Seyfang; Secretary, Department of Social Services and (Social services second review)
[2016] AATA 243
•18 March 2016
Seyfang; Secretary, Department of Social Services and (Social services second review) [2016] AATA 243 (18 March 2016)
Division
GENERAL DIVISION
File Number
2014/1504
Re
Secretary, Department of Social Services
APPLICANT
And
Daniel Seyfang
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 18 March 2016 Date of written reasons
18 April 2016 Place Adelaide The Tribunal sets aside the reviewable decision of the Social Security Appeals Tribunal dated 11 February 2014 and decides in substitution for that decision that Mr Seyfang did not satisfy the qualification requirements for disability support pension contained in subsection 94(1) of the Social Security Act 1991 as at the date of his claim on 22 April 2013 or within 13 weeks of that date.
........... [Sgd] ...........................................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether respondent’s back condition fully treated and stabilised as at assessment period – Whether impairment attracted 20 points under Impairment Tables – Whether Table 1 or Table 4 applicable – 20 point criteria not met – Decision under review set aside and substituted.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Schedule 2, clause 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011CASES
Secretary, Department of Social Services and Smith [2015] AATA 578
REASONS FOR DECISION
Deputy President K Bean
18 April 2016
In 1994, when he was only 16, the respondent, Mr Seyfang, suffered a very serious motor cycle accident in which he sustained multiple thoracic vertebral crush fractures. He managed to return to full-time work within 12 months of this accident and was relatively pain free for a number of years. However, in about 2009 the pain in his thoracic spine returned.
Unfortunately, by 2012, this was becoming more severe, and in the second half of 2012 his condition deteriorated quite dramatically. Although he attempted to continue running his small business as a pool cleaner, this became increasingly difficult. He was also having difficulties with his low back, with scans revealing degenerative changes in this area. When he woke up on the morning of 1 January 2013, he found that he was unable to move one of his legs, and it transpired that he was not able to return to work after this due to the severity of his pain and restrictions.
As he had not been able to work since 1 January 2013 due to pain and disability, on 22 April 2013 Mr Seyfang lodged a claim for the disability support pension (DSP). This was initially rejected, and that rejection decision was affirmed by an Authorised Review Officer (ARO) on 9 December 2013. However, Mr Seyfang then sought review of the decision of the ARO by the Social Security Appeals Tribunal (SSAT), and on 11 February 2014, the SSAT decided to set aside the decision of the ARO and substituted a decision that Mr Seyfang was qualified for DSP as at the date of his claim.[1]
[1] Exhibit 1, T2/2.
On 24 March 2014, the Secretary of the Department of Social Services applied to the Tribunal for review of the decision of the SSAT, giving rise to these proceedings.
Following the hearing on 1 and 2 March 2016, I made my decision on the application and gave oral Reasons on 18 March 2016. On 23 March 2016, Mr Seyfang’s representative, Ms Del Canto, requested that written Reasons be provided, and these Reasons have been prepared in answer to that request.[2]
[2] On 24 March 2016 the Secretary also requested written Reasons.
STATUTORY FRAMEWORK AND ISSUES
In broad terms the issue before me is whether Mr Seyfang was qualified for DSP as at the date of his claim on 22 April 2013 or within 13 weeks of that date, by 22 July 2013 (the assessment period).[3] As I will discuss further later in my Reasons, having regard to the statutory context, the Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[4]
[3] Social Security (Administration) Act 1999, Schedule 2, clause 4.
[4] See Secretary Department of Social Services and Smith [2015] AATA 578.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act) and in order to qualify for DSP, Mr Seyfang must establish that, as at the assessment period:
(a)He had a physical, intellectual or psychiatric impairment;
(b)That impairment rated at least 20 points under the Impairment Tables;[5] and
(c)He had a continuing inability to work within the meaning of s 94 because of the impairment.
[5] This is reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
I will proceed to address each of these requirements by reference to the evidence and the contentions of the parties.
DID MR SEYFANG HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Having regard to his serious back condition, there is no dispute between the parties that, during the assessment period, Mr Seyfang suffered from a physical impairment and therefore satisfied subs 94(1)(a) of the Act.
I note that in his claim for DSP, Mr Seyfang’s doctor, Dr Ng, also indicated that Mr Seyfang was suffering from depression and hypertension.[6] However, at the hearing before me, Ms Del Canto conceded that neither of these conditions gave rise to an impairment which was relevant to assessing whether Mr Seyfang qualified for DSP.
