Payne and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1001
•27 May 2019
Payne and Secretary, Department of Social Services (Social services second review) [2019] AATA 1001 (27 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1594
Re:Gregory Payne
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:27 May 2019
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 – physical, intellectual or psychiatric impairment – whether medical conditions fully diagnosed, fully treated and fully stabilised during the assessment period - whether an impairment rating of 20 points or more existed under the Impairment Tables - decision under review affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011
REASONS FOR DECISION
Senior Member B J Illingworth
27 May 2019
INTRODUCTION
This is an application by Mr Gregory Payne (“the Applicant”) to review a decision of the Administrative Appeals Tribunal (“AAT1”) dated 22 February 2018, affirming the decision of an Authorised Review Officer (“ARO”), namely that the Applicant did not have a combined total impairment rating of 20 points with respect to a number of medical conditions, and hence was not entitled to receive a Disability Support Pension (“DSP”).
In this application, the Applicant appeared by telephone unrepresented. The Respondent was represented by Ms Lee-Anne Odgers.
The hearing commenced on 18 December 2018. The Applicant gave evidence and was cross-examined. The hearing was then adjourned to enable the Applicant to adduce further medical evidence, including that with respect to his mental health conditions and referable to the qualification period, to present such expert evidence at the next hearing, together with arranging for his treating medical practitioner, Dr Parry, to give evidence and be cross-examined. The hearing resumed on 2 May 2019.
The T Documents[1] and Supplementary T Documents[2] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence together with the following exhibits:
(1)Letter of Dr Parry dated 30 August 2018;[3]
(2)Report of Dr Parry dated 18 February 2019;[4]
(3)Letter of Dr Lehman dated 19 February 2019;[5]
(4)Statement of Lynette Johnsson dated 30 April 2019;[6] and
(5)Program of Support Calculation.[7]
[1] Exhibit R1.
[2] Exhibit R2.
[3] Exhibit A1.
[4] Exhibit A2.
[5] Exhibit A3.
[6] Exhibit A4.
[7] Exhibit R3.
BACKGROUND
The Applicant lodged a claim for DSP on 10 April 2017.[8] Centrelink rejected that application in a decision dated 27 June 2017, on the basis that the Applicant did not achieve a total of 20 points under the Impairment Tables.
[8] Exhibit R1, T Documents, pages 132 – 163.
On 27 June 2017, the Applicant sought an internal review of that decision by an ARO, who affirmed the decision on 18 September 2017.[9] The ARO made the following findings:
(1)The Applicant’s ischaemic heart disease attracts 10 impairment points under Table 1 – Functions requiring Physical Exertion and Stamina;
(2)The Applicant’s neck and back arthritis and chronic pain attracts 5 impairment points under Table 4 – Spinal Function;
(3)For the Applicant’s shoulder pain, obstructive sleep apnoea, gastro-oesophageal reflux, dermatitis, colon polyps, arthritis – right hand, carpal tunnel syndrome, and left plantar fibroma/plantar arch region, there was either insufficient medical evidence such that the conditions could not be considered fully diagnosed, treated and stabilised or the conditions could not be considered permanent, and therefore could not attract an impairment rating; and
(4)The Applicant’s gastro-oesophageal reflux and colon polyps are conditions which, on the evidence, were fully diagnosed, however there was insufficient evidence for the conditions to be considered fully treated and stabilised.
[9] Ibid, pages 12 – 18.
On 25 September 2017, the Applicant applied to the AAT1 for a review of the ARO’s decision. That application was first heard on 16 January 2018. The AAT1 adjourned the hearing for four weeks to allow the Applicant the opportunity to provide further medical reports. On 22 February 2018, the AAT1 affirmed the decision under review.[10]
[10] Ibid, pages 3 – 11.
The AAT1 also considered whether the Applicant had an entitlement for an assessment with respect to a depressive condition as at the time of the filing of the DSP claim or within the 13 weeks thereafter (“the Qualification Period”). That Qualification Period was 10 April 2017 to 10 July 2017. A Centrelink document[11] headed “Verification of medical condition(s)” signed by Dr Parry and dated 24 March 2014 referred to three medical conditions, namely ischaemic heart disease/myocardial infarction, obstructive sleep apnoea, and depression with onset dates of 2010, March 2014, and 2011, respectively. Hence, there was some independent evidence at the time of the hearing before the ARO and AAT1 of a mental health condition.
[11] Ibid, pages 167 – 168.
