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

[2015] AATA 926

Scott and Secretary, Department of Social Services (Social services second review) [2015] AATA 926 (2 December 2015)

Division	General Division
File Number(s)	2014/1384
Re	Phillip Scott
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Michael Couch, Member
Date	2 December 2015
Place	Sydney

The decision under review is affirmed.

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

Dr Michael Couch, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - spine condition - whether applicant had 20 points under Impairment tables – whether single condition causing multiple impairments - whether rating can be assigned - whether program of support completed - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guide to Social Security Law (Version 1.217 - Released 9 November 2015)

REASONS FOR DECISION

Dr Michael Couch, Member

2 December 2015

BACKGROUND

1. Mr Scott lodged a claim for Disability Support Pension (DSP) on 20 November 2013, stating that he had undergone spinal fusion at L4, L5 and S1, following a work-related injury in November 2010.

2. On 23 December 2013 a Centrelink Officer rejected Mr Scott’s claim for DSP.

3. On 22 January 2014 an Authorised Review Officer (ARO) reviewed and affirmed the original decision.

4. On 28 January 2014 Mr Scott applied for review of the ARO decision by the Social Security Appeals Tribunal (SSAT).

5. Ms K Timbs, Member, conducted a hearing on 28 February 2014.  Mr Scott gave oral evidence.  In her decision posted 13 March 2014, Member Timbs affirmed the decision under review (2014/SO65842).

6. Mr Scott seeks review of the SSAT decision by the Administrative Appeals Tribunal (AAT).

7. At this hearing Mr Scott was self-represented.  Ms Biljana Salaji, Solicitor, appeared for the respondent.  Mr Scott gave oral evidence at the hearing.

   ISSUES

8. In order to qualify for DSP Mr Scott must satisfy the requirement of s 94 of the Act as of the date of the claim or within 13 weeks of lodging the claim (the assessment period), in accordance with the requirements of the Social Security (Administration) Act 1999.  For the purposes of Mr Scott’s claim the assessment period is from 20 November 2013 to 19 February 2014 inclusive (the relevant period).

9. It was agreed by the parties that Mr Scott satisfies s 94(1)(a) – that is, he has a physical, intellectual or psychiatric impairment.

10. It was also agreed by the parties that Mr Scott’s back condition is permanent for the purposes of the Act, in that it is fully diagnosed, fully treated and fully stabilised.

11. In order to satisfy s 94(1)(b), Mr Scott requires a permanent impairment of 20 points or more under the Impairment Tables. The Secretary contends that Mr Scott has a rating of 10 points from Table 4 – Spinal function, with no points from other tables.

12. Mr Scott contends that Table 4 alone does not completely describe his impairment.  He claims an additional 10 points from Table 7 – Brain function and 10 points from Table 1 – functions requiring Physical Exertion and Stamina. 

13. In addition to requiring an impairment rating of at least 20 points, s 94(1)(c) requires that Mr Scott should have a continuing inability to work.

14. Unless Mr Scott has a severe impairment, defined as having an impairment of 20 points or more under a single Impairment Table, in order to be considered as having a continuing inability to work, he must have actively participated in a Program of Support (POS).  The Secretary contends that Mr Scott has not actively participated in a POS within the meaning of Subsection 94 (3C).

15. Therefore the principal issue to be decided is whether during the relevant period, Mr Scott had a rating of 20 points or more under the Impairment Tables.

16. Secondarily, if Mr Scott should be found to have an impairment rating of 20 points or more, he would need to demonstrate a continuing inability to work.

17. Thirdly, unless Mr Scott was found to have an impairment rating of 20 points or more from one single table, he would need to have completed a POS.

    FACTUAL BACKGROUND

18. The history of Mr Scott’s low back condition was obtained from medical reports (including a detailed medico-legal report dated 18 January 2013 from Dr Denise Tong, Rheumatologist and Musculoskeletal Consultant).  Some information was obtained from Mr Scott’s oral evidence at this hearing.

