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

[2017] AATA 402

Daniel and Secretary, Department of Social Services (Social services second review) [2017] AATA 402 (31 March 2017)

Division:GENERAL DIVISION

File Number:           2016/3344

Re:Bretton Daniel

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J Sosso

Date:31 March 2017

Place:Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd]...............................................

Senior Member J Sosso

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether Applicant’s conditions attract 20 points or more – whether conditions fully diagnosed, treated and stabilised – whether conditions permanent – impairment ratings – continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991, ss 27, 94
Social Security (Administration) Act 1999, s 63, Sch 2 Pt 2 Cl 4

CASES

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

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Gallacher v Secretary, Department of Social Security [2015] FCA 1123

Summers and Secretary, Department of Social Security [2014] AATA 165

Nelson and Secretary, Department of Social Security [2016] AATA 721

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011

REASONS FOR DECISION

Senior Member J Sosso

31 March 2017

INTRODUCTION

1. Mr Bretton Maurice Daniel (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 26 May 2016 which affirmed the decision of the Department of Human Services (Centrelink) to reject his claim for the Disability Support Pension (DSP) lodged on 10 April 2015. In his DSP claim, the Applicant listed his disabilities as “Diffused Discs – lower back” (Exhibit 1 T16 p.151).

2. The Applicant’s claim for the DSP was initially rejected on 4 June 2015 (Exhibit 1 T19 p.118) on the basis that he had not actively participated in a program of support (POS).

3. This decision was reviewed and affirmed on 31 October 2015 by an Authorised Review Officer (ARO) – Exhibit 1 T21 p.194. While the ARO assigned the Applicant 20 points under the Impairment Tables it was determined that he did not have a severe impairment and had not actively participated in a POS.

4. On review, AAT1 determined that the Applicant only had an impairment rating of 10 points at the time he made his claim. Having not reached the threshold of 20 points, AAT1 did not consider whether he had a continuing inability to work.

5. The hearing was conducted on 3 February 2017. The Applicant was self-represented and gave evidence by conference telephone. The Secretary, Department of Social Services (the Respondent) was represented by Ms Lisa Brereton of Clayton Utz.

6. The sole issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim, or within 13 weeks thereafter.

   BACKGROUND

7. The Applicant is not currently married and was aged 55 years when he lodged his claim (Exhibit 1 T16 pp.139 and 142). He has two adult children, but lives by himself in far north Queensland.  Prior to moving to Queensland he resided in South Australia, however the cold weather caused him problems with his ailments and he consequently moved to a tropical locale.

8. The Applicant lives by himself in a two bedroom house and his nearest neighbour is 500 metres away. The nearest town is Cow Bay with an estimated population of approximately 300.

9. The Applicant drives to Mossman to purchase groceries once a fortnight. The distance from his home to the supermarket is approximately 34 km and he has to use a ferry to cross over a river in-between.  He has installed a $2500 suspension seat to give him spinal support.

10. A male friend helps by mowing the lawn and pruning the vegetation. A female friend, who lives at Cow Bay, visits regularly to help with home duties.

11. The Applicant testified that between 1983 and 2001 he was a fly-in fly-out oilfield worker and engaged in that occupation on sites within Australia and throughout the world. In either 2001 (the Applicant’s testimony) or 2002 (report of Dr Peter Rogers (Exhibit 1 T13 p.120) he suffered a workplace injury resulting in ongoing problems with his lower back.

12. A radiological report of the Applicant’s cervical spine dated 18 June 2004 found (Exhibit 1 T10 p.104):

    “Alignment is normal. Disc degeneration is seen at levels between C4/5 and C6/7 with slight narrowing of disc space and spondylitic lipping at vertebral body margins. There is associated osteophytic encroachment on neural foramina at C4/6 and C5/6 to the right. There are no cervical ribs. Bone texture is normal. Prevertebral soft tissue shadows are normal.”

13. An earlier (30.7.2001) radiological report of the Applicant’s lumbar spine found (Exhibit 1 T10 p.105):

    “At L4-5 there was mild to moderate spinal canal stenosis due to the combination of disc bulge, apophyseal joint and ligamentum falvum hypertrophy. There was a left posterior component of the disc bulge, extending a little inferiorly, to impinge upon the left anterior aspect of the theca near the origin of the left L5 root sheath.”

