Diane Zemek and Secretary, Department of Social Services
[2014] AATA 801
•29 October 2014
[2014] AATA 801
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2190
Re
Diane Zemek
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 29 October 2014 Place Brisbane The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP –
20 points or more under the Impairment Tables – Decision affirmed.LEGISLATION
Social Security Act 1991 (Cth), ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011REASONS FOR DECISION
Dr M Denovan, Member
29 October 2014
INTRODUCTION
Miss Diane Zemek is the applicant in these proceedings. She has applied for review of a decision of the respondent in which her application for disability support pension (“DSP”) was rejected. She has been diagnosed with “chronic soft tissue muscular ligamentous injury to the lumbar and cervical spine” by neurologist Dr Scott Campbell. Her general practitioner, Dr Stark, has indicated she also suffers from shoulder problems and mental health problems.
She notified Centrelink of her intention to claim for DSP on 31 October 2013, and lodged a claim on 1 November 2013. Her claim was rejected on 26 November 2013.
On 5 March 2014 an Authorised Review Officer (“ARO”) affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 9 April 2014.
The application for review of the decision by the Administrative Appeals Tribunal was lodged on 28 April 2014.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:
·have a physical, intellectual or psychiatric impairment; and
·have an impairment of 20 points or more under the Impairment Tables;[1] and
·have a continuing inability to work.
[1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth)
(“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”).
When an applicant informs Centrelink of an intention to claim DSP, and lodges the claim within 14 days of that notification, that person is deemed to have lodged their application on the date of contact, and provided they meet all qualification criteria, benefit will be paid from that date.[2]
[2] Social Security (Administration) Act 1999 (Cth), s 13.
In this case the relevant period is from 31 October 2013 to 1 February 2014.
There are rules for applying the Impairment Tables, contained in those
Impairment Tables, in deciding if a person qualifies for DSP. The Impairment Tables are functional based, not based on the diagnosis. Ratings are assigned to reflect the level of functional impact from impairment of conditions that have been accepted to be permanent, and fully diagnosed, fully treated and fully stabilised.
A person’s functional capacity rated under the Impairment Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Impairment Tables.
A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:
·they have an inability to work for 15 hours or more a week due to their accepted impairments; and
·they have actively participated in a program of support. This second requirement is not necessary if a person has a severe impairment of 20 impairments or more under a single Impairment Table.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[3] it is necessary to determine whether Miss Zemek’s conditions can be regarded as being permanent and the impairment resulting from those conditions is likely to persist for more than two years.[4] A condition will be considered permanent where it has been fully diagnosed, fully treated and fully stabilised.[5]
[3] The Determination was made by the Minister pursuant to s 26(1) of the Act.
[4] Subsection 6(3) of the Determination.
[5] Subsection 6(4) of the Determination.
Mr Warren, for the respondent, accepts that Miss Zemek suffers from the following conditions, and therefore satisfies ss 94(1)(a) of the Act:
·Persistent spinal dysfunction with neuropathic features (the spinal pain condition); and
·Posttraumatic stress disorder (“PTSD”), adjustment disorder with depressed mood (collectively referred to as the ‘mental health conditions’).
Mr Warren contends Miss Zemek’s conditions cannot be assigned a rating from the Impairment Tables, because none have been fully diagnosed, fully treated and fully stabilised; she therefore does not qualify for DSP as ss 94(1)(b) and (c) are not satisfied.
The issues that I must determine are:
·Which, if any of Miss Zemek’s conditions can be allocated an impairment rating; and
·If any can be rated, whether she has 20 impairment points or more; and if so
·Whether she has a continuing inability to work.
CONSIDERATION
Does Miss Zemek have any conditions that can be allocated a rating from the Impairment Tables?
Miss Zemek gave evidence by telephone at the hearing. The information provided in this decision pertaining to her account of her medical conditions is that which she gave in oral evidence, unless otherwise specified. She was in a room at Dr Stark’s surgery (her local general practitioner) during the hearing. Dr Stark also gave evidence at the hearing by telephone.
