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

Hyde and Secretary, Department of Social Services (Social services second review) [2017] AATA 569 (27 April 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3610
Re:Michael Hyde
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:27 April 2017
Place:Canberra

The reviewable decision of 17 June 2016 is affirmed.
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Deputy President Gary Humphries
Catchwords
SOCIAL SECURITY – Disability Support Pension – lower back/spine condition – inability to work – where condition not sufficient to reach 20 points under one table – contradictory evidence regarding mobility of Applicant – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
Fanning and Secretary, DSS [2014] AATA 447
REASONS FOR DECISION
Deputy President Gary Humphries
27 April 2017
INTRODUCTION

Mr Michael Hyde applied for the Disability Support Pension (DSP), but his claim was rejected by Centrelink. His appeals internally within Centrelink and to the first tier of the Tribunal were unsuccessful, and he now appeals to the second tier of the Tribunal.
Mr Hyde suffered an injury to his back while at work on 21 October 2013. He has not worked since the incident. He gave evidence to the Tribunal of a seriously debilitating condition which significantly hampers his ability to conduct day-to-day activities and which delivers pain to him most of the time.
THE RELEVANT LEGISLATION
To obtain the DSP a person must satisfy s 94 of the Social Security Act 1991 (the Act). The section commences by setting out three essential criteria to establish eligibility:
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…
The meaning of several terms used in the section are defined elsewhere in the Act or in other Acts or subordinate legislation, in particular:
·the Social Security (Administration) Act 1999 (the Administration Act);
·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
·the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS determination).
The term a continuing inability to work, for example, is defined in s 94(2).
Mr Hyde lodged his claim for DSP on 27 October 2015. The Administration Act provides that, to qualify for the DSP, Mr Hyde must satisfy the requirements of s 94 as at the date of his claim or within 13 weeks of lodging the claim, that is between 27 October 2015 and 26 January 2016 (the claim period).
It follows that evidence relating to an applicant’s medical condition after the expiry of a claim period has limited relevance when determining eligibility for the DSP. In Fanning and Secretary, DSS [2014] AATA 447, the Tribunal observed (at [33]):
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.
The Tribunal also noted (at [31]):
Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
The Secretary concedes – and the Tribunal agrees – that Mr Hyde suffers medical conditions that cause impairment and that he therefore satisfied s 94(1)(a) at the time of his claim for the DSP.
It follows that the issues to be determined in this matter are whether, during the claim period, Mr Hyde had:
·an impairment rating of 20 points or more under the Impairment Tables; and
·a continuing inability to work as defined in s 94(2).
Does Mr Hyde have medical conditions that can be rated at 20 points or more under the Impairment Tables?
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is permanent. Specifically, paragraph 6(4) of the Impairment Tables provides that a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations; they are designed to assign ratings to determine the level of functional impact of impairment. The introduction to each relevant Table requires that Self-report of symptoms alone is insufficient and There must be corroborating evidence of the person’s impairment. The Introductions to both Tables 3 and 4, relevantly in this case relating to lower limb function and spinal function, each state that corroborating evidence of impairment can be provided by a person’s treating doctor or by a medical specialist confirming diagnosis of conditions associated with the relevant impairment.
Mr Hyde’s medical condition for the purposes of his claim is his lower back/lower limbs condition. A claim for permanent impairment based on depression was also considered by the Tribunal at first tier; it considered that the absence of corroborative evidence from a psychiatrist or clinical psychologist prevented it assigning an impairment rating to the condition. In any case, a claim based on this condition was not pursued before the Tribunal at second tier.
Is Mr Hyde’s lower back/lower limbs condition permanent?
Mr Hyde’s back condition was medically assessed soon after the work incident in October 2013. He was examined by his GP, Dr Douglas Gock, who referred him to a chiropractor. He was also examined in November 2013 by Dr Tony Gray, who confirmed Advanced degenerative disc disease… throughout the lumbar spine, worst at the upper three levels and at L5/S1. Later, in July and October 2015 Dr Gock diagnosed Lumbar spondylosis, L5/S1 disc prolapse, a condition likely to persist for two years or more.
Dr Leon Le Leu, an occupational physician, assessed Mr Hyde on 22 June 2015. In a report dated 26 June 2015, Dr Le Leu described Mr Hyde’s capacity for movement and his living conditions. He noted that he:
…has not had much treatment so far. He is beyond operative treatment. He should be assessed by an interventional pain management specialist… In the interim, he could have some CT-guided facet joint injections for diagnostic and therapeutic purposes.
A report by neurosurgeon Dr Gautam Khurana dated 25 November 2015 noted that Mr Hyde gets some right lower back pain when he walks about 100 metres and that:
…at this stage there is no operative role given the things have overall improved for him in the last two years, particularly as he is still swimming keenly and he is doing very well with exercise overall.
A Job Capacity Assessment report dated 16 December 2015 concluded that Mr Hyde’s condition was fully diagnosed, but not fully treated and stabilised. However the assessor recorded Mr Hyde’s injury as having occurred in 2015, rather than 2013.
Dr Gock completed a medical report to Centrelink on 21 January 2016, in which he answered a question about the effect of Mr Hyde’s back condition on his ability to function over the next two years by ticking a box marked Uncertain. He gave evidence to the Tribunal, however, that on reflection he ought to have indicated that the condition would remain the same.
Dr Paul Ferris, pain management consultant, examined Mr Hyde in February 2016. A subsequent report dated 15 February 2016 provided a plan of management… to provide Michael with some education regarding the nature of chronic pain and encouraging him to re-engage with his social activities and continue with his graded active exercise program. He also suggested referral to a psychologist.
The Secretary’s position is that Mr Hyde’s condition is not fully treated and stabilised, and therefore is not permanent in terms of paragraph 6(4) of the Impairment Tables. The Tribunal at first tier considered that the condition, as at the date of hearing, was of long-standing, had been investigated with radiological studies and by a neurosurgeon and a pain management specialist and that any further treatment will not result in improvement. Accordingly it determined that the condition was permanent.
On balance, the Tribunal at this level agrees with that finding. At the time of his application for the DSP in October 2015, Mr Hyde had been living with his condition for two years and had had intensive medical exploration of its cause and prognosis. Although further treatment was proposed to occur after the expiry of the claim period – particularly the referral to a psychologist and to the Pain Management Unit at Canberra Hospital – it seems that this treatment was designed to manage the pain incidental to his condition rather than to treat or stabilise the condition per se. There is little evidence that the suggested treatment after the claim period was designed to improve Mr Hyde’s functioning.
The Tribunal finds therefore that his lower back condition was fully diagnosed, fully treated and fully stabilised and is likely to persist for more than two years. Since it is permanent, the condition can be assigned points under the Impairment Tables.
How many points does Mr Hyde’s lower back/lower limbs condition attract under the Impairment Tables?
The functional impact of a permanent impairment can be measured against the descriptors in the Impairment Tables, to determine what level of functional impact best matches an applicant’s impairment. Dependent on whether the impact is mild, moderate, severe or extreme, points can be assigned to that impairment. The threshold for DSP eligibility is 20 points.
In this case, the parties disagreed as to the appropriate table under which a permanent impairment should be assessed. Mr Hyde maintained that he should be assessed against Table 3 – Lower Limb Function, as his condition manifested itself chiefly in his impaired mobility. The Secretary maintained that the appropriate table is Table 4 – Spinal Function. In giving evidence, Dr Gock thought Mr Hyde’s condition was primarily a spinal condition. The Tribunal has decided to assess the condition against each table. However, it finds that Mr Hyde’s condition does not attract 20 points under either table.
In assigning points under whichever is the appropriate table, the following principles in the Impairment Tables must be observed:
11(1) In assigning an impairment rating
…
(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied;
…
11(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Table 3 sets out the descriptors of a severe functional impact – i.e. one attracting 20 points – on activities using lower limbs relevantly as follows:
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without
assistance;
(ii) walk from the carpark into a shopping centre or
supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
Table 4 sets out the descriptors of a severe functional impact – i.e. one attracting 20 points – involving spinal function as follows:
(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 a statement attached to his application for second review by the Tribunal, Mr Hyde indicated:
When I walk my back pain deepens and the further I go the worse it gets so I stop and rest or stretch, if I keep walking the sensation starts feeling like two bones grinding and crushing together and it takes weeks to recover…
I can not walk into a shopping centre and buy a newspaper without that sensation…
I park my car next to the shopping trollies and get out, usually with difficulty and get a trolly and hang off the back of it. It is the perfect height and I can not go shopping unless I do that…
95% of seats I can not sit on so I don’t I need a seat with arm rests that I can lift my self with my elbows to relieve pain and help me rest [sic].
Dr Leon Le Leu, an occupational physician, assessed Mr Hyde on 22 June 2015. In a report dated 26 June 2015, Dr Le Leu assessed Mr Hyde’s capacity for movement as follows:
·He tries to walk and has gone from being virtually unable to walk at all to walking half a Km. He believes he could walk for 50 – 60m and then would start slowing.
·he can drive variable distances… He and his wife drove up [to Canberra from Batemans Bay] yesterday.
·he can go shopping, but he is slow. He cannot carry a 5 kg bags far. He hangs on the back of a shopping trolley and uses it as a crutch.
