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

[2019] AATA 195

Crompton and Secretary, Department of Social Services (Social services second review) [2019] AATA 195 (20 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1635

Re:Leonie Crompton

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Mark Hyman

Date:20 February 2019

Place:Canberra

The decision under review is affirmed.

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Member Mark Hyman

Catchwords

SOCIAL SECURITY – disability support pension – spinal injury – elbow injury – whether conditions fully diagnosed, treated and stabilised – rating of spinal condition for severity – application of Table 4 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 38AA
Social Security Act 1991, ss 26, 27, 94
Social Security (Administration) Act 1999, ss 37, 42, Schedule 2

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

Cases

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

REASONS FOR DECISION

Member Mark Hyman

20 February 2019

1. This decision is about whether the applicant, Mrs Leonie Crompton, qualifies for disability support pension (DSP). Mrs Crompton lodged a claim for DSP on 14 September 2017[1]; on 29 September 2017 the Department of Human Services – Centrelink (the Department) rejected the claim on the basis that Mrs Crompton’s impairments did not meet the relevant criteria under the Social Security Act 1991 (the Act).[2] Mrs Crompton applied for review of the Department’s decision on 5 January 2018[3], and her claim was rejected again twice on review, first by an authorised review officer of the Department[4], and then most recently by the Social Services and Child Support Division of this tribunal.[5] On 26 March 2018 Mrs Crompton applied to this tribunal for further review.[6]

   [1] T16.

   [2] T21.

   [3] T30.

   [4] T24.

   [5] T2.

   [6] T1.

2. The tribunal held a hearing on 13 December 2018. Mrs Crompton appeared in person and gave evidence. Ms Charlie Inglis, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. Mrs Crompton called three witnesses in support of her case: a friend, Ms Margaret Britt; her husband, Mr Ray Crompton; and Ms Hanli Ven Stadden, a worker with a company providing employment services to people with disabilities. These witnesses appeared by telephone.

3. The documentary evidence before the tribunal comprised documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”); a letter from Dr Khushbir Johar, Mrs Compton’s general practitioner, dated 31 May 2018 (Exhibit A1); an ACT Government Health Directorate Referral Information Form completed by Dr Johar, dated 24 July 2018 (Exhibit A2); a report by Dr S W Van der Merwe, radiologist, on x-ray imaging of Mrs Compton’s left elbow and CT imaging of her lumbar spine, dated 15 November 2017 (which is identical with the document at T18); and employment income details for the period 10 August 2016 to 29 November 2017, provided by the Secretary(Exhibit R1).

   LEGISLATION

4. The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:

   94(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;

   …

5. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

6. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and made a mandatory consideration in the decision process under paragraph 94(1)(b) by section 27 of the Act. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. The Impairment Tables are preceded by some preliminary material, including in Part 2 of the Determination a set of Rules for Applying the Impairment Tables (the Rules). Subsection 6(4) of the Rules provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.

7. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

8. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

1. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that to succeed in her claim Mrs Compton must have been qualified in the period from 14 September to 14 December 2017. The qualification period prevents developments in Mrs Crompton’s conditions occurring after 14 December 2017 from being taken into account. This was explained by Member Breen in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   … it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

   ISSUES

2. The issues before the tribunal in this matter are:

   ·whether Mrs Compton has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether she has a continuing inability to work.

   EVIDENCE OF MS CROMPTON AND HER WITNESSES

   Mrs Crompton’s evidence

3. At the hearing Mrs Crompton said that she is in constant pain, has many difficulties with activities of daily living, now uses a walker as well as a stick, but still manages to travel on the bus. Her arthritis started when she injured her back while washing dishes in 2002. On the basis of that injury she was paid workers’ compensation for two years in a settlement. She then took a variety of jobs that were less taxing.

4. Treatment has comprised exercise, especially at home; physiotherapy; acupuncture; and chiropractic treatment, as well as analgesia. Ms Crompton has now reached the point when she cannot lift things that are heavier than about 2 kg; she cannot drive because she cannot change gear; she must use an upright vacuum cleaner and vary her household duties from one day to the next. She can pick up a light object from a coffee table, can usually turn her head from side to side, and must stand for an extended period if she remains seated for an hour.

