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

[2017] AATA 1153

Grady and Secretary, Department of Social Services (Social services second review) [2017] AATA 1153 (26 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6995

Re:Scott Grady

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:26 July 2017

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether applicant’s disability support pension should have been cancelled – multiple physical conditions –  mental health condition – alcohol and drug dependency – whether applicant’s conditions fully diagnosed, treated and stabilised at date of cancellation – Tribunal not satisfied all conditions were fully diagnosed, treated or stabilised – whether lower back and limb conditions could be assigned an impairment rating – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26(1), 27(3), 94

Social Security (Administration) Act 1999 (Cth) s 63(2), s 63(4)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member J F Toohey

26 July 2017

BACKGROUND

1. Mr Scott Grady was granted a disability support pension (DSP) in 2003. On 7 June 2016, Centrelink decided that he no longer qualified for the DSP and cancelled his payment. Mr Grady seeks review of that decision.

2. I have to decide whether Mr Grady qualified for DSP on 7 June 2016. He qualified if he met the criteria in s 94 of the Social Security Act 1991 (the SS Act). They are:

   (a)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 points or more according to the Impairment Tables in the SS Act; and

   (b)a continuing inability to work as defined in the SS Act.

3. The legislation concerning qualification for DSP has been amended several times since Mr Grady was granted DSP. In 2003, a person could have a continuing inability to work if he or she was unable to work for 30 or more hours per week. The hours have been reduced so that, to qualify now, a person must be unable to work for 15 hours or more per week. Savings provisions mean that Mr Grady retained the benefit of the provision as it was when he was granted DSP. 

4. The Secretary accepts that Mr Grady had a continuing inability to work at 7 June 2016.  The question is whether he also had an impairment rating of 20 points or more on the Impairment Tables.

   THE IMPAIRMENT TABLES

5. The Impairment Tables are made under s 26(1) of the SS Act. If the Secretary gives the person an assessment notice under subsection 63(2) or (4) of the Social Security (Administration) Act 1999 in relation to reviewing his or her qualification for DSP, the Impairment Tables in force on the day that the assessment notice was given must be applied: s 27(3) of the SS Act.

6. On 2 May 2016, Centrelink sent Mr Grady a letter that I am satisfied was an assessment notice under s 63(2) of the Social Security (Administration) Act 1999.

7. The Impairment Tables in force on 2 May 2016 are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and must be applied by the Tribunal.

8. The Tables are used to assign ratings to impairments according to their level of functional impact. Depending on its severity, an impairment may be given a rating between nil and 30 points, according to whether its effect is nil, mild, moderate, severe or extreme. 

9. An impairment can only be given a rating if the condition causing it is permanent and the impairment is more likely than not to persist for more than two years: cl 6(3) of the Determination. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and it has been fully treated and fully stabilised: cl 6(4). 

10. In determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider what treatment or rehabilitation there has been and whether treatment is continuing or is planned in the next two years: cl 6(5).

11. Fully stabilised means that a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in functional improvement to a level enabling the person to undertake work in the next two years; or significant functional improvement is not expected even with reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment: cl 6(6).

12. Reasonable treatment means treatment that is available at a location that is reasonably accessible to the person, at a reasonable cost, that can reliably be expected to result in substantial improvement in functional capacity, is regularly performed, and has a high success rate and carries a low risk to the person: cl 6(7).

    HISTORY OF MR GRADY’S DSP AND REVIEW

13. Mr Grady was granted DSP in 2003 after suffering a permanent, degenerative injury to his lower back at work in 1992 and an injury to his right arm. He developed depression and became dependent on alcohol and drugs as a result of his back pain.

14. In 2016, Centrelink reviewed Mr Grady’s eligibility for DSP. It does not appear that he was reviewed in the previous 13 years. Centrelink obtained reports from Mr Grady’s general practitioner, Dr Kevin Coleman, and had reports from several other treating doctors. Dr Coleman has seen Mr Grady intermittently since 2010 and been his primary general practitioner since approximately April 2016.

