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

[2021] AATA 1096

Ling and Secretary, Department of Social Services (Social services second review) [2021] AATA 1096 (29 April 2021)

Division:GENERAL DIVISION

File Number:2020/3476          

Re:Terrence Ling

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:29 April 2021

Place:Adelaide

The Tribunal affirms the decision under review.

..........................[Sgnd]..............................................

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 - 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

April 2021

Introduction

1. The applicant, Mr Ling, lodged a claim for disability support pension (DSP) on 14 June 2019.  Centrelink rejected the claim in the first instance.  Mr Ling requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Mr Ling requested a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).  Centrelink’s decision was affirmed.  Mr Ling applied to the General Division of the Tribunal for a second review. 

2. The hearing took place across two days, and was substantively heard on 11 February 2021. Mr Ling was self-represented, and he attended the Tribunal in person. Ms Underhill 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.

3. Mr Ling is now 63 years old.  He suffers from medical conditions which include conditions relating to his back, lower limbs and mental health.

   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 qualification period in this case is 14 June 2019 to 13 September 2019.

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 Ling 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 accepts that Mr Ling has impairments and satisfies s 94(1)(a) of the Act.

9. The Secretary accepts that while the lower back condition is long – standing and fully diagnosed, insufficient medical evidence exists to conclude that the condition was fully treated and fully stabilised at the time of the DSP claim and during the qualification period. Accordingly, it is contended that an impairment rating cannot be assigned for this condition.

10. The Secretary accepts that Mr Ling suffered burns to his lower limbs and received treatment, however it is contended that there is no evidence to indicate that he did not fully recover.

11. The Secretary contends that evidence about Mr Ling’s anxiety and low mood is insufficient to find that a mental health condition was fully diagnosed, treated and stabilised during the qualification period.

12. The Secretary therefore contends that Mr Ling’s overall impairment rating is 0 points and he does not satisfy s 94(1)(b) of the Act

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

    Impairment Tables

14. 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.

15. Section 6(5) of the Impairment Tables provides that a decision as to 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.

16. 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 is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

17. The applicable impairment rating for each of Mr Ling’s conditions will be considered in turn by reference to the Impairment Tables

    Spinal condition – whether fully diagnosed, treated and stabilised.

18. Mr Ling fell off a roof when he was working, and he injured his back. The accident occurred in July 1989. Mr Ling underwent surgery and has been left with a problem with his lower back ever since.

19. A report  by an orthopaedic surgeon, Mr Fry, dated 14 February 1995 provides some details of the early history of the work accident and its aftermath. [1] Mr Ling suffered continuing pain in the lower back and consulted a surgeon, Mr Tamblyn and eventually an operation took place in February 1991. The consequence was improved mobility in the back with less pain and Mr Ling was able to return to work doing light duties. In the following months, however, there was a gradual deterioration and he was taking anti-inflammatories and painkilling tablets in addition to consulting a physiotherapist. Mr Fry confirmed that the fall which occurred at work provoked a disc protrusion which lead to Mr Ling having a laminectomy and discectomy. Mr Fry concluded that Mr Ling had a disability amounting to 20% impairment of the lumbar spine, some of which was due to pre-existing degenerative change and the rest of it due to the injury at work. The left leg was also causing problems with occasional aches and pain.

    [1][1] Exhibit R1, p 111

20. Mr Ling’s interests and employment centred on electronics. Prior to his workplace injury he worked with electronic alarm systems for many years.  Subsequently he has tried to work within the limitation of his medical conditions and enjoys work which involves the use of his hands. In 2015-2016 Mr Ling worked for about eight months in a vineyard doing manual work. He had problems with bending and used a post to pull himself up from a squatting position. Using light machinery caused him pain, particularly after 10 to 15 minutes. His last employment involved light maintenance work which was to some extent self-paced and it lasted about one year. He could cope with the work despite continuing problems with his back.

