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

[2018] AATA 2277

Jenkins and Secretary, Department of Social Services (Social services second review) [2018] AATA 2277 (17 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/1540

Re:Trent Jenkins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:17 July 2018

Place:Sydney

The Tribunal affirms the decision under review. Mr Jenkins did not qualify for DSP during the qualification period.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – refused – whether disability is fully diagnosed, treated and stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables during the relevant period – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

17 July 2018

What this decision is about

1. This decision is about whether Mr Jenkins qualifies for Disability Support Pension (DSP).  

2. He applied for DSP on 28 April 2016.  It was refused on 22 June 2016.  That decision was affirmed by an Authorised Review Officer (ARO) on 8 October 2016. The Social Services and Child Support Division of the Tribunal affirmed the ARO’s decision on 22 February 2017.  This Tribunal is reviewing that decision.

3. Mr Jenkins had previously applied unsuccessfully for DSP in 2015.

4. The issue the Tribunal has to determine is whether Mr Jenkins qualified for DSP within the 13 week period beginning on the date he lodged his application on 28 April 2016 and ending 28 July 2018.

5. The qualification criteria for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (the Act).

6. The following medical conditions are raised by the evidence and must be considered:

   ·Lower back and sciatic pain

   ·Migraine/headache

   ·Depression

7. It is necessary to consider each of the conditions raised by the evidence to determine:

   ·whether Mr Jenkins has a physical, intellectual or psychiatric impairment;[1]

   ·if so, whether his impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) (the Impairment Tables).[2]

   [1] s 94(1)(a) of the Act.

   [2] s 94(1)(b) of the Act.

8. The Impairment Tables provide that conditions must be permanent in order to be assigned a rating, and to be permanent, they must be fully diagnosed, treated and stabilised.

9. If Mr Jenkins has an impairment that is of 20 points or more under a single Impairment Table, that is, a severe impairment, that is the end of the inquiry and he qualifies for DSP.

10. If a person has a number of impairments that are permanent and the total of the ratings assigned is 20 points or more, the person must also satisfy the continuing inability to work requirement.[3]  Mr Jenkins does not satisfy that criterion because he has only participated in a Programme of Support (PoS) for 24 days in the last three years.  It is necessary to have participated for 18 months in the last three years.

    [3] s 94(1)(c)(i) of the Act and Social Security (Active Participation for Disability Support Pension) Determination 2014.

11. The PoS requirement can also be satisfied if:

    ·The duration of the PoS was less than 18 months and the person completed it;

    ·a person undertaking a PoS is formally exited from the program before it ends because they are unable, solely because of their impairment, to improve their work capacity through continued participation in the program;

    ·the person is participating in a PoS at the end of the 36 month period and is prevented, solely because of the impairment, from improving their capacity to prepare, for, find or maintain work by continued participation.[4]

    [4] Social Security (Active Participation for Disability Support Pension) Determination 2014, s 7(3), (4) and (5).

12. Mr Jenkins does not satisfy any of those requirements. Therefore, to qualify for DSP, Mr Jenkins must have an impairment that rates 20 points or more under a single Impairment Table.

    The evidence

13. Tribunal has considered the documentary evidence provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), additional documentary evidence provided and the oral evidence of Mr Jenkins and Dr Petro given over the telephone.

    Lower back and sciatic pain

14. There are many medical certificates in evidence from various doctors, the vast majority of which are signed by Dr Petro, general practitioner, who gave evidence by telephone.  The first medical certificate is dated 12 April 2012.  Until April 2015, all the medical certificates refer to Mr Jenkins only complaining of one medical condition, lumbo-sacral pain/sciatica.

15. Mr Jenkins underwent a decompressive laminectomy of L4/L5 5 February 2015 carried out by Dr Stoodley, Professor of Neurosurgery, Neurosurgeon.  At the follow up consultation, Dr Stoodley reported that there was no lower limb pain and that Mr Jenkins was “very happy with the outcome”.  

16. In his medical report in support of the DSP application dated 19 April 2016, Dr Petro wrote that the current and planned treatment was physiotherapy, exercise programme and opioid analgesia.   He listed the current symptoms:  daily chronic back pain, exacerbated by bending, prolonged sitting, prolonged standing, severe headaches.

