Joel Crickmore and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 495
[2013] AATA 495
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1339
Re
Joel Crickmore
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 15 July 2013 Place Sydney The decision under review is affirmed.
................[sgd]...................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – qualification – whether applicant’s impairment rating was at least 20 points within period of assessment – impairments not able to be rated as conditions are not fully diagnosed, treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
15 July 2013
On 11 September 2012 Mr Crickmore, a 24 year old man, notified Centrelink of his intention to claim for Disability Support Pension (DSP). The following day he lodged an application for DSP in which he claimed that he suffered “chronic lower back pain” because of a “central disc bulge [at] L5/S1”.
His application was rejected by Centrelink and subsequently the Social Security Appeals (SSAT) and he now seeks review of that decision.
The respondent contends that Mr Crickmore did not satisfy the requirements of section 94(1) of the Social Security Act 1991 (the Act) during the 13 week assessment period. In particular, he did not satisfy section 94(1)(b) in that his rating under the Impairment Tables was less than 20 points and section 94(1)(c), in that he did not have a continuing inability to work as defined in section 94(2) of the Act.
Mr Crickmore was not represented and was not present at the hearing, but participated and gave evidence by telephone.
ISSUES
Mr Crickmore claims that he suffers from chronic pain which started following an incident at work in June 2012 and that the pain is caused by an L5/S1 central disc bulge that was seen on a CT scan done on 20 June 2012.
Mr Crickmore also claims that his chronic pain has been contributed to by a cervical spine condition, “right foraminal stenosis”, seen on a CT scan done on 8 April 2013.
As a result of his chronic pain Mr Crickmore claims he now suffers from “depression” and “anxiety”.
Mr Crickmore contends that he is qualified for DSP because he suffers impairment caused by his claimed medical conditions and that his impairment is sufficient to attract an impairment rating of 20 points or more under the relevant Impairment Tables and that he is unable to do any work.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”) stipulates that an impairment rating can only be assigned to a person’s condition if the condition is permanent. A condition is permanent if is fully diagnosed, treated and stabilised.
Furthermore, the Social Security (Administration) Act 1999 requires that the relevant period for consideration of Mr Crickmore’s qualification for DSP is the date of application and the subsequent 13 weeks (“the assessment period”), that is, between 11 September 2012 and 11 December 2012.
Therefore the issues to be considered are:
·Whether, during the assessment period, Mr Crickmore’s claimed medical conditions were fully diagnosed, treated and stabilised, and, if so;
·Whether, during the assessment period, the conditions had any functional impact so that an impairment rating could be assigned, and, if so;
·Was the impairment rating 20 points or more, and, if so;
·Whether, during the assessment period, Mr Crickmore had a continuing inability to work as defined by the Act.
THE LUMBAR SPINAL CONDITION
In a written statement dated 27 July 2012 Mr Crickmore states that on 4 June 2012 he was employed by Sun Metals Refinery as a trades assistant. He claims that on 7 June 2012, he was cutting bricks in a low position and when he stood up to grab the next brick to cut he heard a “large crack noise in [his] back” and “felt a lot of pain in [his] lower lumbar”.
He was taken to Parkhaven Medical Centre where he was seen by Dr Williams and was told that he had “lower and upper back strain” but would be fit for suitable duties.
Dr Williams prescribed Nurofen and Panadeine forte and told him to go home, rest and await an appointment for physiotherapy treatment.
In his oral evidence Mr Crickmore stated when he saw Dr Williams a week later she told him that all he had was “muscle problems” or “muscle strain” and that she would not extend his WorkCover certificate, but did prescribe additional pain medication, Tramal.
Mr Crickmore said that he did not accept Dr Williams’ diagnosis because he continued to suffer severe pain throughout “his entire body”. He described the pain as “in my lower back down into my left leg. And then it went all the way from my lower back into my upper back … to the verge of my neck”. He added that although the pain is worse now it has always been the same, is present every day, particularly in his neck, and is not relieved by “heaps and heaps of medication”.
Mr Crickmore sought a second opinion from another GP, Dr Tabanas, who arranged a CT scan of the lumbar spine.
In a CT scan report dated 20 June 2012 the clinical history is described as “[e]valuation of lower back pain. To rule out spondylolisthesis. Left side sciatica”. The report notes that there is “L5/S1: Central disc bulging present… The neural foraminae are open. No definite nerve compression identified.”
