Secretary, Department of Social Services and Kelli Danaher
[2014] AATA 448
[2014] AATA 448
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5660
Re
Secretary, Department of Social Services
APPLICANT
And
Kelli Danaher
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 4 July 2014 Place Brisbane The decision under review is set aside and a decision substituted that the decision of Centrelink of 8 May 2013 be affirmed.
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Deputy President PE Hack SC
CATCHWORDS
SOCIAL SECURITY – claims – disability support pension – whether injuries permanent – whether Table 1 or Table 4 to be used for spinal injuries - whether injuries qualify for 20 points.
LEGISLATION
Social Security Act 1991 (Cth) s 26(1), s 94.
Social Security (Tables for the Assessment of Work-Related Impairment will Disability Support Pension) Determination 2011 (Cth) Part 2 s 6, Tables 1, 4 and 5.
REASONS FOR DECISION
Deputy President PE Hack SC
4 July 2014
Ms Kelli Danaher says that she suffers from a number of conditions which she says qualify her to receive disability support pension. Centrelink refused her claim for the pension, lodged on 4 March 2013, by a decision made on 8 May 2013. Later that same month the decision was affirmed on internal review. On 29 August 2013 the Social Security Appeals Tribunal found in Ms Danaher's favour. That Tribunal concluded that Ms Danaher satisfied the relevant criteria and hence set aside the decision of 8 May 2013 and remitted the matter for reconsideration.
The Secretary, Department of Social Services seeks a review of the Tribunal's decision. On the material now available, in particular a detailed report from an occupational physician, I have concluded that the original decision was correct – Ms Danaher did not qualify for disability support pension when she made her claim or within the period of 13 weeks thereafter.[1]
[1]The effect of s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) is that the period of 13 weeks after the date of claim is the period that is relevant to a claim. See also Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 at [1].
By virtue of s 94 of the Social Security Act 1991 (Cth) a person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment (or impairments) that warrants a rating of 20 points or more under the Impairment Tables set out in a Determination made in accordance with that Act, and if the person has a "continuing inability to work" as that expression is used in the Act. On the view I take of the matter it is not necessary to consider the meaning of that latter expression – the case falls to be determined by reference to the first integer, whether Ms Danaher's impairments warrant a rating of 20 points are more under the Assessment Tables.
The Impairment Tables are found within the Social Security (Tables for the Assessment of Work-Related Impairment will Disability Support Pension) Determination 2011. That Determination was made by the Minister then administering the Social Security Act pursuant to s 26(1) of that Act. Some reference is necessary to Part Two of the Determination headed "Rules for Applying the Impairment Tables". First, and by virtue of s 6(1), the impairment of a person must be assessed on the basis of what the person can do or could do, not on the basis of what a person chooses to do. Next, and of particular relevance in the present case, an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent and if the impairment resulting from the condition is likely to persist for more than two years.[2] The meaning of permanent is then dealt with in this way:
[2]See s 6(3).
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Ms Danaher contends that she is afflicted by four conditions that amount to impairments – a cervical spine condition brought on by a fall in November 2011, a lumbar spine condition occasioned by a crush fracture to the L1 vertebra in January 2012, tendinitis to the left shoulder and a psychiatric condition described in her claim as "anxiety, panic attacks, post stress trauma".
It is convenient to immediately dispose of the psychiatric condition. The Secretary submits that no impairment rating can be assigned to this condition because the relevant Impairment Table, Table 5, relating to Mental Health Function, requires:
The diagnosis of the condition must be made by an appropriately qualified practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Ms Danaher has apparently seen a psychologist for treatment in the past however there is no evidence of diagnosis from either a psychiatrist or a clinical psychologist. There is scant evidence about the condition although Dr Keith Adam, a specialist in occupational and environmental medicine, who examined Ms Danaher in January 2014 at the request of the Secretary, noted that he did not consider that Ms Danaher had "any significant ongoing impairment as a result of this condition". The result, on either basis, is that no impairment rating is capable of being assigned for this condition.
