Eilbeck; Secretary, Department of Social Services and (Social services second review)
[2015] AATA 827
•27 October 2015
Eilbeck; Secretary, Department of Social Services and (Social services second review) [2015] AATA 827 (27 October 2015)
Division
GENERAL DIVISION
File Number(s)
2014/6289
Re
Secretary, Department of Social Services
APPLICANT
And
Robert Eilbeck
RESPONDENT
DECISION
Tribunal Ms A F Cunningham, Senior Member
Date 27 October 2015 Place Perth The decision of the Social Security Appeals Tribunal, dated 31 October 2014, is set aside and, in substitution therefor, it is decided that Robert Eilbeck does not satisfy s 94(1) of the Social Security Act 1991 (Cth) and is not qualified for a Disability Support Pension.
.....(Sgd) A F Cunningham...................................................................
Ms A F Cunningham, Senior Member
CATCHWORDS
SOCIAL SECURITY- disability support pension- impairments of chronic lower back pain and depression- impairment rating- failure to meet required 20 points under the Impairment Tables- decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)- ss 94(1)(a)- 94(1)(b)
Social Security (Administration) Act 1999 (Cth)- cl 4(1) of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011 (Cth)- ss 6(3)- 6(5)- 6(6)- 11(5)
SECONDARY MATERIALS
Social Security (Requirements and Guideline-Active Participation for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
27 October 2015
The applicant, the Secretary, Department of Social Services seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) made on 31 October 2014, which set aside a decision of Centrelink rejecting Mr Eilbeck’s claim for a disability support pension (DSP). The SSAT found that Mr Eilbeck met the qualification requirements for DSP under s 94(1) of the Social Security Act 1991 (“Social Security Act”).
The hearing was conducted by way of video-link to the Registry in Perth, Western Australia. Allyson Ladhams appeared for the applicant. Mr Eilbeck represented himself. The T documents were tendered pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The applicant tendered two medical reports prepared by Dr Durda (Georgia) Bacvic dated 23 April 2015 and 23 July 2015 together with the briefing letter dated 31 March 2015. Mr Eilbeck tendered report from 360 Health + Community addressed to his treating GP, Nancy Momoff dated 16 February 2015.
ISSUES
The issue for the Tribunal to determine is whether Mr Eilbeck satisfied the statutory criteria for DSP under s 94(1) of the Social Security Act at any time between 14 January 2014 (being the date on which Mr Eilbeck contacted Centrelink regarding his intention to claim DSP) and 22 April 2014 (being the end of the 13 week period after Mr Eilbeck lodged his claim).
This involves a consideration as to whether Mr Eilbeck had any physical, intellectual or psychiatric impairment(s); and if so, whether any such impairment(s) had a combined rating of at least 20 points under the impairment tables; and if so, whether Mr Eilbeck had a continuing inability to work because of any such impairment(s).
LEGISLATION
The legislation relevant to this application is contained in the Social Security Act 1991(Cth) (Social Security Act); the Social Security (Administration) Act 1999 (Cth) (“Administration Act”); the Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011 (Cth) (“Impairment Determination”); and the Social Security (Requirements and Guideline-Active Participation for Disability Support Pension) Determination 2011 (Cth) (“POS Determination”).
The qualification provisions are contained in s 94(1) of the Social Security Act, as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Administration Act provides that the start day for a qualified DSP claimant is the date of claim which includes the date when a person contacts Centrelink about making a claim for a Social Security payment. Where a person is not qualified on the date of claim but “will… become qualified” within 13 weeks of lodging a claim, the start date is the date on which the person became qualified (Schedule 2 clause 4(1) of the Administration Act).
The evidence is that Mr Eilbeck contacted Centrelink about his intention to claim DSP on 14 January 2014. On the same day, Centrelink sent a letter to Mr Eilbeck acknowledging his intention to make a claim and requiring the claim to be returned by 28 January 2014 in order for Mr Eilbeck to receive payment from the earliest possible date. The assessment period in this case is therefore between 14 January 2014 and 22 April 2014.
EVIDENCE
Mr Eilbeck’s claim for DSP lodged on 22 January 2014 did not list any disabilities. On 24 January 2014, Mr Eilbeck provided further information in relation to his claim and listed his medical conditions as spinal injury and depression. Mr Eilbeck’s claim was supported by a Medical Report for DSP prepared by Dr Choudramuthi Naidoo (Dr Naidoo), GP, who lists chronic pain as the diagnosed condition.
