Clements and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 561
•9 August 2013
[2013] AATA 561
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1468
Re
LEON CLEMENTS
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 9 August 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period – Impairment Tables – Fully diagnosed, treated and stabilised – Total impairment rating less than 20 points – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94Social Security (Administration) Act 1999 (Cth) s 4, Schedule 2, clause 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
INTRODUCTION
The applicant, Mr Leon Clements, was previously paid disability support pension (“DSP”). However, Centrelink cancelled that payment and imposed a compensation preclusion period because Mr Clements received a compensation payment after he was involved in a motor vehicle accident. On 27 April 2012, Centrelink decided to end Mr Clements’ preclusion period. On 27 April 2012, Mr Clements enquired, by telephone, about his eligibility for DSP. On 2 May 2012, he lodged an application for DSP. The respondent rejected the claim.
On 4 February 2013, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 20 March 2013.
The application for review of the decision by the Administrative Appeals Tribunal was lodged on 4 April 2013.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for disability support pension. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:
·must have a physical, intellectual or psychiatric impairment;
·his impairment must be of 20 points or more under the Impairment Tables;[1] and
·he must have a continuing inability to work.
[1] See Social Security Act 1991 (Cth), s 23, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
Under sch 2, cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date. If a person advises Centrelink of their intention to make a claim and subsequently lodges a claim within 14 days, as Mr Clements did, they are deemed to have made the claim at the first date of contact.[2] For the applicant’s claim for DSP, that period is from 27 April 2012 to 27 July 2012 (“the relevant period”).
[2] See Social Security (Administration) Act 1999 (Cth), s 13.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), which was made by the Minister pursuant to s 26(1) of the Act on 6 December 2011, it is necessary to determine whether Mr Clements’ condition or conditions can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.
Mr Warren, for the respondent, contends most of Mr Clements’ conditions cannot be considered permanent conditions because they have not been fully treated during the 13 week relevant period.
A condition is permanent if it has been fully diagnosed, treated, and stabilised and is likely to persist for more than two years.[3]
[3] See cl 6(4) of the Determination.
In deciding whether a condition has been fully diagnosed and fully treated, the following is to be considered:[4]
(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.
[4] See cl 6(5) of the Determination.
A condition is fully stabilised if:[5]
(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 treatment.
[5] See cl 6(6) of the Determination.
The issues that I must determine are:
·what, if any, physical, intellectual or psychiatric impairments Mr Clements has;
·whether all or any of those conditions are permanent, and if so what ratings they should be allocated; and
· if he has 20 impairment points or more, whether he has a continuing inability to work.
CONSIDERATION
What, if any physical, intellectual, or psychiatric impairments does Mr Clements have?
The secretary accepts that Mr Clements has impairments best described in the following terms:
(1)osteoarthritis of the spine/neck;
(2)a right shoulder condition;
(3)obesity; and
(4)sleep apnoea.
In the medical report that accompanied Mr Clements’ claim,[6] the only part of Mr Clements’ spine that was identified as having a medical problem was his neck. A report by Dr Naomi Farragher, dated 3 May 2013, and a report of a CT scan on Mr Clements lower back on 26 April 2013, indicates that Mr Clements has lumbar spondylosis and facet joint osteoarthritis of the lower back, with some nerve impingement at L4.[7] I find Mr Clements has, in addition the above four listed impairments, and a fifth impairment best described as ‘lumbar spondylosis and facet joint osteoarthritis with some nerve impingement’.
[6] Exhibit 1, T-document 11, pp. 76-83.
[7] Exhibit 1, T-documents 20A and 20B, pp. 111A-B and 111C-D.