AT THE RELEVANT TIME, DID MR SEYFANG HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
[6] Exhibit 1, T18/200-203.
The requirements
As set out above, subs 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.
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.
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.
Subsection 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.
Subsection 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.
Subsection 6(7) provides that reasonable treatment is treatment that:
·is available at a location reasonably accessible to the person; and
·is at a reasonable cost; and
·can reliably be expected to result in a substantial improvement in functional capacity; and
·is regularly undertaken or performed; and
·has a high success rate; and
·carries a low risk to the person.
As at the assessment period, was Mr Seyfang’s back condition fully diagnosed, treated and stabilised?
Fully diagnosed
As I understand the position, there is no dispute between the parties that, as at the assessment period, Mr Seyfang’s overall back condition had two components, namely the crush fractures in his thoracic vertebrae, and degenerative changes in his lumbar spine, and that each of these conditions was fully diagnosed.
Fully treated and stabilised
However, the Secretary contends that Mr Seyfang’s back condition was not fully treated and stabilised as at the assessment period.
In support of that position, the Secretary relies in part on the opinion of Dr Graham Long, Consultant Occupational Physician, who has provided a report of 14 July 2014 and also gave evidence at the hearing.
With respect to the question of whether Mr Seyfang’s condition was fully treated and stabilised, Doctor Long stated in his report:
Mr Seyfang reports undergoing extensive investigation at the Royal Adelaide Hospital, but unfortunately I have not had access to any of this documentation. He reports surgery being proposed by one specialist there but rejected by the other relevant clinic. Other treatment options would include further facet joint injections and rhizolysis for his low back pain. A coordinated pain management program should also be considered. This could include assistance with a graded exercise program, weight loss, psychological approaches to pain management, and a review of his medication usage. In particular I note he has only recently commenced a low dose of Lyrica which is often beneficial in the management of chronic pain, particularly where there is central sensitisation contributing. He has a referral to a pain physician, and hence I do not believe his condition could currently be considered fully treated and fully stabilised. These comments would equally apply to the relevant period between 22 April and 22 July 2013.[7]
[7] Exhibit 3, p 8.
I will address each of the potential treatments referred to by Dr Long in turn.
Surgery
The question of whether Mr Seyfang’s condition was fully treated and stabilised as at the assessment period has been complicated to some extent by the fact that, in the event, following a great deal of research and campaigning by him and on his behalf, he did undergo surgery, namely a nine level fusion operation on his thoracic spine with instrumentation, in November 2015. Much to the relief and joy of Mr Seyfang, his wife and family, fortunately, this surgery had been highly successful and has relieved much of the pain he was previously suffering.
However, it is my understanding of the law that in assessing Mr Seyfang’s qualification for DSP in the context of this application, I am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period.
Taking that approach, I note there is no evidence of surgery being recommended or offered to Mr Seyfang either prior to or during the assessment period.
The evidence is that in July 2012, Mr Seyfang’s general practitioner, Dr Ng, referred him to the Neurosurgery Department at the Royal Adelaide Hospital (RAH) for consideration of surgery or other treatment. A CT scan was also undertaken at this time which showed crush fractures at the T10, T9, T8 and T7 levels. On 17 January 2013, the Neurosurgical Registrar wrote to Mr Seyfang’s general practitioner indicating that “no surgical intervention” was required, however a further appointment was apparently made for three months’ time.[8]
[8] Exhibit 3, Tab 11.
Following a subsequent appointment on 19 February 2013, the Neurosurgery Outpatients Department referred Mr Seyfang for an opinion from the Spinal Unit at the RAH and also physiotherapy. Although that appointment ultimately took place in March 2014, it was not known during the assessment period how long Mr Seyfang would need to wait before seeing the Spinal Unit. Although it is not strictly relevant to my consideration, I understand that in the event, his appointment with the Spinal Unit was expedited after his General Practitioner wrote to the hospital. In any event, the outcome of that appointment was that surgery was not recommended as the “risks may outweigh the benefits”.[9]
[9] Exhibit 3.
I also note the opinion of a doctor from the Department’s Health Professional Advisory Unit, Dr Armstrong, who indicated in her report dated 5 June 2014:
Also from my clinical knowledge surgery is not usually indicated for stable fractures, without neurological involvement and/or anterior wedging is less than 50%. Mr Seyfang’s morbid obesity would also be a relative contraindication.[10]
[10] Exhibit 3, Tab 10, p 5.
