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

[2015] AATA 688

Daly and Secretary, Department of Social Services (Social services second review) [2015] AATA 688 (9 September 2015)

Division	GENERAL DIVISION
File Number	2015/0465
Re	Geoffrey Daly
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	9 September  2015
Place	Melbourne

The Tribunal affirms the decision under review.

…………………[sgd]………………

Miss EA Shanahan, Member

SOCIAL SECURITY – Pensions, Allowances and Benefits – application for disability support pension – impairment rating variable but does not equal 20 points as required – no satisfaction of program of support requirements – decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

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

Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the P O S Determination)

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Miss E A Shanahan, Member

9 September 2015

1. Mr Daly lodged a claim for a disability support pension (DSP) with Centrelink on 20 June 2013.  A Centrelink delegate rejected the claim on 1 November 2013. At Mr Daly’s request, an authorised review officer (ARO) undertook an internal review of this rejection and affirmed the decision on 20 March 2014.  Centrelink is the service delivery agency for the Department of Social Services.

2. Mr Daly lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT) on 28 October 2014.  On 4 January 2015 the SSAT affirmed the decision that Mr Daly did not meet the legislative criteria for the DSP.  Mr Daly applied to this Tribunal on 30 January 2015 for a review of the SSAT decision.

3. Mr Daly was self-represented at the hearing on 23 July 2015. The Secretary, Department of Social Services (the Secretary) was represented by a solicitor, Ms M Pandurevic of Sparke Helmore. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents and Supplementary T-documents, Exhibit R1). Mr Daly gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

4. Mr Daly was born in Ireland and migrated to Australia in November 2004.  He holds Irish and Australian citizenship. In Ireland he worked in hotel management for 10 to 12 years.  Following his arrival in Australia, he found a job with Yarra Trams. He married and subsequently divorced an Australian citizen and has a seven year old daughter from this marriage.  He has joint custody of his daughter, who spends three days of the working week and alternate Sundays with him.  Mr Daly receives Family Tax Benefit in relation to his daughter.

5. In 2011 Mr Daly developed pain in his neck, shoulders and arms and the right side of his spine.  The pain was predominately on the right side of his body.  It has since increased and he states that he now has pain everywhere with the exception of his head and anterior chest wall.  The symptoms were initially attributed to an overuse injury associated with his computer work. 

6. Mr Daly claims that his work station was altered and was ergonomically unsuitable. He said that as his condition worsened he was unable to perform his full duties.  After he obtained a medical certificate, his employer reduced his computer time to two hours per day and he spent the remainder of his working hours on administrative duties of a light nature.  He was referred to Dr Daniel Lewis, a rheumatologist, in November 2011. It would appear that Dr Lewis diagnosed fibromyalgia.

7. Mr Daly was originally treated with anti-inflammatory medications and in August 2012 commenced Endep and Lyrica for his chronic pain condition while waiting to be accepted into a rehabilitation and pain management course at the Epworth Hospital.  Hydrotherapy, physiotherapy and acupuncture proved to be of little benefit.

8. Mr Daly undertook a 10 week rehabilitation and pain management course at Epworth Hospital, commencing in September 2012.  This course did not improve his symptomatology but it did teach him measures to manage his pain more effectively.

9. Dr Rowena Ryan, his treating general practitioner completed the Treating Doctor’s Report of 19 July 2013 that accompanied his claim for DSP, According to Dr Ryan, Mr Daly suffered pain in the neck, the trapezium muscles − especially on the right side − in both arms and, since 2012, pain in his back and both legs.  His symptoms are said to be exacerbated by extremes of climatic temperature and by repetitive movements.  All his activities are restricted by the pain and by an inability to maintain muscular activity.  Dr Ryan also diagnosed what she termed stress, which developed in late 2011 or early 2012 and related primarily to ongoing issues with his WorkCover claim.

10. Mr Daly was referred to a psychologist/hypnotherapist for counselling and hypnotherapy but did not find these treatments beneficial.  Dr Ryan said that Mr Daly’s symptoms – those caused by the pain and those related to stress − improved in 2013.  

11. No details regarding Dr Lewis’s opinion or Mr Daly’s progress at the rehabilitation and pain management course have been provided to the Tribunal other than second hand information from Dr Ryan.  No x-rays, biochemistry or haematology results have been provided.

12. Dr Ryan provided a further report to Centrelink dated 12 March 2015 summarising Mr Daly’s clinical history but did not include any physical examination findings.  She confirmed that her diagnosis was fibromyalgia, although initially she considered that Mr Daly was suffering from a complex regional pain syndrome.  Using the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), Dr Ryan allocated 20 points under Table 1 – Functions requiring Physical Exertion and Stamina;   20 points under Table 2 - Upper Limb Function; 10 points under Table 3 - Lower Limb Function; and 10 points under   Table 4 -Spinal Function.  She arrived at a total of 60 points.  Given that Mr Daly’s history extends back to 2011, Dr Ryan opined that he would not improve further, that his condition was permanent and that he was not able to work for 15 hours or less a week.

