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

[2021] AATA 82

Krejcir and Secretary, Department of Social Services (Social services second review) [2021] AATA 82 (25 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1147

Re:Ales Krejcir

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION  

Tribunal:Senior Member B J Illingworth

Date:25 January 2021

Place:Adelaide

The decision under review is affirmed.

.....................[SGND]...........................

Senior Member B J Illingworth

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth).

Social Security (Administration) Act 1999 (Cth).

CASES

Re Fanning & Secretary, Department of Social Services [2014] AATA 447.

Secretary, Department of Social Services & Austin [2015] AATA 441.

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

Senior Member B J Illingworth

INTRODUCTION

1. This is an application by Mr Ales Krejcir (the Applicant) for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1) of 19 February 2020. The AAT 1 decision affirmed a decision made by Services Australia (the Department)[1] dated 23 September 2019 to reject the Applicant’s claim for the disability support pension (DSP) lodged on 24 December 2018.

   [1]  Formerly, the Department of Human Services.

   BACKGROUND

2. The Applicant was born on 20 April 1955. He was married. His wife suffered from multiple sclerosis and for the last 10 years of her life the Applicant cared for his wife. His wife passed away in 2016. He described his wife as a tall woman who put on weight because of her lack of mobility. He used lifting equipment to help move her, but it was still difficult. He would also assist his wife with showering, which was difficult and tiring. In about 2015 he developed issues with his neck and back.

3. On 31 January 2017 the Applicant lodged a claim for DSP with the Department. His claimed conditions included neck and low back pain, hip and knee pain, right shoulder and left elbow problems, skin conditions – namely, rosacea and purpura – and thrombocytopenia.  That claim was rejected and was the subject of an application for review that was considered by the Tribunal.  In its decision dated 30 November 2018 the AAT 1 affirmed the decision of the Authorised Review Officer (ARO). The AAT 1 decided that the Applicant did not have a severe functional impairment pursuant to Impairment Table 4 – Spinal Function but did satisfy an impairment rating of 10 points for moderate functional impact. Together with the assessment for other accepted conditions, the accumulation of points totalled 20 points, but the Applicant did not have a continuing inability to work (CITW). He had not actively participated in a Program of Support (POS).  

4. Shortly after the AAT 1 decision the Applicant lodged another claim with the Department for DSP on 24 December 2018 (the current claim for DSP). He explained that the AAT 1 in the previous decision was unable to consider a report of Dr Czechowicz dated 24 October 2018, relating to a referral to, and treatment at, the International Spine Centre nearly 18 months after the date of the January 2017 claim and the qualification period. That report, he said, supported a severe impairment rating of 20 points on Table 4 – Spinal Function.  

5. The current claim for DSP listed his disabilities as “osteoarthritis of the lumbar and cervical spine, osteoarthritis of hips and knees and bursitis of both shoulders and elbows”.[2]

6. On 4 February 2019, the Applicant undertook a DSP Medical Eligibility Assessment Recommendation at the Department’s request. The Rehabilitation Counsellor reported that based upon the current medical evidence which had already been considered by the AAT 1, a Job Capacity Assessment (JCA) referral was not warranted. The author said that the evidence provided would not alter the earlier decision of the AAT 1 dated 30 November 2018 and the earlier JCA dated 3 April 2018. The Rehabilitation Counsellor recommended that the Applicant’s claim for DSP be rejected.[3] The report of Dr Czechowicz dated 24 October 2018 was before the Rehabilitation Counsellor. On 8 February 2019, the Department rejected the Applicant’s current claim for DSP.

7. On 13 February 2019, the Applicant sought internal review of that decision.

8. On 23 August 2019, the Applicant undertook a further DSP Medical Eligibility Assessment Recommendation, which again recommended that a further JCA was unnecessary and the claim be rejected.[4] On 23 September 2019, an ARO reviewed and affirmed the Department’s initial decision to reject the claim for DSP.

9. On 25 November 2019, the Applicant applied to the AAT 1 for review of the ARO’s decision.

   [2]  T 28, page 179.

   [3]  T 31, pages 187 – 188.

   [4]  T 36, page 195.

10.  The AAT 1 in a decision dated 19 February 2020 decided that the Applicant suffers from impairment due to lumbar facet joint arthropathy at L4/5, lumbar stenosis, cervical spondylosis, right shoulder bursitis and calcific tendonitis, left tennis elbow, osteoarthritis of the hips, thrombocytopaenia and a skin condition. The AAT 1 considered the Applicant’s following conditions as being fully diagnosed, fully treated and fully stabilised (FDTS) and assessed them as follows:

(a)cervical and lumbar spondylosis (Table 4 – Spinal function), 10 points;

(b)hip and osteoarthritis (Table 3 – Lower Limb Function), 5 points; and

(c)   skin condition (Table 14 – Functions of the Skin), 5 points.

