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

[2021] AATA 879

Harrison and Secretary, Department of Social Services (Social services second review) [2021] AATA 879 (5 March 2021)

Division:GENERAL DIVISION

File Number:          2020/5980

Re:Maryanne Harrison

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date of decision:               5 March 2021

Date of written reasons:         15 April 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Stewart Fenwick, Senior Member

Catchwords

SOCIAL SECURITY – application for disability support pension – whether qualified – conditions of the spine and hip – whether impairment attracts rating of 20 points or more under Impairment Tables – applicant did not meet the qualifying criteria – decision under review affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

Cases

Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Gallacher v Secretary, Department of Social Security [2015] FCA 1123

Secondary Materials

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

15 April 2021

BACKGROUND

1. Mrs Harrison applied on 28 September 2020 for review of a decision of the Social Services and Child Support Division of the Tribunal (AAT 1) dated 7 September 2020, which affirmed an earlier decision of a delegate of the Respondent rejecting her application for the Disability Support Pension (DSP).

2. Mrs Harrison had applied for the DSP on 18 September 2019, having previously been a recipient of the benefit between August 2003 and July 2014. Her DSP was cancelled due to the fact that her partner’s earnings precluded payment to her of the benefit.

3. Mrs Harrison provided several submissions by email dated 16, 18 and 24 December 2020, and 5 February 2021, and provided a letter from her General Practitioner, Dr Badrika Kahawatta Palliyaguruge, dated 22 January 2021.

4. The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC), dated 29 January 2021. I also had before me the ‘T’ documents lodged by the Respondent, comprising documents in the Respondent’s possession relevant to the review.

5. Mrs Harrison was self-represented in this matter and attended the hearing, which was conducted by telephone, on 5 March 2021. I provided oral reasons for my decision which was delivered at the hearing and Mrs Harrison subsequently sought written reasons.

   LEGISLATION

6. Under s 94(1) of the Social Security Act 1991 (the Act) a person may qualify for the DSP if they have (relevantly): ‘a physical, intellectual or psychiatric impairment’; an impairment rating of 20 points or more (under the Impairment Tables); and, a ‘continuing inability to work’. These criteria are cumulative and must all be satisfied to obtain the benefit.

7. Under ss 94(2)(aa) and (3B) of the Act, a person with a ‘severe impairment’ (that is, one that attains a 20 point impairment assessment under a single table) is considered to have a continuing inability to work.

8. A person who does not have severe impairment must have ‘actively participated in a program of support’, as established in the Social Security (Active Participation for Disability Support Pension) Determination 2014. This requires participation of 18 months over the 36 months prior to the person’s DSP application.

9. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). An impairment rating can only be applied to the functional capacity arising from a medical condition if that condition is permanent (Rule 6).

10. Under Rule 6, to be considered permanent, a condition must be ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’, and ‘more likely than not, in the light of available evidence, to persist for more than 2 years’. Consideration must be given to whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred, and whether treatment is continuing or planned.

11. Rule 6 further provides that to be fully stabilised a person must have undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to enable them to work in the next two years; or, reasonable treatment has not been undertaken and it would not result in significant functional improvement.

12. In addition to particular requirements qualifying the application of particular tables, each Impairment Table carries these two general qualifications: ‘self-report of symptoms alone is insufficient’; and, ‘there must be corroborating evidence of the person’s impairment’.

13. The Determination further states that the presence of a diagnosed condition alone does not result in impairment (Rule 6(8)); a single condition may give rise to separate impairments (Rule 10(3)); when multiple conditions cause a common or combined impairment, a single impairment rating only can be given (Rule 10(5) and 10(6)); and, the higher of two impairment ratings cannot be applied unless all of the descriptors for that impairment are satisfied (Rule 11(1)(c)).

