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

[2020] AATA 2937

Prowse and Secretary, Department of Social Services (Social services second review) [2020] AATA 2937 (12 August 2020)

Division:GENERAL DIVISION

File Number:2019/2645          

Re:Anita Prowse    

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:12 August 2020

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 5 April 2018.

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

Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – several conditions including spinal pain, shoulder and hip pain – whether fully diagnosed, treated and stabilised – qualification period – effect of concession of 10 impairment points regarding spinal condition – assignment of points – severe functional impact – decision set aside and substituted

Legislation

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

12 August 2020

BACKGROUND

1. The Applicant, Ms Anita Prowse, seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) dated 17 April 2019 which affirmed a decision 15 August 2018 to reject her claim for Disability Support Pension (“DSP”) lodged on 5 April 2018.

2. The Applicant is 43 years of age and lives on a rural property in Silvan in Victoria.

3. Her claim for DSP is one for spinal conditions together with shoulder and hip pain. Tier 1 described her conditions as “chronic pain affecting her spine, left hip and left shoulder which has an effect on her ability to function”.

4. The decision to reject the Applicant’s claim was made on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables, in that her conditions were not permanent because although fully diagnosed they were not fully treated and stabilised.

   HEARING  

5. A hearing in this matter was conducted on 27 March 2020. The Applicant was self-represented and the Respondent was represented by Ms Massey, lawyer, from Sparke Helmore.

6. The Applicant gave affirmed evidence by telephone and Ms Massey asked questions of her in cross-examination.

7. No evidence was called by or on behalf of the Respondent.

   LEGISLATION

8. DSP is payable under the Social Security Act1991 (Cth) (“Act”) in accordance with s 94(1), which relevantly provides:

   (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;

9. The Impairment Tables referred to in s 94(1)(b) are set out in the SocialSecurity (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“Tables”). A points impairment rating under the Tables is arrived at by assigning points according to the appropriate table for the condition concerned. The points rating is function based rather than diagnosis based (see subsection 5(2)(b) of the Tables).

10. Before a points impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that a condition must be permanent (see subsection 6(3)(b) of the Tables). In order for a condition to be permanent, it must be fully diagnosed, treated and stabilised (see subsection 6(4) of the Tables). Another qualifying criterion is that a condition must be corroborated by evidence (see subsection 6(5)(a) of the Tables).

    ISSUES

11. It was not in dispute before Tier 1 or before this Tribunal that the Applicant suffers from the conditions above. I am satisfied on the evidence that there is no issue that the Applicant satisfies s 94(1)(a) of the Act.

12. The real issue in the matter is whether the Applicant satisfies s 94(1)(b) of the Act, that is, whether her conditions, or any of them, are permanent and if so whether she qualifies for an impairment rating of 20 points under the Tables. If I find she does, the issue is then whether she also satisfies s 94(1)(c) of the Act.

13. To be satisfied that the Applicant meets the requirements of s 94(1)(b) I must be satisfied that her conditions or any of them are permanent. In turn, this requires me to be satisfied that her conditions, or any of them, are fully diagnosed, treated and stabilised and that her conditions, or any of them, are corroborated.

14. These are all matters I must consider as at the date of her application or within 13 weeks thereafter – that is, from 5 April 2018 until 5 July 2018. This is called the “qualification period”.

15. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.

16. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter.

17. The Applicant contends that the decision under review should be set aside and that she satisfies all the requirement of s 94(1) of the Act so far as it applies to her. The Applicant argues that the reasons of Tier 1 are “not factual” and that her medical reports were not read “properly if at all”.

18. The Respondent contends that the Applicant does not satisfy s 94(1)(b) of the Act as regards a 20 point impairment rating but that, if she does, she does not satisfy s 94(1)(c) and that, accordingly, the decision under review should be affirmed.

19. In the course of the hearing it also became quite clear that the Respondent was conceding that the Applicant’s spinal condition was permanent, being fully diagnosed, treated and stabilised, but that this concession did not extend to her hip and shoulder conditions.

20. The Respondent also conceded that the Applicant’s spinal condition justified a points rating under the Tables, but of 10 points only.

21. This was significant as far as the Applicant is concerned because she indicated in the hearing that she “didn’t really care about the other ones” referring to her other conditions. She indicated at the hearing that she wanted to concentrate on her spinal condition. 

    APPLICANT’S EVIDENCE

22. The Applicant gave evidence that in 1999 she was a front seat passenger in a car when it was involved in a collision. The vehicle she was in had stopped because of a minor collision ahead. Another vehicle collided with the rear of her vehicle. She said that at the point of impact she was sitting side-on to her left and it was the left side of her body that was injured.