In assessing the Applicant’s claim for depression the AAT1 noted that, by referral from Dr Parry dated 31 July 2017,[12] depression is listed in the Applicant’s past medical history. The AAT1 also noted that a report from mental health clinician, Lesley Porter, dated 22 January 2018[13] stated the Applicant suffers from anxiety, depression, severe stress and social phobia. The AAT1 correctly noted that the introduction to Table 5 – Mental Health Function states the following:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
[12] Exhibit R2, Supplementary T Documents, pages 44 – 45.
[13] Ibid, pages 3 – 4.
Because there was no report from a psychiatrist or clinical psychologist before the AAT1, it was decided that the Applicant’s mental health conditions were not fully diagnosed, treated and stabilised, and so did not attract an impairment rating.
On 10 March 2017, the Applicant applied[14] to the Administrative Appeals Tribunal for second tier review (“AAT2”) of the AAT1’s decision.
[14] Exhibit R1, T Documents, pages 1 – 2.
ISSUES
The issue for the AAT2 is whether the Applicant was qualified to receive DSP under s 94 of the Social Security Act 1991 (“the Act”).
The AAT2 must assess whether, during the Qualification Period, the Applicant:
(a)had a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act; and if so
(b)had an impairment rating of at least 20 points under the Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011 (“the Determination”) in accordance with s 94(1)(b) of the Act; and if so
(c)had a continuing inability to work in accordance with s 94(1)(c) of the Act; and
(d)has actively participated in a program of support with respect to preparing for or gaining employment if he does not have a significant impairment.
The Applicant has completed the program of support in accordance with the legislation. Accordingly, the issue for the AAT2 is whether the Applicant satisfies criteria (a) to (c) above.
THE LEGISLATIVE FRAMEWORK
The relevant statutory provisions for the purpose of this application are contained in the Act and the Social Security (Administration) Act 1999 (“the Administration Act”).
The legislation relating to qualification for DSP and the reference to the Impairment Tables is set out in the provisions of s 94(1) of the Act, which relevantly reads:
94 Qualification for Disability Support Pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
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.
Section 94(1)(b) of the Act specifically refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination.
“Impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that result from the person’s condition” and “condition” is defined as “a medical condition” pursuant to s 3 of the Determination.
The Determination requires that, for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of ss 6(4), (5) and (6) of the Determination, which relevantly state:
6 Applying the Tables
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and 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; or
(b)The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment
Note: For reasonable treatment see subsection 6(7).
Subsection 6(7) states that for the purposes of subsection 6(6), reasonable treatment is treatment that is:
(a)Available at a location reasonably accessible to the person;
(b)Is at a reasonable cost;
(c)Can reliably be expected to result in a substantial improvement in functional capacity;
(d)Is regularly undertaken or performed;
(e)Has a high success rate; and
(f)Carries a low risk to the person.
The information to be taken into account in applying the Impairment Tables is provided pursuant to s 7 of the Determination:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
Information that must not be taken into account is referred to in s 8 of the Determination and relevantly reads:
8Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
It is important to note that in assessing any medical evidence concerning the functional impact of the Applicant’s impairments provided after the Qualification Period, the reports can only be considered so far as they “cast light on” the functional impact of the impairments as at the Qualification Period.[15]
[15] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
With respect to functional impact, one must appreciate the purpose of the Determination. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5], Senior Member Isenberg helpfully explains the operation of the Impairment Tables in that:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. 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 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
It is also important to only assign a single rating for a common or combined functional impairment, as prescribed by ss 10(5) and (6) of the Determination:
10 Multiple conditions causing a common impairment
(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.
However, if a single condition causes multiple impairments, each impairment should be assigned a rating and assessed under the relevant Impairment Table.[16]
[16] The Determination, s 10(3).
THE EVIDENCE
The Applicant was formerly employed as a rigger and crane driver. That work was physical and required him to occasionally work on offshore oil rigs and building sites. The Applicant described the role of a crane driver as stressful and often requiring him to look up through a glass roof to manoeuvre the crane.
In 2009 and 2010, the Applicant started looking for lighter work. He said he wanted to “step back and smell the roses”. Some jobs he was offered did not suit him. He obtained employment as a street sweeper, however the exposure to dust and pollens that was an inherent part of the work created medical problems associated with his respiratory tract.[17]
[17] Exhibit R1, T Documents, page 165.
The Applicant has had difficulty finding appropriate employment. Any employment that required exertion caused him pain and discomfort particularly associated with his heart condition. Since stopping work as a rigger and crane driver, the Applicant has not held any other employment position for any appreciable length of time.
