Harris; Secretary, Department of Social Services and (Social services second review)
[2015] AATA 869
•12 November 2015
Harris; Secretary, Department of Social Services and (Social services second review) [2015] AATA 869 (12 November 2015)
Division
GENERAL DIVISION
File Number
2015/2027
Re
Secretary, Department of Social Services
APPLICANT
And
Peter Harris
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 12 November 2015 Place Adelaide The decision under review is affirmed.
........... [Sgd] .....................................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether respondent’s conditions fully diagnosed, treated and stabilised during assessment period – Whether impairments attract a rating of 20 points or more under the Impairment Tables – Severe impairment – Whether continuing inability to work – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Secretary, Department of Social Services and Smith [2015] AATA 578
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
REASONS FOR DECISION
Deputy President K Bean
12 November 2015
On 29 September 2014, the respondent, Mr Harris, lodged a claim for disability support pension (DSP). That claim was rejected both at first instance and upon review by a Centrelink Authorised Review Officer (ARO). However, on 25 March 2015, the Social Security Appeals Tribunal (SSAT) set aside Centrelink’s decision and decided that, subject to all other requirements being met, Mr Harris was eligible to receive DSP from the date of his claim, as he satisfied the provisions of subs 94(1) of the Social Security Act 1991 (the Act).
On 29 April 2015, the applicant, the Secretary of the Department of Social Services (the Secretary) sought review of the SSAT’s decision by this Tribunal, giving rise to these proceedings.
LEGISLATION AND ISSUES
In broad terms the issue before me is whether Mr Harris was qualified for DSP as at the date of his claim on 29 September 2014 or within 13 weeks of that date (the assessment period).[1] The Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[2]
[1] Social Security (Administration) Act 1999, Schedule 2, clause 4.
[2] Secretary, Department of Social Services and Smith [2015] AATA 578.
Qualification for DSP is governed by s 94 of the Act, which, at the relevant time, relevantly provided as follows:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension 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)one of the following applies:
(i) the person has a continuing inability to work;
…
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth[3]; and
[3] This subsection was amended to take this form during the assessment period, but not in a way which has any bearing on this matter.
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
...
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
...
DID MR HARRIS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Secretary does not dispute that, during the assessment period, Mr Harris suffered from physical impairments, including a spinal condition,[4] and therefore satisfied subs 94(1)(a) of the Act.
[4] Secretary’s Statement of Facts and Contentions dated 16 September 2015, [33].
In his claim for DSP lodged on 29 September 2014, Mr Harris listed only his lower back condition and leg pain as “disabilities, illnesses or injuries” that he had.[5] In a DSP medical report completed for the purposes of the claim, his General Practitioner, Dr Herbert, also referred to Mr Harris’ back condition, as well as fluid collection in Mr Harris’ left groin muscle following spinal surgery.[6]
[5] Exhibit 1, T12/223 and 225.
[6] Exhibit 1, T23/415 – 416 and 421.
However, at a Job Capacity Assessment undertaken on 9 October 2014, the conditions of asthma and depression, which were listed and discussed at Mr Harris’ previous assessment, were also referred to and considered by the Job Capacity Assessor (JCA) for the purposes of this claim.[7] The ARO proceeded to consider all four conditions, as did the SSAT, and I am satisfied that it is appropriate for me to also consider whether Mr Harris qualifies for DSP by reference to any of those four conditions.
[7] Exhibit 1, T25/435.
Accordingly, I will next proceed to consider whether, during the assessment period, Mr Harris had an impairment or impairments attracting 20 or more points by reference to any of those conditions.
AT THE RELEVANT TIME, DID MR HARRIS HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
The requirements
As set out above, subs 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.
The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and fully stabilised; and
·the condition must be more likely than not to persist for more than two years.
Subsection 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or planned in the next two years.
Subsection 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
Subsection 6(7) provides that reasonable treatment is treatment that:
·is available at a location reasonably accessible to the person; and
·is at a reasonable cost; and
·can reliably be expected to result in a substantial improvement in functional capacity; and
·is regularly undertaken or performed; and
·has a high success rate; and
·carries a low risk to the person.