17. Dr Petro listed the following impacts on ability to function: severe limitation of bending and lifting, inability to sustain one position for prolonged periods, unable to sit or stand for prolonged periods, difficulty concentrating due to medication. He considered that the impact of condition would persist for more than 24 months and would deteriorate within the next two years.

18. In his DSP application, Mr Jenkins listed the three conditions and stated that he “cannot work at specific times. Chronic back pain exacerbated by bending, sitting, standing. Severe headaches.”

19. A Job Capacity Assessment (JCA) was done on 20 June 2016 by telephone by an Accredited Exercise Physiologist in consultation with a registered psychologist (the 2016 JCA).  The assessor described the condition as “intervertebral disc disorder” and found that the condition was fully diagnosed, treated and stabilised and recommended a rating of 10 points under Impairment Table 4. The assessor reported that Mr Jenkins was able to sit and drive a car for at least 30 minutes, by having a break after 10 to 15 minutes to rest and then resuming driving.  The assessor also found that he was unable to bend forward to pick up a light object placed at knee height because he had reported that he cannot bend to the floor or knee height to pick up objects.  He uses his “extender claw” aid to pick up object at that level.

20. Dr Petro wrote a letter in support of Mr Jenkins DSP application dated 18 August 2016. He addressed only the lower back condition. He said that the surgery was successful in relieving most of Mr Jenkins sciatic right leg pain but that the lower back pain had persisted. He considered that the chronic back pain was unlikely to show significant improvement in the future and should be considered permanent. He wrote that current treatment is directed towards maintaining Mr Jenkins’ mobility and independence, consisting of ongoing strengthening exercises, low-dose opioid analgesia combined with other measures like hydrotherapy that facilitate use of lower dose analgesics.

21. At the hearing Dr Petro said that the major component of pain post-surgery was back pain and that there had been a significant improvement in the sciatica.

22. In a medical certificate Dr Petro signed on 19 July 2016, he listed the current symptoms as constant severe back pain and sciatica exacerbated by prolonged sitting and standing and certified Mr Jenkins to be unfit for work/study from 19 July 2016 to 19 October 2016. His opinion was that Mr Jenkins was unable to undertake his usual work/study and could not work for eight hours or more per week and that headaches contributed to that incapacity.

23. In his report dated 6 October 2016, Dr Clarke, Anaesthetist and Pain Specialist, wrote that Mr Jenkins had significant improvement in his leg pain after the 2015 spinal surgery, but his back pain remained unchanged and he had noticed a “steady increase in his sciatic-like pain in his legs again over the past few months”. He requested an MRI of the lumbar spine and a bone scan. He considered that the musculoskeletal component of pain may respond to medial branch blocks followed by radiofrequency neurotomies. He also wrote that transforaminal right-sided L5 and S1 pulsed radiofrequency of the DRG and epidural steroids were indicated.

24. In the decision dated 8 October 2016, the ARO stated that Mr Jenkins had advised the Job Capacity Assessor that he had difficulty dressing, particularly with shoes and socks, difficulty lifting, the maximum lifting capacity of 2 kg, he was unable to vacuum, he had a sitting tolerance of 10 to 15 minutes, he had difficulty with stairs and mobilising on uneven ground, he had a standing tolerance of 10 to 20 minutes, he cannot bend to the floor or knee height pick up objects and uses an extender claw for that purpose and occasionally used a walking aid.

25. The ARO agreed with the findings of the Job capacity Assessor.

26. Dr Petro provided a report to the Tribunal dated 7 June 2017. He expressed the opinion that Mr Jenkins’ spinal condition should be assessed as rating 20 points in Table 4 as of 28 April 2016 because he had severe functional impairment due to being unable to perform any overhead activities.

27. Mr Jenkins’ Patient Health Summary from Dr Petro’s practice for the period 27 January 2015 to 7 June 2017 was in evidence.  It does not record that Mr Jenkins was unable to perform any overhead activities. At the hearing, Dr Petro said that it was his recollection that Mr Jenkins had reported having difficulty reaching cupboard shelves over shoulder level and that Mr Jenkins would struggle with employment involving overhead activities.  Dr Petro explained that he did not make detailed notes because there was no need to change treatment.