11.  Having found that the Applicant had a total of 20 impairment points across multiple Impairment Tables, the AAT 1 went on to consider whether the Applicant had a CITW. The AAT 1 found that, as the Applicant had not completed a POS for a period of 18 months in the three-year period before his claim for DSP, and did not satisfy any of the subsections that exempted him from doing so, he could not satisfy the CITW criteria. Accordingly, by decision dated 19 February 2020, the AAT 1 affirmed the decision to reject the Applicant’s current claim for DSP.

12.  On 2 March 2020, the Applicant applied to this Tribunal for review of the AAT 1’s decision.

13.  In the hearing before me,[5] the Applicant was unrepresented and the Respondent was represented by Ms Forsyth of Mills Oakley Lawyers.

[5]  This hearing occurred via telephone due to the COVID-19 restrictions.

ISSUES

14.  For the Applicant to qualify for the DSP he must satisfy the provisions of section 94 of the Social Security Act 1991 (the Act) that:

(a)he has a physical, intellectual or psychiatric impairment(s) for the purposes of subsection 94(1)(a) of the Act; and

(b)that his impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination); and

(c)that he has a CITW.   

15.  At the outset of the hearing, the parties agreed that the determinative issue in this application was whether the Applicant’s spinal impairment can be assigned 20 points under Impairment Table 4. The parties accordingly made a number of concessions in their respective cases narrowing the dispute to this critical issue. The Respondent contended that:

(a)the osteoarthritis of the lumbar spine (lower back) condition was FDTS and that the condition should be assigned 10 points under Table 4;

(b)the osteoarthritis of the cervical spine condition was not FDTS and therefore no impairment points could be assigned for that condition;

(c)the osteoarthritis of the hips, bilateral knees (lower limb conditions) were FDTS in the qualification period, and that an impairment rating of five points ought to be assigned under Table 3;

(d)the bursitis of both shoulders and elbows was fully diagnosed, but not fully treated or stabilised;

(e)the Applicant’s skin conditions (purpura, rosacea and thrombocytopenia) were FDTS and an impairment rating of five points ought to be assigned under Table 14;

(f)in total the Applicant could be assigned 20 points under the Impairment Tables (10 points under Table 4, five points under Table 3, and five points under Table 14);

(g)the Applicant had not actively participated in a POS for at least 18 months during the 36 months that preceded his current claim for DSP. Therefore, the Applicant (not having satisfied the criteria for a severe impairment) did not have a CITW.

16.  The Applicant’s case before the Tribunal was that his spinal condition should be assigned 20 points under Table 4, and he therefore had a severe functional impairment. The Applicant accepted in the hearing that his application for review determinatively turned on whether his spinal impairment condition could be assigned 20 points under Impairment Table 4. That was the issue to which the evidence before the Tribunal was directed.

THE LAW

Assigning an impairment rating

17. The first qualification criterion is that the Applicant has a physical, intellectual or psychiatric impairment(s) for the purposes of subsection 94(1)(a) of the Act. That criterion was conceded by the Respondent.

18.  The second criterion is that the impairment(s) attracts a rating of at least 20 points under the Impairment Tables. Before an impairment can be assigned an impairment rating, the condition(s) must be ‘permanent’.  A ‘permanent’ condition is one that is FDTS[6] as at the date of the claim or up to 13 weeks thereafter.[7] This is called the qualification period. The qualification period in this case is 24 December 2018 – 25 March 2019 (the Qualification Period).

[6] Clause 6(4) of the Determination.

[7] Schedule 2, Clause 4(1) of the Administration Act. 

19. In assessing whether a condition is fully diagnosed and fully treated, clause 6(5) of the Determination provides that the following must be considered:

(a)whether there is corroborating evidence of the condition;

(b)what treatment or rehabilitation has occurred in relation to the condition; and

(c)whether treatment is continuing or is planned in the next two years.

20.  A condition is fully stabilised if:[8]

(a)the person has undertaken reasonable treatment for that condition, and it is unlikely that further reasonable treatment will result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

(b)if the person has not undertaken reasonable treatment[9] for the condition:

(i)such treatment is not expected to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or

(ii)there is a medical or other compelling reason not to undertake reasonable treatment.

[8] Clause 6(6) of the Determination.

[9] Clause 7 of the Impairment Tables provides that “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.