13. Mr Daly underwent a job capacity assessment (JCA) by a clinical psychologist and a physiotherapist on 19 September 2013. The assessors decided that Mr Daly’s fibromyalgia was fully diagnosed, treated and stabilised and, according to Impairment Tables 2, 3 and 4, attracted a total impairment rating of 15 points (10 for lower limb function, 5 for upper limb function and zero for spinal function.)  As Dr Ryan had referred to stress, the assessors also considered this condition.  However, since  no such diagnosis had been made by a clinical psychologist or psychiatrist (as required by the legislation), Mr Daly’s psychological condition, whatever it might be, was determined to be temporary and did not attract an impairment rating. 

14. Mr Daly was assessed as having a baseline capacity of 15 to 22 hours for office work, increasing to 23 to 29 hours within two years.  Vocational rehabilitation and counselling were recommended.  Mr Daly’s employment was terminated by Yarra Trams on 5 July 2013 as he had been certified unable to do administrative work, to drive any vehicle at work, to sit for long or to do tasks requiring a lot of typing or computer use, unable to look down or reach for things, unable to work outdoors in hot weather and unable to perform customer service roles requiring person to person contact. 

15. Dr Peter Blombery, consultant physician in vascular diseases, provided a report − presumably for workers’ compensation purposes − on 22 May 2013.  He obtained the history of Mr Daly’s predominantly right sided pain and stiffness in the neck, spine, right shoulder, wrist and forearm from June 2011 which had led to his work duties being restricted to two hours of computer work per day.   He noted that he had been seen by Dr Daniel Lewis in November 2011 and, at Dr Lewis’s recommendation, had attended the Epworth pain management program for 10 weeks in 2012. 

16. Apparently, Mr Daly returned to work in January 2012 on light duties; however, his symptoms persisted.  When seen by Dr Blombery, Mr Daly complained of continual pain around the trapezius muscles on both sides, extending from that point throughout his body.  The pain interfered with his sleep.  He had also noted mild pins and needles in the painful areas and buzzing in his face.  Mr Daly stated that any activity or attempt to do anything at home increased his pain level.  He drove with difficulty and had given up fishing and playing any form of sport.  He said he was heat intolerant.  Physical examination was entirely normal except for mild to moderate tenderness over both trapezius muscles.  Dr Blombery also had access to some nerve conduction studies, which he considered to be normal.

17. Dr Blombery diagnosed pain sensitisation phenomena compatible with a disorder like fibromyalgia.  Dr Blombery noted that all his treatments, including Lyrica, Endep and non-steroidal anti-inflammatory medication, had been of little benefit to Mr Daly, as had the use of a TENS machine and acupuncture.  Dr Blombery found Mr Daly unfit for his pre-injury employment.  He considered Mr Daly’s prognosis to be poor and attributed 50 percent of Mr Daly’s disorder to psychological factors and 50 percent to organic causes.

18. The SSAT decided that Mr Daly’s widespread aches and pains, diagnosed as fibromyalgia, attracted an impairment rating of 10 points under Impairment Table 1. Stress, the second condition reported by Dr Ryan, was determined not to attract any impairment points as it had not been diagnosed by a psychiatrist or clinical psychologist. Therefore, Mr Daly did not satisfy s 94(1)(b) of the Act.

    EVIDENCE BEFORE THIS TRIBUNAL

19. In his evidence before this Tribunal, Mr Daly denied he suffered from any psychiatric disorder.  Rather, his use of the word stress related to his understanding of the autonomic and central nervous system and the so-called fight or flight response to stress that increases cortisol and adrenaline production.  He believes these naturally occurring substances increase the sensitivity of his reactions to various stimuli.  For example, he finds he cannot drive for more than 30 minutes as he develops pain in his back through contact with the car seat. This pain is burning in nature, though also occasionally stabbing and freezing.  He said he developed pain in his legs from sitting in the driver’s seat.  He believes that to limit these reactions he must try to keep as calm as possible throughout the day.

20. Mr Daly said that he had not slept for two days.  The only things he  is capable of doing is playing the guitar, performing light house cleaning, some simple cooking and spending most of his days watching movies or playing games on the computer.  He has a standing workstation.  Mr Daly can walk, but if he increases his pace above five to six kilometres per hour he develops what he describes as an electrical problem in his hands.  He had recently suffered from vertigo associated with the reduction and then cessation of Cymbalta but this has now resolved. 

