Clifford and Secretary, Department of Social Services (Social services second review)
[2016] AATA 432
•27 June 2016
Clifford and Secretary, Department of Social Services (Social services second review) [2016] AATA 432 (27 June 2016)
Division
GENERAL DIVISION
File Number
2015/2906
Re
Alan Clifford
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 27 June 2016 Place Sydney The Tribunal affirms the decision under review.
.......................[sgd].................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether applicant qualified at date of cancellation – whether impairments rated 20 points or more – decision under review affirmed
LEGISLATION
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Fanning and Secretary DSS [2014] AATA 447
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Senior Member J F Toohey
27 June 2016
BACKGROUND
Mr Alan Clifford has been receiving disability support pension (DSP) since July 1996. On 3 March 2015, Centrelink cancelled his pension on the ground that he did not, at that date, qualify for the payment.
On 22 May 2015, the Social Security Appeals Tribunal (SSAT), now the Social Services and Child Support Division of the Administrative Appeals Tribunal, affirmed the decision to cancel Mr Clifford’s DSP. Mr Clifford seeks review of that decision.
MR CLIFFORD’S MEDICAL CONDITIONS
At the date of cancellation of his DSP, Mr Clifford had the following medical conditions:
(i)lumbar spine disc degeneration with nerve root compression;
(ii)osteoarthritis in both hips;
(iii)prostate cancer;
(iv)gastro oesophageal reflux disorder (GORD);
(v)dyslipidaemia;
(vi)pain in both shoulders, right wrist and forearm.
QUALIFICATION FOR DSP
The legislation concerning DSP is found in the Social Security Act1991 (the Act). Section 94 provides that, to qualify for DSP, a person must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which rates at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work, as defined by the Act.
The provisions concerning qualification for DSP have been amended a number of times since 1996 when Mr Clifford qualified for the payment. It is not necessary to detail the amendments here. It is not in dispute, and I am satisfied, that at the date of cancellation, Mr Clifford had a continuing inability to work within the meaning of the Act, as it applied to him. The only issue, therefore, is whether at that date he had an impairment rating of 20 points or more.
The Impairment Tables
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Impairment Tables) comprises of tables by which the effect of impairments on work performance is assessed. According to its severity, an impairment may be given a rating between nil and 30 points according to whether its effect is nil, mild, moderate, severe or extreme.
An impairment can only be given a rating if the condition causing it is permanent and the resulting impairment is more likely than not, in light of available evidence, to persist for more than two years: cl 6(3). A condition is permanent if it is fully diagnosed, treated and stabilised: cl 6(4). Fully stabilised means that a person has had reasonable treatment and any further reasonable treatment is unlikely to result in functional improvement to a level enabling the person to undertake work in the next two years; or, where a person has not undertaken reasonable treatment, significant functional improvement is not expected even with reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment: cl 6(6).
Are the spinal and hip conditions to be rated in the same Impairment Table?
The Secretary contends that Mr Clifford’s hip condition should be considered together with his spinal condition as a single impairment for the purposes of assigning an impairment rating. I do not agree. That contention is not consistent with either the medical evidence or the instructions in the Impairment Tables.
Clause 10 of the Impairment Tables instructs:
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: a stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different tables including: upper and lower limb function (Tables 2 and three); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
The Secretary contends that Mr Clifford’s spinal condition is affecting his lower limb function. The medical basis for this contention is not entirely clear but it appears that the compressed nerve in Mr Clifford’s spine is causing radiating pain. At a Job Capacity Assessment on 17 December 2014, he told the assessor he experiences “chronic low back pain with radiating pain down his left leg and intermittent tingling in the left big toe… he also experiences radiating pain through his right leg which he described as an ‘ice’ like pain on the top of the right thigh”. I have no reason to doubt that claim.
To the extent that Mr Clifford’s spinal condition affects the functioning of his spine as well as his lower limb, it can be assigned ratings under Table 4 (Spinal Function) and Table 3 (Lower Limb Function).
Mr Clifford’s osteoarthritis in both hips is distinct from his spinal condition. However, to the extent that both affect the function of his lower limbs, they can only be assigned a single rating under Table 3.
