Dixon and Secretary, Department of Social Services (Social services second review)
[2019] AATA 6893
•1 July 2019
Dixon and Secretary, Department of Social Services (Social services second review) [2019] AATA 6893 (1 July 2019)
Division:GENERAL DIVISION
File Number:2018/3101
Re:Paul Dixon
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:1 July 2019
Place:Sydney
The decision under review is affirmed.
............................[sgd]...........................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – eligibility for disability support pension – lower back damage and sciatica nerve damage – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – applicant unable to satisfy the qualification criteria under s 94 of Social Security Act 1991 – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S Evans, Member
1 July 2019
INTRODUCTION
The applicant, Mr Paul Dixon, lodged a claim for Disability Support Pension (DSP) on 9 December 2016 on the basis of lower back and sciatica nerve damage.
The request was rejected by the Department of Social Services (the Department) on 21 August 2017 on the grounds that Mr Dixon had not provided additional medical information that had been requested by the Department.
Mr Dixon subsequently provided additional medical information in order for his claim to be reassessed.
Over the following months a series of decisions, reviews and assessments were made concerning Mr Dixon and his application for DSP.
In March 2018, following a DSP medical assessment, the decision to reject Mr Dixon’s claim for DSP was affirmed on the grounds that his condition was not fully treated and stabilised.
Mr Dixon appealed the decision which was affirmed in May 2018 by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
On 6 June 2018 Mr Dixon applied to the General Division of the Administrative Appeals Tribunal (AAT) for review of the decision.
The application was heard by the Tribunal in Sydney on 27 May 2019. Mr Dixon attended the hearing and provided oral evidence in person; he did not have legal representation but was supported by a friend at the hearing.
For the reasons that follow, the decision under review is affirmed.
EVIDENCE ABOUT MR DIXON’S MEDICAL CONDITION:
Mr Dixon has provided the following reports about his medical conditions:
(a)A report from Primary Diagnostics dated 10/7/2007 detailing the Applicant’s spinal injury;
(b)A report from Sydney CT & MR dated 16/07/2007 confirming a perineural injection procedure on the Applicant’s spine;
(c)A report from Rayscan Imaging dated 11/10/2007 confirming lumbar spine surgery;
(d)A nursing discharge summary from the Hills Private Hospital dated 12/10/2007 detailing discharge management and medications;
(e)A report from Primary Diagnostics dated 19/03/2008 containing a report following a lumbar spine X-ray;
(f)A report from Sydney CT & MR dated 31/05/2008 detailing results of imaging taken of the Applicant’s lumbar spine;
(g)A report by Dr Noel Dan (Neurosurgeon) dated 04/06/2009 providing a detailed understanding of the Applicant’s injuries;
(h)A report from Rayscan Imaging dated 28/08/2009 following a lumbar spine injection procedure;
(i)A report from Castlereagh Imaging dated 13/01/2010 following an MRI on the Applicant’s pelvis and piriformis muscle;
(j)A medical report completed by Dr Tony Girgis (General Practitioner) dated 22/09/2014 detailing the Applicant’s diagnosis and treatment;
(k)A report from Dr Tony Girgis (General Practitioner) dated 26/12/2016 confirming the Applicant’s long term conditions persist;
(l)A report from Dr Tony Girgis (General Practitioner) dated 23/05/2017 detailing treatment and the Applicant’s symptoms;
(m)A report from Dr Tony Girgis (General Practitioner) dated 06/09/2017 detailing the Applicant’s symptoms and medication;
(n)A report from Castlereagh Imaging dated 22/01/2018 detailing the results of X-ray and MRI of the Applicant’s spine;
(o)A report from Dr Noel Dan (Neurosurgeon) dated 29/01/2018 detailing his treatment history and symptoms;
(p)A letter from Dr Tony Girgis (General Practitioner) dated 08/05/2018 confirming the Applicant’s condition and prognosis; and
(q)A medical report by Dr Noel Dan (Neurosurgeon) dated 14/09/2018 confirming his diagnosis and impairment.
