Gregory Foster and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 648
[2013] AATA 648
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1852
Re
Gregory Foster
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 12 September 2013 Place Brisbane The decision under review is affirmed.
...................[Sgd].....................................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowance – Disability support pension – Less than 20 points under the Impairment Tables – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
12 September 2013
INTRODUCTION
The applicant, Mr Gregory Foster, was injured at work in 2009. He was placed on restricted duties, and his position was later terminated on 22 March 2012. He has not worked since. Mr Foster lodged a claim for disability support pension (“DSP”) on
16 May 2012. Mr Foster claims to have impairment in his lower back and neck, and also due to depression.
Centrelink made a decision to reject Mr Foster’s claim on 23 May 2012.
On 21 January 2013, an Authorised Review Officer affirmed the decision, as did the Social Security Appeals Tribunal on 5 April 2013.
The application for review of the decision by the Administrative Appeals Tribunal was lodged on 22 April 2013.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:
·must have a physical, intellectual or psychiatric impairment;
·his impairment must be of 20 points or more under the Impairment Tables;[1] and
·he must have a continuing inability to work.
[1] See Social Security Act 1991 (Cth) s 23, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
A person has a continuing inability to work under s 94 of the Act if:
· They have an inability to work, due to their accepted impairments for 15 hours or more a week, and
· they have a severe impairment of 20 points or more under a single Table, or they have actively participated in a program of support.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”).
The relevant period in which Mr Foster must satisfy all the criteria to qualify for DSP was from 16 May 2012 to 15 August 2012.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”)[2], it is necessary to determine whether Mr Foster’s condition/s can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.[3]
[2] which was made by the Minister pursuant to s 26(1) of the Act.
[3] s 6(3) of the Determination.
Mr Hamilton, for the respondent, accepts that Mr Foster has disc degeneration at L3/4 and L4/5, and that it is appropriate to rate the impairment from this condition as 10 impairment points from Table 4 of the Determination. The Secretary accepts that
Mr Foster suffers from depression, but submits that as the condition has not been fully treated and stabilised, it can not be given an impairment rating.
The issues that I must determine are:
1. which of Mr Foster’s medical conditions, if any, can be assigned an impairment rating, and
2. what rating those conditions can be assigned, and
3. if he has 20 impairment points or more, whether he has a continuing inability to work.
CONSIDERATION
Which of Mr Foster’s medical conditions, if any, can be assigned an impairment rating?
Lumbar spine – chronic lower back pain
In the medical report accompanying Mr Foster’s application for DSP,[4] Dr Peter Hinchy stated that Mr Foster has chronic lower back pain, diagnosed by MRI in 2009, and treated at the Wesley Hospital pain clinic. The MRI report dated 11 December 2009[5] indicates that at L3/4 large anterocentral annular tear and disc bulge, and at L4/5 minimal posterocentral disc bulging were demonstrated on the scan.
[4] Exhibit 1, T-Document 10, pp. 95-102.
[5] Exhibit 2.
The discharge summary from the Wesley Hospital Rehabilitation Centre indicates that Mr Foster was recommended to continue his prescribed exercise regime of stretching, gym, stability training and cardiovascular exercise.[6] Mr Foster told me he underwent
18 months of physiotherapy and hydrotherapy. He was also treated at a gym and given exercises to perform at home. He stated that he does exercise at home, although not as often as he should. He takes oral medication for pain relief as required. Dr Hinchy opined that this condition would continue to affect Mr Foster’s ability to function for more than 24 months.
[6] Exhibit 1, T-Document 7, p. 92.
After considering all of the evidence I conclude this condition has been fully diagnosed, treated and stabilised, and can be given a rating from the impairment tables.
Cervical spine – neck pain
Mr Foster stated that he suffers from neck pain and reduced range of movement of the neck. He provided the Tribunal with a cervical spine CT scan report dated 2 June 2010.[7] The impression of the radiologist, Dr J. Schnell was that there was disc pathology at C5/6 and C6/7 and posterior disc bulge at C5/6. Dr Schell opined that additional changes noted on the CT scan (mild posterior disc bulge C4/5 and C3/4) were probably not of clinical significance.
[7] Exhibit 3.
I can not determine if there is any clinical correlation with the pathology demonstrated on the CT scan and the symptoms he complains of, as Dr Hinchy has not mentioned any condition that affects Mr Foster’s spine in the medical report accompanying the claim, and there is no other medical evidence that refers to Mr Foster having a medical problem in his neck or cervical spine. On the basis of the evidence before me, I conclude that
Mr Foster has some neck pain, however the condition causing that pain has not been fully diagnosed, treated and stabilised. For these reasons impairment in Mr Foster’s cervical spine and neck cannot be rated.
Depression – “Adjustment disorder with mixed anxiety and depressed mood”
Dr Hinchy stated Mr Foster suffers from depression, present since 2009. Dr Hinchy stated that the condition was treated with Lexapro (an oral antidepressant), and opined that this condition would impact on Mr Foster’s ability to function for more than
24 months.
Table 5 of the Determination is used when a person has a permanent mental health condition. The introduction to the Table states the diagnosis of the condition must be made by an appropriately qualified medical practitioner, with evidence from a psychologist if the medical practitioner is not a psychiatrist.
