Chapman and Secretary, Department of Social Services (Social services second review)
[2015] AATA 639
•27 August 2015
Chapman and Secretary, Department of Social Services (Social services second review) [2015] AATA 639 (27 August 2015)
Division
General Division
File Number
2014/2735
Re
Ross Chapman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 27 August 2015 Place Sydney The Tribunal affirms the decision under review.
........................[sgd]................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment rated 20 points or more under the Impairment Tables – decision affirmed
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
David J Magee, Orthopaedic Physical Assessment (Saunders, 4th ed, 2002)
REASONS FOR DECISION
Dr Ion Alexander, Member
27 August 2015
BACKGROUND
Mr Chapman is 48 years of age. At the age of 18 years he was involved in a motor bike accident (“MBA”) where he injured his neck and required an operation involving the C5/6 cervical spine.
In October 2011 he was involved in a motor vehicle accident (“MVA”) which caused some injury to his cervical and thoracic spine. Following this injury he continued to suffer neck and back pain and required regular chiropractic treatment and oral analgesia.
On the 16 April 2013 Mr Chapman lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.
Mr Chapman’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.
In these proceedings, Mr Chapman seeks review of the decision of the SSAT dated 15 May 2014.
At the hearing Mr Chapman was represented by a solicitor and gave oral evidence to the Tribunal.
ISSUES
In order to qualify for DSP, Mr Chapman must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 16 April 2013 and 16 July 2013 (“the claim period”).
Section 94(1) of the Act provides that a person is qualified for DSP 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;…
The Respondent concedes, and the Tribunal accepts, that Mr Chapman suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act.
The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and
·fully treated (paragraph 6(4)(b)), and
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
In a Centrelink Medical Report dated 8 April 2013 Dr Tadros, GP, lists “soft tissue sprain cervical spine, chronic pain, degeneration of the thoracic spin, C5/C6/C7/T12 /L1 disc bulge” as a condition with most impact.
Mr Chapman also suffers “haemochromatosis” which he agrees had no functional impact during the claim period.
It is agreed that during the claim period Mr Chapman suffered a “spine condition” that was permanent for the purposes of the Impairment Determination.
The Respondent submits that during the claim period Mr Chapman’s “spine condition” had a moderate impact on activities involving spinal function and that a rating of 10 points under Impairment Table 4 can be applied so that he did not have a rating of 20 points or more and did not satisfy s 94(1)(b) of the Act.
The Respondent also submits that if the Tribunal were to find that during the claim period Mr Chapman did have a rating of 20 points or more under the Impairment Tables, then he did not satisfy s 94(1)(c)(i) in that he did not have a “continuing inability to work”.
Mr Chapman submits that during the claim period his “spine condition” had a severe functional impact on activities of spinal function and warrants a rating of 20 points under Impairment Table 4. Mr Chapman also submits that during the claim period he did have a “continuing inability to work”.
It follows that the issues for the Tribunal to determine are whether during the claim period Mr Chapman’s “spine condition” warranted a rating of 20 points or more under Impairment Table 4 and, if so, whether he had a continuing inability to work.
MR CHAPMAN’S EVIDENCE
Mr Chapman told the Tribunal that since the MVA in 2011 he has suffered persistent pain involving his neck, back and upper limbs, and that that this pain has had a severe impact on his previously active life. He has had frequent chiropractic treatment and takes regular pain medication which he adjusts for situations where he anticipates increased pain.
Mr Chapman’s description of the pain in terms of location, severity and frequency was somewhat difficult to follow and did not provide the Tribunal with a clear understanding of the nature and extent of his impairment. He described frequent sleep disturbance, a self-planned exercise program, relief of pain with movement and indicated that he has learnt to move in ways that minimise the pain.
With respect to his neck, Mr Chapman indicated he had difficulty with pain and stiffness and that a nerve block performed in 2014 had stabilised his condition and reduced his pain.
Mr Chapman told the Tribunal that during the claim period he lived in a house with his parents, who looked after all the domestic chores. Every second week he was, and continues to be, responsible for the care of his 10-year-old son, who was also injured in the MVA. He would often drive his son to school which took about 30 minutes for the round trip.
Mr Chapman said he was able to cook because the kitchen was set up to accommodate his needs; able to go shopping; able to attend to all his personal needs such as dressing, showering, and washing his hair; able to get out of a chair unassisted but wore only slip on shoes. He also agreed that he was able to put on T-shirts and jumpers without assistance.
The Tribunal was provided with a summary of studies form Alphacrusis College confirming that since 2011 Mr Chapman has been undertaking online subjects towards a Bachelor of Theology. He told the Tribunal that when he started he was very enthusiastic and did up to 30 hours course work per week, but that after the MVA he reduced his course work to about one subject per semester, with between 5 to 10 hours work per week. He explained that he sits in bed and does his course by using a TV screen.