Centrelink also provided a Health Professional Advisory Unit report dated 7/12/2018[1] and an addendum to that report dated 11/12/18.[2]
[1] Exhibit R2.
[2] Ibid.
ISSUES
The issues to be determined are:
(a)Does Mr Dixon have a physical, intellectual or psychiatric impairment?
(b)What impairment ratings do his conditions attract?
(c)If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
RELEVANT LEGISLATION
Qualification for Disability Support Pension:
To qualify for DSP, Mr Dixon must satisfy the criteria in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act), which requires him to show he has a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (the Impairment Tables); and a continuing inability to work as defined in the Act.
For Mr Dixon to qualify for DSP, he had to satisfy these criteria on 9 December 2016 when he applied for the DSP, or within the following 13 weeks; that is, by 10 March 2017 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the qualification period).
Rules for assigning impairment ratings:
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).
The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.
An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4) of the Act.
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Act.
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Act.
CONSIDERATION
Issue – Does Mr Dixon have a physical, intellectual or psychiatric impairment?
The Secretary has conceded, and on the basis of the evidence before me the Tribunal agrees, that Mr Dixon has a medical condition that causes impairment, and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.
Issue – What impairment rating does Mr Dixon’s condition attract?
As mentioned above, the Secretary accepts that Mr Dixon’s spinal disorder was fully diagnosed, treated and stabilised during the qualification period and attracts an impairment rating of 10 points.
Mr Dixon was injured in July 2007 in a workplace accident.
As a consequence of the accident, Mr Dixon has suffered a long-term spinal disorder.
Mr Dixon was treated for his injuries by neurosurgeon Dr Noel Dan who in 2007 performed surgery on a ‘large right lumbosacral disc protrusion which had extruded and was significantly compressing the sciatic nerve roots’.
Dr Dan assessed Mr Dixon in January 2018 and reported in a letter to Centrelink on 29 January 2018:
Mr Dixon continues to experience significant low back pain radiating to the right buttock and when it is particularly troublesome it may spread across the whole back. It then radiates down the right lower limb to the heel and is associated with numbness in the toes and spasm in the right calf. It has been static for the last decade.[3]
[3] Exhibit R1, p.178.
He concluded:
Mr Dixon continues to have significant disability and would be unfit for his former duties as a driver/storeman or any activities that involved lifting, bending or carrying or maintenance of a fixed posture for more than very brief periods of time. Because of issues with sitting he is unable to undertake activities which would include driving.[4]
[4] Ibid p.179.
Whilst Dr Dan’s examination and report was written and based on testing (including X-Ray and MRI) performed after the relevant period, he has a long history of treating Mr Dixon who first came into his care in 2007.
The Tribunal notes that Mr Dixon ceased consulting Dr Dan between 2011 and January 2018, and there was no treatment undertaken for his medical impairment between 2011 and 2016.
On 14 September 2018, Dr Dan wrote to the Administrative Appeals Tribunal stating that in reference to Impairment Table 4 (Spinal Function):
(Mr Dixon) clearly meets the requirements of the 20% (sic) impairment but also meets some of the impairments under 30% (sic) (b) because he has issues with domestic chores such as hanging out clothes with his arms raised which causes pain the lumbar region. He also has issues raising his leg and he has issues driving for more than a short time.[5]
[5] Exhibit A1.
Whilst Dr Dan’s willingness to assist the Tribunal by seeking to interpret the DSP impairment tables and apply them to his patient is appreciated, it is the Tribunal’s role to consider all the evidence before it and assign the appropriate impairment rating.
The relevant impairment table in the Act, Table 4 Spinal Function specifies:
For the allocation of 20 points:
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.
For the allocation of 30 points:
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).
Dr Dan’s assignment of percentages to Mr Dixon’s impairments, where the Act requires the allocation of points based on specific criteria, may be a simple mistake in terminology or a reference to previous impairment measures. Either way it does provide further cause to consider his evidence carefully as it relates to the functional impact of Mr Dixon’s condition.
