Crofts and Secretary, Department of Social Services
[2014] AATA 311
•17 March 2014
[2014] AATA 311
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3479
Re
Helena Crofts
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date of decision
Date of reasons
17 March 2014
16 May 2014
Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – neck and back pain – bilateral carpal tunnel syndrome – type II diabetes – hypertension – whether applicant’s conditions fully diagnosed, treated and stabilised – program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Mrs Helena Crofts suffers from neck and lower back pain, carpal tunnel syndrome, diabetes, hypertension and hypercholesterolaemia. She seeks review of a decision to refuse her application for disability support pension (DSP).
A person must satisfy the criteria for DSP at the date of applying, or within 13 weeks of that date: s 42 and Sch 2 of the Social Security (Administration) Act 1999. Mrs Crofts applied for the DSP on 22 January 2013, meaning the relevant period in her case is from 22 January 2013 to 23 April 2013.
These written reasons reflect reasons given orally at a hearing on 17 March 2014. Mrs Crofts attended the hearing with her daughter.
To qualify for DSP during the relevant period, Mrs Crofts had to satisfy the following criteria in s 94 of the Social Security Act1991 (the Act):
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
The first question, therefore, is whether Mrs Crofts’ conditions rated 20 or more points on the Impairment Tables during the relevant period. If not, then her application cannot succeed.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than two years.
A condition is considered permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:
(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 two 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 two 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 reasonable treatment.
Reasonable treatment means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
EVIDENCE ABOUT MRS CROFTSS MEDICAL CONDITIONS
The medical evidence concerning Mrs Crofts’ medical conditions comprises:
(i)Centrelink medical report dated 25 March 2012 by Dr Waisani Mar;
(ii)Centrelink medical report dated 19 September 2012 by Dr Waisani Mar;
(iii)Centrelink medical report dated 17 January 2013 by Dr Waisani Mar;
(iv)Report of thoracic spine x-ray and lumbar spine x-ray dated 19 September 2012 by Dr Rodney Bennett;
(v)Medical certificate dated 27 September 2012 by Dr Tin Nguyen;
(vi)Auburn Hospital discharge summary dated 28 September 2012 by Theepan Kathirgamanathan, ED Resident Medical Officer;
(vii)Report of CT scan cervical spine dated 7 January 2013 by Dr John O’Rourke;
(viii)Report of CT scan lumbosacral spine dated 15 January 2013 by Dr John O’Rourke;
(ix)Dr Dowla, consultant in neurology and clinical neurophysiology, report dated 4 February 2013;
(x)Centrelink medical certificate dated 6 August 2013 by Dr Hien Do;
(xi)Centrelink medical certificate dated 17 October 2013 by Dr Hien Do;
(xii)Centrelink medical report dated 14 November 2013 by Dr Hien Do.
Centrelink has provided reports of Job Capacity Assessments on 9 December 2013, 5 February 2013 and 17 November 2006.
Some of the medical reports and Job Capacity Assessments pre-date Mrs Crofts’ application for DSP but they provide some relevant background information about her conditions.
I will deal with Mrs Crofts’ medical conditions in turn.
Neck and Lower back pain
Dr Waisani Mar
Dr Waisani Mar, general practitioner, completed three Centrelink medical reports dated 25 March 2012, 19 September 2013 and 17 January 2013 in support of Mrs Crofts’ claim for DSP. In his report dated 25 March 2012, he noted “multilevel spondylosis of the disc and facet joints of the lumbar spine with central canal stenosis”. He reported Mrs Crofts’ symptoms as constant low back pain; she has difficulty standing up from a chair and lifting heavy weights. He noted her current treatment for this condition was Panadol Osteo. In the same report, Dr Mar diagnosed cervical spondylosis. He noted Mrs Crofts’ symptoms for this condition were “recurrent neck pain from neck to mid back and also down back” and that her treatment was Paracetamol or Panadol Osteo. For both conditions Dr Mar proposed Mrs Crofts be referred to a neurosurgical clinic.
In his report dated 19 September 2012, Dr Mar noted Mrs Crofts’ “thoracic pain to the right cause to be determined” which inhibited her ability to flex and extend her spine. He listed her treatment as analgesics, anti-inflammatory medication and a TENS machine.noting that she was not prepared to take stronger analgesics. Dr Mar wrote Mrs Crofts’ future treatment comprised referrals to a specialist and further imaging.
Dr Mar examined Mrs Crofts again on 17 January 2013. In his report of the same date, he diagnosed “multilevel osteoarthritis cervical spine with (L) foraminal narrowing at C5/C6 level” and “multilevel spondylitic changes lumbar spine, severe degree of central canal stenosis”. He noted similar symptoms and treatment for both conditions as in his March 2012 report. He wrote that an MRI would be required to confirm the diagnosis for her lumbar spine condition and that she may require a steroid injection for her cervical spine condition. He reported that Mrs Crofts would require a referral to a neurosurgeon but noted that the Neurosurgical Clinic at Westmead Hospital, which bulk bills, was not accepting any new patients. Dr Mar recorded that Mrs Crofts had not seen a specialist for her conditions at that time.
Dr Mar’s reports dated 25 March 2012 and 17 January 2013 refer to x-rays and CT scans to support his diagnoses. These reports are summarised below.
Investigative reports
Mrs Crofts was examined by Dr Rodney Bennett on 19 September 2012 and x-rays were taken of her thoracic and lumbar spine. Dr Bennett reported “prominent bony spurring… at multiple segments” of the thoracic spine and “[o]steophytic lipping… of several of the lumbar vertebrae” with some “narrowing of the disc space height between L5 and S1”.
