Niemann and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 27

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2427

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JACKALENE NIEMANN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date19 January 2012

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY –  disability support pension – whether medical condition had been fully investigated, treated and stabilised during the qualification period – lengthy hospital waiting lists – no evidence as to proposed treatment during qualification period – decision under review affirmed

Social Security Act 1991 – s 94, Schedule 1B

Social Security (Administration) Act 1991 – Schedule 2, Clause 4(1)

Coates and Secretary Department of Employment and Workplace Relations 2006 AATA 938

REASONS FOR DECISION

19 January 2012 Ms A F Cunningham (Senior Member)   

1.      The applicant, Jackalene Niemann, has appealed against a decision of the Social Security Appeals Tribunal (SSAT) dated 2 June 2011 which affirmed a Centrelink decision rejecting her claim for disability support pension (DSP).

2.      Ms Niemann claimed that she suffered chronic low back pain and bilateral sciatica related to lumbar spine degeneration and spinal canal stenosis which prevented her from working.  The SSAT affirmed Centrelink’s decision finding that Ms Niemann failed to satisfy the qualification requirements for DSP on the basis that within the qualification period, her medical condition had not been fully investigated, treated and stabilised and thus no impairment rating could be assigned.

3.      Ms Niemann asked the Administrative Appeals Tribunal to reconsider the decision under review in accordance with a provision in the Guide to the Impairment Tables that was cited in the decision of the SSAT.  The provision refers to the  situation where a person has been placed on a long waiting list for surgery and has been advised that the surgery will not occur for at least 18-24 months.  In such circumstances it may be appropriate to assign a permanent impairment rating and reassess the situation in two years. 

4.      Ms Niemann contended that she had been placed on a waiting list initially for a medical consultation at the Royal Hobart Hospital and then subsequently for elective surgery. 

5.      Ms Niemann also rejected the various Job Capacity Assessment Reports regarding her ability to work. 

6. The qualification provisions for DSP are found within section 94 of the Social Security Act 1991 (the Act). The essential elements are:

(a)      The person has a physical, intellectual or psychiatric impairment;

(b)The person’s impairment is 20 points or more under the Impairment  Tables;

(c)       The person has a continuing inability to work.

7.      There was no dispute about the remaining qualification provisions regarding age and residency.  Nor was the impairment as diagnosed by Ms Niemann’s treating doctor of chronic low back pain and bilateral sciatica in issue. 

8.      The Job Capacity Assessor reported on 19 January 2011 that whilst she considered Ms Niemann’s condition as fully diagnosed, it had not been fully treated and stabilised. 

ISSUES

9.      The issues for the Tribunal to determine are:

(1)      Was Ms Niemann’s condition fully treated and stabilised?

(2)Whether the impairment is rated at 20 points or more under the impairment rating?

(3)      Did Ms Niemann have a continuing inability to work?

QUALIFICATION PERIOD

10.     Schedule 2, Clause 4(1) of the Social Security (Administration) Act 1991 provides that if a person is not qualified on the date of a claim, but becomes so qualified within 13 weeks from the day the claim is made, the claim is taken to be made on the first day the person became qualified.  This period had been referred to as the qualification period which in this case is from 29 December 2010 to 30 March 2011. 

IMPAIRMENT RATING

11. The Impairment Tables referred to in section 94(1)(2) of the Act are contained in Schedule 1B. The Introduction to the Impairment Tables provides guidance on when an impairment rating can be assigned.

12.     Paragraph 4 of the Introduction states:

a rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step thus is to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.

Paragraph 5 of the Introduction states:

the condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.

13.     Also of relevance is paragraph 6 of the Introduction which states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·           what treatment or rehabilitation has occurred;

·           whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

14.     In this context, reasonable treatment is taken to be:

·           Treatment that is feasible and accessible ie available locally at a reasonable cost;

·           Where a substantial improvement can be reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patients.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

15.     The Tribunal discussed the concept of permanence in its decision Coates and Secretary Department of Employment and Workplace Relations 2006 AATA 938 and said at paragraph 22:

“The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.”

WAS MS NIEMANN’S CONDITION FULLY TREATED AND STABILISED?

16.     It was submitted by the Secretary that during the qualification period, Ms Niemann’s chronic condition of chronic low back pain and bilateral sciatica could not be assigned an impairment rating as it was not fully treated and stabilised because investigations and treatment options were still being actively pursued. 

17.     Reference was made to Dr Robert White, Treating Doctors Report, dated 31 December 2010, in which he stated that the diagnosis was presumptive and that Ms Niemann was awaiting neurosurgical specialist review and an MRI scan.  The current treatment consisted of analgesia and manipulative therapy by an osteopath with future/planned treatment being dependent on the outcome of an MRI and neurosurgical review.  As to Ms Niemann’s ability to function within the next two years, the doctor stated that the prognosis was dependent on further investigation and ticked the boxes for deteriorate, fluctuate and uncertain. 

18.     On 21 March 2011 Dr White wrote in a report that an MRI confirmed that Ms Niemann was suffering from severe structural problems in her lower spine, that the condition is permanent and that symptoms were likely to deteriorate without surgery.  Further, that surgical treatment is likely to be considered but a long term benefit could not be guaranteed. 

