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

Dickson and Secretary, Department of Social Services (Social services second review) [2022] AATA 3345 (13 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/2307
Re:George Dickson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member K Millar
Date:13 October 2022
Place:Adelaide

The decision under review is affirmed.
.............[sgnd].................................
Senior Member K Millar
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review is affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member K Millar
13 October 2022
BACKGROUND

Mr Dickson applied for Disability Support Pension 30 October 2021 on the basis that he has Schueumanns Disease, which he describes as a “curved spine that continually degrades”.
The requirements to qualify for a disability support pension include that the person’s impairment or impairments attract 20 points or more under the Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”).
Mr Dickson’s application was refused, and this decision was affirmed at internal review by an authorised review officer (“ARO”), on the basis that Mr Dickson’s impairment did not attract 20 points or more when assessed using the Impairment Tables.
The decision to refuse his application was affirmed by the Social Services and Child Support Division (“AAT1”), which found that Mr Dickson’s condition was not fully treated because he was yet to see a pain specialist. As it is a requirement that the condition is fully treated before impairment points can be assigned, AAT1 found his condition did not attract any impairment points.
Mr Dickinson has applied for a further review of this decision.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
Under s 94(1) of the Act, to qualify for a Disability Support Pension a person must have a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the impairment tables and the person must have a continuing inability to work.
The Tribunal must look to Mr Dickson’s circumstances as they were at the time of the claim and the period of 13 weeks after the claim was lodged.[1] In this case, this is the period 30 October 2021 to 29 January 2022 (“the claim period”). Information after this period is only relevant if logically probative of the facts as they were during this period.
[1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Does Mr Dickson have a physical, intellectual or psychiatric impairment?
The Tribunal finds Mr Dickson suffers a physical impairment of his back and meets s 94(1)(a) of the Act.
Does Mr Dickson have an impairment of 20 points or more under the impairment tables?
The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]
[2] Clause 6(3) of the Impairment Tables.
To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]
[3] Clause 6(4) of the Impairment Tables.
In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[4]
[4] Clause 6(5) of the Impairment Tables.
The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7]
Which of Mr Dickson’s conditions were fully diagnosed, fully treated and fully stabilised and likely to persist for two years in the assessment period?
[5] Clause 6(6)(a) of the Impairment Tables.
[6] Clause 6(7)(c) of the Impairment Tables.
[7] Clause 6(7)(e) of the Impairment Tables.
In his claim form, Mr Dickson states he is unable to work due to Scheuermann Disease. He states he is not receiving any treatment as there is no treatment for this condition. He provided three reports from rheumatologist Dr Wechalekar which confirms a diagnosis of Scheuermann Disease. The last report of Dr Wechalekar dated 3 November 2020 states that the changes on Mr Dickson’s imaging are more likely to reflect Scheuermann Disease than a crush fracture.
A later CT of the thoracic spine, which was not available for Dr Wechalekar’s report is dated 21 November 2020. This report states “assess crush fractures versus Scheuermann’s Disease” and reports “multiple wedge fractures of the mid to lower thoracic vertebral bodies.” The report states “Longstanding Scheuermann’s Disease is favoured”. On the basis of this report and the previous reports of Dr Wechalekar, the Tribunal finds the diagnosis is of Scheuermann’s disease rather than crush fractures.
Mr Dickson’s general practitioner reports in medical certificates dated 29 November 2021 and 2 December 2021 that he has Scheuermann Disease with crush fractures T5 -9.
The letter from Mr Dickson’s GP dated 20 December 2021 states that CT scans are suggestive of anterior wedging of the bodies of T5 – T9.
The Tribunal finds that the diagnosis by the specialist and on imaging is of Scheuermann’s Disease, and that his condition is fully diagnosed. This condition is permanent and will persist for more than two years.
Is it fully treated and stabilised?
To be fully diagnosed and treated, it must be considered whether there is corroborating evidence of the condition, what testament and rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.
On 3 December 2015, a chiropractic report states Mr Dickson has been to the practice on two occasions and has chronic, long-term back problems since he was a child. It is reported that multiple spinal areas were dysfunctional and treated with chiropractic, and that Mr Dickson appeared to respond well.
On 2 August 2019, the rheumatologist recommends physiotherapy for Mr Dickson’s back pain and regular exercises at home mainly for the spine. It is reported that if these have no benefit, the rheumatologist would like to refer Mr Dickson to the Pain Unit “down the track”.