Mr Crickmore said that when he was told about the L5/S1 disc bulge he “looked it up” and found that it was a “pretty bad” condition.
Mr Crickmore explained that he told Dr Tabanas the Tramal was not working. The alternative medications prescribed by Dr Tabanas gave only temporary relief and when he saw Dr Tabanas again he told him he was still “in severe chronic pain”. Dr Tabanas told him that he could not prescribe anything stronger and if he wanted stronger medication he would have to attend a pain management specialist.
When asked about his workers’ compensation claim Mr Crickmore explained that WorkCover paid him a lump sum of $3,500 to cover lost wages for about three months.
On 18 October 2012 he was assessed on behalf of WorkCover by Dr Savis who provided a report.
Mr Crickmore conceded that he had a copy of the report by Dr Savis, but was unable to explain why a copy of this report was not provided to Centrelink or the Tribunal.
Mr Crickmore agreed to read out relevant parts of the report as follows:
The claimant’s spine was palpated from the third vertebrae, and he finds it sensitive to touch with the palpation. Downwards pressure on the claimant’s head, he indicated discomfort to the cervical spine. Downwards pressure on the claimant’s shoulders, he indicated discomfort in his lower back. The claimant could not flex his spine. Extension lateral flexion and rotation were all extremely limited. He could stand on his heels, not walk on his toes. Straight leg raising was fine and he could raise both legs. Knee and ankle reflexes were present and equal. The claimant indicated altered sensation in both sides of the left foot. The history of pain for the claimant was consistent with the reports. Through the examination, the presentation was not consistent. The examination revealed symptom exaggeration, poor effort by the patient during the examination. There were several positive vital signs present, and I am of the opinion there are psycho-social factors present which are impacting on the claimant’s treatment, recovery and return to work … [The injury is] cervical spine soft tissue injury, thoracolumbar spine soft tissue injury.
Following this report WorkCover denied any further liability in respect to Mr Crickmore’s injury.
In a Centrelink medical certificate dated 9 August 2012 Dr Tabanas lists a diagnosis of “chronic low back pain: central disc bulging L5/S1 per CT scan” and states that the condition is an “[e]xacerbation of existing condition” with symptoms of the “chronic low back pain worsening on prolonged standing and sitting”. He describes treatment as “analgesics and physiotherapy” and expresses the opinion that Mr Crickmore was unfit for work for four months.
In his application for DSP on 12 September 2012 Mr Crickmore states that he has “chronic lower back pain, very painful” due to his “central disc bulge L5/S1” and that he will need an operation to relieve his pain and fix his “injury”.
I note that prior to September 2012 there is no medical evidence to support Mr Crickmore’s claim that an operation was necessary or even being considered.
When asked by the Tribunal to explain his claim about the need for an operation, Mr Crickmore said that he had seen a neurosurgeon who told him that he could “get surgery to fix the problem, and it would actually block off a nerve in my back, but it’s going to cost a lot of money” and that “if I do get surgery to my back I could end up in a wheelchair, like there’s a 50/50 chance.”
I note that according to the documentary evidence before the Tribunal Mr Crickmore did not see a neurosurgeon until December 2012.
On 7 September 2012 Dr Kaushal, Mr Crickmore’s then GP, referred him to Dr Mitra for an opinion in respect to his back and neck pain. At that time Dr Kaushal notes the only pain medication as Voltaren, a non-steroidal anti-inflammatory agent.
Mr Crickmore indicated that Dr Mitra is his pain management specialist.
On 20 September 2012 Dr Mitra provided a medical report, in support of Mr Crickmore’s request for housing assistance, in which she lists three medical conditions, namely, neuropathic pain as a result of workplace injury, low back and neck pain and depression from injury.
I note that as at September 2012 there is no documentary evidence to support a diagnosis of “neuropathic pain”. The report of the CT scan of the lumbar spine on 20 June 2012 notes that neural foraminae were open and there was no nerve compression identified.
In an undated Centrelink medical certificate with an attached letter dated 15 November 2012 Dr Mitra listed three diagnoses which impact on Mr Crickmore’s capacity for work or study, “herniated disc L5-S1”, “[w]ork injury” and “chronic pain [and] anxiety”.
In respect of symptoms, the doctor states that “chronic low back pain” is likely to persist, that “pins and needles” is likely to persist “unless corrected” and that “anxiety” is likely to show considerable improvement within two years.
