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

[2022] AATA 4041

Raleigh and Secretary, Department of Social Services (Social services second review) [2022] AATA 4041 (28 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/0889

Re:Bruce Raleigh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member R Bellamy

Date:28 November 2022

Place:Brisbane

The decision under review is affirmed

..............................[SGD]..........................................

Senior Member R Bellamy

Catchwords

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability

Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member R Bellamy

28 November 2022

1. The decision under review is a decision of the Social Services and Child Support Division of this Tribunal (“SSCSD”) dated 5 January 2022, which affirmed a decision of Services Australia (Centrelink) (“the Respondent”) to reject Mr Raleigh’s claim for disability support pension (“DSP”) that he lodged on 26 August 2021.

2. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (Cth) (“the Act”); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) - which contains the Impairment Tables - and the Social Security (Administration) Act 1999 (Cth).

3. The issue that was to be determined in this matter was whether Mr Raleigh satisfied the qualification criteria for DSP as at the date of claim, or within 13 weeks thereafter (“the qualification period”) which was 26 August 2021 to 24 November 2021. That depended on whether Mr Raleigh had:

   ·a physical, intellectual or psychiatric impairment(s) for the purpose of s 94(1)(a) of the Act;

   ·impairment(s) arising from medical conditions that were fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Determination for the purpose of s 94(1)(b) of the Act; and

   ·a continuing inability to work for the purpose of s 94(1)(c) of the Act.

4. To apply the Impairment Tables to a condition, the condition must be considered permanent, with the impairment that results from the condition being more likely than not, in light of available evidence, to persist for more than two years. For a condition to be considered permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated.[1]

   [1] Sub-paragraphs 6(3) to (7) of the Determination.

5. A condition is fully stabilised if:

   ·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 two years; or

   ·the person has not undertaken reasonable treatment for the condition and:

   oeven if the person undertakes reasonable treatment, significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result; or

   othere is a medical or other compelling reason for the person not to undertake reasonable treatment.[2]

   [2] Sub-paragraph 6(4) of the Determination.

6. Briefly, by way of background, Mr Raleigh applied for DSP on 26 August 2021. Mr Raleigh listed one medical condition which affects his ability to work which was back surgery pain and numbness in his back. On 7 September 2021 his claim was considered at a job capacity assessment. The assessor concluded that the current work capacity was between zero and seven hours per week, and that within the next two years, his work capacity was expected to be between 15 and 22 hours per week. On 28 September 2021 a Centrelink employee decided that Mr Raleigh was not qualified for payment of DSP. The decision was reviewed by an authorised review officer and subsequently by the SSCSD.

7. The SSCSD decision was essentially that:

   ·In relation to Mr Raleigh’s back injury:

   oMr Raleigh suffers from a physical impairment arising from a medical condition, being compressive neuropathy level of L5/S1 secondary to disc disease;

   othis injury causes back and leg pain which affects his capacity for work;

   othis medical condition was permanent, fully diagnosed, fully treated and fully stabilised during the qualification period;

   ounder Table 4 – Spinal Function, the impairment attracted 10 points due to moderate functional impact on activities involving spinal function, including that Mr Raleigh was unable to bend forward to pick up a light object placed at knee height if required to do this activity normally and on a repetitive or habitual basis and not only once or rarely,[3] and

   [3] Subsection 11(3) of the Determination.

   othe impairment did not attract any points under ‘Table 3 – Lower Limb Function’ because the descriptors for the lowest rating were not met.

   ·In relation to chronic pain, arising from Mr Raleigh’s back injury, that, among other things affects his sleep capacity and reduces his capacity for physical activity;

   oan impairment rating could not be allocated because the condition was not, prior to or during the qualification period, fully treated and stabilised; and

   othere may have been a realistic prospect of further improvement in functional capacity with specialist pain management, consistent with Mr Raleigh’s GP’s commentary in a medical certificate dated 7 October 2021 that the prognosis remained uncertain.

   ·In relation to depression arising from reported workplace harassment and bullying;

   oan impairment rating could not be allocated because the condition was not, prior to or during the qualification period, fully diagnosed, fully treated and fully stabilised.