14. As a result of s 42 of the Social Security (Administration) Act 1999 and its Schedule 2, there is what is known as the ‘qualification period’. This is a period of 13 weeks following the lodging of a claim for DSP within which a person may qualify for the benefit. There is legal authority in both social security and administrative law for the view that any medical information that appears at a time later than this qualification period cannot influence the decision, unless it specifically refers to the condition during that time period.[1] The qualification period in Mrs Harrison’s case runs to 18 December 2019.

    [1] See in particular Gallacher v Secretary, Department of Social Security [2015] FCA 1123.

15. For reasons that will become clear in light of the submissions, below, I include a brief comment in relation to Job Capacity Assessment (JCA) Reports, informed by the observations in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 (Eid) (at [72]-[73]) as to the approaches taken in that, and previous decisions of the Tribunal. JCA reports commonly form part of the material before the Tribunal, and my understanding is that their role is to provide information to internal decision makers of the Respondent as to work capacity informed by a reading of the medical material in a particular case. As part of this, they routinely make impairment assessments. However, the reports only make recommendations to decision makers and have no independent legal status of their own, although it may be that particular assessors have relevant skills or experience which may, potentially, lend particular weight to their comments (see Eid at [75]).

    EVIDENCE

16. The hearing focussed largely on a discussion with both parties as to the state of supporting evidence, and key features of their respective submissions. There is a relatively large body of material on record which I summarise below.

17. Mrs Harrison submitted in her DSP application (T11, p 221) that she had the conditions anxiety, depression, and chronic back pains, and the relevant assessments and decisions in her matter have addressed her spine, and mental conditions.

18. A contemporaneous Medical Certificate of Dr Robert Karmouche, dated 17 September 2019 (T9) describes conditions of anxiety and depression (exacerbation of existing condition) and chronic back pains (also an exacerbation of existing condition). His medical report (T10) of the same date states that Mrs Harrison ‘is unable to work due to severe anxiety and depression and chronic back pains’.

19. An Additional Medical Evidence form, dated 9 December 2019 (T15) states that General Practitioner Dr Karmouche was consulted on that date and advised that the diagnosed condition (described as ‘chronic back pain’) was unlikely to change within the next two years and that he had been ‘unable to specify postural tolerances, however likely that client report is realistic (sitting/driving for 10-15 minutes, able to walk for approximately 15 minutes, difficulty reaching feet to dress)’.

20. A Medical Certificate of Dr Jordan Mayston, dated 12 December 2019 (T17), states that Mrs Harrison had a permanent condition of spondylolisthesis L5/S1 disc bulge, with symptoms of sciatica. It describes the symptoms as ‘down left leg, numbness in LLL, lower back pain’, with a prognosis being that they are likely to persist.

21. A JCA Report, dated 12 December 2019 (T18), and completed by a Registered Occupational Therapist, concluded that Mrs Harrison had a spinal condition that was fully diagnosed, treated and stabilised and recommends an impairment rating of 10 points. It also found a permanent anxiety condition but considered it not fully diagnosed, treated and stabilised as the diagnosis had not been confirmed by a Psychiatrist or Clinical Psychologist.

22. I note that there is a report of Radiologist Dr Alastair Firkin, dated 6 November 2001 (T7, p 187) which reports on a review of her lumbar spine, diagnosing degenerative change at L5/S1, with loss of disc signal and spondylolisthesis of 8mm, bilateral pars defects, probably healed, significant narrowing of the exit foramina for L5 on the left, and no definite evidence of nerve impingement.

23. A report of whole spine X-ray dated 9 November 2019 (T22, p 253) confirms chronic L5 pars defect with chronic spondylolisthesis by 11mm and marked L5/S1 disc space reduction, noting mild degeneration throughout the spine and ‘the rest of the intervertebral disc spaces are maintained’.