The doctor notes that Mr Crickmore’s treatment includes “strong pain killers, physiotherapy [and] psychotherapy” and certifies that he is unfit for work or study for three months.
In the attached letter Dr Mitra states that Mr Crickmore had suffered “chronic low back pain since June this year after a work related injury” and has been diagnosed with “bulging disc at L5-S1 with sciatica” and states that he is under treatment with her and has been referred for physiotherapy and psychological counselling.
The doctor appears to suggest that Mr Crickmore suffers nerve compression which requires surgical treatment, a conclusion that is not supported by the findings of the CT scan. The CT scan report does not record a “herniated disc” at L5/S1 and does not record any evidence of nerve root impingement.
I note also, at this point, that there is no corroborating documentation with reference to physiotherapy or psychological counselling.
In a record of discussion with Mr Crickmore dated 27 November 2012 a Centrelink officer notes that he indicated that he has had some physiotherapy, but that it has not worked and that he has not had any counselling.
In a medico-legal report dated 1 December 2012 Dr Campbell, neurosurgeon, notes that six months after being involved in a work accident Mr Crickmore continues to complain of pain. The pain is described as lower back pain which “occurs daily and rates up to 10/10 on the Visual Analogue scale”, radiates up to the interscapular region, to the base of the neck and intermittently down the left leg. The pain is aggravated by various activities and restricts Mr Crickmore’s ability to perform domestic activities.
On examination of the lumbar spine Dr Campbell found “decreased flexion and extension by 80-90%”, but noted that lower limb power, reflexes and sensation were normal.
The doctor notes that Mr Crickmore had tried various treatments and had recently been started on oral morphine (Jurnista) and Lyrica and makes a diagnosis of “chronic soft tissue musculo-ligamentous injury to the lumbar spine”.
Dr Campbell notes the findings of the CT scan of 20 June 2012 but expresses no opinion as to the relevance of the findings to Mr Crickmore’s symptoms and also makes no reference to any surgical treatment.
In a medico-legal report dated 5 February 2013 Dr Wallace, orthopaedic surgeon, states that Mr Crickmore claimed to have sustained an injury to his lower back in June 2012 as a result of the “nature and conditions of his work” and that he had “undergone medical assessment, investigations and treatment for his injuries and he remains disabled by ongoing lower back pain and has been unable to return to work”.
Dr Wallace notes that Mr Crickmore’s current symptoms are lower back pain and neck pain and that the lower back pain is mechanical in nature and radiates into the left lower limb but is not associated with paraesthesia.
On physical examination Dr Wallace notes “tenderness over the lumbosacral junction” and “50% restriction in forward flexion”. Neurological examination, reflexes and sensory examination were all normal.
Dr Wallace makes no diagnosis but expresses the opinion that Mr Crickmore “has sustained injuries to his lumbar spine consistent with the nature and conditions of the work he was required to do” and that he has been appropriately investigated and treated and does require any surgical treatment.
Dr Wallace does not explain what he means by “injuries to the lumbar spine” and although he notes the findings of the lumbar spine CT scan he makes no comment as to the relevance of these findings with respect to Mr Crickmore’s ongoing symptoms.
Dr Wallace recommends that Mr Crickmore should “continue with core stability exercises, general back care, the avoidance of activities which aggravate his pain and simple analgesia as required.” (Emphasis added.)
In early 2013 Mr Crickmore travelled to Sydney to seek help from his family and while in Sydney he was referred for a CT scan of the cervical spine.
A report of a CT scan of the cervical spine dated 8 April 2013 states “C3/4: There is no significant disc pathology. Mild right foraminal stenosis is present. The facet joints are within normal limits” with a final comment that there is “Minor degenerative change in the cervical spine without significant central or foraminal stenosis at any level”.
In a Medical Report (Disability Support Pension) dated 12 June 2013 Dr Mitra lists “central disc bulging at L5-S1” and “R foraminal stenosis of the Cx spine” as conditions with most impact.
The doctor states that “surgery was proposed but [Mr Crickmore was] unable to have it for financial reasons” and that Mr Crickmore was unable to afford physiotherapy and psychological treatment, but that a referral to a rehabilitation physician is pending.
I note that apart from Mr Crickmore’s own assertions there is no evidence that surgery has ever been proposed and in fact Dr Wallace clearly indicated that it was not required.
Also, to suggest that Mr Crickmore has “R foraminal stenosis of the [cervical] spine”, in my view, overstates the significance of the CT scan findings and is misleading.
Dr Mitra also diagnoses “Depression and anxiety” with date of onset as February 2013.
Dr Mitra lists Mr Crickmore’s current medications which include:
·Jurnista 32 mg per day started on 13 September 2012 (a prolonged release opioid analgesic);
·Lyrica 150 mg per day started on 18 February 2013 (an anticonvulsant which is also used to treat neuropathic pain);
·Endep 50 mg at night started on 15 November 2012 (a tricyclic antidepressant);
·Cymbalta 60 mg per day started on 15 November 2012 (a SNRI antidepressant also used to treat neuropathic pain in diabetic peripheral neuropathy).
In a GP management plan dated 12 June 2013 Dr Mitra notes that Mr Crickmore needs to see a psychologist in order to “learn coping with persistent pain” and to “learn Cognitive Behavioural techniques” for depression and anxiety.
The doctor also notes that Mr Crickmore “is a chemical coper, needs to learn self-management strategies to manage his pain” and she refers to “[e]vidence of bulging disc, causing spasms and pain”. In my view, she does not provide a satisfactory explanation as to how a bulging L5-S1 disc could cause the array of symptoms described by Mr Crickmore.
In his evidence Mr Crickmore stated that he was started on Jurista in about September 2013 with a starting dose of 8 mg per day. After two months because of increasing pain the dose was increased to 16 mg per day.
While in Sydney he said that he “ended up with foraminal stenosis” and that was when his dose of Jurnista was increased to 32 mg per day. He claims that he rang Dr Mitra and told her he needed an increase in dose and that she contacted a GP in Sydney to arrange this.
In respect of the management of his pain Mr Crickmore explained that the increase in dose of Jurnista to 32 mg per day helped his pain for about two to three months.
He described his pain as “a throbbing sensation” and feels like “a knife in my neck getting twisted around” and then like someone is “whacking [him] in the back with a cricket bat”.
When asked about the drug Lyrica Mr Crickmore stated that he started in about September 2012 and that this drug relieved the pain in his left arm. He explained that the pain in his left arm and leg is caused by his L5/S1 disc bulge and that this condition has an effect on the left side of his body so that he gets “severe pain in my left arm, my left leg, like the left side of my chest, the right side of my chest, all up and down my body”. The right arm is less affected with pain and the right leg not at all.
Mr Crickmore went on to say that his worst pain was in his lower back and that he could “feel that all the way up from my L5, all the way up until about my T11, just above my groin”.
In the course of cross examination by the respondent Mr Crickmore asserted that the L5/S1 disc bulge created nerve compression and also affected his muscles and ligaments and causes bruising on his back.
In a letter of referral to a rehabilitation physician dated 12 June 2013 Dr Mitra stated that Mr Crickmore had a workplace injury in June 2012 and was diagnosed with bulging disc at L5-S1 and that despite treatment with Jurnista and Lryrica and a “few sessions of physiotherapy” his pain is progressively worsening and he also complains of pain in his cervical area.
I note that apart from the two medico-legal referrals this is the first time Mr Crickmore has been referred to a specialist for treatment.
Consideration
Mr Crickmore claims that he suffers significant impairment because of “chronic pain” which he attributes to a disc bulge at L5/S1.
Relevantly, Part 2 of the 2011 Determination sets out the rules for applying the Impairment Tables and subsection 6(9) states when assessing the functional impact of pain:
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
It follows that the relevant question for the Tribunal is whether, during the assessment period, Mr Crickmore suffered a condition that was fully diagnosed, treated and stabilised and was causing his chronic pain.
The difficulty for Mr Crickmore is that, in my view, the evidence does not provide a satisfactory explanation as to why he suffers chronic pain and why in less than 12 months after a relatively minor workplace incident he is being treated with regular high dose opioid analgesia and anticonvulsant medication for neuropathic pain.
Mr Crickmore claims that the incident at work caused him to suffer a bulge in his L5/S1 lumbar disc and that this bulge is the condition which is the cause of his widespread ongoing pain. His claim appears to be based primarily on self-assessment and in the course of his oral evidence it became apparent that Mr Crickmore was somewhat obsessed in the belief that the disc bulge was the source of all his problems. His reasons, however, could best be described as misguided and his understanding of lumbo-sacral pathology as naïve.
Mr Crickmore’s description of all the aspects of his pain symptoms particularly in respect of severity, persistence and widespread anatomical location is simply not consistent with the reported pathology found in his lumbosacral spine.