8. Given the above findings, which resulted in Mr Raleigh failing to satisfy an essential criterion, it was not necessary to consider whether or not he had a continuing inability to work.

9. In his application to the General Division of the Tribunal, Mr Raleigh said he was in severe ongoing pain and discomfort, affecting mobility and function. He indicated that his GP had diagnosed depression for which he was taking medication, and he was in the process of seeking therapy. He said some medications that had been tried affected his mental function or caused severe drowsiness. He claimed to have limited range motion, to be unable to sit or stand for longer than 15 to 20 minutes at a time, to have difficulty bending and walking, and to suffer from spasms and random bursts of pain which cause him to hunch over and become virtually incapacitated. He said he had struggled with these issues continually and that he had done everything the doctors asked only to be told they would not sign him off as being able to work, yet he could not get DSP either. He had not yet been contacted by the Pain Clinic.

10. Mr Raleigh did not provide any evidence that materially changed the factual matrix. I agree with the SSCSD decision and the reasons for that decision, and I explained that to Mr Raleigh at the conclusion of the hearing. In the interests of efficiency, I attach that decision rather than producing written reasons that would effectively be repeating the reasons in that decision.

11. I am providing these reasons to assist Mr Raleigh should he wish to make a fresh application for DSP. Towards the end of the hearing, I invited the lawyer representing the Respondent to re-iterate to Mr Raleigh exactly where his claim fell short and I am doing the same in these reasons. I regret that it has taken me longer than I had expected to do that.    

    Back Injury

12. To attract 20 points under Table 4 – Spinal Function, Mr Raleigh needed to establish a severe functional impact on activities involving spinal function. That is, that in the qualification period he was unable to do one or more of the following activities:

    ·perform any overhead activities;

    ·turn his head, or bend his neck, without moving his trunk; 

    ·bend forward to pick up a light object from a desk or table;

    ·remain seated for at least 10 minutes.

13. In September 2021, Mr Raleigh told a Job Capacity Assessor, that he had difficulty bending such as being unable to put on shoes and therefore he wore thongs. He said he could bend to pick a light object from a chair (which is lower than a desk so requires more range of motion). He said he had constant back pain that travels down his leg, especially the left leg where he experiences numbness and pins and needles. He reported overall reduced range of movement. He said he was able to drive for one hour before requiring a break, he could stand still in one spot, and he had a walking capacity of about 20 minutes. He reported no difficulty with neck movement. In summary, he did not report limitations that satisfied any of the above criteria.

14. There was also a letter from Mr Raleigh’s physiotherapist stating that he was able to bend to his knees, albeit in significant pain.

15. In the hearing, Mr Raleigh confirmed that currently he is exempt from mutual obligation activities because his doctor has certified that he is not able to work at all. He was emphatic that he wants to work, that he misses doing his job, meeting people, getting paid and living life. He was concerned that he could be seen as malingering. My impression of Mr Raleigh was the exact opposite: he has a long, solid work history and he is now trying to cope with a debilitating back injury, associated pain and what his GP thinks is depression.

16. Mr Raleigh could not understand why he only got 10 points when he was unable to stand or sit for an hour, asking “Who’s going to employ me?” and “Who can go to work in any sort of pain?” which I think are fair questions. According to Mr Raleigh he can lift his arms above his head but his leg goes numb. He does not hang clothes out because pain prevents him from reaching the clothesline. The Respondent pointed out that the criteria in Table 4 are strict and “unable to” means “cannot do it” as opposed to choosing not to do it because of pain.[4] I can well understand Mr Raleigh’s frustration about that because for the person experiencing the inhibiting pain, the result is the same. However, the impact of pain associated with tasks such as this may be recognised in Table 1 – Functions requiring Physical Exertion and Stamina (Table 1)

    [4] Also see subparagraph 11(1) of the Determination.

    Chronic Pain

17. Mr Raleigh has not had much success with pain medication. The unchallenged evidence establishes that immediately before the qualification period Mr Raleigh’s doctor had advised him to “return to see the pain program” and consider taking stronger analgesia but he remained very resistant to that, and he told the Tribunal why that was. During the qualification period he was referred to the Pain Clinic, although in the SSCSD hearing, Mr Raleigh explained that there had been a misunderstanding and that his referral to the pain clinic had been made later. In any event, he had not had the opportunity to seek treatment at the Pain Clinic. Nor had Mr Raleigh explored all pharmacological treatment options.