24. Immediately following the rejection of Mrs Harrison’s DSP claim on 16 December 2019 (T19), further material was provided. This comprises:

    (a)Medical Certificate of Dr Russell Pearce, dated 17 December 2019 (T20), which repeats the diagnosis of spondylolisthesis, and adds to the symptoms ‘inability to sit long periods, impaired mobility’, and under ‘Treatment’ lists several orthopaedic surgeons with the note, ‘consideration for radical surgery’;

    (b)Medical report of Dr Pearce, dated 19 December 2019 (T23), which notes that ‘Maryanne states that due to her pain she cannot sit for longer than 15-20 minutes, she has difficulty reaching above her head as well as reaching down to the floor’, and that his examination is consistent with pain in the lower back, lower left limb and paraesthesia in the left foot. This report provides a slightly different conclusion to the report immediately above on treatment, stating:

    (i)‘she has been considered for orthopaedic surgery but at this stage the likelihood of significant improvement post surgery is low’;

    (ii)‘she is getting regular allied health input to manage symptoms but her condition is likely permanent with no significant expected improvements’;

    (c)Medical Certificate of Dr Nik Kozlov, dated 22 December 2019 (T24), which is largely identical in relevant respects with the above certificate (T20).

25. The decision of the Authorised Review Officer, dated 14 May 2020 (T31) maintains the overall assessment in relation to Mrs Harrison’s spine with the note:

    You reported to the Job Capacity Assessor that your children assist you with household tasks including lifting and carrying groceries. Because you have difficulty bending down, they also assist you to put your shoes on. You also reported being able to drive for approximately 20 minutes.

26. Following this decision, a medical report of Dr Saima Rahim, dated 5 June 2020 (T32) was provided that reconfirms the radiology diagnosis and related symptoms, and confirms the opinion of orthopaedic surgeons noted above. Specifically, it states:

    The above issues have been seen by Dr David Young, (orthopaedic surgeon, Richmond) and Mr David la Harp (Melbourne). Currently radical surgery is being considered as an option. Other management includes regular pain relief, Physiotherapy and exercise physiology input.

    She has been significantly troubled by her inability to sit for longer than 5 minutes. She cannot also drive the car for more than 10-15 minutes due to the above problem. She also has reported trouble sleeping due to pain. She also has reported significant trouble with her daily activities, like cooking and dish washing.

27. A further Medical Certificate of Dr Palliaguruge, dated 11 June 2020 (T33), describes the diagnosis as ‘Ischiofemoral impingement, lumbar radiculopathy’ and notes symptoms of lumbar pain with radiation to left leg, and ‘unable to sit longer than several minutes, impaired mobility’.

28. Later Medical Certificates (T39) date from September 2020, and include the additional note on symptoms that Mrs Harrison experiences pain on sitting for short periods. These reports state a diagnosis of ‘Ischiofemoral impingement, lumbar radiculopathy and spondylolisthesis’, with symptoms of lumbar radicular pain into left leg, pain on short periods of sitting and impaired mobility.

29. The medical report of Dr Palliyaguruge dated 25 September 2020 (T40) is reproduced in the report lodged by Mrs Harrison and dated 22 January 2021. These reports state that:

    (a)Mrs Harrison’s symptoms ‘have been gradually getting worse. She reports her symptoms have gotten worse since she was assaulted by her ex partner on the back 11 months (15/10/19) ago’;

    (b)MRI imaging confirms ‘bilateral L5 nerve root compression and ischio femoral impingement worse in the left side due to spondylolisthesis’;

    (c)Mrs Harrison’s complaint of neck pain is consistent with foraminal narrowing of C5/ C6 levels of the cervical spine;

    (d)It goes on to state that ‘she was seen by Dr Young, Orthopedic surgeon 2 years ago and reportedly no surgical interventions were planned’;

    (e)Her symptoms are described as ‘significant interruption with activities of daily living due to above impairment ie difficulty standing and sitting for a few minutes, prolonged driving and walking distances’; and

    (f)It also states that Mrs Harrison has been diagnosed with moderate to moderately severe hearing loss on the right side.