The Health Professional Advisory Unit (HPAU) report and Addendum, compiled by Dr Chris for the Department of Human Services in December 2018, are informative in this regard, particularly as the report’s author, Dr Chris, spoke to Dr Dan in the course of the review.
The HPAU report notes that there was a discrepancy between Dr Dan’s suggested impairment rating and Mr Dixon’s own description of his functional capacity:
In my opinion Dr Dan’s suggestion, that an impairment rating of 30“%” (points) for descriptor (1)(b) may apply in this case, was clearly not in accord with Mr Dixon’s own description of his capacity for activities of daily living as reported to the authorised review officer (T26 as noted above). I also consider that a 20-point rating is not applicable; my rationale is as detailed below.[6]
[6] Exhibit R2, p. 6.
The report continues:
The specialist suggested that descriptor (a) for 20 points under Table 4 – Spinal Function (inability to perform any overhead activities) may possibly apply in his patient’s case, although on the basis of other information including the applicant’s self-report I do not believe this can be accepted, as discussed further below. He agreed that descriptor (b) for 20 points does not apply in this case, and that his patient is able to pick up a light object from a desk or table (descriptor (c)), although he could not do this from the floor and would find doing so from knee level too difficult (consistent with the 10-point descriptor (c). In regard to descriptor (d) for 20 points, a sitting tolerance of less than 10 minutes, Dr Dan agreed that this would be questionable considering the travel distance from the patient’s residence in the northern area of the Central Coast; apparently he was driven to the appointments as a passenger. Mr Dixon informed him that he can drive for a short distance.
In view of Mr Dixon’s confirmed radiculopathies, Table 3 – Lower Limb Function descriptors were also discussed with Dr Dan. Although all descriptors (1) (a), (b) and (c) for 5 points probably apply, Dr Dan considers that his patient could stand for 10 minutes [(2)(a)] and that it is unlikely he would need a walking stick, noting that he presented to the appointment(s) this year without one.[7]
[7] Ibid pp. 6-7.
At the Tribunal hearing Mr Dixon testified that he can dress himself, do his own shopping, check the mail, pick up objects from a desk, wash dishes, prepare basic meals for himself and do some gardening tasks (including mowing his lawn).
Mr Dixon testified that whilst he could perform these tasks, they caused significant discomfort, made him anxious and needed to be limited in scope and duration. Mr Dixon also noted that many of these tasks were able to be performed at the time but caused him pain and discomfort for some time after. He also said that he relies on the assistance of friends who visit to help him out with many household tasks.
Mr Dixon also gave evidence that he does not take public transport because the ‘rocking’ of buses and trains can cause discomfort and pain, so he prefers to drive, even though sitting for long periods does cause him pain and discomfort.
It is the Tribunal’s view that the evidence strongly points to Mr Dixon’s condition having a ‘moderate functional impact on activities involving spinal function’ according to Impairment Table 4, which would attract a rating of 10 points.
Impairment Table 4 (Spinal Function) specifies for the allocation of 10 points:
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).
Based on the medical evidence, reports and Mr Dixon’s testimony before the Tribunal, I am satisfied that an impairment rating of 10 points is applicable for Mr Dixon’s condition, as it has a moderate functional impact on activities involving spinal function.
Issue – the impact of Mr Dixon’s condition on his capacity to work
Because Mr Dixon did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period, as his impairment was not rated 20 points or more under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work.
CONCLUSION
Taking into account all the information before me, I am not satisfied that Mr Dixon has impairments which attract an overall rating of 20 points or more under the Impairment Tables and does not satisfy the requirements necessary to consider whether he has a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
................................[sgd]...............................
Associate
Dated: 1 July 2019
Date of hearing: 27 May 2019 Applicant: In person Solicitors for the Respondent: Mr G Lozynsky, Department of Human Services
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