Hurst and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2
•3 January 2020
Hurst and Secretary, Department of Social Services (Social services second review) [2020] AATA 2 (3 January 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6890
Re:Christine Hurst
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:3 January 2020
Place:Adelaide
The tribunal sets aside the decision under review and in substitution decides that Ms Hurst is qualified to receive the DSP from 16 October 2017.
.......[Sgnd]..........................................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances, claim for disability support pension rejected – whether conditions were fully diagnosed, treated and stabilised, severe impairment – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769
Newman and Secretary Department of Family and Community Services (2002) AATA 917
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Hamal and Secretary, Department of Social Services [1993] AATA 283; (1993) 30 ALD 517
Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451
Smalldon and Secretary Department of Social Services (2015) AATA 2Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
SECONDARY MATERIALS
Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011
REASONS FOR DECISION
Member I Thompson
3 January 2020
INTRODUCTION
The applicant Christine Hurst lodged a claim for disability support pension (DSP) on 16 October 2017. Centrelink rejected the claim in the first instance and Ms Hurst requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Ms Hurst requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Ms Hurst applied to the General Division of the Tribunal for a second review.
The hearing took place on 21 November 2019. Ms Hurst attended the hearing and was self‑represented. Ms Odgers represented the respondent, the Secretary, Department of Social Services.
Ms Hurst gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Ms Hurst is now 55 years old. She suffers from a number of medical conditions which include conditions relating to her lower back, sciatica, type II diabetes, epilepsy and mental health.
LEGISLATION AND ISSUES
The Tribunal must determine whether Ms Hurst meets the criteria which are contained in section 94(1) of the Social Security Act 1991 (Cth) (‘the Act’), in particular whether at the relevant date of 16 October 2017, or within 13 weeks of that date (the assessment period), she:
(a)had a physical, intellectual or psychiatric impairment for the purposes of section 94(1)(a) of the Act; and
(b)had an impairment rating of at least 20 points on the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘Impairment Tables’) for the purposes of section 94(1)(b) of the Act; and
(c)had a continuing inability to work as defined in section 94(2) of the Act for the purposes of section 94(1)(c).
The assessment period in this case is 16 October 2017 to 15 January 2018.
Accordingly, Ms Hurst will qualify for the DSP if the Tribunal is satisfied, firstly, that she has one or more physical, intellectual or psychiatric impairments, secondly, that the impairment is rated at least 20 points under the Impairment Tables and, finally, that she has a continuing inability to work.
The Secretary accepted that Mr Hurst suffers from an impairment and therefore satisfied s 94(1)(a) of the Act.
In the statement of facts and contentions, the Secretary contended that:
· the conditions of lower back pain and sciatica, and chronic arthritis in the right hip and right lower back were fully diagnosed but not fully treated and stabilised and no impairment rating can be assigned;
· the condition of type II diabetes was fully diagnosed treated and stabilised, however the condition was managed with minimal functional impairment and attracts a rating of zero points under Impairment Table 1;
· the condition of epilepsy was fully diagnosed, but not fully treated and stabilised and no impairment rating can be assigned;
· there was insufficient evidence in relation to the condition of high cholesterol to be considered as fully diagnosed, treated and stabilised and no impairment rating can be assigned;
· the mental health condition may attract a diagnosis of adjustment disorder, however there is insufficient evidence to conclude that it was fully treated and stabilised in the assessment period; and
· an overall impairment rating of 0 points does not satisfy s 94(1)(b) of the Act.
Accordingly, the Secretary contended that Ms Hurst did not have a continuing inability to work and was not qualified for the DSP during the assessment period.
The main issue for determination is whether Ms Hurst’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether she had a continuing inability to work.
EVIDENCE OF MS HURST
Ms Hurst told the tribunal she resides with her carer and three adult children. Ms Hurst left school halfway through year 10. Thereafter, she worked in various jobs including housecleaning, checkout operator, factory work as a sewing machinist, and commercial cleaning.
She last worked with a cleaning company about 10 years ago. There was an incident at work which resulted in pain at the top of her left leg. She sought medical treatment from a general medical practitioner. She has not worked since that incident.
