Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 810
•16 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 810
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/5033
GENERAL ADMINISTRATIVE DIVISION ) Re LAURIE EASTERBROOK Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date16 November 2011
PlaceHobart
Decision
The decision under review is set aside and replaced with a decision that the applicant is entitled to disability support pension from 30 December 2009.
..............................................
Ms A F Cunningham
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – disability support pension – chronic pain disorder – Tribunal found condition was permanent during the qualification period, rated at 20 points under the Impairment Table and that the applicant had a continuing inability to work. Decision under review set aside.
Social Security Act 1991
Social Security (Administration) Act 1991
Coates and Secretary Department of Employment and Workplace Relations 2006 AATA 938
Shi v Migration Agent’s Registration Authority 2007 FCA FC 57
Secretary, Department of Employment and Workplace Relations v Harris 2007 FCAFC 130
REASONS FOR DECISION
Ms A F Cunningham (Senior Member) 1. Mr Easterbrook’s application for disability support pension (DSP) lodged on 30 December 2009 was rejected on the basis that his medical condition which was claimed to affect his capacity to work, had not been fully diagnosed, treated and stabilised and could not therefore be assigned an impairment rating.
2. Centrelink’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 9 October 2011 and Mr Easterbrook now seeks a review of the decision by the Administrative Appeals Tribunal.
3. The qualification provisions for DSP are found within section 94 of the Social Security Act 1991 (the Act). The essential elements are:
(a) the person has a physical, intellectual or psychiatric impairment
(b) the person’s impairment is 20 points or more under the Impairment Tables;
(c) the person has a continuing inability to work.
4. There was no dispute about the remaining qualification provisions regarding age and residency. The Respondent accepted that Mr Easterbrook has an impairment relating to pain and thus satisfies subparagraph (a). There was also a suggestion that Mr Easterbrook suffers from post-traumatic stress disorder (PTSD). As there was no diagnosis by a medical practitioner, the Tribunal is unable to conclude that Mr Easterbrook suffers from this condition.
5. The issues for the Tribunal to determine are:
1.Were Mr Easterbrook’s conditions fully diagnosed, treated and stabilised?
2.Whether the impairment is rated at 20 points or more under the Impairment Tables.
3.Does Mr Easterbrook have a continuing inability to work?
QUALIFIATION PERIOD
6. Schedule 2, clause 4(1) of the Social Security (Administration) Act 1991 provides that if a person is not qualified on the date of a claim but becomes so qualified within 13 weeks from the day the claim is made, the claim is taken to have been made on the first day the person became qualified. This period has been referred to as the qualification period which, in this case, is from 30 December 2009 to 31 March 2010.
IMPAIRMENT RATING
7. The Impairment Tables referred to in section 94(1)(2) of the Act are contained in Schedule 1B. The Introduction to the Impairment Tables provides guidance on when an impairment rating can be assigned.
8. Paragraph 4 of the Introduction states:
a rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step thus is to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.
Paragraph 5 of the Introduction states:
the condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
9. Also of relevance is paragraph 6 of the Introduction which states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
10. In this context, reasonable treatment is taken to be:
·Treatment that is feasible and accessible ie available locally at a reasonable cost;
·Where a substantial improvement can be reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patients.
“It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.”
11. The Tribunal discussed the concept of permanence in its decision Coates and Secretary Department of Employment and Workplace Relations 2006 AATA 938 and said at paragraph 22:
The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
WERE MR EASTERBROOK’S CONDITIONS FULLY DIAGNOSED, TREATED AND STABILISED?
12. It is contended by the Secretary that when Mr Easterbrook made his claim on 31 December 2009 there was a great deal of uncertainty around his conditions and further investigations were planned.
13. Mr Easterbrook’s application for DSP was accompanied by a medical report completed by Dr Robin Bailey Smith on 23 December 2009. Dr Bailey Smith diagnosed Mr Easterbrook’s condition as “complex regional pain syndrome” but also commented that it was “uncertain” with the date of onset, 6 June 2008. The current symptoms were described as shooting pains at times – skin colour changes. Has difficulty sleeping – also weakness in lower limbs. Anxiety, low mood, aggressive at times. Current treatment was Cymbalta and Gabapentin. Past treatment was physio and pool work. Future planned treatment was Review by Dr Parkes and ? referral Dr Stewart Graham.