14. In 2008 the Applicant’s GP, Dr Peter Rogers, referred him to Dr Orso Osti, a spinal surgeon. Dr Osti provided the following diagnosis in correspondence dated 15 April 2008 (Exhibit 1 T4 p.98):

    “Brett’s MRI had demonstrated developmental spinal canal stenosis with disc dehydration at L4-5 and L5-S1 and small posterior annular tears but with no suggestion of any significant cauda equina and/or nerve root compression.

    In my view, it would be inappropriate for Brett to be pushed towards surgical intervention.

    …minimally invasive pain management techniques such as facet joint blocks/facet rhizolysis may be considered.”

15. The Applicant was subsequently referred to Dr Matthew Green, a musculoskeletal, rehabilitation and pain physician.  In correspondence dated 16 May 2008 Dr Green gave the following diagnosis (Exhibit 1 T5 p.99):

    “Current medications include Kapanol 20mg TDS as well as Endone 3x5 mg per day.

    Ongoing mechanical pain with somatic referred regional component and occasional neuropathic pain in the lower limbs is described.

    Mr Daniel has had the issue surrounding diagnostic branch block with the possibility of facet rhizolysis explained to him today.

    I have suggested that certainly a preference here is to see greater than 50% improvement in base line or activity-related pain before one would proceed with facet rhizolysis.

    At this stage Mr Daniel is keen to proceed. I have explained the nature of the procedure and what is involved with a diagnostic block and also the facet rhizolysis. I will obtain pre-approval from the insurer before we proceed.

    With approval confirmed, bilateral L2-L5 medial branch block will be performed with some very minor sedation if required.”

16. In July 2008 the Applicant underwent a bilateral medial branch blockade from L2-L5 bilaterally (Exhibit 1 T6 p.100) and in October 2008 a unilateral facet rhizolysis on the right from L2-L5 (Exhibit 1 T6 p.101). Dr Green continued to treat the Applicant over the 2008-2009 period, and in the various reports he prepared noted that the Applicant continued to suffer cervical pain and headaches (p.103) and remained under very heavy medication, some of which caused significant nausea and vomiting (p.107).

17. Dr Rogers prepared a medical report in support of the Applicant’s claim for the DSP which is dated 30 October 2012. At that time the Applicant was still residing in Adelaide. Dr Rogers had been treating the Applicant since 1997 (Exhibit 1 T13 p.112).

18. Dr Rogers diagnosed the Applicant as suffering from chronic low back disability, with multiple disc injuries and spinal stenosis (p.113). The main symptoms of this condition were chronic persistent pain, significant sleep disturbance and nocturnal muscle cramping (p.114). Dr Rogers opined that the Applicant’s condition was chronic and would probably worsen with age (p.115).

19. Further medical reports in support of the Applicant’s claim for the DSP were provided by Dr Wendy White who was his GP when he moved to Queensland. The first report is dated 31 October 2014 and the second on 2 April 2015.  The second report was lodged in conjunction with his DSP claim.

20. Dr White stated that the Applicant had only been her patient since 24 October 2014.  (Exhibit 1 T14 p.124)

21. Dr White was also of the opinion that the Applicant suffered from spinal stenosis – p.125. In her second report, Dr White opined that the Applicant suffered from L2/3 and L5 foraminal stenosis and L4/5 disc degeneration.  (Exhibit 1 T17 p.171)

22. On 24 October 2016 Dr White provided a much more detailed medical report – Exhibit 2. She again confirmed her diagnosis that the Applicant suffers from spinal stenosis, particularly at L2-3 and L4-5 with cervical spine disc degeneration in C4-5 and C6-7, scoliosis and bilateral hip degeneration.