19. Mr Scott is a 45-year-old (at the time of the hearing) man who was educated to Year 12 at high school.  He had mostly worked around swimming pools since then, apart from about one year working as an engraver/shoe repairer at Mister Minit.  He had obtained a Certificate II in Small Business Management and Retail, and a Certificate IV in Aquatic Operations and Supervision, at TAFE.  He worked as a pool lifeguard at the Blue Mountains Leisure Centre for four years and Wonderland Sydney for five years.  He commenced full time employment with Belgravia Health and Leisure Group Proprietary Limited as aquatics manager approximately one year before sustaining a low back injury at work on 15 November 2010.  He was responsible for all operations of the pool including supervision of lifeguards.  He was required to remain qualified and function as a lifeguard himself.

20. On 15 November 2010 Mr Scott was moving a heavy wheeled rubbish bin which was on a slope.  It rolled back against him and he developed low back pain.  Subsequently while manually handling 25 kg bags of pool chemicals back pain became worse.

21. Imaging and discography showed abnormal discs at L4/5 and L5/S1.  Dr Al-Khawaja, Neurosurgeon, performed L4/5 and L5/S1 anterolateral lumbar fusion on 23 June 2011.

22. In oral evidence at this hearing Mr Scott described complete relief of lower limb symptoms following surgery and approximately 50% improvement in low back pain.  He estimated that he had reached maximum improvement about 18 months after surgery.

23. Mr Scott was certified unfit for work from mid-November 2010 until March 2012.  He was then certified fit for suitable duties but his employer was unable to provide these.  Mr Scott has a related workers compensation claim.  In oral evidence he stated that, following lumbar fusion, a Whole Person Impairment (WPI) of greater than 15% had been agreed under the NSW Workers Compensation system.  He said that he was anticipating settlement of a Work Injury Damages Claim in the first half of 2015.  He also stated that a Total and Permanent Disability (TPD Claim) through his work superannuation had been accepted, although no payment had been made yet.

24. In oral evidence, Mr Scott stated that the only work which he had done since November 2010 had been a WorkCover Work Trial.

25. As described in the Return to Work Progress Report from Konekt 15 May 2013, the Work Trial was with Centrix Promotions as an independent contractor.  Konekt reported that he was unable to return after the third day because of difficulty with travel rather than the actual duties.  In oral evidence Mr Scott stated that he was working with one other worker in shopping centres and train stations, selling booklets of vouchers to raise funds for charities.  He said that he was able to stand and talk to members of the public, but could not cope with the travelling, including from his home in the Blue Mountains to Central Sydney.

    IMPAIRMENT RATING PRIOR TO HEARING

26. On 25 November 2013 Mr Scott attended a face to face Job Capacity Assessment (JCA) with a JCA Assessor at Centrelink who was a registered psychologist.

27. In her report of 18 December 2013 the Assessor stated that Mr Scott’s lumbar spine condition was fully diagnosed, fully treated and fully stabilised.  She assessed impairment according to Table 4 (spinal function), with a recommended rating of 10 points, and stated:

    Functional impact: able to sit in or drive a car for at least 30 minutes; persistent lower back pain, restricted movements of the spine – unable to sit/stand/walk for more than 30 minutes; 10 kg lifting limit; avoid bending/twisting/squatting…Supporting reasons summary: Table 4.  Moderate functional impact on activities involving spinal function.

28. She assessed baseline work capacity of 8-14 hours per week, increasing with intervention within two years to 15-22 hours per week, and recommended “light less skilled (WO3)” work.

29. The Assessor added

    additional comments: a referral to a DES DMS provider to assist Mr Scott with re-entry into suitable and sustainable employment, taking into account the combined symptoms and impacts his medical condition is recommended.  This referral has not been actioned.

    MEDICAL EVIDENCE

30. Centrelink Medical Report, Disability Support Pension (SA012.1301), completed by Dr Suthaharan General Practitioner, dated 15 November 2013:  Diagnosis is given as “annular tear L4/5, L4/S1 discs.  Had spinal fusion”.  Current symptoms are described “persistent lower back pain.  Restricted movements at the spine”.