28. The Tribunal does not accept that Dr Petro’s recollection is accurate and prefers the contemporaneous reports Mr Jenkins made to the JCA.  It finds that the appropriate rating is 10 points under Table 4.  

    Headache/migraine

29. In his report dated 19 May 2015, Dr Bruce, Consultant Physician, stated that Mr Jenkin’s headaches had begun following spinal surgery. In addition to examining Mr Jenkins, Dr Bruce reviewed a CT scan of the brain that was “normal”. He considered that the headaches “could be due to sleep deprivation”, prescribed temazepam, and suggested a sleep study to check for OSA (Obstructive Sleep Apnoea) “if the headaches persist”.  

30. Dr Petro told the Tribunal that he did not refer Mr Jenkins for a sleep study for OSA because he had a different clinical opinion and that there was no evidence to suspect that condition. 

31. Dr Petro referred Mr Jenkins for a CT scan of his cervical spine in July 2015. He said that it was debatable whether that clarified the cause of the headaches.  It showed minor bulging at C2/3 and 4/5. It did not cause him to change the treatment which was analgesia and physiotherapy or home stretching, the same as for the lower back.

32. In his report in support of the DSP application dated 19 April 2016, Dr Petro listed the current treatment for chronic headaches as Targin and specialist review 2015. Planned future treatment was analgesia. He described the current symptoms as frequent episodic headaches of disabling severity, most of days for the week, exacerbated by lower back pain. In the history he described referring Mr Jenkins to see Dr Bruce “who advised symptomatic treatment”.   Dr Petro listed the following impacts on ability to function: severe impact of concentration, communication and behaviour during an attack, lasting several hours. He expected the impact to continue for more than 24 months and to remain unchanged over the next two years.

33. In his medical certificate dated 19 July 2016, Dr Petro listed frequent headaches as another medical condition which impacted on Mr Jenkins capacity to work or study and certified Mr Jenkins was unfit for work/study from 19 July 2016 to 19 October 2016 and was currently unable to undertake his usual work/study and could not work for eight hours or more per week..

34. Mr Jenkins reported taking daily medication for his headache to the 2016 JCA assessor. He reported daily pain, impaired concentration, irritability and occasional sharp pains “(under investigation)”.

35. The 2016 JCA assessor determined that this condition was fully diagnosed but was not fully treated because there was no verification of neurologist assessment/treatment or pain management program available.

36. In his 5 October 2016 report, Dr Clarke noted Mr Jenkin’s reports of migraine-like headaches since his 2015 spinal surgery which he suffered every two or three days. Mr Jenkins described a sudden sharp piercing pain that lasted one to two minutes “and feels like he has been hit by a ‘bolt of lightning’”. He reported taking paracetamol for the headaches which he stated “makes them bearable”. Dr Clarke made no recommendations in treating the pain of the headaches in addition to those made in relation to the “musculoskeletal component of his pain” listed earlier in this decision in relation to lower back and sciatic pain.

37. The Tribunal accepts that doctors may have different clinical opinions. The Tribunal finds that Dr Petro has been treating Mr Jenkins’ headaches appropriately.  It accepts that they have been fully diagnosed, treated and stabilised.  Based on his assessment of the impact on Mr Jenkins, the Tribunal finds that the appropriate Impairment Table is Table 7 and the appropriate rating is 5 points.

    Mental health condition

38. The first reference to Mr Jenkins suffering from a mental health condition is the reference in the Patient Health Summary notes dated 22 July 2015 when Dr Petro noted depressed mood and wrote a letter re “GP Mental Health Care Plan” and a referral to Ms McKenna, psychologist.  The next consultation dated 5 August 2015, recorded that Mr Jenkins had “seen psychologist, booked for more sessions before diagnosis opinion made.” The entry dated 10 September 2015 states that “Report form psychologist not available”.  Dr Petro described her as a clinical psychologist.  

39. The first identified mental health condition was Adjustment Disorder with Depressed Mood, onset 2014, in Dr Petro’s medical certificate dated 29 October 2015. In his report dated 3 November 2015 in support of the 2015 DSP application, Dr Petro described the condition as “Adjustment Disorder with Depressed Mood”.  He listed it under item 6, “any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”.

40. No reference is made in the Patient Health Summary to a report being received from the psychologist or to a diagnosis. Mr Jenkins was receiving psychotherapy from Ms McKenna until at least 20 October 2015. He was then trying to follow strategies discussed with her. 

