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

[2017] AATA 696

Goodey and Secretary, Department of Social Services (Social services second review) [2017] AATA 696 (17 May 2017)

Division:GENERAL DIVISION

File Number(s):2016/5399      

Re:Mr Cole Goodey

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Anna Burke, Member

Date:17 May 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Anna Burke, Member

CATCHWORDS – SOCIAL SECURITY – claim for Disability Support Pension – whether physical, intellectual or psychiatric impairments – whether conditions fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 impairment points – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; ss 63, 80 & 118(13)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paras 6(3)(a) & 6(4)
Social Security Act 1991; ss 26, 27(3) & 94(1)

Social Security and Other Legislation Amendment Act 2011

REASONS FOR DECISION

Anna Burke, Member

17 May 2017

INTRODUCTION

1. Mr Cole Goodey is seeking a second tier review of the determination of Centrelink to refuse to grant him a Disability Support Pension (DSP) as he did not meet the requirements of s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Social Services.

2. The application was heard on 3 April 2017. Mr Goodey was self-represented. Mr Tim de Uray, government lawyer in the Freedom of Information and Litigation Team, Department of Human Services appeared for the respondent. Dr Christopher Minogue, specialist occupational physician and medical advisor with the Centrelink Health Professional Advisory Unit gave evidence.

   Background

3. Mr Goodey, who is now 52 years of age, resides in a small country town and is the primary carer of his young daughter. Mr Goodey has previously worked as a postal worker, courier and labourer; he ceased work five years ago to care for his young family.

4. Mr Goodey applied for a DSP on 29 February 2016, referring to the following medical evidence to support his claim: disc fusion in his neck, chronic pain down both arms, loss of strength in both arms, fatigue, loss of balance, reduced movement in neck, lower back pain, difficulty holding his arms/hands above waist height for more than 10 minutes and an inability to sit comfortably.

5. On 19 April 2016 Centrelink conducted a job capacity assessment (JCA) on Mr Goodey. The JCA report found:

   ·Spinal disorder was fully diagnosed, treated and stabilised and was assigned five points under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination);

   ·Depression was considered temporary and had not been verified by a psychiatrist or clinical psychologist as required by the Determination;

   ·Circulatory system condition of right thyroid nodule/right hemithyroidectomy was permanent and had been fully diagnosed treated and stabilised but had been awarded nil points;

   ·Mr Goodey was assessed as having a baseline work capacity of 8 to 14 hours per week   due to symptoms of condition and a capacity for 15 to 22 hours per week within two years (with intervention).  

6. On the 24 April 2016 Centrelink wrote to Mr Goodey to inform him that his claim for DSP had been refused as he did not have a rating of 20 points or more under the Determination.

7. On 8 June 2016, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision and found Mr Goodey had not undertaken a program of support.

8. On 29 August 2016 the Social Security and Child Support Division of the Tribunal (Tier 1) affirmed the decision, determining that Mr Goodey’s conditions attracted a combined total of 15 points under the Determination, comprised of the following: 5 impairment points under Table 4 for cervical spine disturbance, 5 impairment points under Table 1 for function requiring physical exertion and stamina, and 5 impairment points under Table 2 for upper limb function.

9. On 14 September 2016 Mr Goodey requested a review of the Tier 1 decision, by the General Division of the Tribunal (Tier 2) as he believes: “a different decision could have made due to some of the information I provided was not taken into account”.

10. On 22 February 2017 the Health Professional Advisory Unit (HPAU) of Centrelink undertook a medical review of Mr Goodey at the request of the respondent. Dr Minogue awarded 15 points for his conditions, but in this instance awarded his spine (neck and back) condition 10 impairment points under Table 4 and his upper limb condition 5 impairment points under Table 2.

    ISSUES

11. The Tribunal needs to consider the following relevant issues:

    ·whether the decision to not grant Mr Goodey DSP was correct;

    ·whether, at the time of application, Mr Goodey suffered an impairment of 20 points or more under the Determination; and

    ·whether he had a continuing inability to work.