On the basis of the evidence before me, I have concluded that as at the assessment period, surgery did not represent a treatment option which was available to Mr Seyfang and which could properly be regarded as “reliably … expected to result in a substantial improvement in functional capacity”, having “a high success rate” and carrying “a low risk to the person”.[11]
[11] Determination, subs 6(7).
Co-ordinated pain management program
As to the availability of this approach to Mr Seyfang, on the evidence, I understand that Mr Seyfang was referred to the RAH Pain Clinic by the Neurosurgery Outpatients Department in February 2013.[12] However, as Dr Armstrong later acknowledged, as at June 2014, he was still awaiting assessment by the Pain Clinic. She stated “I am aware that this clinic’s waiting times are often much more than 2 years”. Similarly, Dr Green, a Musculoskeletal, Rehabilitation and Pain Physician, stated in his report of 27 October 2014:
At the relevant period, for a referral to be issued to the public health sector assessment of Mr Seyfang’s pain condition in the public health system with a minimum wait of nine to thirty-six months would be expected.[13]
[12] Exhibit 3, Tab 11.
[13] Exhibit 3, Tab 12.
I note that in the event, Mr Seyfang was contacted by the Pain Unit for an appointment in January this year, although as I have indicated, that fact is not strictly relevant in assessing how long he was likely to have to wait as at the assessment period.
During his oral evidence, Dr Long indicated that he was aware of a private pain physician who offered a program in Adelaide at a cost of $400-$500. However, I also note Mr Seyfang’s evidence that, as at and around the assessment period, he and his family were under significant financial stress, such that, for example, he often walked to and/or from the train station in considerable pain as he did not have the money to afford taxis.
Having regard to the expected waiting period for Mr Seyfang to be assessed at the RAH Pain Clinic, together with the cost of undertaking a privately managed pain program, I have ultimately concluded that during the assessment period, the coordinated pain management program recommended by Dr Long was not in fact available to Mr Seyfang at a reasonable cost, and nor was it likely to be available to him within two years of the assessment period.
Facet joint injections
The evidence is that Mr Seyfang had undergone facet joint injections into his lumbar spine, from which he obtained some benefit, in August 2012 and October 2013.[14] However, all of the evidence is to the effect that the main source of Mr Seyfang’s pain and disability was his thoracic spine, and there is no evidence of facet joint injections having been recommended or undertaken for his thoracic spine. Accordingly, I am not satisfied that as at the assessment period, further facet joint injections were likely to result in Mr Seyfang experiencing a significant functional improvement.
[14] Exhibit 1, T23/225-226.
Rhizolysis
Mr Seyfang’s evidence was that he did ultimately undergo rhizolysis, in August 2015, in preparation for his fusion surgery in November 2015, and he obtained some benefit from this. However, this had not been recommended or offered to him prior to when he saw Dr Long in July 2014. I also note Dr Long recommended this for Mr Seyfang’s lower back, which was not the source of the majority of his pain and disability, and there is no evidence before me to the effect that as at the assessment period, rhizolysis was likely to result in a significant functional improvement enabling Mr Seyfang to undertake work within two years.
In these circumstances, I have concluded that, as at the assessment period, rhizolysis did not constitute reasonable treatment which was likely to result in Mr Seyfang experiencing a significant functional improvement within two years.
Weight loss
I note that in his report, Dr Long suggested weight loss as part of a coordinated pain management program which, for the reasons already given, I have concluded was not available to Mr Seyfang within two years. As to the likely efficacy of weight loss independently of a pain management program, the evidence before me is very limited. I did not understand Dr Long to suggest, in his report or oral evidence, that weight loss alone could be expected to result in Mr Seyfang being able to work at least 15 hours per week within two years.
The material before me also includes Mr Seyfang’s own evidence of his understanding that while it may assist with his lumbar spine pain, weight loss was not expected to help him with his thoracic spine pain, as the thoracic spine does not bear weight in the same way as the lumbar spine.
I also note that there is no evidence before me which supports the proposition that weight loss alone would improve Mr Seyfang’s functional capacity, and Dr Armstrong’s opinion was that his condition should be regarded as fully treated and stabilised as at the assessment period. Dr Green was also of that view.[15]
[15] Exhibit 3, Tab 12.
