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

[2023] AATA 401

Fullick and Secretary, Department of Social Services (Social services second review) [2023] AATA 401 (17 March 2023)

Division:GENERAL DIVISION

File Number:          2022/5606

Re:Sandra Bernadette Fullick

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:17 March 2023

Place:Sydney

The reviewable decision is affirmed.

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

Mrs J C Kelly, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – whether the applicant satisfied the qualification criteria at the date of her claim or during the qualification period – whether applicant has impairments that had been fully diagnosed, treated and stabilised – whether impairment rating was 20 points or more under the impairment tables – reviewable decision affirmed

Legislation

Social Security Act 1991 (Cth)

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

17 March 2023

Introduction

1. I have to decide whether Mrs Fullick satisfied the criteria for payment of disability support pension (DSP) on 23 September 2021 when she lodged her claim, or within thirteen weeks after that date (to 23 December 2021) (the qualification period).

2. The decision under review was made by the Social Services and Child Support Division of this Tribunal on 9 June 2022 (AAT1). AAT1 found that Mrs Fullick’s spinal impairment was fully diagnosed, fully treated, and fully stabilised in the qualification period, but decided that her total impairment rating was 5 points which did not satisfy paragraph 94(1)(b) of the Social Security Act 1991 (Cth) (the Act). 

   The criteria

3. Relevantly, section 94 of the Act requires that all the following criteria to be met in order to qualify for DSP:

   ·The person has a physical, intellectual, or psychiatric impairment;

   ·The person’s impairment attracts at least 20 points under the Impairment Tables;

   ·The person has a continuing inability to work (CITW).

4. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) set out the requirements to be satisfied before an impairment rating can be assigned for a condition:

   ·the condition must be fully diagnosed, fully treated and fully stabilised;

   ·the condition must be considered to be likely to persist for more than 2 years;

   ·a condition may be considered to be fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years. 

5. To determine whether a condition is fully diagnosed by an appropriately qualified medical practitioner and fully treated, subsection 6(5) of the Impairment Tables requires a decision maker to consider the following:

   (a)whether there is corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next two years.

6. Subsection 6(6) of the Impairment Tables provides that a condition is fully stabilised if:

   (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

7. ‘Reasonable treatment’ is defined at subsection 6(7) of the Impairment Tables to mean treatment that:

   (a)is available at a location reasonably accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)carries a low risk to the person.

8. Section 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.

9. Subsection 10(1) of the Impairment Tables states that table selection is to be made by applying the following steps:

   (a)identify the loss of function; then

   (b)refer to the Table related to the function affected; then

   (c)identify the correct impairment rating.

10. If an impairment falls between two impairment ratings, the lower rating is to be assigned (paragraph 11(1)(c) of the Impairment Tables).

    The issues

11. The Respondent accepts that Mrs Fullick had a physical impairment during the qualification period resulting from her low back pain and sciatica which had been fully diagnosed. She satisfies the first criteria and part of the second.

12. The Respondent contends that:

    (a)Mrs Fullick’s impairments were not fully treated or stabilised and therefore she cannot attract any impairment rating, and

    (b)that she did not have a CITW as she had a work capacity of 15-22 hours per week within two years with intervention. Alternatively, she had not completed a program of support which must be satisfied if she does not have a rating of 20 points or more under a single Impairment Table.

    Background

13. Mrs Fullick was born in 1967. She suffered a back injury at work in 2011 when she was working for a pharmaceutical company. Her job included emptying 25 kg bags into a hopper which resulted in her back injury.   

14. On 16 October 2012, she was granted DSP which was cancelled on 3 September 2016 because she received a compensation lump sum payment which resulted in a five year preclusion period from receiving social security benefits.

    The evidence

15. The relevant evidence in this case is that that relates to Mrs Fullick’s condition during the qualification period. Therefore, Mrs Fullick’s evidence about her condition at the time of the hearing and medical reports that did not address or cast light on her condition in the qualification period, were not of assistance.[1]

    [1] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 [31] - [33]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 [25] – [29].

