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

[2017] AATA 11

Lemon and Secretary, Department of Social Services (Social services second review) [2017] AATA 11 (4 January 2017)

Division:GENERAL DIVISION

File Number:           2016/0874

Re:Darren Lemon

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:4 January 2017

Place:Adelaide

The Tribunal affirms the decision under review.

......................[Sgd]..................................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant's medical conditions were fully diagnosed, fully treated and fully stabilised during the assessment period - whether the applicant has a severe impairment - 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

Member I Thompson

4 January 2017

1. The applicant Mr Lemon lodged a claim for disability support pension (DSP) on 10 August 2015.  Mr Lemon is 58 years old and suffers from a number of medical conditions.

2. Centrelink rejected the DSP claim and on review the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed Centrelink’s decision.  Mr Lemon applied to the General Division of the Tribunal for a second review.

3. The hearing took place on 29 September 2016. Mr Lemon was self–represented and he attended the Tribunal in person. Ms Wells represented the respondent, the Secretary, Department of Social Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and associated documents.

   LEGISLATION AND ISSUES

4. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 10 August 2015 to 9 November 2015.

5. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

6. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

7. Accordingly, Mr Lemon will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is active participation in a program of support.

8. The Secretary conceded that Mr Lemon suffers from impairment arising out of these conditions :-

   ·Facet joint degeneration and disc degeneration

   ·Hypercholesterolemia

   ·Adjustment disorder with anxiety

   ·Gout

   ·Supraspinatus tendinosis and bursitis ( left shoulder)

   ·Urinary tract infection

9. On the evidence, the Tribunal is satisfied that the Secretary’s concession was correct and that the first requirement under s 94(1)(a) of the Act is satisfied.

10. The main issue for determination is whether Mr Lemon’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and if so, whether he had a continuing inability to work.

    CONSIDERATION

11. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. An impairment rating can only be assigned if the person’s condition causing that impairment is permanent and if the impairment results from a condition that is more likely than not to persist for more than two years. Under the Impairment Tables, a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

12. The applicable impairment rating for each of Mr Lemon’s conditions will be considered in turn by reference to the Impairment Tables. As indicated, consideration must be given to whether each condition was fully diagnosed, treated and stabilised during the assessment period before determining an impairment rating, because the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

13. Section 6(5) of the Impairment Tables provides that a decision whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years.

14. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment in unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years

    Back Condition – was the condition fully diagnosed, treated and stabilised?

15. Mr Lemon gave evidence that he suffers from low back pain, which radiates into his buttocks, knees and ankle.  Bending forward causes pain and sometimes he has problems straightening again.  He suffers pain with twisting movements.  He can reach light objects overhead although he suffers pain in the process.

16. Mr Lemon is not currently having treatment for his back condition.  He has been to various hospitals for review. Dr Retnaraja, a general medical practitioner, made a referral in August 2015 (T13, p154) to the Royal Adelaide Hospital Pain Clinic for medical opinion and management of the low back condition.  Dr Retnaraja reported that medication, namely Lyrica and Tramal, had not assisted to alleviate the problems.  Mr Lemon has had physiotherapy for the back problems with a recommendation that swimming would be beneficial.

17. A Magnetic Resonance Imaging report from Dr Wilks dated 16 July 2015 (T15, p163) confirmed disc degeneration at several levels with small annular fissures.

18. In the Secretary’s Statement of Facts and Contentions, it was accepted that Mr Lemon suffers from a spinal condition through facet joint degeneration and disc degeneration.  However the Secretary contended that this condition was not fully diagnosed, treated and stabilised during the assessment period.

19. Mr Lemon’s back problems have manifested themselves over many years.  In particular he underwent scans in 2003, 2008 and 2009.  A report from Benson Radiology in August 2003 (T16, p169) concluded that there was degenerative change involving the posterior facet joints at the L4-5 and L5-S1 levels.  Consistently, scans have revealed degenerative changes.  This picture was reinforced in a lumbar spine CT scans report in February 2015 (T15, p161).

20. The Tribunal is satisfied that Mr Lemon’s spinal condition was fully diagnosed during the assessment period and that it was fully treated and stabilised.  Having regard to all of the evidence, the Tribunal considers that in the assessment period, Mr Lemon’s spinal condition was permanent and was likely to persist for more than 2 years.  Therefore an impairment rating can be given for this condition.

    What is the applicable impairment rating?

21. Impairment Table 4 provides the descriptors of impairment relating to spinal function.  For a moderate functional impact Table 4 states:

Points

Descriptors

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).

1. A Job Capacity Assessment report (JCA) was submitted on 9 October 2015 (T18 p 171-177) in which the assessor concluded that the spinal condition was permanent and fully diagnosed, but not fully treated or stabilised.  The assessor wrote that Mr Lemon had injured his back 19 years ago when he was working at the Queen Elizabeth Hospital and had suffered long term difficulties with sitting and getting in and out of a car.  There was also reference to Mr Lemon’s problems in repetitive bending, heavy lifting and the general pace of everyday activities and routines.

2. Taking into account all of the medical evidence, together with Mr Lemon’s evidence, the Tribunal considers that the spinal condition was fully diagnosed, fully treated and fully stabilized at the time of the DSP claim.  The initial diagnosis was in 2003.  The treatment has continued intermittently since that time.  Mr Lemon has a moderate functional impact on activities involving spinal function.  It is clear that the moderate functional impact was present at the time of the DSP claim and during the assessment period.  Accordingly the Tribunal finds that Mr Lemon’s back condition rated 10 impairment points.

   Upper limb function - was the condition fully diagnosed, treated and stabilised?

