.

   [1] If a claim is made within 14 days of the first contact, the claim is deemed to have been made on the date of the first contact (subsection 12(1) of the Administration Act).

   [2] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act, Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

   Does Mr Brewer have a physical, intellectual or psychiatric impairment?

9. Dr Simon Hardy, Mr Brewer’s general practitioner, provided a medical report in which he says Mr Brewer suffers cervical spine disc degeneration / spondylosis. The Secretary does not dispute that he suffers from a physical impairment and that he satisfies s 94(1)(a) of the Act.

   At the relevant time, did Mr Brewer have an impairment rating of 20 or more points under the Impairment Tables?

10. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

11. The Impairment Tables set out rules about when an impairment rating can be assigned as well as a rating system for the impairment.  To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years (sub-clause 6(3)).

12. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, fully stabilised and more likely than not to persist for two years (clause 6(4)).

13. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised.  A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years (paragraph 6(6)(a)). 

14. Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity (paragraph 6(7)(c)), and that has a high success rate (paragraph 6(7)(e)). 

    Which of Mr Brewer’s conditions are fully diagnosed, fully treated and fully stabilised and likely to persist for two years?

15. In his application for disability pension, Mr Brewer lists his conditions as cervical spine disc degeneration, osteoarthritis of the cervical spine, and back and neck pain.

16. Dr Hardy is Mr Brewer’s general practitioner.  He reports Mr Brewer’s diagnosis as cervical spine disc degeneration/spondylosis.  This is supported by the medical report of Mr Brewer’s pain specialist, Dr Kapur, and the assessment conducted of Mr Brewer by Dr Tschirn at the request of the Secretary.

17. The Secretary does not dispute that the condition of cervical spine disc degeneration/spondylosis of Mr Brewer’s cervical spine is diagnosed, fully treated and stabilised and more likely than not to persist for two years.  The Secretary also accepts that there a cognitive impairment resulting from pain medication that is also diagnosed, fully treated and stabilised and likely to persist for two years. 

    Do these conditions rate 20 points or more on the Impairment Tables?

18. Mr Brewer contends that his conditions result in an impairment of his stamina and exertion, an upper limb impairment, impairment of his cervical spine and a cognitive impairment. 

    Physical exertion and stamina

19. At the conclusion of the hearing, it was submitted that Mr Brewer suffers migraine or “flare ups” in his condition that should be given a separate impairment rating under the table that relates to exertion and stamina (Table 1).

20. The introduction to Table 1 states it is to be used where the person has a permanent condition resulting in functional impairment when performing physical activities involving exertion or stamina.  The self-report of symptoms alone is not sufficient.  Examples of conditions given in the introduction to Table 1 include where a medical specialist confirms the diagnosis of a condition commonly associated with extreme fatigue or exhaustion, or other conditions affecting physical exertion or stamina, including chronic pain.

21. Mr Brewer consults a pain specialist, Dr Kapur, as a result of the pain from his cervical spine condition.  It was submitted that “flare ups” in Mr Brewer’s condition result in him being incapacitated for periods of time.  Dr Kapur’s report of 12 June 2015 refers to

    … quite severe pain flare-ups every three weeks or so and these are apparently quite incapacitating for periods of up to three days or so. … 

22. It was submitted Mr Brewer also suffers from migraine.  While Mr Brewer produced hospital records showing attendance at hospital for back pain and one of these records refers to headache, there is otherwise no other medical evidence showing that a condition of migraine has been diagnosed, or if so that it has been fully treated and stabilised. 

23. I am not satisfied that a reference by Dr Kapur to Mr Brewer reporting “flare-ups” in his condition that incapacitate him for several days at a time results in an impairment of his ability to perform activities requiring physical exertion or stamina.  The symptoms listed for five impairment points list as examples shortness of breath, fatigue and cardiac pain.  While a chronic pain condition may result in extreme fatigue or exhaustion, I am not satisfied Dr Kapur’s reference to “flare-ups” establishes this is the case for Mr Brewer. 

24. As a result, no impairment points can be assigned for functions requiring physical exertion or stamina. 

    Upper limb Impairment

25. The term “impairment” is defined in clause 3 of the Impairment Tables as a loss of functional capacity affecting a person’s work that results from the person’s condition.

26. Table 2 addresses upper limb function, and is to be used where the person has a permanent condition resulting in a functional impairment when performing activities involving the use of hands or arms.  The diagnosis of the condition must be made by an appropriately qualified medical practitioner and the self-report of symptoms alone is insufficient.  There must be corroborating evidence of the person’s impairment. 