In respect of potential employment, the Applicant was interviewed for a job more than two years ago as a truck driver at Lonsdale. That work involved driving a truck that had a small crane on the back of it. It was too physical and he could not cope with the work. The Applicant is now considering his employment options. He has applied for a position at Bunnings but that position is dependent upon first getting an interview and then undergoing and passing a medical examination. He went to Bunnings about a week before the first hearing date on 18 December 2018 to follow-up on the position, but no further information was available. The Applicant’s last job application was for a truck driver at a minerals and sand depot. He informed them he had heart issues and, although the Applicant thought he was in the running for the position, they picked a younger, fitter person.
The Applicant has continued to go to APM, his disability employment service, but no suitable employment has been found to date.
Ischaemic Heart Disease
The Applicant has had three operations to implant coronary artery stents. In April 2013, three stents were implanted. In December 2014, one stent was implanted. In March 2015, six stents were implanted. He said he had a scare in 2016 and suffered chest pains in mid-June 2017. His washing machine broke down and he moved it with a trolley whereupon he pulled a muscle in his chest. He called the ambulance and was taken to Flinders Medical Centre. He continues to suffer chest pains and regularly uses a sublingual angina spray. During the Qualification Period, he was using angina spray every second day, sometimes required after activity and sometimes not.
He said that during this time, including during the Qualification Period, he was able to mow the lawn for up to 15 minutes and do light gardening, which he now does not do because he cannot be bothered. He described difficulty with both his mental and physical condition, with low motivation to do anything. He is constantly scared of having a heart attack.
During the Qualification Period, the Applicant was able to sweep the floor but did not do so because he could not be bothered. He said that even when sweeping the driveway he started “puffing like an old man”. During the Qualification Period he did drive, however he no longer drives because he has no money to pay for petrol and registration, and his car needs repair work. He said he would still be able to drive if he had the money to do so.
The Applicant had difficulty walking up and down stairs, becoming short of breath after about five steps. He said he could climb two flights of stairs at Marion Shopping Centre and he did this because he wanted to test himself.
When attending the shops, he would park close to the entrance door. He could still complete his shopping, however about a year ago he started to have panic attacks and felt uncomfortable in shops and with people. He felt like he had a sign on his head which read “all dickheads talk to me”. He said he did not like people in general and that they irritated him, and that he did not like political correctness.
In cross-examination, the Applicant was referred to the Job Capacity Assessment Report with an assessment date of 25 May 2017 (“JCA Report”).[18] At that time, the Applicant was reported to express some of his limitations as follows:
[18] Ibid, pages 116 - 131.
(1)He is able to walk for 20 minutes but then needs to rest;
(2)He can walk from the car park to the shopping centre self-pacing without experiencing chest pain (can experience shortness of breath from heart condition), but experienced chest pain on exertion;
(3)He is able to do shopping, but feels socially anxious when shopping;
(4)He is able to shower and dress without experiencing shortness of breath;
(5)He is able to do light gardening for up to 15 minutes with rests;
(6)He is able to prune for up to 15 minutes/self-monitoring with rests;
(7)He is able to sweep the garden path (self-pacing) for about 15 minutes then rest;
(8)He experiences some difficulty changing his bedsheets (experiences dizziness);
(9)He is able to drive for 30 minutes maximum, but can experience panic attacks (mental health condition) and needs to pull over;
(10)He is able to slowly manage up to two flights of stairs (with shortness of breath) one at a time, and needs to use his Nitrolingual spray;
(11)He is unable to do heavy lifting;
(12)He struggles to do basic household chores, is unable to lift/move or carry items;
(13)He is able to move his head in all directions (with limited pain) but overhead activities are difficult (due to neck limitations);
(14)He is unable to bend to knee level (due to dizziness);
(15)He is able undo the lid of a soft drink bottle;
(16)He is able to tie shoelaces (but bending down for this causes shortness of breath) and lift a light cardboard box with both hands at waist height;
(17)He is able to hold a pencil and is able to write for a short time (10 to 30 minutes);
(18)He is able to lift 1 litre of fluid using two fingers of his right hand but not with his left hand;
(19)He is able to pick up coins from a bench; and
(20)He is able to do the washing and fold and put it away.
The Applicant confirmed that the description in the JCA Report was correct. He confirmed he could hang clothes on the washing line. It was a matter of how he did it that was important. He would put up with the pain. He would do his housework including sweeping the floor and mopping approximately every two weeks. He has no carpets. He does not use a vacuum cleaner because it causes lower back problems.
The Applicant confirmed he cooks and washes the dishes but waits until the sink is full before doing them.
The Applicant was referred to the JCA Report in which said he could not bend to knee level. The Applicant said that he would suffer vertigo in the same manner as if one got out of bed too quickly. It was not his back but dizziness that caused an issue in this respect. Were it not for the dizziness, he could otherwise perform that manoeuvre.