21. While Mr Daly has care of his daughter three days per week and on alternate Sundays, he cannot do as much for and with his daughter as he would like.  He said that his major trouble is sustaining activity.  He is able to shop but can only carry a small volume of items, he can use public transport if he avoids peak hour and he believes his condition has stabilised now that he has ceased work.

    RELEVANT LEGISLATION

22. Section 94 of the Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  It provides that:

    (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;

    (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system. 

23. Sections 41 and 42 and Schedule 2 clause 3 of the Social Security (Administration) Act 1999 (the Administration Act) state that the qualification period for DSP begins with the date of the claim and continues for a 13 week period. In Mr Daly’s case that is from 20 June 2013 to 20 September 2013.

24. The rules governing the Impairment Tables also provide guidance as to when a condition is fully diagnosed, treated and stabilised.   Since early 2012, applicants have been required to participate in a program of support, according to the Social Security (Requirements and Guidelines – Active Participation of Disability Support Pension) Determination 2011 (the POS Determination) in order to establish a continuing inability to work. 

    SUBMISSIONS

25. Mr Daly considers his symptomatology to be stabilised. He said that they impact severely on all his activities in terms of causing pain and greatly reducing muscle stamina, making him incapable of performing any form of work.

26. Ms Pandurevic relied on the Secretary’s Statement of Facts and Contentions, wherein the Secretary accepted that Mr Daly’s condition was fully diagnosed, treated and stabilised and attracted an impairment rating of 20 points, therefore satisfying s 94(1)(b) of the Act. However, Mr Daly did not have a severe impairment as none of his impairments attracted 20 points under a single table. As a result Mr Daly was required to participate in a program of support before it could be determined that he had a continuing inability to work and thereby satisfied s 94(1)(c) of the Act.

27. Ms Pandurevic noted that Mr Daly did not cease work until February 2013, four months before lodging his claim for DSP and that according to the JCA of September 2013 he had the capacity to perform 23 to 29 hours of work per week in less skilled office jobs.   

    TRIBUNAL DELIBERATIONS

28. The Tribunal accepts that Mr Daly has fibromyalgia resulting in widespread muscular aches and pains throughout most of his body.  Unfortunately, the evidence supporting this diagnosis is scanty in that there are no reports from Dr Lewis or the Epworth pain management course that Mr Daly has attended.  The only report of a physical examination is Dr Blombery’s, which notes some tenderness of the trapezius muscles in both shoulders. 

29. The Tribunal observed that Mr Daly is a well-built man, with apparently normal muscular development, and did not appear overweight.  Whether or not he has any psychiatric disorder is uncertain and as he has not been seen by a clinical psychologist or psychiatrist for assessment, no impairment rating can be assigned for a psychiatric condition. 

30. The Tribunal finds that Mr Daly satisfies s 94(1)(a) of the Act in that he has a physical disorder, being fibromyalgia.

31. The JCA in September 2013 accepted that his fibromyalgia was fully diagnosed, treated and stabilised and recommended an impairment rating of 15 points under Tables 2 and 3 of the Impairment Tables.  Dr Ryan estimated an impairment rating under Tables 1, 2, 3 and 4, of 60 points in total, with Table 1 attracting 20 points. This would satisfy the requirement for a severe impairment, and negate the requirement that claimants undertake a program of support.

32. The Tribunal does not agree with Dr Ryan’s methodology. The Impairment Tables concentrate on functional impairment. In conditions such as fibromyalgia, which causes generalised muscle aches, this functional impact relates to activities requiring physical exertion or stamina.  Therefore, according to Table 1, Mr Daly’s fibromylagia would have attracted a maximum of 10 points for moderate functional impact on activities requiring physical exertion or stamina:

    Table 1 – Functions requiring Physical Exertion and Stamina

    10 [points] There is a moderate functional impact on activities requiring physical exertion or stamina.

    (1) The person:

    (a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

    (i)     is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

    (ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths);and

    (b)is able to:

    (i)     use public transport and walk (or mobilise in a wheelchair)around a shopping centre or supermarket; and

    (ii)     perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

    Even if ratings were assignable to Mr Daly’s conditions under Tables 2 and 3, none would reach a level of severe impairment by attracting 20 points for one particular impaired function.

33. The Tribunal determines that Mr Daly does not satisfy the requirements of s 94(1)(b) of the Act, in that he does not have a 20 impairment point rating. Moreover, even if he did attain this level he would still be required to undertake a program of support before satisfying s 94(1)(c) of the Act.

34. The Tribunal affirms the decision under review, agreeing with the SSAT that the impairment rating for Mr Daly’s fibromyalgia is 10 points and that s 94(1)(b) of the Act is not satisfied.

35.     I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision of Miss E A Shanahan.

...........................................................

Associate

Dated   9 September 2015

Date of hearing	23 July 2015
Applicant	In person
Advocate for the Respondent	Ms M Pandurevic
Solicitors for the Respondent	Sparke Helmore