21.  In respect of assessing whether a condition is ‘fully stabilised’ during the qualification period, Deputy President Handley said in Re Fanning & Secretary, Department of Social Services [2014] AATA 447 [33]:[10]

In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with [sic] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

…

The language in cl 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the Tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision.

[10] In Gallacher & Secretary, Department of Social Services [2015] FCA 1123, Besanko J agreed with the approach taken in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 and Deputy President Handley in Re Fanning; medical reports that are produced after the qualification period are relevant only insofar as they refer to the person’s condition during the qualification period.

22.  That being said, Deputy President Bean in Secretary, Department of Social Services & Austin [2015] AATA 441 [24] emphasised that later evidence can be taken into account to give a fuller picture of an Applicant’s medical conditions as they existed during the qualification period and in assessing what was the likely efficacy of treatment not yet undertaken during a qualification period:

However, … I am not persuaded that the Tribunal may not have regard to what subsequently transpired in determining what was likely to occur at an earlier point in time. I understand the position to be that, in making findings as to the state of affairs at an earlier point in time, and what could be considered likely to eventuate at that time, the Tribunal may have regard to evidence which comes into existence later. In my view, it is consistent with that proposition for the Tribunal to have regard to what actually happened in determining what was likely at an earlier date, namely during the assessment period.

23. Once a condition(s) is found to be “permanent”, its impairment rating is to be assessed having regard to the Impairment Tables which are found in the Determination. The Impairment Tables contain instructions for assessing impairments with respect to nominated conditions. An impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition(s). Therefore, the assessment looks at what the person can and cannot do. Any diagnosis of the condition must be made by an appropriately qualified medical practitioner. Self-reporting of symptoms alone is insufficient, and there must be corroborating evidence of the person’s impairment.

24.  A person’s impairment is a “severe impairment” if it attracts at least 20 points under a single Impairment Table.[11]

[11] Subsection 94(3B).

A continuing inability to work

25.  Subsection 94(1)(c) provides the third qualification criterion, namely that the Applicant has a CITW.[12]  A CITW means his impairment(s) is sufficient to prevent him from doing any work independently of a POS within the next two years, or he cannot be retrained, or retraining is unlikely to enable him to return to work[13] in the next two years.[14]  

[12] Subsections 94(2) and (5).

[13]  Subsection 94(5) provides that “work” means work of at least 15 hours per week, remunerated by at least

award wages which exists anywhere in Australia.

[14]  Subsection 94(2).

26.  Subsection 94(5) provides that “work” means work of at least 15 hours per week at least at award wages which exists anywhere in Australia.

27.  The requirements for active participation in a POS are provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).  The POS Determination provides that a person has ‘actively participated’ in a POS if they have participated in a program for at least 18 months during the 36 months that preceded the date of their application for DSP.

28.  Subsection 7(3) provides that the POS requirement is satisfied if the program’s duration was less than 18 months, and the person completed the entire program during the relevant period.

29.  Subsection (7)(4) provides that a person will satisfy the active participation in a POS requirement if:

(a)the program was terminated before the end of the 36 months which preceded his or her claim for DSP; and

(b)the program was terminated because the person was unable to, solely because of his or her impairment, improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

30.  Subsection 7(5) provides that a person will satisfy the POS requirements where:

(a)at the end of the 36 months immediately preceding their claim for DSP the person is participating in a program; and

(b)the person is prevented solely because of his or her impairment from improving their capacity to prepare for, find or maintain work through their continued participation in the program. 

THE APPLICANT’S EVIDENCE

31.  The Applicant was born on 20 April 1955 and was 65 years of age at the time of the hearing.

32.  He is now a widower. He was his wife’s carer before her death in August 2016. He said as a result of the physical work involved in her care, he started to suffer difficulties with his neck and back. The Applicant’s wife was completely immobilised for the last ten years of her life, and the Applicant was required to roll and lift her regularly in the course of providing care.

33.  The Applicant said that this physical work caused, impacted on, and worsened his spinal conditions. He said that his spinal problems were not caused by another event.

34.  He said that his wife was 1.75 metres tall, and before her illness she weighed 85 kilograms. However, over the course of her immobility her weight increased to the point where she was “really heavy”. The Applicant said that he could use a lifter device to assist, but that this was not always possible, and some positions required him to lift her unassisted on occasion.

35.  The Applicant said in the year before his wife’s death he would assist her into a shower chair. This would cause him to suffer soreness in his neck requiring him to lie down and rest for 15 minutes to be able to continue. He found it difficult to say when exactly his neck issues started but it gradually worsened. His back problems did not resolve following his wife’s death and has worsened over time.