21. Mr Ling’s general medical practitioner, Dr Naser, compiled a medical certificate on 29 May 2019,[2] shortly before the qualification period, in which he noted an exacerbation of Mr Ling’s lower back pain, which was described as severe, and sciatica. Dr Naser described severe pain which interferes with Mr Lang’s daily activities. Dr Naser noted that the back condition was a result of the injury in the late 1980s. He noted subsequent exacerbations in that pain.  Similar comments were made in medical certificates which Dr Naser completed on 16 December 2019[3] and 4 March 2020.[4] Mr Ling was taking pain killers to reduce the impact of the back pain. Mr Ling told the Tribunal about certain methods he has adopted to cope with, and temporarily reduce, the effects of pain, including a form of meditation. Fifteen to twenty years ago, or thereabouts, he had some physiotherapy and chiropractic treatment, but he can no longer afford that type of treatment.

    [2] Exhibit R1, p 177

    [3] Exhibit R1, p 224

    [4] Exhibit R1, p 237

22. In the DSP claim form[5] Mr Ling summarised the treatment he was receiving at that time as comprising the use of painkillers prescribed by his doctor together with the self-administration of aspirin, ibuprofen and anti-inflammatory medication. In an email which Mr Ling wrote on 2 May 2020 he mentioned that he had fallen over twice recently and the cause on both occasions was his inability to feel where his feet are. He also mentioned that he can only walk 100 to 150 metres and has trouble balancing and carrying things.[6]

    [5] Exhibit R1, p 192

    [6] Exhibit R1, p 238

23. An MRI report on 4 March 2020 found “mild to moderate spinal canal stenosis at L4/5 secondary to disc bulge, facet joint arthropathy and ligamentum flavum hypertrophy. Mild right L4/L5 foraminal stenosis. The L4/L5 disc is also in close contact with right L5 nerve root.” [7]

    [7] Exhibit A3, p 2

24. A Job Capacity Assessment (JCA) report dated 30 September 2019 summarised the medical evidence of Mr Ling’s spinal disorder and concluded that while the condition was fully diagnosed, insufficient current medical evidence existed to determine if the condition was fully treated and stabilised. The report noted that the surgical intervention occurred some 30 years previously and treatment for the past four years was minimal.[8]

    [8] Exhibit R1, p 209

25. Mr Ling sustained an injury to his lower back some thirty years ago. Surgery took place and by 1995 the orthopaedic surgeon, Mr Fry, regarded the condition as stable and he reported that any future surgery remained only as a possibility.[9] By the time of Mr Ling’s DSP claim, the same, permanent back condition was still causing problems for him and he was consulting his general medical practitioner for pain relief . This was a long-term back injury and the Tribunal is satisfied that it was fully treated and fully stabilised in accordance with the criteria in ss 6(5), (6) of the Impairment Tables.

    [9] Exhibit R1, p 111

    Spinal function - impairment rating

26. Impairment Table 4 is the relevant table in relation to spinal condition.  It is used where the person has a permanent condition that leads to functional impairment in activities involving spinal function, bending or turning the back, trunk or neck. 

27. For a moderate functional impact on activities involving spinal function, the Impairment Table provides:

Points

Descriptors

10

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

(1)      The person can 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. For a severe functional impact on activities involving spinal function, Impairment Table 4 provides:

Points

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

1. The Tribunal accepts the evidence provided by Mr Ling about the functional impact on the types of activities contained with Impairment Table 4. Mr Ling gave evidence that he has difficulty moving his head to look in all directions and experiences a clicking sensation when he moves his head to the right.  Bending forward can also cause problems from time to time particularly with getting back to an upright position.

2. The Tribunal has considered Mr Ling’s evidence together with the medical evidence and reports regarding spinal function. The Tribunal is satisfied that Mr Ling’s condition involving the lumbar spine does not meet the descriptors for a severe functional impact. He meets the descriptors for a moderate functional impact arising out of the lower back condition, particularly in relation to (1) (b) and (c) of the descriptors. Accordingly, the appropriate rating is 10 impairment points for the spinal function.