Spinal condition
Was the condition fully diagnosed, treated and stabilised?
As I understand the position, there is no dispute that Mr Harris’ spinal condition was fully diagnosed during the assessment period. However, the Secretary contends that Mr Harris’ spinal condition was not fully treated and stabilised. The Secretary relies in particular on the following four factors in support of that contention:
(a)Post-operative complications leading to fluid collection in Mr Harris’ lower abdomen;
(b)Mr Harris’ failure to undertake physiotherapy or post-operative rehabilitation;
(c)The negative effect of Mr Harris’ psychiatric condition on his pain perception; and
(d)The amount of time between Mr Harris’ surgery and when he lodged his claim for DSP.
I propose to address each of these factors in turn.
Post-operative complications
Following his second spinal surgery in March 2014, Mr Harris suffered complications, namely, fluid collection in his left groin muscle which caused pain in his lower abdomen and groin region. He underwent a drainage procedure in September 2014. However, Mr Harris has continued to have pain in that area (although, as I understand it, not to the same degree). At the hearing, Dr Herbert indicated that a recent ultrasound showed thickness and re-accumulation of fluid.
Dr Tschirn, a Consultant Occupational Physician, prepared a report at the request of the Secretary and also gave oral evidence at the hearing. In his evidence, Dr Tschirn opined that the post-operative complications were making a “significant contribution” to Mr Harris’ level of functional impairment.
Mr Visser, who appeared on behalf of the Secretary at the hearing, also contended that the fluid collection should properly be regarded as related to the spinal condition, and not a separate condition. However, if the Tribunal were to regard the fluid collection as a new condition, Mr Visser contended that it was not fully diagnosed, treated and stabilised during the assessment period.
Although the fluid collection arose as a complication from Mr Harris’ spinal fusion surgery, I consider that it is a ‘new’ medical condition, which affects a different part of his body. I note that this is consistent with the approach taken by Dr Herbert in the DSP medical report, and the JCA. Accordingly, I do not consider that it ought to be taken into account in determining whether the spinal condition itself was fully diagnosed, treated and stabilised. I will address the question of whether the fluid collection condition gives rise to an assessable impairment below.
Failure to undertake post-operative physiotherapy or rehabilitation
In a Job Capacity Assessment Report (JCAR) prepared following an assessment conducted on 9 October 2014, the JCA noted that at the assessment Mr Harris “reported his doctor is trying to get him referred for some further rehabilitation and physiotherapy as he was not referred as part of discharge planning”.[8]
[8] Exhibit 1, T25/434.
In his oral evidence, Mr Harris confirmed that he did not undertake post-operative rehabilitation or physiotherapy. He said that he had a referral, but chose not to go because of pain, and until he had been assessed by the Pain Management Unit. However, he later said that he was only referred for physiotherapy early this year, but he explained to the physiotherapist that he had too much pain from both his back and abdomen. Mr Harris then added that after the spinal fusion surgery, the “spinal doctor said not to do it”.
Although it was difficult to reconcile aspects of Mr Harris’ evidence, I gained the overall impression that in his initial answers to questions about referral for physiotherapy, Mr Harris’ evidence related to the situation this year, not in the period following his surgery. In other words, his evidence was to the effect that he was not referred for physiotherapy after his surgery, but had been referred for physiotherapy more recently.
In his evidence, Dr Tschirn indicated that he considered a course of physiotherapy for up to three months post-surgery would usually be regarded as reasonable. He noted that physiotherapy may optimise the result of surgery and reduce a person’s impairment, as well as improve mobility, reduce stiffness, and provide education about future management. Dr Tschirn indicated that post-operative rehabilitation “needs to occur sooner rather than later”. However, upon questioning by the Tribunal, Dr Tschirn conceded that it was “not unreasonable” for Mr Harris to elect not to undertake physiotherapy (if he had made such an election), having regard to his pain and post-operative complications. Dr Tschirn also noted that he did not have any information as to whether physiotherapy was recommended by Mr Harris’ surgeon.