36.  The Tribunal asked the Applicant about the neck condition at the date of his current claim for DSP. He explained that if he was sitting in an ordinary, straight upright chair he would find it ‘very difficult’ to rotate his neck left and right due to pain. He said he would have to rotate his whole body. He said this was the same on both his left and right side.

37.  The Applicant was taken to a letter he had provided to the Department on 24 June 2017.[15] That letter contained the following passage:

…I am able to turn my head approximately 45 degree on both sides…

[15]  T 10, page 126.

38.  The Tribunal asked the Applicant whether this was still accurate in December 2018. The Applicant said he could roughly move in that range, but that he did not take a proper measurement. If he had to move further right or left, he would have to move his whole body.

39.  The Tribunal asked the Applicant to consider an example where he was driving a car and was required to look over his left shoulder to check the car’s blind spot. The Applicant said he would use additional mirrors on his car’s dashboard that allowed him to see any ‘blind angles’ on the right and left side without the need to move his head. The Applicant said he put these mirrors on his dashboard approximately five years ago but could not provide an exact date.

40.  The Applicant said he could look down comfortably but could not move his neck up to look at the ceiling. He could move his head down ‘a little bit’ but could not touch his chin to his chest.

41.  The Applicant said that his neck condition had got ‘worse and worse’ since he made his original and current claim for DSP.

42.  The Tribunal referred the Applicant to his consultations with Dr Czechowicz at the International Spine Centre and his medical report of 24 October 2018.[16] The Applicant said that Dr Czechowicz asked him to move his body and head to demonstrate how far he could move his head up, right and left. He said he was able to move left and right ‘just a little bit’.

[16]  T 23, pages 156 – 157.

Spine

43.  The Applicant said his back is ‘stiff and painful.’ He takes painkillers and when those ‘are not enough’ he takes paracetamol. He had previously used slow release painkiller patches. He used those patches for one week. He said that Dr Najibi told him it is inappropriate to use the patches over a long period of time as they contain morphine. Therefore, Dr Najibi prescribed the Applicant a stronger painkiller, Endep 25 milligrams.

44.  When asked to consider his back condition in December 2018, the Applicant said that if he was standing upright and had to bend forward, he would find it difficult to touch his hands to his knees. He said he cannot do that, but he could roughly reach his hands halfway between his knees and hips. He said he could not bend down and pick something up off the ground.

45.  He said he could not bend down to pick up a small object from a coffee table that was below his knees. However, he said he could pick up such an object from a higher kitchen table.

Overhead activities

46.  The Applicant said he could lift his left arm to touch the top of his head. He could touch his ear with his right arm, but he could not move the arm higher than that. He said both his shoulder and back conditions had caused his inability to move his hands higher than he described. However, he then said that he had limited movement in his right shoulder and that it was his shoulder condition that prevented him from moving his hand above his head.

Sitting

47.  The Tribunal asked the Applicant what sort of chair he normally sat in. He said he has a reclinable armchair in his living room, which can lift his legs up. This chair has a function whereby the chair rises from the back to assist when standing up. The Tribunal asked the Applicant whether he could stand up from this chair without use of this function. The Applicant said he could do that if someone assisted him.

48.  The Tribunal asked the Applicant how long he could remain seated. In referring to his participation in the hearing, the Applicant said he was experiencing ‘problems’ as he had been sitting in his office chair and that he was in pain.[17] He said he would prefer to sit in his living room reclining chair and that he could normally sit for around half an hour before he needed to move, but no longer. 

[17]  The hearing had proceeded for approximately 36 minutes when the Applicant gave this evidence.  

Household chores (Washing, cleaning, cooking)

49.  The Applicant said he does not do his own washing or associated tasks. He said his daughter-in-law and his other son’s girlfriend do his washing for him. He said they will take the clothes from the washing machine, hang them on the clothesline to dry, take the clothes down when dry and do any ironing. As at the January 2017 claim he was able to do some washing but now his condition has worsened.  

50.  The Applicant said he does not clean his house. His sons take care of the cleaning outside the house, whereas his sons’ partners will take care of the inside of the house.

51.  The Applicant said his sons’ partners will cook food for him which will be stored in the freezer. He will then microwave those frozen meals when required. He will leave his dishes on the kitchen table which are later cleaned and washed by his sons’ partners.

52.  He said that all his household chores were now done by either his two sons, or their respective partners. His condition has worsened since the first claim for DSP.