14. The factors identified with respect to impact on ability to function were ability to sit/stand/move, endurance and need for support in activities of daily living including cleaning and shopping.
15. Dr Bailey Smith reported that the current impact on Mr Easterbrook’s ability to function was expected to persist for more than 24 months and that the effect of the condition on the patient’s ability to function within the next two years was uncertain.
16. Dr Bailey Smith certified Mr Easterbrook as temporarily unfit for work from 28 December 2009 to 28 March 2010. The Doctor further commented “may be homeless soon. Causing anxiety. Seeing counsellor that helps.”
17. There is correspondence contained within the T documents that pre-dates Mr Easterbrook’s application. In particular a copy of a letter he wrote to Dr Alex Thompson dated 31 August 2009 in which Mr Easterbrook refers to his last consultation with Dr Thompson when electro-diagnostic studies and electro-myography (EMG) and nerve conduction velocity (NCV) studies were planned to be conducted by neurologist, Dr P. Yeo.
18. There was also a letter written by Dr Parkes to Mr Easterbrook on 3 September 2009 regarding progress with his problem and noting that Mr Easterbrook was seeing a psychologist and undertaking exercises which appeared to be beneficial. Dr Parkes had increased Mr Easterbrook’s Gabapentin to 60mg TDS. Dr Parkes referred to pain relieving strategies including medication and cognitive behavioural therapy of the type that Mr Easterbrook was working through with his psychologist.
19. The EMG and NCV tests were undertaken and a report dated 16 November 2010 was written by Michael Dreyer, stating “features consistent with a chronic L5 radiculopathy on the left” and that “the nerve injury may certainly have led to central hypersensitisation and reflex sympathetic changes which is accounting for most of your symptoms at present. This is a difficult situation to manage, and is best cared for by a multi-disciplinary team that is typically found in a pain clinic.”
20. There are a number of reports from Dr Stewart Graham Consultant Rheumatologist that were tendered in evidence. The first report is dated 13 January 2009 which states that Mr Easterbrook was clearly extraordinarily distressed, agitated and depressed. Further, that he has a problem with his mechanical spinal pain, that the neurophysiological and structure tests have given some cause for comfort by Dr Seijka. Dr Seijka was keen for him to see a neurologist in Melbourne but Dr Graham was not sure that that would help him greatly. Dr Graham noted that Mr Easterbrook recorded Tramadol as being a useful medicine but Lyrica as being not so hopeful. He suggested that it would be worthwhile trying the Serotonin again on a regular basis for two weeks to see if it would improve Mr Easterbrook’s agitation and pain. Whilst he did not recommend any further investigations, the management options were described as 100mg slow release Tramadol per day for approximately five or six days and for the outcome to be recorded, followed by a doubling of the dose to 100mg twice daily and a review in the near future.
21. Dr Graham’s report of 13 January 2009 stated that Mr Easterbrook had a reasonable result from the use of Tramadol. He suggested a single, non-evasive low cost exercise strategy including walking, swimming and cycling. The aim was to have a much greater function and bigger functional envelop in six or 12 months’ time. With respect to his psychological stress, further counselling was recommended. No further investigations were suggested but with respect to management options, 100mg slow release Tramadol per day for approximately five or six days and then the dose to be doubled was prescribed. It is noted that this plan is the same as recommended in his earlier report.
22. In the next report dated 16 March 2010, Dr Graham noted that Prednisolone in small doses had made a significant contribution in the control of Mr Easterbrook’s symptoms of somewhere between 15 and 30 per cent. Management options included a dose finding exercising with the Prednisolone and a review in six weeks’ time.
