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

[2016] AATA 1070

Carroll; Secretary, Department of Social Services and (Social services second review) [2016] AATA 1070 (22 December 2016)

Division	GENERAL DIVISION
File Number	2015/5626
Re	Secretary, Department of Social Services
APPLICANT
And	Janice Carroll
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	22 December 2016
Place	Melbourne

The Tribunal sets aside the decision and substitutes its decision that as Ms Carroll did not satisfy the requirements of s 94(1)(b) of the Social Security Act 1991 in the relevant period she did not qualify for Disability Support Pension.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension – claim for lumbar spinal injury sustained in a motor vehicle accident – spinal function incapacity table rating of 10 points – condition of depression not fully diagnosed, treated and stabilised – s 94(1)(b) of the Act not satisfied – decision set aside

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

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

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Miss E A Shanahan, Member

22 December 2016

1. Ms Carroll lodged a claim for the disability support pension (DSP) on 13 January 2015.  The claim was based on chronic lumbar spinal pain due to back joint changes and lumbar disc degeneration, consequent upon a motor vehicle accident of 2 April 2012.  The claim was rejected by the Secretary, Department of Social Services (the Secretary) as a Job Capacity Assessment on 24 April 2015 (T19) did not recommend an impairment rating of 20 points.

2. Following Ms Carroll’s request for review an authorised review officer (ARO) confirmed the decision on 27 May 2015 (T22). On 21 July 2015 Ms Carroll applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal), (first review) for review of the decision.

3. On 22 September 2015 the Tribunal in its first review set aside the reviewable decision and determined that Ms Carroll satisfied the provisions of s 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) and had done so since the date of claim.  Thus Ms Carroll was eligible for the DSP as of 13 January 2015. 

4. The Secretary then applied for review of that decision on 28 October 2015 to the General Division of the Tribunal (second review). At the hearing on the second review, the Secretary was represented by Ms Belinda Lewis a solicitor of the Department of Human Services, Litigation Branch and Ms Carroll was represented by Mr De Vietri of Victoria Legal Aid (VLA). The applicant, that is the Secretary, provided the documents required in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), including supplementary T-documents.

   BACKGROUND TO THE APPLICATION

5. It was agreed at the beginning of the hearing that Ms Carroll’s claimed depression secondary to her back injury was not fully diagnosed, treated and stabilised.  It will therefore not be considered in this decision. 

6. Ms Carroll is a 38 year old single female who is a qualified chef. At the time of her involvement in a motor vehicle accident on 2 April 2012, she was working for a catering firm. This involved working long hours but she was otherwise well and active and despite being overweight had no relevant medical conditions. 

7. On 2 April 2012, she was driving her Toyota Rav 4, SUV on her way to work and decelerated as she entered a reduced speed zone, the speed being reduced from 100 kilometres per hour to 70 kilometres per hour.  She was rear ended by a vehicle that displaced her to the right.  Her car was then T-boned by a truck approaching from the left.  Her Toyota Rav 4, was approximately 10 years old and the side airbags if present did not deploy.  Apparently, in all, four cars were involved in this collision.  As a result of the collision Ms Carroll suffered chest pain, shoulder and neck soreness and some tenderness and pain in her left hip and calf.  She was able to exit the vehicle unassisted. 

8. Ms Carroll was taken by ambulance to the Mornington Peninsula Hospital, was admitted and spent three days in hospital.  Investigations revealed a non-displaced fracture of her sternum.  While her shoulder, neck and chest pain gradually resolved as did the bruising sustained on her left hip and calf, she noted persistent lumbar back pain impacting both on her ability to work and her lifestyle in general.  Initially she was unable to drive and her sister came to care for her.