Dressing

53.  The Applicant said he dresses simply. He can pull on his underwear and trousers if he is lying back on his bed. However, he does not use any buttons, so he can just slide into his shirts and tops. He avoids shoes with laces, and instead wears slippers to avoid the need to bend down and tie laces.

Cross-examination

54.  In cross-examination the Applicant said he was still driving his car in December 2018. He was asked to consider the situation where he had stopped at an intersection with a stop sign and needed to look left and right before proceeding ahead. He said he could look left and right, but he would need to move his whole upper body while holding the steering wheel.

55.  The Applicant was referred to information he had provided to a Job Capacity Assessor contained in a JCA Report  submitted on 21 March 2017:[18]

[the Applicant] reports he is able to drive, shower with the use of a shower chair and undertake grocery shopping. He states he is able to walk and stand for 30 minutes, climb steps and stairs with some degree of difficulty and bend to put on socks.

[18] T 6, page 118.

56.  He said ‘at that time’ he was able to grocery shop, but that he was not able to do that anymore. That stopped about two years ago.

57.  The Applicant was referred again in cross-examination to Dr Czechowicz’s letter of 24 October 2018.[19]It reads “[the Applicant] was tested on his cervical spine range of motion with notable reductions in all directions but especially cervical spine extension and rotation both left and right side.” The Applicant accepted that Dr Czechowicz does not say in that report that he (the Applicant) is unable to turn his head left or right.

[19] T 23, page 156.

58.  The Applicant was referred to Dr Czechowicz’s letter of 19 February 2018[20], which contains the following passage:

Examination today observed him with a normal gait and appearing undistressed mobilising…

[20] T 19, page 138.

59.  When asked about his ability to move his head left and right while walking, the Applicant said if he needed to move his head, he would need to move his whole body if he was standing up. If he was sitting down, he would move with his trunk.

60.  The Applicant said he was able to download Czech movies from the internet, which he estimated would take one hour to download. He said that he will then watch these movies, which he estimated could take up to 90 minutes.

61.  He clarified that his sons’ partners will pre-cook his meals, which he will then later heat up in a microwave that is located on a kitchen table.

62.  The Applicant was referred to documents recording his travels to the Czech Republic.[21] The Applicant said that he would travel for three months at a time.  He was referred to documents that indicated he had travelled to the Czech Republic, including a period from May 2018 – July 2018 and May 2019 – August 2019.[22]

[21] T 42, pages 250 - 251.

[22] T 42, page 250.

63.  He said he was able to read an airport departure board and figure out which gate he needed to attend to catch his flight. The flights take around 24 hours. He travels alone but he receives assistance while he travels, such as being transferred by wheelchair in airports, and uses a reclining chair while sitting in an aeroplane. His brother would pick him up in a car from Prague airport, and he stays at his brother’s house.

64.  The Applicant said that his brother lives in a city about 80 kilometres from Prague. His brother will pick him up with his car from the airport and drive them both back to his home. The Applicant estimated this trip took approximately 1 hour – 1 hour, 20 minutes. He said he would ‘just sit in the car’ for the trip. The Tribunal asked whether this trip caused him discomfort. He explained that the car has a comfortable chair and was ‘like ordinary, nothing unusual.’  He said that the area in which his brother lived was a hilly area, but that he does not walk around the area at all.

65.  He said he would do ‘nothing much’ while in the Czech Republic. He would stay in his brother’s house and would not go out to visit family. Instead, people visit him at his brother’s house. He described his time at his brother’s house as ‘nothing unusual’ and ‘ordinary life’. He stays on the ground level at his brother’s house and does not use the stairs.

66.  Ms Forsyth referred the Applicant to documents recording his participation in a POS with Status Employment Services in Salisbury, South Australia.[23] The Applicant agreed that he did not attend any appointments with Status Employment Services until 14 January 2019.

[23] T 42, page 248.

MEDICAL AND OTHER REPORTS

Job Capacity Assessment Report dated 21 March 2017[24]

Spine

[24] T 6, page 118.

67.  The Applicant reported that he was able to drive, shower with use of a shower chair and undertake grocery shopping. He said that he is able to walk and stand for 30 minutes, climb steps and stairs with some degree of difficulty and bend to put on socks.

Medical report of Dr Czechowicz dated 19 February 2018[25]

[25] T 19, page 138.

68.  This report confirms a working diagnosis of lumbar facet arthopathy (right L4/5).

69.  Under the heading ‘Working diagnosis’ Dr Czechowicz reports:

(a)Cervical radiculopathy for exclusion – declined further imaging/investigation;

(b)Lumbar facet arthropathy – right L4/5 activity on bone scan;

(c)Lumbar spine canal stenosis – significant at L4/5 on imaging but an absence of lower limb complaints; and

(d)Thrombocytopenic[26] under investigation by Haematologist.