Dr Herbert’s oral evidence was that Mr Harris had been given an annual referral for up to five sessions of physiotherapy “as and when” he needed it, rather than a specific referral for an acute issue. His records indicated that Mr Harris had an appointment with a physiotherapist at the Royal Adelaide Hospital (RAH) on 17 December 2014, but Dr Herbert was unable to confirm whether Mr Harris in fact attended. Dr Herbert’s opinion was that, generally speaking, rehabilitation is “restorative” after back surgery, although he noted that the fluid collection had a “major effect” on Mr Harris’ ability “to do everything” and his comfort level generally, and was a reason why Mr Harris would have been reluctant to undertake physiotherapy.
The evidence on this issue is not entirely clear. Dr Herbert’s oral evidence contradicts the assertion in the JCAR (of October 2014) that Mr Harris’ doctor was “trying to get him referred for some further rehabilitation and physiotherapy”[9], and it is unclear what led to a physiotherapy appointment being made for Mr Harris at the RAH in December 2014. However, there does not appear to be any evidence that post-operative physiotherapy or rehabilitation was recommended by Mr Harris’ surgeon[10] or any other treating doctor during the assessment period. I note that Mr Visser accepted this at the hearing and the JCAR in fact confirms this, noting that Mr Harris was not referred for physiotherapy as part of “discharge planning”.[11]
[9] Exhibit 1, T24/434.
[10] Exhibit 1, T30/468.
[11] Exhibit 1, T25/434.
Although the doctors agreed that generally a course of physiotherapy would be advisable post-surgery, on balance, having regard to Mr Harris’ significant post-operative complications, and in the absence of evidence of physiotherapy or rehabilitation having been recommended or proposed by Mr Harris’ doctors, I am not satisfied that, as at the assessment period, he was required to undertake physiotherapy or rehabilitation before his spinal condition could be said to be fully treated.
Effect of Mr Harris’ psychiatric condition
In Dr Tschirn’s opinion, Mr Harris’ spinal condition also was not fully stabilised because his psychiatric condition was likely to have affected his perception of pain. His view was that if the psychiatric condition was treated, Mr Harris’ pain would improve, and the functional impairment from his spinal condition would also improve accordingly.
However, none of Mr Harris’ doctors took that view during the assessment period,[12] and treatment of his psychiatric condition was not proposed as reasonable treatment for his spinal condition. Therefore, I am not satisfied that it was necessary for Mr Harris’ depression to be treated before it could be said that his spinal condition was fully treated and stabilised as at the assessment period.
[12] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 257.
Length of time between surgery and claim for DSP
In his oral evidence, Dr Tschirn said that the time required for recovery after surgery is “variable”, although usually by three months there is a significant improvement, and after 12 months a person can be confident of the final result.
Mr Visser pointed to the fact that Mr Harris’ claim for DSP was lodged six months after his second surgery. He relied upon Dr Tschirn’s evidence that it usually takes 12 months before the final result of surgery is known, as well as a report of a JCA during the assessment period whose view was that there would be an improvement in Mr Harris’ spinal condition (which, Mr Visser reiterated, had in fact occurred). He also noted that Dr Herbert’s evidence was that Mr Harris was more impaired at that time than he is currently, which suggested that the condition was not fully stabilised during the assessment period.
However, the issue for me is whether the spinal condition was fully treated and stabilised during the assessment period, on the facts as they were during that period. The Determination also provides that a condition is fully stabilised if further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years. Significantly in this context, I have concluded that Mr Harris undertook the treatment that was recommended by his treating doctors. I also note that it does not appear that further treatment was contemplated during the assessment period with a view to improving Mr Harris’ spinal condition.
On balance, I have concluded that I am satisfied that the condition can properly be regarded as fully stabilised during the assessment period, noting that the assessment period started more than six months after the surgery.
In reaching that conclusion, I have had regard to the implications of setting what could be regarded as an arbitrary 12-month period for post-surgery recovery, noting that Dr Tschirn’s evidence was that recovery times are “variable”. I have also had regard to the fact that in my view, based on what was known during the assessment period, even if a small further improvement could be expected following the surgery, it was not reasonable to expect that Mr Harris would improve sufficiently such that he would be able to undertake work in the next two years. Whilst the Determination expressly addresses circumstances where treatment is not expected to result in the requisite improvement, it would be anomalous if the same approach were not also taken with respect to the likelihood of improvement due to recovery/the effluxion of time.