18. What will assist Mr Raleigh if he wishes to make a fresh claim for DSP is evidence from an appropriately qualified medical practitioner:

    ·that he has engaged with the Pain Clinic and there is no further reasonable treatment they could provide to improve his functioning; and

    ·describing the impact of his chronic pain on his ability to do things, with reference to the descriptors in Table 1.

19. Table 1 provides that there is “a moderate functional impact on activities requiring physical exertion or stamina” if 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:

    (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. Table 1 provides that there is “a severe functional impact on activities requiring physical exertion or stamina” if 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:

    …

    (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.

    Depression

21. The table that determines the allocation of points for an impairment due to a mental health condition is Table 5 – Mental Health Function. It provides that a diagnosis of the condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist, with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

22. Mr Raleigh does not have a diagnosis of depression from a psychiatrist or a medical practitioner with assistance from a clinical psychologist. He was also in the beginning stages of treatment and trying different pharmacological treatment. It will assist him to get a diagnosis from a psychiatrist or medical practitioner with assistance from a clinical psychologist, and evidence that he is receiving, or has received, optimal treatment such as continuous period of psychological counselling and exploration of pharmacological interventions.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

...........................[SGD].............................................

Associate

Dated: 28 November 2022

Date(s) of hearing:

12 August 2022

Date final submissions received:

18 August 2022

Applicant:

By telephone

Solicitors for the Respondent:

Ms Alicia Henderson and Mr Samuel Harvey

Secretary, Department of Social Services

ANNEXURE A

 

DECISION AND REASONS FOR DECISION

DIVISION:

REVIEW NUMBER: APPLICANT: OTHER PARTIES:

TRIBUNAL: DECISION DATE:

Social Services & Child Support 2021/8165868

Mr Bruce Raleigh Secretary

Chief Executive Centrelink Member W Appleton

5 January 2022

DECISION

The decision under review is affirmed.

 

Member W Appleton

REASONS FOR DECISION BACKGROUND

1.This review is about whether Mr Raleigh meets the qualification requirements for payment of a disability support pension.

2.Mr Raleigh applied to Services Australia (Centrelink) on 26 August 2021 for a disability support pension.

3.On 7 September 2021 Mr Raleigh’s claim was considered at a job capacity assessment. The assessor concluded that the current work capacity was 0-7 hours per week. Within the next two years work capacity was expected to be 15-22 hours per week.

4.On 28 September 2021 a Centrelink employee decided that Mr Raleigh was not qualified for payment of disability support pension (the “original decision”). Mr Raleigh was advised by letter that his pension claim had been rejected. On 28 September 2021, Mr Raleigh requested a review of the original decision. The matter was referred to an authorised review officer for reconsideration.

5.On 3 November 2021 the authorised review officer wrote to Mr Raleigh. In affirming the decision to reject the claim for disability support pension, the authorised review officer concluded:

Your impairment rating is 10 points under the Impairment Tables.

6.On 4 November 2021, Mr Raleigh applied to this tribunal for an independent review of Centrelink’s decision on the basis that he was unable to work and would provide more medical evidence.

7.On 5 January 2022, the tribunal conducted a hearing at which Mr Raleigh gave evidence under affirmation by conference telephone. The tribunal had before it a bundle of documents provided by Centrelink (identified as pages 1 to 452) which had been copied to Mr Raleigh.

ISSUES

8.The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) which contains the Impairment Tables; and the Social Security (Administration) Act 1999 (the Administration Act).

9.The issues for the tribunal to determine in this review are:

1.     Does Mr Raleigh have a physical, intellectual or psychiatric impairment? If so,

2.   Does he have an impairment rating under the Impairment Tables of at least 20 points? And, if so

3.     Does he have a continuing inability to work?

10.As a general rule, each of the criteria in the preceding paragraph must be attained at the time of application for disability support pension. However, clause 4 of Schedule 2 to the Administration Act provides that in certain circumstances where a claim for a social security benefit is made, and the person is not eligible to receive that benefit at the time of application, but becomes eligible during the 13-week period subsequent to the date of application, the claim is taken to have been made on the first day on which the person qualifies for the social security benefit.