16. Following is a summary of the relevant evidence from doctors and health professionals.

17. Ms Melanie Meredith, physiotherapist, prepared a report dated 30 January 2012. Mrs Fullick had attended the practice for ten sessions after she presented on 6 December 2011, the day after she had sustained an injury at work, on referral from the then general practitioner (GP).  

18. On MRI, Mrs Fullick had bulges at L2/3, L3/4, L4/5 and L5,S1 discs, with the most significant being at L3/4 and L5,S1.

19. Mrs Fullick’s signs and symptoms were consistent with a lumbar disc bulge. She had improved with therapy but continued to have low back and left thigh pain, and complained of pins and needles and burning pain in the left buttock.

20. She managed office duties but found that she had to change position every 15 minutes and was still unable to lift.  

21. Ms Meredith’s opinion was that Mrs Fullick continued to need physiotherapy and should slowly improve over the coming months but may be unable to return to heavy lifting.

22. Dr Richard Ferch, neurosurgeon/spinal surgeon, wrote a report dated 1 March 2012. He had seen Mrs Fullick on the same day. He diagnosed lumbar spondylosis.

23. He reviewed a recent lumbar MRI scan which confirmed degenerative change. At the L5-S1 level, there was marked loss of disc height with some facet joint arthropathy but no neural compromise. At the L3/4 level, there was evidence of degenerative change with some central disc bulging but again, no nerve root compression.

24. In Dr Ferch’s opinion, surgical treatment was unlikely to help Mrs Fullick. She was largely limited by stiffness and muscle spasm ‘and this could respond to an aggressive stretching exercise programme’. They had discussed potential treatment programmes, including physical therapy based exercises. Dr Ferch wrote, ‘if Sandra can be a non smoker it is likely that her pain management will be improved’.

25. A spinal and orthopaedic surgeon, Dr Robert Kuru, prepared a report to Mrs Fullick’s current GP, dated 22 August 2012. It was in relation to a workers’ compensation claim. Dr Kuru had been requested to assess Mrs Fullick’s left leg pain consistent with S1 radiculopathy. He noted that Mrs Fullick had a degenerative L5/S1 segment with a synovial cyst accounting for her symptoms. Her pain starts in her back, radiates into her left buttock, hamstring and down into her calf. She had some occasional discomfort in her right hamstring. Her treatment had been confined to physiotherapy. She was managing her pain with Panadeine Forte.

26. Mrs Fullick was performing more sedentary work and had given up smoking (20 a day) three months before.

27. Dr Kuru reviewed an MRI of the lumbar spine that showed a degenerative L5/S1 disc with disc space narrowing. There were some facet changes with a cyst emanating from the left L5/S1 facet joint impinging the S1 root.

28. Dr Kuru wrote that Mrs Fullick has persistent S1 radiculopathy due to her degenerative disease and lateral recess stenosis caused by a synovial cyst. He discussed with her a lateral recess decompression including excision of synovial cyst. She was keen to proceed with surgery. He wrote to the insurer on the same day seeking approval for the surgery, stating that Mrs Fullick ‘has failed non-operative treatment for a left S1 radiculopathy due to synovial cysts impinging on the S1 root and the lateral recess’.

29. Dr Kuru answered questions from the insurer in letters dated 10 and 12 September 2012. In his opinion, the workplace injury aggravated a pre-existing condition and the aggravation continued. The insurer declined liability on 18 September 2012.

30. Dr Aubrey Yeh, Mrs Fullick’s current GP, completed a Medical Report Disability Support Pension on 5 November 2012. He diagnosed bilateral sciatic (left worse than right) with a date of onset of 5 December 2011. Past treatment was physiotherapy.

31. A Job Capacity Assessment (JCA) Report was carried out face to face by a rehabilitation counsellor and was submitted on 19 November 2012. It was based on Dr Yeh’s report, various specialists’ reports, and reports from Mrs Fullick. It concluded that the condition was verified by medical evidence, and was fully diagnosed, treated, and stabilised.  