The spinal pain condition
Miss Zemek said that her medical problems began after she was involved in a motor vehicle accident (“MVA”) on 21 December 2011. She has chronic pain from the moment she wakes, and she has trouble sleeping. The pain travels from her lower back up her neck and shoulders, and it is present all day. She uses an electric heat pad, and takes Tramal SR (slow release), as well as Tramal for breakthrough pain. She can drive herself to the doctor’s surgery however she prefers her son, or daughter-in-law to drive her, she does not like driving, because she has PTSD[6] secondary to the MVA.
[6] As per Dr Matthew’s report, at Exhibit 1, T23, folio 189, in which it is stated that the psychiatric diagnose include “Posttraumatic Stress Disorder, chronic (in partial remission)”.
Her back pain also restricts her capacity to drive. She can drive for 30 minutes only if she regularly pulls over. She can travel as a passenger, but she needs to adjust the seat and put it in a laying position. Whilst at home she does some light housework, and spends time on the laptop computer, or on her phone playing games, and watching some television. She can make herself a cup of coffee; her son lifts the milk and the kettle for her. She performs exercises by using the treadmill several times a day; she estimates the total time she spends on the treadmill is about 30 minutes in total a day. She helps with the preparation of dinner, however she has difficulty lifting and cannot stand for long, so what she can do is very limited. Her son assists her with her showering. She usually showers at night.
She has reduced sitting tolerance in a chair, and she does not recall sitting for 42 minutes whilst she attended the Job Capacity Assessment (“JCA”). She agrees she could bend over to pick up a piece of paper, and she can hang light objects up on a clothesline which has been specially lowered to assist her.
In response to questions from the Tribunal, Miss Zemek agreed she had continued to work for some time after the MVA. She said she was employed to perform a number of duties, which included answering phones, and performing light cleaning. She was able to continue working because she had a sympathetic boss. She gave up work because she did not think it was fair on her boss or other staff as she felt she was not pulling her weight, although no one ever said anything to her in relation to her performance at work.
Miss Zemek insisted her pain has been the same since the date of the MVA. It has not progressed; it has not worsened or improved. The fact that she gave up work was not because her pain worsened, rather it was because she needed the money and could not afford to give up work earlier. She was coming home crying every day due to pain, and eventually had to resign for her employment.
Dr Stark prepared a medical report dated 30 October 2013 in support of Miss Zemek’s application for DSP. Dr Starke provided a diagnosis of “chronic musculoskeletal and ligament tearing full length of spine”, which is the diagnosis offered by neurologist
Dr Campbell in his report dated 9 May 2013. In his hand written letter in response to questions asked by respondent dated 2 July 2014,[7] Dr Stark stated the condition would persist for more than two years with no prospect of improvement and the effect on
Miss Zemek’s ability to function are uncertain. He stated in oral evidence she couldn’t sit, stand, bend, lift or walk for prolonged periods of time.
[7] Exhibit 6.
In his oral evidence, Dr Stark said that Miss Zemek was ‘a lot worse’ when he first saw her, he attributed her improvement to the treatment he had provided. He has taught her exercises, and prescribed Tramal. He does not support the use of Lyrica or other medications routinely recommended by pain specialists.
Dr Stark said Miss Zemek has trouble doing anything that requires her to bend forward. He said having a shower, and bending over to tie shoelaces is difficult for her. He has been teaching her how to use her knees to bend. She can get out of firm chairs without assistance but needs help getting out of soft lounge type chairs. She displaces discomfort when required to sit for prolonged periods, and has to move about. Dr Stark stated that Miss Zemek was moving around on the chair during the hearing, displaying signs of discomfort.
Dr Campbell stated in his report that all reasonable treatment options had been completed,[8] Miss Zemek’s condition is unlikely to recover further, and that her current restrictions will persist indefinitely. He stated Miss Zemek had restricted movement of her lumbar and cervical spine. He opined it would be reasonable for Miss Zemek to work five to 10 hours a week, performing light duties.
[8] Exhibit 1, T12, folio 107.