19.     In his medical certificate of 12 May 2011 Dr White stated that Ms Niemann requires specialist neurological assessment and possible surgery.  Prognosis was uncertain until this had been concluded.  With regard to treatment he reported analgesia, walking stick, awaiting appointment at neurosurgical clinic RHH.

20.     Tendered in evidence was a Waiting List Confirmation from the Royal Hobart Hospital advising that as from 29 August 2011 Ms Niemann’s name had been placed on the IP Elective Surgery waiting list as a clinical 1 priority patient.  In a subsequent letter dated 18 October 2011 from the Department of Neurosurgery, it was advised that no date had been set for Ms Niemann’s surgery but that she was on a wait list for surgery as a category 2 patient and had been for approximately 50 days.  As a category 2 patient it was not expected that Ms Niemann would be offered a date for surgery for many months.

21.     Ms Niemann gave evidence before the Tribunal. It was her evidence that she had suffered from back pain for a number of years.  She tendered a document from the Royal Hobart Hospital Clinic – Pain Management dated 10 November 2008 which stated that she had been prone to back pain since the age of 18 which had been recently aggravated by heavy lifting and by being butted by a ram.  Her medical history was noted, however, there were no references to chronic lower back pain prior to 2008.  No other treatment was indicated apart from medication.

22.     It was Ms Niemann’s evidence that in October 2010 she was asked by her general practitioner whether she could afford to pay for an MRI as this would place her higher up the waiting list for surgery.  She was not able to raise the required $200.00 until December 2010 and she was not able to have the MRI until February 2011.  She contended that the MRI had evidenced a deterioration in her condition over the previous three years.  Ms Niemann tendered a letter from Dr White addressed to Centrelink and dated 21 November 2011 stating that  Ms Niemann had been referred to the Neurosurgical Clinic at the Royal Hobart Hospital, that surgical treatment was likely to be considered but a long term benefit could not be guaranteed.  Further that Ms Niemann has been completely incapacitated for any form of employment since at least 29 December 2010 and would remain so for the foreseeable future. 

23.     Ms Niemann stated in evidence that she had been on a waiting list for some three years in order to get an appointment to see a specialist at the RHH.  Out of frustration her doctor suggested that she have an MRI performed so that she could advance in the waiting list.  She did not see a specialist at the RHH until late 2011.    Ms Niemann contended that the JCA report was inaccurate and that incorrect conclusions had been drawn about her work capacity and aspirations.  She disagreed that she had limited transferrable skills and referred to her current quail egg production business and her plans and aspirations to increase production once she has recovered from her back surgery and been able to install appropriate infrastructure. 

CONSIDERATION

24.     It was Ms Niemann’s evidence that she had been on a waiting list to see a neurosurgical specialist at the RHH since 2008.  She provided no confirmatory evidence of this and nor does the RHH Pain Management document of 10 November 2008 suggest that she had been placed on such a waiting list.  No evidence was provided by her treating doctor, Dr White.  In a letter from the rehabilitation consultant/psychologist to the applicant dated 2 December 2011, it is stated that the consultant had contacted Dr White who advised that he was awaiting further advice from a specialist neurosurgeon at the RHH prior to making any referrals for pain management, physiotherapy or an exercise program.

25.     Even if the Tribunal accepted that Ms Niemann had been on a waiting list to see a neurological specialist, there is no evidence that any treatment was prescribed or proposed during the qualification period.   The evidence regarding her condition during the qualification period is that any future treatment was dependent on the outcome of an MRI and neurosurgical review, according to Dr White.  As at the date of his report on 31 December 2010 even her diagnosis was stated to be presumptive.  The effect of the condition was uncertain within the next two years and the prognosis of this was dependent on further investigation.  The letter from Dr White of 21 March 2011 confirmed the diagnosis consequent upon the MRI scan and stated that symptoms were likely to deteriorate without surgery.  On 12 May, which is outside the qualification period, the treating doctor wrote that Ms Niemann was awaiting an appointment at the Neurosurgical Clinic.  Treatment at that stage had still not been assessed or considered.  It appears that Ms Niemann was not assessed by a neurosurgical specialist until August 2011 when she was placed on the IP Elective Surgery waiting list.   

26.     A condition can only be accepted as being permanent once it has been diagnosed, treated and stabilised.  A condition may only be considered fully stabilised if it is unlikely that there will be any significant functional improvement with or without reasonable treatment within the next two years. 

27.     In the absence of evidence that during the qualification period, it was unlikely that there would be any substantial improvement in Ms Niemann’s condition with or without medical treatment within the next two years, the Tribunal is unable to find that the condition was permanent such as to attract an impairment rating.  The SSAT’s reference to the Guide referred to above refers to a treatment procedure being delayed because of a hospital waiting list.  In this case no treatment procedure had been considered or prescribed within the qualification period. 

28.     In the absence of any evidence as to proposed treatment for Ms Niemann’s condition either at the time of lodgement of her claim or within the qualification period, the Tribunal is unable to assign an impairment rating in accordance with the Impairment Tables. 

29.     The Tribunal accordingly affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed: R Hunt -  Associate

Date/s of Hearing  9 December 2011
Date of Decision        19 January 2012
Solicitor for the Applicant               Applicant on her own behalf
Counsel for the Respondent          Mr Brian Sparkes

Solicitor for the Respondent           Program Litigation & Review Branch