32. Past treatment included physiotherapy, hydrotherapy, and pain medication. She continued on pain medication and a home based exercise program including water therapy. Surgery was noted as a possibility in the future but had not been scheduled in the next 24 months.

33. It recommended a rating of 20 points in Table 4 – Spinal function, of the Impairment Table for sciatica – nerve root compression. It described the functional impact as the person is unable to sit for more than 10 minutes and unable to bend forward without difficulty and needs assistance to get out of a chair.

34. It recommended 10 points under Table 3 – lower limb function, for the same condition, noting that the person cannot walk far, does not walk around shopping centres due to cramping and aching, and avoids stairs due to difficulties of negotiating them. She walks with an uneven gait.

35. Fatigue was a major barrier to employment due to chronic pain, limited physical abilities and endurance limitations. Other barriers were Mrs Fullick’s limited formal education, limited work skills and a legal barrier, the workers compensation claim.

36. Her baseline work capacity was assessed at 0-7 hours per week and 8-14 hours per week within two years with intervention.

37. On 25 June 2014, Dr Timothy Lukins, Neurosurgical Registrar, for Mr Michael Edger, neurosurgeon, reported to the Applicant’s GP. Mrs Fullick had previously presented on 15 November 2013 with lower back pain and left-sided sciatic symptoms. Despite no neural compromise demonstrated on MRI, she did benefit from a left L5/S1 transforaminal injection. On follow-up, her left-sided sciatic symptoms were slowly recurring and were the same in nature as they were previously. She continued to be troubled by fasciculation in her left calf which had progressed in severity. Dr Edger had decided to perform nerve conduction studies to exclude any neuromuscular disorder and had offered a repeat L5/S1 transforaminal injection on the left side. Review was planned in eight weeks’ time.

38. A letter from Medicare dated 14 October 2016 set out ‘Compensation related medical services provided between 051211 and 070916’ for Mrs Fullick, with a date of injury of 5 December 2011. It does not appear to include the spinal injections or any physiotherapy.

39. On 10 September 2021, Dr Yeh wrote a letter. He certified that he had known Mrs Fullick for ‘30+’ years. He confirmed that she suffers a permanent incapacity due to her chronic low back degenerative conditions and left sciatica. He wrote ‘Some of the past reports and treatments as shown’. I infer that he included the reports summarised above. He concluded:

    We have stopped giving her spinal injection as the benefit doesn’t seems (sic) to justify the pain (sic) I would say that her low back condition is untreatable.

40. On 5 October 2021, Dr Yeh wrote another letter expressing a similar opinion but with some additional details.

    We have stopped giving her spinal injection as the benefit doesn’t seems to justify the pain suffered with the CT radiology spinal infections, as had been shown in the past.

    …

    Her partner is the official carer for her and does all the house hold tasks for her.

    She uses Crysanal 550 mg as a antiinflammatory and Panadeine Forte for pain.

    She also uses multiple different cream/ointment for local pain management.

    We do not expect her to get any better, inspite of all our efforts over the years.

    She is more likely to get worse in the near to medium future.

41. Dr Yeh completed a Centrelink Medical Certificate on 24 January 2022. Information he had not previously provided included that the patient can do no work for eight hours or more per week.

42. Mrs Fullick had a CT scan of the lumbosacral spine on 28 June 2022. Dr Lena Fosberg’s report concluded:

    Mild spondylosis but moderate disc degenerative disease at L5/S1.

    Moderate to marked right facet OA from L3 to sacrum.

    Bilateral recess narrowing at L3/4 and L4/5 levels due to diffuse disc bulging.

    Right foraminal narrowing due to more prominent disc bulging at L4/5 level.

    Mainly right recess foraminal narrowing at L5/S1, possibility for compromise firstly to the S1 nerve root.