Although the SSAT found the condition was permanent and had been fully diagnosed, and fully treated and fully stabilised, Mr Warren contends this is not the case. The basis of his content was twofold. Firstly, both Dr Masters and Dr Stark opined that with the treatment of the applicant’s mental health problems, there is likely to be an improvement in her capacity to function with respect to her spinal condition. Dr Stark explained that studies on the subject show that pain is worse when a person is depressed, and improves with treatment and subsequent improvement of the depression.
The second ground for Mr Warren’s contention is that Dr Masters recommended treatment options that have yet to be tried by the applicant. Dr Masters provided a report dated 13 February 2014, in which he recommended the applicant commence a trial of neuropathic pain medications and attend a pain management clinic. Dr Stark, in his oral evidence, confirmed that the treatments recommended by Dr Masters had not been undertaken to date.
Pursuant to the introduction to the Determination, a condition is considered fully stabilised if 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.[9]
[9] Sub-section 6(6) of the Determination.
It is not expected that all possible types of treatment must be attempted before a person can be said to have undertaken reasonable treatment. Reasonable treatment among other things is that which can reliably be expected to result in a substantial improvement in functional capacity and has a high success rate; is available at a reasonable cost and at a location accessible to the person.[10]
[10] Sub-section 6(7) of the Determination.
Dr Stark gave oral evidence to the effect that he has only had negative experiences with the use of the medications Dr Masters recommended. He also said he did not consider there was any benefit in sending Miss Zemek to a pain management clinic as in his experience most patients who attend such clinics end up addicted to opioid medication. Dr Stark’s view’s are inconsistent with Dr Master’s who is a specialist and presumably has more experience and expertise. It is difficult however, to hold Miss Zemek accountable for not trying the therapeutic recommendations of Dr Masters, as she is currently reliant on Dr Stark for his assessment of what is appropriate treatment for her spine condition. Had it been Miss Zemek who was refusing to follow the treatment suggestions offered by Dr Masters, I would conclude that her spinal condition was not fully treated. Although it is possible Miss Zemek may experience some improvement in her spinal condition when her mental health conditions are treated, there is no evidence as to when that is likely to be. Under the circumstances, I consider whilst Miss Zemek continues to consult Dr Stark it is appropriate to regard her spinal condition as fully treated. That finding is consistent with the opinion of Dr Campbell.
Mr Warren contends that 10 points from Table 4 of the impairment tables is appropriate should I find the condition to be fully diagnosed, fully treated and fully stabilised.
Table 4 is used to assess the functional impairment that results from the effects of conditions on the spine. The criteria for zero to 30 points read as follows:
Table 4 – Spinal
…
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or 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 over head 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).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their 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.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
The ARO, SSAT and Health Professional Advisory Unit (“HPAU”) doctor, Dr Minogue, all agreed the applicant suffered from moderate functional impairment related to activities involving spinal function.
When allocating points from the Impairment Tables, the functional impact that is to be considered is that which affects the applicant’s capacity to function at work. The applicant continued to work for some months after the MVA, albeit she describes with difficulty. I also note Dr Campbell considered it reasonable that the applicant was capable of continuing to work, five to 10 hours a week, performing light duties.
The evidence of what the applicant is capable of doing provided by Dr Stark is in many ways inconsistent with that given by Dr Masters and Dr Campbell; and by the JCA assessor. I conclude Dr Stark has been influenced by his commitment to assist the applicant in his role as her treating general practitioner, and has not been as objective as the other practitioners.
On 15 May 2013 the applicant was reported to say she was independent of self-care, able to raise her arms above shoulder height and could bend to above knee level. Dr Campbell made no mention of the applicant having difficulties with self-care of getting out of a chair, and considered her capable of performing light duties.
As time has progressed, it appears the description of her impairment given by the applicant to various health professionals has changed; she has reported greater impairment each time she has been assessed. Miss Zemek claims her condition has not worsened since the date of the MVA.[11] I conclude the worsening in the symptoms she reports is related to her progressive understanding of the legislative requirements for DSP.
[11] In Miss Zemek’s oral evidence at the hearing, and the SSAT reported her making the same claim at that hearing.