Having regard to the evidence before me, I have accordingly concluded that weight loss alone, in the absence of a coordinated pain management approach, was unlikely to result in a significant functional improvement in Mr Seyfang’s level of impairment, so as to allow him to work 15 hours per week within two years of the assessment period.
Physiotherapy
The question of whether further physiotherapy treatment was likely to result in significant functional improvement and, if so, to what extent, is a difficult one on the evidence before me.
In his oral evidence, Mr Seyfang explained that prior to the assessment period he had had conventional physiotherapy, including “hands on” treatment and Pilates, which he found of no meaningful benefit. However, he acknowledged that he received significant benefit from two different types of hospital based physiotherapy which he underwent and which did improve his functional capacity. As I understood his evidence, the benefit of this physiotherapy was in allowing him to strengthen his extremities and isolate his spine from particular functions, essentially so that he was able to do more without involving his thoracic spine in the relevant movements. This in turn meant that, whilst he was still severely limited by pain, with the assistance of the advice and exercises he was given by the physiotherapists, he was able to do more activities at home.
The effect of Dr Long’s oral evidence was also that physiotherapy could be expected to result in significant improvement in Mr Seyfang’s functional capacity, with a realistic expectation of him being able to return to some work.
On close consideration of the evidence however, it is significant that, contrary to Mr Seyfang’s recollection that he underwent hospital based physiotherapy in the second half of 2013, he in fact underwent the first lot of hospital based physiotherapy during the assessment period. This physiotherapy consisted of 11 sessions with the “student physiotherapy clinic” from 7 March 2013 until 25 June 2013.
Ms Abi Ehrlich, Clinical Senior, Outpatients And Speciality Services, Physiotherapy Department, RAH, provided a report to Mr Seyfang’s former solicitors with respect to this physiotherapy on 15 January 2015.[16] In that report, Ms Ehrlich stated as follows:
Mr Seyfang attended 11 sessions with the student physiotherapy clinic from 7/3/2013 to 25/6/2013. Initial assessment revealed chronic spinal pain with central sensitisation and aggravation secondary to deconditioning. At this time he had not been working since 1/1/2013 and reported significant functional limitations. He was using oxycontin and tramadol twice a day and endone as required. Main clinical findings on objective examination included reduced motor control and endurance in his core stabiliser muscles and spinal stiffness. Treatment focused on prescription of a graded home exercise program to improve flexibility, core strength and general fitness combined with local mobilisation techniques. During the course of treatment, Mr Seyfang had fluctuating symptoms however slow improvements were noted subjectively and objectively. His Oswestry Disability Index score decreased from 52% (severe disability) to 40% (upper limit of moderate disability) which indicates a clinically significant improvement. At his last session his progress had plateaued and he was deemed suitable to continue with his home exercise program. The chronic nature of his condition was highlighted and recommendations were made regarding self management strategies.”
[16] Exhibit 3, Tab 13.
As I understood Mr Seyfang’s evidence, it was following these 11 sessions that he experienced an improvement in his functional capacity such that he was able to carry out some activities around his home, such as untucking his sheets or emptying the top shelf of the dishwasher, whereas prior to that physiotherapy, he was unable to do these things. However, he also explained that his ability to do various household tasks improved gradually over time, and said that he was able to do more household tasks after he and his family moved house in March 2014. He mentioned that after the move he and his wife bought a hand held vacuum cleaner or “dustbuster” which he was able to use to some extent.
I also note from Ms Ehrlich’s letter that further sessions of physiotherapy with the RAH Physiotherapy Department commenced on 11 June 2014, only shortly before Mr Seyfang saw Dr Long on or about 14 July 2014.
I note further that whilst Dr Long indicated in his oral evidence that as at the assessment period, further physiotherapy could have been expected to result in Mr Seyfang experiencing a significant functional improvement, in his written report, he did not nominate the need for further physiotherapy treatment as a reason why Mr Seyfang’s condition should not be regarded as fully treated and stabilised. I also note that it is apparent on the evidence that the physiotherapy from which Mr Seyfang appears to have derived most benefit actually occurred during the assessment period, concluding on 25 June 2013 when his condition had “plateaued” and he was “deemed suitable to continue with his home exercise program”.