Spinal condition
The Secretary accepts, and I am satisfied, that Mr Clifford’s spinal condition was fully diagnosed, treated and stabilised at the date of cancellation.
The Secretary accepts that Mr Clifford has a moderate impairment of his spine and agrees with the finding of the SSAT that it rated 10 points at the date of cancellation. Based on Mr Clifford’s evidence and reports from his doctors, I am satisfied that, at the date of cancellation of his DSP, he could sit in or drive a car for at least 30 minutes and had difficulty moving his head to look in all directions. On this basis, I am satisfied that his spinal condition satisfied the criteria for a rating of 10 points (moderate impairment).
The question in these proceedings is whether, as Mr Clifford maintains, his condition was severe at the time of cancellation and should rate 20 points (severe impairment).
Table 4 provides that there is severe functional impact on abilities involving spinal function where a person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend the neck, without meeting the 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.
Mr Clifford acknowledges that he is not unable to perform the functions described in (a), (b) or (d). Whether his impairment was severe at the date of cancellation therefore depends on whether, at that date, he was unable to “bend forward to pick up a light object from a desk or table”.
In a report dated 17 November 2014, Dr Comerie Pagunuran-Perez, who was Mr Clifford’s general practitioner up until about the time of the cancellation of his DSP, described the impact of his spinal condition on his ability to function as follows:
unable to stay in one position for long, intermittent low back pain.
According to the report of the Job Capacity Assessment on 17 December 2014, Mr Clifford told that assessor that he “experiences difficulties with prolonged sitting, difficulties sustaining over head (sic) activities and difficulties bending forward, for example, difficulties washing dishes to sink because of the need to bend slightly forward”.
The report also shows that the assessor “had contact” (which I understand to mean by telephone) with Dr Pagunuran-Perez. According to the assessor’s report, Dr Pagunuran-Perez indicated that Mr Clifford “would be able to bend forward while standing to pick up a light object off a desk”.
According to the written reasons of the SSAT, Mr Clifford participated in a hearing on 18 May 2015. Paragraph [18] shows:
Mr Clifford said that he bends at the hips rather than the waist and takes “a while to get going in the morning”.
At paragraph [19], the SSAT outlined Mr Clifford’s evidence at the hearing including the following:
He can bend without arm support for five to 10 minutes and then will need a break and then can come back to do it again. He could not continually do it. He is able to lean forward from the hips to collect something from a table. He doesn’t like to bend without using his arm as a support.
Giving evidence before the Tribunal, Mr Clifford said he could not recall giving that evidence to the SSAT, and he does not agree the written reasons accurately reflect what he told that tribunal.
On 18 August 2015, Dr Pagunuran-Perez provided a report stating:
As per assessment today, I have noted that Mr Clifford’s Spinal Function is severely impacted such that, he is unable to perform overhead activities; unable to turn his head without moving his trunk, has limited neck flexion. He is also unable to bend forward to pick up relatively light objects from a table and finds it uncomfortable to sit for more than 10 minutes at a time due to his existing degenerative disc problems in his Lumbosacral Spine.
On 26 October 2015, a further Job Capacity Assessment was undertaken. The assessor noted:
Mr Clifford was observed to complete forward flexion on one occasion while standing, to a knee level when stretching his back after sitting. He reported as per previous assessment, that he experiences difficulties bending forward for periods of time. For example that he has difficulties washing dishes at a sink because of the need to slightly bend in a forward position. He stated he stands in a spread leg stance to avoid the slight forward flexion required to reach into the sink and is able to remain at this task for a period of around 5 mins before requiring a change of posture. Mr Clifford was observed to pick up his paperwork from the desk at the completion of the interview from a standing position.
At the hearing in these proceedings, Mr Clifford was adamant that he is unable to bend forward. He disagrees with the report of the assessor and disputes that he was able to bend forward as stated. He disagrees with the statement in Dr Pagunuran-Perez’ first report that he was able to lean forward from the hips and said that was her opinion but she had never tested him. He says that, in order to bend forward he has to pivot at the hips whilst supporting his torso with the use of an arm to lean forward with a straight back.