·he sat in the waiting room five minutes and then the pain started “cutting in”. He can normally sit for 20 minutes; then the pain builds up, and he will move. He might then lie down or go for a walk and come back and sit down.
·he has to bend his knees to squat as everyone does.
·he can tackle stairs in small quantities…
·He can stand for 15 minutes.
·He can only sit on the beach for recreation. He walks the dog with care.
Dr Le Leu also noted:
·He lives by himself at Batemans Bay. He has two younger sons aged 15 and 13 who help him around the place and Jo, his partner, comes down and helps.
·In general he can do things; he says he is “not completely useless” but has to do tasks in small doses and has to manage them. If something is straining him, he stops.
·Gardening: he lives on 20 acres and has a vegetable garden with a raised bed…. he cannot use a shovel.
In a report of 21 January 2016, Dr Gock noted Chronic low back pain… Pain occurs after sitting 5 minutes. Pain intensifies at 70 metres of walking + then he has to stop at 100m then take 15 minutes to ease. In his report of 15 February 2016, Dr Ferris recorded:
The pain is exacerbated by walking 50 metres which causes a jarring sensation and sciatica. The pain is also exacerbated by driving, sitting for long periods and drinking black coffee… Michael is independent in his personal activities of daily living although his sleep sometimes disturbed. He is also independent with his domestic duties.
Dr Gock gave evidence by telephone. An application for a mobility parking scheme permit he completed on behalf of Mr Hyde on 6 July 2016 was put to him; in it he recorded that Mr Hyde Has to stop & rest and stretch after 20 minutes of driving. He confirmed that this was his assessment of Mr Hyde’s capacity at that time. He thought that possibly Mr Hyde would have been able to bend forward to pick up an object at knee height. He also observed that Mr Hyde had been able to stand up from a chair in the surgery without assistance.
In his own evidence, Mr Hyde described how his lifestyle had been compromised by his back condition, evidence which he said was equally applicable now as it was during the claim period. He lives by himself, though his former wife and children live nearby. He sleeps, he said, in an electric bed which puts me in traction. He would typically spend part of the day on an inversion machine in his home, and another part lying on the floor. If he goes shopping one day, he might spend three days recovering from it. He can lift, but not carry along, a two litre bottle of milk. He is unable to walk to the end of his 400 metre driveway. He is in almost constant pain.
He confirmed some of the evidence given by the doctors but disputed other evidence. He told the Tribunal:
I can’t move, I can’t twist, I can’t bend… I can’t twist my back… If I drop something on the ground, someone always picks it up for me… I have difficulty getting out of chairs… The only reason I get out of Dr Gock’s chair is because he’s got big armrests there… I lean on his desk and pull myself up
He could, however, turn his head. He said that when he attempted to pick up an object at knee height in Dr Gock’s office, he was unable to do so.
In relation to moving around a shopping centre, Mr Hyde said:
I can’t go to a shopping centre and walk around a shopping centre ‘cause I physically can’t do it. If I try to, I’m stuffed; I’m in pain, I’ve got tears in my eyes, I lie down on a bench…
He said he tried to move around shopping centres using trolleys, crutches or his sons for support, but I can’t do it. Later, however, he confirmed that he does move around a shopping centre using a trolley for support, but moves minimal distances – taking the lift, and going only to the pharmacist and the supermarket in close proximity to each other to minimise the distance travelled. He later told the Tribunal I don’t go to the shopping centre anymore anyway.
With respect to public transport, he said:
…even if we did have public transport [in Batemans Bay] I wouldn’t be able to put a bag onto a bus, catch the bus, get off the bus and then be able to go somewhere with that bag.
Mr Hyde told the Tribunal he tried to go swimming every day, though this was sometimes not possible. He confirmed a record of his physiotherapist, Rachel Cunningham, that he attended the pool nine days in a 15 day period. He said he could do breaststroke with a kickboard under his chest from one end of the pool to the other. At the end of the pool he would hang onto the diving block. He said:
I can’t get to the end of the pool and turn around. I have to stop and slowly shuffle myself around and then go back the other way…
He confirmed that he was able to drive his car. He could drive to the Moruya pool in summer, when it was open. He agreed the journey took about 19 minutes. He wasn’t able to drive his sons to school in the morning but could drive them home in the afternoon when my back’s warmed up. On occasions he cannot get into or out of his car, although generally his car is his only form of transport.
Two witnesses gave evidence on Mr Hyde’s behalf. Ms Sam Luvowici, his former partner and mother of his children, told the Tribunal about how she and their children were sometimes called on to assist him. Their sons sometimes help him out of his car, and she had once had to come from work to assist him out of a chair. She sometimes goes shopping for him and feeds his dog. At least three or four times a week he would call her and ask for help from the children for such tasks. Mr James Aegis, a friend for the last 15 years, told the Tribunal how he has assisted Mr Hyde in various ways from time to time, including by shopping for him, helping him out of chairs, delivering firewood and installing an air-conditioner. On occasions he has taken him shopping because he can’t move around the shops by himself. He helps him walk around the shopping centre.
CONSIDERATION