15. On 31 May 2016, a Job Capacity Assessor reviewed Mr Grady’s entitlement to DSP.  She considered his back condition to be fully diagnosed, treated and stabilised and rated it five points. She considered his psychological condition to be not fully diagnosed, treated and stabilised, and his shoulder and upper arm condition to be fully diagnosed but not fully treated and stabilised. 

16. Centrelink determined that Mr Grady had a total impairment rating of five points, meaning he did not qualify for DSP. On 23 August 2016, an Authorised Review Officer at Centrelink affirmed that decision. On 15 November 2016, the Social Services and Child Support Division of the Tribunal came to the same decision.

17. I will consider Mr Grady’s conditions in turn as they were at the date his DSP was cancelled.

    Lower back

18. Medical reports from the 1990s confirm degenerative disc disease in Mr Grady’s lumbar spine and a lower back injury on 27 October 1992.

19. A CT scan of Mr Grady’s lumbar spine in October 2009 showed “multilevel spondylotic degenerative change with disc bulging and facet joint arthropathy” and “a large paracentral focal disc protrusion into the lateral recess with likely focal compromise of the left S1 nerve root” which appeared new when compared with previous imaging in 2007.

20. On 14 May 2012, Dr Marc Russo, specialist pain medicine physician, reported to Dr Coleman that Mr Grady’s treatment should be “multi-modal”. He noted that Mr Grady had tried passive physiotherapy, chiropractic, hydrotherapy, TENS machine, acupuncture and massage, none of which had helped. He recommended cognitive behaviour therapy, a home-based exercise program, medication, and that Mr Grady stop smoking. He said Mr Grady was not prepared to consider spinal surgery but, in any event, it would likely only relieve his leg pain and not his lower back pain.

21. On 8 January 2013, Dr John Christie, neurosurgeon, reported to Dr Coleman that Mr Grady’s most recent MRI showed “advanced disc degeneration at the L5/S1 level as well as signal loss involving the L4/5 disc”. He described Mr Grady’s situation as “very difficult” and noted that he did regular exercise and had joined a health fund in the hope that surgery might be available to him. He noted that Dr Russo had given Mr Grady the option of an implanted stimulator but Dr Christie questioned its effectiveness for “what is in essence mechanical back pain”. He was unable to suggest a suitable procedure for Mr Grady and said he would not do a fusion for degenerative disease because its effectiveness was unpredictable, especially on someone with multilevel disease.

22. In a report to Centrelink dated 26 April 2016, Dr Coleman listed various medications Mr Grady had taken. He said he believed Mr Grady needed surgery but noted that Dr Christie had declined to perform surgery. He thought Mr Grady needed “surgical intervention and [illegible] rehabilitation”. Giving evidence by telephone, Dr Coleman said he did not think Mr Grady’s back condition had ever been adequately treated, and he thought a discectomy “would be the way to go”.

23. Despite Dr Coleman’s opinion, the Secretary accepts that Mr Grady’s lower back condition was fully diagnosed, treated and stabilised on 7 June 2016. I am satisfied that is correct. Mr Grady’s condition is long-standing and he has seen a number of specialists over many years. I prefer Dr Christie’s specialist opinion to that of Dr Coleman. Although Dr Christie does not appear to have considered the less invasive option of discectomy, he was unable to suggest a suitable procedure to relieve Mr Grady’s condition.

    Impairment rating

24. The Secretary submits that Mr Grady’s impairment should be rated five points on Table 4 (Spinal Function) at the date of cancellation. 

25. Table 4 provides there is a mild functional impact rating five points where a 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).

26. Table 4 provides there is moderate functional impact rating 10 points where the person is able to sit in 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 the 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 the chair (if not independently mobile in a wheelchair).