23. Dr White gave the following description of the Applicant’s symptoms:

    “Mr Daniels (sic) experiences persisten (sic) lower back pain and persistent referred leg pain which limits his mobility. He experiences disturbed sleep patterns due to muslce (sic) cramps in the legs from the constant spasming of the leg muscles. After mild exertion during activities Mr Daniel experiences neck pain and headached (sic) which lead to vomiting. Most tasks take considerably longer due to the need to stop and rest, namely lying down for at least half an hour to ‘equalise’ and reduce pain intensity. Fortnightly shopping requires sedative measures to achieve. Frequently there is shopping left in the car until Mr Daniel feels better or assistance come to help. A lot of household tasks are done by friends or service personell (sic) (like gas deliveries and lawn mowing). Mr Daniel has a reliance on continued use of medication and alcohol for pain and stress relief and most daily activities. As well as vomiting caused by severe headaches which he endures once or twice per week, Mr Daniel experiences insomnia, pain and cramping as a daily occurrence. He relies on medication daily to manage this.”

    LEGISLATION

24. To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:

    (a)the person has a physical, intellectual or psychiatric impairment;

    (b)the person’s impairments is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work.

25. The Impairment Tables are located in the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.

26. Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations - Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions - Cl.5(2)(d).

27. The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).

28. An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).

29. To be a permanent condition it must be:

    (a)fully diagnosed by a medical practitioner;

    (b)fully treated;

    (c)fully stabilised; and

    more likely than not, to persist for more than two years – Cl 6 (4).

30. In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).

31. A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).

32. A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.

33. This requirement was explained  by the Tribunal in Bobera and Secretary, Department of Families, Housing,  Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as 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 preferred 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.”

    CONSIDERATION

    Introduction

34. The task of the Tribunal is to assess the Applicant’s claim for the DSP on his medical condition at the date of his claim or within 13 weeks thereafter (the relevant period). In this matter, therefore, the relevant period is 10 April 2015 to 10 July 2015.

35. As the Tribunal’s mandate is to consider the matter afresh, there is no limitation on the Tribunal being presented with, and considering, material not produced to the original decision-maker or material that was produced subsequent to the decision under review – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ. In particular, the Tribunal is at liberty to admit into evidence, and consider, medical reports prepared after the expiration of the relevant period, subject to those reports relating to the state of the Applicant’s health during the relevant period – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.

    Does the Applicant suffer a physical, intellectual or psychiatric impairment?

36. In order to qualify for the DSP a person must have a physical, intellectual or psychiatric impairment – s 94(1)(a). The Respondent accepts that during the relevant period the Applicant did have an impairment – Secretary’s Statement of Facts, Issues & Contentions (SSFIC) para 5.5. The evidence before the Tribunal clearly supports this concession.

    Does the Applicant’s impairments attract 20 points or more

37. The second requirement for a person to qualify for the DSP is that the person’s impairment is of 20 points or more under the Impairment Tables – s 94(1)(b).

38. The Respondent accepts and adopts the conclusions reached by AAT1 in respect of the Applicant’s impairments, save that the Respondent concedes it is appropriate to also allow a separate assessment under Table 3 of the Impairment Tables. (SSFIC para 5.20)

    Spinal Conditions

39. Member Cavanagh at AAT1 found that the Applicant’s cervical and lumbar spine conditions were fully diagnosed, treated and stabilised at the time the claim was lodged and caused a moderate functional impact to activities involving the spinal function. Member Cavanagh assigned this condition an impairment rating of 10 points. (Exhibit 1 T2 pp 9-10)

40. It is not contested that the Applicant has impairments which attract the operation of Table 4 of the Impairment Tables – Spinal Function. This Table applies to persons who have a permanent condition resulting in functional impairment when performing activities involving spinal function, namely, bending or turning the back, trunk or neck. Restrictions on overhead tasks resulting from shoulder conditions are rated under Table 2.

41. In order to be assigned 10 points under Table 4 a person must have an impairment that results in a moderate functional impact on activities. A person can be assigned 10 points if they are able to sit in and 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 overhead 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).