Ms Hurst made a claim for workers compensation. It was finalised in 2015. Between 2010 and 2015, she received medical treatment and also allied health treatment. Various types of treatment continued after the resolution of the workers compensation claim and through to the present time. Initially, the allied health treatment comprised physiotherapy. She was suffering from back pain on the left side and down the left leg. She described the pain as constant. Medication was prescribed. She understood that the prescribed medicine was of limited strength because of her epilepsy.
By the time of Ms Hurst’s DSP claim, she was still suffering chronic low back pain with sciatica on her left side. It affected her to the extent that she could only put a slight amount of weight on her left foot. Arthritis first manifested itself around 2014. She was taking prescribed medication for physical pain together with medication for diabetes, epilepsy and depression. She was no longer having physiotherapy as it did not produce positive results. She said it was too painful. Previously, she had tried hydrotherapy although it had ceased by the time of the DSP claim.
During the assessment period and up to the present time, Ms Hurst has been mainly housebound. She stays at home and is forced into an inactive existence because of the physical pain. Inside the house, she needs a walking stick to move about. Outside the house, she uses a walker. However, her outdoor activities are limited. She cannot stand for long; ten minutes at the most. She walks outside to the letterbox. She cannot walk down the street. Part of the problem is a heel spur which manifested itself about eight months before the DSP claim. Previously, she could walk around the block using a walker.
She told the tribunal that generally she tries to remain seated, however she has to get up every few minutes because of the pain. She said that she does not have a social life. She remains at home. It is too painful to join in social activities and community activities. She drives an automatic vehicle to the post office which takes about seven minutes in the car, followed by a walk of about five minutes. She drives one of her sons to and from a local school. She cannot use public transport because it is too rough.
At home, she uses a computer chair to sit on. She can use the arms of the chair to assist her to get out of the chair. Similarly, she has a chair to assist her with toileting. She cannot stand long enough to do any of the cooking and cleaning at home. She can load the washing machine but cannot hang out the washing. She can sweep small areas with a long handle dust pan. She plays games on Facebook. She also told the tribunal that she suffers from fluid retention which causes her legs and hands to swell up. Fluid retention tablets have not been a long-term success for her.
Ms Hurst recalled that she had attended a doctor at North Adelaide who ran a pain clinic. The referral came through WorkCover. Morphine patches were tried and they worked well initially. However, she was allergic, apparently, to the elastoplast and the treatment was discontinued.
In cross-examination, she was asked about attending a multidisciplinary pain clinic. She said she never had. The only dual or multi-disciplinary type of therapy which she could recall was physiotherapy and hydrotherapy, and even they weren’t necessarily in combination.
In terms of her capacity for work, Ms Hurst confirmed that epilepsy and high cholesterol did not have a negative impact. The problems with her back and leg are the ones which prevent her from working.
Ms Hurst mentioned her depressed mood. She associates it with physical pain. If the pain decreased then her outlook on life would be brighter and she would be able to look for work. Since 2010, she has been asked to attend only one training course. She was unclear about the content of the course. However, it apparently resulted in her obtaining a certificate which confirmed her ability to search for work online.
Ms Hurst told the tribunal that her epilepsy was not diagnosed until she was 20. She has it under control through medication. However, if she has blackouts she takes an additional tablet. She connects the blackouts with lack of sleep which, itself, is caused by pain. She acknowledged that her condition of diabetes is under control. She has taken Cymbalta for depression for about five years. It was prescribed by Dr Leow. She takes the medication without really understanding whether it has any beneficial effect. In fact. she didn’t think she was depressed – “they are telling me I am. I know I’m not happy being not able to work and the injury really peeves me off because I am in pain and can’t do much stuff and have trouble concentrating because pain is always there.”
In a document summarising activities of daily living in 2012, Ms Hurst recorded various activities that she could not do, which she used to do regularly, and other activities which she struggles to do. Her evidence about her impairment and capacity to undertake those types of activities at the time of the DSP claim is broadly consistent with the detailed summary provided in the written document five years earlier.[1]
[1] Exhibit 7, at page 336.
The documented activities of daily living which she could no longer do included washing her feet and toes, kneeling down and getting up again, bending down, stepping sideways to the left, doing up shoelaces and putting on socks. Activities with which she struggled were a range of domestic chores including cooking, cleaning, mopping, vacuuming and hanging out washing, sitting more than 15 minutes, standing more than 15 minutes, and getting dressed and undressed.