27. With reference to the date of cancellation of his DSP, Mr Grady says he was unable to sustain overhead activities. He says he could place things into his kitchen cupboards because he is tall enough to do so without having to reach overhead. He says he was unable to use his clothesline. He says he could not bend forward to pick up an object at knee height because of his back pain. I accept what he says.

28. In a report dated 15 March 2017, Dr Coleman reported that he had reviewed Mr Grady’s file as at 1 June 2016. He said that, around that time, he would have assessed Mr Grady’s impairment as moderate because of his inability to remain seated for the duration of a “level C consultation” (which I understand to mean 20 to 40 minutes) and his inability to sustain overhead activities.

29. Giving evidence, Dr Coleman said Mr Grady was unable to sustain overhead activities on account of his back condition. He thought Mr Grady possibly had difficulty with the other activities indicating moderate functional impact, but he could not be sure without a functional assessment.

30. The Secretary submits it is questionable whether the difficulty Mr Grady has with overhead activities is due to his back or his shoulder condition but acknowledges that 10 points is arguably appropriate. I am satisfied, on balance, that Mr Grady’s impairment should rate 10 points at the date of cancellation.

31. I note that, in its decision on 15 November 2016, the Social Services and Child Support Division of the Tribunal allocated five points under Table 4. This was on the basis that Mr Grady could walk around a shopping centre independently while leaning on a shopping trolley, he could independently climb the short flight of stairs leading up to his home, he could carry small amounts of shopping to his home, he could drive short distances, and he said he struggled to do anything such as sit, stand or walk, for more than 30 minutes at time. Those descriptors reflect a mild functional impact in Table 3 concerning lower limb function. They are not relevant to rating a spinal impairment.

32. For completeness, I am satisfied that Mr Grady’s impairment was not severe, rating 20 points. For that rating, a person must be 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. While I accept Mr Grady has difficulty with these activities, I am not satisfied that he was unable to perform them at the date of cancellation.

    Shoulders and upper arms

33. In February 2003, general practitioner Dr J Royal reported that Mr Grady had suffered a severe laceration of his right arm resulting in poor grip strength, poor manual dexterity, numbness in the right forearm, and weakness which worsened with continuous use.

34. On 26 April 2016, Dr Coleman reported that Mr Grady had bursitis in both shoulders which he listed under “other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”.

35. In his report dated 15 March 2017, reviewing Mr Grady’s file as at 1 June 2016, Dr Coleman referred to an ultrasound on 12 March 2013 which found “right small partial-thickness tear of the subscapularis tendon, and thickening of the subacriomial burse and bunching of the bursa on abduction which may indicate a degree of burisitis(sic)”. The ultrasound also identified a “left partial thickness tear of both the suparspinatua and subscapularis tendons”. Dr Coleman noted that Mr Grady had intra-articular injections into the shoulders in March 2013 and August 2013, with good effect for 12 months, but that any further injections were contra-indicated.

36. In April 2016, the Job Capacity Assessor assessed Mr Grady’s condition was not fully treated or stabilised on the basis of insufficient medical information about his symptoms, functional impacts, treatment and prognosis. For reasons which are not clear, the Social Services and Child Support Division of the Tribunal did not refer to this condition in its decision.

37. The Secretary accepts, and I am satisfied, that Mr Grady’s shoulder condition was fully diagnosed at 7 June 2016. However, the Secretary says, it was not fully treated and stabilised at that date.

38. Mr Grady told the Tribunal he had some physiotherapy for his back but not for his shoulders. He said Dr Coleman had told him massage would help but he could not afford it. Dr Coleman gave evidence that he did not think Mr Grady’s shoulder condition had been adequately assessed or treated. He thought physiotherapy would have some value, if limited; it would not repair the condition but would help Mr Grady live with it. The real problem, he said, was access to services and being able to afford treatment.