23. The Applicant said she did not immediately go to hospital, but went some time afterwards. As regards symptoms caused by the collision, she said “I have never been free of this ever”. She indicated that for the whole of the 20 years since that time “I have basically had physio[therapy] or osteo[pathy] or some form of treatment”. Originally, she was diagnosed with a case of sinusitis, but this was clearly wrong.

24. The Applicant indicated she was familiar with impairment ratings under the Tables and that it had not been possible for her to engage in a program of support. The Applicant said she “fully understood” that the critical period for assessment in her case is from 5 April 2018 until 5 July 2018.

25. The Applicant said that she was giving evidence to the Tribunal while “lying in bed”.

26. During the course of her evidence, the Applicant made several references to her various medical and osteopathic reports. I refer to these below.

27. She said that during the qualification period there were numerous things she could not do. She gave as examples, stating: “I can’t wash the dishes, I can’t vacuum or mop or do any of those kinds of things”. She indicated though that her problems were more related to “the walking side of things”. She said: “you lose your balance and stuff like that because of the pressure in your base of your skull”. She said she could do sitting and standing for “around 10 minutes each”, but she thought that some of this limitation could be due to her hip.

28. The Applicant said her concentration was affected. Watching television, reading and similar activities are “not very good”.

29. She indicated she could not perform overhead activities, for example, she could shower but not wash her hair. She said she could not lean over sinks and cannot turn her had at all to the right and could only turn about 25 degrees to the left. This had been the case for the last 15 years or so. She said if she dropped something, she could not pick it up; if something falls on the ground, “it stays there”. Although she had never timed herself, she said she could sit for maybe five to 10 minutes before having to get up.

30. The Applicant said she had trouble standing upright. She said she must lie down because her spine feels like “a piece of jelly”. She was taking Targin and Mersyndol but not Panadol or Panadeine. As regards her day-to-day activities, she said she would know which days were going to be “pretty much a write off”.

31. When asked about social activities, the Applicant said she had been the way she has been for such a long time that “I really don’t know what normal people do”. She said she drives her vehicle to local shops and facilities which are about six or seven minutes away. She said she is high up off the roadway and is able to use her mirrors for such things as reversing. This meant that she did not have great difficulty seeing things up ahead when driving.

32. She said she found the pain from her spinal condition “keeps me up all night” and consequently “I am a shocking sleeper anyway”.

33. In cross-examination, in reference to her spinal condition, the Applicant agreed she had owned horses but when asked whether she was training them during the qualification period she answered: “are you kidding me? No”. She said she had stopped training horses about 15 years ago.

34. The Applicant agreed however that she still took an interest in a pony club from “a distance” as she only wrote the lesson plan for the day. As to horses still on her land, she said they are all brood mares and that no jobs were involved in looking after or caring for them. She said that “you don’t really need to do much at all” in relation to these horses.

35. She agreed she had done some work at an apple orchard during the qualification period, but that she was checking apples for quality assurance. She could do this at random times including even at midnight if she chose as the orchard was only three minutes’ walk away. From her answers I gathered it was not demanding work. She said, however, that she no longer worked at the orchard.

36. The Applicant agreed with osteopath Dr Baker’s view that because of her spinal condition there were a number of jobs she could not do. Being a person living on their own she said that those jobs “basically don’t get done”.

37. She agreed she had been going to appointments with her GP and also Dr Baker. The latter she saw about once every three weeks. His premises were about a nine kilometre drive away.

38. The Applicant indicated her spinal condition had been getting worse over the time since the qualification period.

    ANALYSIS AND FINDINGS

    Section 94(1)(a)

39. There is no doubting that the Respondent is correct in conceding the Applicant’s spinal condition.

40. A report from Dr K Moffatt, general practitioner at Lilydale Medical Centre, dated 31 July 2017, refers to the Applicant’s “chronic neck and back pain due to motor car accident March 1999”.

41. A report from Dr L Teoh, general practitioner at Seville Medical Centre, dated 6 August 2019, refers to “[e]arly degenerative disc disease with disc dessication”. It also refers to “[m]inor posterior central disc bulging” but rules out “disc herniation”.

42. A report from Dr J Baker, osteopath at By Design Holistic Health, dated 17 March 2017, says that ever since the motor vehicle collision in 1999, the Applicant “has never been free of pain”. Amongst other things, the report states that the Applicant’s “spinal function is limited in range of motion in all cervical, thoracic and lumbar regions by a factor of at least 40% what you would expect of a normal 40-year-old female”.

43. A much earlier report from Dr P White, general practitioner at Yarra Junction Medical Centre, dated 20 August 2008, refers to recent CT scans showing “disc injuries in the Lumbar and Cervical spine”.