9. Ms Carroll has received ongoing appropriate and intensive investigation and treatment provided by the Transport Accident Commission (TAC).  An MRI of her lumbar spine resulted in a diagnosis of L4/5 facet joint arthropathy. This has been treated with cortisone and Marcaine injections and subsequent radio-frequency denervation which was very effective for a period of six weeks.  She has had physiotherapy and more recently hydrotherapy. The latter renders her totally asymptomatic for the duration of the hydrotherapy. 

10. There is a vast volume of medical reports relating to her rehabilitation and progress and treatment of her lumbar spine pain. The existence of these symptoms is not in dispute, the only issue is the impairment rating attracted by these symptoms and whether or not they meet the eligibility requirement of s 94(1)(b) of the Act in terms of an impairment rating of 20 points.

11. The medical reports include the general practitioner’s complete clinical note file, the opinions of pain physicians, particularly Dr McCallum, the neurologist Dr Tan, and a neurosurgeon, Mr D’Urso. More recent reports from the occupational physicians Dr Slesenger and Dr K Sleigh provide conflicting assessments as to the time that Ms Carroll can sit, stand and drive, her ability to perform tasks above shoulder height and other activities as described in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), under Table 4 which relates to spinal movement. 

12. On two occasions the Tribunal ascertained that Ms Carroll’s symptoms were currently the same as they had been in 2013, when a great many of the original reports were generated.  She twice affirmed that this was the case. 

13. Ms Carroll has attended several pain management clinics with limited positive response in terms of her symptomatology.  Between June 2013 and July 2014 she undertook a TAFE course in floristry with the support of the TAC in an effort to rehabilitate her to a less physically demanding occupation.  She had hoped to put this training into effect and establish a business but both the course and her subsequent attempts to establish a business were unsuccessful as she was still required to lift relatively heavy weights and stand for lengthy periods at a bench.

14. Ms Carroll now receives a Newstart allowance and the TAC continues to pay for her medical attendances and her medications.

15. While not relevant to the period under review Ms Carroll has recently undergone further investigation and has had a standing MRI of her lumbar spine performed in Sydney, at TAC’s expense.  She has been found to have spondylolisthesis at the L4/5 level.  This means that her L4 vertebra has moved anteriorly in relation to the L5 vertebra producing spinal canal and foraminal stenosis.  Clearly this is a quite different diagnosis to that made in 2012-13.  According to Ms Carroll she is awaiting spinal decompression and vertebral fusion which is to be performed by Professor Peter Teddy a neurosurgeon based at the Royal Melbourne Hospital.  Apparently the TAC has reactivated consideration of her initial claim based on the results of this recent investigation.

    EVIDENCE BEFORE THE TRIBUNAL

16. Ms Carroll appeared in person and gave evidence, most of which has been considered in [5]-[15] above.  However, as she stated that her current symptoms have been the same since early 2013, the Tribunal and Ms Lewis questioned her with respect to her current symptomatology.  Ms Carroll readily admitted that her symptoms varied from day to day, that she could be reasonably active at times and that her sitting, standing and walking times did vary as was demonstrated by the varying medical reports over the three to four year period. 

17. Ms Carroll’s answers also seemed to depend on the manner in which the question was framed by the various medical examiners.  For example, during the relevant period under review she said she could not perform overhead activities but she can now do so although if she lifts her hands above her head she occasionally gets a burning sensation in her back.  Also when she lifts her hands she can experience pain shooting down both legs, more on the left side than the right.  On direct questioning by Ms Lewis and also in response to questioning by Mr De Vietri, Ms Carroll said she could now bend forward to pick up a light object on the table having been instructed by physiotherapists how to perform this activity.

18. In relation to her sitting tolerance it became clear that she experiences back pain depending on the chair she is sitting on.  Hard chairs result in instant pain but at home she sits or lies down on a soft couch and can remain in this position indefinitely. 

