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

[2016] AATA 49

Parkinson and Secretary, Department of Social Services (Social services second review) [2016] AATA 49 (2 February 2016)

Division	GENERAL DIVISION
File Number	2015/2247
Re	Julie Parkinson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	2 February 2016
Place	Sydney

The decision under review is set aside. Ms Brady (nee Parkinson) qualified for Disability Support Pension on 19 January 2015. The matter is remitted to the Secretary to determine the amount of pension that is payable.

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

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – conditions affecting lumbar spine, pelvis, hips and lower limbs – chronic pain - rating of impairments – singular assessment of multifactorial and common impairments - meaning of ‘severe impairment’ – impairments attract a rating of 20 points under a single Impairment Table – continuing inability to work – decision set aside and remitted

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, ss 41, 42, Sch 2

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

Mr S. Webb, Member

2 February 2016

1. Julie Brady claimed Disability Support Pension (DSP). Her claim was rejected. She applied for review but, so far, the decision to reject her claim has been affirmed. Unhappy with this result, she has applied for review by this Tribunal.

   ISSUES

2. Her DSP claim is to be assessed under s 94 of the Social Security Act 1991 (the Social Security Act). For the claim to succeed, it must be established that Ms Brady has –

   (a)a physical, psychological or mental impairment;

   (b)the impairment or impairments must attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination);

   (c)a continuing inability to work.

3. In respect of a continuing inability to work, if it is established that Ms Brady does not have a ‘severe impairment’ under s 94(3B), being an impairment attracting 20 points under a single Impairment Table, it must be established that she has ‘actively participated in a program of support’ as defined by s 94(5) and that she has met the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Active Participation Determination).

4. Under s 41, s 42 and Pt 2 of Sch 2 of the Social Security (Administration) Act 1999 (the Administration Act), if Ms Brady is found to have met the qualification criteria on 19 January 2015 (the day on which she lodged her claim for DSP) or within 13 weeks thereafter (the qualification period), Ms Brady’s ‘start day’ for DSP will be 19 January 2015. If the qualification requirements are not met within this period, DSP will not be payable and her claim must fail.

   IMPAIRMENTS

5. The reports of Dr Molnar and Dr Soodin, treating general practitioners, the specialist report of Dr Khan, a surgeon, and other medical and physiotherapy reports establish that Ms Brady has chronic pain as result of lumbar spine lesions at L3-4 and L4-5, and a degenerative condition affecting her pubic symphysis and sacro-iliac joints.

6. The report of LeRoy Onuoha, treating clinical psychologist, establishes that Ms Brady suffers from Major Depressive Disorder and from Panic Disorder without Agoraphobia.[1]

   [1] Exhibit 3.

7. The conditions affecting Ms Brady’s hips, pelvis and lumbar spine cause her to suffer from chronic pain and result in functional impairment of her lower limb function, her spinal function and her functional capability to perform activities requiring physical exertion or stamina.

8. The first test for DSP under s 94(1)(a) is satisfied.

   IMPAIRMENT RATINGS

9. On review of the medical evidence, Ms Brady has the following conditions –

   (a)lesions at L3-4 and L4-5 in her lumbar spine;

   (b)degenerative osteoarthritis and instability affecting her pubic symphysis and sacro-iliac joints;

   (c)degenerative changes in her left and right hips resulting in a labral tears and in left gluteus tendinitis, adductor tendinitis and trochanteric bursitis;

   (d)Major Depressive Disorder; and

   (e)Panic Disorder without Agoraphobia.

10. Ms Brady has chronic pain affecting her lower back, pelvis and hips.

11. The function of Ms Brady’s lower limbs, spine and her capability to perform activities requiring physical exertion or stamina is impaired.

12. The Secretary’s representative informed me that it is accepted that Ms Brady’s lumbar spine, pelvis and left hip conditions are ‘permanent’ for the purposes of the Determination. I think that this is consistent with the medical evidence and the preferable conclusion. Ms Brady has obtained treatment for these conditions, including guided injection of steroids to affected parts of her lumbar spine, without enduring relief from her debilitating symptoms. I understand that Ms Brady has rejected further surgical intervention (in the form of a left hip arthroscopy) as she believes it is too risky to undergo at this point, pending a full hip replacement at some point in the future. There is no treatment proposed or planned that is likely to improve these conditions or the resulting impairments. The conditions affecting her lumbar spine, pelvis and hip are degenerative and it is probable that her condition and functional impairments will worsen over time. The evidence of Dr Khan and her treating doctors is sufficient to establish that impairments resulting from these conditions are likely to persist for at least two years, and in all likelihood these may become worse as her conditions progress, causing further deterioration in affected parts.