    RELEVANT LEGISLATION AND ISSUES

12. Section 94(1) of the Social SecurityAct1991 (the Act) provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.

13. In order to qualify for DSP, Mr Goodey must satisfy the requirements of s 94 of the Act as at 30 May 2016, 13 weeks after lodgement of his application. The administration act provides for the start date for a qualified DSP claimant is the date of claim, Mr Goodey lodged his DSP claim on29 February 2016, the only exception is if the individual becomes qualified within 13 weeks of lodging a claim, in which case the start date is the date they became qualified in Mr Goodey's case this would be 30 May 2016

14. It is agreed that, at the time of application, Mr Goodey suffered medical impairments arising from a cervical canal stenosis, lumbar disc degeneration, osteoarthritis in the right hand, nodular thyroid disease, gout and depression that caused impairment and that he therefore satisfied s 94(1)(a) of the Act.

15. The Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

16. Paragraph 6(4) of the Determination states a condition is “permanent” if it is:

    (d)fully diagnosed by an appropriately qualified medical practitioner; and

    (e)fully treated; and

    (f)fully stabilised; and

    (g)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

17. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

18. In addition, the introduction to Table 5 of the Impairment Tables, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

19. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (Paragraph 5(2) of the Determination).

20. Paragraph 6(1) of the Determination sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

21. The Determination also provides, at Paragraph 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

22. It is necessary, therefore, to consider the applicant’s medical conditions with reference to the applicable Impairment Tables.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

23. The evidence before the Tribunal included two sets of documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”. The Tribunal also considered the Curriculum Vitae of Dr Christopher Minogue, expert witness.

    Does Mr Goodey have a physical, intellectual or psychiatric impairment?

24. Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment or impairments.

25. There is no dispute between that parties that Mr Goodey meets this requirement and that he is suffering from cervical canal stenosis, lumbar disc degeneration, osteoarthritis in right hand, nodular thyroid disease, gout and depression. I am satisfied that the evidence supports this and find accordingly.

26. Section 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.

    Does Mr Goodey have medical conditions that can be rated at 20 points or more under the Impairment Tables?

    Cervical canal stenosis / Lumbar disc degeneration

27. Mr Goodey undertook a CT lumbar spine examination on 19 February 2014. The report of Dr J Tamangani, radiologist, concluded that there was moderate degenerative bilateral exit foraminal stenosis and mild canal stenosis at L4/5 and moderate degenerative left exit foraminal stenosis at L5/S1.

28. Mr Goodey undertook an MRI on 4 March 2015. The report of Dr A Meakin concluded there was advanced multilevel degeneration with multilevel high grade central canal and foraminal narrowing. A severe central canal stenosis at C4/5 is associated with cord compression and myelomalcia. Neurosurgical referral is recommended as a matter of urgency.

29. On 28 May 2015, Dr King, neurosurgeon, performed an anterior cervical discectomy and fusion at C4-C5 and C5-C6, on Mr Goodey. Dr King’s report stated: “On examination he was to be floridly myelopathic with increased tone, significant weakness at shoulder abduction and elbow flexion with brisk reflexes, additionally he had brisk knee and ankle jerks and upgoing plantars. His MRI revealed significant degenerative disc disease at C4-C5, C5-C6 and C6-C7 with the most significant central canal stenosis at C4-C5 and C5-C6 with cord signal change at these levels. He had multilevel foraminal stenosis.”

30. Dr Megan Helper, Mr Goodey’s General Practitioner, opined on 26 February 2016 that “[Mr Goodey was] having ongoing issues with degeneration of the cervical spine for 3-4 years. Last year seen by a neurosurgeon Dr King and Royal Melbourne Hospital and underwent spinal fusion. This was more aimed at preventing degeneration. I have review Cole today, he has ongoing issues with pain in both arms and loss of power. He also suffers from fatigue. We are treating with analgesics and he has seen a physiotherapist in the past. It is unlikely that there will be a significant improvement in his condition”.