On 17 March 2020, the rheumatologist notes Mr Dickson’s pain had remained unchanged, and that he is not on any pain relief. Further testing was conducted to examine the reason for significant bone loss. It was recommended he take up a regular exercise program such as yoga or Pilates, and further rests were requested.
On 3 November 2020, the rheumatologist reports his pain remains generally unchanged and that he “manages quite well without the need for regular pain relief of any kind apart from very occasional paracetamol.” A further scan was conducted, and it was stated that depending on the results of the scan, the rheumatologist will consider referring him to the Metabolic Bone Clinic for Assessment.
A medical certificate dated 26 July 2021 from Mr Dickson’s general practitioner Dr Durrani states Mr Dickson is waiting to be seen at the Metabolic Bone Clinic. Medical certificates from Dr Durrani dated 29 November 2021 and 2 December 2021 state that his past treatment is analgesia, physiotherapy, chiropractic and rheumatologist input. The planned future treatment is analgesia when necessary.
A letter dated 20 December 2021 from Dr Durrani states Mr Dickson has seen endocrinologist Dr Stranks, however a report has not been provided. Dr Durrani reports Mr Dickson has seen physiotherapists and chiropractors in the past.
Mr Dickson could not recall seeing Dr Stranks, although did say he saw an endocrinologist and further tests were conducted. He said there were no significant outcomes from this consultation other than he needs to take Vitamin D.
Mr Dickson said he had consulted a physiotherapist, but this did not give him a medical outcome as it was focussed on talking about his condition, and with his limited resources, he chose chiropractic treatment.
In describing his condition, Mr Dickson said that pain is not a part of his claim, and an argument that he did not consult the pain clinic is irrelevant. He states his claim is that he cannot perform certain actions such as reaching, twisting or turning.
In describing the effect of his condition, he said he needs to keep his elbows near his chest as if he reaches, twist or turns it causes back spasm resulting in severe pain and which in turn causes spasm in his stomach. He said this occurs when there is an event that has an impact on his spine, so he limits what he does to prevent that occurring.
Mr Dickson could not answer whether he is unable, because of his condition, to lift his arms or if he avoided doing so because it would cause back spasm. He responded, “it is possible for me to put my hand in a burning fire”.
This is relevant as while he states loss of movement is the functional impact of his condition, his evidence is that the pain that results from back spasm is the reason he restricts his movement. It follows that pain and back spasm is the reason for the restrictions on his movement. He has not seen a pain specialist as recommended by his rheumatologist “down the track”, but this has not been listed as part of his future treatment by his general practitioner.
The Secretary did not dispute his condition was fully treated. While the Tribunal has some reservations about whether the condition is fully treated, in the absence of a recommendation from Dr Durrani that a pain specialist should be consulted and as the Secretary did not dispute his condition is fully treated, the Tribunal has assumed in Mr Dickson’s favour it is fully diagnosed, treated and stabilised.
Impairment points
Mr Dickson states he has constant feeling of being gouged in the back with a knuckle but reiterated that pain is not a part of his claim. He said he cannot do certain actions, for example reaching forward to pick up a coffee cup as he needs to keep his elbows near his chest as otherwise he experiences back spasm. He can pick up a pen if he moves closer so that he is not reaching and said the weight of the object is not the issue, but he cannot twist or reach. He said he cannot put his arms up and cannot carry an object in one hand and not the other hand. He said is unable to turn or reach to pick up normal weights.
Mr Dickson said he has groceries delivered and puts them away by taking a small number of items at a time and uses lifting techniques so that he does not stretch or bend. He can put a container in the microwave for his meals and either rinses dishes immediately or uses a dishwasher for any dishes. In using the dishwasher, he said he can bend if he does not stretch, reach or twist. He can wash his hair if he lowers his head in the shower. He has difficulty putting on his shoes as this requires him to twist and stretch past his knee to reach his foot.
Mr Dickson said he looks for a chair that has padding and arms to assist him to get up from the chair. He spends his day doing exercise, walking for two hours twice a week, recuperating from walking, and sitting in a reclining chair reading, looking at news or playing video games.
Mr Dickson said he lives in several places and is technically homeless. He can travel between the places in which he lives, including interstate, by sitting in a vehicle if he makes accommodations such as having a back cushion, neck cushion and reclining the seat. Mr Dickson says this is like being in bed. With these accommodations, there is an unlimited time he can travel. He has relinquished his driver’s license. He said he would not like to travel into the city by bus as this takes an hour and would cause pain. He said if he takes pain medication, he can get past the pain but the pain resurfaces the next day.