23. The fourth report of 29 April 2010 noted that there was no significant change and Dr Graham therefore concluded that the Prednisolone class of drugs were no longer of any value. Dr Graham opined that Mr Easterbrook had a chronic pain disorder with central sensitisation with a feature of post-traumatic stress disorder but that he did not have any of the features of a chronic reflex synthetic dystrophy. He recommended no further investigations or management options and that he would be happy to review if something came to light.
24. In the medical report completed by a Dr Bailey Smith on 23 December 2009 under the heading Future/Planned Treatment he stated “review by Dr Parkes? Referral Dr Stewart Graham”. The Job Capacity Assessor in her report of 28 January 2010 noted that Mr Easterbrook was on medication and awaiting specialist review. The SSAT in its decision noted the referral for further assessment after 30 March 2010 and the ongoing weekly counselling sessions and concluded that as at 30 March 2010, Mr Easterbrook did not have a fully investigated, treated and stabilised condition capable of attracting an impairment rating.
25. Dr Graham’s report of 16 March 2010 stated that no further investigations were required but proposed to trial variations in his medication dosage of Prednisolone. By 29 April 2010 Dr Graham noted that after trying Prednisolone the pain had not changed. He opined that Mr Easterbrook had a chronic pain disorder with central sensitisation and had no other management options to suggest. This report was prepared some four weeks after the end of the qualification period on 31 March 2010.
26. Dr Robert Parkes’ report of 3 September 2009 to Mr Easterbrook stated that Mr Easterbrook had commenced seeing a psychologist and that his Gabapentin medication had been increased to 600mg TDS. It was Mr Easterbrook’s evidence that he is still consulting Dr Parkes who on 14 February 2011 increased his Gabapentin medication to help with pain. He was previously taking 600mg three times a day and has now been prescribed 800mg three times a day. Mr Easterbrook said that the further specialist investigation and treatment had been initiated by himself rather than being recommended by his medical practitioner. The evidence is that the further treatment management proposed was in the form of medication to help with his pain. The reports of Dr Graham indicate that the Prednisolone trial was not successful and no other form of management treatment was suggested. There has essentially been no change in Mr Easterbrook’s condition since he lodged his claim on 30 December 2009. The pain management proposed has been largely unsuccessful and has not enabled Mr Easterbrook to return to work.
ABILITY TO WORK
27. The JCA report records the impacts that Mr Easterbrook’s chronic pain condition has on his ability to self-care and to seek or obtain employment. The report states “with ongoing medical and pain management and following specialist review the client may have 15-22 hours’ per week capacity.” This was essentially speculation by the Job Capacity Assessor and subsequent reports have shown that Mr Easterbrook’s chronic pain has not been satisfactorily relieved by medication.
28. The issues for determination are to be assessed in accordance with the evidence that prevails at the time of the original decision. In the present case, the evidence as to whether Mr Easterbrook’s condition of chronic pain syndrome was fully diagnosed, treated and stabilised within the qualification period, 30 December 2009 to 31 March 2010. The Full Court decision in Shi v Migration Agent’s Registration Authority 2007 FCA FC 57 affirmed that the evidence must relate to the date of cancellation, rather than the date of review although the Full Court’s decision endorsed the approach of the Administrative Appeals Tribunal which found that subsequent evidence, which casts light on facts existing at the time of the original decision, may be taken into account.
29. On the basis of this authority the Tribunal finds that it is appropriate to consider the subsequent medical evidence and in particular that of Dr Graham in the reports referred to above which confirms that there was essentially no change in Mr Easterbrook’s pain disorder and that the subsequent management plans had little, if any, impact. Previous decision makers found that Mr Easterbrook’s condition could not be considered permanent because further investigations were contemplated. Of relevance is the decision of the Full Court of the Federal Court in Secretary, Department of Employment and Workplace Relations v Harris 2007 FCAFC 130 where it was said at paragraph 30:
“His Honour found it troubling that an applicant with a long standing diagnosed condition being treated in a conventional fashion was rejected for benefits simply on the basis that further examination by another medial practitioner might suggest some other diagnosis or some other treatment. An applicant for benefit should present with a properly prepared application supported by a treating doctor. His Honour observed that it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. The decision maker was entitled to make its own investigation of the claim and to form a view adverse to the claimant based on that investigation. But that was a very different thing from the decision maker rejecting a claim because of speculation that a hypothetical third party might come to an adverse opinion. …”
The Tribunal accepts Dr Graham’s diagnosis of chronic pain disorder and on the basis of evidence referred to above, finds that during the qualification period, Mr Easterbrook’s condition was fully diagnosed, treated and stabilised and could therefore be considered permanent.