The Applicant said he was taking tablets for his vertigo condition prescribed by Dr Parry approximately one year ago and probably in about July 2017. He confirmed he had not otherwise received treatment for his inner ear condition. He said he is hard of hearing in his left ear.
The Applicant confirmed that at the time of the hearing he could still do his general shopping for items such as butter and milk, but that he now does his shopping at Castle Plaza because he had a run-in with the manager at Marion Shopping Centre and so he no longer goes there. Sometimes he would carry shopping baskets or a carry bag. Occasionally he would have trouble grabbing hold of a can. It is his hand rather than his shoulder and neck that cause this annoying difficulty when shopping. Reaching forward or upwards affects the Applicant’s neck and he may get a person to assist him.
The Applicant described difficulty in his ability to hold a cup. He said he drops a lot of coffee cups. He can pick up coins on a bench by sliding them off the bench one hand to the other. He confirmed he could undo soft drink bottle lids and tie shoelaces, but that bending causes him dizziness. He confirmed he had a smartphone, but that he finds it difficult to use.
Dr Parry also gave evidence by telephone on 2 May 2019.
Dr Parry confirmed the Applicant’s evidence as it related to his ischemic heart disease and that he had a number of stents implanted. She was also referred to the JCA Report and confirmed that the Applicant’s limitations caused by his various health conditions were as described in that report. The occasion when he called an ambulance and was admitted to Flinders Medical Centre was not a heart attack and more likely associated with musculoskeletal pain. However, the Applicant was in need of a further stress test. She confirmed he used his angina spray about two times per week and that he sees a cardiologist and last had a stress test on 4 December 2017. There was no evidence of a new myocardial infarct.
Dr Parry confirmed that the Applicant had been referred to a psychiatrist, Dr Lehman, in 2018. She stated that the Applicant’s medical conditions were impacting upon his mental health and they were strongly linked. She also stated she believes there is a strong link between depression and increased risk of heart attack.
Mental Health Conditions
With respect to his depressive condition, the Applicant said this started about three to four years ago and around the time of his first heart attack. He lost a lot of friends because he could not drink or smoke and could not help them out anymore. He had difficulty obtaining work, was knocked back a lot for employment positions, and was on medication. He no longer sees his friends as often, has no children, and is not partnered.
The Applicant had not been in a relationship at the time of his first heart attack. He said his anxiety and depressive condition were not much fun, and that they were exacerbated by his interaction with Centrelink and the Administrative Appeals Tribunal. He will get angry and has to “bite his tongue” and “try not to lose it”.
The Applicant said that he has been prescribed medication by Dr Parry for his depression, but sometimes does not take it because he cannot afford it. This causes his condition to go downhill.
In cross-examination, the Applicant was referred to the document headed “Verification of medical condition(s)”[19] and the report of Lesley Porter[20] which both reference his mental health conditions. The Applicant was seen by a psychiatrist, Dr McLachlan, on 23 February 2018 and he provided a report[21] of that same date. That report did not address the Applicant’s mental health condition during the Qualification Period but referred to management strategies, including persisting with the current trial of venlafaxine with assessment in two months, cognitive behavioural therapy to provide strategies to manage anger and stress, and prioritising his CPAP machine to improve quality of sleep which currently worsens his depression.
[19] Exhibit R1, T Documents, pages 167 – 168.
[20] Exhibit R2, Supplementary T Documents, pages 3 – 4.
[21] Ibid, pages 64 – 68.
Hence, there was no report from a psychiatrist or clinical psychologist upon which the Tribunal may rely in assessing the Applicant’s entitlement to an impairment rating.
The hearing on 18 December 2018 was also adjourned for the purpose of permitting the Applicant to present evidence from a psychiatrist or clinical psychologist with respect to his depressive condition directed to the Qualification Period.
The Applicant subsequently provided the reports of Dr Parry dated 18 February 2019,[22] Dr Lehman dated 19 February 2019,[23] and a statement from a friend, Ms Lynette Johnsson, which confirmed the Applicant’s personal circumstances.[24]
[22] Exhibit A2.
[23] Exhibit A3.
[24] Exhibit A4.
