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

[2021] AATA 274

FTCG and Secretary, Department of Social Services (Social services second review) [2021] AATA 274 (19 February 2021)

Division:GENERAL DIVISION

File Number:          2020/3130

Re:FTCG

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:19 February 2021

Place:Sydney

The decision under review is affirmed.

...............................[sgd].........................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cervical spondylosis – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991(Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, sch 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

REASONS FOR DECISION

Dr L Bygrave, Member

19 February 2021

INTRODUCTION

1. The applicant, FTCG, is 64 years old. He lodged a claim for disability support pension on 7 January 2019.

2. Services Australia,[1] both initially and on review, rejected the applicant’s claim for disability support pension on the basis that he did not meet the requirements set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

3. The applicant then applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 6 May 2020, the SSCSD affirmed the decision of Services Australia.

4. On 22 May 2020, the applicant made an application for review to the General Division of the Tribunal.

5. The matter was heard by the Tribunal in Sydney on 5 February 2021. The applicant attended the hearing in person and provided oral evidence.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and require the applicant to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, the applicant must satisfy these criteria on the date he applied for disability support pension on 7 January 2019 or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it may be rated between nil and 30 points.

10. 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 Impairment Tables Determination.

11. 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; whether there is corroborating evidence of the condition; 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 Impairment Tables Determination.

12. 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 Impairment Tables Determination.

13. The Secretary accepts, and I agree, that the applicant has medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.

14. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, the applicant had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Does the applicant have an impairment rating of 20 or more points under the Impairment Tables?

    Cervical spondylosis

15. The applicant, an electrician, experienced acute pain in his spine and right shoulder in 2015 and subsequently saw Dr Baharan Majidi (general practitioner) from November 2015 for assessment and review.

16. Dr Majidi referred the applicant to Mr Scott Muttdon (physiotherapist), who reported on 30 November 2015 that the applicant’s presentation was ‘consistent with C6//7/T1 irritation likely due to a rigid stiff thoracic spine and hypermobile lower cervical spine’.[2] Mr Muttdon noted the applicant reported ‘excellent symptom relief’ and ‘nil pain’ following treatment and planned for the applicant to continue his home exercise program daily.[3]

    [2] Exhibit T-T4, page 97.

    [3] Exhibit T-T4, page 97.

17. On 8 December 2015, an MRI of the applicant’s cervical spine concluded:

    There is moderate to severe degenerative spondylosis of the cervical spine. There is a large right paracentral/right posterolateral herniated disc located at the C7-T1 level measuring up to 0.3 to 0.4 cm in diameter. There is spinal stenosis and neuroforaminal narrowing of the cervical spine at multiple levels… There is moderate to severe right sided neuroforaminal narrowing of the cervical spine located at the C4-5, C5-6 and C6-7 levels.[4]

    [4] Exhibit T-T5, page 99.

18. Dr Majidi subsequently referred the applicant to Associate Professor Matthias Jaeger (neurosurgeon and spinal surgeon) on 16 December 2015 for opinion and management of persisting pain in his neck and right shoulder radiating to his right elbow, forearm and wrist, and weakness in his right-hand fingers. In this referral, Dr Majidi stated the applicant’s pain was not manageable by analgesics or physiotherapy.

19. Associate Professor Jaeger provided a report dated 19 January 2016, in which he recorded that the applicant’s pain had settled but he had some mild residual hand weakness. He opined that the applicant’s ‘right C7/T1 disc herniation with compression of the C8 nerve root [was] the underlying cause for his symptoms’ and noted the ‘natural history of brachialgia from disc herniation is often favourable and…symptoms settle with conservative treatment’.[5] Associate Professor Jaeger observed that further investigation was not required as the applicant had made a ‘good recovery with non-surgical management’ and offered to see the applicant again if his pain recurs or his hand weakness deteriorates.[6]

    [5] Exhibit T-T8, page 102.

    [6] Exhibit T-T8, page 102.

20. Dr Majidi wrote medical reports/certificates dated 19 April 2017, 11 October 2017, 4 March 2019 and 8 August 2020; she also provided oral evidence at the Tribunal hearing.

21. On 4 March 2019, during the relevant claim period, Dr Majidi stated that she had been treating the applicant since November 2015 for cervical spondylosis and disc herniation. She referred to a more recent MRI (dated 14 January 2019) that confirmed ‘spondylosis along with multilevel disc bulge and severe impingement of left C4 and bilateral C5-7 roots’.[7]

    [7] Exhibit T-T28, page 214.