On analysis of the evidence, it is apparent that it was this physiotherapy which improved Mr Seyfang’s functional capacity and resulted in him developing the capacity to carry out the activities around his home described in Dr Long’s report of 14 July 2014. There is little evidence to suggest that, as at the end of the assessment period in July 2013, it could reasonably be expected that further physiotherapy treatment would result in a further significant functional improvement.
Taken as a whole therefore, the evidence is to the effect that at that time, Mr Seyfang did not need further hospital based physiotherapy and he was effectively “discharged” from that treatment on 25 June 2013. In the event, after he saw the Spinal Assessment Clinic he was again referred to the Physiotherapy Department for management of his condition. However, in my view, the evidence does not support the proposition that as at the date of his discharge from the student physiotherapy clinic on 25 June 2013, additional physiotherapy was expected to result in a further significant functional improvement. From a physiotherapy point of view therefore, I consider Mr Seyfang’s condition was fully treated and stabilised as at the date of his last treatment on 25 June 2013, approximately four weeks before the end of the assessment period.
Overall Assessment
For the reasons I have given, I have ultimately concluded that at the beginning of the assessment period on 22 April 2013, the only further treatment which offered the prospect of significant functional improvement and was available to Mr Seyfang within two years at a reasonable cost, was hospital based physiotherapy. As he had not completed the 11 sessions of hospital based physiotherapy at the student clinic at that time, I have concluded that his condition could not be said to have been fully treated and stabilised at the beginning of the assessment period. However, I do consider that his condition was fully treated and stabilised as at 25 June 2013, at the completion of the 11 sessions at the student physiotherapy clinic, from which he derived significant benefit. I have therefore concluded that Mr Seyfang’s condition was fully treated and stabilised as at 25 June 2013.
During the assessment period, did Mr Seyfang’s back condition attract a rating of 20 points under the Impairment Tables?
Which Table applies?
The Secretary contends that given the nature of Mr Seyfang’s condition and the fact it relates specifically to his back, the appropriate table is Table 4 relating to spinal function. The Secretary also relies on the opinions of Dr Long and Dr Green that Table 4 is the applicable table in Mr Seyfang’s case. In addition, the Secretary relies on subs 6(9) of the Determination, which relevantly provides as follows:
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)…
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; …
However, Ms Del Canto directed my attention to various parts of the Guidelines to the Tables for the Assessment of Work-related Impairment for DSP, in particular those parts which address assessing the functional impact of pain. The most relevant parts of the Guidelines appear to be the following:
Where a permanent condition results in chronic pain, the first step is to consider the functional impact as outlined in the medical evidence, for example, does it impact spinal function, upper or lower limb function, concentration and memory or physical exertion and stamina (fatigue).
The next step is to determine which Impairment Table/s apply to the impact while avoiding double-counting of the impairment. Selecting Tables for chronic pain:
· where chronic pain does not impact physical exertion and stamina there will be no need to consider the use of Table 1-Functions requiring Physical Exertion and Stamina,
· where chronic pain does impact physical exertion and stamina and this is adequately assessed by another selected Table, there will be no need to consider the use of Table 1- Functions requiring Physical Exertion and Stamina,
· where chronic pain impacts physical exertion and stamina (i.e. results in fatigue symptoms) and this is not adequately assessed by another Table, Table 1- Functions requiring Physical Exertion and Stamina may need to be considered, while ensuring that the level of impairment is not overstated.
...
Example 1: A person with stabilised permanent condition that results in chronic lower back pain should be assessed using Table 4 - Spinal Function. The functional impact of the person's impairment on the person's ability to bend, move their trunk and remain seated would be assessed in accordance with the descriptors in that Table. In determining the level of impairment, consideration should be given to the impact of pain resulting from the back condition on the person's ability to undertake activities within the descriptor, e.g. the person cannot bend or move their trunk on a repetitive basis due to the chronic pain they experience on doing so.
…
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).[17] 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.
[17] I note there is no explanation given as to why or on what basis the (1) (b) descriptor would be met.
My understanding of the evidence before me is that as at the assessment period, Mr Seyfang’s chronic back pain did impact his physical exertion and stamina. He gave numerous examples of instances where his ability to do certain things or perform certain tasks would depend on what he had already done that day. He explained that the extreme pain that he was suffering had a cumulative impact such that it reduced his capacity to perform tasks or engage in activities which, theoretically, he was not actually prevented from doing by his back impairment. He also explained that, if absolutely necessary, he could do certain things, such as walk from his house to the train station and/or back, but would be extremely debilitated after having done so, because of the impact of the pain resulting from these activities.