Dr Lehman confirmed Applicant’s cardiac condition was ongoing and remained unchanged. Ms Johnsson’s statement was uncontentious and was received without objection. Dr Parry’s report was a confirmation of earlier reports received and did not advance the Applicant’s matter any further. However, in respect of the Applicant’s mental health condition she reported as follows:
“As his GP for many years I can confirm that he has chronic depression that only partially responds to good quality psychology and medication as advised by a psychiatrist. His mental health condition is unlikely to improve significantly over the next 2-3 years and he is unable to work due to his symptoms. He has been recommended to see a psychiatrist regularly or a clinical psychologist for further treatment by a worker from centrelink/or their representative. This is not in Mr Payne’s best interest. He has an excellent therapeutic relationship with his funded mental health clinician who has a PhD in counselling (Lesley Porter). She sees a number of my patients and I have great confidence that her assessments are valid and should be accepted by the centrelink process. He was seen by a psychiatrist in the public system last year. The public psychiatrists will only offer one off assessments for public patients. He would need to pay large co-payments to see a private psychiatrist regularly. I think that Mr Payne is being provided excellent mental health care through our general practice in coordination with Ms Lesley Porter and regular psychiatric appointments would only cause a financial strain on his mental health.”
The Applicant confirmed he had not, during the adjournment, pursued a further report from a psychiatrist or clinical psychologist directed to the Qualification Period.
Dr Parry confirmed the Applicant had anger management issues and that there may be a psychological overlay impacting upon his significant impairment. Stress is an added exacerbation.
Dr Parry’s attention was also drawn to the legislative requirement that the Applicant provide evidence from a psychiatrist or clinical psychologist with respect to an assessment of his mental health condition, and in particular directed to the Qualification Period. She confirmed no such report had been obtained.
Musculoskeletal Conditions
The Applicant said that he started having neck and back pain when he was engaging in his physical work as a rigger and crane driver. This was over 10 years ago. He said physiotherapy had not worked.
The Applicant takes painkillers mainly for neck pain. He cannot raise his arm above his left shoulder. As for the back pain, he can put up with it but this condition never gets fixed. He will sometimes go to the physiotherapist if he can afford the $17 gap. He said his condition may flare up even when he is not doing anything or if he tries to walk. Even a twitch will set it off. This was the nature of his condition during the Qualification Period.
The Applicant said that his condition has deteriorated since the Qualification Period but he still cannot afford the $17 gap for physiotherapy consultations, albeit he would like to go three times a week. The Applicant said that he cannot manoeuvre his arms overhead because of his shoulder and neck pain. He had a couple of operations about a year ago without any lasting effect.
In cross-examination, Dr Parry said that the Applicant’s skeletal condition has remained constant. Dr Parry was referred to the Centrelink Medical Report dated 13 April 2017,[25] written during the Qualification Period. She confirmed her assessment of current symptoms of lethargy, low fitness, cardiac condition, angina, and chest pain regularly. She also confirmed the impact on the Applicant’s ability to function, which she opined was contributed to by poor fitness/endurance, inability to do manual work which was the nature of his work in the past, and risk of acute myocardial infarction, as contained in that report. Dr Parry was also taken to the JCA Report and confirmed that the conditions referred to in that report were correct. Dr Parry could not be sure whether the Applicant’s limitations of movement were more to do with back pain or neck and shoulder pain.
[25] Exhibit R1, T Documents, pages 182 – 192.
Dermatitis
The Applicant suffers from dermatitis on his head and chest and this condition interacts with his mental health. He is bald so the condition is clearly visible and embarrassing. It comes and goes but, when necessary, he uses a “special cream”. When the condition appears on his chest it looks like a swarm of mosquitoes has attacked him. He has had this condition for over two years but he puts up with it.
Dr Parry confirmed that the Applicant’s dermatitis affects his head and chest. She described this condition as episodic and varying in severity, and confirmed that it is being treated by her.
The Applicant interrupted Dr Parry and said “I’ve got a bald head. Can’t grow my hair so it sucks”.
Dr Parry also referred to a rash on his feet in April 2017. She commented that the use of gloves, particularly plastic gloves, is not good, but that there was no difficulty from exposure to sunlight, and overall described his dermatitis as mild.
Arthritis
The arthritic condition of the Applicant’s right hand has been a problem since about 1993. During the Qualification Period, he had difficulty holding a coffee cup or plate and had loss of function. He had arthritis cream which he used when required. He said the arthritis and associated pain was present the whole time and was exacerbated during winter. He then would wear gloves.
The Applicant said that he could write with a pen during the Qualification Period, however he had difficulty expressing the impact this condition had on his ability to write. He found it hard to say whether his writing was limited to a maximum of 15 or 30 minutes. He said it was no more than 30 minutes, but that he did not write.
The Applicant described his left carpal tunnel syndrome as affecting the fingers next to his left index finger, which at times can be painful. He said that he saw a specialist and received an injection in the centre of his hand which had a 50% chance of success. This was about one to two years ago. It did not work.