Similarly, whilst I acknowledge Dr Tschirn’s opinion as to the effect on Mr Harris’ impairment of the post-operative fluid collection, I consider that this was primarily affecting Mr Harris’ mobility, and was having minimal impact on his spinal impairment itself.[13] Therefore, it was not reasonable to expect during the assessment period that resolution of this would result in a significant functional improvement in Mr Harris’ back condition allowing him to work within two years.
[13] See [44] below. I note this is also consistent with the fact that Dr Tschirn considered Mr Harris’ spinal impairment had improved, notwithstanding the persistence of the fluid collection problem.
Conclusion
I have found that Mr Harris’ spinal condition was fully diagnosed, treated and stabilised during the assessment period. I will therefore proceed to consider the applicable impairment rating.
What is the applicable impairment rating?
I am satisfied that the appropriate table for the purposes of assessing an impairment rating for Mr Harris’ spinal condition is Table 4 of the Impairment Tables, which relevantly provides as follows:
Table 4 – Spinal Function
Points
Descriptors
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.
In his report and oral evidence, Dr Tschirn expressed the view that during the assessment period, Mr Harris satisfied criterion (1)(d) for a 20 point rating under Table 4, as Mr Harris’ sitting tolerance was worse at that time than it is currently. Dr Herbert agreed with this assessment in his oral evidence.
At the hearing, I did not understand Mr Visser to dispute that a rating of 20 points was appropriate in the event that the Tribunal concluded the spinal condition was fully diagnosed, treated and stabilised. Accordingly, I am satisfied on the evidence that Mr Harris’ spinal condition attracted an impairment rating of 20 points under Table 4 during the assessment period.
Other conditions
Asthma
In an earlier DSP medical report, Dr Herbert indicated that he regarded Mr Harris’ asthma as causing minimal or limited functional impact.[14] He also confirmed this in his oral evidence at the hearing. Therefore, even if I was satisfied that that condition had been fully diagnosed, treated and stabilised, it would nevertheless attract a nil rating under the applicable Impairment Table.
[14] Exhibit 1, T21/398.
Depression
In the context of an earlier DSP medical report completed in February 2014, Dr Herbert listed “depression” as a further condition that caused minimal or limited impact on Mr Harris’ ability to function.[15] However, in his oral evidence, Dr Herbert acknowledged that Mr Harris has recently experienced a significant deterioration in mood and anxiety levels.
[15] Exhibit 1, T21/398.
Dr Herbert gave evidence that he formally diagnosed Mr Harris with “major depression with anxiety” in or around June 2015, but that his general mood and affect over the years has been of a person with “low grade depression” or “dysthymic disorder”. Dr Herbert referred Mr Harris to a psychologist in July of this year and indicated that Mr Harris is currently on antidepressant medication. In his oral evidence, Mr Harris confirmed that he has not seen a psychologist and that he has been put on different medication.
Accordingly, in the absence of corroborating evidence from a clinical psychologist as to diagnosis, and having regard to the limited treatment undertaken by Mr Harris for this condition, I am not satisfied that Mr Harris’ depression was fully diagnosed, treated and stabilised during the assessment period.
Fluid Collection
In a medical report dated 29 September 2014, prepared for the purposes of Mr Harris’ present claim for DSP, Dr Herbert listed “left groin muscle fluid collection” as a condition causing minimal or limited functional impact.[16] However, at the hearing it became apparent that this condition had had a significant impact on Mr Harris, and Dr Tschirn considered that it made a “significant contribution” to Mr Harris’ impairment.
[16] Exhibit 1, T23/421.
In his evidence, Dr Herbert explained that this condition had caused pain in Mr Harris’ left lower abdomen and groin, which affected the use of his left leg and therefore his gait and mobility. During his evidence, Dr Tschirn also acknowledged that if the condition was affecting Mr Harris’ mobility, then any impairment arising from it would appropriately be assessed under Table 3.