13. The Secretary submitted that Ms Brady’s psychiatric conditions were not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’. Ms Brady’s evidence is that in 2012 she consulted Dr Naaz, a psychiatrist, and she obtains ongoing treatment from Mr Onuoha.

14. The Impairment Tables Determination sets out rules that must be applied when rating impairments. Section 6(9) provides that –

    There is no Table dealing specifically with pain and when assessing pain the following must be considered:

    (a)       acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)       chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c)       whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

15. Sections 10(5) and (6) provide that –

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.

16. Sections 11(2) and (3) provide that –

    (2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.

    Descriptors involving performing activities

    (3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

17. Ms Brady’s evidence is that her functional capability to perform activities of daily living, such as cleaning, gardening, shopping, sleeping, walking, standing and sitting are severely limited by pain. Her evidence is that her conditions have not become worse since January 2015, but the chronic pain she experiences is gradually worsening over time. She told me that she can shower and toilet herself, but she cannot have a bath and she relies on her husband to be in close proximity when she showers in case she falls (she told me that her left leg is prone to give way). She can dress herself, but she cannot put on socks or tie up shoe laces. She can sit for five to 10 minutes without having to move, but if she sits for more than 10 minutes she is compelled to move around in the chair to counter increasing pain. She told me that if she can move around, she might be able to cope with sitting for up to 15 minutes, but not comfortably. She explained that moving is an important strategy for managing pain – after 45 minutes in bed, she needs to get up to move around; after 10 to 15 minutes standing, she needs to move or walk; after 15 to 20 minutes moving or walking, she will need to sit down or lie down. She told me that she can get into and out of a car by herself, but only by using crutches. She uses crutches frequently, including at home on bad days. She is not able to lift her grandchildren or to bend to cuddle them – this is only possible when she is sitting in her special chair, an adjustable recliner.

18. Ms Brady explained that she manages pain using opioid and other medications prescribed by her treating doctors. Generally, she uses 75mg Morphine patches that last for two or three days, and she uses Endone and Panadeine Forte for breakthrough pain. She told me that she changes patches in the late afternoon in order to improve her opportunity to sleep. The patches mask her pain symptoms to variable degrees, but they cause her to experience cognitive and other side effects, including nausea. If she pushes on with activities while the pain is masked, she suffers the next day with increased levels of pain.

19. In respect of household chores, she told me that she can lift and do things at “arm height” – she is able to prepare a meal in stages, working on the kitchen bench; she is able to hang washing on a special washing line at waist height, but only if her husband or her mother places the washing on a chair next to the line. She is not able to vacuum, sweep, clean toilets or the bathroom. She cannot make beds or wash clothes or stack the dishwasher. She cannot garden, even though this was something she previously enjoyed.

20. She is able to use crutches to enter a shopping centre, and to mobilise around a supermarket. She told me that she relies on her mother to accompany her shopping. Ms Brady’s evidence is that her mother pushes the trolley (one with a high deck) and lifts things in and out of it, although Ms Brady told me that she can lift things at arm level, such as a bag of sugar. Her mother conveys the shopping through the checkout and into the car, and from the car into the kitchen at home, where Ms Brady puts away items that she can place at arm height, but not otherwise.

21. Ms Brady’s evidence was largely unchallenged and I accept it. Her accounts of disabling pain symptomatology and restrictions on her activities of daily living are supported by the assessments of Dr Khan, Dr Soodin and Dr Molnar.

22. On 27 March 2014, Dr Molnar reported that Ms Brady “has difficulty standing or sitting even for a short period of time”.[2]

    [2] T9 folio 99.

23. On 21 January 2015, Dr Soodin report that Ms Brady had “severe limitations of activities of daily living” and that she “has significant problems with mobility, impairment of activities of daily living”.[3] The doctor reported on 28 February 2015 –

    “She is unable to perform normal household duties and is unable to sit, stand or walk for any length of time. She is unable to lift at all and should never be in a situation where it might be problematic for her”.[4]

    [3] T14 folios 137 and 138.

    [4] T17 folio 152.

24. On 20 April 2015, Malavika Srinath, treating physiotherapist, reported “Moderate-severe restrictions in active ROM” in Ms Brady’s lumbar spine and hips, noting –

    “Lifting capabilities: Assessment was unable to be completed due to patient’s significant pain levels.

    Current postural tolerances are as follows:

    Sitting – 15 minutes maximum

    Standing – 5 minutes maximum

    Walking – 15 minutes maximum

    It is my recommendation that patient continue to mobilise with two canadian crutches to promote more even weight-bearing through bilateral lower limbs”.[5]

    [5] T21 folios 160-161.

25. On 20 May 2015, Dr Khan reported –

    “She has constant pain in the lower back, sitting tolerance is only 10-15 minutes, standing tolerance is approximately 10-15 minutes and walking tolerance is approximately 15-20 minutes. Lifting tolerance is only approximately 2 kg. Her sleep is quite disturbed and she manages to sleep only for approximately 45 minutes at a time due to pain. She has to get out of bed and walk around due to pain.