42. Dr Rogers stated in his report that the Applicant could only walk for 15 minutes with the aid of a walking stick, was unable to stand for more than 5 – 10 minutes and was unable to sit longer than 10-15 minutes without posture change. (Exhibit 1 T13 p.115)

43. The Applicant was interviewed on a face to face basis by a Job Capacity Assessor on 24 November 2014. The Assessor made the following observations (Exhibit 1 T15 p.135):

    “Customer reported sitting, standing and walking tolerance of 5 min. However, he later reported being able to make 70km trip to his doctor fortnightly, standing to do his dishes twice a week, doing his own shopping, mopping and food preparation. He said he can reach above the shoulder level but would be unable to sustain any prolonged tasks at that level. He reported to be unable to perform tasks that require any twisting or bending of his trunk. He has difficulties with some aspects of self care e.g. toileting and uses a shower chair. Customer mobilised with a walking stick. He uses friends to assist him with heavier daily activities eg lawn mowing.”

44. Dr White outlined what aids, equipment and assistive technology the Applicant uses (Exhibit 2):

    “Mr Daniel currently uses pick up sticks around the home. He walks with the assistance of a walking stick at all times. There is a suspension seat with arm rests fitted to his car.  He uses torso belts for lower back assistance and stability. He uses office chairs with arms for household duties like dishwashing, floor cleaning and cooking. He has a hydro aid to clean himself after toileting. He relies on wheat heat bags for some pain relief.”

45. The evidence before the Tribunal clearly demonstrates that the Applicant’s spinal conditions have significantly impacted on his life and his capacity to do ordinary tasks. Further, he is in constant pain, which in turn has resulted in a range of deleterious side-effects.

46. However, when determining what points to assign under the Impairment Tables, the Tribunal is necessarily constrained by the precise and unambiguous terminology and examples used therein. In this matter it is not contested that the Applicant can and does drive a motor vehicle, usually fortnightly, for travel to and from his home to Mossman. This is, in total, a trip of around 70km. Consequently the Applicant is able to sit in and drive a car for at least 30 minutes.

1. The Applicant has difficulty sustaining overhead activities, standing up from a sitting position and moving his head. He gave evidence that he has difficulty toileting, walking without aid, and doing any heavy tasks that require physical exertion and movement, such as mowing the lawn. Further, the Applicant also testified that he experiences pain when doing simple tasks or engaging in normal bodily movements, such as bending or turning his head from side to side.

2. Consequently, an impairment rating of 10 points is appropriate.  Unfortunately, the Tribunal is unable to assign the Applicant 20 points as there is no evidence that would support a finding that he is unable to:

   (a)Perform any overhead activities; or

   (b)Turn his head, or bend his neck, without moving his 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.

3. The Applicant testified that he cooks for himself, albeit with reliance on fast food, and that he can stand for up to 15 minutes.  He hangs out the washing, but as he is a very tall man (6’8”), not much overhead exertion is required. Further he does his own shopping, and with the aid of a shopping trolley is able to move from the shopping centre to his motor vehicle, and then unload the merchandise purchased.

4. In these circumstances it is clear that the Applicant can perform some limited overhead activities, can bend forward to pick up objects and can remain seated for more than 10 minutes. Consequently I am unable to assign the Applicant 20 points under this Impairment Table.

   Lower Limb Dysfunction

5. Table 3 of the Impairment Tables deals with lower limb function.

6. The assessment of functional impairments in the context of the Impairment Tables is predicated upon the threshold principle that it is impermissible to engage in an exercise of double counting.

7. At AAT1 it was determined that there was no evidence to support the contention that the Applicant’s spinal conditions caused functional impacts under Table 3 that had not already been considered  under Table 4.

8. The Respondent contends, however, that the medical evidence also details neuropathic pain, referred pain, sciatica affecting the Applicant’s lower limbs and it is therefore appropriate to allow a separate assessment of those functional impacts under Table 3 (SSFIC paras 6.14-6.15).

9. The Tribunal agrees that a separate assessment under Table 3 is open and appropriate based on the evidence presented.

10. The critical issue is whether the Applicant can be assigned 5 or 10 points under this Table. Both the Job Capacity Assessor who prepared the report of 2 June 2015 (Exhibit 1 T18 p.182) and the ARO (p.196) recommended the assigning of 10 points.