43. The JCA Report submitted on 8 November 2021 was prepared by a registered psychologist with input from an accredited exercise physiologist. It referred to reports of Dr Lukins and Dr Yeh. Mrs Fullick confirmed she last received treatment approximately five years ago. No future treatment was indicated. 

44. Mrs Fullick reported:

    ·Lifting capacity of 2-3 kilograms

    ·Walking capacity of 10-15 minutes

    ·Sitting capacity of 15-20 minutes

    ·Engages in self-care activities independently

    ·Is able to manage light household chores.

45. The JCA concluded that Mrs Fullick’s condition was fully diagnosed and is permanent but cannot be considered fully treated or stabilised because she has not sought appropriate treatment for many years. It was reasonable to suggest that she would benefit from an orthopaedic specialist review to determine appropriate treatment options, as well as a pain management program.

46. Mrs Fullick’s medical condition does not prevent her from using public transport without substantial assistance.

47. Barriers were chronic pain, endurance limitations, and limited physical abilities. Mrs Fullick’s baseline work capacity was assessed as 8-14 hours per week for light less skilled work such as data entry and 15-22 hours per week within two years with intervention.

48. The identified interventions were alternative medical treatment options, pain management program and secondary rehabilitation. A referral was recommended to Disability Management Service.

49. Mrs Fullick presented to a physiotherapist, Mr Michael Picken, on 6 July 2022 for treatment of lower back pain. Mr Picken set out detailed findings on examination. Treatment was soft tissue technique, education regarding the injury and its likely prognosis, as well as a home exercise program.

50. Two pages of the Impairment Tables for spinal function and activities using lower limbs were said to be ‘Dr Yeh’s Assessment’. On both tables, 20 was circled. He wrote a letter dated 10 October 2022 certifying that Mrs Fullick is totally and permanently disabled by her lumbar spine injuries and bilateral sciatica. He deemed her unfit to work permanently.

51. After the hearing, Mrs Fullick provided a letter dated 25 August 2022 from John Hunter Hospital Outpatient Services which acknowledged receipt of a referral from Dr Yeh to attend an outpatient appointment in the Neurosurgery Clinic of the Hospital. The letter advised her that she would be offered a routine (non-urgent) appointment and contacted by mail at least one month before the appointment. The letter gave no indication of when the appointment might be and noted the possibility of making an appointment with a specialist in their private rooms if she did not wish to wait.

    Mrs Fullick’s evidence

52. Mrs Fullick provided the following information in her DSP Application.

53. Her current treatment is medication and physical therapy. Past treatment included lumbar spinal infusions, physiotherapy, aqua therapy and medication and future treatment included medication and physiotherapy.

54. She was not having treatment but was doing her own ‘physio’ and was therefore unable to provide any documents.

55. Mrs Fullick told the Tribunal the following.

56. She was waiting on an appointment with a neurosurgeon from John Hunter Hospital.

57. She had tried to apply for Jobseeker after the DSP application was rejected. She was told by a Disability Employment Service that they could not help her because their system showed that she was getting her DSP back.  

58. Her husband was working casually 80 hours a fortnight during the qualification period. Her mother who lives a five minute drive away, and one of her sons who lives with her, helped her then. Her mother has recently become unwell. She can drive to her mother’s. When she drives to one of her son’s, which is 20 minutes away, she has to break her journey. She can change lanes and check in the rear view mirror.

59. She received about three spinal injections a year for three years but they did not work as well after a while and she cannot have any more. She did not recall Dr Kuru recommending surgery in August 2012. She has had no surgery on her back. She is too scared but may change her mind. 

60. During the qualification period she took anti-inflammatories and pain killers. She did gentle exercises in her daughter’s in-law’s pool in the summer in the late afternoon and on weekends, using a noodle, steps, and weights. The pool has a rail. She can get in and out by herself using the rail as support. Her daughter-in-law is with her. She cannot bend over too well. She puts her towel over a chair. If she has to bend, it takes a little while to get back up.