    Left leg: Pain radiates from the back down the left leg.

    Pelvis: She has pain in the pubic symphysis.

    Left hip: She has pain in the left groin and restricted movement of the pelvis…

    Capabilities/ADL She is only able to drive for short distances. She does very minimal house chores and her husband, mother and children help with the housework. She does not do any gardening or lawn mowing…

    …

    Considering the severe limitations in respect of your client’s tolerances in relation to standing, sitting and walking and adverse side-effects of pain relieving medications, it is highly unlikely that she could suitably gain regular, sustainable, sedentary employment…”[6]

    [6] Exhibit 1 pp 3 and 7.

26. On 21 October 2015, Dr Soodin reported –

    “Julie is unable to sit, stand, lift or walk any length of time due to worsening degeneration…”[7]

    [7] Exhibit 2.

27. In addition, it is quite clear from the evidence before the Tribunal that Ms Brady suffers from impairments in the form of loss of range of motion in her lumbar spine and in her lower limbs.

28. I am satisfied that Ms Brady’s lumbar spine, bi-lateral hip and pelvic conditions cause functional impairments in respect of activities requiring physical exertion and stamina, lower limb functions and spinal functions. Even though an impairment may be attributable to more than one ‘condition’, each impairment cannot be assessed more than once under the Impairment Tables. Impairments resulting from chronic pain must be assessed under the Table relevant to the area of function affected.

29. While the impairment of Ms Brady’s lower limb function might be assessable under Table 3 and the impairment of her spinal function may be assessable under Table 4, her functional impairment when performing activities requiring physical exertion may be assessed under Table 1. This is so because the functional impairment Ms Brady experiences as a result of her degenerative pelvic condition, including instability in her pubic symphysis and related chronic pain, is not amendable to assessment under Tables 3 or 4 – Table 3 is expressly confined to functional impairment of the lower limbs, which ‘extend from the hips to the toes’, whereas Table 4 is squarely addresses functional impairments of spinal function. It is quite clear on the evidence of her treating doctors and Dr Kahn that she suffers from chronic pain that is not amenable to curative treatment and the chronic pain severely limits her functional capacity to undertake normal daily activities that require physical exertion or stamina.

30. On 10 August 2015, Dr Turner, a general practitioner employed by the Department of Human Services Health Profession Advisory Unit, prepared a report for the Secretary.[8] Dr Turner did not examine Ms Brady. He did not assess impairment of Ms Brady’s function performing activities requiring physical exertion or stamina under Table 1. Impairment of this kind was not assessed in the Job Capacity Assessment reported by ‘Michael’, a registered occupational therapist, on 17 February 2015.[9] Presumably, Dr Turner and ‘Michael’ considered that Ms Brady’s impairments were appropriately and adequately assessed under Tables 3 and 4. I do not agree, as doing so does not properly assess the functional impact of impairments caused by Ms Brady’s pelvic condition and her chronic pain, namely functional impairment when performing activities that require physical exertion or stamina.

    [8] Exhibit 4.

    [9] T15.

31. Having regard to the relational rating descriptors in Table 1, I am satisfied that Ms Brady’s pelvic condition and related chronic pain have a severe functional impact on activities requiring physical exertion or stamina. She usually experiences symptoms when performing light physical activities and, due to this, “[s]he is unable to perform normal household duties”[10] she has “difficulty in carrying out activities of daily living”.[11] Consistent with the assessment of her treating doctors and Dr Khan, she told me that she is unable to perform day-to-day household activities, including light activities that cannot be done at arm height (such as light cleaning, putting away laundry, or light gardening), and that require more than a few minutes of activity (such as preparing meals – although this activity may be possible in short bursts, with breaks in-between). On the evidence of Dr Molnar, Dr Khan and Dr Soodin she is likely to have difficulty sustaining work-related tasks of a sedentary nature for a continuous shift of three hours.

    [10] T17 folio 152.

    [11] Exhibit 1, p 6.

32. I am not persuaded that there is an extreme functional impact because Ms Brady is able to perform some, limited activities requiring physical exertion and she does not, generally, require assistance to move around her home. Nor am I persuaded that there is a mild or moderate functional impact – Ms Brady’s functional impact is not within the rating criteria at these levels: she is not able to change sheets on a bed or to sweep paths and she is not able to perform work-related tasks of a clerical, sedentary or stationary nature that do not require a high level of physical exertion. The medical evidence is very clear on this point.

33. Accordingly, I am satisfied that Ms Brady’s functional impairment in respect of activities requiring physical exertion is appropriately assigned a rating of 20 points under Table 1.

