John Gregson and Secretary, Department of Social Services
[2014] AATA 254
[2014] AATA 254
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6850
Re
John Gregson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 30 April 2014 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from “mechanical low back pain – degenerative and spinal stenosis… L4/L5” and “reflux oesophagitis” – Impairment Tables – Conditions not fully diagnosed, treated, stabilised or permanent in relevant period – Applicant not qualified for disability support pension during relevant period – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth) s 13, Sch 2, cls 3 and 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
30 April 2014
BACKGROUND
On 27 August 2013, John Gregson (“the applicant”) advised Centrelink that he intended to claim the disability support pension, which is a social security payment under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1991 (Cth) (“the Administration Act”). On 18 October 2013, Centrelink rejected his claim. That decision was affirmed by an authorised review officer on 4 November 2013 and by the Social Security Appeals Tribunal on 12 December 2013.
LEGISLATION, ISSUES AND SUBMISSIONS
The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a physical impairment in relation to a spinal condition and
gastro-oesophageal reflux disease. The remaining requirements in s 94 of the Act, and the matters in issue, are:
·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) as required by s 94(1)(b) of the Act; and, if so
·
whether the applicant has a continuing inability to work[2] as required by
s 94(1)(c)(i) of the Act.
[1] See ss 26 and 27 of the Act.
[2] For continuing inability to work, see s 94(2)-(3) of the Act.
To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of
13 weeks from the date of the claim.[3] As the applicant’s formal claim was made within 14 days of his initial contact with Centrelink, the claim may be taken to have been made on 27 August 2013.[4] This means that the period within which the qualifying conditions are to be considered is from 27 August 2013 until 26 November 2013 (“the relevant period”).
[3] See Sch 2, cls 3 and 4 of the Administration Act.
[4] See s 13 of the Administration Act.
The requirements to be followed in applying the Impairment Tables are set out in s 6 of the Determination which falls under “Part 2 – Rules for applying the Impairment Tables”. That section reads:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see
section 7.Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing 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).
The applicant contended that his back condition should be treated as being permanent because he has suffered from it for many years, has been placed on the hospital waiting list for orthopaedic and pain management review and is unlikely to undergo any such review for up to two years. For the respondent, Mr Nicholas Warren submitted that neither of the applicant’s claimed conditions is permanent in that there is no evidence that they are fully diagnosed, fully treated and fully stabilised.
EVIDENCE
The applicant
The applicant’s evidence was that he is severely restricted because of his back pain which commenced in about 2008 and has worsened since then. He is unable to bend further than his knees, has difficulty walking without support from a stick and is unable to sit down for more than 20 minutes or so. He is able to drive his car which, because he is unable to afford accommodation, he is sleeping in. In the relevant period, he was camped in a shed at the rear of a friend’s house where he was able to care for himself, shop for supplies and prepare his own meals. He takes Panadeine forte for the pain. He is a house painter by trade but has not worked since he completed a casual job over five or six days in August 2012. He was raised in an orphanage and did not have the benefit of schooling so he has very limited literacy and numeracy skills. He recalled being hospitalised in around 2008 where he was given physiotherapy and acupuncture treatment for his back but has not had treatment since then.
The applicant has seen his treating doctor, Dr Chong-Eng Ong, on several occasions in relation to his back and reflux conditions and has been referred by him to an orthopaedic surgeon and a pain management clinic at Royal Brisbane Hospital. He understood that he would be waiting for up to two years for those appointments to materialise. He said that Dr Ong had suggested that he may be assisted by having injections into his spine but the applicant described a phobia about having injections and said that he would be unable to undergo such a procedure. He has been undergoing employment assistance in the Strathpine area with providers Matchworks, the Australian Red Cross Society and
Epic Employment Service for a total of about 15 months; although he said that he has not been able to attend all of his scheduled appointments because of the effects of his back condition.
Medical evidence
Dr Ong has provided several reports in relation to the applicant’s claimed conditions.
In the treating doctor’s report, dated 27 August 2013, he diagnosed the applicant’s back condition as “mechanical low back pain – degenerative and spinal stenosis… L4/L5”.
He also entered a presumptive diagnosis of “reflux oesophagitis”. For the back condition, he described the treatment as “Supportive, symptomatic, NSAID regularly”. He noted that the applicant had not consulted a specialist about the condition and that no new treatment was planned. For the reflux condition, he advised that no further investigations or tests were planned to confirm the diagnosis. Treatment was with Nexium.
In subsequent reports,[5] Dr Ong confirmed that the applicant has chronic back pain with restrictions on his movements, with walking, standing and sitting. In those reports,
Dr Ong confirmed that there was likely to be a substantial delay before the applicant was able to consult with a specialist in the public hospital system. Dr Ong also advised that the applicant was unable to perform his work as a painter because of his back condition. In his most recent report, dated 4 December 2013, Dr Ong opined that the applicant’s spinal disability would be rated at “20 points on the basis that he has difficulties… bending forward to pick up objects”.
[5] See exhibit 1 at pages 140-141, 146, 155-157 for reports dated 18 October 2013 and 1, 15, 22, 23 November 2013,
In evidence was a report of a CT scan, dated 21 October 2013, of the applicant’s spine which commented:
Moderate to severe right L5/S1 facet arthropathy. This, combined with the broad based annular disc bulge and disc space narrowing, has narrowed the subarticular spaces bilaterally at this level, potential source of irritation of the forming S1 nerve roots bilaterally.
A Job Capacity Assessment (“JCA”) Report was completed on 10 September 2013 by K, a registered occupational therapist. She concluded that the applicant’s back condition was an “intervertebral disc disorder” which was permanent in that it was fully diagnosed, treated and stabilised. She also concluded that the applicant’s reflux condition was not fully diagnosed, treated and stabilised, in particular, noting the presumptive nature of
Dr Ong’s diagnosis for this condition. While K was unable to allocate an impairment rating for the reflux condition, she allocated 10 points under Table 4 for the applicant’s spinal function.
The JCA reporter’s opinion was that an overall impairment rating of 10 points was applicable to the applicant. In relation to work capacity, the assessor noted that he had a current baseline work capacity of 8-14 hours per week with a capacity of 15-22 hours per week within two years.
CONSIDERATION
As noted above,[6] the requirements to be followed in applying the Impairment Tables are set out in s 6 of the Determination. In regard to diagnosis, I note that K, in her report, identified the back condition as intervertebral disc disorder which differs from the diagnosis entered by Dr Ong of “mechanical low back pain – degenerative and spinal stenosis… L4/L5”. In this matter, Dr Ong confirmed that there was likely to be a substantial delay before the applicant was able to consult with a specialist in the public hospital system. In those circumstances, I am satisfied that the applicant’s back condition was not fully diagnosed, treated and stabilised and, therefore, was not permanent at any time in the relevant period.
[6] See paragraph 4 (above).
I am also satisfied that the applicant’s reflux esophagitis has not been formally diagnosed and, in that regard, note that Dr Ong was only able to enter his diagnosis on a presumptive basis.
As neither of the conditions identified by the applicant in his claim form and in his treating doctor’s associated report is permanent, no impairment rating may be allocated to them under the Impairment Tables. On the basis of those findings, the applicant’s overall impairment is nil and it follows that the threshold of 20 impairment points required under s 94(1) of the Act is not met. The applicant is not qualified for the disability support pension during the relevant period. It is not necessary for consideration to be given to his capacity for work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ...........................Sgd..........................................
Associate
Dated 30 April 2014
Date of hearing 17 April 2014 Applicant In person Solicitors for the Respondent Nicholas Warren, Department of Human Services
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