30. The Tribunal accepts the findings of the Job Capacity Assessor that Mr Easterbrook’s future capacity for work within two years without intervention was zero to seven hours per week. The Assessor similarly assessed Mr Easterbrook’s current capacity for work as zero to seven hours per week and noted “very limited capacity due to impact of complex regional pain syndrome with current symptoms of continuing back pain and pain in legs and feet. Also shooting pains; skin colour changes and body temperature changes. Poor sleep and weakness in lower limbs. Severe pain impacts on mobility, endurance and all ADLs. Only fully diagnosed, treated and stabilised conditions – not applicable. Rationale there are no permanent conditions that are fully diagnosed, treated and stabilised and have been addressed above”.
31. On the basis of the Tribunal’s findings that during the qualification period Mr Easterbrook’s condition of chronic pain disorder was permanent, the Tribunal adopts the findings of the Job Capacity Assessor regarding Mr Easterbrook’s current work capacity. Other supporting evidence was contained in Mr Easterbrook’s GP’s assessment (at T3 page 13) that Mr Easterbrook was temporarily unfit for work from 28 December 2009 until 28 March 2010. Further, that the current impact of Mr Easterbrook’s condition on his ability to function was expected to persist for more than 24 months. A medical certificate completed on 30 December 2009 reported that Mr Easterbrook was unfit for work between 28 December 2009 until 28 March 2010 (ST1 page 87).
32. On the basis of the above evidence, the Tribunal is satisfied that during the relevant qualification period Mr Easterbrook had a continuing inability to work.
IMPAIRMENT RATING
33. It was submitted on behalf of Mr Easterbrook that his condition should be assessed under Table 20 of Schedule 1B as Table 20 is applicable for miscellaneous conditions which include pain. The following criteria are relevant for a rating of 20:
More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work related tasks. Symptoms may cause prolonged absences from work.
34. In Dr Baily Smith’s report accompanying the DSP claim he stated that Mr Easterbrook needed support with activities of daily living – cleaning, shopping. The JCA report noted “significantly reduced ability to move around freely, climb stairs and navigate uneven terrain. Progressive inability to self-care due to a debilitating pain. Further, that Mr Easterbrook reports that he is in too much pain to do household tasks and has his own transport.”
35. The Tribunal accepts Mr Easterbrook’s evidence and that of the JCA regarding the impact of his condition on his functionality and finds that Mr Easterbrook’s reported symptoms are consistent with the criteria for an impairment rating of 20 points or more. Although the Tribunal accepts that his symptoms have impacted on his ability to work, the Tribunal is not satisfied on the available evidence that his symptoms satisfy the criteria for an impairment rating of 30 points.
36. In conclusion the Tribunal finds as follows:
1.That Mr Easterbrook has a permanent impairment that qualifies for a rating of 20 points or more under the Impairment Tables and a continuing inability to work as that term is understood under the relevant legislation.
2.That Mr Easterbrook meets the remaining qualification requirements under section 94(1) for DSP, in that he has turned 16 years of age and is an Australian resident.
37. In accordance with the above findings the Tribunal determines to set aside the decision under review and replace it with a decision that Mr Easterbrook is entitled to disability support pension from 30 December 2009. The matter is remitted to the Respondent for assessment in accordance with the Tribunal’s findings.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member).
Signed: .....................................................................................
AssociateDate of Hearing 13 September 2011
Date of Decision 16 November 2011
Counsel for the Applicant Ms S Eder
Solicitor for the Applicant Launceston Community Legal Centre
Counsel for the Respondent Mr Flemming Aaberg
Solicitor for the Respondent Centrelink Advocacy Branch
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