31. Dr J Laidlaw, neurosurgeon, reviewed Mr Goodey on 8 March 2016 for Dr King who had performed surgery. He opined that Mr Goodey’s fusion is solid and he has no abnormal movement. He further stated that there was some ongoing fine motor movement difficulty in his hands and unsteadiness of gait due to myelopathy (changes in the cord). He noted that Mr Goodey looked well, in no distress, gait fine, was perfectly independent and overall things seemed to be relatively stable. Mr Goodey reported that he was happy overall with the outcome of the surgery and there appears no need to consider further surgery at this time.

32. A further report from Dr Helper dated 4 May 2016 outlined numerous medical conditions leading to Mr Goodey’s inability to work. The main issue was cervical spine canal stenosis, a procedure not aimed at improving his symptoms but rather for spine stabilisation and to prevent spinal cord compression. He stated that the cervical spine issue resulted in symptoms of neck pain and stiffness, numbness and reduced function of both arms and hands, and made tasks such as driving and using a computer difficult and painful.

33. Dr Minogue’s report of 22 February 2017 accepted that Mr Goodey’s cervical spine condition is likely to prevent him from sustaining overhead activities due to both fusion related restriction of neck extension and discomfort in fused spinal segments. He therefore accepted the descriptors (a) and (b) for 10 impairment points under Table 4 of the Impairment Tables. In addition, he found five impairment points under Table 2 for the persisting upper limb neurological deficits.

    Osteoarthritis in right hand

34. Dr Helper’s report of 4 May 2016 noted that Mr Goodey is suffering from osteoarthritis in his right hand. Dr Minogue opined in his report dated 22 February 2017 that this condition was mild and unlikely to add significantly to the above neurological impairment and thus a rating of zero points was awarded under the Impairment Tables.

    Nodular thyroid disease

35. Mr Goodey underwent thyroid surgery for benign multinodular thyroid disease in 2016. The report of Dr Christopher Minogue opined that: “On the available evidence the treated thyroid disease is presumably not symptomatic and thus a rating of zero points under Table 1 of the determination is applicable.

    Gout

36. Dr Minogue opined in his report dated 22 February 2017 that gout was implied but not stated in available medical evidence. In a phone discussion with Dr Helper, diagnosis of gout was confirmed. The gout attacks are infrequent with no evidence of any permanent related joint damage and were controlled with medication, thus a rating of zero points was awarded under the termination.

    Depression

37. A medical certificate from Dr Pretorius, Mr Goodey’s General Practitioner at the time, 30 October 2014 notes temporary depression which is likely to show considerable improvement within two years.  The Secretary contends that, at the time of the application, Mr Goodey’s depression had not been diagnosed by either a clinical psychologist or a psychiatrist and therefore could not be assigned an impairment rating under Impairment Table 5. This was reaffirmed in Dr Minogue’s report of 22 February 2017.

    DOES MR GOODEY HAVE A CONTINUING INABILITY TO WORK?

38. To qualify for the DSP, Mr Goodey must not only satisfy the requirement that he has an impairment with a rating of 20 points or more under the Impairment Tables, he must also have actively participated in a program of support within the meaning of subsection 94(3C) of the Act, prior to the his claim for DSP. If he has not done so, he cannot be found to have a continuing inability to work.

39. Mr Goodey has not completed a program of support.

    FINDINGS

40. In consideration of all the evidence before the Tribunal, there is no evidence that Mr Goodey’s mental condition was fully diagnosed by a clinical psychologist or psychiatrist and fully treated and stabilised as at the 30 May 2016. It therefore cannot be rated on the Impairment Tables.