Are any or all of these conditions permanent, and if so what impairment rating can they be given?
lumbar spondylosis and facet joint osteoarthritis with some nerve impingement
Mr Clements told me he has pain present in his back and neck every day. The pain is so bad that many days he takes 10 Panadeine Forte tablets. On a good day he may get away with only taking two of these tablets. He has had a back problem since 1994 when he sustained a workplace injury. In the first 12 months he was treated with physiotherapy and pain medication and was told that the ongoing pain was due to degenerative disease which is not treatable by surgery. Mr Clements’ cannot sit, stand or even sleep in the one position for long periods because of this back pain. Dr Naomi Farragher provided a report, dated 3 May 2013, in which she referred to the changes demonstrated in a CT scan performed on 26 April 2013. Dr Farragher stated that Mr Clements would be receiving a CT guided steroid injection[8] to treat the impingement of the L4 nerve roots. Dr Farragher stated that Mr Clements’ back condition is likely to be chronic and worsen over time.
[8] Exhibit 1, T-document 20B, p. 111C.
It is clear from the report of Dr Farragher that Mr Clements has a problem in his back that will likely remain for the rest of his life. Unfortunately, that is not enough to regard a condition as “permanent” under the legislative scheme that determines eligibility for DSP.
As stated above, a condition can only be regarded as permanent if it has been fully diagnosed, treated, and stabilised and is likely to persist for more than two years.[9] Further, all those things that make a condition permanent must have happened prior to the end of the 13 week period that follows a claim for DSP.
[9] See cl 6(4) of the Determination.
In the medical reports that accompanied Mr Clements’ claim for DSP, completed by Dr Chatroodi, Mr Clements’ general practitioner since March 2000, no mention of a back condition was made.[10] Although, thanks to the CT scan ordered by Dr Farragher, a diagnosis for Mr Clements back condition has now been provided, unfortunately it appears to be the first time this diagnosis was made. There is no indication of when the clinical onset of Mr Clements lumbar spondylosis, facet joint arthropathy and L4 nerve impingement was. The nature of Mr Clements condition is degenerative and of slow gradual onset. In all likelihood, had a CT scan been performed prior to or during the 13 week reference period, similar pathology would have been identified. The problem with respect to Mr Clements’ DSP application is that April this year is the first time for some years that any investigations have been performed on his back. Mr Clements’ conditions of lumbar spondylosis, facet joint arthropathy and L4 nerve compression were not diagnosed until April 2013, well after the 13 week period in which he needed to qualify for DSP. According to Mr Clements, the CT guided steroid injection in his spine did not help his pain and his doctor told him to continue taking his pain medication. For a condition to be regarded as fully treated there must be medical evidence that sometime no later than the 13 weeks of a claim being made, all reasonable treatment has been attempted and the condition is not going to improve within than the next two years. Because the diagnosis had not been made, and the treatment for nerve compression of CT guided steroid spinal injection not attempted within the 13 week required time frame, this condition cannot be regarded as permanent pursuant to the legislation. It therefore can not be given an impairment rating.
obesity
[10] See Exhibit 1, T-document 11, pp. 76-83 and T-document 15, pp. 93-100. The first report was dated 2 May 2012 and the second was undated but not received until 7 September 2012.
Dr Chatroodi provided a diagnosis of obesity in his report signed in May 2012.[11] Dr Chatroodi lists the current treatment as “none”, and opines that the effect of the condition on Mr Clements’ ability to function will remain unchanged within the next two years. Unfortunately, Mr Clements told me that he is unable to pay for a dietician and has attempted altering his diet; however he has only been able to lose 2kg, which he sometimes puts back on again. It may be an option for Mr Clements’ to be referred to a dietician in the public hospital system. Treatment is something that he needs to discuss with his doctor and trial for some time before it can be said that his condition cannot be improved. Without evidence that Mr Clements has attempted reasonable treatment options, such as a diet and exercise program, or medication to assist him losing weight, it cannot be said that his condition of obesity has been fully treated, and the condition therefore cannot be given an impairment rating.
Sleep Apnoea
[11] Exhibit 1, T-document 11, pp. 76-83.