CONSIDERATION
Decisions of the Tribunal such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (‘Bobera’)[2] affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services[3] indicate that the tribunal must consider Ms Hurst’s qualification for DSP within the assessment period, that is the 13 week period from 16 October 2017 to 15 January 2018.
[2] [2012] AATA 922.
[3] [2015] FCA 1123.
It is important to note the comments of the Tribunal in Bobera at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
The way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. For example, in Re Fanning and Secretary, Department of Social Services,[4] Deputy President Handley stated (at 33) that:
“The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”
[4] [2014] AATA 447.
The applicable impairment rating, if any, for each of Ms Hurst’s conditions will be considered in turn by reference to the Impairment Tables.
IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.
Medical evidence
Numerous medical reports were generated after Ms Hurst’s incident at work.
In a report dated 21 July 2010 Associate Professor Bauze, an orthopaedic consultant, noted that Ms Hurst had mid to upper lumbar spinal canal stenosis with left irritative sciatica. He considered that there was an aggravation of pre-existing lumbar spinal degeneration and spinal stenosis and that the lumbar spine and leg problems were the same injury.[5]
[5] Exhibit 4, Annexure B, pages 69 - 77.
A report by an occupational therapist, Mr Dewing, dated 17 February 2011, confirmed that Ms Hurst had received treatment including physiotherapy and hydrotherapy. The treatment was helpful until she had a cortisone injection which “set her backwards.” She was taking Panadeine Forte on a daily basis. She was reporting constant pain in the left buttock region and left leg with swelling in both ankles.[6]
[6] Ibid, pages 189 - 192.
An orthopaedic surgeon, Dr Osti, reported on 18 July 2011 that Ms Hurst’s presentation was consistent with non-specific low back pain in the presence of mild degeneration of the L5 – S1 spinal motion segment.[7] Dr Osti wrote that surgery was not appropriate, she needed to perform regular exercise with short-term access to oral analgesia under the care of her general practitioner, and, if she continued for a period over three months or longer to rely on drugs of dependence, then a formal assessment by a pain physician would be necessary. Dr Osti considered that Ms Hurst might benefit from psychological counselling as it is highly probable that her physical disability may be compounded by a degree of psychosocial overlay.
[7] Ibid, pages 203 - 207.
Dr Osti reported on 1 December 2011 that Ms Hurst had undergone facet joint rhysolysis “without any substantial subsequent relief of her chronic and disabling left sided symptoms.” Dr Osti did not consider that surgical intervention would be appropriate. He reported that regular exercise would be beneficial and referral at some point to a pain specialist could be considered. In his view, physiotherapy and chiropractic treatment would not be helpful in the long-term for Ms Hurst’s spinal disability.[8]
[8] Ibid, at page 207.
A report by Ms Hurst’s general medical practitioner[9] Dr Viljoen dated 31 October 2012 refers to her chronic lower back pain which was not responding to treatment or intervention. The diagnosis was chronic lower back pain with moderate facet joint osteoarthritis and mild bulging of the L5 – S1 disc. Dr Viljoen continued… – “She presents with severe lower back pain and pain radiating down her left leg constantly, aggravated by any activity or keeping still in certain positions. In my opinion the symptoms are not consistent solely with the pathology of her disability. Her physical condition is likely to be affected by psychosocial dysfunction, she has depression and anxiety”.
[9] Ibid, page 211.
Dr Meyerkort, an occupational physician, reported on 14 November 2012 that Ms Hurst had a diagnosis of chronic mechanical back pain with radiological evidence of multilevel facet joint arthropathy. It was likely that she has a psychological condition, however that was outside Dr Meyerkort’s area of expertise.[10] An orthopaedic surgeon, Dr Duthie Mills, reported on 23 July 2013 that it was probable that a work injury had led to an aggravation of Ms Hurst’s pre-existing disc degenerative disease of mild degree in the low back. However, Dr Duthie Mills was unable to demonstrate a musculoskeletal abnormality consistent with the apparent severe incapacity which he considered was likely to be the result of a pain disorder.[11] An occupational physician, Dr Haynes, reported on 16 July 2014 that the likely diagnosis was one of disc disruption in the lower lumbar region with referred pain to the left leg.[12]
[10] Ibid, pages 235 - 242.