3. Mr Lemon gave evidence about the effects of bursitis in the left shoulder which first affected him about seven years ago.  He has had injections the shoulder.  He suffers pain on reaching up and reaching out.  He suffers pain lifting.  His grip in the right hand is weak, following surgery over ten years ago.

4. Ultrasound reports dating back to 2010 confirmed the presence of bursitis in the left shoulder.  Treatment had followed, including an ultrasound guided local anaesthetic and steroid injection, in September 2010 (T16, p165).

5. According to the JCA report, Mr Lemon told the assessor that he has difficulty lifting his left arm above his shoulder.  He also stated that he has ligament damage to his right shoulder.

6. In the Secretary’s Statement of Facts and Contentions, it was submitted that there was a lack of recent medical evidence regarding the upper limb condition and that radiological opinion alone is not sufficient to provide a diagnosis.

7. In a report dated 4 September 2015 (T13, p156) Dr Retnaraja wrote that Mr Lemon has a resolving bursitis which affected the left elbow in 2011.  A radiology report dated 27 October 2011, referred to a procedure in which the bursal space was injected with a local anaesthetic and steroid (T16, p164).  An elongated olecranon spur was observed on examination (T16, p164).

8. The JCA report correctly stayed that there was limited medical information to determine the functional impact of the bursitis.  The Secretary contended that there was limited corroborating evidence of the condition, that it was not fully diagnosed, treated and stabilised during the assessment period, and that an impairment rating could not be given. The Tribunal agrees.

   Depression – was the condition fully diagnosed, treated and stabilised?

9. Mr Lemon gave evidence about his mental health condition which appears to be an adjustment disorder with anxiety.  He sees a psychologist regularly.  

10. Impairment Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

11. The introduction to Impairment Table 5 states that a diagnosis is required from an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist when the diagnosis has not been made by a psychiatrist.  Self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

12. A report from consultant psychiatrist, Dr P Miller, dated 10 October 2014 was received in evidence (T19, 178-184).

13. The key conclusion in Dr Miller’s report is a diagnosis of adjustment disorder with anxiety, with a possibility of hypomania characterised by anger.  The symptoms reportedly arose in an unfortunate setting of workplace bullying, in which Mr Lemon was the victim.  He had reported high level of anxiety, a preoccupation with the situation at work and poor sleeping pattern.  Mr Lemon was not receiving psychiatric treatment.  Dr Miller considered that medication could assist to manage the anxiety and insomnia and that Mr Lemon’s symptoms were likely to wane and move to a full recovery.  Dr Miller considered that Mr Lemon should be able to return to the type of work that he undertook pre-injury in the range of 20 to 30 hours per week.

14. A psychiatrist, Dr P Salonikis, provided a written report dated 26 September 2016 (Exhibit 6) in which he acknowledged a diagnosis of adjustment disorder with depressed mood.  He thought there was also the possibility of a co-morbid diagnosis of pain disorder. It is important to note, however, that Dr Salonikis considered that Mr Lemon’s depressive condition had “not been fully treated in the past nor currently, and therefore could not be considered stable.  Treatment with an anti-depressant would be expected to improve these symptoms.”

15. In the Secretary’s Statement of Facts and Contentions, it was accepted that a condition of adjustment disorder was fully diagnosed, though it was not fully treated and stabilised. The evidence supports that contention. The Tribunal finds that the condition of adjustment disorder with anxiety was fully diagnosed. However, it could not be said that the condition was fully treated and fully stabilised. Therefore no points can be assigned under Table 5 of the Impairment Tables.

    Other conditions

16. The JCA report referred to previously, concluded that the conditions of gout, urinary tract infection and hypercholesterolemia were not fully treated and stabilised for the purposes of the Impairment Tables.

17. Mr Lemon told the Tribunal that gout affects his ankles, toes and the left elbow.  He gets attacks eight or ten times a year and they last for about 3 to 5 days.  He has received treatment and last consulted a rheumatologist about five years ago.  Dr Retnaraja confirmed the condition in his reports.  However, there is insufficient evidence to conclude that the condition was fully treated and fully stabilised during the assessment period.

18. Mr Lemon gave evidence about the effects of a urinary condition which cause him to get out of bed several times per night.  A report from a urologist, Dr D Spernat, dated 6 August 2015, was received in evidence (T14, p 158).  Dr Spernat wrote that Mr Lemon suffered from urinary tract symptoms that would require further investigation, namely a cystoscopy and uro-dynamic evaluation.  The Secretary contended that the condition was not fully diagnosed, treated and stabilised during the assessment period.  The Tribunal agrees with that contention.  Accordingly an impairment rating cannot be assigned to this condition.

19. Mr Lemon has hypercholesterolemia.  However, there is insufficient clinical evidence of this condition to state that it is fully diagnosed, fully treated and fully stabilised

20. None of these other conditions can be relied upon in a substantive way to support the DSP claim.

    CONCLUSION

21. The Tribunal is satisfied that the condition from which Mr Lemon suffers which gives rise to an impairment rating under the Impairment Tables during the assessment period is the spinal condition. The applicable rating for the spinal condition is 10 points.

22. Accordingly the Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied. However, Mr Lemon does not have impairment or a combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period and therefore he does not satisfy s 94(1)(b) of the Act.

23. In these circumstances, it is not necessary to consider whether or not during the assessment period Mr Lemon had a “continuing inability to work” within the meaning of s 94(1)(c).

24. As Mr Lemon was not qualified for DSP at the time he lodged his claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

    DECISION

25. The Tribunal affirms the decision under review.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

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Administrative Assistant

Dated: 4 January 2017

Date(s) of hearing:	29 September 2016
Applicant:	In person
Advocate for the Respondent:	Ms L Wells
Solicitors for the Respondent:	Sparke Helmore Lawyers