31. Dr Suthaharan under “impact on ability to function” responded:

    ·Unable to sit/stand/walk for more than 30 minutes.

    ·10 kg lifting limit.

    ·Cannot drive more than 45 minutes.

32. This Centrelink Medical Report Form (SA012.1301) on page 6 under “impact on ability to function” suggests various aspects of function to be considered.  It does not set out specific criteria such as those in Table 4 – Spinal Function (Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011) (“the Determination”).

33. WorkCover NSW - Certificate of Capacity, completed by Dr Suthaharan dated 15 November 2013.  This states that Mr Scott had the capacity for some type of employment but not pre-injury duties, with normal hours per day and normal days per week.  The following were listed under “Capacity”: “lifting/carrying capacity, 10 kg, sitting tolerance 30 min, standing tolerance 30 min, pushing/pulling ability 10 kg, bending/twisting/squatting ability- avoid, driving ability 30 min”.

34. Report from Dr Denise Tong, Rheumatologist and Musculoskeletal Consultant, 18 January 2013.  (This appears to have been prepared for Mr Scott’s solicitors in relation to his workers compensation claim.)  She described the history and treatment of his lumbar spine condition in detail.  Under “present symptoms” she described variable low back pain radiating to the buttocks without lower limb symptoms, varying in intensity between 2/10 to 6/10.  She noted:

    The client can sit no more than 15 minutes at a time; stand for no more than 30 minutes at a time; and walk no more than 40 minutes at a time.  The client has difficulty falling asleep because of this pain – he can only sleep in intervals of two hours and a total of about six hours per night. 

    She described independence for self-care, but difficulty with some domestic tasks and inability to do gardening.

35. On examination, Dr Tong found Mr Scott to be in no apparent physical distress, with a normal gait. He was unable to sit comfortably throughout the interview and needing to get up and shuffle every 15 minutes or so.  She found moderate restriction of lumbar spine movements with flexion to 40 degrees, no abnormal neurological signs in the lower limb, and he had no difficulty climbing on and off the examination couch.

36. As to capacity for work, Dr Tong stated

    The client is fit for suitable duties at pre-injury hours provided the client avoids lifting more than 10 kg repetitively.  The client should also avoid any work that involves repetitive bending or prolonged static back flexion.  The client’s prospects of obtaining similar work as the previous role or alternative duties that the client is reasonably qualified to perform are now markedly limited as the client would have difficulty engaging in any physically demanding activities.  Unfortunately his current employer is unable to provide roles that would be suitable for him based on the above recommendations.  If he loses his current employment, the client will have difficulty obtaining alternative employment that the client is reasonably qualified to perform by way of education, training and experience as a consequence of the work injury.  The client may need to consider retraining”.  She further specified restrictions: “the worker would be fit for sedentary or semi-sedentary work not involving prolonged standing, and a restriction of no lifting more than 10 kg, no sitting and standing of up to 30 minutes, and travelling no more than 45 minutes.

37. Because he had undergone spinal fusion, Dr Tong assigned his lumbar spine condition to DRE Lumbar Category IV according to the WorkCover Guides for Assessment of Permanent Impairment and AMA5.  DRE Lumbar Category IV gives 20% Whole Person Impairment (WPI).  Dr Tong added a small addition for limitation of activities of daily living and scarring, and made a one-tenth deduction because of a past history of minor back pain.  (The Tribunal is aware that the Social Security Tables, and in particular Table 4 Spinal Function, constitute a completely different assessment system from that used by WorkCover NSW.)

38. Vocational Assessment Report dated 13 March 2012 from John Pimping, Rehabilitation Counsellor of Konekt.  This refers to correspondence from Dr Al-Khawaja (Treating Neurosurgeon), stating that his most recent letter  dated 10 March 2012:

    stated that long term restrictions would include no bending and twisting all of a sudden, no sitting or standing in one spot for more than half an hour, and no lifting over 10 kg.  Dr Al-Khawaja also recommended Mr Scott ‘walk as much as he can. 

