Jessup and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 571
•15 August 2013
[2013] AATA 571
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2494
Re
Mark Jessup
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
Decision
Tribunal Deputy President RP Handley
Date 15 August 2013 Place Sydney The decision under review is affirmed.
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Deputy President RP Handley
Catchwords
SOCIAL SECURITY - disability support pension – qualification – applicant had not received specialist assessment of his condition during the claim period - whether applicant has impairment rating of 20 points or more under the Impairment Tables - whether applicant's condition was fully diagnosed, treated and stabilised at the date of claim or during the claim period - decision affirmed
Legislation
Social Security Act 1991 s 94, sch 1B
Social Security (Administration) Act 1999 s 42, sch 2 cl 3 and 4
REASONS FOR DECISION
Deputy President RP Handley
Date: 15 August 2013
Mr Jessup (the Applicant) has applied for review of a decision of the Social Security Appeals Tribunal (SSAT), affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) rejecting Mr Jessup’s claim for a Disability Support Pension (DSP).
BACKGROUND
Mr Jessup was born in the United Kingdom in 1963 and is aged 50. He completed a degree in Applied Physics before coming to Australia in 1993 to work for the CSIRO as a research scientist in its Division of Radio Physics. After about 10 years, he left the CSIRO to work as a production engineer with BP Solar. In 2009, he took a voluntary redundancy from BP and has not worked since.
Mr Jessup states that he has experienced worsening lower back pain over the last five to six years. On 25 July 2011, he applied for a DSP, stating his medical condition to be “two compressed discs in lower back”. A Job Capacity Assessment was undertaken on 5 August 2011 by a registered psychologist, who recorded his condition as “Marked Osteoarthritis in the Lumbar Spine” and disc prolapse, disc bulge and nerve compression. The assessor considered that, at the time of the assessment, Mr Jessup could only work less than 14 hours per week, but would be able to work 15-22 hours per week within 2 years with intervention.
On 8 August 2011, Mr Jessup’s application for a DSP was rejected on the ground that he would be able to work over 15 hours per week within the next two years. On 27 October 2011, a Centrelink manager confirmed the decision on the ground that Mr Jessup’s condition was not fully treated and stabilised at the time of application. Mr Jessup provided further material: a medical certificate from Dr PCL Lam, General Practitioner, dated 21 November 2011, and a medical report dated 29 November 2011 from Dr T Gergis, General Practitioner, which noted two conditions - lower back pain and “Alcohol withdrawal resulting in seizures”. On 2 December 2011, an Authorised Review Officer (ARO) affirmed the decision on the grounds that Mr Jessup did not have a physical impairment of 20 points of more and did not have a continuing inability to work.
Mr Jessup applied to the SSAT for a further review. The SSAT affirmed the ARO’s decision, finding Mr Jessup’s medical conditions were not fully treated and stabilised and, therefore, attracted a total impairment rating of nil points. On 16 June 2012, Mr Jessup applied to the Administrative Appeals Tribunal for a review of the SSAT’s decision.
On 16 April 2013, Dr Dale Kong, an Occupational Physician, conducted an assessment of Mr Jessup at the request of the Respondent. Dr Kong identified two major medical conditions affecting Mr Jessup: “epilepsy and degenerative arthritis of the lumbar spine associated with two level disc protrusions”, the epilepsy manifesting in about 2010 and the lower back condition by about 2007. Dr Kong assessed Mr Jessup’s lower back condition as attracting 20 points under Table 5.2 of the Impairment Tables contained in Schedule 1B of the Act. Dr Kong said that at the time of Mr Jessup’s claim on 25 July 2011 and in the 13 weeks thereafter, Mr Jessup’s epilepsy had been diagnosed, treated (by a reduction of alcohol intake) and stabilised and was not affecting his work capacity. His lower back condition was also diagnosed, treated and stabilised, and although surgery was proposed as an option, Mr Jessup had elected not to undergo surgery because the outcome was said to be uncertain. Dr Kong assessed Mr Jessup’s epilepsy as attracting a nil impairment rating under Table 21 and his back condition as attracting 20 points “on the basis of loss of half normal range of movement as well as back pain or referred pain with most physical activity”.