DOCUMENTARY EVIDENCE
In January 2013, Mr Chapman was examined by Dr Giblin, orthopaedic surgeon, for the purposes of a MVA claim which has still not been settled.
In his report dated 23 January 2013, Dr Giblin notes that following the MVA, Mr Chapman had about “60 sessions of chiropractic treatment and he still takes Panamax tablets especially at night to help himself sleep”. He currently sees his chiropractor every couple of weeks and sees his GP once a month.
Dr Giblin notes Mr Chapman’s “disabilities and complaints” as follows:
He has an ache and sharp stabbing pains on the left side of his lower thoracic spine as well as his neck. The symptoms radiate toward the front of the chest, the top of his left shoulder and the medial border of his scapular. Since the accident he has been unable to play golf and cannot go to the gym any longer. At home he stopped cutting the grass or doing any gardening activity. He finds that he can only lift 5 kilos and has difficulty reaching up into high shelves or cupboards or extending his neck. He cannot sit for long periods and keep his neck in a fixed position. Every night, the pain disturbs his sleep down to a few hours. …….He can still drive a motor vehicle, but has noticed increased difficulty accessing his blind spot.
Dr Giblin measured active, pain free range of movement of the cervical spine using a Goniomet
reer and confirmed his measurements by repetition. He notes the following:…active range of motion of the thoracic spine in terms of coronal and sagittal movement reproduced symptoms of a soft tissue nature just to the left of the medial border of the lower thoracic spine. He could actively rotate his chin to 60 degrees to the right, 70 degrees towards the left, 3 finger breadths off his chest and extension of his neck was two thirds normal.
In his medical report dated 8 April 2013, Dr Tadros notes clinical features as “restricted painful neck movement, pain interscapular” and impact on ability to function as “unable to sit or stand for long periods restricted neck movement”.
In the report of a Job Capacity Assessment (“JCA”) performed on the 16 May 2013 the assessor, a registered nurse, notes the following:
The client reported neck pain and stiffness, restricted range of movement, limited standing tolerance of 5-10 minutes, walking tolerance of 10-20 minutes. Sitting was observed to be for the duration of the assessment -45 minutes. Client reported bending to be problematic, and also experiences fluctuating back pain. The client maintains independence in self-care activities. He noted a fluctuating lifting /carrying tolerance stating that he is able to carry 2 litres of milk. The report of Dr Giblin notes the client being able to hold or carry up to 5 kg. The client reported that he avoids overhead lifting and finds that turning head is difficult which may impede his line of vision when driving.
The assessor recommended a rating of 10 points under Impairment Table 4.
In a letter dated 19 August 2014, and filed on 2 September 2014, Dr Tadros asserts that Mr Chapman is
“…unfit to perform any overhead activities, he is unable to rotate or bend his neck without rotating his trunk … He is unable to use his upper limbs in a heavy and repetitive pushing, pulling or lifting manner. He also needs to alter his posture frequently due to pain and muscle spam every 5-10 minutes. This impairment is severe, commencing during period 12th March, 2013 for 13 weeks and still continuing.
The letter was refiled on 14 October 2014 with the following sentences added to the last paragraph: “He is unfit for work or study 15 hours per week. His condition will persist symptoms over next two years” [sic].
In a report dated 3 December 2014 Dr Khan, general surgeon, notes the present situation as follows :
Neck- He has constant pain in the neck and is unable to move neck properly and has to move his trunk to turn his neck to the right and left due to pain. Movements of both arms at the shoulders are restricted due to neck pain and he has difficulty in reaching objects overhead due to symptoms of pain…
Back- He has constant pain and recurrent muscle spasms in the lower back and in the thoracic spine at the T11-T12 level…
He is unable to sit for more than 10 minutes and has to change his posture ..
On examination of the cervical spine Dr Khan notes the following :
Flexion was possible up to two-thirds of normal range and extension possible up two thirds of normal range. Lateral flexion was possible up to one third of normal range on the left side and two thirds of normal range on the right side Lateral rotation was similarly restricted to one-third of normal range on the left side and half the normal range on the right side.”
Dr Khan concludes that Mr Chapman warrants 20 points under Impairment Table 4 because he “is unable to turn his head or bend his neck without moving his trunk. He has difficulty in remaining seated for at least 10 minutes. He also has difficulty in performing overhead activities”.
CONSIDERATION
Impairment Table 4 states the following:
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 overhead 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)…...
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
I am satisfied that there is sufficient evidence before the Tribunal to conclude that, during the claim period, Mr Chapman’s “spine condition” had, at least, a moderate impact on his activities involving spinal function.