39. On page 5 of this report, Mr Pimping lists Mr Scott’s self-reported capabilities, including the ability to sit for 10 to 15 minutes before experiencing discomfort, (“Mr Scott reported that he is able to stand for 30 minutes but that his doctor has indicated a limit of 15 minutes”), finding walking easier than sitting or standing,  ability to walk up to 30 minutes,  ability to squat slowly, “Mr Scott reported that he is not able to bend”, and estimated pulling/pushing of less than 10 kg.  With regard to lifting, Mr Scott reported that his doctor had recommended a limit of 5 kg and that he tried to avoid lifting anything heavier.

40. Subsequently Konekt asked Dr Suthaharan to complete a “Vocational Goals – Nominated Treating Doctor Approval”.  On 13 April 2012 Dr Suthaharan stated that, of suggested vocational options Mr Scott, would be unable to work as a customer service/retail assistant because of inability to bend, but could work as a sales assistant or training and assessment officer.

    MR SCOTT’S SUBMISSIONS AND EVIDENCE

41. In his Application for Review of Decision to the Tribunal dated 18.03.2014, Mr Scott provided two pages of handwritten submissions.

42. Mr Scott points out that Table 1 – Functions requiring Physical Exertion and Stamina, Table 4 – Spinal Function, and Table 7 – Brain Function, all state that self-report of symptoms alone is insufficient and that corroborating evidence of the person’s impairment is required.

43. He goes on to suggest that “the Forms” (presumably Centrelink Form SA012.1301 “Medical Report, Disability Support Pension”) should have relevant questions/details of physical examination to guide the examining doctor.

44. Mr Scott also points out the difference between the ability to perform an activity (such as bending) on a one-off, versus a repetitive, basis.

45. Mr Scott submits that his restriction on walking duration should be considered under “stamina/endurance” (Table 1) rather than simply spinal function (Table 4).

46. Mr Scott also claims 10 points under Table 7, stating that “to assume after 3.5 years of sleep deprivation and chronic pain has no impact on cognitive function is simply showing a complete lack of understanding.  The effects of all chronic pain and sleep deprivation well documented and hardly needs corroborating evidence”.

47. Mr Scott confirmed that he considered that his impairment should be assessed by Tables 1 and 7 as well as Table 4.

48. Mr Scott pointed out that his GP allocated two standard 15 minute sessions to complete the Centrelink DSP Medical Report form.

49. Mr Scott said that when his GP completed the Centrelink DSP Medical Report, neither he nor Mr Scott had access to the Tables.

50. Mr Scott stated “and there is no effort at all to educate doctors or general practitioners on the system.  So, they are used to working with the WorkCover system which is suitable duties and whole body impairment”.

51. Ms Salaji stated that during the appeal process Mr Scott was given the opportunity to obtain further medical evidence.  She produced a letter from herself to Mr Scott dated 13 May 2014 (exhibit R1) with an attached “Dear Doctor” letter, explaining eligibility criteria for the DSP, including the requirement for 20 points or more.  The letter states that Mr Scott could request a further report from the doctor giving a detailed description of functional impact suffered.  A copy of Table 4 – Spinal Function was attached.

52. Mr Scott stated that he attended his GP Dr Suthaharan with this letter and the doctor stated that he was not qualified to give such a report.

53. Mr Scott stated that Dr Suthaharan advised him that he needed to see a specialist who did reports for the Department of Social Security.

54. Mr Scott said that he “finally found one group that provided it and they said the minimum was $800 up to $1500, which is not in my budget to provide”.

55. In his sworn evidence, Mr Scott essentially confirmed the occupational history, and also medical history of his back injury treatment and progress, already detailed under “Factual Background” and “Medical Evidence” above.

56. Mr Scott confirmed that surgery had relieved all his lower limb symptoms, with an estimated 50% improvement in low back pain. He stated that he had reached maximum symptomatic improvement about 18 months after surgery.