RELEVANT LEGISATION AND ISSUES
The legislation relevant to this application is the Social Security Act 1991. It states in section 94:
(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;
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(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;
(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.
Work is defined in s 94(5) 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 Introduction to the Impairment Tables in Schedule 1B of the Act provide that an impairment rating can only be assigned to medical conditions that are diagnosed, treated and stabilised. In terms of treatment, paragraph 6 states that the decision-maker must consider whether any further reasonable treatment is likely to lead to significant functional improvement within the next two years. Reasonable treatment is taken to be treatment that is feasible and accessible and “where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient”.
In determining the qualification period for a person’s DSP claim, s 42 of the Social Security (Administration) Act 1999 (the Administration Act) states the “start day” is worked out in accordance with Schedule 2 of the Administration Act. Clause 3 of Schedule 2 provides that the start date for a DSP is the day on which a claim is made. If a person is not qualified for a DSP on the date the claim was made then cl 4(1) applies:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In Mr Jessup’s case, his start date is 25 July 2011 and the period of 13 weeks thereafter ends on 24 October 2011.
The Respondent accepts that Mr Jessup has physical impairments, thereby satisfying s 94(1)(a). Thus, the principal issues for the Tribunal to determine are:
(a)whether Mr Jessup’s conditions were fully diagnosed, treated and stabilised on the date of claim or during the ensuing 13 week period;
(b)whether Mr Jessup’s impairments should be awarded 20 points under the relevant impairment tables; and
(c)whether Mr Jessup has a continuing inability to work.
Mr Jessup’s Case
Mr Jessup said that after his back condition manifested about five or six years ago, he consulted his general practitioner from time to time and had physiotherapy. It was recommended that he use a back support – a belt – which he did. He had a MRI at that time, the results of which were the same as those of the more recent MRI which showed that he has two collapsed discs. He said the pain from his back has got progressively worse.
Mr Jessup said his work for BP involved him walking around and a bit of manual labour – giving guidance to employees on the assembly of large vacuum pumps, which included some manual pushing and pulling and assembly work involving nuts, bolts and spanners. He worked for a couple of years with back pain, using a belt for support, sought guidance from a physiotherapist about how to move, and did progressively less work. He took voluntary redundancy when this was offered by BP for several reasons, including his deteriorating back condition, the generous financial package offered, and because it was obvious the business was winding down which might have resulted in him being laid off anyway.
Mr Jessup said that, since then, he has been looking for suitable work, which would have to be work that did not require him to either stand or sit in one place for more than about 20 minutes at a time. The longer he remains in one position the more pain he experiences For example, Mr Jessup said walking for more than approximately 20 minutes aggravates his back and increases his pain levels, especially during the following night, and sometimes even into the next day. He takes medication for the pain on an ‘as needs’ basis – sometimes once a week and sometimes every other day. The medication alleviates the pain but has side effects and may put him to sleep for up to 24 hours, leaving him feeling “dreadful” and nauseous when he wakes.
Mr Jessup said he applied for a job as a ‘lollipop’ person because it seemed to him that this was something he could manage. But he was not invited for an interview and nothing came of it. About a year ago, he also applied for a position as a maintenance engineer at the University of NSW. He thought he might be able to manage such a job because it was within his area of expertise and he would be able to move around and change position. Again, nothing came of his application. Mr Jessup said he continues to look for suitable jobs but is restricted in what he can do. For example, he could not do a sedentary job involving him sitting at a computer terminal such as telephone sales or working in a ticket office. He cannot even go to the cinema and watch a movie. He would prefer a job as a hands-on engineer like that he had at the CSIRO, involving introducing new practices and teaching others. A university based job would probably suit him well because such jobs generally enable a person to move from one task to another. He would probably need to work part-time to begin with but would extend his hours if he found he could manage.
Mr Jessup described the effect of his back condition on his daily activities. He said he was able to walk to the Tribunal premises in Market Street, Sydney from Town Hall station. Travelling by train is “OK” but he has problems with stairs and ramps. The share house in which he lives is a two storey building with the bedrooms upstairs. He manages the stairs slowly. He also avoids twisting and lifting – he brought his file papers to the hearing in a ‘wheelie’ bag with an extendable handle and wheels. He avoids going to places unnecessarily but goes for a 20 minute walk in the morning and afternoon to keep mobile. He ensures his walks are over flat ground.