In respect of the specific issues before the Tribunal I find the medical evidence somewhat unhelpful in that the diagnoses are imprecise and inconsistent with no meaningful evaluation of the relevance of the L5/S1 disc bulge and no credible explanation for Mr Crickmore’s chronic pain. Relevantly, there is no clinical or radiological evidence of neural compression or entrapment, that is, no objective evidence to support a diagnosis of neuropathic pain.
On consideration of the various documents provided by Dr Mitra, the nominated pain management specialist, I am unable to identify a clear rationale for Mr Crickmore’s treatment which would explain a fourfold increase in opioid medication over a six month period or the use of anticonvulsant medication for neuropathic pain. It would appear that the treatment is simply a response to Mr Crickmore’s subjective self-reporting.
It is also relevant to note that apart from the two medico-legal assessments Mr Crickmore was not referred for specialist rehabilitation review and treatment until June 2013.
In conclusion, I find that the only relevant diagnoses made during the assessment period were “upper and lower back strain” and “bulging of the L5-S1 disc”. After having considered all the evidence I am satisfied that neither of these diagnoses could cause Mr Crickmore’s persistent, widespread chronic pain.
It follows that as there is not a fully diagnosed, treated and stabilised condition during the assessment period causing Mr Crickmore chronic pain an impairment rating cannot be assigned.
THE CERVICAL SPINE CONDITION
In his oral evidence Mr Crickmore claimed that he had suffered neck pain since June 2012.
In his application for DSP he stated that he was “getting a lot of pain in my neck due to my spine being out of place”.
In a referral letter of 7 September 2012 Dr Kaushal mentions “neck pain” but provides no diagnosis.
In her report of 20 September 2012 Dr Mitra refers to “neck pain” but also makes no diagnosis.
In his report of 1 December 2012 Dr Campbell makes no reference to neck pain.
As noted above, an April 2013 CT scan of the cervical spine is reported as showing “mild degenerative change” and the relevance of these findings in respect of Mr Crickmore’s chronic symptoms is unclear.
It is clear that this diagnosis was made outside the assessment period and therefore cannot be considered for purposes of this review.
PSYCHOLOGICAL CONDITION
In her report of 12 June 2013 Dr Mitra notes that antidepressant medication was commenced on 15 November 2012 and made a diagnosis of “depression and anxiety” but noted that the date of onset of this condition was February 2013.
In May 2013 Mr Crickmore was referred to a psychologist for opinion and management. This appears to be first occasion that he has had any specialist mental health assessment.
In a relatively brief report dated 16 May 2013 Ms Sojan, psychologist, notes that Mr Crickmore reported “feeling very sad for approximately 10 months” and that he has attended the local hospital Pain clinic with little satisfaction.
Ms Sojan noted that Mr Crickmore was preoccupied with his pain levels and his shortage of finances, and made a diagnosis of “major depressive episode with associated anxiety”.
Ms Sojan did provide satisfactory reasons for her diagnosis and curiously avoided any reference to Mr Crickmore’s significant levels of pain medication.
She recommended a change in antidepressant medication, which Mr Crickmore opposed, and a referral to a neurologist and a psychiatrist.
I note that in his oral evidence Mr Crickmore stated that he had discussed Ms Sojan’s recommendation for psychiatric referral with his treating doctors who allegedly agreed with his own opinion that it was not a good idea. Mr Crickmore explained that he only went to see a psychologist to get a condition diagnosed and that he did not want psychiatric treatment because “the only thing that’s going to help me get better is money”.
It is clear that there was no psychological diagnosis made during the assessment period and, therefore, Mr Crickmore’s current psychological symptoms cannot be considered for the purposes of this review.
CONCLUSION
For the reasons set out above I am satisfied that during the assessment period of 11 September 2012 to 11 December 2012 Mr Crickmore’s impairment rating was nil and therefore at that time he was not qualified for DSP.
I note that although the evidence before the Tribunal suggests that Mr Crickmore is at present significantly impaired because of his claimed chronic pain it seems unlikely that he will satisfy the requirements for an impairment rating to be assigned unless he accepts the recommendations for further psychiatric and rehabilitation assessment.
DECISION
The decision under review is affirmed.
I certify that the preceding 99 (ninety nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ..........[sgd]..........................................
Associate
Dated 15 July 2013
Date of hearing 26 June 2013 Applicant Self-represented Advocate for the Respondent Mr C Hutchins
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