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

[2018] AATA 966

Robinson and Secretary, Department of Social Services (Social services second review) [2018] AATA 966 (20 April 2018)

Division:GENERAL DIVISION

File Number:           2016/5977

Re:Nicholas Robinson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President K Bean

Date:20 April 2018

Place:Adelaide

The decision under review is affirmed.

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Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Lower spine fusion – Whether applicant’s conditions were fully diagnosed, treated and stabilised – Whether conditions attracted 20 points under the Impairment Tables – Decision under review affirmed.

LEGISLATION

Social Security (Administration) Act 1999, Sch 2, Pt 2, cl 4

Social Security Act 1991, s 94

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

REASONS FOR DECISION

Deputy President K Bean

20 April 2018

1. The applicant, Mr Nicholas Robinson, is currently 59 years old. On 21 January 2016, he lodged a claim for disability support pension (DSP). In his claim, he referred to his medical conditions as “lower spine fusion, depression, recurring cellulitis, arthritis”.[1]

   [1]     Exhibit R1, T‑documents, T25/124.

2. On 21 March 2016, Mr Robinson was assessed by a Job Capacity Assessor (JCA). On the following day, Centrelink made a decision to reject Mr Robinson’s claim for DSP on the ground that he was not assessed as having an impairment rating of 20 points or more,[2] and therefore did not qualify for payment of DSP.

   [2]     Ibid T26/129.

3. On 14 April 2016, Mr Robinson submitted further medical evidence to Centrelink to support his claim for DSP.

4. On 12 May 2016, Mr Robinson was examined by a different JCA. Shortly thereafter, on 16 May 2016, Centrelink again made a decision to reject Mr Robinson’s claim for DSP on the same ground, namely that he was not assessed as having an impairment rating of 20 points or more.[3]

   [3]     Ibid T32/148.

5. On 24 May 2016, an Authorised Review Officer affirmed the original decision, concluding that Mr Robinson’s conditions only gave rise to an impairment rating of 10 points.[4]

   [4]     Ibid T33.

6. Mr Robinson appealed to the Social Services and Child Support Division of this Tribunal (AAT1). On 13 October 2016, the AAT1 affirmed the decision under review.[5]

   [5]     Ibid T2.

7. On 4 November 2016, Mr Robinson sought review of that decision by the General Division of this Tribunal.

   STATUTORY FRAMEWORK AND ISSUES

8. It is not in dispute between the parties that Mr Robinson’s qualification for DSP must be assessed based on his medical conditions at the date of his claim or within 13 weeks of that date.[6]

   [6]     See Social Security (Administration) Act 1999, Sch 2, Pt 2, cl 4.

9. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act). The issue before this Tribunal is therefore whether between 21 January 2016 and 21 April 2016 (the qualification period) Mr Robinson had:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment which attracted a rating of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work within the meaning of s 94 of the Act.

   DID MR ROBINSON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

10. There is no dispute between the parties that as at the qualification period, Mr Robinson had a physical impairment within the meaning of the Act.

    AS AT THE QUALIFICATION PERIOD, DID MR ROBINSON HAVE AN IMPAIRMENT ATTRACTING 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

    The requirements

11. Section 94(1)(b) of the Act requires that a person have 20 points or more under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains the Impairment Tables as well as the rules for applying them.

12. Section 6 of the Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:

    ·the condition causing the impairment is permanent; and

    ·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.

13. Further, for a condition to be considered permanent under the Determination:

    ·the condition must be fully diagnosed by an appropriately qualified medical practitioner;

    ·the condition must be fully treated and fully stabilised; and

    ·the condition must be more likely than not to persist for more than two years.

14. Section 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:

    ·whether there is corroborating evidence of the condition;

    ·what treatment or rehabilitation has occurred in relation to the condition; and

    ·whether treatment is continuing or planned in the next two years.

15. Section 6(6) provides that a condition is fully stabilised if:

    ·the person has undertaken reasonable treatment for the condition, and it is considered that 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, but such treatment is not expected 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, and there is a medical or other compelling reason for the person not to undertake such treatment.