The Determination provides that before an impairment rating can be assigned under the Impairment Tables, the condition causing the impairment must be permanent (i.e. fully diagnosed, treated and stabilised, and more likely than not to persist for more than two years), and the impairment resulting from that condition must be more likely than not to persist for more than two years, at the time of the assessment period.
The difficulty for Mr Harris is that there is no evidence to suggest that during the assessment period the treating doctors considered that the fluid collection, which was a post-operative complication, or the associated impairment, was likely to persist for more than two years. To the contrary, the condition was investigated and treated by way of a drainage procedure in September 2014, and only recently does there appear to have been a reoccurrence necessitating the need for further investigation. I am therefore satisfied that as at the assessment period, the fluid collection was regarded as a “temporary” condition. It follows that an impairment rating cannot be assigned for this condition.
DID MR HARRIS HAVE A CONTINUING INABILITY TO WORK?
As I have concluded that Mr Harris’ spinal condition attracted a rating of 20 points under Table 4 of the Impairment Tables during the assessment period, it follows that he had a “severe impairment” and was not required to participate in a program of support.
As to whether the impairment was of itself sufficient to prevent Mr Harris from doing any work independently of a program of support within two years, and from undertaking a training activity during those two years, the evidence before me is limited.
In his report, Dr Tschirn assessed Mr Harris’ work capacity (as at August 2015) at 0-7 hours per week, although he considered that with treatment of the depressive condition, this could increase in the next two years. However, as this evidence does not relate to Mr Harris’ capacity during the assessment period, I am not persuaded that I can have regard to it in determining the position at that time.
The Secretary relies on a JCAR which concluded that Mr Harris’ capacity for work within two years with intervention was 15-22 hours per week.[17] However, the JCA recorded “Sedentary duties only. RTW [return to work] hours are subject to specialist spinal consultant / GP recommendations after medical exemption period expires.”[18] The JCA also accepted that, at the time of the assessment, Mr Harris had a “Baseline Work Capacity” of 8-14 hours per week, and a temporary work capacity of 0-7 hours per week “over the next 12 months” until 9 October 2015, “in order to allow further recovery post-surgery and for client to engage in further rehabilitation.”[19] The JCA further noted, based on information from Mr Harris’ General Practitioner, Dr Herbert, that Mr Harris had “back and leg pain, significantly reduced mobility, unable to bend/lift, limited gait, struggles to sit for even short periods, constantly requires changes in position”.[20]
[17] Respondent’s Statement of Facts, Issues and Contentions dated 16 September 2015, [72].
[18] Exhibit 1, T25/438.
[19] Exhibit 1, T25/438.
[20] Exhibit 1, T25/434 and T21/394.
In essence, the JCA’s conclusions were based on an opinion that Mr Harris’ back condition was not fully treated and stabilised, and would continue to improve. However, for the reasons outlined above, I consider that assessment to have been overly optimistic. I have determined that Mr Harris’ condition is properly regarded as having been fully treated and stabilised during the assessment period, and unlikely to significantly improve within two years. Accordingly, I also consider that, as at the assessment period, Mr Harris’ work capacity at that time, assessed by the JCA at 0-7 hours, was likely to persist for two years rather than 12 months.
On the limited evidence before me, I have accordingly concluded that I am satisfied that the impairment from Mr Harris’ spinal condition was of itself sufficient to prevent him from doing work independently of a program of support within two years. In addition, by reason of the nature of his impairment, I consider that as at the assessment period it was unlikely that Mr Harris could have undertaken a training activity within two years. However, even assuming he could have done so, in light of my assessment of his work capacity, I do not consider that undertaking such an activity was likely to allow him to be able to work for 15 hours per week within two years of the assessment period.
Therefore, I have concluded that Mr Harris satisfied subs 94(1)(c) of the Act.
CONCLUSION
As I have found that Mr Harris satisfied subss 94(1)(a), (b) and (c) of the Act during the assessment period and from the date of his claim, I have decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ......... [Sgd] ....................................
Associate
Dated 12 November 2015
Date of hearing 30 September 2015 Solicitors for the Applicant Mr C Visser
Department of Human Services
Program Litigation and Review BranchAdvocate for the Respondent Mr R Harris
0
2
2