It is evident to the Tribunal that Mr Hyde suffers significant disability arising from his back condition. Clearly, the condition impinges on his ability to carry out day-to-day activities and could be said – broadly speaking – to be so serious as to render him unable to work. However, some of the evidence must be treated with caution by the Tribunal.
Mr Hyde told the Tribunal that what was true at the date of hearing regarding the impact of his condition was true during the claim period, but in other respects the impact of his condition seems to have changed such that contemporary evidence of the nature of the condition may not be relevant to the claim period. For example, in June 2015 Dr Le Leu recorded that he can go shopping, but he is slow… He hangs on the back of a shopping trolley and uses it as a crutch. This comment is based, presumably, on what Mr Hyde told him rather than what the doctor observed. Mr Aegis gave evidence that Mr Hyde was able to shop when he physically assisted him to do so. Mr Hyde’s evidence at the hearing was that I can’t go to a shopping centre and walk around a shopping centre ‘cause I physically can’t do it. Indeed, he said that he now doesn’t go to the shopping centre at all. This evidence suggests a deterioration in Mr Hyde’s mobility over time, but the level of his capacity to shop during the claim period is unclear. Table 3 uses the ability to walk around a shopping centre or supermarket without assistance as a relevant descriptor of a severe functional impact.
The evidence of the doctors does not always sit comfortably with the evidence of lay witnesses. For example, Mr Hyde testified that, when he attempted to pick up an object at knee height in Dr Gock’s surgery, he was unable to do so; Dr Gock however said that Mr Hyde could possibly carry out this function. The evidence of Ms Luvowici and Mr Aegis tended to corroborate Mr Hyde’s assessment of his abilities, but the Secretary submitted that this evidence should be disregarded because it is not corroborating medical evidence of the impairment. The Tribunal does not accept that argument; the relevant Tables provide that:
Examples of corroborating evidence for the purposes of this Table include, but are not limited to [reports of medical practitioners and allied health professionals]… [my emphasis]
It follows that the evidence of lay witnesses can constitute corroborating evidence of an impairment.
Even putting these difficulties to one side, the evidence does not allow Mr Hyde to reach the requisite 20 points. Considering firstly Table 3, relating to lower limb function – the table preferred by Mr Hyde – the relevant descriptors are:
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without
assistance;
(ii) walk from the carpark into a shopping centre or
supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
It should be observed that this list is conjunctive, not disjunctive; there must be an inability by Mr Hyde to do all of the things listed to establish that his impairment has a severe functional impact, attracting 20 points. Put another way, if Mr Hyde has the ability to do any of these things, he fails to reach the requisite threshold.
The evidence before the Tribunal regarding Mr Hyde’s ability to walk around a shopping centre or from a carpark into a shopping centre without assistance is contradictory, but in any case a finding in relation to that descriptor is unnecessary. The evidence of both Dr Gock and Mr Hyde himself is that he does have the ability to stand up from a sitting position without assistance. The Secretary contended – and the Tribunal accepts – that without assistance in this context means without devices (such as lifting machinery or crutches) or without the assistance of another person. Similarly, Mr Hyde’s evidence was that he would be able to use public transport without similar assistance – albeit without being able to take a bag with him.
He fares no better in relation to Table 4 – the measure preferred by the Secretary. It provides that a severe functional impact involving spinal function is established where:
(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.
Again, if Mr Hyde has the ability to do any one of the things listed the functional impact on his impairment is not considered severe.
The evidence on whether he can perform any overhead activity or bend forward to pick up a light object is not consistent. It does appear, however, that he is able to turn his head without moving his trunk. And it is very clear that he is able to remain seated for at least 10 minutes. He gave consistent evidence of being able to drive for moderate periods – 19 minutes in the case of the journey to the local pool – without stopping. Despite pain associated with this activity, I find that he can remain seated for at least 10 minutes.
Accordingly, I find that Mr Hyde’s lower back/lower limbs condition attracts no more than 10 points under the Impairment Tables. As such, he does not satisfy the provisions of s 94 (1)(b). It is therefore unnecessary to determine whether he meets the criteria set out in s 94 (1)(c).
On this occasion Mr Hyde’s application to receive the DSP is unsuccessful. However, the Tribunal notes that there was some evidence of deterioration in his physical condition over time, which may suggest that a fresh application may be more successful in the future. It also notes that his depression condition was not diagnosed and treated at the time of his application, a situation which may have changed since then.
The reviewable decision of 17 June 2016 is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate
Dated: 27 April 2017

Date(s) of hearing: 10 February 2017

Applicant: In person

Advocate for the Respondent: Chloe Jourdain

[2017] AATA 569

27 April 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	10 February 2017
Applicant:	In person
Advocate for the Respondent:	Chloe Jourdain