CONSIDERATION OF ISSUES

Issue 1: Does Mr Raleigh have a physical, intellectual or psychiatric impairment?

11.The first qualification requirement for disability support pension is that the person must have a physical, intellectual or psychiatric impairment (paragraph 94(1)(a) of the Act).

12.In section 3 of the Determination the term impairment is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.

13.The medical reports and correspondence, together with Mr Raleigh’s evidence, indicate that:

At the time of his application for disability support pension, Mr Raleigh suffered from back and leg pain associated with spinal compressive neuropathy.

This condition causes Mr Raleigh to have physical impairment, and medical certificates issued during 2017 and 2018 and more recent correspondence from Dr Dupakuntla, his general practitioner, confirm that this impairment affects his capacity for work.

14.The tribunal is therefore satisfied that Mr Raleigh’s application satisfies paragraph 94(1)(a) of the Act.

Issue 2: Does Mr Raleigh have an impairment rating under the Impairment Tables of at least 20 points?

15.Mr Raleigh’s medical conditions must also attract an impairment rating of at least 20 points according to the Impairment Tables set out in the Determination. To apply the Impairment Tables the condition must be considered permanent and the impairment that results from the condition is more likely than not, in light of available evidence, to persist for more than two years (subsection 6(3) of the Determination). For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated

and stabilised and likely to last for more than two years (subsections 6(4), (5), (6) and (7) of the Determination).

16.Relevantly, the Determination also provides as follows:

Subsection 6(1) The impairment of a person must 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.

Subsection 6(2) The tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

Subsection 8(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

Paragraph 11(1)(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and

Descriptors involving performing activities

Subsection 11(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.

Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

17.Mr Raleigh is aged 49. He lives with his parents and his two younger children who are aged 14 and 16. The application for disability support pension is based on impairment related to continuing pain and numbness in the back associated with pain extending down the left leg. This chronic pain has continued despite extensive procedural treatment.

18.There is substantive file documentation which outlines treatment over the four years preceding his application. This information has been summarised below.

Date  Event

1 February 2017          Mr Raleigh first consulted his general practitioner in regard to low back pain.

2 February 2017          CT of the lumbar spine reported as showing disc protrusion at the L5 S1 level.

27 March 2017            Mr Raleigh was referred to the Neurosurgical Clinic at Princess Alexandra Hospital.

16 October 2017          Mr Raleigh was first assessed by the neurosurgeon. An MRI was arranged.

9 November 2017         Neurosurgical review. The MRI indicated facet joint arthropathy and foraminal stenosis on the left side at the L5/ S1 level. A CT guided facet injection was recommended.

8 February 2018          Neurosurgical review A partial response to this CT facet joint injection was noted.

23 May 2018               Neurosurgical review. It was recorded that there was no relief with radiofrequency ablation. Treatment with nerve root injection was recommended.

13 July 2018               Neurosurgical review. 2 to 3 weeks of relief of symptoms was obtained L5 nerve injections.

15 November 2018       A repeat MRI again reported as showing L5/S1 foraminal stenosis which was more marked on the left side.

4 January 2019           An operation of trans-foraminal lumber interbody fusion at the L5/ S1 level was undertaken.

25 February 2019         Post-operative review. Pain relief had been obtained after the operation but had recurred following a fall during the recovery period.

29 July 2019               Neurosurgery review. There continued to be back pain and a further MRI was arranged.

2 September 2019        An MRI was undertaken.

10 October 2019          Neurosurgical review. There was adjustment to the analgesia regime for pain.

23 January 2020          Further CT imaging was undertaken

20 February 2020          Neurosurgical review. A referral to the neurologist was made.

23 April 2020               Neurology review. Nerve conduction studies were recommended. 20 August 2020  Neurosurgical review.

28 January 2021          Lower limb nerve conduction studies indicate nerve damage consistent with chronic left L5/S1 radiculopathy.