As Mr Clifford’s claim turns on the rating to be given to his spinal impairment, the Tribunal granted him an adjournment in order to obtain a report from his current general practitioner, Dr Marc Kamel as to the effect of his spinal condition on his ability “to bend forward to pick up a light object from a desk or table”.
On 27 May 2016, Dr Kamel provided a medical certificate certifying that:
Mr Alan Clifford has a medical condition: Degenerative disc disease of the lumbar spine and L5 nerve root compression.
He was seen by Prof Y A E Gabriel on 16 of May 2002 who confirmed the diagnosis.
I start to see Mr Clifford on 23/03/2016 for low back pain and restricted movements and multiple joint pain.
Mr Clifford’s condition affects his abilities to sit and stand for long periods, he needs to change position as required. It also affects his ability to push, pull and carry object due to his restricted back movements.
Mr Clifford also said that he cannot bend to pick up a light object from a desk or table.
I am afraid that I cannot read Dr Kamel’s report as supporting Mr Clifford’s claim that he is unable to bend forward to pick up a light object from a desk or table. It cannot be put higher than a report of what Mr Clifford told him. I am not suggesting that Mr Clifford is not being truthful, but; as the introduction to each Impairment Table instructs, “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”. Examples of corroborating evidence for the purpose of Table 4 are stated to include, but are not limited, to a report from a treating doctor, medical specialists, physiotherapist or other rehabilitation practitioners confirming loss of range of movement in the spine or other effects of spinal disease or injury.
I see no reason to find that the SSAT’s written reasons do not accurately reflect what Mr Clifford told that tribunal. I see no reason to find that the first Job Capacity Assessment report does not accurately reflect what Mr Clifford told the assessor, or that the second report does not accurately reflect the assessor’s observations of Mr Clifford. It is relevant that Dr Kamel was not Mr Clifford’s treating doctor at the time of cancellation which may explain why he expressed his report as he did.
Considering all of the evidence, I am not satisfied that the report of Dr Pagunuran-Perez dated 18 August 2015 accurately reflects the effect of Mr Clifford spinal impairment at the date of cancellation. In my view, it is outweighed by the other evidence which indicates that, although he has difficulty bending forward, Mr Clifford is not unable to perform that activity. In the absence of evidence corroborating Mr Clifford’s claim that he is unable to bend forward to pick up a light object from a desk or table, I am not satisfied that his spinal impairment is severe for the purposes of the impairment tables.
Hip condition
The Secretary contends there is no evidence before the Tribunal on which it could conclude that Mr Clifford osteoarthritis in his hips was fully diagnosed, treated and stabilised at the date of cancellation.
The SSAT’s decision shows that the SSAT spoke by telephone to Dr Kamel at the hearing. The decision shows at [16]:
The recent bone scan and a number of earlier scans taken over the years due to Mr Clifford’s previous history of prostate cancer have indicated that he has osteoarthritis of the hips. The reports do not suggest that the osteoarthritis of the hips is significant. Dr Kamel told the tribunal that he did not consider that referral to a specialist was necessary. The tribunal finds that at the date of cancellation Mr Clifford had been diagnosed with osteoarthritis of the hips and no further treatment was considered necessary.
The Secretary contends that the Tribunal cannot rely on Dr Kamel’s opinion because it was given after the date of the cancellation. In support of this contention, the Secretary refers to the decision in Fanning and Secretary DSS [2014] AATA 447 (Fanning) in which Deputy President Handley stated at [33]:
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” … While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
In my view, the contention that the Tribunal cannot rely on an opinion given after the date of cancellation is based on a misreading of Fanning which drew a distinction between evidence arising after a relevant date which has no bearing on the decision to be made by the Tribunal and evidence which is capable of throwing light on condition at the relevant date. It is not the date of the report that is relevant (although it may be) but the date and effect of treatment referred to in the report.
Mr Clifford says he has had no treatment for the osteoarthritis which was first seen on scans in about 2010, taken for the purposes of his prostate cancer. He takes painkillers and anti-inflammatory medication.