41. Mr Jenkins told the Job Capacity assessor on 19 November 2015 (the 2015 JCA) that he had recently commenced new medication for sleeping and engaged with a clinical psychologist three to four months ago whom he was seeing fortnightly.

42. On 10 March 2016, Dr Petro noted that Mr Jenkins’ depression was ongoing and thought medication was partially helping, and discussed restarting psychotherapy.   A referral was written for a psychologist who was unavailable.  A referral to Dr Nisbet was written on 30 March 2016. Dr Petro told the Tribunal that Mr Jenkins continued to see Dr Nisbet for the remainder of 2016 but he did not renew the referral in 2017 because Dr Nisbet did not bulk bill, Mr Jenkins was trying the strategies he had been taught and did not consider that he would benefit further from seeing Dr Nisbet.

43. In his report in support of the DSP application dated 19 April 2016, Dr Petro listed Major depressive disorder under item 6 as a medical condition that is generally well managed and causes minimal or limited impact on ability to function.  The evidence does not explain why a different diagnosis was provided.  However, the Tribunal infers that Ms McKenna and Dr Nisbet provided the diagnoses of Adjustment Disorder with Depressed Mood and Major Depressive Disorder, respectively.  

44. In a medical certificate he signed on 20 April 2016, Dr Petro listed Major Depressive Disorder as a secondary/related condition which impacted on Mr Jenkins’ capacity for work or study.  He listed the symptoms as low mood, social withdrawal, loss of energy and motivation, problems with memory, concentration, planning, decision-making and communication, and past and current treatment as psychologist treatment and antidepressant medication. 

45. The 2016 JCA noted that Mr Jenkins had previously reported that he experiences anger, rage, depression and can be short and nasty towards people. In addition to taking the medication, Mr Jenkins reported seeing a clinical psychologist in the past, Ms McKenna.

46. The 2016 JCA concluded, as did the 2015 JCA, that the condition was fully diagnosed but because no verification of ongoing treatment was available, the condition was not considered to be fully treated at the time of the assessment.

47. In the medical certificate dated 19 July 2016 in which Dr Petro certified Mr Jenkins unfit for work from 19 July 2016 to 19 October 2016, Dr Petro listed major depressive disorder as a secondary/related condition which impacted on Mr Jenkins capacity to work or study.

48. Dr Clarke identified signs and symptoms of pain in the lumbar region and stated:

    By definition he has “failed back surgery syndrome”. His pain occurs in the context of psychological overlay in particular severe depression. Unfortunately he has not progressed beyond the pre-contemporary phase of change. He suffered a major setback when the surgery did not produce the effects he hoped for and has not managed to recover from this. In terms of perpetuating features I believe his ongoing unemployment, cannabis use, comorbid depression and a medical focus on the main barriers to progressing.

49. Under a list of recommendations, Dr Clarke stated that Mr Jenkins may benefit from an increased dose of mirtazapine or trialling alternative medications such as duloxetine but thought that that should occur under the auspices of a psychiatrist. He understood that Mr Jenkins was seeing a clinical psychologist, Mr Nisbet, but was not particularly benefiting from this. “I think this reflects more on where Trent is from a “headspace” than anything else.”  He also considered Mr Jenkins cannabis use to be a barrier to his progressing and recommended that he see an addiction specialist.

50. The Tribunal accepts that Mr Jenkins condition has been fully diagnosed, treated and stabilised. 

51. In his report for the DSP application dated 19 April 2016, Dr Petro listed Major depressive disorder under item 6 as a medical condition that is generally well managed and causes minimal or limited impact on ability to function.  The Tribunal considers that opinion to be the most relevant to the assessment of impairment and finds that a rating of 0 points under Table 5 is appropriate within the qualification period.

52. Mr Jenkins did not have a permanent impairment within the qualification period to which a rating of 20 points was assigned.  He did not satisfy the PoS requirement.  He therefore did not qualify for DSP during the qualification period.

    DECISION

53. For the above reasons, the Tribunal affirms the decision under review. Mr Jenkins did not did not qualify for DSP during the qualification period.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 17 July 2018

Date(s) of hearing:	2 November 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms S Wavamunno, Department of Human Services