57. Mr Scott described an ongoing regime of back exercises and pool work.  He exercises daily.

58. He described persistent low back pain, difficulty with sustained postures, restricted back movements (especially extension – i.e. leaning backwards) and sleep disturbance.

59. Mr Scott estimated that he would spend about 50% of daytime hours standing up and moving around, about 10% sitting, and about 40% lying down – mostly on his bed.  He also uses a recliner if he watches television.

60. He described daytime fatigue because of poor sleep at night and occasionally having a short sleep during the day.

61. Mr Scott estimated average current pain severity as 2/10 on the VAS scale.  He said that pain was somewhat worse during the hearing at 3-3.5/10, mentioning travel to Sydney for the hearing and the previous day for medico-legal appointments.

62. Mr Scott estimated his worst recent pain severity as 6/10.  He takes Paracetamol or Nurofen for relief and very occasionally Endone, the last time he had taken Endone being 10 days earlier.

63. Mr Scott described difficulty with public transport.  He said that he experienced more jolting and pain on buses and finds trains better. 

64. Mr Scott also stated that “the main thing that affects me is the chronic pain but I don’t even try and break the doctor’s restrictions, like the physical restrictions, because he put the fear of God into me when he told me what happens if you break a fusion…”  (He confirmed that he was referring to Dr Al-Khawaja.

    CROSS-EXAMINATION BY MS SALAJI

65. Ms Salaji asked Mr Scott about activities of daily living.  He confirmed that he was independent for self-care.

66. On questioning, Mr Scott said that he performed some household duties himself.  He stated that he was unable to clean the bottom of the shower or the bath, and that people from his church look after his yard.

    FURTHER EVIDENCE FROM MR SCOTT

67. Mr Scott was asked further questions in relation to Table 4.  Mr Scott stated that “he assumed” that he could sit and drive a car for at least 30 minutes.  (He explained that he does not currently own a car.)

1. With regard to other restrictions mentioned in Table 4 in the 10 point category, Mr Scott said that he was unable to bend forward to pick up a light object placed at knee height and could not do sustained overhead activities.  (With regard to forward bending, Mr Scott referred to Dr Tong’s report, in which she described 40 degrees forward flexion.)

2. Mr Scott went on to suggest that he also met the criteria in Table 4 for 20 points.  He claimed that he could not do “static flexion” or perform overhead activities.

3. It was pointed out that corroborative evidence was required for this.  Mr Scott referred to Dr Tong’s report, suggesting that he could not bend forward and pick up light objects from a desk or table on a regular or habitual basis, because she had specified that he avoid any work that involves repetitive or prolonged static back flexion.

4. Mr Scott was asked if he could stand at a desk or table, pick up a piece of paper, fold it and then move it to another pile.  (He demonstrated this activity).  Mr Scott responded that he could do it once or twice, but not repetitively as part of a job.

5. Mr Scott confirmed that he could remain seated for at least 10 minutes.

6. Mr Scott referred to clause 10(3) of the Determination which states “where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table”.

7. There was a discussion of the understanding of this instruction,– for example someone with multiple sclerosis might have a weak arm or a weak leg, difficulty with speaking, or visual problems, which obviously affect different body systems.

8. Ms Salaji referred to clause 10(4) “when using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one table”.  Ms Salaji confirmed the Department’s contention that using both Table 4 together with either Table 1 or Table 7 for the same spinal condition, would represent “double dipping”.

9. Mr Scott was asked how he considered Table 1 – Functions Requiring Physical Exertion and Stamina, might apply to his condition.  Mr Scott replied that he claimed 10 points because he experienced frequent symptoms when performing day to day activities around the home.  He also stated that he was unable to walk and mobilise outside of the home because he had a maximum limit, and if the pain got aggravated he could not make it home.