34. In respect of the impairment of Ms Brady’s lower limb functions, the Secretary maintains that her impairment is at the moderate level, attracting a rating of 10 points. I think that this is correct. Nevertheless, I think that the impairment of lower limb function is primarily related to chronic pain and to a lesser degree, loss of range of motion in the hips. For this reason, and to ensure that the same impairment is not assessed twice, I am reasonably satisfied that the assessment of impairment under Table 1 subsumes the assessment of lower limb function under Table 3 – I would not allocate an additional 10 points for lower limb impairment under Table 3.

35. The impairment of Ms Brady’s spinal function is to be assessed under Table 4. The Secretary accepts that Ms Brady’s spinal impairment is at the moderate level and it attracts a rating of 10 points under this Table. This is only partly consistent with the present evidence, but considering the relational rating criteria, it is probably correct. Ms Brady does not meet the mild functional impact criteria. She is not able to sit in or drive a car for 30 minutes (moderate functional impact criterion). She is generally unable to sit for more than 10 minutes (severe functional impact criterion), but she can do so up to 15 minutes if her pain is not bad and she is able to move. She is unable to bend or twist her trunk to complete basic daily activities such as having a bath, putting on socks and tying shoe laces, or doing light household chores (extreme functional impact criterion).

1. On balance, I think that a rating of 10 points under Table 4 may be appropriate. Nevertheless, it is not appropriate to assess the same impairment twice under different Tables. While Ms Brady has spinal lesions at the L3-4 and L4-5 levels in her lumbar spine, and these impair her spinal function, it appears to me that her functional impairments are multifactorial. I am not able to distinguish the degree of functional impact in her spine, in relation to bending and twisting for example, from the impact of chronic pelvic pain on her function performing activities that require physical exertion or stamina. While impairment of the range of motion of Ms Brady’s lumbar spine should attract a rating under Table 4, I think it is not appropriate to do so in the particular circumstances of her case as to do so may involve double counting impairments that have been assessed under Table 1. This is not permissible under the rules governing application of the Tables.

2. In sum, therefore, I am satisfied that Ms Brady’s lumbar spine, bi-lateral hip and pelvic conditions result in impairments of her function performing activities requiring exertion, her lower limb function and her spinal function. These impairments are multi-factorial and, to a degree, combined, being mediated by chronic pain as well as by physical pathology in affected body parts. Separate assessment of lower limb and spinal functional impairments under Tables 3 and 4 does not properly include functional impairments resulting from Ms Brady’s pelvic condition. The preferable approach is to assess the functional impact of her impairments resulting from her pelvic condition and chronic pain under Table 1, effectively subsuming ratings that otherwise might be appropriate under Tables 3 and 4. I am mindful that aspects of Ms Brady’s lower limb and spinal impairments relate to loss of range of motion in her lumbar spine and in her hips. However, I am reasonably satisfied that these functional impacts are appropriately addressed in the impairments I have assessed under Table 1 in respect of her pelvic condition and her chronic pain.

3. It follows that Ms Brady meets the second essential criterion for DSP under s 94(1)(b) of the Social Security Act – her impairments attract a rating of 20 points under the Impairment Tables.

   CONTINUING INABILITY TO WORK

4. For the purposes of s 94(1)(c), a person has a continuing inability to work if the requirements of s 94(2) are satisfied –

   (2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)  in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a)  in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)  in all cases—either:

   (i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)  if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

5. A ‘severe impairment’ under s 94(3B) is an impairment that attracts a rating of 20 or more points under a single Impairment Table. Ms Brady meets this test – she has a ‘severe impairment’.

6. On the evidence of Dr Khan, Dr Soodin and Dr Turner, I am satisfied that this impairment is sufficient to prevent Ms Brady from undertaking any work within the next two years, independently of a program of support.

7. It is possible that Ms Brady could undertake a training program, if the program was tailored to accommodate her impairment and related limits on activity. But this would not assist Ms Brady into work – Ms Brady is well qualified for work; her difficulty doing any work is the functional impairment she suffers as a result of the pelvic and chronic pain conditions that afflict her and no amount of training is likely to overcome this hurdle. Dr Soodin’s evidence suggests that a program of support would not assist Ms Brady into employment.

8. That being so, I am satisfied that Ms Brady satisfies the tests set out in s 94(2) in respect of a ‘continuing inability to work’ for the purposes of s 94(1)(c) of the Social Security Act.

9. It follows that she meets the third essential requirement to qualify for DSP.

   CONCLUSION AND DECISION

10. Ms Brady meets the requirements for DSP as of 19 January 2015.

11. This means that the decision under review must be set aside. It is necessary to remit the matter to the Secretary to calculate the amount of DSP that is payable to Ms Brady.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated 2 February 2016

Date of hearing	11 January 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services