The same is true of the left shoulder condition. Ms Danaher’s general practitioner reported in February 2013 that this condition should resolve over a period of 6 to 12 months. Dr Adam considered that any residual pain in the shoulder was likely to be a consequence of the cervical spine condition and that the left shoulder tendinitis had resolved.
The critical conditions are those affecting Ms Danaher’s back. The cervical spine condition, in the opinion of Dr Adam, is a musculo-ligamentous strain of the cervical spine. He said of that condition,[3]
The majority of such injuries progress to resolution over a period of some months. The level of pain and incapacity complained of by Ms Danaher is certainly far greater than one would normally expect to see such condition, particularly in the absence of any significant underlying pathology.
There is radiological evidence of a crush fracture to the L1 vertebra in the subsequent fall in January 2012. Of that Dr Adam said,[4]
A crush fracture is usually a stable fracture and the fact that conservative treatment in a brace was the treatment of choice tends to confirm that this was a stable fracture… Again, the natural clinical history of this condition is gradual progression over months, with little overall permanent incapacity. Ms Danaher’s level of symptoms and incapacity is far greater than I would usually expect two years following such an injury.
Dr Adam was particularly concerned at the treatment that Ms Danaher was, and is, receiving. He noted that on discharge from hospital she attended for physiotherapy although she considered that treatment was aggravating her pain. He continued:
Since then, her sole treatment has been medication, including MS Contin, Endep and Valium. It is perhaps surprising that, despite severe pain persisting for two years, and significant incapacity, she has not been referred for any further specialist opinion or treatment, apart from medicolegal reviews, which do not comprise part of the treatment process. Current best practice clinical evidence for these conditions is that they will respond to a program of gradual mobilisation and strengthening. There is also evidence to show that prolonged prescription of opioid analgesics such as MS Contin is at best ineffective, and at worst, they serve to prolong recovery. The failure to encourage proper mobilisation has resulted in Ms Danaher progressing through a cycle of pain, immobilisation, further stiffness, further pain, etc. I do not believe that these conditions can currently be considered permanent, because they have not been adequately or fully treated.
[3] Exhibit 2, page 3.
[4] Exhibit 2, pages 3-4.
I accept Dr Adam’s views. The level of incapacity claimed by Ms Danaher is at odds with the underlying injuries. It is evident that a considerable improvement in Ms Danaher’s condition could be expected with appropriate treatment. For that reason it is not possible to regard her back condition as permanent and thus the condition cannot be assigned a rating under the Impairment Tables. But in any event, on the basis of Dr Adam’s observations the condition does not warrant a rating of 20 points under the Impairment Tables. Contrary to the view of the Social Security Appeals Tribunal it is Table 4, not Table 1, of the Impairment Tables that is to be used in relation to Ms Danaher’s conditions. Table 1, as its introductory passage makes clear,
… is to be used with a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
Table 4 is used where a person has a permanent condition resulting in functional impairment when performing activities involving spinal function, bending or turning the back, trunk or neck. The description for a 20 point rating under that Table is in these terms:
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.
In the course of Dr Adam’s examination it appeared that Ms Danaher’s neck flexion, extension and rotation was such as would satisfy paragraph (b) however he subsequently observed her flexing her head forward to a much greater extent after the examination. The same is true of her lumbar spine flexion and extension. On the basis of Dr Adam’s observations, which I accept, Ms Danaher does not satisfy the 20 point descriptor under Table 4 even if I had accepted that is was open to assign a rating to her condition.
The result is that the original decision was correct. None of Ms Danaher’s conditions are capable of being assigned ratings under the Impairment Tables. The decision of the Social Security Appeals Tribunal ought be set aside and a decision substituted that the original decision of 8 May 2013 be affirmed.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC .....................[Sgd]...................................................
Associate
Dated 4 July 2014
Date of hearing 30 June 2014 Applicant In person Advocate for the Respondent Mr R McQuinlan, Program Litigation and Review Services, Department of Human Services.
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