1. She stretches as recommended by the physiotherapist as often as she can. She is uncomfortable sitting or lying down. She sits and walks all day around the house but does not walk far. She can only sit for a while. Her leg spasms. She has pain in her low back and severe pain in her bottom and left leg mainly. Her right leg plays up sometimes.

2. She told AAT1 the following. She can stand for 15 minutes and then has to stretch. She can sit for 15-20 minutes and then has to get up. Her husband does all the housework. She drives to her mother which is a maximum of 10-15 minutes. Her husband was receiving carer allowance. 

3. She has not seen a specialist about her cramps, which she has been having for years. It got worse since the injury. Dr Yeh said it was caused by her sciatica.

4. In relation to household duties, Mrs Fullick said that her husband does the washing, gets the mail, and picks up a few things from the shops. Her son does the lawn. She does the shopping on-line and peels a few potatoes. She occasionally puts the dishes in the sink. She drives to the local shops to get bread and takes her time to get in and out of a car.

5. She showers independently and can wash her hair but her husband makes sure she is okay. Her leg may cramp at any time and she may fall. She uses the toilet without assistance.

6. Mrs Fullick provided several pages of notes she had made relating to her communications with various officers from the Agency about her DSP and Jobseeker applications. She also provided a video of what she described as her leg spasms (fasciculations).

   Consideration

7. Mrs Fullick suffers from conditions including chronic low back degenerative condition and left sciatica that result in impairment. Those conditions have been fully diagnosed.

8. I agree with the conclusion in AAT1 that Mrs Fullick’s back condition and consequential sciatica, have been fully treated and stabilised. Her condition is long standing. She has undertaken various treatment modalities under the guidance of Dr Yeh. The 2011/2012 specialist evidence about the efficacy of surgery is conflicting. Dr Yeh has been her GP for over 30 years. He has repeatedly expressed his opinion that her conditions are ‘untreatable, permanent and disabling’. I prefer his medical opinion to the opinion expressed in the JCA that she is likely to improve with physiotherapy, hydrotherapy, exercise physiology and pain management. Given her history, those opinions seem to be speculative.

9. I have taken into account the recent referral to a neurosurgeon. When an appointment will occur is unknown. Whether any treatment will be offered is speculative. I infer that Dr Yeh made the referral in response to these proceedings rather than based on his medical judgment. The referral does not cause me to alter my finding.

10. Mrs Fullick’s lower back degenerative condition causes multiple impairments. It affects her spinal function and the function of her left leg. That is consistent with the multiple imaging reports and multiple reports to doctors and to the Tribunal. The relevant Tables are Table 3 – Lower Limb Function, and Table 4 – Spinal function.

11. Dr Yeh’s circled ratings are not helpful. Mrs Fullick’s evidence does not support the ratings he gives.

12. The descriptors in the Tables are very specific. Mrs Fullick does not satisfy a rating other than 0 under Table 3.

13. I am not satisfied that she meets the descriptors for 10 or 20 impairment points in Table 4 but given her history and her evidence, I am satisfied that a rating of 5 points is met because she has some difficulty bending to knee level and straightening up again without difficulty (descriptor (1)(b)).

14. Mrs Fullick’s impairment is not 20 points or more under the Impairment Tables. She does not satisfy the criteria to qualify for DSP. The decision of AAT1 must be affirmed.

    Jobseeker issue

15. During the hearing, Mrs Fullick said that she had tried to apply for Jobseeker at some point when she had applied unsuccessfully for DSP but was advised by the provider that it could not help her because she ‘was getting her pension back’, which was incorrect. Her application did not proceed. I express the hope that the Respondent will ensure that if Mrs Fullick applies for Jobseeker again, her application will proceed smoothly.

    Decision

16. The reviewable decision is affirmed.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 17 March 2023

Date of hearing:

2 March 2023

Date final submissions received:

6 March 2023

Applicant:

In person

Solicitors for the Respondent:

Ms S Navaratnam, Services Australia

Mr T Chang, Services Australia