11. The Respondent, however, contends (SSFIC para 6.15) that only five points can be assigned. The Respondent contends (para 6.16) that both the Job Capacity Assessor and the ARO based their decisions the fact that the Applicant requires a walking stick at all times. However, it is contended, that the term “assistance” within the Tables means assistance from another person as opposed to aids and equipment.

12. Dealing first with the contention that both the Job Capacity Assessor and ARO based their decisions on the fact the Applicant requires the use of a walking stick at all times, the ARO specifically found that the Applicant is “unable to use stairs or steps without assistance from a third party”. (Exhibit 1 T21 p.196) Consequently it is incorrect to suggest that the ARO’s decision to assign 10 points was based purely on the fact that the Applicant used a walking stick most or all of the time, and there was a specific finding that third party assistance is required for the Applicant to use stairs or steps.

13. Paragraph (1) of the moderate functional impact table mandates that at least one of three enumerated examples apply. Subparagraph (b) is that a person is unable to use stairs or steps “without assistance”. This requirement cannot be read in isolation. Rule 9 of the Impairment Tables Determination provides as follows:

    “A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.”

14. In short, when assessing the degree of functional impairment the starting point when a person is using aids, equipment or assistive technology is that further assistance is required. Insofar as Rule 9 is predicated on a person using mechanical or non-personal assistance, the only sensible way of interpreting the term “assistance” in the Tables in such circumstances, is assistance by another person.

15. This interpretation has been adopted in many Tribunal determinations. The Respondent drew the Tribunal’s attention to Summers and Secretary, Department of Social Security [2014] AATA 165 where Member Bell authoritatively adopted this approach. Since that time this approach has been consistently adopted by Tribunal Members, the most recent example being Nelson and Secretary, Department of Social Security [2016] AATA 721.

16. Dr Rogers, who was the Applicant’s doctor for more than 15 years, noted that he could walk for 15 minutes with the aid of a walking stick, could stand for 5 – 10 minutes and could sit for 10 -15 minutes without moving for posture change.  (Exhibit 1 T14 p. 115)

17. Consequently the Applicant cannot satisfy paragraph 1(a) or (c) of the descriptors for a 10 point rating. The sole issue is whether he requires assistance from a third party to climb stairs. The Respondent correctly contends that there is nothing in any of the various medical reports or in the Applicant’s self-reporting that suggests he requires third party assistance to climb stairs. The only support for this proposition comes in the ARO report in which there is no reference to how that view was reached.

18. Both the written and oral evidence strongly suggests that the Applicant has significant mobility problems.  Further, it would appear that the Applicant’s condition is slowly, but inexorably, deteriorating. He is a very tall man, and as time progresses his lower limb ailments are getting worse and negatively impacting on almost every aspect of his daily life.

19. It is unfortunate that the task required of the Tribunal is a very narrow one. Determining a person’s qualification for the DSP at this stage of the process is, in reality, a mechanical one. The regulatory regime governing this area of social security law is narrow, rigid and strict. The discretion vested in the Tribunal is almost non-existent. While this regulatory regime has the great virtue of being transparent, easy to understand and apply, it also has elements of harshness in its application to some people. Nonetheless, as Ms Brereton submitted, strict compliance with the requirements in the Impairment Tables is mandated and must be applied by the Tribunal.

20. The preponderance of evidence supports the contention of the Respondent that the Applicant satisfies descriptors 1(a) and (c) and 2 (a) and (b) for a five point rating under Table 3.

    Other conditions

21. The Tribunal also agrees with the Respondent’s contentions (SSFIC paras 6.19 – 6.20) that neither the Applicant’s musculo-skeletal disorder nor his neck disorder can be assigned points under the Impairment Tables.

    Continuing inability to work

22. As the Applicant can only be awarded 15 points in total under Tables 3 and 4, it is unnecessary to consider whether he has a continuing inability to work under s 94(1)(c) of the Act.

23. If, however, the Applicant had been awarded 20 points, the Tribunal would have accepted the contentions of the Respondent (SSFIC paras 6.21-6.45) that on the available evidence he has not satisfied the cumulative requirements of s 94(1) of the Act.

    Conclusion

24. The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

..........................[Sgd]..............................................

Associate

Dated: 31 March 2017

Date of hearing:	3 February 2017
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz