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

[2018] AATA 1617

Johnston and Secretary, Department of Social Services (Social services second review) [2018] AATA 1617 (6 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/1961

Re:Steven Johnston

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:6 June 2018

Place:Sydney

The Tribunal affirms the reviewable decision of the Administrative Appeals Tribunal – Social Services and Child Support Division, dated 2 March 2017.

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

Mrs J C Kelly, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – 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

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999(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

6 June 2018

1. Mr Johnston is seeking the grant of a Disability Support Pension (DSP). He has asked the Tribunal to review the decision made by the Administrative Appeals Tribunal - Social Services and Child Support Division (the AAT1) on 2 March 2017. AAT1 affirmed a decision to reject the claim for DSP which he lodged on 24 December 2015.

   ISSUES

2. The issue the Tribunal has to decide is whether Mr Johnston satisfied the qualification criteria for DSP at the date he made his claim, 24 December 2015, or within 13 weeks thereafter.[1]

   [1] Social Security (Administration) Act 1999 (Cth) sch 2, pt 2, cl 4.

3. The relevant criteria are set out in s 94 of the Social Security Act 1991 (Cth) (the Act).  They are whether Mr Johnston had:

   ·a physical, intellectual or psychiatric condition(s) (an impairment); and

   ·condition(s) that were fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth); and

   ·a continuing inability to work (CITW).

4. All of those criteria have to be satisfied. The respondent, the Secretary of the Department of Social Services (the Secretary), accepts that Mr Johnston had impairments during the qualification period, and therefore satisfies the first criterion. “Impairment” is defined in the Impairment Tables to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.

   RELEVANT LEGISLATION

5. Apart from the Act, the relevant legislation includes:

   ·The Social Security (Administration) Act 1999(Cth) (the Administration Act);

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

   ·The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).

   BACKGROUND

6. The following matters are not in dispute. Mr Johnston was born in 1960 and has worked as a rigger and forklift and winch operator. He has been suffering from back pain since August 2009. He applied for DSP previously at the end of 2014.

7. In his 2015 DSP application, Mr Johnston claimed that he suffered from “Disc protrusion at the L5/S1 segment; Degenerative arthritis in the right hip and right knee”.

   THE MEDICAL EVIDENCE BEFORE THE PRESENT APPLICATION 

8. Dr Isaacs, an orthopaedic surgeon, began treating Mr Johnston on 14 July 2010.

9. A report from Dr Isaacs dated 13 February 2014 was in evidence. Dr Isaacs sets out a detailed history of Mr Johnston’s condition until the last time he saw Mr Johnston on 5 February 2014. He referred to the MRI report dated 19 November 2013 which stated that Mr Johnston has a broad based protrusion at the L5/S1 disc “causing minimal mass effect”. A Three Phase Bone Scan of the lumbopelvic region with CT/Spect also dated 19 November 2013, which concluded that the scan appearances are consistent with a degenerative arthropathy in the right hip joint and right knee joint. Dr Isaacs noted that the Bone Scan referred to above also showed “scintigraphically mild greater trochanteric bursitis”.

10. As of 5 December 2013, Dr Isaacs reported that Mr Johnston’s right leg pain was partly coming from the back and partly form the osteoarthritis of the right hip joint. The doctor wanted to confirm from which part of Mr Johnston’s right leg the pain was coming from.  He arranged a right L5/S1 epidural block to assist that determination. On 5 February 2014 Mr Johnston said that the right L5/S1 epidural block had not relieved any of his pain. Dr Isaacs wanted to proceed with a right hip joint block and then review him. There is no other report from Dr Isaacs. 

11. As of 5 February 2014, Dr Isaacs said that Mr Johnston’s work capabilities should be assessed by an occupational therapist and then it could be determined whether Mr Johnston was partially or totally disabled. He also thought definitive treatment could be determined after the right hip joint block. When Dr Isaacs saw Mr Johnston on 5 February 2014, he was not working because of pain in his back and right leg.

12. Dr Isaacs referred Mr Johnston to Professor Ghabrial, an orthopaedic and spinal surgeon. Two reports from Professor Ghabrial were in evidence, dated 9 October 2014 and 25 May 2016. Mr Johnston’s general practitioners, Dr Zhu and Dr Meeran, provided medical reports and medical certificates that were in evidence.

13. There were numerous imaging reports in evidence, including reports of injections given to Mr Johnston under X-ray guidance into his spine and right hip. The most recent was dated 4 August 2014.

14. In addition to the right trochanteric bursitis and degenerative arthritis in the right hip and right knee, Professor Ghabrial noted in his report of 9 October 2014 that the bone scan suggested arthropathy on the left side. He also referred to the MRI scan of the lumbar spine which showed “minor disc protrusion at the L5/S1 segment”. Professor Ghabrial set out the following opinions:

    ·Surgery is not an option because Mr Johnston has multiple pathology involving his hips, knees, trochanteric bursitis, facet joint disease as well as a minor disc protrusion; and

    ·He should not be involved in heavy lifting, excessive bending and excessive twisting and should be referred either to a rheumatologist or for pain management.

15. Taking into account the arthritic changes in his right hip and right knee, Professor Ghabrial believed it to be a good idea to see a rheumatologist initially.

16. The problem with Mr Johnston’s back is facet joint arthritic changes, which Professor Ghabrial believed is likely to give him “a lot of pain however it will not be treated surgically”.

17. In a medical report dated 4 November 2014, Dr Zhu described Mr Johnston’s diagnosis as “OA” (osteoarthritis), and his current symptoms of (i) pain of low back, (ii) R hip and knee with stiffness and (iii)pain level 7-8/10. She reported Mr Johnston’s treatment as “analgesic”, “NSAIDS PRN” and “cortisone injection”. In relation to function, Dr Zhu wrote “significant impacts on endurance, movement & dexterity”. She certified Mr Johnston unfit for work from 4 November 2014 to 4 February 2015.

18. A registered occupational therapist conducted a face to face job capacity assessment (JCA) with Mr Johnston on 17 November 2014 (the 2014 JCA). The Tribunal infers that Mr Johnston had submitted a previous DSP application (the 2014 application). Much of the medical evidence is dated 2014.

19. Mr Johnston reported that his back pain is disabling and is more severe after performing physically demanding activity (such as mowing for 90 minutes) when it may radiate to his hip and knee. He reported that pain (constant aching with sharp, shooting and grabbing pain) increased in late 2013 when he was struggling to cope with heavy work. He reported stiffness and locking of his joints, restricted sitting driving tolerance (2 hours), discomfort on full rotation of his trunk, and standing tolerance of 30 minutes.

20. The assessor found that the “OA” had not been fully treated and stabilised.

21. The assessor also considered the following conditions: injury to left shoulder, gastro-oesophageal reflux disease (GORD) and hypercholesterolaemia. 

    THE MEDICAL EVIDENCE FROM THE TIME THE PRESENT APPLICATION WAS MADE

22. Dr Zhu provided a medical certificate dated 6 January 2016 in which she listed three diagnoses, date of onset, the associated symptoms, and prognosis: 

    ·Lumbar spine degeneration, 2009, low back pain and stiffness, likely to persist;

    ·(R) Gluteal tendinopathy, 2013, (R) buttock and hip pain, prognosis uncertain; and

    ·(R) trochanteric bursitis, 2013, (R) hip pain, prognosis uncertain.

23. Dr Zhu certified Mr Johnston unfit for work from 6 January 2016 to 6 April 2016. 

24. On 9 February 2016, a rehabilitation counsellor (the assessor) conducted a further JCA in relation to the DSP application by telephone.

25. The assessor contacted Dr Zhu on 9 February 2016 seeking additional information. Dr Zhu said that she was unable to comment on functional impacts/symptoms of the above conditions “as this would require independent assessment by an Occupational Therapist”. She said that Mr Johnston would be able to sustain employment in a physically suitable job where he was able to change position and manage his pain.

26. Dr Zhu told the JCA assessor that Mr Johnston had not been referred to a pain clinic due to cost and limited availability in the local area.

27. On 9 February 2016, Mr Johnston told the JCA assessor that he had seen a rheumatologist in September 2015 who had recommended physiotherapy. He said that he had had three sessions and had recently started swimming, with limited benefit. He believed that there was little anyone could do to assist with his pain management. That is consistent with Professor Ghabrial’s recommendation in his 2014 report that Mr Johnston consult a rheumatologist.

28. Mr Johnston also told the assessor the following:

    ·He could sit and drive a car for 30 minutes and had difficulty turning his head to look in all directions (e.g. turning his head to look over his shoulder);

    ·He is unable to sustain overhead activities, for example taking washing off the line;

    ·He said that his back locks up and he experiences a stabbing pain which goes down his hip and legs; 

    ·He reported increased pain with physical activities such as bending over to pick up an object. His pain is always there and worse on some days;

    ·He had difficulty with balancing and that the pain is worse on his right side and he hops on his left leg; and 

    ·He required assistance to get out of a chair, and was able to remain seated for 30 minutes before having to get up and move around due to increased pain.

29. The decision was made to reject the DSP application on 1 April 2016. Mr Johnston requested a review of that decision.

30. In his report dated 25 May 2016, Professor Ghabrial stated that surgery was considered for the L5/S1 disc protrusion but it was decided that it should be “left alone for the time being”. Professor Ghabrial continued:

    To complicate the picture, he has osteoarthritic changes in the right hip and right knee. I understand that he had nine steroid injections over the years to the right hip and back. Overall, his symptoms have continued to deteriorate.

    Taking into account his back problem as well as his right hip and right knee arthritis, I believe that he will be considered to be totally unfit for any type of employment. He has been advised to avoid lifting, bending, twisting as well as sitting or standing for more than 20 minutes at a time. He has also been advised to avoid activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods or walking for long distances.

    He is on medications which could impair his judgement because of the high codeine phosphate in them. Again, that is another reason he will not be able to sustain any employment because of the risk involved in either hurting himself, or making a wrong judgement.

    Overall, I would support his application for the Disability Pension.

31. On 15 August 2016 a departmental Authorised Review Officer (ARO) affirmed the decision to reject the application, finding that Mr Johnston’s conditions attracted a rating of a total of 10 points and that he did not have a continuing inability to work. The ARO had spoken to Mr Johnston who said that he had been unable to work due to increasing pain in his back, hip and knee and he did not believe that he will ever be able to work as all he has ever done is manual work. He said that he cannot stand, sit or walk for extended periods but was able to drive a car to move around his community. Mr Johnston also reported the nine cortisone injections he had had in his hip and back which he said provided temporary pain relief, but he felt that there is no treatment that will stop his pain. 

32. When he spoke to AAT1 by telephone on 15 February 2017, about a year after the qualifying period, Mr Johnston said that the “stabbing pain” in his lower back, which radiates into his right leg, had increased since he had claimed DSP and he was unable to walk more than 100 metres. The Tribunal accepts that Mr Johnston’s condition had deteriorated since the 13 week period beginning 24 December 2015, but that is not a matter the Tribunal can take into account.

33. Mr Johnston told this Tribunal at the hearing on 20 October 2017 that his condition was worse. He said that he can hardly walk. He had a stabbing pain across his lower back into the right hip and down to his right knee. He said that during the qualification period he was going to the local heated pool a couple of times a week but it did not help. The more he does, the worse it is. He can drive the car for only about 15 minutes. He said that he used to have eight acres of land but could not manage it. He sold it in June 2017 because, after ceasing work, he could not afford the mortgage. He shopped with his wife, leaning on a trolley and had to sit down after 10 minutes. He fell over the other day and she caught him. He has not yet resorted to using a walking aid. He said that at Christmas 2015 he had to rest on the doctor’s orders, with no lifting or twisting. He and his wife drove about 25 kilometres to visit relatives on Christmas Day which took about 18 minutes.

34. Mr Johnston said that he is depressed and frustrated with the process. He wrote to his federal MP expressing his frustration.   

    CONSIDERATION AND FINDINGS

35. The Tribunal emphasises that it has to make findings about Mr Johnston’s medical conditions during the 13 week period beginning 24 December 2015 when he lodged his DSP application. The evidence is relevant only to the extent that it deals with that period. Further, the Impairment Tables specify criteria that have to be satisfied for a particular impairment rating to be assessed.

36. The medical evidence is clear in that Mr Johnston suffers from permanent conditions in his spine, right hip and right knee. It is necessary to consider how those conditions affect his spinal function and his lower limb function. For example, his spinal condition does not only impact his spinal function; pain from his spinal condition also impacts his lower limb function. 

    Spinal function

    Table 4 - Spinal function

37. The Secretary accepts that Mr Johnston’s spinal condition was fully diagnosed, treated and stabilised during the qualification period. The JCA assessor found the appropriate impairment rating was 10 under Table 4 – Spinal Function.

38. The Tribunal agrees that under Table 4, Mr Johnston’s condition was appropriately rated 10 points. That is because the contemporaneous evidence was that during the qualification period he was able to sit in or drive a car for at least 30 minutes, was unable to sustain overhead activities, had difficulty moving his head to look in all directions and needed assistance to get out of a chair.