8 April 2021                Neurology review. Adjustment was made to medications and there was consideration of further nerve injections.

9 June 2021                CT and MRI of the lumbosacral spine was undertaken. 9 August 2021  Neurosurgical review.

18 August 2021           Neurology review.

7 September 2021        Mr Raleigh’s condition was assessed by Centrelink

3 November 2021         In discussion with the applicant, the authorised review officer has recorded that a further guided steroid injection was being undertaken.

19.In reviewing the file documentation the tribunal considers that pages 335 to 337 are not in correct sequence and that the letter dated 23 April 2020, on page 334 was written by Dr Craig, a neurologist, and the letter dated 20 August 2020 on page 336, was written by Dr Donnelly, a neurosurgery medical officer.

20.At the job capacity assessment, the assessor has recorded:

Mr Raleigh reported symptoms as difficulty bending such as unable to put on shoes and therefore wears thongs. Mr Raleigh noted he can bend to pick a light object from a chair. Mr Raleigh reported back pain constantly that travels down the leg, especially the left leg where he experiences numbness and pins and needles. Mr Raleigh reported overall he has reduced range of movement. Mr Raleigh advised he lives with his parents who take care of majority of the house work and grocery shopping due to his pain. Mr Raleigh advised he has 2 children (14 and 16) whom he drops off at school and picks up from school daily. Mr Raleigh noted he is able to drive for 1 hour before requiring a break. Mr Raleigh noted he cannot stand still in one spot, and advised a walking capacity of about 20 minutes. Mr Raleigh reported no difficulty with neck movement. Mr Raleigh reported due to pain he suffers from poor sleep, lack of motivation, poor concentration and noting feeling depressed where he advised taking anti depressants and seeing a psychologist monthly.

21.This commentary is supported by his general practitioner in a letter dated 26 October 2021. At the hearing Mr Raleigh described a more severe level of functional impairment, but the tribunal considers that the details recorded by the job capacity assessor are more consistent with other recorded information.

22.While the injury to the lower back may have limited his range of spinal movement and Mr Raleigh experiences leg symptoms including pins and needles, numbness and has some unsteadiness, the tribunal understands that the presence of chronic pain has been the main symptom which impairs his functional capacity. Medical management of Mr Raleigh’s pain has been largely based on pregabalin (Lyrica) which Mr Raleigh told the tribunal he is now taking regularly. At various times Mr Raleigh has indicated that this medication has not been helpful and he has had difficulty taking the medication because of associated drowsiness. With respect to other analgesic treatment the circumstances are less clear.

23.At his neurosurgical follow-up appointment on 19 October 2019, that is, some nine months subsequent to his major surgery, the neurosurgical registrar changed the pain relief medication to a regime of meloxicam and paracetamol to be taken on a regular basis, with Endone being used to manage breakthrough pain.

24.At the review on 23 April 2020 Dr Craig has recorded:

Mr Raleigh is currently using venlafaxine and his most recent medications are prn Mobic and Endone that he uses twice a day that he feels is very beneficial, particularly beneficial when trying to get out of bed in the morning

25.On 20 August 2020 the neurosurgical registrar has recorded:

He states he has ongoing tramadol and continues with his physiotherapy exercises as well as maintaining his weight. He does, however, admit to taking back up and continuing to smoke heavily.

At the hearing Mr Raleigh stated he had been prescribed tramadol prior to his surgery, but could not recall whether or not he had been prescribed this medication subsequent to his surgery.

26.Records of general practitioner attendances between 18 October 2019 and 25 February 2021 make the following references to pain relief medication:

Date  Commentary

18 October 2019      Medication changed in line with the commentary from the neurosurgical registrar. Meloxicam (Mobic) 7.5 mg, one tablet daily. (the tribunal notes the dosage was lower than had previously been prescribed for Mr Raleigh) and Endone (oxycodone) 5 mg, one tablet only when necessary.

18 November 2019    The general practitioner suggested a further trial of Lyrica, and a prescription for pregabalin (Lyrica) 25 mg, one tablet twice a day was provided.

28 November 2019     It was noted that the Lyrica was helping.

28 January 2020      Again noted that the Lyrica was helping and a further prescription was provided.

30 April 2020          Mr Raleigh requested an increase of the dose from 25 mg to 75 mg twice daily. The dose was changed.