Mr Chapman submits that during the claim period there was a severe impact on activities involving spinal function and relies on the letter of 19 August 2014 provided by Dr Tadros and the report of 3 December 2014 provided by Dr Kahn.
I have placed little weight on the opinion of Dr Tadros as expressed in his letter of 19 August 2014. This letter has been written in hindsight more than 12 months after the claim period and the assertions with respect to Mr Chapman’s impairment appear to be simply a paraphrase of the descriptors in Table 4 with no supporting explanation. Furthermore, Dr Tadros’ assertions are somewhat inconsistent with his own report of 8 April 2013, as well as other contemporaneous documentary evidence.
In my view, the descriptors for severe functional impact in Table 4 imply that there must a severe restriction in the range of movement of the different parts of the spine and that descriptors (a) and (b) are particularly relevant for conditions involving the cervical spine.
Descriptor (a) requires that a “person is unable to perform any overhead activities”.
In his oral evidence Mr Chapman indicated that he had difficulty with overhead activities but was unable to provide the Tribunal with a clear understanding as to the extent of the difficulty, particularly with reference to the claim period.
Dr Giblin noted that Mr Chapman reported having “difficulties reaching up into high shelves or cupboards”. The JCA report noted that Mr Chapman reported that “he avoids overhead lifting”.
Dr Kahn notes that Mr Chapman “has difficulty in performing overhead activities” but provides no description of the nature or extent of the difficulty and does not provide any assistance in respect of Mr Chapman’s “difficulty” during the claim period.
I find that that there is insufficient evidence to satisfy the Tribunal that during the claim period Mr Chapman was unable to perform any overhead activities because of his spine condition.
Descriptor (b) requires that a “person is unable to turn their head, or bend their neck, without moving their trunk”. In my view this descriptor implies that there is minimal or no ability for movement of the cervical spine without corresponding movement of thoracic and /or lumbar spine.
Dr Giblin in his report 23 January 2013 (about three months prior to the date of claim) notes on examination of the cervical spine that Mr Chapman could “actively rotate his chin to 60 degrees to the right, 70 degrees towards the left, 3 finger breadths off his chest and extension of his neck was two thirds normal”.
I note that in the text book Orthopaedic Physical Assessment (Saunders, 4th ed, 2002) at page 135 in respect of the cervical spine it states that “normally, rotation is 70 degrees to 90 degrees right and left, and the chin does not quite reach the plane of the shoulder”.
If I accept the maximum normal rotation as 90 degrees, Mr Chapman could actively rotate his cervical spine 66% of normal to the right and 78 % of normal to the left.
In his report of 3 December 2014 (more the 12 months after the end of the claim period) Dr Khan noted on examination of the cervical spine that “Flexion was possible up to two- thirds of normal range and extension possible up two thirds of normal range……Lateral rotation was similarly restricted to one-third of the normal range on the left side and half the normal range on the right side”.
The reports of Dr Giblin and Dr Kahn clearly indicate that Mr Chapman, although restricted compared to normal, is able to actively move his neck in all directions without moving his thoracic spine. The significant difference between the findings of the two examinations with respect to lateral rotation is unexplained and may reflect examiner error or deterioration in Mr Chapman’s condition over time.
For present purposes, I prefer the findings of Dr Giblin on the basis that the examination was relatively contemporaneous with the claim period.
In my view, the examination findings of Dr Giblin are not consistent with Mr Chapman’s submission that during the claim period he was unable to turn his head, or bend his neck, without moving his trunk.
With respect to descriptor (c) there is no evidence before the Tribunal that during the claim period Mr Chapman was unable to bend forward to pick up a light object from a desk or table.
In respect of descriptor (d) I am not persuaded that either during the claim period or currently Mr Chapman is unable to remain seated for at least 10 minutes. In his oral evidence he indicated that he frequently drives his son to school which takes at least 10 minutes each way.
CONCLUSION
For the reasons set out above, I am satisfied that during the claim period Mr Chapman did not satisfy any of the descriptors in Impairment Table 4 which would allow the Tribunal to conclude that his “spine condition” had a severe functional impact on activities involving spinal function.
It follows that during the claim period Mr Chapman did not have a rating of 20 points or more under the Impairment Tables and did not satisfy section 94(1)(b) of the Act so that he did not qualify for DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ...........................[sgd].............................................
Associate
Dated 27 August 2015
Date of hearing 16 July 2015 Solicitors for the Applicant Mr I Turton, of Illawara Legal Centre Solicitors for the Respondent Mr M Lynch,of Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – pensions
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Disability Support Pension
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Impairment Rating
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Functional Impact
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Evidence Evaluation
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