39. Given the direct evidence that was given by Mr Johnston during the qualification period, the Tribunal does not accept evidence that he has given later  about his capacity at that time which suggested more limited spinal function during the qualification period. This is not a criticism of Mr Johnston. His condition is deteriorating. It is very difficult to remember a year or nearly two years later, exactly what the impact on his spinal function had been.

40. The Tribunal has taken into account Professor Ghabrial’s May 2016 report. However, it was given outside the qualification period and does not specifically address the criteria in the Impairment Tables, which is the task the Tribunal must undertake.

    Lower limb function

    Table 3 - Lower limb

41. The JCA assessor found the lower limb deficiencies, which included the Right Gluteal tendinopathy and right trochanteric bursitis, had been fully diagnosed but not fully treated and stabilised and, therefore, were not permanent. The Tribunal accepts that.

42. However, the Tribunal finds that in addition to those conditions, Mr Johnston has permanent conditions of the spine and arthritis in the right hip and knee, which result in functional impairment when performing activities requiring the use of legs or feet, in accordance with Table 3. Mr Johnston has been treated by Dr Isaacs, and he has consulted Professor Ghabrial and a rheumatologist in relation to those conditions. The Tribunal does not accept the respondent’s contention that because he had not had a hip or knee replacement as of the qualification period, that  those two conditions had not been fully treated and stabilised.

43. The evidence about Mr Johnston’s lower limb function during the qualification period is limited. The Tribunal does not accept that the evidence he gave at the AAT1 hearing accurately describes how his condition was about a year before. The Tribunal accepts that he had some difficulty walking around a shopping mall or supermarket without a rest, and, therefore, satisfied the first criteria for mild functional impact in Table 3. However, the evidence does not satisfy either of the criteria set out in (2) of that table: the person is unable to stand for more than 10 minutes; or the person can mobilise effectively but need to use a lower limb prosthesis or a walking stick. Professor Ghabrial’s May 2016 report does not support a finding that Mr Johnston could not stand for more than 10 minutes. He had advised Mr Johnston not to stand for more than 20 minutes. The implication is that Mr Johnston could stand for more than 10 minutes at that time.

44. Therefore, an impairment rating of 0 points must be assessed under Table 3.

    Other conditions

45. Other medical conditions that arise on the evidence are a left shoulder injury, gastro-oesophageal reflux disease (GORD), and hypercholosterolaemia

    Left shoulder

46. During the February 2016 JCA, Mr Johnston said that his left shoulder injury, reported by Dr Zhu in 2014, had resolved and had no impact on his current functioning. The Tribunal does not accept that Mr Johnston suffered from any functional impact as a result of the condition during the qualifying period. He did not complain about it at all. There was no current medical evidence about the condition.

47. The Tribunal accepts that a rating of 0 is appropriate under Table 2 – Upper Limb Function.

    Gastroenterological condition - GORD  

48. Mr Johnston told the JCA assessor that he has had symptoms of GORD for 25 years and was investigated by endoscopy twice and takes medication for that condition. Both Mr Johnston and Dr Zhu reported that the condition had minimal impact on his ability to function. 

1. The Tribunal accepts the JCA assessment that this condition is fully diagnosed, treated and stabilised. It has minimal impact on his ability to function and, therefore, the Tribunal rates the condition as 0 under Table 10 – Digestive and Reproductive Function.

   Hypercholesterolaemia

2. In the medical report in support of the 2014 DSP application, Dr Zhu indicated that Mr Johnston had been diagnosed with hypercholesterolaemia. During the February 2016 JCA, Mr Johnston advised that he had taken medication for this for five years. Both he and Dr Zhu indicated that it had minimal impact on his ability to function. There was no current medical evidence about this condition. The Tribunal accepts the JCA assessment that the condition was fully diagnosed, treated and stabilised and has minimal impact on his ability to function. The appropriate rating is therefore 0 under Table 1 – Functions requiring physical exertion and stamina.

   CONCLUSION

3. Mr Johnston’s permanent conditions during the qualification period therefore rated 10 points. He did not satisfy the criteria for DSP.

4. The Tribunal accepts that his spine, hip and knee conditions have worsened since he lodged his DSP application on 24 December 2015. It is open to him to apply for DSP again.

   DECISION

5. The Tribunal affirms the reviewable decision.

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: 6 June 2018

Date(s) of hearing:	20 October 2017
Applicant:	In person
Solicitors for the Respondent:	Ms A Wong, Department of Human Services