    As at the qualification period, were Mr Robinson’s conditions fully diagnosed, treated and stabilised?

16. In the respondent’s Statement of Facts, Issues and Contentions, it was conceded that Mr Robinson’s spinal condition was fully diagnosed, treated and stabilised. However, at the hearing of this matter, the Secretary contended that it was open for the Tribunal to find that Mr Robinson’s spinal condition was fully diagnosed but not fully treated or stabilised. For the reasons I will explain below, I have decided that it is unnecessary for me to decide this issue. I will proceed directly to consider the impairment rating which potentially applied to Mr Robinson’s condition during the qualification period.

    Did Mr Robinson’s condition attract 20 points under the Impairment Tables?

17. If the Tribunal were to assume that Mr Robinson’s spinal condition was fully diagnosed, treated and stabilised as at the qualification period, for Mr Robinson to qualify for DSP, his condition must have attracted an impairment rating of at least 20 points at that time.

18. Table 4 of the Impairment Tables relates to Spinal Function and is the appropriate table for assessing Mr Robinson’s back condition. It relevantly states:

    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.

    I will address each of these criteria in turn.

    As at the qualification period, could Mr Robinson perform any overhead activities?

19. Mr Robinson’s treating doctor, Dr MacDonald, has provided a medical report dated 13 February 2017,[7] about 12 months after the qualification period. In the report, he states that Mr Robinson is “unable to lift arms above shoulder height to work above shoulder height”,[8] although it is not clear whether this statement relates to Mr Robinson’s condition as at the qualification period.

    [7]     Exhibit A1, Medical Report of Dr Andrew MacDonald dated 13 February 2017.

    [8]     Ibid p 1.

20. However, at the first Job Capacity Assessment, Mr Robinson allegedly self‑reported that he had “no difficulty performing overhead activities at all”.[9] At the hearing, Dr MacDonald also gave evidence that as at the qualification period, Mr Robinson was able to perform “some overhead activities”. This is corroborated by Mr Robinson’s own written statement in which he said that he has “trouble lifting [his] arms for too long”.[10] As such, I am satisfied that Mr Robinson did not qualify for 20 points under descriptor (1)(a).

    As at the qualification period, could Mr Robinson turn his head or bend his neck without moving his trunk?

    [9]     Exhibit R1, T28/133.

    [10] Exhibit A6, Statement of Mr Nicholas Robinson dated 26 July 2017, [24] (emphasis added).

21. At the hearing, I note that Dr MacDonald confirmed that Mr Robinson was able to turn his head or bend his neck. As neither party contended that Mr Robinson was unable to turn his head or bend his neck without moving his trunk and I do not have any evidence to the contrary, I am satisfied that Mr Robinson did not qualify for 20 points under descriptor (1)(b).

    As at the qualification period, could Mr Robinson bend forward to pick up a light object from a desk or a table?

22. In Dr MacDonald’s report, he states that Mr Robinson is “unable to bend forward to pick up items from a table repetitively”.[11] I note the same proviso as before in relation to whether Dr MacDonald was referring to the qualification period.

    [11]    Exhibit A1, p 1.

23. In the first JCA report, the assessor stated that Mr Robinson was “able to bend down and pick a light object of (sic) the floor but has difficulty straightening back up due to pain”.[12]

    [12]    Exhibit R1, T28/133.

24. At the hearing, Mr Robinson’s daughter-in-law, Ms Brunjes, gave evidence that as at the qualification period Mr Robinson was able to bend forward to pick up objects from a table, although not when an object was on the floor.[13] Mr Robinson himself also gave evidence that he was able to pick objects off of a table as needed “in no more pain than [he] was already in” and that he could do so every now and again as required although “not repeatedly”.

    [13]    See also Exhibit A3, Statement of Ms Shakira Brunjes dated 21 July 2017, [10].