On 7 January 2013, Mrs Crofts was examined by Dr John O’Rourke and a CT scan of her cervical spine was taken. Dr O’Rourke reported a “moderate degree of left foraminal narrowing at the C5/6 level with potential irritation of the existing left C6 nerve root”. He noted that his findings could be further assessed by MRI nerve conduction studies.
On 15 January 2013, Mrs Crofts had a CT scan of her lumbosacral spine. Dr O’Rourke wrote in his report of the same date “multilevel spondylitic changes involving the discogenic and facet joints”, which is causing a suspected “severe degree of central canal stenosis at L4/5” and “[m]ultilevel foraminal narrowing… as well as narrowing of the lateral recess at L5/S1” and “potential irritation of traversing S1 nerve roots”.
Dr Hien Do
Dr Hien Do has been Mrs Crofts’ general practitioner since 1995. He provided a Centrelink Medical Report dated 14 November 2013 which diagnoses “lumbosacral spinal spondyosis with spinal canal stenosis” and “cervical spinal spondylosis with nerve root impingement due to foraminal narrowing”. Dr Do refers to the reports of Dr O’Rourke to confirm the diagnoses. In his report, Dr Do notes Mrs Crofts takes pain killers and uses a TENS machine for her conditions and that physiotherapy, rehabilitation and a pain specialist were being considered. For both her lumbar and cervical spine conditions, he noted a probable need for spinal surgery or an assessment by a spinal surgeon. He wrote that Mrs Crofts had been advised of the need for a specialist consultation.
Mrs Crofts gave evidence at the hearing that she commenced hydrotherapy for her back condition in January 2013 on the advice of Dr Mar and that she continued the therapy for six months. She said she also tried to do some walking to manage the condition. She said she did not have an MRI scan because she could not afford it. She gave evidence that she saw Dr King, neurosurgeon, at Auburn Hospital about her back and he told her she would have to have surgery. Mrs Crofts said she would not undergo surgery because, if she had it, it was quite possible that she would not be able to walk and she would rather wait until the condition caused her not to be able to walk. She told the Tribunal that her grandmother had the same condition and that she had surgery and died (20 years ago); she was not going to go through any more surgery, she had had enough.
Mrs Crofts gave evidence that she discussed the risks of surgery with Dr King at Auburn Hospital and also her GP who advised that things have changed now but, she said, “it hasn’t in my head”. She said Dr King told her surgery was “very risky” but there is no report from Dr King to verify this.
Almost all medical reports pertaining to Mrs Crofts’ lower back and neck pain recommend further investigation and treatment or specialist intervention. Mrs Crofts’ concerns about the risk of surgery, while understandable, are not supported by medical opinion. The lower back and neck conditions cannot be considered fully treated and stabilised in the relevant period and therefore cannot be given an impairment rating.
Bilateral Carpal Tunnel Syndrome
In his report dated 23 March 2012, Dr Mar recorded Mrs Crofts’ bilateral carpal tunnel syndrome as a condition which was “generally well managed” and caused “minimal or limited impact” on her ability to function. He further noted that she was waiting for an appointment to attend a neurosurgical clinic and may need surgery.
Mrs Crofts was referred to Dr M Dowla, consultant in neurology and clinical neurophysiology, in February 2013. She had been suffering from intermittent paraesthesia and numbness in both hands. In his report dated 4 February 2013 Dr Dowla diagnosed bilateral carpal tunnel syndrome and noted the “changes are severe, slightly worse on the left”. He recommended “combined or sequential carpal tunnel decompression”.
Dr Do provided medical certificates to Centrelink dated 6 August 2013 and 17 October 2013 noting Mrs Crofts’ bilateral carpal tunnel syndrome as the primary condition impacting on her ability to work. He also noted Mrs Crofts’ current and planned treatment for this condition was surgical therapy.
At the hearing, Mrs Crofts gave evidence that she had surgery on one of her hands in August 2013 and the other in October 2013. She said the surgery helped but her hands are going back to “clicking in again and doubling over”. She said she would have to have further treatment to her hands.
Mrs Crofts had not had surgery for her bilateral carpal tunnel syndrome at the time she applied for the DSP. The condition was therefore not fully treated and stabilised during the relevant period and cannot be given an impairment rating.
Hypertension, diabetes, hypercholesterolaemia
Mrs Crofts takes diaformin for her diabetes and Lipitor to lower her cholesterol. There is limited information about these conditions before me but even allowing they were fully diagnosed, treated and stabilised during the relevant period, there is nothing to suggest that either affects Mrs Crofts’ ability to function.
Conclusion
As Mrs Crofts’ conditions were either not fully treated and stabilised during the relevant period, or had minimal, if any, effect on her ability to function during that period, they did not rate 20 or more points on the Impairment Tables. Her claim for DSP on 22 January 2013 cannot succeed because she did not qualify at that time.
Because Mrs Crofts’ impairments cannot be given an impairment rating, it is not necessary for me to consider whether she also had a continuing inability to work.
To qualify for DSP Mrs Crofts would need to undergo any reasonable treatment options recommended by the specialists or provide medical support for any claim that the risks of treatment are too high to reasonably expect a person to undergo it. If she decides to receive specialist treatment and her symptoms persist, then her conditions may be considered fully treated and stabilised and at that time she may wish to test her eligibility for DSP again.
I affirm the decision under review.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Toohey. .................................................
Associate
Dated 16 May 2014
Date(s) of hearing 17 March 2014 Applicant In person Solicitor for the Respondent Ms Freda Taah, Department of Social Services
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