19. On the day of the hearing Ms Carroll had used public transport to get to the Tribunal.  She caught a bus in Carrum, the stop being outside her house, and while she experienced pain, burning and a grinding sensation in the bones of her back during a ten minute bus ride to the station she was able to tolerate these symptoms.  On alighting from the bus she walked to the station across a ramp to the platform she needed and boarded the train.  Although the train was crowded she was able to sit and stand as needed once she explained her situation to fellow passengers.  She alighted at Flinders Street railway station and walked across the bridge over the Yarra River to the Tribunal.  All of these activities had resulted in an increase in her pain level and she had taken Panadol Osteo on arrival at the Tribunal. 

20. Throughout the hearing she stood with her torso flexed at 30 to 45 degrees to the vertical, this flexion being at hip level.  Ms Carroll said that five minutes seated in a car would result in pain, causing her to stop and stretch and then proceed.  She agreed that in 2012/2013 she could drive for much longer periods of time.  She also agreed she was coping much better with the pain as a result of counselling by a psychologist.  This counselling was part of her pain management treatment.  Ms Carroll agreed that Mr D’Urso’s report (T27) stating that she could sit for an hour or more was correct but only if she could sit on a couch as opposed to a rigid chair.  She agreed that Dr Sleigh’s report that she could sit for 15 to 20 minutes and walk for 300 meters was correct.  On her calculations, on a good day, her pain level was 4 out of 10 on the digital analogue scale.

21. Although Dr Rawicki, (ST 1, page 357) the treating pain specialist, had reported that she had an excellent result to the lumbar neurotomy and prior to that the facet joint injections, Ms Carroll disagreed.

22. Currently Ms Carroll is taking Lyrica 75 milligrams twice daily, Targin twice daily, Panadol Osteo twice daily and will take up to 20 Endone 5 milligrams tablets per fortnight.

23. Under direct questioning by Ms Lewis, Ms Carroll agreed that she could wash her hair if she was able to bend forward, could turn her neck although not in a full range and could undertake overhead duties but could not sustain the effort indefinitely, could bend to pick up an object using techniques she had been taught and could remain seated for at least 10 minutes.  She also said that hydrotherapy at 36 degrees centigrade removed her pain completely.  She can drive for 20 to 30 minutes without rest.  Ms Lewis quoted Dr Sleigh’s report and his impairment rating of 10 points, listing all of his findings with which Ms Carroll agreed.

    DOCUMENTARY EVIDENCE

24. A great deal of medical opinion from suitable experts has been provided with considerable variation in terms of Ms Carroll’s incapacity assessment, apparently depending on her symptomatology on the day. 

25. She has undergone numerous MRIs of the lumbar spine which have shown minimal disc desiccation and no nerve root compression. In the first of these dated 4 March 2013 and on repeat in 2014/2015 mild to moderate L4/5 facet arthropathy was reported and most of her treatment has been directed to these joints.  The Tribunal has not been provided with the report of the standing MRI performed in June 2016 in Sydney but this has been referred to in the documentation and the Tribunal has no reason to doubt the recent diagnosis of L4/5 spondylolisthesis of significant degree.

    DECISION OF TRIBUNAL ON FIRST REVIEW

26. Based on the evidence given by Ms Carroll on the day of the hearing, the Member assigned an impairment point rating of 20 points based on her inability as described on that date to perform overhead activities, turn or bend her neck, bend forward to pick up a light object or remain seated for at least 10 minutes.

    RELEVANT LEGISLATION

27. The eligibility for the DSP is provided by s 94(1)(a), (b) and (c) of the Act which state:

    94  Qualification for disability support pension

    (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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and   ...

    Section  94(2) provides:

    Continuing inability to work

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)     in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)     in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    Clauses 3 and 4 of Part 2 of Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) state:

    Part 2—General rules 

    3Start day—general rule

    (1)If:

    (a)a person makes a claim for a social security payment; and

    (b)the person is qualified for the payment on the day on which the claim is made;

    the person’s start day in relation to the payment is the day on which the claim is made.

    4Start day—early claim

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day the person is qualified for the social security payment.