In relation to sleep apnoea, Dr Chatroodi indicated this condition has only minimal impact on Mr Clements’ capacity to function. Mr Clements told me that he has not been referred for a sleep study, which is the medically accepted appropriate test to confirm the diagnosis of sleep apnoea. If the diagnosis was confirmed, then Mr Clements would need to attempt some therapy, such as a CPAP machine,[12] and have a second sleep study to see if there is an improvement in his condition when he has been appropriately treated. Until these diagnostic and treatment options are completed, Mr Clements sleep apnoea is not a condition that can be rated under the impairment tables.
Neck osteoarthritis
[12] Continuous Positive Airway Pressure machine.
Mr Clements has neck osteoarthritis. That diagnosis, provided by Dr Chatroodi, was confirmed by radiological investigation performed on 3 February 2009.[13] Dr Chatroodi indicated that Mr Clements was very compliant with his treatment of physiotherapy and paracetamol and that this condition was likely to continue to impact on Mr Clements’ ability to function for more than 24 months and to deteriorate within the next two years.
[13] Exhibit 1, T-document 7, pp. 44-45.
The condition has not been accepted as permanent by either the ARO or the SSAT. Both relied on the assessment of Ms Glover, an ‘accredited exercise physiologist’, who decided that:[14]
the client has accessed limited conservative treatments in order to assist with improving symptomology and function of the cervical spine and hence … the condition has not been considered fully treated and stable.
[14] Exhibit 1, T-document 13, pp. 85-90.
It is not clear to me what conservative treatments Ms Glover considered Mr Clements should try. She does not give any details of what she means by that and I have no idea what other conservative treatment she regarded as appropriate. According to the evidence of Mr Clements and the report of Dr Chatroodi, Mr Clements has trialled physiotherapy and currently continues to be treated with oral pain medication. Mr Clements told me that he was sent to physiotherapy when the condition was first diagnosed in 2009. He finished that course of physiotherapy with little benefit. As Mr Clements had undergone physiotherapy for this condition prior to and during the 13 weeks after the date of his claim, and Dr Chatroodi did not identify any other required conservative treatment, I have no idea what Ms Glover was expecting Mr Clements to do before his condition could be regarded as permanent. I prefer the opinion of Mr Clements treating medical practitioner, Dr Chatroodi to that of Ms Glover when deciding if Mr Clements neck osteoarthritis has been treated with sufficient conservative treatments. As neither Ms Glover nor Dr Chatroodi have identified any further treatment Mr Clements should be using to treat this condition, I think it would be extremely unfair and inappropriate to regard this condition as not having been fully treated within the required time frame.
I find that Mr Clements’ neck osteoarthritis is a permanent condition that can be rated under the impairment tables.
An impairment rating for Mr Clements’ neck osteoarthritis is to be assessed under Table 4 – Spinal function. 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).
Dr Chatroodi reported this condition causes Mr Clements neck pain and that it affects his endurance. In her report dated 17 March 2010,[15] occupational therapist Ms Michelle Dent noted that although Mr Clements continues to drive, “he experiences increased pain with turning his head to check for blind spots and manipulating the steering wheel for extended periods of time”. He avoided driving long distances “in an attempt to avoid aggravation of his neck and right shoulder symptoms”. Ms Dent examined Mr Clements and found that his cervical spine movements were restricted in all directions by approximately 40 percent.
[15] Exhibit 4, esp. p. 6.
Although Mr Clements reports that he has problems with, or is unable to perform many of the activities listed in the table, the reason for his incapacity is contributed either partly or in full from other conditions, such as his obesity and his back pain. For example, Mr Clements told me he would have trouble bending down and picking up a light object because his back pain and his weight affect his balance. Although a person can be allocated 10 impairment points from Table 4 if they are “unable to bend forward and pick up a light object”, the cause of the inability must be due to the accepted condition or conditions.