A job capacity assessment (JCA) was conducted by a social worker with input from a registered psychologist and rehabilitation counsellor on 11 March 2014.
Dr Nancy Momoff (Dr Momoff), GP, provided a report in relation to Mr Eilbeck’s depression on 6 June 2014.
Mr Eilbeck provided return to work program documents for dates between 2005 to 2006 detailing his restricted duties at the time.
There is a report in the T documents from Dr Julia Charkey-Papp (Dr Charkey-Papp), consultant psychiatrist dated 9 May 2007 which was prepared in relation to Mr Eilbeck’s workers compensation claim. Mr Eilbeck was injured in a workplace accident on 1 September 2007 whilst employed at a mine in Western Australia.
The report from 360 Health + Community, dated 16 February 2015, is based on an assessment of Mr Eilbeck as at that date.
In the course of these proceedings, the Secretary arranged for Mr Eilbeck to undergo an assessment by Dr Georgia Bacvic (Dr Bacvic), an occupational physician, to assess his eligibility for DSP. The assessment took place on 7 April 2015. Dr Bacvic’s reports are referred to in paragraph 2 above.
CONSIDERATION
The Secretary accepts that Mr Eilbeck has impairments resulting from his chronic low back pain and his depression and therefore satisfied subsection 94(1)(a) of the Social Security Act.
CHRONIC LOW BACK PAIN
In his medical report accompanying Mr Eilbeck’s claim for DSP, Dr Naidoo states that the diagnosis of this condition which had a date of onset in 2002, has been confirmed by an orthopaedic surgeon. The question is whether the condition is considered permanent such that it can be assigned an impairment rating under the Impairments Tables.
Dr Naidoo reports past treatments as including surgery, attendance at a pain specialist, orthopaedic surgeon and physiotherapist. Current treatment includes Panadol, Nurofen, Cipramil, various visits to orthopaedics, pain specialist psychiatrist and two surgical interventions. Impact on ability to function is stated as poor endurance, difficulty walking, difficulty sitting and lying down, difficulty bending, unable to sit, unable to concentrate, poor decision-making, problem solving and poor memory. Dr Naidoo stated that the impact of the condition on Mr Eilbeck’s ability to function is expected to persist for more than 24 months and the effect of the condition within the next two years on his ability to function is uncertain.
On the basis of the further reports from Dr Bacvic, it is contended by the Secretary, that Mr Eilbeck’s lower back condition was not fully treated and fully stabilised during the assessment period and therefore any impairment arising from this condition cannot be assigned an impairment rating under the Impairment Tables. Dr Bacvic noted in her report that Mr Eilbeck had not had a specialist review or undergone any medical investigation since his workers compensation claim was finalised in 2006. Since then Mr Eilbeck has been treated by his general practitioner. Dr Bacvic stated that Mr Eilbeck has not had a specialist review or undergone any medical investigation or been admitted to any hospital since 2007. She considers that Mr Eilbeck’s condition has not been fully diagnosed or treated and notes that Mr Eilbeck had recently commenced treatment with 360 Health + Community STEPS (a pain management program).
It was Mr Eilbeck’s evidence that he attended the 360 Health + Community STEPS program after being advised to do so by Centrelink. The STEPS report notes that Mr Eilbeck has undergone numerous injections, physiotherapy and rehabilitation including pain management courses over the years since his accident and that he had managed quite well with his pain independently. The management plan includes sessions with a physiotherapist, clinical psychologist and a doctor with a special interest in pain management, regular set of exercises, physiotherapy, and various medications.
In order for the impairments to attract an impairment rating under the Impairment Tables, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years as required by section 6(3) of the Impairment Determination. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and stabilised and likely to last for more than two years.
In determining whether a condition has been fully diagnosed and treated, consideration must be given to any corroborating evidence of the condition, what treatment has occurred and whether treatment is continuing or planned in the next two years (section 6 (5) of the Impairment Determination).
For a condition to be fully stabilised the person must have undertaken reasonable treatment and there should be evidence that it is unlikely that there will be any significant functional improvement with further reasonable treatment that would enable a person to work in the next two years. A condition can also be considered fully stabilised if the person has not undertaken that treatment, and it is unlikely for there to be significant functional improvement that would enable them to work in the next two years (section 6(6) of the Impairment Determination).