[26] A condition in which a person has a low blood platelet count.

70.  Under the heading ‘Plan’, Dr Czechowicz reported “[r]ecommend consult usual GP clinic for consideration of referral to RAH Spinal outpatients for further investigation. Reduction/quitting alcohol and smoking encouraged.”

71.  Dr Czechowicz reported that the Applicant did not proceed with CT-guided facet steroid injections of both L4/5 facet joints given concerns about his Thrombocytopenia. He recorded that the Applicant was observed with a normal gait and appeared ‘undistressed’ while mobilising. The Applicant’s upper limb neurological testing was ‘unremarkable’ other than a slight decrease in power with right elbow flexion and left elbow extension. His cervical spine range of movement was ‘restricted in all directions due to pain’.

Job Capacity Assessment Report dated 10 April 2018[27]

[27] T 20, page 145.

72.  The Applicant reported being able to remain seated for at least 30 minutes and that he has a driver’s licence and car. The Applicant reported that he has difficulty in moving his head to look in all directions and he experiences chronic pins and needles type sensations in both arms/hands.

Medical report of Dr Czechowicz dated 24 October 2018 – Spinal Clinician and General Practitioner[28]

[28] T 23, pages 156 – 157.

73.  The Applicant relied particularly on this report in this application for review in support of his case that his spinal impairment should be assigned 20 impairment points under Table 4.

74.  This report was prepared on 24 October 2018 by Dr Czechowicz of the International Spine Centre and responds to four questions regarding the Applicant’s spinal conditions. The report was purportedly requested on the Applicant’s behalf by a disability advocacy organisation for the purposes of his January 2017 claim for DSP.

75.  Dr Czechowicz opined that the Applicant’s lumbar spinal canal stenosis was diagnosed in August 2017 but was likely present in January 2017. Dr Czechowicz recommended that the Applicant’s general practitioner be contacted regarding the Applicant’s work capacity in January 2017, as his first consultation with Spinal Centre was in August 2017. Dr Czechowicz referred to the severe functional impact descriptors in Table 4 and said that:

Mr Krejcir was tested on his cervical spine range of motion with notable reductions in all directions but especially in cervical spine extension and rotation both to left and right side [emphasis added]. I suggest by this provided definition, it is reasonable to conclude that Mr Krejcir meets criteria for a “severe functional impact on activities involving spinal function”.

Medical letter of Dr Sabharwal dated 26 November 2018 – general practitioner[29]

[29] T 25, pages 160 – 161.

76.  Dr Sabharwal wrote this letter in support of the Applicant’s DSP application. He said in respect of the Applicant’s back pain, due to facet arthritis and spinal canal stenosis, he had ongoing lower back pain without lower limb symptoms. His pathology was confirmed by CT scan and he could not be given any spinal injection because of his low platelets. His back pain was managed with Norspan patches. Visits to a physiotherapist had not helped with his lower back pain. It is reported that the Applicant is unable to perform activities that involve lifting weights, bending forwards and backwards or twisting his back. He cannot sit in one position for long durations. All possible treatment options had been exhausted. Dr Sabharwal referred to comments of the spine surgeon that the Applicant meets the criteria for severe functional impact on activities involving spinal function.

CONSIDERATION

77.  The Respondent accepted that the Applicant suffered from various medical conditions impacting on his cervical and lumbar spine, hips and knees. The hearing focused on his cervical and lumbar spine and whether the Applicant’s condition was FDTS and attracted an impairment rating of 20 points on Table 4 – Spinal Function.

78.  The Respondent submitted that while the Applicant gave oral evidence that at the time of his current claim for DSP and following he was unable to turn his head from left to right without moving his trunk, that level of restriction is not supported by any corroborating medical evidence before the Tribunal. The Respondent submitted that the October 2018 report of Dr Czechowicz only referred to “notable reductions in all directions of movement but especially in the cervical spine extension and rotation both left and right side” but did not report that he was unable to rotate his head or bend his neck without moving his trunk as required for an assessment of severe functional impact in Table 4. The ARO made a similar decision in deciding that the Applicant did not have a severe impairment rating.

79.  The Respondent referred to the Applicant’s evidence in which he acknowledged that he had slight movement of his cervical spine to the left and right. He undertook long international flights. At the airport he received some assistance with the use of a wheelchair, but he was able to look up and read flight departure and arrival information. He was able to look down albeit was unable to place his chin upon his chest. Hence, it was submitted that he was not entitled to a severe impairment rating.