    SUBMISSIONS

28. Ms Lewis provided a detailed Statement of Issues, Facts and Contentions outlining the entire history of this matter.  In light of Ms Carroll’s evidence before the Tribunal, Ms Lewis limited her submissions to the interpretation of Table 4 of the Impairment Tables relating to Spinal Function.  Ms Lewis contended that in Table 4 there was a clear distinction between unable to perform certain activities to attract 20 points and the requirements for 10 points relating to the sustaining of in particular overhead activities.  She submitted that if you are able to perform such activities as those described as overhead you attract a ten point impairment rating even if you cannot sustain the effort required to continue overhead activities. 

29. Ms Lewis addressed the descriptors concerning the assessment of whether there is a moderate functional impact on activities involving spinal function which would attract an impairment rating of 10 points. To be in this category a person is able to sit in or drive a car for at least 30 minutes and at least one of four descriptors in Item (1) (a) to (d) is to apply. .  Item 1(a) refers to a person being unable to sustain overhead activities.  It was submitted that it was unclear on the evidence why Ms Carroll whose pathology was sited in the lumbar spine had any difficulties with overhead activities.  However, it had been her evidence that she could do these activities when needed, even though she could not exhibit sustained effort during a single episode.  Item 1(b) did not apply according to Ms Lewis, as Ms Carroll could turn her head from side to side, although such movement created pain.  Ms Carroll could pick up a light object placed at knee height, having been taught by a physiotherapist how to perform such activities in a manner that would minimise any pain, whereas Item 1(c) refers to a person who is unable to do such an activity.  Item 1(d) refers to a person needing assistance to get up out of a wheelchair.  It was quite clear from the evidence that Ms Carroll did not require assistance to get up out of a chair and certainly was not using a wheelchair nor a walking stick on a regular basis.

30. While Ms Carroll’s evidence as to her sitting tolerance had varied greatly, Ms Lewis submitted that the Tables did not restrict the individual to a type of chair and while sitting in a rigid high back chair caused Ms Carroll pain or the need to change position within 10 minutes, her evidence was that she could frequently do this for 20 minutes and certainly in what she called her comfy couch she could sit indefinitely. 

31. On this basis Ms Lewis contended that the decision under review should be reversed. 

    Mr De Vietri for the Respondent

32. Mr De Vietri agreed that the only contention to be determined was the rating under Table 4 relating to Spinal Function.  He contended that Ms Lewis was wrong in her interpretation of how the activity was being performed in terms of the sustainability of the activity as opposed to whether one could or could not perform the activity.  He quoted the Impairment Tables which he interpreted as advising that the overhead activities had to be on a repetitive or habitual basis.  As examples of this he argued that hair washing or placing cups in an elevated cupboard was not a repetitive action.  In addition, given the technique or more correctly the standing position adopted by Ms Carroll when she washes her hair, Mr De Vietri argued that this was not an overhead activity. 

33. In relation to Ms Carroll’s ability to sit for a period longer than 10 minutes it was submitted that Ms Carroll could only sit for a prolonged time when she could move from side to side as she does when seated on her couch.

1. Mr De Vietri relied on the report of Dr McCallum who on 20 August 2016 had assigned an impairment rating of 20 points, he having treated Ms Carroll before, during and after the relevant period. The relevant period being the day of claim on 13 January 2015 and the 13 week period thereafter which finished on 14 April 2015.  Mr De Vietri also relied on the report of Dr Tan, dated 22 June 2015, the reports of Dr McCallum and Dr Tan having been those relied on in the decision of 22 September 2015 in the Tribunal’s first review.  (The Tribunal notes that Dr Tan had seen Ms Carroll in relation to her cervical spine symptomatology which is of recent onset and had raised the possibility of sacroiliac joint pathology and had opined that Ms Carroll’s bilateral thigh pain was due to meralgia paraesthetica which is unrelated to any spinal lesion).