30. There is a reference in a report of Dr David Mitchell, dated 4 January 2016 (T22, p 252) which proposes a referral to Dr Young for opinion in relation to ischiofemoral impingement including anteversion on both right and left sides. The report states that Dr Young will ‘contemplate whether she could be worthy of a de-rotation osteotomy, my gut feeling is yes’.

31. A medical report of Dr Hossam Darwish, dated 30 September 2020 (T43) describes a 19-year history of chronic lower back pain after a workplace injury and states that ‘surgical management is not an option as advised by orthopaedic surgeon Mr David Young’ and notes ‘For pain management as patient is disabled and cannot work’.

32. Mrs Harrison raised at the hearing that she considered she had experienced hearing loss. I note there are two reports from audiologists, dated 12 May 2020 (T30) and 17 September 2020 (T38). The first report notes moderate to moderately severe hearing loss in the right ear and asks for confirmation whether amplification should be pursued, and notes further investigations may be required to eliminate retrocochlear involvement. The second report states that there are ‘no medical contraindications to aiding’ and states the recommended management may proceed.

33. I have referred to some historical medical material which relates to understanding Mrs Harrison’s spine condition. There is additional historical material in the record before me, some of which is particularly relevant to the issues. In particular, a JCA report dated 5 March 2014 (T8); in which the qualifications of the assessor do not appear to be stated. In this report a recommendation is made that Mrs Harrison attains 20 points for her spine condition, with reference made to treating doctor reports, in particular, sitting and standing tolerances of five minutes (T8, p 190). The specific reports relied on are not stated but material consistent with these tolerances is found in the report of Dr Karmouche, dated 22 November 2013 (T6, p 77).

34. I include here also the brief summary of evidence given by Mrs Harrison before AAT 1 and included in its decision (T2, at [33]):

    Mrs Harrison’s evidence to the Tribunal was largely consistent with the contemporaneous reports of her functioning other than saying during the hearing that she cannot sit for more than a couple of minutes. She said that she can drive her children to school which takes 10-15 minutes, but she does not drive any further. She said that she struggles with any activity which is overhead so if she needs to, she asks for her children to do it and she has rearranged her kitchen so that she does not have access to overhead cupboards. She does not use the clothesline and instead uses a drying rack. When asked if she can turn her head from side to side, for example at a street crossing, she said that she struggles but that she can turn her head to the right. She said she cannot turn her head to the left at all. In respect of her ability to bend forward, for example to pick up some paper from a coffee table, she said that she would struggle with that as well and asks her children to assist. She also said that she struggles with sitting in chairs. She said that she is able to sit in a kitchen chair which has arms that allow her to push herself up, but she cannot sit on her couch as she is unable to get up. She also said that she struggles getting into her car.

35. AAT 1 determined that Mrs Harrison did not meet the criteria for allocation of 20 points for her spine condition. The Tribunal also determined that there was no evidence before it regarding her mental health condition from a suitability qualified practitioner and, therefore, declined to make an impairment assessment.

    SUBMISSIONS

36. I summarise Mrs Harrison’s submissions based on the material she lodged and note that she made submissions at the hearing consistent with this summary:

    (a)she has 361 documents saying that her back is a permanent disability;

    (b)Centrelink staff have advised she should be on the DSP;

    (c)she was also advised to submit a new claim including her hearing loss, which she did;

    (d)Centrelink have changed her disability and she obtained 20 points for musculoskeletal disorder in 2019, 20 points for spinal disorder in 2014, 20 points for spondylolisthesis, 20 points for rare ischiofemoral impingement, 20 points for disc degeneration, 20 points for chronic back pain;

    (e)there is a typing error and ‘it was meant to be 20 points not 10 points’;

    (f)she has ‘over 100 points’;

    (g)the Applicant was on the DSP previously for 18 years the only reason she was cut off was because her ex-husband was doing more overtime;

    (h)‘I have been severely bullied by you all and this should not be happening as Centrelink don’t understand why I am not on the disability pension as there is no dispute I have a permanent disability’; and

    (i)‘I only need 20 points and I have over 130 points’.