[11] Exhibit 7, at page 283.
[12] Exhibit 4, Annexure B, pages 303 - 307.
In November 2014, an occupational physician, Dr Munn, reported a diagnosis of lumbar spondylosis and bilateral osteoarthritis of the hips. He considered that the condition was primarily degenerative and that it would progressively worsen with time.[13]
[13] Ibid, pages 315 - 322.
Mr Hurst’s general medical practitioner, Dr Dhall reported on 15 November 2017 that she has chronic severe low back pain and imaging indicated degenerative changes in her spine. Dr Dahll wrote: “given her age and coexisting diabetes, it’s unlikely that she would improve much in terms of her general ability to work. It will progressively get worse. It’s unlikely that any other treatment would cause any meaningful changes to her ability to work.”[14]
[14] Exhibit 1, T14, at page 252.
Dr Dhall asked that Ms Hurst see Dr Leow who is a general practitioner with special interest in pain management, and whom she had seen before.
Dr Leow reported that Ms Hurst’s past treatment included physiotherapy, hydrotherapy, rhysolysis and corticosteroid injections. Future treatment could possibly include surgery. The prognosis was that no improvement is expected. The probability of working was low.[15]
[15] Ibid, at page 254.
By letter dated 20 June 2017, the Royal Adelaide Hospital spinal assessment clinic advised that Ms Hurst was placed on a specialist outpatient waiting list for an appointment with the spinal assessment clinic.[16]
[16] Ibid, at page 247.
In a medical certificate dated 2 May 2018, Dr Leow, wrote that Mrs Hurst’s lower back pain, diabetes and epilepsy were being treated and were stable.[17]
[17] Ibid, at page 253.
Dr Dhall wrote on 13 August 2018 to confirm that Ms Hurst has chronic low back pain. He stated that recovery can be variable for any long-term musculo-skeletal condition which is complicated by chronic pain. For example, factors such as body weight, psychological condition, the extent of social support may be significant. In regard to possible referral to a pain clinic in a hospital, Ms Hurst would be regarded as a non-urgent referral facing a lengthy waiting list. Dr Dhall pointed out that chronic pain treatment is generally based on building up physical and mental fitness. That is not necessarily compatible with a patient’s belief that somewhere there must be some medication or somehow some surgery that will fix the problem.[18]
[18] Exhibit 6.
The spinal assessment clinic at the Royal Adelaide wrote on 10 September 2018[19] that they were unable to offer an appointment for Centrelink or disability pension purpose. It was noted in the letter that patients would be triaged based on clinical acuity and whether surgical outpatient consultation was indicated. Not all patients would be offered an appointment and community-based care should remain the priority. The letter continued… – “If chronic non-specific spinal pain is the main issue, we support community-based management with a focus on active regimes (aerobic and spinal conditioning postural advice/rehabilitation/graded activity/self-management coping strategies) or pain clinic strategies (low-dose membrane stabilisers, avoiding opioids use) may be more suitable.”
[19] Ibid.
Dr Dhall wrote to the spinal assessment clinic of the Royal Adelaide Hospital on 3 February 2019[20] and observed that Ms Hurst had two cortisone injections in 2018 which did not help, that she continues to have left sciatica that can be debilitating, she takes Lyrica which relieves some of the pain, however the remaining pain affects her mobility and has a significant effect on her daily activities. It is difficult for her to lie on her back.
[20] Ibid.
In a letter dated 24 February 2019, Dr Dhall added that Ms Hurst has practical issues of obesity with diabetes, and she is in a vicious cycle where the diabetes makes it hard for her to lose weight without a self-funded rehabilitation program. He wrote that it is not practical in a chronic disease care plan to have a comprehensive exercise and rehabilitation program lasting over more than 10 sessions, the inability to lose weight makes it hard to get over the low back problems. [21]
[21] Ibid.
With regard to sciatica, medical certificates completed by general medical practitioners between 15 September 2010 and 9 March 2012 confirm a diagnosis of sciatica with pain radiating to Ms Hurst’s leg.[22]
[22] Exhibit 1, T14, pages 202 – 206.
A medical certificate completed by Dr Viljoen on 5 June 2013 includes a reference to Ms Hurst’s left sided sciatica.[23]
[23] Ibid, pages 213 - 216.