80.  The Respondent submitted that, should the Tribunal find that the Applicant had a combined impairment rating of 20 points, he had not completed the POS prior to the lodging of his current claim for DSP. The Respondent also referred the Tribunal to the report relating to the Applicant’s Period of Active Participation in a Program of Support,[30] which reported that as at 16 March 2020 the Applicant had only completed a total of 155 days.

[30] T 43, page 252.

81.  The Applicant did not wish to make any further oral submissions. He said his case was clear, namely, that he satisfied a severe impairment rating for the purpose of Table 4 - Spinal Function and that the decision of the AAT 1 ought to be set aside and in substitution he be granted the DSP.

CONCLUSION

82.  The AAT 1 referred to the Applicant’s other medical conditions.[31] In respect of his shoulder conditions, the AAT 1 referred to the ARO’s decision that the conditions were not fully treated and stabilised as the Applicant was awaiting surgical treatment through the public health system. In any event, it was considered that this condition would not attract a rating of 20 points under Impairment Table 2.

[31] T 2, pages 12 – 13.

83.  The AAT 1 agreed with the ARO’s decision that the Applicant was entitled to an impairment rating of five points for Impairment Table 3 – lower limb function for his hip osteoarthritis; and that he was entitled to an impairment rating of 5 points for Impairment Table 14 – function of the skin. Those decisions by the AAT 1 were not challenged. I have nonetheless considered the evidence and agree with those impairment ratings.

84.  The question that remains for the Tribunal is what, if any, impairment rating should be attributed to the Applicant’s spinal impairment pursuant to Impairment Table 4 – Spinal Function.

85. In assigning an impairment rating, the Determination provides at subsections 11(1) (b) – (c) that a rating cannot be assigned between consecutive impairment ratings, and if an impairment is considered as falling between two impairment ratings, then the higher rating must not be assigned.

86.  Further, Impairment Table 4 contains directions that must be observed when assigning an impairment rating. These directions include that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’. The descriptors of a moderate and severe impairment are as follows:

10

There is a moderate functional impact on activities involving spinal function.

 (1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

 (a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

 (b)        the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

 (c)        the person is unable to bend forward to pick up a light object placed at knee height; or

 (d)        the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

 (1)        The person is unable to:

 (a)        perform any overhead activities; or

 (b)        turn their head, or bend their neck, without moving their trunk; or

 (c)        bend forward to pick up a light object from a desk or table; or

 (d)        remain seated for at least 10 minutes.

87.  I will first consider whether the Applicant satisfies the severe functional impact.

Unable to perform any overhead activities

88.  In considering the Applicant’s capacity to perform overhead activities, he said he could move his left hand to the top of his head but his right hand only to his right ear and no more. However, it is unclear on the evidence what medical condition was impacting upon the Applicant that gave rise to such limited movement. The Applicant’s evidence was inconsistent saying that it was as a result of the combined effect of his spinal and shoulder conditions. He subsequently said it was the latter.

89.  The report of Dr Sabharwal dated 27 November 2018, immediately before the current claim for DSP, referred to the Applicant’s “right shoulder calcific Tendinitis and left chronic tennis elbow”. He reports that the Applicant consulted Dr Saies who suggested decompression surgery. He said the Applicant was “unable to afford these surgeries in private.”

90.  As I have said earlier, I agree with the decision of the AAT 1 affirming the decision of the ARO, that this upper limb condition was not FDTS and that the Applicant was awaiting treatment in the public health system. I am also not satisfied that the functional impairment with respect to the use of the Applicant’s right and left hand is a consequence of his spinal condition. The medical evidence is unhelpful in deciding what condition caused this impairment. In any event, the evidence of impairment before the Tribunal is self-reporting and not corroborated by an appropriately qualified medical practitioner. Hence this impairment criterion is not met.

Unable to turn the head or bend the neck without moving the trunk

91.  The Applicant’s evidence was contradictory with respect to his ability to rotate his head from left to right. He initially conceded that he could move his head to about 45 degrees, then said he had slight movement including when tested by Dr Czechowicz. He later said in evidence that he was unable to turn his head left or right without moving his trunk. He subsequently conceded that he could move his neck from left to right only slightly. He also acknowledged that when at the airport he had to look up to read the departure and arrival board and that he could look down but could not move his neck such that his chin would touch his chest. This evidence was self-reporting of his medical condition and resultant impairment. Impairment Table 4 contains directions that must be observed when assigning an impairment rating. These directions include that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.