20 October 2020      Mr Raleigh reported that the Lyrica was not helping and that he stopped taking it.

25 February 2021     The general practice records list current medications are Atozet, a medication to lower blood cholesterol and Efexor, an antidepressant drug.

27.There is no record of further prescriptions for Mobic or Endone after 18 October 2019. At the hearing Mr Raleigh said he found the Mobic not helpful and discontinued using it. There is no record of tramadol being prescribed during this period.

28.It is not clear to the tribunal which of the treating doctors or clinics was primarily responsible for managing Mr Raleigh’s analgesic regime, and it is difficult from the available information to understand his level of compliance with recommended treatment.

29.More recently, on 9 August 2021 Dr Tsahtsarlis has written:

I have encouraged him to return to see the pain program and consider taking stronger analgesia which he remains very resistant to do.

And, on 18 August 2021, Dr Craig has noted that Mr Raleigh was considering the use of cannabidiol and comments: “Likely exploration of pain Clinic-CBD-based therapies”.

30.In a letter dated 26 October 2021 and in the medical certificate dated 7 October 2021 Dr Dupakuntla notes that Mr Raleigh has been referred to the pain clinic.

31.At the hearing Mr Raleigh explained that there had been a misunderstanding and that his referral to the pain clinic had only been made six months ago. He is yet to be advised of his first appointment to this clinic. He had sought referral to a private clinic which prescribed cannabidiol but the consultation was expensive ($380).

32.The tribunal finds the condition compressive neuropathy level of L5/S1 secondary to disc disease to be a medical condition which is permanent and which has been fully diagnosed, fully treated and fully stabilised. However, the tribunal has not been able to establish that Mr Raleigh’s symptom of chronic pain, which has arisen as a consequence of his back injury, has been fully treated and stabilised, and the tribunal considers there may be realistic prospect of further improvement in functional capacity with specialist pain management. This is consistent with Dr Dupakuntla’s commentary in the medical certificate dated 7 October 2021 that the prognosis remains uncertain.

33.An impairment rating of 10 points has been assigned under Table 4 – Spinal Function on the basis that Mr Raleigh has moderate functional impact on activities involving spinal function and that he is unable to bend forward to pick up a light object placed at knee height if required to do this activity normally and on a repetitive or habitual basis and not only once or rarely. The descriptors for a higher rating under this Table are not met.

34.The tribunal considers that the overall level of functional impairment arising from this condition is greater than the impairment reflected in the 10-point impairment rating under Table 4. While there are symptoms of numbness and pins and needles in the legs associated with unsteadiness at times, the descriptors for a 5-point rating under Table 3 – Lower Limb Function are not met, and a nil rating is assigned under this Table. Additional impairment arises because of the impact of chronic pain which, among other things, affects Mr Raleigh’s sleep capacity and his reduced capacity for physical activity. For this aspect of his condition an impairment rating could have been considered under Table 1 - Functions requiring Physical Exertion and Stamina, however, as the tribunal has found that the chronic pain is yet to be fully treated and stabilised, no rating can be assigned in this application.

35.In addition to his back and leg pain, Mr Raleigh has a history of depression. The background details are summarised in an employment services assessment report undertaken on

11 January 2013 which records:

Depression secondary to reported workplace harassment and bullying in his position of 23 years. Left work in November 2012 due to this. Client has commenced treatment on Lexapro in November 2012. Client reported he previously suffered an episode of depressive illness approximately three years ago after a family relationship breakdown and was treated with medication for 18 months at that time. During this time he also reported 3-4 months of psychiatric involvement. Currently, he is experiencing symptoms including fatigue, irritability, lethargy, low mood, reduced cognitive function and reduced sleeping patterns.

Mr Raleigh continues to take venlafaxine (an antidepressant) and calls the men’s health line for counselling support. Dr Dupakuntla has suggested that he attend a psychologist. In the absence of recent assessment by a psychiatrist or involvement of a clinical psychologist, the tribunal finds that the depression is yet to be fully diagnosed, fully treated and fully stabilised.