25. In his report dated 4 May 2017, Dr Minogue, occupational physician, having considered all of the available medical evidence was of the opinion that:

    It is very feasible that Mr Robinson would not cope with repetitive bending to knee height, whereas picking up a light object from a desk or table (descriptor (c) for 20 points) involves minimal or minor trunk flexion and would likely be tolerable, even if repetitive.[14]

    [14]    Exhibit R3, Report of Dr Christopher Minogue dated 4 May 2017, p 7.

26. In light of the somewhat contradictory evidence, I have ultimately concluded that as at the qualification period, Mr Robinson was able to bend forward to pick up a light object from a desk or a table. I accept Ms Brunjes’ evidence that Mr Robinson was able to bend forward to pick up objects from tables around his residence and Mr Robinson’s own concession that bending forward to pick up objects from desk height caused him no additional pain and he was essentially able to do this as required. As such, I am satisfied that Mr Robinson did not qualify for 20 points under descriptor (1)(c).

    As at the qualification period, could Mr Robinson remain seated for at least 10 minutes?

27. In Dr MacDonald’s report, he states that Mr Robinson “can’t sit for more than 10 mins due to pain”.[15] Again it is not entirely clear from the report whether Dr MacDonald was referring to the qualification period. At the hearing, Dr MacDonald gave evidence that Mr Robinson spinal’s condition was such that if he was holding a position, such as sitting down, he would need to change his posture frequently, so much so that even driving would be difficult.

    [15] Exhibit A1, p 1.

28. In the first JCA report, the assessor stated that Mr Robinson “reported that he is able to sit for 20 minutes, but can drive a car for 60-90 minutes”.[16] The first JCA, Ms Pettifer, also gave evidence at the hearing. Ms Pettifer explained that her assessment was conducted via video but she could not recall how much of Mr Robinson she could see on the video. She elaborated that usually she would be able to see a client from the waist up, but that in this instance it was also possible that she could only see his face. When asked whether she actually observed Mr Robinson sitting for 20 minutes during the JCA, she said that given she did not note in her report that he fidgeted or shifted positions, which she conceded was highly relevant, she was of the view that her observations must have been consistent with what she eventually put in the report, which was that he could sit for 20 minutes.

    [16] Exhibit R1, T28/133.

29. In the second JCA report, the assessor stated that Mr Robinson “reports being able to sit/operate or be a passenger in a vehicle for between 20-60 minutes”.[17] The second JCA, Mr Torrisi, also gave evidence at the hearing. He reiterated his opinion that based on Mr Robinson’s self-reporting and on the existing evidence, Mr Robinson could probably sit for between 20‑60 minutes.

    [17] Ibid T31/145.

30. Mr Robinson’s own evidence on this point was that whilst it was likely he told the Job Capacity Assessor he could sit for 20 minutes, every time he sat down he was in pain and that furthermore he would feel pain the next day as a result of extended periods of sitting. He conceded that he would sit, for instance in a car on the way to Centrelink or medical appointments because he felt that it was necessary to sit down to get from point A to point B. In other words, he would sit and tolerate the pain out of necessity. When at home, his evidence was that during the qualification period his preference was to lie down, usually with his legs elevated and resting on a beanbag. Ms Chellingworth, Mr Robinson’s former partner, and Ms Brunjes gave evidence to similar effect at the hearing. In her statement dated 21 July 2017, Ms Chellingworth stated that Mr Robinson “cannot sit or stand for too long. He was able to drive his car until around 12 months, but now cannot drive as he has too much difficulty sitting for so long and coordinating the movements to drive”.[18]

    [18] Exhibit A4, Statement of Ms Noelene Chellingworth dated 21 July 2017 [12].

31. In his report, Dr Minogue did not address whether Mr Robinson could sit for at least 10 minutes. However, he expressed the opinion that Mr Robinson qualified for 10 points under descriptor (1)(d), and not 20 points.[19]

    [19]    Exhibit R3, p 7.

32. In addition, however, there is evidence before me that in order to complete some work he had undertaken to do, in October 2015 (three months before the qualification period) Mr Robinson travelled by car from Darwin to Peppimenarti and back three times, which is a 648km drive. He was unaccompanied on each of these trips. In his evidence, Mr Robinson said that he stopped along the way and each drive took him six or seven hours. He further explained that he took prednisolone prior to each trip, so as to manage the long drives.