39. I accept Mr Grady’s evidence that he has a lot of difficulty and pain because of his shoulders. However, I am not satisfied that this condition was fully treated and stabilised in June 2016. None of the medical reports indicate that was so. Mr Grady has had limited treatment and Dr Coleman still believes physiotherapy and massage would assist. 

40. If Mr Grady’s condition had been fully treated and stabilised in June 2016, I would find that it had at least a mild functional impact. It may have had a moderate functional impact as well in that Mr Grady reports difficulty with most of the descriptors for that rating.  However, Dr Coleman thought a functional assessment was required to determine the extent of his impairment including whether difficulty with activities such as tying shoelaces was due to his lower back condition rather than his shoulders.

    Mental health condition

41. A report to Centrelink on 7 November 2002 by Dr Susmita Naidu shows that Mr Grady had depression which was being treated with Cipramil. On 7 February 2003, Dr Royal reported that Mr Grady had “depression/drug and alcohol abuse” (and he was “working hard to stay off drugs”). Dr Russo reported on 14 May 2012 that, on psychometric testing, he scored “positive for moderate anxiety, absent for depression and positive for moderate stress.” On 26 April 2016, Dr Coleman referred to a diagnosis of anxiety and depression which had its onset in 1992, for which Mr Grady was receiving “intermittent counselling”.

42. On reviewing Mr Grady’s DSP in 2016, Centrelink was required to apply the Impairment Tables in force at that time. The Tables were amended as of 2012 so that Table 5 (Mental Health Function) now requires that a diagnosis of a mental health condition 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)”. 

43. Mr Grady has never seen a psychiatrist or clinical psychologist. Dr Coleman holds a Master of General Practice Psychiatry (Clinical) from Monash University but confirmed to the Tribunal that it is not a degree in psychiatry for the purposes of the Impairment Tables.  He confirmed that Mr Grady has not been referred for psychometric testing or to a psychiatrist because he cannot afford the cost. Unfortunately, Dr Coleman has not referred him to a psychologist under a GP Mental Health Plan for reasons to do with availability of appointments at times when Dr Coleman is able to make a referral.

44. It is most unfortunate that Mr Grady has not been diagnosed by a clinical psychologist or a psychiatrist. Despite being long-standing, his condition cannot be considered fully diagnosed for the purposes of the Impairment Tables at 7 June 2016. It is also not clear on the information before me that it was fully treated and stabilised at that date but it is not necessary to finally decide that question.

    Alcohol and drug dependency

45. Mr Grady’s use of alcohol and drugs to help cope with his chronic pain is documented in reports dating from 2002. He had a period of eight or nine years’ abstinence and relapsed several times over the past two to three years.

46. In his report dated 15 March 2017, Dr Coleman said Mr Grady made “substantial improvement” following a 10-month residential rehabilitation program through the Salvation Army in 2002 but has had occasional relapses since “especially given the unremitting nature of his chronic intractable pain”. He said Mr Grady’s drug and alcohol use had detrimentally affected his family and social relationships and he was estranged from his children and parents. He rated Mr Grady’s impairment as “moderate to severe”.

47. Giving evidence, Dr Coleman said Mr Grady’s use of alcohol and drugs to deal with his chronic pain cannot be separated from what he believes is Mr Grady’s post-traumatic stress disorder (although there is no formal diagnosis of PTSD). He said he referred Mr Grady for drug and alcohol counselling in late 2016 but he did not attend. He does not believe Mr Grady’s condition was fully treated and stabilised in June 2016.

48. On this basis, Mr Grady’s alcohol and drug use as at 7 June 2016 cannot be given a rating on Table 6 (Functioning related to Alcohol, Drug and Other Substance Use).

    Chronic pain

49. Mr Grady has lived with chronic pain for many years. There is no Impairment Table dealing with the effect of pain itself on a person’s ability to function. The introduction to the Impairment Tables instructs that any impairment resulting from chronic pain is to be assessed using the Table relevant to the area of function affected: cl 6(9). So, for example, chronic back pain is rated according to Table 4 (Spinal Function) as part of the total effect of Mr Grady’s back condition.