The treating doctor’s report accompanying Mr Eilbeck’s claim for DSP states that Mr Eilbeck has attended a pain specialist in the past. Mr Eilbeck confirmed that he had undergone pain management programs but they had been of limited benefit. He maintains that since the accident he has been compliant with every medical recommendation but still suffers significant pain. Mr Eilbeck’s injury was sustained in 2002 and it is evident that despite treatment he suffers from ongoing chronic low back pain.
The Tribunal rejects the Secretary’s contention that Mr Eilbeck had not, at the relevant time, undertaken reasonable treatment for his spinal condition. The Tribunal considers on the basis of the evidence referable to the assessment period, that at this time which is some 12 years after his accident, Mr Eilbeck’s back condition was permanent in that it was fully diagnosed, fully treated and fully stabilised.
DEPRESSION
Whilst the Secretary accepts that Mr Eilbeck’s depression was fully diagnosed at the relevant time, it contends that any impairment arising cannot be assigned an impairment rating because the condition was not fully treated and fully stabilised during the assessment period. The Secretary maintains that as at the time of the assessment period, Mr Eilbeck had not received all reasonable treatment for his depression and therefore the condition was not fully treated or fully stabilised.
The Secretary acknowledges that Mr Eilbeck was taking antidepressant medication (Cipramil) at the time of his claim and that at some point prior to 2007 he had attended 7-8 psychotherapy sessions. It is contended however, that there is no evidence to suggest that Mr Eilbeck had implemented the recommendations made by Dr Charkey-Papp to engage in psychotherapy in combination with an appropriate pharmacological regime. It is noted that in February 2015, well after the assessment period, Mr Eilbeck commenced a STEPS program and reported to the doctor ‘that commencing Duloxetine (Cymbalta) in February 2015 as part of that program “helped him a lot”.
In Dr Momoff’s report of 6 April 2014, she stated that the impact of Mr Eilbeck’s diagnosed condition of depression was expected to persist for more than 24 months and that within the next two years the effect of the condition would remain unchanged. Mr Eilbeck informed the SSAT that his GP had referred him to a psychiatrist for review. It was on this basis that the SSAT concluded that the condition had not been fully treated and stabilised as at the date of claim.
The job capacity assessor concluded in the report dated 10 April 2014 that the condition was not considered fully treated and there was no current medical evidence of treatment. Although further information was sought from Dr Naidoo regarding the current status of the condition, its treatment and prognosis, the information was not supplied in time for the completion of the assessment.
Mr Eilbeck has reported various symptoms and functional impacts, however self-reporting of symptoms alone are not sufficient and corroboration from a medical practitioner is required. There is no evidence before the Tribunal to suggest that had Mr Eilbeck undertaken the treatment recommended by Dr Charkey-Papp prior to the assessment period, such treatment would have been unlikely to result in significant functional improvement. As noted above, Mr Eilbeck had reported that the treatment arising out of the STEPS program in which he engaged following the assessment period, had been of assistance.
For the above stated reasons, the Tribunal is not satisfied that Mr Eilbeck’s depressive condition had been fully treated or fully stabilised during the currency of the assessment period such that it can be assigned an impairment rating.
IMPAIRMENT RATINGS
The next issue for consideration is whether the applicant’s impairment rate at least 20 points under the Impairment Tables.
An impairment rating is assessed in accordance with the Impairment Tables made pursuant to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.
The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating medical evidence (section 8 of the Determination and the Introduction to the Tables).
Paragraph 11(5) of the Impairment Determination provides that a diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned.
The functional impact arising from Mr Eilbeck’s lower back condition is appropriately assessed under Table 4. The various descriptors for an impairment rating of 0-20 points on Table 4 are as follows:
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 back 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 moderate functional impact on activities involving spinal function.
(1) The person is able to sit 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 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.
The job capacity assessor noted the following symptoms and functional impacts as outlined in the medical report: “poor endurance, difficulty walking, difficulty sitting and laying down. Unable to concentrate, poor decision-making, poor memory. Wife is carer showers patient, helps with dressing. Severe back pain (NOTE: There are other impacts listed in this section of the TDR however, the writing is illegible). Mr Eilbeck had reported: “able to drive in car for 30 minutes maximum. Unable to sit or stand for more than 10 minutes. Constantly moving between sitting, standing and lying down. Can only lift 5kgs maximum. Can’t do dishes due to angle. Referred leg pain. Clothes can aggravate pain. Needing to use a walking stick. Reported needing personal care, chair in shower, rail in shower, use of a grabber and brace.” The job capacity assessor went on to suggest that further advice from a pain management specialist may be beneficial as the only current pain medications were Panadol and Nurofen.