37. In her SFIC the Respondent submitted as follows:

    (a)the Applicant’s spine condition should be accepted as fully diagnosed, treated and stabilised during the qualification period;

    (b)that Mrs Harrison’s resulting impairment should attract an assessment of 10 points only;

    (c)that evidence that dates from after the qualification period should be given little weight and that if Mrs Harrison’s condition had deteriorated she should submit a new DSP application;

    (d)Mrs Harrison had given evidence to AAT 1 that she struggled with overhead activities, not that she could not do them;

    (e)her evidence was also to the effect that she could sit for at least 10 minutes;

    (f)if an impairment falls between two ratings it should be assigned a lower rating;

    (g)Mrs Harrison’s mental health condition was not fully diagnosed, treated and stabilised, and no evidence was provided from an appropriately qualified practitioner and, in any event, there is insufficient evidence to assess impairment;

    (h)if it is accepted that Mrs Harrison does not have an impairment rating of 20 points, it is unnecessary to consider whether she has a continuing inability to work;

    (i)Mrs Harrison did not actively participate in a program of support and is not exempt from the requirement as she does not have a ‘severe impairment’;

    (j)should it be considered that Mrs Harrison does have severe impairment, her impairments do not prevent her from undertaking work of at least 15 hours per week within the next two years, or undertake a relevant training program; and

    (k)the decision under review should be affirmed by the Tribunal.

    CONSIDERATIONS

1. It is appropriate to deal initially with Mrs Harrison’s key contentions; that she either has been assessed as having a severe impairment (20 points) for her spine; and/or, that she has amassed a total score in excess of 100 points.

2. As noted above, JCA reports are not binding. To the extent that there is at least one report in the record that has recommended a rating of 20 points for Mrs Harrison’s spine, I am not required to accept it. More importantly, it is from 2014, and appears to reference treating doctor reports from that period.

3. There is good reason to take into consideration medical material that pre-dates the DSP application, which is the subject of this review. Radiological material is an example of relevant input that goes, for example, to the issue of diagnosis of a condition. However, I am obliged to consider material, particularly relating to issues of impairment, that relate to the qualification period. I do not rule out that some kinds of information might be durable, and carry forward in some way. However, as will be seen below, there is other material arising in, and relating to, the qualification period, which must be preferred.

4. The proposition that Mrs Harrison has amassed a high value impairment assessment is not sustainable because of the nature of the allocation of impairment ratings under the Determination. All but one of the conditions specified in her submission as attracting 20 points, are different descriptions of a single spinal condition. I do not rule out that Mrs Harrison’s ischiofemoral impingement might rightly be considered a separate condition, however, as I read the material, the symptoms and/or impairments arising are described in the same or similar form as those for her spine. Again, given the terms of the Direction, assessment can only be made once for an identifiable impairment.

5. Turning to the present claim, I note that I am able to take into account later material that refers to the qualification period, including for conditions which do not appear in a DSP application. On this basis I would be able to take into consideration Mrs Harrison’s hearing loss were it not for the fact that I cannot reasonably relate the diagnosis, or identification of hearing loss, to the qualification period. Even were this the case, the condition would be considered not fully treated and stabilised since the recommendation was to explore some form of hearing aid. In this case the functional impairment would need to be considered following this intervention.

6. In respect of Mrs Harrison’s mental health conditions, I consider that I am also unable to take this into account. The Determination requires that there be evidence from a suitably qualified professional; there is none. Moreover, what appears to be a single reference in a medical report to some kind of condition lacks sufficient detail to provide any assistance with either confirming diagnosis, or indicating symptoms, treatment, or prognosis, let alone impairment.