5. Mrs Crompton said that she began using a walking stick in January 2018 (she had acquired it at Salamanca Markets while on a trip to Hobart). That was also the time she had begun seeing Dr Johar as her general practitioner.

6. Mrs Crompton said that she broke her left elbow about 30 years ago. The head of the radius shattered and was removed. She now cannot straighten her arm, and carrying too much in that hand causes pain. Her fine motor control, however, is not affected. The only treatment for the elbow is analgesia. She was diagnosed with golfer’s elbow in her right elbow in 2018, deriving apparently from use of the walking stick for her back.

7. Mrs Crompton provides child care for her grandchildren, and is paid for those duties, but at a rate that is below the minimum wage. She provides care for 36 hours a fortnight and in the past has provided up to 27 hours per week.[7]

   [7] T28.

   Ms Margaret Britt’s evidence

8. Ms Britt said at the hearing that she and Mrs Crompton had known each other for more than twenty years. She has noticed that Mrs Crompton can only walk for five minutes at a time, with the aid of a walker, and cannot sit for extended periods. She has deteriorated markedly in the past six to nine months. She is very aware that Mrs Crompton is suffering badly.

9. Under cross-examination, Ms Britt noted that Mrs Crompton cannot vacuum or wash the floor and is limited in how far she can reach over her head. When she hangs out the washing, the line is set low for her to do so. She could possibly pick up a cup from a coffee table when standing. She can stand up from a chair by pushing herself up with her arms, and she can sit for possibly an hour at a time.

   Mr Ray Crompton’s evidence

10. Mr Crompton said at the hearing that he is the one who now has to drive, lift all the shopping into and out of the car, clean the bath, change the sheets on the bed, collect the eggs from the chickens, and do other household chores, as his wife cannot do anything that requires significant bending or twisting. She cannot put the washing out or bring it in again, or do the washing up, and has problems putting her trousers on. Her condition has worsened since the beginning of 2017 and deteriorated appreciably after a visit to Hobart in late 2017 or early 2018. Mr Crompton said his wife can wash her hair in the shower, but cannot move her head without pain. He agreed that she could pick up a cup from a coffee table, but said that would also cause pain. About once a month or once every three weeks he has to help her up from a chair. Mrs Crompton can pick up light objects from normal table height; she can sit for 30 minutes, but in a car for no more than 30 minutes. She regularly takes care of her grandchildren, however, taking them with her on the bus to the shops, entertaining them, and preparing their food.

    Ms Hanli Ven Stadden’s evidence

11. Ms Ven Stadden works for Octec Ltd, an employment service that provides assistance in a variety of different contexts, including disability employment services. Octec has been attempting to assist Mrs Crompton since late 2017 or early 2018. This has involved contact between Ms Ven Stadden and Mrs Crompton on a regular basis, with Ms Crompton attending at least fortnightly. Ms Ven Stadden said that from her observation, it is clear that Mrs Crompton is in chronic pain; she can sit for only a short period, and when she stands often leans against a wall. Her attendance at the employment service is motivated and provides her with psychological benefits, but placing her is very hard because she would struggle to work due to the pain. This causes her frustration, which is a further psychological barrier to employment.

    THE MEDICAL EVIDENCE

12. Mrs Crompton has a spinal condition which first appeared in 2002 and worsened in 2007 and subsequently. She also suffers from a left elbow injury sustained some years earlier and the papers include mention of a detached retina. At the hearing Mrs Crompton stated that it had now been determined that she did not have a detached retina, and I have given no further consideration to that condition. The other two conditions are considered in turn below.

    Spinal condition

13. The documentary record shows that Mrs Crompton’s back started giving her trouble in about 2002. A report by Dr Craig Brown, a general practitioner, dated 13 October 2007[8] records a history of pain mainly in the lower back (the lumbar spine) but also at times in the thoracic and cervical spine. This began in an employment-related incident in 2002. Mrs Crompton apparently made a reasonable recovery from that initial incident, but a further major episode occurred in 2007, when Mrs Crompton was cleaning the floor at Burrangiri, an aged care facility where she worked. While mopping and vacuuming she suffered the onset of pain in the lower back with radicular pain in especially the left leg. Mrs Crompton took some time off work, and again made a reasonable recovery, although the pain does not seem ever to have disappeared completely after that time. Dr Brown reported that an MRI and bone scan with SPECT (both apparently in July 2007) identified some narrowing of the disc space at L4/5 with desiccation but no nerve root compression, and some facet joint degeneration at L5/S1. His diagnosis was mild degenerative disease of the lumbar spine with spondylosis, and facet joint degeneration at L5/S1. Dr Brown noted that the symptoms were more pronounced than the imaging might suggest; encouraged regular physiotherapy and raised the possibility of referral to a pain clinic, with the possibility of facet joint injections at a future time.