The Applicant described having difficulty lifting and grasping items and said that he can get a sharp pain in his hand on occasions. He said his hand does not sit flat. He acknowledged that he can tie up shoelaces and was able to handle boxes depending upon how he took hold of the box, but that mopping floors can cause a flare-up of his condition. He is not having any further treatment on his hand.
Left Plantar Fibroma/Plantar Arch Region Condition
The Applicant described his left plantar fibroma/plantar arch region as a condition which causes a pinch-like pain on the side of his left foot. The pain is there all the time and his walking is affected. He just tolerates the pain and has stopped walking. He has changed his footwear to “runners”. He is not currently having treatment for this condition.
The Applicant did see a rheumatologist about one and a half to two years ago but has not recently had any further treatment. He saw a podiatrist in an attempt to deal with his feet but he was “ripped off”. He was charged $750.00 for a mould to make implants but the implants made his condition worse and Dr Parry advised him to remove them from his shoes.
Gastro-oesophageal Reflux
The Applicant also suffers from gastro-oesophageal reflux for which he takes tablets daily. This condition affects his breathing, causing tightness of the chest and indigestion. He suffers discomfort for about 20 to 30 minutes on occasions.
Dr Parry said that this condition is managed by medication and diet, but there is still some discomfort. He has been taking medication regularly since 2015 and, since 2017, a further medication has been added to address flare-ups of the condition. He continues under the care of a gastroenterologist.
Obstructive Sleep Apnoea
The Applicant started suffering from obstructive sleep apnoea a few years ago. He would wake up gasping for breath and sometimes would find it hard to sleep. He described thinking that he was sleeping and then waking gasping for air. He cannot sleep on his back or on his stomach. He said that it is hard to tell if the condition has changed, but he thinks it has remained constant.
He described the condition as affecting him almost daily. As a result of this condition, he would walk around like a zombie, walk around in circles, not know what to do next, could not think straight, and would be moody.
The Applicant has consulted specialists and has had tests. The recommendation was that he have a CPAP machine, but he could not afford the cost of $1,800.00.
The Applicant was referred to the report[26] of a sleep physician, Dr Allcroft, who reported that clinical correlation is important to help determine the optimal treatment strategy and a trial of CPAP may be required. Dr Parry said that this report was a standard report and not to read too much into that. Another referral was made in 2017. Dr Parry said this condition had gotten lost in the complexity of the Applicant’s other health conditions and that it was difficult for him to get into the private system. However, she agreed that the CPAP machine is the only aid to this long-term and severe condition given the Applicant is not obese, and so weight loss will not treat the condition.
[26] Ibid, page 243.
Dr Parry was assisting the Applicant to try and get a machine and, on the second day of hearing, the Applicant and Dr Parry confirmed that he was now on a waiting list for a CPAP machine. That wait is approximately a year.
I note that Mr Payne interrupted Dr Parry’s evidence and said that when he initially went through the system it cost too much, he got mucked around, and decided “stuff it”.
Dr Parry referred to the CPAP study in 2018 in which the Applicant slept in a laboratory overnight to determine the correct CPAP mask pressure and other factors impacting upon the introduction of a CPAP machine for which the Applicant is on a waiting list.
Dr Parry confirmed that this condition had an impact upon his fatigue and that there was a combined effect relating to his ischaemic heart disease, sleep apnoea and depression. There were so many conditions affecting the Applicant that his medical condition was complex.
Colon Polyps
In relation to the colon polyps, the Applicant said that he had a colonoscopy. He was diagnosed with pre-cancerous polyps and as a result requires annual checks. However, in between colonoscopies, he is not aware of any problem and has no ongoing disability from that condition.
The colon polyps have no impact on his current daily living and he will continue to have regular check-ups. Dr Parry confirmed that Applicant’s last colonoscopy was in 2017 and that he is due to have a colonoscopy next year.
Closing Submissions
The Applicant described his general medical condition as stressful. He has problems in that he has tried to do things but cannot; nor can he help his family. He is scared of having another heart attack and he has lost friends.
The Applicant said that the system had let him down and messed him around. He said the system was wrong and that’s why he has said “bugger it” and has previously wanted to die. However, he recognises the need to keep calm.
The Respondent relied on the Statement of Facts, Issues and Contentions that was before the Tribunal, but also submitted that the Applicant’s conditions do not attract an assessment of 20 points under the Impairment Tables. The Respondent submitted that there were two conditions that were fully diagnosed, treated and stabilised and attracting an assessment, namely his heart condition and his neck and shoulder condition which were properly assessed at 10 and 5 points respectively.
The Respondent submitted that the JCA Report was an accurate and helpful summary of the Applicant’s various conditions.