It is not entirely clear, from the information before me, whether Mr Clifford’s osteoarthritis of the hips was fully diagnosed, treated and stabilised at the date of cancellation. Based on the information Dr Kamel provided to the SSAT, it appears probable that this condition was fully diagnosed at the date of cancellation and it appears it was fully treated and stabilised. For the purposes of this decision, I will deal with it on that basis.
In order to assign a rating to Mr Clifford’s lower limb impairment, I have to consider the effect of the radiating pain from his spine as well as the effect of the osteoarthritis in his hips.
Table 3 provides there is a mild functional impact on activities using lower limbs (and, therefore, a rating of five points) if:
(1) At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a)the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
Mr Clifford says, and I accept, that he has some difficulty walking to local facilities; that he has some difficulty walking around a shopping mall or supermarket without a rest, and some difficulty climbing stairs. I also accept that he is unable to stand for more than 10 minutes.
I am satisfied that the osteoarthritis in Mr Clifford’s hips has a mild impact on his ability to function and should be rated five points. I do not accept, as Mr Clifford contends, that it has a moderate functional impact. For that rating, at least one of the following must apply:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)the person is unable to use stairs or steps without assistance; or
(c)the person is unable to stand for more than 5 minutes
Mr Clifford is able to walk outside his home, although for not long distances. Giving evidence, he accepted he could stand for more than five minutes, although he said, not more than ten. He says, and I accept, that he needs to use a handrail in order to use stairs or steps. However, “without assistance” means without the assistance of another person, not assistance by way of handrails or other aids. The Guide to Social Security Law (the Guide) at 3.6.3.05 states:
The term assistance is used in numerous descriptors within various Impairment Tables. In all of these cases assistance means from another person, rather than any aids, equipment or assistive technology the person has and usually uses.
Given that a person's impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology they have and usually use, any further assistance would be from another person.
The Guide represents government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I see no reason not to apply the meaning of “without assistance” in the Guide in Mr Clifford’s case.
Prostate cancer
From around 2007, Mr Clifford started to experience difficulties with voiding and urgency. His symptoms worsened until around 2010 he underwent transurethral resection of the prostate surgery. He was diagnosed with prostate cancer in 2010. His symptoms abated after the procedure but returned some time shortly after the cancellation of his DSP. Although at the hearing, Mr Clifford could not remember exactly when they returned, the SSAT decision shows that he said at that hearing that he had no problems with voiding and urgency. He concedes that this indicated that they returned after the date of cancellation.
The Secretary accepts, and I am satisfied, that Mr Clifford’s prostate cancer was fully diagnosed, treated and stabilised at the date of cancellation of his DSP. However, I find it had a minimal impact at that time and should be given a nil impairment rating.
GORD/dyslipidaemia
It is not in dispute that both these conditions were fully diagnosed, treated and stabilised at the date of cancellation, but Mr Clifford conceded at the hearing that they had minimal or no impact and are generally well managed. I am satisfied that both should be given a nil impairment rating.
Shoulders and right wrist
Mr Clifford says that, in about 2010, the course of being treated for prostate cancer he experienced problems in his shoulders that he thought might be muscular and would go away. He did nothing about it. He first saw Dr Pagunuran-Perez about it in about 2014 and was referred to a physiotherapist, Ms Becker. He gave evidence that he has not done anything else about his shoulders because he has been too busy. When he last saw Dr Kamel, he said his condition should be investigated. Meanwhile he takes painkillers and anti-inflammatories.
Mr Clifford started having problems with his right wrist at around the same time as his shoulders. He says he needs to have it fully diagnosed because scans showed “something”.
When it was put to Mr Clifford that his shoulders and right wrist conditions could not be considered fully diagnosed, treated and stabilised, he agreed. On this basis, I am satisfied that neither can be assigned an impairment rating.
CONCLUSION
For these reasons, I am not satisfied that Mr Clifford’s conditions rated 20 or more impairment points on the Impairment Tables when his DSP was cancelled, and I affirm the decision under review.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey .........................[sgd]...............................................
Associate
Dated 27 June 2016
Date of hearing 2 May 2016 Date final submissions received 16 June 2016 Applicant In person Solicitors for the Respondent Mr G Lozynsky, Department of Human Services
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