A medical certificate signed by Dr Dhall on 10 July 2016 refers to a diagnosis of chronic low back pain and sciatica.[24]
[24] Ibid, pages 219 - 220.
A medical certificate prepared and signed by Dr Leow on 30 July 2016 includes a diagnosis of sciatica with pain radiating down the left leg.[25]
[25] Ibid, pages 233 - 234.
Medical certificates prepared by Dr Dhall on 20 May 2018 and 22 July 2018 includes a diagnosis of sciatica as an exacerbation of an existing condition with pain radiating down the left leg.[26] Those medical certificates also refer to left foot pain due to plantar fasciitis and calcaneal spur causing left foot pain.
[26] Ibid at pages 251 and 255.
In relation to mental health function, medical certificates from Dr Ghosa and Dr Lovell[27] in late 2010 and early 2011 refer to depression with lack of interest motivation and poor sleep.
[27] Ibid, at pages 202 – 205.
A mental state examination conducted by a clinical and forensic psychiatrist Dr Samuell in July 2010 concluded that Ms Hurst was not suffering from a psychiatric disorder.[28]
[28] Exhibit 4, Annexure B, at page 62.
A report by a general medical practitioner Dr Viljoen dated 31 October 2012 refers to Ms Hurst’s psychosocial dysfunction, and that she has depression and anxiety. The report refers to the list of medication which includes sodium valproate for epilepsy and pain, Duloxetine for depression, anxiety and pain, and various other medications for pain. Ms Hurst’s treatment should continue until other means of reducing the pain can be found. Dr Viljoen noted that she is currently seeing a pain specialist and he will decide if medications need to be changed. Dr Viljoen also noted that Ms Hurst had been depressed for a long time with problems from her childhood and problems from her involvement in the workforce. He reported that her symptoms had been chronic for almost 3 years.[29]
[29] Exhibit 1, T14, pages 211 - 212.
Dr Fry, a consultant psychiatrist, provided a report on 24 July 2013 in which he noted that Ms Hurst had consulted a psychologist in 2010 for six sessions which were apparently helpful, preceded by three or four sessions with another psychologist after initial diagnosis of depression in 2009. In Dr Fry’s opinion, Ms Hurst was suffering an adjustment disorder with depressed mood. Dr Fry considered that Ms Hurst – “appears more prone to minimise psychological difficulties and appeared from her account to have always worked, for work to be important to her and to have otherwise led an active life… It was unclear what motivation or secondary gain there would be from her current symptoms.” Dr Fry considered that Ms Hurst’s adjustment disorder related to her chronic pain. He added… – “Her recovery psychologically is linked to that of the chronic pain. If she is suffering from a pain disorder, there may be complex underlying psychological factors relating to this. Her prognosis for a return to work is poor given her ongoing symptoms and that it is over three years since she has been working.”[30]
[30] Exhibit 4, Annexure B, pages 291 - 299.
Ms Hurst completed a psychological and vocational assessment conducted by Ms Rella- Fedoric in January 2015. In relation to psychological issues, the finding was mild anxiety and moderate depression. A medical history was noted comprising type II diabetes, a previous whiplash, and frozen left shoulder following motor vehicle accidents in 1993 and 1995 with no ongoing issues, epilepsy and depression in 2009 due to the work injury. Medications included Panadeine Forte for pain relief, sodium valproate for epilepsy and pain relief, Lyrica for control of seizures and treatment of nerve pain, and Cymbalta for treatment of depression and general anxiety. At that time, Ms Hurst was being reviewed every three months by her general medical practitioner, Dr Dhall, for medical certificates and prescription of medication. She was also consulting a pain management specialist, Dr Leow for pain management sessions and reviews on a monthly basis.[31]
[31] Exhibit 7.
Job capacity assessment reports
An employment services assessment report dated 19 April 2018 followed an interview at Centrelink with Ms Hurst. The remarks in the report regarding Ms Hurst spinal disorder included that she used a walking stick to assist with mobility, that she can sit or stand for 10 minutes, she can drive to local shopping facilities, she uses a trolley to walk from the car park around the shopping centre, and that she is independent with self-care but may use a stool in the shower occasionally. The report also included comments about her poor sleep pattern due to pain, that she can use an exercise bike for 10 minutes each day, that the back pain is worsening, and two recent epidural injections did not provide pain relief. It was noted that the spinal assessment unit at the Royal Adelaide Hospital advised surgery was not an option and she had to continue with epidural injection and pain medication for relief. She told the assessor that she gets assistance in all aspects of household activities from a carer/friend.[32]
[32] Exhibit 1, T11, at page 183.