The Respondent submitted that the Applicant’s depression was not diagnosed by a psychiatrist or clinical psychologist in the Qualification Period, and that the only evidence of a diagnosis was contained in Dr McLachlan’s report. It was argued, therefore, that condition was not fully diagnosed, treated and stabilised during the Qualification Period, but that if the Tribunal was against that argument, the condition was moderate and ought not to attract more than 10 points under Table 5.
It was submitted there was very little information with respect to the other musculoskeletal conditions.
The Respondent reminded the Tribunal of ss 10(5) and (6) of the Determination. Relevantly here, it was argued that the obstructive sleep apnoea condition and the ischaemic heart disease gave rise to a common or combined assessment and, accordingly, two table assessments cannot be given.
The Respondent submitted that the Applicant’s dermatitis has not been fully diagnosed, treated and stabilised. The Applicant has not been referred to a specialist for this condition. However, Dr Parry stated that the condition is normally dealt with by a general practitioner and that the condition is fluctuating. If found to be fully diagnosed, treated and stabilised, the Respondent reminded the Tribunal of ss 11(4) of the Determination which states that in assessing episodic and fluctuating conditions, a rating must be assigned reflecting the overall functional impact of the impairment taking into account the severity, duration and frequency of the episodes or fluctuations. It was submitted that, having regard to Table 14 – Functions of the Skin – albeit Dr Parry referred to this condition having a mild functional impact which, by that description, would attract five points - there still needs to be factored into the assessment the severity, duration and frequency of the episodes or fluctuations. As there is no evidence to address this, the condition attracts 0 points under Table 14.
As for the gastro-oesophageal reflux, the Respondent submitted this condition had not been fully diagnosed, treated and stabilised, and is controlled with few symptoms. Accordingly, no points could be attributed under Table 10. This condition, it was submitted, was better described as an inconvenience or annoyance.
In respect to the obstructive sleep apnoea, there had been a period of inaction following a diagnosis and only now is something being done to obtain a CPAP machine. It was submitted, therefore, that the condition had not been fully treated and stabilised during the Qualification Period.
The colon polyps were removed in 2014 and there is no evidence of any recurrence. This condition is temporary at best and Dr Parry confirmed there is minimal or no functional impairment and certainly not one that impacts upon the Applicant’s daily living or work capacity.
The Respondent submitted that the Applicant only achieves a total assessment rating of 15 points under the relevant tables.
CONCLUSION
The Applicant’s ischaemic heart disease has been present for a number of years and prior to the Qualification Period. I accept that between April 2013 and March 2015, a number of stents were implanted and that he has continued to suffer chest pain from time to time. I also accept that this condition has had a significant impact upon the Applicant’s mental health, his attitude to others generally, and has impacted upon his functions requiring physical exertion and stamina.
I note that the Applicant and Dr Parry confirmed that the Applicant’s functional ability is correctly detailed in the JCA Report. I have considered the functional impact with respect to Table 1 – Functions requiring Physical Exertion and Stamina, in particular the moderate and severe functional impact which provides as follows:
Points Descriptors 0 There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5 There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) Walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) Performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10 There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20 There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30 There is an extreme functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is completely unable to perform activities requiring physical exertion or stamina; or
(b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.
(2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).
Having regard to the evidence before me as summarised above, I accept that the Applicant suffers from a moderate functional impact for those activities requiring physical exertion and stamina. The Applicant does not meet the severe functional impact criteria and, in particular because of the symptoms he suffered, he has not reached the stage of being unable to perform various functions referred to in (1)(i) – (iv) of the severe category. Nor on the available evidence am I satisfied that the Applicant is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours. I note in the JCA Report the author says:
“The client stated he is able to sit for 10 minutes (observed by the assessor to sit for 80 minutes during the interview). The client was observed to get up unaided from his chair and completion of the interview.”
I am satisfied that the Applicant’s condition was fully diagnosed, treated and stabilised in the Qualification Period and that he attracts 10 points under Table 1.
Similarly, with respect to the Applicant’s neck and back condition, I accept his evidence which is summarised above. The Applicant and Dr Parry confirmed the contents of the JCA Report accurately reflect the Applicant’s limitations during the Qualification Period. I accept that the neck and back conditions were fully diagnosed, treated and stabilised in the Qualification Period and that this condition is properly assessed under Table 4. That table relevantly provides:
Points Descriptors 0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
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.
30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
Based upon the evidence, I accept that the Applicant suffers from mild functional impact. I am not satisfied that the criteria for moderate functional impact were satisfied during the Qualification Period. Accordingly, I am satisfied that 5 points is properly attributed to the Applicant under Table 4.