41. Mr Goodey stated at the hearing that he had been very low, but had pulled himself out of it for his girls. Mr Goodey’s 9 year old daughter is in his full time care and his 14 year old child currently lives with her grandparents. Mr Goodey was adamant that he wanted his daughters to have a childhood, explaining that he had to look after his mother when he was a child which had robbed him of his childhood, and he did not want this to happen to his children. He was managing his pain and depression by simply getting on with things.

42. Mr Goodey further stated at the hearing that he is in constant pain, but found it difficult to objectively assess the pain, as everyone’s pain threshold is different. Mr Goodey has been treated in the public health system for his spinal fusion; it was performed four weeks after his initial assessment by a specialist. Mr Goodey asserts this demonstrates the severity of his condition. The Tribunal concurs with that view.

43. The respondent noted that Mr Goodey was a very candid and honest witness who has a very serious condition, but that it was not quite serious enough to attract 20 impairment points under the Determination.

44. Dr Christopher Minogue, occupational physician, also gave evidence during the hearing and verified that his report 22 February 2017 was true and accurate. He opined that the report of Dr Laidlaw, neurosurgeon, was the most reliable medical evidence in respect of Mr Goodey’s reasonable range of movement and daily living as impacted by the spinal fusion. Under cross-examination Dr Minogue did concur that the scarring of the spinal cord could impact on Mr Goodey’s level of pain and range of movements. However, Dr Minogue did not find the current medical diagnosis would account for Mr Goodey’s fatigue and numbness and soreness in his arms.

45. Dr Minogue did indicate that Mr Goodey’s pain in both upper limbs could be the result of ongoing compression of the nerve roots at C6-C7. An MRI scan would be needed to confirm symptoms and surgery would need to be considered, but that this could not be considered as it was not fully diagnosed, treated and stabilised at the time of Mr Goodey’s DSP application.

46. At the hearing, Mr Goodey stated that he had a further specialist review in September 2016. At this time he was tested on his range of movements, indicating he could not lift his arms above shoulder height and could not bend to pick something up. Mr Goodey advised that if he needs to reach up high for an object on the supermarket shelf, he literally uses one arm to lift the other up.

47. Furthermore, Mr Goodey does not undertake any household activity, relying upon his nine-year-old daughter to do the majority of the housework. He has placed steps under the clothesline so his daughter is able to hang the washing on the line and that she attempts to assist with the cooking, but he is concerned about her young age and her height when she is near the stove. Mr Goodey asserted he has no stamina, fatigues easily and that after exertion his arms feel like they are carrying a 10 litre bucket of water. He also told the Tribunal that he has trouble picking up a kettle and cannot even squeeze his daughter’s finger. He stated that while he had reported he mowed the lawn at previous hearings, no one had asked what sort of mower he used. He stated that he has a ride-on mower with a key start and that after mowing the lawn he is exhausted.

48. Mr Goodey testified that the process of applying for a DSP had been frustrating and hard and that at no stage had anyone explained that he was required to undertake a program of support.

49. Under cross-examination Mr Goodey advised he had driven from his home (which is 35 km outside of Ararat), some 230 km from Melbourne to the hearing. He had been required to take numerous stops en route as he experienced constant pain and had to turn his whole body to check the side mirrors of his car when driving. He told the Tribunal that he endured the pain as he had no choice but to drive given the lack of public transport options available in his community.

50. Mr Goodey stated that he cannot bend from both the pain and instability on his feet, that he would struggle to pick up a paper clip from a chair, and would need to hold onto an object to make himself stable. He further indicated that he struggles to use his hands and fingers, that when he is on the computer he often types incorrectly because he cannot get his fingers to work. Mr Goodey has reduced his pain medication because of the side-effects which resulted in him dropping things and losing his balance.