Mr Jessup said that in about July/August 2011, he asked his general practitioner, Dr Gergis for a referral to a specialist for advice on his back condition and Dr Gergis referred him to Dr Vasili, Orthopaedic Surgeon, at the Royal North Shore Hospital. First of all, Mr Jessup had to go to the Hospital to arrange an appointment. Secondly, about three months later, he thinks, he saw Dr Vasili. Dr Vasili referred him for a MRI which he had about two to three months later. Finally, Mr Jessup attended an appointment with Dr YL Lau, an Orthopaedic Registrar at the Hospital to discuss the results of the MRI, again about three months later. The whole process took about a year. Dr Lau handwrote his report dated 6 August 2012 in Mr Jessup’s presence at the time of the consultation. Mr Jessup said Dr Lau raised issues about Mr Jessup’s back of which he was already aware and they discussed surgery but Dr Lau did not recommend this. Mr Jessup said that none of the doctors with whom he has discussed surgery have recommended it. With the benefit of both MRIs and a CT scan, neither Dr Gergis, who has also physically examined Mr Jessup, nor Dr Lau have been able to give him a better than 50/50 chance of some improvement from surgery, and there is a possibility that surgery could make his condition worse. Apart from having a MRI or CT scan, there is no other way of exploring whether surgery might be of benefit other than having exploratory surgery.
Mr Jessup said he has had physiotherapy to help his back condition but Medicare only provides financial support for five sessions a year and, even then, those sessions are not fully paid for. As a recipient of newstart allowance, Mr Jessup cannot afford additional sessions and nor can he afford acupuncture or hydrotherapy. Over the last few years, he has seen two or three physiotherapists, depending on where he has been living at the time. He last saw a physiotherapist early in 2012. He has been “hanging on” to his five sessions for 2013 for when he needs them most.
Mr Jessup agreed that epilepsy is no longer relevant in terms of whether he is qualified for DSP. He said that Centrelink had advised him to apply for a DSP. He has done everything he has been asked to do throughout this process including attending the ORS Group for the preparation of an Employment Services Physical Assessment Report (dated 8 May 2012). Mr Jessup said he also agreed to the hearing being delayed at the request of the Respondent to facilitate his referral to Dr Kong for assessment. He therefore expressed his concern that having obtained Dr Kong’s assessment, including of his lower back condition to which Dr Kong attributed 20 points under Table 5.2, Centrelink has now sought to repudiate that assessment.
In relation to whether his back condition has been fully treated, Mr Jessup reiterated that back surgery is not a low risk option and there is not a high degree of success where such surgery is performed. With regard to whether he has a continuing inability to work, Mr Jessup said it is unclear whether he can work 15 hours a week. He noted, however, that his condition is degenerative and will probably get worse.
Other Evidence
The handwritten report from Dr Lau, dated 6 August 2012, to which Mr Jessup referred, states:
Mark has MRI demonstrated evidence of 2 level disc protrusion and early osteoarthritis of his lumbar spine. There is no cord or nerve root compression.
These are consistent changes associated with aging. Heavy labour or lifting may accelerate the degenerative process.
Dr T Gergis, Mr Jessup’s general practitioner, completed the medical report accompanying Mr Jessup’s DSP application on 17 July 2011. He diagnosed “marked osteoarthritis in lumbar spine”, referring to the CT scan (included in the T Documents and dated 18 July 2011) showing “disc prolapse L4/5 & L5/S1”. Dr Gergis described Mr Jessup’s current treatment as physiotherapy and pain analgesia and in answer to a question about future planned treatment responded “? Surgical”. Dr Gergis has provided two later reports, one undated but apparently in response to a ‘Dear Doctor’ letter, dated 29 October 2012, and the other dated 19 February 2013. In the earlier report, Dr Gergis states:
3. I believe the impairment is permanent unless patient has major back operation which will carry no definite prognosis. …
5. There are few treatments available but no definite prognosis, e.g.. [sic] operation, hydrotherapy, physiotherapy or acupuncture.