    [8] T7.

14. Little further medical information is available about the state of Mrs Crompton’s spine. Medical certificates signed by her general practitioners in more recent years (Dr Sabina Obermeder, dated 17 March 2016[9], Dr Muhammed Faraz, dated 14 June 2016, 12 September 2016, 7 June 2017, 31 August 2017 and 22 November 2017[10]) give Mrs Compton’s diagnosis in each case as “multilevel spondylosis, L4/5 with L2/3 disc degeneration, L5/S1 facet joint degeneration”. The condition is described as permanent, with symptoms of lower back and left hip pain and “nerve pain syndrome”. Treatment is given as Celebrex, Lyrica and Panadol osteo; chiropractic treatment every six weeks; and exercises undertaken at home.

    [9] T9.

    [10] T10, T11, T12, T13, T19.

15. In the most recent imaging report, dated 15 November 2017, Dr Van der Merwe notes that a lumbar CT at that date disclosed annular bulging and/or narrowing of the intervertebral disc space at L1/2, L3/4, L4/5 and L5/S1. There was abutment or impingement of the exiting nerve root on the right at L1/2 and L3/4 and bilateral abutment at L4/5 and L5/S1. Joint degeneration was noted at L4/5 and the sacroiliac joint. There was a spondylolisthesis at L3/4.

16. In a report dated 31 May 2018[11] Dr Johar noted that Mrs Crompton’s spine condition is being managed conservatively, with analgesia, physical therapy and rehabilitation; that Mrs Crompton is compliant with prescribed therapy; and that future therapies might include further physiotherapy and possibly an orthopaedic surgeon. In an earlier medical certificate dated 15 February 2018[12], Dr Johar stated that Mrs Crompton needs help with activities of daily living, including cooking, cleaning, shopping, carrying bags and transportation. She made similar remarks in her report of 31 May 2018, noting that Mrs Crompton needs help from her husband with tasks requiring lifting, bending, carrying, cleaning, but can undertake self-care without assistance. She used a walking stick as her only aid.

    [11] Exhibit A1.

    [12] T25.

    Elbow condition

17. There is imaging of Mrs Crompton’s left elbow from 1993 and 1997[13] and from 15 November 2017.[14] The images show that the radius has had an earlier fracture; that there are several ossicles present (small bone fragments); and that there is some degenerative change resulting from the earlier trauma. There is very little medical evidence apart from the imaging reports. Dr Johar’s report of 31 May 2018[15] mentions that the fracture occurred in 1989 and required surgery, but there is no further information regarding the current status of the injury.

    [13] T5 dated 11 February 1993, T6 dated 31 October 1997.

    [14] T18

    [15] Exhibit A1.

    CONSIDERATION

18. It is clear, and the Secretary accepts, that Mrs Crompton has impairments to her spine and elbow, and had those same impairments during the qualification period. She therefore meets paragraph 94(1)(a) of the Act.

19. The question then arises whether these conditions satisfy the requirements of paragraph 94(1)(b); during the qualification period they must have met the tests of permanence set in the Impairment Tables, and, if so, have been sufficiently severe that together they receive 20 points under the relevant tables.

20. With regard to Mrs Crompton’s back condition, treatment seems to have reached stability, with analgesia, physical therapy and rehabilitation, including home exercise.  There is mention by Dr Johar of the possibility of further treatment modalities (a return to physiotherapy, a referral to an orthopaedic surgeon).[16] At an earlier time Dr Brown foreshadowed referral to a pain clinic and possible injections to address the facet joint arthropathy, but there are no references to those treatment options after 2007. Although further treatments seem to be contemplated, there is nothing that encourages me to believe that further treatment is expected or definitely and seriously proposed in the timeframe that governs claims for DSP. I find that Mrs Crompton’s spinal condition is fully diagnosed, fully treated and fully stabilised.

    [16] Exhibit A1.