22. In a further report dated 8 August 2020, 16 months after the claim period, Dr Majidi detailed the applicant’s history of review by Associate Professor Jaeger and treatment. She stated the applicant has ‘nerve root compression on background of a degenerative and irreversible condition’ (cervical spondylosis), which is managed by ‘controlling pain, keeping remaining function and preventing further disability’.[8] Dr Majidi set out that the applicant had ‘achieved acceptable pain control with conservative methods including exercise, muscle strength training and avoiding offending activities’.[9]

    [8] Exhibit A2.

    [9] Exhibit A2.

23. In her oral evidence to the Tribunal, Dr Majidi advised that the applicant’s main complaint is the constant pain he experiences in his neck due to cervical spondylosis. She noted that his level of pain and symptoms are consistent with the medical imaging reports.

24. Dr Majidi stated that she has not referred the applicant to Associate Professor Jaeger since 2016 because his presentation does not indicate a neurological issue; rather, his symptoms reflect the degenerative nature of his cervical spondylosis. She stated that the applicant was able to manage his pain with rest, exercise, analgesics and avoiding activities that could cause a ‘flareup’. This included the applicant’s employment as an electrician, which required him to do work overhead.

25. Dr Majidi told the Tribunal that she had not referred the applicant to a pain management specialist or pain clinic because he has been able to manage his pain without using strong painkillers or opiates, noting that this would be the main reason she would refer a patient to a pain specialist. Dr Majidi stated her opinion that the applicant’s cervical spondylosis was fully treated and stabilised during the claim period.

26. The applicant also gave oral evidence at the Tribunal hearing. He accepted that he had undertaken three sessions of physiotherapy in late 2015 and early 2016 but disputed the report by Mr Muttdon that he had ‘excellent symptom relief’ and no pain following a single physiotherapy session; he said he received temporary pain relief only. The applicant also confirmed he had undertaken four sessions of physiotherapy in March 2019, and said that again he experienced temporary relief of his pain but physiotherapy did not resolve his symptoms or provide long-term pain relief.

27. The applicant said that he has been managing his symptoms by regular exercise since 2015; this includes daily swimming, walking and (in 2020) using the additional money he received with jobseeker payment to attend a gym to use the treadmill and do light weights. He said that he did not like using pain medication and only took analgesics when he had to.

28. The evidence of the applicant, which was verified by Dr Majidi, in relation to his functional capacity during the claim period included that he was able to dress, shower and wash his hair independently, and was able to both reach above his head and pick a light item off the ground. He was able to drive his car, turn his head from side to side and upwards, and turn his trunk. He was able to do up buttons, reach out and pick up papers from the table, and handle/use a pen. He attended the Tribunal hearing in person, which required him to undertake a five hour round trip by train. The applicant confirmed to the Tribunal that while he is still able to do many activities, he experiences extreme pain and either takes a long time to complete an activity or completes it over several days. He said he has ‘good and bad days’; on a ‘good day’, he may be able to undertake activities but on a ‘bad day’, he is unable to get out of bed.

29. Based on the medical evidence of Dr Majidi, I am satisfied that the applicant’s cervical spondylosis was fully diagnosed, fully treated and fully stabilised during the claim period. I make this finding on the basis that the applicant has attended physiotherapy in 2015-2016 and 2019 but benefits more from daily swimming and walking, home exercises and avoiding certain activities, such as doing overhead electrical work, that is likely to cause a flareup of his pain and symptoms. I accept the oral evidence of Dr Majidi that there is no other treatment relevant or available to the applicant at this time and his condition was stable during the claim period.

30. Having regard to Table 2 – Upper Limb Function of the Impairment Tables Determination, I am satisfied that the applicant can be assigned nil points; this is because the evidence showed he is able to pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

31. In relation to Table 4 – Spinal Function, I find the applicant can be assigned 10 points on the basis that he is able to sit for more than 30 minutes and is unable to sustain overhead activities. I am also satisfied that the applicant is able to perform overhead activities by dressing himself and washing his hair, and undertake swimming: there is no evidence he is unable to turn his head or bend his neck without turning his trunk, or is unable to bend forward to pick up a light object from a desk or table, or is unable to remain seated for less than 10 minutes. For this reason, I cannot assign the applicant 20 points in accordance with Table 4 – Spinal Function of the Impairment Tables Determination.

    CONCLUSION

32. For the reasons set out above, I am satisfied that the applicant did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.

33. As I find that the applicant did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

34. The decision under review is affirmed.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[sgd]..........................................

Associate

Dated: 19 February 2021

Date of hearing:	5 February 2021
Applicant:	In person
Solicitors for the Respondent:	Ms B Dzang, Services Australia