10. Mr Scott was also asked about his suggested application of Table 7 – Brain Function.  Mr Scott claimed 10 points because of impaired memory and concentration, often forgetting to complete regular tasks, misplacing items, and having difficulty concentrating on complex tasks for more than 30 minutes.

11. Mr Scott gave further evidence about his vocational rehabilitation and job seeking activities to date and inability to find a new job.

12. It was noted that Mr Scott varied his posture between sitting and standing throughout the hearing. He confirmed that this was because of back pain.

    CONSIDERATION

13. Clause 10 (page 9 and 10) of the Determination is particularly important in this matter and reads as follows:

    10(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.

    Single condition causing multiple impairments.

    (3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.

    Example:  A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including; upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).

    (4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.

14. In Mr Scott’s case it is agreed that he has an impairment of the spine.  This would normally be assessed under Table 4 – Spinal Function.

15. The Tribunal confirms that Mr Scott’s correct rating under Table 4 is 10 points.  This is supported by Dr Suthaharan’s DSP Medical Report dated 15 November 2013, and other medical documentation reviewed above.

16. The recent Guidelines to the Rules for Applying the Impairment Tables (Version1.217-Released 9 November 2015) gives instructions on “Assessing the functional impact of pain”.

17. They state that Table 1-Functions requiring Physical Exertion and Stamina, and/or Table 7-Brain Function, may be used in certain cases where the Table specific to a body part does not adequately describe fatigue symptoms or loss of memory/ concentration.

18. These Guidelines caution in regard to specific tables such as Table 4 that: “A rating under these Tables includes consideration of the impact of pain and fatigue on the person’s ability to undertake activities within the descriptor”.

19. The examples given in these Guidelines suggest that Mr Scott’s case is more similar to Example 1 – a person with chronic lower back pain properly assessed by Table 4 alone, than to Example 4- a person with low back pain requiring prescribed opiates. With supporting medical evidence, ratings under Table 1 and Table 7 are considered appropriate.

20. To quote Example 4:

    Example 4: A 58 year old man has a permanent, degenerative lumbar spine condition and experiences chronic low back pain. He has had multidisciplinary treatment for chronic pain and continues to experience symptoms and is prescribed opiates to manage ongoing pain. Medical evidence states he has reduced tolerance for all physical tasks due to the pain he experiences and he has moderately impaired concentration as a result of the chronic pain. He can undertake self-care activities but requires assistance with all domestic tasks, including light tasks due to endurance and stamina deficits. He can bend to just below knee level. This condition impacts on his physical exertion, spinal movements and cognitive function.

    Under Table 1- Functions requiring Physical Exertion and Stamina, the man would receive an impairment rating of 20 points as the impact on his ability to undertake activities requiring physical exertion is severe. Under the 20 point descriptor the man would meet (1) (a)(iv) and (1) (b). Given the moderate impact of chronic pain on his cognitive function, under Table 7-Brain Function, the man would also receive a rating of 10 points. Under the 10 point descriptor he would meet (1) (b). To avoid double counting, a rating under Table 4-Spinal Function is not given as the rating under Table 1 captures the overall physical impairment.

21. This illustration suggests that, if Tables 1 and/or 7 were used in Mr Scott’s case, use of Table 4 might well be redundant.

22. Even if the Tribunal considered making an impairment rating under Table 1 or Table 7, this would not be permissible based solely on Mr Scott’s self-reporting. Corroborating medical evidence for other impairments would be required, and has not been produced.

23. If additional impairment points were allowable from another Table, giving a total points of 20 or more, because he would not have at least 20 points from a single Table, Mr Scott would have to have completed a Program of Support (POS) to satisfy s 94(1)(c) and to have a continuing inability to work. He has not completed a POS.

    DECISION

24. For the reasons set out above, Mr Scott does not satisfy the requirement of s 94 of the Act and does not qualify for DSP.

25. The decision under review is affirmed.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Dr Michael Couch, Member

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

Associate

Dated  2 December 2015

Date(s) of hearing	9 October 2014
Applicant	In person
Solicitors for the Respondent	Department of Human Services