    Lower limbs

1. A number of reports refer to pain radiating down Mr Grady’s legs caused by his lower back condition. Where a single condition causes multiple impairments, each impairment must be assessed under the relevant Table: cl 10(3).  So, subject to being fully diagnosed, treated and stabilised, a condition causing impairment of lower limb and spinal functions will require assessment under Table 3 (Lower Limb Function) and Table 4 (Spinal Function).

2. On 14 May 2012, Dr Russo recorded that Mr Grady had been experiencing “radiating leg pain with the left leg pain going down into the foot and the right leg pain going to the knee” which was intermittent in nature. 

3. In his report on 8 January 2013, Dr Christie said there was no evidence on Mr Grady’s most recent MRI of nerve root compression in his spine, and his current symptoms were “pretty much now confined to back pain with minimal leg involvement”. 

4. In his report on 26 April 2016, Dr Coleman said with reference to Mr Grady’s “discogenic lower back pain” that he had “chronic sciatic [illegible] and pain down both legs”. In his view, future treatment was “review radiology and neurosurgeon”.

5. The Job Capacity Assessor recorded in June 2016 that Mr Grady told her he experienced buttock pain and pain affecting both legs.

6. It is difficult to determine whether Mr Grady’s condition was fully diagnosed, treated and stabilised at 7 June 2016. However, as the medical evidence indicates that it is a symptom of his lower back condition which was itself fully diagnosed, treated and stabilised, I am satisfied that his lower limb condition was also fully diagnosed, treated and stabilised.

   Impairment rating

7. There is limited information in the medical reports, or from Mr Grady, about the effects of his leg pain; it is not documented separately from his back condition and he did not refer to it separately before the Tribunal. As I understand it, the information before the Tribunal does not support the conclusion that his impairment would have rated 10 points on Table 3 (moderate functional impact) on 7 June 2016. That rating requires that at least one of the following applies: the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; to use stairs or steps without assistance; or to stand for more than five minutes.

8. Mr Grady told the Tribunal that, at 7 June 2016, he was doing his own shopping and was driving seven to eight kilometres to the doctor. That appears to accord with what he told the Social Services and Child Support Division, that he could walk around a shopping centre independently while leaning on a trolley for support, that he could independently climb the short flight of steps up to his home, and he struggled to sit, stand or walk for more than 30 minutes at a time. On this basis, I find that Mr Grady’s lower limb impairment did not rate ten points at 7 June 2016. It is not clear that he satisfied the rating of five points but, even if he did, it would be insufficient to give him a total impairment rating of 20 points.

   CONCLUSION

9. Mr Grady finds himself in a very difficult position. It is possible that, with appropriate treatment, some or all of his conditions could improve; alternatively, they could have been found fully diagnosed, treated and stabilised during the qualification period. According to Dr Coleman, the reasons not all his conditions were fully treated and stabilised included Mr Grady’s financial situation and a lack of suitable services in his area. 

10. As set out above, reasonable treatment means treatment that is available at a location that is reasonably accessible to the person, at a reasonable cost, that can reliably be expected to result in substantial improvement in functional capacity, is regularly performed, has a high success rate and carries a low risk to the person: cl 6(7). I accept that there are real limitations on Mr Grady’s ability to obtain reasonable treatment but I am satisfied that reasonable treatment was available to him.

11. For these reasons I am satisfied that Mr Grady’s lower back condition was fully diagnosed, treated and stabilised during the claim period, and that his spinal impairment rated 10 points and his lower limb condition five points at most. I am not satisfied his other conditions were fully diagnosed, treated and stabilised.

12. I affirm 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 Senior Member J F Toohey

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

Associate

Dated: 26 July 2017

Date(s) of hearing:	3 July 2017; 11 July 2017
Applicant:	In person
Solicitors for the Respondent:	J Larcombe, Department of Human Services