21. Mrs Crompton’s elbow condition is treated only with analgesia, which she is taking in any case for her spinal condition. The medical evidence is decidedly sketchy, and there is little recent medical opinion on which I could base a conclusion that the elbow condition is or is not fully diagnosed, treated and stabilised. Further, there is no medical evidence regarding the severity of the condition. The Impairment Tables, however, require that any evidence from the applicant or those who know her receive corroboration from her doctors or other health practitioners (subsection 8(1) of the Rules). In the absence of substantial medical evidence relating to permanence or severity, I cannot make a sensible finding or assign a rating under the Impairment Tables to Mrs Crompton’s elbow condition.

22. The severity of Mrs Crompton’s spinal condition is assessed under the Impairment Tables, and specifically under Table 4 – Spinal Function. The Table assigns 5 points to a person who has “some difficulty” in undertaking activities above head height, bending to knee level and straightening up again, and turning their trunk or moving their head to look to the sides or upwards. It assigns 10 points to a person who can sit in or drive a car for 30 minutes and meets one of four tests: the person cannot sustain activities over their head; or has difficulty turning their head in all directions; or is unable to bend forward to pick up a light object from a low surface; or needs assistance to get up out of a chair.

23. The evidence is that Mrs Crompton can sit in a car for 30 minutes, but she fails to meet three of the tests: in the hearing she said that the difficulties she has with activities above her head are the result of her elbow injury rather than her back injury; she can usually get up out of a chair (and subsection 11(3) of the Rules for applying the Impairment Tables states that a rating should be assigned on the basis of what a person can do normally rather than rarely); and she can lean forward to pick up an object from a low surface (although again is attended by pain in doing so). The only one of the four tests required for a 10 point rating that Mrs Crompton might meet relates to whether she has “some difficulty” or “difficulty” in moving her head to look in different directions.

1. It is clear that the distinction between having “some difficulty” in moving her head and “difficulty” in doing so is centrally important. The evidence of the lay witnesses, especially Mr Crompton, is that she can move her head but movement is attended by pain. The Secretary contended that the medical corroboration of the severity of Mrs Crompton’s spinal condition is insufficient for me to find that Mrs Crompton should be assigned 10 points; and that the evidence suggests that the worsening of Mrs Crompton’s condition over the past year means that the evidence I was given at the hearing should be relied on with caution, as it reflects how Mrs Crompton’ was after that deterioration, rather than during the qualification period.

2. Both points are well taken. The evidence from Dr Johar, for example, provided a few months after the qualification period, is couched in quite general terms; it does not allow me to conclude that Mrs Crompton’s condition at the end of the qualification period in December 2017 was at the level of severity, in the specific terms set out in the Impairment Tables, to warrant assignment of 10 points. The recent history of Mrs Crompton’s spinal condition, as recounted by her witnesses, reinforces how much worse the condition has become since the qualification period. I cannot arrive at a conclusion that during the qualification period Mrs Crompton was affected by her spinal condition to the degree that Table 4 requires if 10 points is to be assigned. Accordingly, I assign Mrs Crompton 5 points under Table 4.

3. Mrs Crompton has a total score of 5 points under the Impairment Tables. She does not meet paragraph 94(1)(b) of the Act and she does not qualify for DSP. As Mrs Crompton does not meet paragraph 94(1)(b), I do not need to consider whether she has a continuing inability to work under paragraph 94(1)(c).

4. At the end of the hearing Mrs Crompton said that at her age she was “invisible” in the employment market, and that she was caught between the onset of her disability and the prospect of age pension, still some years off. I sympathise with Mrs Crompton, and her concerns are entirely understandable. But the criteria for granting DSP are set by the Act and the Impairment Tables, and at the time she claimed DSP Mrs Crompton clearly did not meet them. Her condition has now worsened; it is entirely possible that if she were to lodge a new application she might qualify, although such an outcome is by no means certain. If she were to do so, as I hope this decision makes clear, Mrs Crompton would need to ensure that the medical evidence is complete and sufficiently detailed to allow a decision-maker to make clear and informed findings against the relevant criteria.

36.      

37.     I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.

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Associate

Dated: 20 February 2018

Date of hearing:	13 December 2018
Applicant:	In person
Counsel for the Respondent:	Ms Charlie Inglis, Department of Human Services