92.  Dr Czechowicz’s report of 24 October 2018 reported that the Applicant “was tested on his cervical spine range of motion with notable reductions in all directions but especially in cervical spine extension and rotation both to left and right side”. He then opined that this purported observation satisfied the severe impairment criteria in Table 4. It was this report that the Applicant relied on to bring his current claim for DSP in support of a severe impairment rating.

93.  There are aspects of this report that are unsatisfactory. To the extent that the Applicant was tested with respect to his cervical spine range of motion in all directions, there is nothing to indicate the results of that test. To the extent that Dr Czechowicz reported on lack of mobility, it was only to the extent that there were “notable reductions in all directions” and especially extension and rotation to left and right side. He does not report that the Applicant was unable to perform cervical extension and rotation both to left and right side.

94.  The descriptor ‘notable reductions’ is more consistent with the descriptor for a moderate impact that the Applicant ‘has difficulty’ rotating his head from left to right in that manner.

95.  The report is therefore not evidence that corroborates the Applicant’s evidence with respect to his impairment of spinal function and his cervical impairment. There needs to be evidence from the Applicant’s doctor that details the testing, observations and findings, and provides a basis for the opinion expressed by the doctor and by reference to the Impairment Table.

96.  It may be helpful for that doctor to explain why, in his or her opinion, a particular functional impact has been satisfied, but that ultimately remains the function of the Tribunal having regard to the evidence. Notable reduction in movement does not translate to an inability to move in a particular way. Given the report by Dr Czechowicz, there is no basis upon which the Applicant satisfies the criteria for severe functional impact.

97.  Accordingly, the Tribunal is not satisfied that the Applicant meets the criteria for a severe functional impact with respect to his spinal function but is satisfied that there is a moderate functional impact and an impairment rating of 10 points is appropriate.

Unable to bend forward to pick up a light object from a desk or table

98.  The Applicant’s evidence was that he could not bend forward such that his hands could touch his knees. He could only bend, such that his hands reached the midway point between his knees and hips. He said he could bend forward and pick up an object from a table.

99.  This is to be contrasted with the moderate functional impact which means that a person is unable to bend forward to pick up a light object placed at knee height. This is the function that the Applicant is unable to perform.

100.  The Tribunal is not satisfied that the Applicant meets the criteria for severe functional impact with respect to the performance of this function. He does satisfy the moderate functional impact and an impairment rating of 10 points.

Unable to remain seated for at least 10 minutes

101.  The Tribunal notes that from May 2018 – July 2018 and May 2019 – August 2019 the Applicant travelled to the Czech Republic by plane. These travel dates are before and after the Qualification Period. The Applicant said the flight to Prague was approximately 24 hours followed by a car journey of 1 hour to 1 hours, 20 minutes to his brother’s home.

102.  The Applicant also acknowledged in evidence that he had been seated during the course of the hearing for a proximately 30 minutes and that he was then moving to another chair in his house. He would also download Czech movies which would take about 90 minutes and he would watch them for a similar period of time.

103.  At no point during his evidence did the Applicant say that he was unable to sit for more than 10 minutes. He was able to sit on long-haul flights to Prague for a cumulative period of 24 hours.  He said the seats reclined.  Further, he was able to remain seated for the 80-kilometre car trip from the airport to his brother’s house. He said his brother’s car seats were comfortable and that journey caused him no difficulty. He did not report any difficulty remaining seated when driving his own car.

104.  Dr Sabharwal’s letter of 26 November 2018 reports that the Applicant cannot sit in one position for a ‘long duration and has to move around to find a comfortable position.’ This is not an opinion based on any identified examination and diagnosis. This is in the nature of a re-statement, by the doctor, of the Applicant’s self-reporting of his condition. It is not corroborative evidence that assists the Tribunal in assessing the Applicant’s functional impairment for the purpose of Impairment Table 4.  

105.  The Tribunal is not satisfied that the Applicant meets any one of the criteria for a severe impairment rating in respect of Impairment Table 4. However, the Tribunal is satisfied that the Applicant does meet the criteria for moderate functional impairment entitling the Applicant to 10 points on the Table 4.

106. Hence, the Applicant does not have a severe impairment rating in respect of any one of his conditions, but he has a combined impairment rating total of 20 impairment points. However, because the Applicant has not completed the POS, he does not satisfy s 94(1)(c) of the Act and does not have, at the time of lodging his current claim for DSP, a CITW.

DECISION

107.  The decision under review is affirmed.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

………..[SGND]……………

Administrative Assistant Legal

Dated: 25 January 2021

Date of hearing:	25 September 2020 (by telephone)
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Jasmine Forsyth, Mills Oakley Lawyers