6. I believe the impairment would fit for Twenty point (Table 5)
7. Based my report on the assessment from ORS Group dated on 23/04/2012, MRI report on 18/04/2011and my medical examination.
In his report dated 19 February 2013, Dr Gergis states: “Marks working ability is limited for 20 minutes at a time and then has to get up and walk for 20 minutes after that.”
Dr Dale Kong, Occupational Physician, who assessed Mr Jessup at the request of the request of the Respondent, stated in his report dated 19 April 2013 that Mr Jessup’s lower back condition had been treated and stabilised by 25 July 2011, noting that although surgery was a possible option, Mr Jessup had elected not to have surgery because of advice he had received that the outcome was uncertain: “No further treatment apart from symptomatic treatment was recommended.” Dr Kong assessed Mr Jessup’s lower back condition using Table 5.2 and “rated the impairment at twenty points on the basis of loss of half normal range of movement as well as back pain or referred pain with most physical activity”. In answer to a question about what surgery would involve, the success rate, and associated risks and side effects, Dr Kong stated:
This is outside my area of expertise. I would recommend that he undertake either a specialised orthopaedic assessment or a neurological assessment for a response to these questions.
Dr Kong said, in his opinion, Mr Jessup could work for at least 15 hours a week with restrictions on weight bearing for prolonged periods of time or performing any repetitive bending or lifting activities.
Dr Kong also gave evidence by conference telephone at the hearing. He said in making his assessment of Mr Jessup’s impairment, he did take into account the need for his back condition to be fully diagnosed, treated and stabilised in accordance with the Introduction to the Impairment Tables. Dr Kong said back surgery can never carry a definite prognosis. Surgery is case specific and should be discussed between the patient and the treating specialist. It is a very subjective issue. Dr Kong said, in his opinion, Mr Jessup’s treatment was appropriate and optimal. Mr Jessup was uncertain as to the result of surgery and did not want to go ahead with this.
The Tribunal has also been provided with a copy of the ORS Group Physical Assessment Report for Mr Jessup dated 8 May 2012 which assessed his work capacity as being 15-22 hours per week with restrictions in a sedentary position. A Job Capacity Assessment Report dated 24 January 2013, which appears not to have involved meeting with Mr Jessup, instead relying in part on an earlier assessment, assessed Mr Jessup’s capacity to work, with intervention, support and optimal placement, as being 15 to 22 hours per week in suitable employment in a part-time capacity.
DISCUSSION
Dr Thompson, for the Respondent, said the Respondent does not accept that Mr Jessup’s back condition was fully diagnosed, treated and stabilised at the relevant time from 25 July 2011 to 24 October 2011. It appears that at the time of completing the medical report accompanying Mr Jessup’s claim for DSP, Dr Gergis, his general practitioner, had referred Mr Jessup for specialist assessment to Dr Vasili, Orthopaedic Surgeon, at the Royal North Shore Hospital. While there is no report from Dr Vasili, Mr Jessup told me that he had written to Dr Vasili twice asking for a further report about his condition and had sent him a copy of the T Documents, but did not receive a reply. Mr Jessup’s account of his referral by Dr Gergis indicates that the whole process took about 12 months culminating in his meeting with the Orthopaedic Registrar, Dr Lau, on 6 August 2012 to discuss the results of the MRI scan. Mr Jessup has provided the Tribunal with a copy of Dr Lau’s handwritten report which is referred to above.
Dr Thompson referred me to the Full Federal Court decision in Secretary, Department of Families, Housing, Community services and Indigenous Affairs v Jansen (2008) 166 FCR 428 at [38-39]:
38 In this case it is quite clear from the context provided by cl 6 of the Introduction (see [10] above) that whether the person’s reason for refusing treatment is compelling is to be determined by the relevant medical officer. When the Introduction refers to functional improvement not being expected or there being "a medical or other compelling reason" for the person not undergoing further treatment, it does not contemplate separate decision makers. It is the medical officer who must assign impairment rating and it is he or she who must decide if the reason for the person not undertaking treatment falls within the circumstances identified in the Introduction.
39 As Mr Hanks put it, the appropriate question for the decision maker to ask is, "Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?" Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of clause 6. It follows that the primary judge erred in focusing on the purely subjective aspect of the test in clause 6.