36.Mr Raleigh has a combined impairment rating of 10 points. As an impairment rating of 20 points or greater has not been established, Mr Raleigh’s application does not satisfy paragraph 94(1)(b) of the Act. If a person does not satisfy paragraph 94(1)(b) their claim must fail and consideration as to whether or not they have a continuing inability to work is not required.

DECISION

The decision under review is affirmed.

SOCIALSECURITYACT1991 - SECT 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;

(ii)   the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

(d)   the person has turned 16; and

(da) in a case where the following apply:

(i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

(ii)   the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

(iii)   if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

the person meets any participation requirements that apply to the person under section 94A;

and

(e)   the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for

a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the

person:

resident; and

(A)   is not an Australian resident; and

(B)   is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian

(ea) one of the following applies:

(i)the person is an Australian resident;

(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

(ii)   the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

Note   1:       For Australian    resident , qualifying   Australian    residence and qualifying   residence exemption see section 7.

Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.

Continuing inability to work

(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.

Note:    For work see subsection (5).

(3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)   the availability to the person of a training activity; or

(b)   the availability to the person of work in the person’s locally accessible labour market. (3A) If:

(a)   a person is receiving disability support pension; and

(b) the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension; and

(c)   the person is not a reviewed 2008-2011 DSP starter;

then paragraph (2)(aa) of this section does not apply in relation to that assessment.

Severe impairment

(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

Active participation in a program of support

(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

(3D) The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

(3E) The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

Doing work independently of a program of support

(4)   A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)   is unlikely to need a program of support; or

(b)   is likely to need a program of support provided occasionally; or

(c)   is likely to need a program of support that is not ongoing.

Other definitions

(5)In this section:

"program of support " means a program that:

(a)   is designed to assist persons to prepare for, find or maintain work; and

(b)   either:

(i)is funded (wholly or partly) by the Commonwealth; or

(ii)   is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

reviewed 2008-2011 DSP starter means a person for whom all the following conditions are met:

(a)   the person made (or is taken to have made) a claim for disability support pension before 3 September 2011;

(b)   a determination granting the claim took effect after 2007;

(c) on or after 1 July 2014 the person was given a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

(d)   when the notice was given, the person was under 35 years of age;

(e)   before the notice was given, either:

(i)   there was a record that the Secretary was satisfied that the person was able to do work that was for at least 8 hours per week on wages at or above the relevant minimum wage and that existed in Australia, even if not within the person’s locally accessible labour market; or

(ii)   there was no record that the Secretary had considered whether the person was able to do work described in subparagraph (i);

(f) after the notice was given, the Secretary decided not to determine under section 80 of the Administration Act that the disability support pension for the person is to be cancelled;

(g)   as a result of the assessment involving the notice, the Secretary is satisfied that the person:

(i)does not have a severe impairment within the meaning of subsection (3B); and

(ii)   is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

(h)   the person does not have a dependent child under 6 years of age.

Note 1: Section 63 of the Administration Act lets the Secretary notify a person that the person must give information to the Secretary or undergo a medical, psychiatric or psychological examination and give the Secretary a report on the examination.

Note 2: Section 80 of the Administration Act lets the Secretary determine that disability support pension paid to a person is to be cancelled if the person is not or was not qualified for the pension, or if the pension is not or was not payable to the person (which may apply because the person did not comply with the notice under section 63 of that Act).

"training activity " means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)   education;

(b)   pre-vocational training;

(c)   vocational training;

(d)   vocational rehabilitation;

(e)   work-related training (including on-the-job training).

"work " means work:

(a)   that is for at least 15 hours per week on wages that are at or above the relevant minimum

wage; and

(b)   that exists in Australia, even if not within the person’s locally accessible labour market.

Person not qualified in certain circumstances

(6)   A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Table 1 - Functions requiring Physical Exertion and Stamina

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).

Table 3 – Lower Limb Function

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus- stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)      walk from the carpark into a shopping centre or supermarket without assistance;

(iii)     stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility,

even when using a walking aid.

30

There is an extreme functional impact on activities using lower limbs.

(1)      The person is unable to mobilise independently.

Table 4 – Spinal Function

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).