An earlier job capacity assessment report dated 22 April 2013 noted that Ms Hurst was experiencing persistent lower back pain radiating to her left buttock and to the left leg. She reported in 2013 that she had a reduced range of movement which limited her ability to reach her feet. She stated that she was independent with self-care. She reported difficulty rising from a low seat and limited seating tolerance. Driving tolerance was limited, she could not do much shopping, and most household activities were restricted because of difficulties with prolonged standing.[33]
CONSIDERATION
[33] Ibid at page 160.
Spinal function
Impairment Table 4 – Spinal function, is used where a person has a permanent condition resulting in functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
The Secretary contended that Ms Hurst’s conditions of lower back pain and sciatica, arthritis and right hip and the right lower back were not fully treated and stabilised during the assessment period. It was contended that psychosocial factors may have contributed to a pain disorder which required referral to a pain specialist for further treatment or the completion of a pain management program.
The Secretary referred to decisions of the tribunal in Newman and Secretary, Department of Family and Community Services[34] and Smalldon and Secretary Department of Social Services.[35] However, the facts of this case can be distinguished from the facts of those two cases. In particular, Ms Hurst had consulted a medical practitioner with interest and expertise in pain management. Over a period of about 10 years, she has undertaken various forms of medical and allied health treatment. More recently, the reports from Dr Dhall provide a thorough analysis of Ms Hurst’s medical conditions and a multi-faceted approach to treatment during the past ten years following the injury at work. She has complied with the options available to her for medical treatment and she has had extensive and continuing treatment since the incident at work. Indeed, there is an implication from Dr Dhall’s reports that Ms Hurst has reached the stage that the medical model has little to offer her compared with an alternative option of developing physical and mental fitness. Furthermore, attempts in 2019 to refer Ms Hurst to the spinal assessment clinic at the Royal Adelaide Hospital have not succeeded through no fault of her own.
[34] [2002] AATA 917.
[35] [2015] AATA 2.
The job capacity assessment report dated 19 April 2018 concluded that the spinal disorder was not fully treated and stabilised because there are available treatments. Those treatments were said to be evidence-based specialist review and subsequent intervention, physiotherapy and rehabilitation, work hardening and vocational rehabilitation. It was asserted that the exercise of those options may lead to further improvement in physical function and work capacity.[36]
[36] Exhibit 1, T11, at page 183.
Clearly, however, Ms Hurst has undergone extensive treatment over many years including specialist physiotherapy, hydrotherapy, pain management medication, regular consultations with her general medical practitioner, and psychology consultations to assist with pain management and adjustment.
A medical condition can be considered to be fully treated despite the fact that treatment is still continuing or planned to occur. For example, this could happen where an individual’s functional capacity is not going to improve within the following two years despite the continuation of reasonable treatment. In determining whether Ms Hurst’s condition was fully treated during the assessment period, consideration of the past treatment and its results, the plans for further treatment, and the effectiveness of the past treatment are all relevant factors.
The prospects during the assessment period that further reasonable treatment would result in significant functional improvement within the next two years were not promising. In addition, based on all of the medical evidence, the tribunal considers that any further reasonable treatment would have been unlikely to result in significant functional improvement to a level which would enable Ms Hurst to undertake work in the next two years.
The tribunal has taken into account all of the medical evidence about the history of Ms Hurst’s condition, her response to treatment prior to and during the assessment period, and her expected low level of recovery or improvement at that time. The tribunal also noted Ms Hurst’s demeanour and physical presence during the hearing. It involved a combination of sitting, standing and bending with obvious stiffness and inability to turn her head without moving the trunk.
The tribunal is satisfied that Ms Hurst’s spinal condition was fully diagnosed at the time of the DSP claim and in the assessment period. The treatment which Ms Hurst had was reasonable treatment, noting the criteria in section 6(7) of the Rules for Applying the Impairment Tables. The tribunal is satisfied that the condition was fully treated and fully stabilised.