7. With respect to Mrs Harrison’s spine condition, it appears that Mrs Harrison has up to three different conditions causing a group of symptoms including sciatica. Two of these conditions are spinal. I accept that Mrs Harrison has a diagnosed lumbar condition being spondylolisthesis at L5/S1. There is very limited material with respect to any cervical spine condition, but there are references in medical material to an issue with her cervical spine, and while I do not have underlying radiology before me, I am prepared to accept this as a cervical spine condition.

8. The third condition in respect of what appears to be the most obvious and persistent symptoms, including referred pain, is ischiofemoral impingement. There are several references in the material to this as a distinct condition, and I consider that I am able to accept this as a further diagnosed condition. I understand from the report of Dr Mitchell and from internet searches (there being no description provided in any material before me) that this relates to the action of the femur in the hip joint.

9. The record is not always clear on what condition or conditions may or may not have been considered for surgical intervention, and at what point any such intervention may have been abandoned. On balance, however, I consider it reasonable to accept the statement of Dr Pearce in December 2019 that no surgical intervention was planned. On this basis, I am satisfied that all three conditions (the two spinal conditions and that related to the hip joint) were fully diagnosed, treated and stabilised.

10. The material indicates that these several conditions give rise to a group of symptoms in the lower back, lower body, and also the neck. These symptoms alone are not to be considered, but rather the functional impairment that arises from the permanent conditions (permanent, that is, in the sense intended in the Determination).

11. The relevant table from the Determination is Table 4, as it addresses conditions that give rise to functional impairment involving spinal function, such as bending or turning the back, trunk or neck. To attain 20 points Mrs Harrison would need to satisfy one of the descriptors which require inability to: perform any overhead activities; turn the head or bend the neck without turning the trunk; bend forward to pick up a light object from a table; or, remain seated for at least 10 minutes.

12. There is limited evidence in respect of capacity to undertake overhead activities, however, on balance I consider the best evidence is that Mrs Harrison struggled or had difficulty with such activities, not that she could not perform them at all.

13. There is also limited evidence about Mrs Harrison’s ability to turn her head. However, I consider the best evidence is that she had some difficulty but was able to turn to some extent, possibly with pain.

14. There is again limited evidence about the degree of difficulty Mrs Harrison has with bending to pick items up, and somewhat more evidence about her ability to bend down or bend over. Her evidence before AAT 1 was that she had some trouble picking up a light object, but this does not appear to meet the threshold required for severe impairment.

15. There is significantly more evidence about Mrs Harrison’s sitting and/or standing tolerances, and there is some obvious inconsistency in this evidence. There is internal inconsistency in both independent medical reports and her own evidence to AAT 1, in that this material refers to both an inability to sit for more than a few minutes, but the ability to drive for either 10-15, or 15-20 minutes. There is some inconsistency between the two stated driving times, although not significant. While the descriptor may appear arbitrary, a severe impairment can arise if the applicant is ‘unable to remain seated for at least 10 minutes’ (Table 4 of the Determination). The weight of evidence relevant to the qualification period indicates that this is not the case.

16. There are further references in material from mid-2020 that indicate very restricted sitting tolerances. These are consistent with the material I refer to immediately above, and do not change my previous finding about what is the preferable material with respect to the qualification period. 

17. As explained to Mrs Harrison by the reasons provided by AAT 1, and outlined above in the description of the Determination, an assessment can only be assigned to a higher rating if the criteria are fully met. That is, if it falls between two assessments, the lower is to be assigned.

18. I am satisfied that, on the basis of the evidence, Mrs Harrison’s impairment at the time of the qualification period comfortably meets the descriptors established for a moderate functional impairment attracting 10 points.

19. For this reason, it is unnecessary to consider whether Mrs Harrison has a continuing inability to work.

    DECISION

20. For the reasons given above the Tribunal affirms the decision under review.

58.     I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 15 April 2021

Date of hearing:	5 March 2021
Applicant:	By Telephone
Advocate for the Respondent:	Andrew Summers
Solicitors for the Respondent:	Services Australia