Although Mr Foster claims many psychiatrists assessed him, and he has recently been treated by a psychologist about three times, there are no reports from either a psychiatrist or a psychologist before the Tribunal. Dr Hinchy made no reference to
Mr Foster having been assessed by either a psychiatrist or a psychologist. There is a report in evidence, headed “Psychiatric Impairment Rating Scale”.[8] That report records a diagnosis of: “Adjustment Disorder with Mixed Anxiety and Depressed Mood”. It is unclear who authored that report, or what authority the author relied on to record the diagnosis. There is also the final page only of what appears to be the Medical Assessment Tribunal Decision, which concludes that the same diagnosis is the injury.[9] Mr Foster’s name does not appear on that report, other than in the right hand corner, in hand writing, and the author’s qualifications are not stated. There is insufficient evidence before the Tribunal for me to be satisfied that the diagnosis of Mr Foster’s mental disorder/s has been made by an appropriately qualified practitioner, or by Dr Hinchy with evidence from a clinical psychologist. Mr Foster said he has not had psychotherapy to treat his depression and he is adverse to having any. Mr Foster admitted he does not know what psychotherapy is, but said he does not like the sound of it. Since the only treatment he has received from a psychologist commenced after the relevant period, I conclude that Mr Foster’s mental health condition was certainly not fully treated within the relevant period. The condition cannot be assigned a rating as it was not fully diagnosed or treated within the relevant period.
[8] Exhibit 1, T-Document 8, p. 93.
[9] Exhibit 1, T-Document 9, p. 94.
What rating, if any, can be assigned for Mr Foster’s chronic lower back impairment?
Mr Foster told me he has difficulty when squatting, he gets radiating pain in his buttocks, thighs and knees, down to his ankles. He said he gets ‘puffy pain’ which feels like
‘two triangles’. The pain stops him riding his motorbike. He still drives a car, although he experiences discomfort when he does so. Mr Foster said he prefers to commute by train when possible; he has a train station seven minutes walk from his home.
Table 4 of the Determination is used to assess impairment of spinal function. Table 4 reads:
Table 4 – Spinal Function
Introduction to Table 4
· Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
- a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
· In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Points
Descriptors
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 trunk 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 a moderate functional impact on activities involving spinal function.
(1) 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 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 a 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.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
The introduction to Table 4 of the Determination states that an impairment rating must not be assigned on the basis of self-reported symptoms alone. Corroborating evidence of the person’s impairment, can include a report from; a treating doctor; a medical specialist; and an allied health practitioner, such as a physiotherapist, occupational therapist or exercise physiologist.
Dr Hinchy stated Mr Foster’s current symptoms are due to chronic lower back pain, manifested as pain in both upper legs. In response to a question asking how this condition affects his capacity to function, Dr Hinchy indicated that Mr Foster has difficulty squatting and lifting.
Although the Job Capacity Assessment was performed by both a psychologist and an accredited exercise physiologist,[10] it appears that the conclusions draw in that report were on the exclusive reliance of Mr Foster’s self-reporting.
[10] Exhibit 1, T-Document 11, pp. 103-108.
Impairment from Mr Foster’s cervical spine cannot be taken into consideration when assessing the rating from Table 4 of the Determination, because I found that condition has not been fully diagnosed, treated and stabilised, and therefore is not capable of being rated.
Mr Foster remained seated at the hearing for over 40 minutes without any outwardly visible signs of discomfort. He needed no assistance when he got into and out of his chair. When his tolerance for sitting in the hearing was pointed out to him, Mr Foster said he would ‘pay for it later’. When standing at the hearing he often bent forward to pick up papers from the desk. During the hearing Mr Foster demonstrated an exercise he referred to as the ‘emu bob’, in which he put one leg in from of the other and bent down. Although he had some minor difficulty with this movement, in performing the exercise he demonstrated the ability to bend forward far enough to pick up a light object at knee height. Although he claims to have difficulty performing overhead activities and moving his neck, Dr Hinchy has not related those difficulties to his chronic lower back pain, and I consider those difficulties to be due to another cause, perhaps his neck problem. Although not directly related to this assessment, I observed Mr Foster in the hearing to have a good range of movement of his neck. He spent a considerable amount of time turning his neck 90 degrees to face the respondent’s representative, whilst his body was facing me. This required considerable neck movement on his part. He also flexed his head forward to read, and extended it back whilst thinking. He does not have a severe functional impairment, and does satisfy the requirements for either 20 or 10 impairment points under Table 4 of the Determination.
Mr Foster did have difficulty when bending to knee level and straightening up again when he demonstrated his exercise to the Tribunal, consistent with the difficulties reported by Dr Hinchy. I find the appropriate impairment rating is 5.
Mr Foster does not have 20 impairment points under the Determination, as such it is not necessary to determine whether Mr Foster has an inability to work.
DECISION
Mr Foster is entitled to 5 impairment points from Table 4 of the Determination. As he does not have 20 impairment points he does not meet the requirements of s 94(1)(b) of the Act. The decision under review is affirmed.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member .............[Sgd]...........................................................
Associate
Dated 12 September 2013
Date of hearing 22 August 2013 Applicant In person Advocate for the Respondent Mr Robert Hamilton, Departmental Advocate
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Determination
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Impairment Rating
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Medical Evidence
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