2. Mr De Vietri submitted that the assessment by the JCA carried no weight in comparison to that of Dr McCallum whose opinion should be preferred to that of Dr Sleigh who had only seen Ms Carroll on one occasion.

3. Ms Lewis in response conceded that Ms Carroll cannot currently work 15 hours per week nor could she do so in 2015.

   Tribunal’s Deliberations

4. It appears clear to the Tribunal that all the medical opinion generated from 4 March 2013, that being the date when the first MRI (magnetic resonance imaging) of Ms Carroll’s spine was performed and revealed no abnormality other than L4/5 facet joint arthropathy, has been dictated by that radiological diagnosis as has been her active treatment.  Her physiotherapy, hydrotherapy, radio frequency neurotomy and pain management have all been directed at treatment of this arthropathy.

5. As a result of recent investigations the primary diagnosis in Ms Carroll’s case is said to be L4/5 spondylolisthesis which is known to produce secondary trauma and pathological change in the L4/5 facet joints.  As a result of the standing MRI performed in Sydney in June of this year a totally different treatment approach is now underway.  Despite this change in diagnosis the Tribunal must decide whether or not Ms Carroll met the eligibility requirements for the DSP in the relevant period in accordance with the requirements of the Administrative Act and  previous determinations based on the decision in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

6. Several medical experts raised concerns relating to Ms Carroll’s symptoms being attributed primarily to L4/5 facet joint arthropathy.  Dr Tan the neurologist raised the possibility of sacroiliac joint pathology and the development of meralgia paraesthetica which to the Tribunal’s knowledge relates to entrapment of the lateral cutaneous nerve of the thigh in the groin region.  Mr D’Urso, neurosurgeon, recommended spinal fusion the surgical procedure that Ms Carroll will have in the future but he does not say on what basis such treatment is indicated. 

7. Based purely on the evidence given by Ms Carroll at the time of hearing and that she twice affirmed that her symptoms had remained stable between 2013 and the present, the Tribunal determines that the appropriate impairment rating at the period under review was 10 points in accordance with the requirements of Table 4 – Spinal Function of the Impairment Tables.  Ms Carroll actually agreed with Ms Lewis’s analysis and point estimate, the only debate being whether she could sustain overhead activities as opposed to perform overhead activities.  Item (1) (b), (c) and (d) of the 10 point allotment where not a relevant consideration.

8. Mr De Vietri had submitted that the test was not unable to perform any overhead activity but according to the Impairment Tables it was the ability to do such activity on a repetitive or habitual basis.  He also argued that Ms Carrolls’ washing of her hair, which she does bending forward, is not an overhead activity.  However, the rules for applying the Impairment Tables at Clause 11(3) relating to descriptors involving performing activities state that:

   the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely. 

   The example given relates to the unscrewing of a lid of a soft drink bottle and states that:

   The relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

   In the Tribunal’s opinion this does not imply performing a task repetitively and in a long sustained manner.

9. Mr De Vietri had relied upon the report of pain physician Dr McCallum of 20 August 2016 which apart from being outside the period of review was addressing the more recent findings of the standing MRI and the planned surgical intervention and are unrelated to Ms Carroll’s diagnostic status at the time of lodging her claim in January 2015.

10. While it is agreed by both parties that Ms Carroll cannot at the present time nor could she in January 2015, work for 15 hours per week, she did not meet the requirements of s 94(1)(b) at the relevant period. The Job Capacity Assessor and the occupational health physician Dr Sleigh both gave a 10 point impairment rating and Dr Slesenger did not consider Ms Carroll’s lumbar spinal condition to be fully diagnosed, treated and stabilised and therefore did not assign an impairment rating.

11. The Tribunal sets aside the decision under review and substitutes its decision that Ms Carroll did not meet the requirements of s 94(1)(b) during the relevant period.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated …22 December 2016

Date of hearing	13 October 2016
Advocate for the Applicant	Mr R De Vietri
Advocate for the Respondent	Ms B Lewis