    Section 94(1)(b)

    Permanency

44. On the basis of these and other items of evidence, the Respondent has rightly conceded that the Applicant’s spinal condition is fully diagnosed, fully treated and fully stabilised.[1] The Respondent stated that this concession is limited to 10 points under the Tables and not otherwise, as I was given to understand. The Tribunal asked the Respondent: “you’re saying that you concede one [condition] is permanent and worth only 10 points. Is that the situation?” The reply was: “Yes, that’s correct,10 points under table 4 with respect to the spinal condition”.

    [1] Respondent’s Statement of Facts Issues and Contentions (“SFIC”), para 5.9.

45. I assume that, in making this concession, the Respondent was fully cognizant of all the facts and issues in the case and carefully examined its position, as well as that of the Applicant. The Respondent is well equipped and would not have made any concession unless justified.

46. It is also clear from submissions that the Respondent regarded the Applicant’s spinal condition as corroborated.

47. I am able to accept that the Respondent does not concede any higher than 10 points for the Applicant’s spinal condition, but I am unable to accept that, in conceding that her condition is fully diagnosed, treated, stabilised, and corroborated, it is open to the Respondent to then argue that her condition is not fully diagnosed, treated,  stabilised, and corroborated for any other purpose, including a higher or lower points assignment.

48. It is absurd to suggest that a condition can be regarded as fully diagnosed, treated, and stabilised, as well as corroborated, at 10 points but not at 20 points or 30 points, for instance.

49. Either a condition is fully diagnosed, treated, stabilised, and corroborated or it is not. Diagnosis, treatment and stabilisation as well as corroboration have nothing as such to do with points ratings. They are the entry point to the Tables. Once the Tables have been entered, it then becomes a matter of assigning points. But the Tables do not work in reverse to determine whether at some particular point assignments a condition is fully diagnosed, treated, stabilised, and corroborated.

50. In other words, I view the Respondent’s concession as being twofold. The spinal condition is, firstly, conceded as being fully diagnosed, treated, and stabilised, as well as corroborated. It is then conceded, secondly, that it warrants 10 points under the Tables. I consider that to be the proper way to treat the Respondent’s concession and it seems this is what the Respondent intended in any event. It is a mistake to regard a condition as fully diagnosed, treated, stabilised and corroborated only at a rating of 10 impairment points. The concession, as the Respondent expressed it to me, combines two matters which are separate and cannot be conflated.

51. Therefore, I reject the notion that, at other than 10 points, I should not regard the Applicant’s spinal condition as fully diagnosed, treated, and stabilised, as well as corroborated. 

52. In such circumstances, I consider it open to me to find the Applicant’s condition warrants more or less than the conceded 10 points. I do not regard myself as bound to find 10 impairment points in accordance with the concession.

53. I should add that I regard the first branch of the Respondent’s concession as one properly founded in light of all the medical materials on file. The Respondent is only conceding what I likely would have found on the evidence. Nevertheless, I consider I have a duty to satisfy myself, despite the concession, that the concession is rightly made.  As regards corroboration I refer, in particular, to the report of Dr Moffatt dated 31 July 2017 referred to above.

    Impairment points

54. I agree with the Respondent that Table 4 of the Tables is the appropriate Table.

55. I would reject any analysis to the effect the Applicant should be awarded nil points (no impact) or only 5 points (mild impact). This was not an argument, I note, which was put forward by the Respondent. Listening to the evidence carefully, I am satisfied that the Applicant’s condition does not warrant assigning 30 points (extreme impact). It is not the case at all that the Applicant is completely unable to perform activities involving spinal function under 1(a) of the 30-point rating, and it is not entirely the case that she is unable to bend or turn her trunk or neck to complete the most basic of daily activities (e.g. dressing, bathing, showering, or light housework) under 1(b) of the 30-point rating. I must indicate though that there are aspects of her evidence which I fully accept which could lead to a view that during the qualification period she was unable to bend or turn her trunk to perform some basic activities of daily life.  However, the critical point is that she was not precluded from performing all basic activities of daily life due to her condition. However, I do note that 1(b) under the 30-point rating does not use the word “all”.

56. In my view the Applicant fits within either the conceded 10-point rating (moderate impact) or within the 20-point rating (severe impact).

57. One of the difficulties with applying the 10-point descriptors is that they are all prefaced on the basis of someone being able to sit in or drive a car for at least 30 minutes. This seems to me to be a failing in the Tables. In this particular case, I am not satisfied on the evidence that the Applicant is able (or unable) to sit in or drive a car for at least 30 minutes. I have evidence of her driving her vehicle, but it is only a six or seven-minute drive in each direction. I am unable to see therefore how the Respondent was able to concede that 10 points is the appropriate rating, unless some undisclosed hypothetical exercise has been undertaken.