Throughout the hearing Mr Clements demonstrated an ability to turn his head and bend his neck without moving his trunk. I asked Mr Clements to pick up a jug of water and he demonstrated an ability to pick up the full jug and poor a glass of water. Although Mr Clements looked uncomfortable at times during the hearing, and spent a considerable amount of time standing, he did remain seated for at least 10 minutes. Mr Clements told me that his right shoulder impacts on his capacity to perform overhead activities such as hanging the washing; however, he did not say his neck contributed to this difficulty. For these reasons I am confident that Mr Clements’ impairment is not severe enough to be rated 20 points. The medical evidence and that of Mr Clements is that he is able to drive a car for at least 30 minutes and he has difficulty moving his head to look in all directions. The appropriate rating from Table 4 is 10 impairment points.
Right Shoulder Pain
The Secretary accepts that Mr Clements’ right shoulder pain is a permanent condition, and, after reviewing the medical evidence, I agree. Table 2 – Upper Limb Function is used to assess upper limb impairment. It reads:
Table 2 – Upper Limb Function
Introduction to Table 2
· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
· 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 confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
· For the purposes of this Table upper limbs extend from the shoulder to the fingers.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
Self-reporting of symptoms alone is not sufficient evidence to allocate a rating from a Table; it is necessary to have corroborating evidence of a person’s impairment from a medical or paramedical practitioner. Dr Chatroodi reported that Mr Clements has previously undergone surgery and is currently treated with paracetamol.[16] Mr Clements told me that he is now taking Panadeine Forte for the pain in his right shoulder. Mr Clements has limited movement of his right shoulder joint. He demonstrated his limitations to the Tribunal at the hearing and those restrictions in movement appeared to be the same as reported by Ms Dent.[17] In that report, Ms Dent stated that he is currently independent with all personal and instrumental activities of daily living. However, she noted that Mr Clements stated:
he experienced increased neck and right shoulder pain with:
a. reaching over head to brush his hair.
b. using the right upper limb repetitively to whipper snip and mow the lawn.
c. using upper limb force to cut hard vegetables, for example pumpkin.
[16] Exhibit 1, T-document 15, pp. 93-100.
[17] Ms Dent observed Mr Clements to have right shoulder flexion, abduction and external rotation restricted by approximately 30% and extension within normal range – See Exhibit 4, p. 6.
The SSAT found that Mr Clements impairment from right shoulder pain attracted 10 impairment points from Table 2. Ms Glover, the JCA did not allocate a rating for this condition. A rating of 10 impairment points was allocated by the ARO, who made reference to self reporting of Mr Clements. A rating of 10 impairment points is not consistent with the information contained in the report of Ms Dent. According to Ms Dent Mr Clements is able to perform a floor to waist lift of 6 kg, Ms Dent made no assessment in relation to the activities listed (b) to (f) under 10 points. There is no medical evidence to support a finding that that Mr Clements has difficulty with most of the activities listed under 5 or 10 points of Table 2. Mr Clements told me he has difficulty unscrewing bottles, and I accept that this activity could be impaired by shoulder pain. However using a pen or a keyboard does not require much if any movement of the shoulder joint, rather these are activities that predominantly requirement use of the hands. Mr Clements told me he had no particular difficulty with either writing or using a computer, but he would be restricted in performing these activities because of back pain that makes prolonged siting difficult. Mr Clements does have difficulty picking up a light bulky item with two hands and also doing up his shoe laces, predominantly because of his back pain. Neither the testimony of Mr Clements nor the medical evidence available supports a finding that Mr Clements right shoulder pain can be rated at more than 0.
DECISION
Mr Clements has two permanent conditions that can be rated, right shoulder pain, and neck osteoarthritis. He has a total of 10 impairment points, 0 from Table 2 and 10 from Table 4. The decision under review is affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ........................................................................
Associate
Dated 9 August 2013
Date of hearing 2 July 2013 Applicant In person Solicitors for the Respondent Nick Warren, Departmental Advocate
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