I accept that Mr Jessup’s subjective view of “whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years” (paragraph 6 of the Introduction to the Impairment Tables), should not of itself be relied upon in deciding whether his back condition is fully diagnosed, treated and stabilised. However, the Tribunal has also been provided with the medical opinion of an Occupational Physician, Dr Kong, who assessed Mr Jessup’s impairment at the request of the Respondent and who stated that, in his view, Mr Jessup’s back condition was fully treated and stabilised. Mr Jessup has now undergone specialist assessment and Dr Kong referred to that assessment in the course of his report. Mr Jessup’s general practitioner, Dr Gergis, also referred to that assessment in his most recent report. In my view, while the specialist assessment had not been undertaken at the relevant time between 25 July 2011 and 24 October 2011, and thus it is not possible to attribute 20 impairment points to Mr Jessup’s back condition at that time, it is now appropriate to do so based on the further available evidence. This means that while Mr Jessup was not qualified for a DSP at the time he lodged his application and in the 13 weeks thereafter, it may now be appropriate to reconsider the level of impairment attributable to his back condition in the light of the further medical evidence.
In my view, noting the Introduction to the Impairment Tables, and with the benefit of the further available medical evidence, I would not be satisfied that the need for Mr Jessup to have had ‘reasonable treatment’ requires that he undergo surgery for his lower back condition. While this may be an option, I accept that the medical opinion, referred to above, is that there are risks associated with back surgery and, in Mr Jessup’s case, there is no definite prognosis if he were to undergo such surgery. The medical evidence available to me suggests that in such a situation, where the prognosis is not definite, it must ultimately be for the patient to decide whether to have surgery and it is reasonable for him to decide not to do so.
In my view, the medical evidence is sufficient to support a finding that Mr Jessup’s lower back condition is now fully diagnosed, treated and stabilised. In terms of assessing the level of impairment attributable to this condition, Dr Kong has assessed the appropriate level of impairment as attracting 20 points under Table 5.2 on the basis of a loss of half the normal range of movement as well as back pain or referred pain with most physical activity. I note that Dr Gergis has also made a similar assessment in his undated report, apparently from 29 October 2012. In the light of Mr Jessup’s evidence about how his lower back condition affects his daily activities, I am satisfied that Dr Kong’s assessment can be relied on in finding that Mr Jessup’s lower back condition should now be accorded 20 impairment points under Table 5.2. Thus, were Mr Jessup to make a new application for DSP, I would be satisfied that s 94(1)(b) of the Act is met.
Whilst it is not necessary for me to do so, the other issue that will need to be considered if Mr Jessup makes a new application for DSP is whether, in accordance with s 94(1)(c) of the Act, he has a continuing inability to work. Mr Jessup’s evidence is that if he were able to obtain suitable part-time employment, he might be able to work for at least 15 hours per week. His evidence suggests that although he has been looking for suitable work, to date he has not had appropriate support to assist him in doing so. I accept his evidence that he has done everything asked of him by Centrelink and I would recommend that further consideration be given to what forms of assistance might be available for the purpose of identifying suitable work, discussing options with him and, if necessary, supporting him in engaging in suitable work, at least in the initial period.
Conclusion
I acknowledge Mr Jessup’s predicament and his obvious frustration at the treatment he has received in his engagement with Centrelink and other services. I am satisfied that if Mr Jessup were to lodge a new application for DSP, he would meet the requirement for 20 points under Table 5.2 of the Impairment Tables and thus satisfy s 94(1)(b) of the Act. However, at the relevant time between 25 July 2011 and 24 October 2011, the requirement that his back condition be fully diagnosed, treated and stabilised was not satisfied because he was awaiting specialist assessment and advice. Thus, at that time, no points could be accorded to his condition under Table 5.2 and s 94(1)(b) of the Act was not satisfied with the result that Mr Jessup was not then qualified for a DSP.
The decision under review must therefore be affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Handley.
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Associate
Dated 15 August 2013
Date(s) of hearing 7 August 2013 Date final submissions received 7 August 2013 Applicant In person Advocate for the Respondent Dr S Thompson, solicitor Solicitors for the Respondent Sparke Helmore solicitors
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