33. In light of the somewhat contradictory evidence, I have ultimately concluded that as at the qualification period, Mr Robinson could remain seated for 10 minutes “normally and on a repetitive or habitual basis and not only once or rarely”.[20] I note that this is consistent with the two JCA reports. In addition, a number of Mr Robinson’s friends and family commented on the decline in Mr Robinson’s spinal condition in the last 12 months or so. Indeed, Ms Chellingworth seemed to suggest that Mr Robinson’s difficulty with driving only arose as of 12 months prior to July 2017, which is July 2016, several months after the qualification period.

    [20]    The Determination, s 11(3) at Exhibit R1, T3/44.

34. In relation to Dr MacDonald’s evidence, particularly his report, I am not satisfied that Dr MacDonald strictly limited himself to commenting on Mr Robinson’s condition as at the qualification period. Additionally, even though Dr MacDonald’s evidence was that Mr Robinson’s spinal condition was such that driving would be problematic due to his constant need to alter his posture, there is evidence that three months prior to the qualification period, Mr Robinson drove, sometimes on consecutive days, for six to seven hours, albeit with the help of medication. Whilst it is possible that Mr Robinson’s condition deteriorated in the period between October 2015 and January 2016, there is nothing before me which suggests he suffered a dramatic deterioration within that timeframe. On balance, I consider it unlikely that Mr Robinson’s condition deteriorated to such an extent between October 2015 and the qualification period that during the qualification period he could not remain seated for at least 10 minutes as required. As such, I am not satisfied Mr Robinson qualified for 20 points under descriptor (1)(d).

    How many points did Mr Robinson’s spinal condition attract under Impairment Table 4?

35. Having considered the totality of the evidence, I am of the view that at the relevant time Mr Robinson’s spinal condition attracted, at most, an impairment rating of 10 points under Impairment Table 4. In particular, I consider that he satisfied descriptor (1)(c), which states:

    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:

    …

    (c)the person is unable to bend down forward to pick up a light object placed at knee height.

36. I note that this is consistent with the opinion of Dr Minogue, who in his report opined that on balance he “would be prepared to concede 10 points” because “it is very feasible that Mr Robinson would not cope with repetitive bending to knee height”.[21] It is also consistent with Mr Torrisi’s evidence that Mr Robinson “reports difficulty picking up or bending to below knee or floor level”[22] and the evidence of Ms Brunjes.[23]

    [21]    Exhibit R3, p 7.

    [22]    Exhibit R1, T31/145.

    [23]    Exhibit A3, [10].

    DID MR ROBINSON HAVE A CONTINUING INABILITY TO WORK?

37. As Mr Robinson’s condition did not attract 20 points under the Impairment Tables as at the qualification period, it is unnecessary for me to determine whether he had a continuing inability to work under s 94 of the Act.

    MR ROBINSON’S OTHER CONDITIONS

38. For completeness, both parties referred to Mr Robinson’s other conditions, namely depression and cellulitis. As there was agreement between the parties that neither of those conditions was permanent and fully diagnosed, treated and stabilised during the qualification period and nothing on the evidence before me suggested otherwise, I am satisfied that Mr Robinson’s spinal condition is the only condition relevant to this review.

    CONCLUSION

39. That being the case, as I am not satisfied that Mr Robinson’s condition attracted 20 points under Impairment Table 4 as at the qualification period, I have concluded that he did not qualify for DSP.

40. Consistently with the evidence I have referred to above as to Mr Robinson’s deterioration in mid‑2016, I note Mr Robinson did subsequently qualify for and is currently in receipt of DSP.

    DECISION

41. Accordingly, the decision under review is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated: 20 April 2018

Dates of hearing:	17 and 26 March 2018
Applicant:	Ms T Spence Darwin Community Legal Services
Solicitors for the Respondent:	Ms J Vetter Department of Human Services