   Lower limb pain – whether the condition was fully diagnosed, treated and stabilised

3. In March 2018 Mr Ling was diagnosed with chemical burns to both legs following an incident in which he was assisting a friend to lay concrete. He was hospitalised for debridement of the wounds and skin grafts. The condition was fully diagnosed by a burns specialist, Dr Greenwood, as indicated in a separation report form the Royal Adelaide hospital.[10] Following six days in hospital, Mr Ling was discharged and was to be followed up for dressing changes and analgesia as required. A medical certificate dated 21 March 2018 confirmed the condition was temporary with symptoms anticipated for up to 3 months. Further treatment was not required.[11]

   [10] Exhibit R1, p 132

   [11] Exhibit R1, p 131

4. According to the JCA report Mr Ling reported reduced sensation in the lower legs.[12]

   [12] Exhibit R1, p 209 -210

5. The treatment of Mr Ling’s unfortunate, serious and painful injury appears to have been swift and successful. He told the Tribunal about his recovery from the chemical burns. He said he experienced lingering effects from the burns, which included intermittent breaking of the skin and bleeding in the affected areas. He said that when this happened he rehydrated, consuming up to 3 litres of water per day. Although there is an absence of other supporting medical evidence, it seems reasonable to conclude that the condition was fully treated and stabilised.

   Lower limb function- impairment rating

6. Impairment Table 3 provides the descriptors relating to use of the lower limbs.  It is used where the individual has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.

7. The introduction to Impairment Table 3 outlines that it is insufficient for a person to self-report their symptoms alone, and corroborating evidence of the person’s impairment is required. Mr Ling has difficulty with standing, negotiating stairs and steps, and consistently walking distances up to, for example, 500 metres. The JCA report refers to reduced sensation in the lower legs[13]. According to the report he was advised to seek further medical intervention. The difficulty for the Tribunal, however, is the absence of evidence of further medical intervention together with an absence of corroborating evidence in relation to an impairment in Mr Ling’s lower limb. Mr Ling spoke about the expense and difficulties of obtaining appropriate medical evidence and reports. Some corroborative medical, allied health or related evidence is needed, nonetheless, in considering whether there was  functional impairment in activities that involve the use of legs, feet and toes, otherwise an impairment rating cannot be assigned. Based on the evidence before the Tribunal it cannot be concluded that the lower limb function was fully diagnosed, fully treated and fully stabilised during the qualification period.

   [13] Exhibit R1, p 209-210

   Anxiety and depression

8. Mr Ling was treated in hospital on one occasion in May 2019 for anxiety and low mood problems. The admission and treatment were confirmed in hospital and social work records[14]. Medication was recommended together with referral for social work assistance in the community where required. Mr Ling did not submit that mental health issues were a significant component of his DSP claim.

   [14] Exhibit R1, p 200

9. Impairment Table 5 relates to mental health function and is used where a person has a permanent mental health condition which causes functional impairment. The diagnosis must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist when the diagnosis is not made by interest. No such evidence is available to the Tribunal and the condition cannot be assessed as diagnosed for the purpose of Mr Ling’s DSP claim. Accordingly, it does not attract an allocation of points under the Impairment Tables.

   CONCLUSION

10. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

11. As outlined, the Tribunal finds that Mr Ling’s spinal condition was fully diagnosed, fully treated and fully stabilised during the assessment period.  The applicable rating for the spinal condition is 10 impairment points.

12. As outlined, the Tribunal finds that Mr Ling’s lower limb condition and mental health condition were not fully diagnosed, treated and stabilised for the purposes of the Impairment Tables and a rating cannot be given to either of those conditions

13. With a total of 10 impairment points, Mr Ling does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore, he does not satisfy s 94(1)(b) of the Act.

14. In these circumstances it is not necessary to consider whether during the qualification period Mr Ling had a continuing inability to work within the meaning of S 94(1)(c) of the Act.

15. As Mr Ling 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

16. The Tribunal affirms the decision under review.

I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

........................[Sgnd].....................................

Administrative Assistant Legal

Dated: 29 April 2021

Date of hearing:	9 December 2020, 11 February 2021
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms Maleah Underhill, MILLS OAKLEY