The introduction to Table 4 states there must be corroborating evidence of the person’s impairment and states examples of corroborating evidence include:
·     A report from the person’s treating doctor;
·     A report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine)
·     A report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
The most recent report of Mr Dickson’s GP dated 20 December 2021 is that:
He unfortunately struggles with lower thoracic and upper lumbar region pain and significantly restricted movements. …
He seems to have significant function impact on activities involving spinal function. He struggles to sustain overhead activities as it triggers upper backache and upper back spasms. I do note he has restricted movements of his trunk. I gather that it is extremely hard for him to sit in the chair for around 10 minutes if he doesn’t have a properly supportive chair. He is extremely restricted when he tried to turn his trunk as it causes stiffness and pain in the lower thoracic and upper lumbar region.
The Tribunal finds this report corroborates Mr Dickson’s difficulty and restriction in turning his trunk, and difficulty sustaining overhead activities.
However, it is a record of Mr Dickson telling his GP that that it is difficult for him to sit in a chair for 10 minutes and is not corroborative of this difficulty.
Other direct reports of the effect of Mr Dickson’s spinal impairment are contained in the rheumatology report of 2 August 2019, which notes that his cervical spine movements were very mildly limited at about 70 degrees of lateral rotation. Mild paraspinal muscle spasm was observed in the lower thoracic/upper lumbar spine together with mild limitations on lumbosacral spine movements.
Mr Dickson relies on a job capacity assessment of 2 August 2016, in which he states following a medical examination, he was assessed as meeting the descriptors for 20 impairment points. He states the assessment was that he had lowed capacity to twist his trunk or reach overhead, either of which is sufficient to give him 20 impairment points.
The records provided to the Tribunal include a job capacity assessment conducted 23 August 2016 conducted by a rehabilitation counsellor by telephone. There is no record of an in-person assessment, although the assessor states Mr Dickson requested an in-person assessment which was refused. This job capacity assessment does not refer to impairment points.
A job capacity assessment performed dated 7 May 2021 records Mr Dickson reports he uses simple medication only when needed and engages in regular home walking and exercise. He stated rotation and bending backward were most painful, and he suffers back pain most of the time. He reported being independent with selfcare, dressing and able to sit for up to one hour and bend forward to ground level using his knees. Mr Dickson stated that when he stands, he needs to stretch every 5 minutes. He can walk for a few hours but needs rest breaks every 15 – 20 minutes. He can lift items as long as he does not twist the wrong way. He reported struggling to undertake actions which involve twisting or turning his trunk such as vacuuming and reaching overhead such as hanging out clothes. He reported being fearful of hurting himself and avoids activities in case he injures himself. The assessor recommended an impaired rating of 5 points.
The Tribunal finds Mr Dickson has difficulty with overhead activities as it triggers backache and upper back spasms. He has restricted movements in his trunk and in twisting, but can bend. He has mild restriction of his cervical spine. He is able, with adjustments, to travel an unlimited time in a car.
Looking to the impairment points to be assigned, Table 4 of the Impairment Tables provides the assessment for spinal function.
An impairment rating of 5 impairment point result in the person having some difficulty in:
(a)Activities over had height (e.g. activities that require 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).
An impairment rating of 10 points requires that the person can sit in or drive a car for at least 30 minutes. Mr Dickson states he can travel in a car for an unlimited period with adjustments. His reported restrictions are difficulty with overhead activities, restricted movement in his trunk and mild restriction of his cervical spine. The Tribunal does not accept he is unable to sit in or drive a car for at least 30 minutes, which is a requirement for 10 impairment points. It is not satisfied he meets the requirements for 20 impairment points.
The Tribunal has found Mr Dickson has difficulty with overhead activities, restricted movement in his trunk and in twisting and mild restriction of his cervical spine. This results in an impairment rating of 5 impairment points.
As he does not have an impairment rating of 20 points or more when assessed using the Impairment Tables, he does not meet the requirements in s 94(1)(b) of the Act and does not meet the requirements to qualify for a disability support pension.

CONCLUSION

As Mr Dickson’s impairment is not of 20 points or more under the Impairment Tables, he does not meet s 94(1)(b) of the Act and does not meet the requirements to qualify for a Disability Support pension.
DECISION
The decision under review is affirmed.
…………[sgnd]……………
Legal Associate
Dated: 13 October 2022

Date of hearing:
26 September 2022

Applicant: Self-Represented

Advocate for the Respondent: Ms Jade Rapson, Services Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Date of hearing:	26 September 2022
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Jade Rapson, Services Australia