The evidence of Dr Stark has also changed. Dr Stark’s earlier evidence is consistent with that of Dr Campbell and Dr Masters, and the JCA. However, as time has progressed,
Dr Stark’s description of the applicant’s impairment has worsened. Due to the inconsistencies in the evidence of Dr Stark I prefer the evidence of Dr Campbell and
Dr Masters, and the JCA.
Miss Zemek has driven her son to school prior to his obtaining provisional plates. She drove herself to the doctor’s surgery on the day of the hearing. I accept that she told the SSAT she could drive for 30 minutes. She drove herself to and from work for an extended period of time after the MVA, until she resigned. She is capable of getting out of firm chairs and her car seat unaided. She said she can get in and out of her computer chair at home without assistance. Her own evidence at the hearing was that she can bend to lift a piece of paper off the floor, and Dr Stark reported he was teaching the applicant to bend at the knees. Dr Campbell did indicate the applicant has some reduction in the movement of her cervical and lumbar spine, and I accept she may have difficulty moving her head to look in all directions. I therefore consider that 10 impairment points is the correct rating, as Miss Zemek satisfies the descriptive requirements for a moderate functional impairment on activities involving spinal function. I consider this to be a generous assessment. In relation to 20 impairment points, which would be a finding of severe functional impact, there is absolutely no medical evidence to support a finding that Miss Zemek cannot do any of the activities listed applicable to that rating.
PTSD/adjustment disorder with depressed mood
Psychiatrist Dr Matthews, in his report dated 4 February 2014, opined the applicant suffered from “PTSD, chronic (in partial remission), and adjustment disorder with depressed mood, chronic”. Dr Matthews recommended that the applicant commence a trial of antidepressant medication and undertake further review by a psychiatrist. The applicant’s treating psychologist, Mr Fraser opined her mental health condition would significantly improve within the next two years with ongoing support and education.
The prognosis of the applicant’s mental health problems appears promising, and on the basis of the evidence before me, I find it is not fully treated or fully stabilised during the relevant period, and cannot be allocated a rating from the Impairment Tables.
Shoulder problems/rotator cuff injury
Miss Zemek said she has suffered from shoulder pain, in both shoulders, since the time of the MVA. The pain affects her capacity to lift. She cannot lift anything heavy. She gets her son to lift the milk and the kettle for her. Miss Zemek reported using one kilogram weights in her hands when exercising.[12]
[12] Exhibit 1, T2, folio 6.
Neither Dr Campbell nor Dr Masters provided a diagnosis of rotator cuff syndrome.
Dr Minogue noted there is no medical image supporting Dr Stark’s diagnosis of rotator cuff syndrome.
Dr Stark gave oral evidence to the effect that no imaging has been performed on the applicant’s shoulders, that she has not undergone any of the treatments this Tribunal would regard as usual for rotator cuff syndrome, and has not been referred to an orthopaedic surgeon. Dr Stark justified his position by stating he has the capacity to make a diagnosis solely on his clinical findings, and he has not arranged for the condition to be treated, as the only treatment options available would treat the pain, not the underlying condition.
Dr Stark’s evidence about the applicant’s shoulder condition is inconsistent with the evidence from the specialist doctors who have examined the applicant.
I find the applicant’s shoulder condition has not been fully diagnosed, fully treated and fully stabilised. It is unknown as to whether any condition that may exist is permanent or temporary. It is not appropriate to allocate a rating from the Impairment Tables.
CONCLUSION
Although Miss Zemek currently reports to be experiencing significant pain that is affecting her life and, she claims, resulted in her resigning her previous job, she only has one condition that can be allocated a rating from the Impairment Tables. The total combined rating is therefore 10. As she does not have a combined impairment rating of 20 or more points, she does not satisfy s 94(1) of the Act. I therefore do need to not consider whether she had a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ..........................[Sgd]..............................................
Associate
Dated 29 October 2014
Date of hearing 19 September 2014 Applicant In person Advocate for the Respondent Nick Warren, Department of Human Services
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