27. In regard to an impairment of his upper limbs, Mr Brewer relies on left arm weakness and paraesthesia in both hands.  His general practitioner referred him to a neurosurgeon on 22 June 2012 following presentation with a painful neck and associated weakness in his left arm.  Mr Matthew McDonald, a neurosurgeon, reported on 13 September 2012 that Mr Brewer reports pain continuously in his neck and down his left arm, with some slight paraesthesia in the mornings in his hands. 

28. Mr McDonald states he could not detect any abnormalities on examination and expresses a view that Mr Brewer has some degenerative changes in the cervical spine and perhaps some left sided nerve compression “although his CT scan did not look too bad”.  Dr Tschirn, an occupational physician who assessed Mr Brewer at the request of the Secretary, reports that the imaging demonstrates no specific nerve compression.    

29. Dr Kapur’s report of 6 June 2014 mentions cervical spine pain which tends to be left sided with some radiation into the right shoulder, and at an earlier stage some left upper arm paraesthesia.  This is specified as a condition separate from his cervical spine condition, although it was noted that Mr Brewer may be developing early carpel tunnel syndrome. 

30. Dr Hardy, Mr Brewer’s general practitioner, was asked for further information on Mr Brewer’s upper limb condition.  In a letter dated 4 July 2016, Dr Hardy states Mr Brewer described his hand becoming numb intermittently in May 2015, and this was thought to be primarily related to his neck condition which has been treated and rehabilitated to completion.  Dr Hardy reports this condition has not been separately documented, diagnosed and investigated.  Dr Hardy states he is unable to provide an assessment according to Table 3 as reports of symptoms alone are not permissible, and he does not have the capability to go through the assessment required.  Dr Hardy reports it is unlikely any medical treatment will affect his symptoms.  He states further the neurophysiology testing could be performed with nerve conduction tests to assess nerve function in his neck and hands. 

31. In Dr Tschirn’s assessment he records symptoms that were elicited from an upper limb condition, and reports an injury to Mr Brewer’s left hand many years before.  The left hand injury was not mentioned in the reports of the other medical practitioner.  Dr Tschirn states the condition affecting Mr Brewer’s upper limbs that involve tingling in the hands associated with pain have not yet been investigated and he suggested to Mr Brewer to consult his chosen doctor about this matter.

32. I am not satisfied on the medical evidence that a functional impairment of Mr Brewer’s upper limbs due to his cervical spine condition has been established.  It may be that he has another condition causing some impairment of his upper limb function, however that condition has not been diagnosed or fully treated and stabilised.  As a result, no impairment points can be assigned for his upper limb function.

    Spinal Function

33. Spinal function is addressed in Table 4.  In issue is whether the functional impact of Mr Brewer’s condition results in an impairment rating of 10 points or 20 points. 

34. An impairment rating of 10 points is assigned where there is a moderate functional impact on activities involving spinal function.  Moderate functional impact occurs when:

    (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).

35. An impairment rating of 20 points is assigned where there is a severe functional impact on activities involving spinal function.  A severe functional impact occurs when:

    (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.

36. Mr Brewer submits he is frequently disabled by pain and on a bad day he would be unable to drive a car for 30 minutes and would be unable to perform overhead activities.  At other times he has difficulty moving his head, and if he drives for half an hour is unable to do anything the next day.  He submits he can perform overhead activities but experiences pain. 

37. Dr Hardy reports on 8 May 2015 Mr Brewer’s conditions has an impact on his spinal function in relation to his movement in walking, bending, prolonged sitting or standing.  Dr Kapur reports on 6 June 2014 that cervical spine movements show some modest restriction of extension.

38. The job capacity assessment of 24 June 2015 records Mr Brewer as stating, in relation to his spinal function, that he can walk 100 plus meters and around the shops without assistance, can squat and kneel with support and can get in and out of vehicles with support.  He reporting being able to bend from knee height but has increased neck and back pain from doing dishes.  He reported he can twist through his trunk and rotate his head in all directions but will get increased pain and cannot hold a rotated position for a prolonged period.  He can raise both arms to chest level and can extend them above his head for a limited time and not repetitively.  He reported getting tired and experiencing pain holding his arms up.  He reported being able to drive 30 minutes and stand for 20 minutes. 

39. On 4 July 2016 Dr Hardy reports Mr Brewer has a loss of function in his neck but does not specify the loss of function. 

40. Dr Tschirn assessed Mr Brewer on 2 May 2016, and provided a supplementary report on 15 June 2016.  Dr Tschirn reports Mr Brewer could touch his chin almost to his chest and could look up and correctly identify the number of florescent lights.  He could rotate his chin almost to each shoulder, but lateral flexion was more limited and due to pain neither movement was associated with rotation of the trunk.  He could bend forward to ankle height.  His extension was 25 percent of the expected normal range and left and right flexion was 50 percent of normal range. 

41. In the supplementary report Dr Tschirn reports his examination did not suggest Mr Brewer was unable to perform any overhead activity due to his cervical spine and that he has the physical capacity to do this, but the extent to which he can perform overhead activities is limited by pain.  Dr Tschirn stated the limiting condition is pain, and the tolerance of pain determines the functional incapacity.  Dr Tschirn goes on to report he was not satisfied Mr Brewer would be unable to sustain or habitually perform the activity. 

42. Dr Tschirn gave oral evidence and clarified that he considers an ability to do a task to comprise the mechanical issues of performing the task together with the pain, and said his instruction to a patient is to go as far as the person feels comfortable.  Dr Tschirn said he considered overhead activities to include looking upward, but he also considered, based on his examination, that Mr Brewer could lift his arms higher than his head. 

43. Mr Brewer provided a letter from his chiropractor, however this does not provide specific comment on his ability to perform overhead activities or turn his head or neck without moving his trunk. 

44. Mr Brewer gave evidence that it is hard work to move his shoulders above his head.  He does not have overhead cupboards in his house.  He hangs his clothes at chest height as this is easier for him to manage.  He says when he shops he will ask staff to obtain items on higher shelves for him.  He is able to wash his hair.

45. Mr Brewer said that at his assessment with Dr Tschirn he was asked to lift his arms above his head.  He said he would not be able to hold his arms above his head, and that lifting his arms above his shoulders is hard work.  He has to turn his body to look over his shoulder, but also said he can safely drive his car.  He can dress by lifting his shirt above his head, but avoids clothes with buttons. 

46. The available medical and chiropractor reports state Mr Brewer is able to perform overhead activities and can turn his head or bend his neck without moving his trunk.  This is consistent with his self-report to the job capacity assessor in the assessment of 24 June 2015, which was at the time the functional impact of his conditions must be considered. 

47. As there are no medical or other health professional reports corroborating that Mr Brewer is unable to perform overhead activities or is unable to turn his head or bend his neck without moving his trunk, I am not satisfied he meets the requirements for 20 impairment points on Table 4.  Mr Brewer has not asserted he otherwise meets the requirements for 20 points on this table, in that he is able to bend forward and pick up a light object from a desk or table and can remain seated for 10 minutes.

48. The requirement for 10 points is that Mr Brewer is able to sit in or drive a car for at least 30 minutes and is unable to sustain overhead activities and has difficulty in moving their head to look in all directions.  Mr Brewer’s reported inability to sustain overhead activities and difficulty in moving his head in all directions is support by the report of Dr Tschirn, and Mr Brewer’s self-report to the job capacity assessor, and results in 10 impairment points under Table 4. 

    Brain function

49. Brain function is addressed in Table 7, and issued where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function. 

1. Mr Brewer submits, and the Secretary concurs, that the effect of his pain medication results in him having an impairment rating of 5 points under Table 7.

2. The requirement for 5 points on Table 7 is that there is a mild functional impact on the person.  The person is able to complete most day to day activities without assistance and had mild difficulty in the specified areas.  These include attention and concentration, where an example is given that a person has some difficulty concentrating on complex tasks for more than one hour.  Another area is comprehension, where the person has some difficulty in understanding complex instruction involving multiple steps.

3. Dr Kapur provided a response about the impact of Mr Brewer’s pain and the pain medication on 11 September 2015.  His response supports Mr Brewer’s report of some difficulty with concentration and comprehension.

4. The resulting impairment provides an impairment rating of five points.

   Conclusion

5. Mr Brewer’s conditions that are fully diagnosed, fully treated and fully stabilised result in an impairment rating of 15 points on the Impairment Tables.

6. As this is less than 20 points, Mr Brewer does not meet subsection 94(1)(b) of the Act. 

   DECISION

7. The decision under review is set aside and substituted with a decision that Mr Brewer is not qualified for a disability support pension. 

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Member K Millar

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Administrative Assistant

Dated: 13 April 2017

Date(s) of hearing:	23 February 2017
Advocate for the Applicant:	Ms L Wells
Solicitors for the Applicant:	Sparke Helmore Lawyers
Advocate for the Respondent:	Ms M Riley
Solicitors for the Respondent:	Welfare Rights Centre (SA) Inc