Both the job capacity assessor and the ARO assessed Mr Eilbeck’s impairment rating under Table 4 at 10 points. The SSAT concluded that Mr Eilbeck had severe impairment at the date of his claim on the basis that he was unable to perform any overhead activities and assessed an impairment rating of 20 points. The SSAT relied on evidence given by Mr Eilbeck during the hearing which was that he could not access anything over his head height, if he tries to lift his arms overhead he gets pins and needles on his arms and the pain radiates down his back and legs. Further that he can turn his head about 30 to 35% both on the left and right side without moving his trunk and that the absolute maximum he could sit down or stand up is between five and 10 minutes. Mr Eilbeck said he walks with the aid of a walking stick but when he finds himself in major pain he has to use a wheelchair. He said that he can get in and out of a chair but only if he uses the table to help push himself up. If he has to pick something up off the floor, Mr Eilbeck said that he can only do this by using a device to help him as he cannot bend over.
It is not clear from the SSAT’s decision whether the evidence given by Mr Eilbeck described his current symptoms or whether they were referable to the assessment period. It is submitted by the Secretary that the only functional impact described by Dr Naidoo in his report that relates to Table 4 is that Mr Eilbeck has difficulty sitting and lying down.
The Secretary relies on the report from Dr Bacvic following his physical examination of Mr Eilbeck which post-dates the assessment period. Dr Bacvic reported that Mr Eilbeck was able to bend down to pick up a light object from the floor (being both unable to bend and squat and to reach past his knees to the lower third of his tibia when sitting). Further, that he demonstrated a full range of movement in the neck and was able to turn his trunk and turn his head to look at the sides or upwards. Dr Bacvic noted that Mr Eilbeck had slightly limited movements in his lumbar spine but otherwise had a full range of movement in all areas involving his back. Although Mr Eilbeck had reported a higher level of impairment, Dr Bacvic considered that there was no objective evidence to explain the level of impairment reported by Mr Eilbeck. Mr Eilbeck was invited to comment on the findings of Dr Bacvic and said to the Tribunal that he has “good and bad days”.
An applicant is only required to satisfy one of the four criteria to qualify for an impairment rating of 20 points in that the person is unable to perform any overhead activities; or turn their head, or bend their neck, without moving their trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes. Dr Naidoo described the current impact on Mr Eilbeck’s ability to function in fairly general terms and did not specifically address the Impairment Tables. He did not report any restrictions with respect to performing overhead activities, movement of the head and neck or restrictions with respect to bending forward to pick up a light object from a desk or table. Whilst he reported that Mr Eilbeck has difficulty sitting and lying down, he did not specifically state that Mr Eilbeck was unable to remain seated for at least 10 minutes. Although the JCA reported that Mr Eilbeck had said he was unable to sit or stand for more than 10 minutes she notes that he was able to drive in a car for up to 30 minutes.
In the Tribunal’s view there is insufficient evidence that the functional impact arising from Mr Eilbeck’s spinal condition satisfies any of the criteria required for an impairment rating of 20 points. Mr Eilbeck’s own evidence to the SSAT is not corroborated by a medical specialist and is not specifically referable to the assessment period.
As Mr Eilbeck accepted impairment, namely his lower back condition fails to meet the required impairment rating of 20 points under Table 4 as required by subsection 94 (1)(b), he does not meet the qualification requirements for DSP. It is accordingly not necessary for the Tribunal to consider the remaining issues with respect to program of support and continuing inability to work.
DECISION
For these reasons the Tribunal sets aside the decision of the SSAT and substitutes it with a decision that Mr Eilbeck did not satisfy s 94(1) of the Social Security Act was not qualified for DSP at any time during the assessment period.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member ...(Sgd) A Tran.....................................................................
Administrative Assistant
Dated 27 October 2015
Date of hearing 22 September 2015 Representative for the Applicant Ms A Ladhams Solicitors for the Applicant Australian Government Solicitor Respondent In person
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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