58. In any event, I would not regard the Applicant’s spinal condition as having only a moderate functional impact. The evidence satisfies me that the functional impact of that condition on the Applicant is greater than that. I refer particularly to her evidence that she has trouble standing upright and that her spine feels like a “piece of jelly”. The functional impact of her condition is much more serious than being merely moderate. And it is not one solely or mainly characterised by pain—although she does suffer pain with spinal movements 

59. I regard the Applicant as clearly satisfying the descriptors appropriate to a 20-point severe rating. I note that the descriptors in the 20-point range are expressed as alternatives. If an applicant satisfies one of them, that seems sufficient. Be that as it may, I am satisfied on the evidence that the Applicant satisfies most, if not all of the descriptors relating to a 20-point rating, even though only one may need to be satisfied.

60. As regards para 1(a) under the 20-point rating, I find that the Applicant is unable to perform any overhead activities. The Applicant’s evidence is unequivocal on this. Referring to the qualification period, the Applicant was asked: “were you able to perform any overhead activities at all during that time?” Her answer was a clear “no”.  I accept that answer as truthful.

61. As regards para 1(b) under the 20-point rating, I find the Applicant is unable to turn her head, or bend her neck, without moving her trunk.  Referring to the qualification period, the Applicant was asked: “what about turning your head or bending you neck without moving your body during that period of time?” The Applicant answered: “No…my left side is a lot worse than the right side, but I still can’t turn my head”. The Applicant was then asked: “so you couldn’t turn your head without moving your body, is that the situation?” The Applicant replied: “That’s right”. I accept those answers as truthful.

1. As regards para 1(c) under the 20-point rating, I find the Applicant is unable to bend forward to pick up a light object from a desk or table. Having been reminded that the relevant time was the qualification period, the Applicant was asked: “if you dropped something or you wanted to pick something up from a table, say a coffee table, could you bend forward to do that? Look downwards to see what you have dropped, or something like that?” The Applicant again stated unequivocally: “No”. Again, I accept that answer as truthful.

2. Lastly, as regards para 1(d) under the 20-point rating, I am satisfied that the Applicant is unable to remain seated for at least 10 minutes.

3. I consider that it was not the intention to specify “at least 10 minutes and not a second more nor a second less”. That would be absurd and productive of harsh results. I regard the expression “at least 10 minutes” as one which is to be approached reasonably with some leeway or approximation allowed having regard to the objects of the Act under which the Tables are made. On this basis, I consider the Applicant does satisfy para 1(d). She said in evidence, when asked how long she could remain seated due to her spinal condition, that although she had never timed herself, “I would say roughly between five and 10 minutes”. I consider this approximately meets the requirement. I say the same about her evidence that she can sit and stand for about 10 minutes each.

4. An alternative is to say that, given the Applicant’s evidence on that point, and also her other evidence, it is highly likely that on some occasions during the qualification period she was unable to remain seated for at least 10 minutes because of her spinal condition. Para 1(d), I note, does not specify the number of times that a person must have been unable to remain seated for at least 10 minutes.

5. It follows from the foregoing that I find the Applicant satisfies section 94(1)(b) of the Act.

6. In the circumstances, it does not matter that the Applicant has not undertaken a program of support at all prior to or during the qualification period if also she satisfies s 94(1)(c) of the Act period.

   Section 94(1)(c)

7. I am quite satisfied on the evidence that the Applicant meets the requirements of section 94(1)(c) because I regard her as having a continuing inability to work.

8. I have noted that the Job Capacity Assessment (“JCA”) report dated 15 August 2018 appears to have been prepared by appropriate persons; a clinical psychologist (Julia), and an occupational therapist (Cathy).

9. However, I cannot accept the conclusion they arrive at, that the Applicant is capable of some hours of work during each week, in light of the evidence given to me, and I do not consider I am bound to accept their findings.

10. The Applicant has a serious spinal condition having severe functional impact where she has trouble standing upright and has a spine which she said feels like a “piece of jelly”. She is in constant pain because of it. She lay in bed to give her evidence. She takes significant medication. She has a problem with losing her balance. She can only sit and stand for about 10 minutes each.

11. In all these circumstances, I cannot see how it is reasonably possible to find that the Applicant has or has had any capacity for work for many years.

12. I appreciate that the Applicant has undertaken quality assurance work at a nearby orchard, but that does not alter my view in the least. No significant conclusion can reasonably be drawn from that circumstance considering, as I have, the evidence as a whole.

    CONCLUSION AND DECISION

13. For the reasons above, the Applicant satisfies sections 94(1)(a), (b) and (c) of the Act.

14. Therefore, the decision under review is set aside and a decision substituted that the Applicant is entitled to DSP with effect from 5 April 2018.

I certify that the preceding 75 (seventy five) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member.

…[sgd]……………………………
Associate
Dated: 12 August 2020

Date of hearing:

27 March 2020

The Applicant:

Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Ms A Massey

Sparke Helmore Lawyers