I am satisfied on the available evidence that the Applicant suffers from a depressive condition which has been impacting upon him for some time, including during the Qualification Period. However, despite being given the opportunity to adduce further evidence of a diagnosis from a psychiatrist or clinical psychologist with respect to the Applicant’s mental health condition during the Qualification Period, no such evidence has been produced.
I am confident Dr Parry’s comments expressing satisfaction with the treatment that she and Lesley Porter provide to the Applicant are well-founded and correct. However, the legislation makes it plain that the Tribunal must receive a diagnosis by an appropriately qualified medical practitioner before making an assessment under Table 5 – Mental Health Function. There is no such evidence before the Tribunal.
Relevant psychiatric evidence is that of Dr McLachlan made on 23 February 2018. It is silent with respect to the Applicant’s mental health condition during the Qualification Period but provides management suggestions for the future treatment of the condition from which I also find that the condition was not fully treated and stabilised in the Qualification Period.
Dr McLachlan’s report may be relevant should the Applicant make a fresh claim for DSP. That report, together with evidence from Dr Parry and Lesley Porter, may assist an assessment being made under Table 5. However, I have not considered the sufficiency of the evidence in that respect.
I agree with the Respondent’s submission that there is very little evidence before the Tribunal with respect to the Applicant’s musculoskeletal condition upon which any assessment under the relevant table can appropriately be made.
As for the Applicant’s dermatitis, I am satisfied that this condition has been ongoing, fluctuating, and was fully diagnosed, treated and stabilised during the Qualification Period. However, I find that this fluctuating condition is treated by Dr Parry when necessary. I accept that the Applicant finds this condition embarrassing and distressing when it flares up, but there is insufficient evidence before me upon which I can accept that the condition can be categorised as having a mild functional impact. I am not satisfied that there is any functional impact on the Applicant in the performance of normal daily activities. Accordingly, 0 points should be attributed under Table 14.
In respect of the Applicant’s arthritic condition to his right hand and his left carpal tunnel condition, there is limited evidence before the Tribunal upon which a finding can be made with respect to these conditions generally and with respect to their impact during the Qualification Period. I do not accept that the conditions are fully diagnosed, treated stabilised. However, based on the evidence, the impact of both conditions is directed to the ability to perform physical acts, including household activities such as vacuuming floors, mowing the lawn, hanging out washing, and carrying objects generally. I have already had regard to these conditions when assessing the Applicant’s assessment under Table 1 – Functions requiring Physical Exertion and Stamina for his ischaemic heart disease. No further assessment under Table 1 should be made. To do so would be to assess the relevant impairment twice.
The Applicant’s left plantar fibroma/plantar arch region condition impacts upon his ability to walk. Again, there is very little independent evidence with respect to this condition and particularly directed to the Qualification Period. I do not accept that the condition is fully diagnosed, treated and stabilised. To the extent that any regard can be had to this condition, it is again to be considered under Table 1 and, for the reasons explained in paragraph 108, a second assessment is not appropriate.
I agree with the Respondent’s submission with respect to the Applicant’s gastro-oesophageal reflux in that it is a fluctuating condition, generally well controlled with few, if any, symptoms, and that it is best described as an inconvenience. I am satisfied no points could be attributed under Table 10 with respect to this condition.
The Applicant’s sleep apnoea condition remains under investigation as the Applicant and Dr Parry have both recognised the treatment of this condition was allowed to lapse. I find that having been tested and it having been determined that a CPAP machine may assist the Applicant with this condition, it is only recently that treatment has now been pursued and the Applicant is now on a waiting list for a CPAP machine. The Applicant’s condition therefore was fully diagnosed at the time of the Qualification Period but not fully treated and stabilised. This will only occur after he has had the opportunity to use the CPAP machine and its consequence can be determined. This condition also impacts upon the Applicant’s mental health condition. Therefore, no points can be attributed under the relevant table with respect to this condition.
I agree with the Respondent’s submission that the colon polyps were removed in 2014, there is no evidence of recurrence, and that this is temporary condition with no functional impairment. This condition gives rise to an inconvenience when the Applicant is required to have an examination, but it has no impact upon his daily living and no points can be attributed to this condition under the relevant table.
Accordingly, I find that, on the evidence before the Tribunal, the Applicant is entitled to a total assessment of 15 points under the Impairment Tables. It is therefore not necessary for me to consider whether, having completed the program of support, he satisfies the criteria of continuing inability to work.
DECISION
The Tribunal affirms the decision under review.
115. I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
.........[Sgnd]................................
Associate
Dated: 27 May 2019
Date of hearing: 18 December 2018 and 2 May 2019 Applicant: By telephone Advocate for the Respondent: Lee-Anne Odgers, Department of Human Services
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