Having regard to all of the evidence, the tribunal considers that at the time of the DSP claim or within 13 weeks of that date, Ms Hurst’s spinal condition was permanent and the impairment was likely to persist for more than two years. Therefore, an impairment rating can be given for this condition.
A moderate functional impact on activities involving spinal function attracts 10 points as set out in Impairment Table 4 as follows:
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:
(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).
Severe functional impact on activities involving spinal function attract 20 points as set out in Impairment Table 4 as follows:
Points
Descriptors
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.
On consideration of all of the medical evidence together with the evidence given by Ms Hurst concerning her spinal function, the tribunal finds that she sustained a severe functional impact on activities involving spinal function during the assessment period and 20 points under Impairment Table 4 is the appropriate rating. The tribunal is satisfied that Ms Hurst had a severe functional impact which prevents her remaining seated for at least 10 minutes, renders her unable to perform overhead activities, and indeed any of the normal day-to-day domestic activities.
Lower limb function
Impairment Table 3 is the relevant table in relation to lower limb function.
Consistent with the reasons given in relation to the spinal function, the tribunal is satisfied that Ms Hurst’s sciatic condition was fully diagnosed, treated and stabilised at the assessment.
For a mild functional impact on activities using lower limbs, the table provides:
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
…
Ms Hurst has difficulty walking to local facilities. In addition, she needs to use a walking stick. The appropriate rating is 5 impairment points in accordance with the descriptors in Table 3.
Mental health
The medical evidence regarding Ms Hurst’s mental health has been discussed earlier. There included concerns about psychosocial factors and the possibility of a pain disorder and possible magnification of physical symptoms.
Ms Hurst gave evidence that she had taken medication for depression. She said that the medication makes no difference. She went on to say “– I didn’t think I was depressed. They are telling me I am.”
The tribunal is satisfied that at the time of the DSP claim there was a diagnosis of a mental health condition. However, the condition was not fully treated and it was not fully stabilised. Indeed, Ms Hurst is disinclined to agree that there is a mental health condition. An impairment rating cannot be given.
Other conditions
A report by an occupational physician, Dr Haynes, confirms that Ms Hurst was diagnosed with epilepsy at the age of 20.[37] She has taken Epilim regularly. Symptoms have included blackouts
[37] Exhibit 4, Annexure B, at page 303.
Dr Viljoen confirms the diagnosis of type II diabetes and petit mal epilepsy in a report written on 19 July 2016.[38]
[38] Exhibit 1, T14, at page 231.
Ms Hurst gave evidence that her epilepsy was under control and also that her diabetes is under control.
The tribunal finds that each of the conditions of type II diabetes and epilepsy were fully diagnosed, treated and stabilised in the assessment period. However, the medical evidence indicates that each condition was managed and did not cause an impairment which attracts points under the Impairment Tables.
CONTINUING INABILITY TO WORK
The next issue for determination is whether Ms Hurst had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines a continuing inability to work as follows:
(2) Continuing inability to work
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 2008-20011 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; and
(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).
With an impairment rating of 20 points under a single impairment table, it follows that Ms Hurst has a severe impairment within the meaning of s 94(3B) of the Act and she does not need to meet the requirement of actively participating in a program of support.
In deciding whether there is a continuing inability to work under s 94(1)(c)(i), a number of factors must be disregarded. They were set out in Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs[39] as matters to be disregarded, namely:
·any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person’s locally accessible labour market (s 94(3)(b));
·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451);
·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AAT 864 [34]);
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
·the existence of a benign employer of sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Services [1993] AATA 283; (1993) 30 ALD 517); and
·Other factors not directly attributable to a medical condition.
[39] [2012] AATA 664 at [23]
The Tribunal received evidence of a number of assessments regarding Ms Hurst’s job capacity.
The JCA report dated 22 April 2013 recorded a baseline work capacity of zero – seven hours per week and a capacity for work within two years with intervention of zero – seven hours per week. The report noted that Ms Hurst has ongoing limitations with endurance regarding many physical activities and manual tasks and that specialist medical intervention had not improved her work capacity. It was considered that her physical injuries and associated limitations would have a significant impact on her capacity to undertake activities of daily living and upon her ability to undertake vocational activities.[40]
[40] Exhibit 1, T11, at page 160.