1. The Tribunal further notes that Mr Goodey sat through the hearing for an hour and half but was in obvious pain.

2. On assessing all the evidence before the Tribunal, a decision has to be reached about whether Mr Goodey has an accepted diagnosis of cervical canal stenosis and lumbar disc degeneration resulting in chronic lower back pain which meets the required 20 points under Impairment Table 4. This would require Mr Goodey’s spinal impairment to have a severe functional impact on activities involving spinal function. Under Impairment Table 4, an impairment will have a severe functional impact if:

   (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 Tribunal Tier 1 did not award Mr Goodey 10 impairment points under Table 4 of the Determination as he could remain seated for at least 10 minutes. This Tribunal did award Mr Goodey 10 impairment points under Table 4. The Tribunal did not find that Mr Goodey attracted 20 points under table 4 of the determination but concurred with the findings of the HPUA that Mr Goodey attracted 10 impairment points under Table 4.

3. The Tribunal found that Mr Goodey’s conditions caused multiple impairments and that each impairment could be assessed under various impairment tables of the Determination. The Tribunal determined this was not double counting of impairments as some of the functional impacts experienced by Mr Goodey were not covered by the Table 4 descriptors.

4. The criteria for mild functional impact under Table 1, Functions requiring Physical Exertion and Stamina of the Determination states:

   5 There is a mild functional impact on activities requiring physical exertion or stamina.

   (1)       The person:

   (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

   (i)  walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

   (ii)  performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

   (b)  is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

5. The Tribunal awarded Mr Goodey five points under Table 1, functions requiring physical exertion and stamina. The Tribunal accepted Mr Goodey’s evidence at the hearing that he has a great deal of difficulty performing day-to-day activities and that he relies extensively on his young daughter to perform many household tasks, that he is constantly fatigued in his effort to perform daily living activities. Furthermore, the Tribunal was not convinced that Mr Goodey was perfectly independent, as noted in Dr Laidlaw’s report which was relied upon by Dr Minogue in his report.

6. The Tribunal awarded Mr Goodey five points under Table 2 ,Upper Limb Function. The Tribunal accepted Dr Minogue’s report of 22 February 2017 and evidence at the hearing which found that Mr Goodey suffered from persisting upper limb neurological defects.

7. The descriptors for mild functional impact under Table are as follows:

   There is a mild functional impact on activities using hands or arms.

   (1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

   (a)

   picking up heavier objects (e.g. a 2 litre carton of liquid or  carrying a full shopping bag);

   (b)       handling very small objects (e.g. coins);

   (c)       doing up buttons;

   (d)       reaching up or out to pick up objects.

8. The Tribunal found Mr Goodey could be awarded 10 impairment points under Table 4 of the determination. Additionally, on assessing all the evidence before the Tribunal, it finds that Mr Goodey should be awarded five impairment points under Table 2, Upper Limb Function and an additional five impairment points under Table 1, Functions Requiring Physical Exertion and Stamina.

9. As Mr Goodey’s conditions do not attract an impairment rating of  20 points or more under a single impairment table of the Determination, he cannot be considered to have a severe impairment under subsection 94(3B) of the Act. As Mr Goodey has not been found to have a severe impairment, he must actively participate in a program of support as set out in the participation determination. As noted earlier, Mr Goodey has not completed his program of support and therefore does not qualify for the DSP.

   CONCLUSION

10. Having carefully considered all the evidence before the Tribunal, I find that Mr Goodey’s cervical canal stenosis, lumbar disc degeneration resulting in chronic lower back pain condition does meet the required 20 points. I find that his conditions should be assigned a rating of 10 points on Table 4, 5 points on Table 1 and 5 points on Table 2. Whilst Mr Goodey does meet the required 20 points, he has not completed a program of support (as required by section 94(2)(aa) of the Act) and therefore does not satisfy section 94(1)(c) of the Act.

    DECISION

11. The Tribunal affirms the decision under review.

I certify that the preceding 61(sixty-one) paragraphs are a true copy of the reasons for the decision herein of

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

Dated: 17 May 2017

Date of hearing:

3 April 2017

Applicant:

Solicitors for the Respondent:

Self-represented

Mr Tim de Uray, Department of Human Services