A JCA report dated 25 August 2016 recorded a baseline work capacity of 15 – 22 hours per week and a capacity for work within two years with intervention at 15 – 22 hours per week.[41]
[41] Ibid, at page 170.
A JCA report dated 19 April 2018[42] recorded Ms Hurst’s baseline work capacity at 8 to 14 hours per week with capacity for work within two years with intervention of 15 to 22 hours per week years with intervention of 15-22 hours per week. The rationale for those estimates included the following… –
“Work capacity is reduced to 8 – 14 hours per week due to the functional impact associated with the permanent conditions of spinal disorder, diabetes and epilepsy impair Christine’s ability to consistently attend or persist at work or other activities, concentrate on tasks without being distracted, understand or comprehend moderately complex information as a result of medication and pain, manage pain, maintain required workplace without tiring, lift, carry or move objects, stand or sit for prolonged periods.”
[42] Ibid, at page 184.
While the tribunal agrees with that analysis of the problems, the realistic interpretation of Ms Hurst’s history since her work incident 10 years ago is a reduction of work capacity which is more likely to be in the range of 0 to 7 hours. This is consistent with the forecast in the JCA report of April 2013. The evidence before the tribunal does not support the more optimistic forecasts in the JCA reports in 2016 and 2018. Plainly, the impairment caused by Ms Hurst’s medical conditions affecting her spinal function and lower limb function has an impact that affects adversely her ability to attend to and concentrate on tasks in a domestic setting. It is difficult to understand how she would have capacity to manage the pain, and cope with the demands and endurance which employment of any kind would require.
The JCA dated 19 April 2018 will report went on to suggest that… – “With continued intervention from a disability employment services – employment support services provider to assist with identifying suitable work roles/environments, developing suitable duties plans (i.e. tasks assigned and rostered days), providing work experience programs to increase work conditioning, providing workplace assessments and making appropriate workplace modifications, and providing post placement support, it is anticipated that Christine would better manage their capacity for work and be able to sustain the performing 15 – 22 hours per week.”
However, the evidence at the time of the assessment period demonstrates clearly that Ms Hurst would struggle to find and maintain employment. She had not worked for some ten years. It is highly unlikely that she could sustain work, as identified in the JCA report, as light less skilled, sedentary work. She has no relevant experience in that kind of work. She cannot sit down for long. The Tribunal is left with the clear impression that she could not endure the patterns, routines and requirements of work, whether the work was sedentary, light, less skilled, manual, clerical, administrative or otherwise. Based on her own evidence and the abundant medical evidence about her circumstances leading up to and during the assessment period, she would struggle significantly in any type of employment.
Work is defined in s 94(5) of the Act as follows:
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.
The Tribunal does not consider that Ms Hurst would be able to retain employment at 15 hours per week even with support and training. Her medical conditions concerning her back and sciatic pain are of long duration with long-term negative impacts. The tribunal considers that Ms Hurst’s impairments led to a loss of functional capacity which prevented her from working at least 15 hours per week.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
The Secretary contended that Ms Hurst’s impairments did not of themselves prevent her from undertaking a training activity.
However, as with Ms Hurst’s inability to work, it is clear that she would have extreme difficulty undertaking and maintaining a relevant training activity. The Tribunal considers that the impairments that she has are sufficient to prevent her from undertaking a training activity within two years of the assessment period.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined previously, the Tribunal funds that Ms Hurst’s spinal condition and sciatica condition were fully diagnosed, treated and stabilised during the assessment period.
The applicable rating for the spinal condition is 20 points and the applicable rating for the sciatica condition is 5 points. With a total of 25 impairment points, the criterion in s 94(1)(b) of the Act is satisfied.
Ms Hurst has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single impairment table.
In view of the finding that Ms Hurst has a severe impairment within the meaning of s 94(3B), there is no need for her to have actively participated in a program of support within the meaning of s 94(3C) of the Act.
In all of the circumstances that Tribunal is satisfied that Ms Hurst has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reason set out above the tribunal sets aside the decision under review and in substitution decides that Ms Hurst is qualified to receive the DSP from 16 October 2017.
112. I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
.....[Sgnd]..........................................
Associate
Dated: 3 January 2020
Date of hearing: 21 November 2019 Applicant: In person Advocate for the Respondent: Ms Lee-Anne Odgers, Department of Human Services
0
10
0