On my reading of the Guidelines, as Mr Seyfang’s chronic pain did impact physical exertion and stamina, the next question is whether this is nevertheless adequately assessed by another applicable Table, in this case Table 4.
With respect to the adequacy of Table 4 in assessing Mr Seyfang’s impairment, I note that the criteria in Table 4 are directed specifically to particular indicators which reflect a person’s range of movement and sitting tolerance. Applying these criteria to Mr Seyfang and focussing on the descriptors for a 10 and 20 point rating, the applicable criteria relate to his ability to perform overhead activities, and his ability to get up out of a chair and/or remain seated. As he explained at the hearing, his back problems have never caused him any difficulty in turning his head or bending his neck and nor have they caused him difficulties with bending forward to pick up a light object, as his main problem is in his thoracic spine and he can bend at the waist.
Having regard to the severity of Mr Seyfang’s pain and disability during the relevant period, there is a real question in my view as to whether his impairment would be adequately assessed under Table 4. I also note that it is agreed between the parties that the maximum impairment rating Mr Seyfang could attract under Table 4 would be a rating of 10 points.
With respect to Table 1, I note this allows for consideration of the impact of a person’s condition on their ability to perform a range of activities, including walking and performing light day-to-day household activities, and takes into account the ability of the person to do relevant activities on a sustained basis. I also note the opinion of the Department’s own doctor, Dr Armstrong, that Mr Seyfang’s impairment was more appropriately assessed under Table 1. Whilst none of the doctors has assessed Mr Seyfang as suffering an impairment rating of 20 points under Table 1 during the assessment period, I also note Ms Del Canto’s argument that the evidence does potentially allow for a rating of 20 points under Table 1, as in fact assessed by the SSAT.
Following a close consideration of the evidence in this matter, together with the Guidelines, I have ultimately concluded that as at the assessment period, Mr Seyfang’s situation was similar to that described in Example 4 quoted above, in that he was suffering chronic thoracic pain and had reduced tolerance for all physical tasks due to the pain he experienced. Like the man referred to in Example 4, he could undertake some self care activities but required assistance with all domestic tasks, including light tasks, due to the effects of pain and “endurance and stamina deficits”. Like the man in the example, he also could bend to just below knee level, meaning that he did not meet the criteria for a 20 point rating under Table 4, but his condition impacted on “physical exertion” and “spinal movement”. Subject to the outcome of a more detailed consideration of the rating which can be allocated, I have accordingly also concluded that it is open and appropriate for Mr Seyfang to be given an impairment rating under Table 1, although I accept that it would be inappropriate to allocate a rating under both Table 1 and Table 4, as this would involve double counting.
As at the assessment period, did Mr Seyfang attract a rating of 20 points under Table 1?
Table 1 relevantly provides as follows:
Points
Descriptors
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.
I should acknowledge at the outset that Dr Armstrong was of the view that Mr Seyfang’s impairment attracted a rating of 10 points under Table 1. Similarly, when he was asked to give an opinion at the hearing, Dr Long indicated that if Table 1 were applicable, Mr Seyfang’s impairment would rate 10 points under that Table.
In addition, it is clear on the evidence that at the relevant time Mr Seyfang could walk around a shopping centre or supermarket without assistance from another person and could also walk from the carpark into a shopping centre or supermarket without assistance from another person, and he could also use public transport without assistance from another person. Therefore, the only criterion under descriptor 1(a) of the 20 point rating which is potentially applicable is that relating to performing light day-to-day household activities.
The best evidence of what Mr Seyfang could do by way of household activities as at the end of the assessment period is contained in Dr Long’s report where, at page 5, Dr Long described what Mr Seyfang was able to do as follows:
In relation to his day-to-day functioning, he reports making many modifications to his activities around the home. He spends much of his time in a recliner chair, either watching television or accessing his computer. He is no longer able to use a heavy Kirby vacuum cleaner, but can use a light battery-powered Dyson cleaner for short periods. He is able to pull up the bed sheets and quilt, but unable to tuck in the sheets to make the bed. He can hang a few clothes on the line and retrieve these but cannot hang heavier items such as sheets. He could fold the clothes provided this was done at a good height which did not require bending or stooping. He does not load the washing machine as this is a low front loader. Although he is able to kneel and swat with support, he tends to avoid this action. He reports only very limited tolerance for food preparation due to pain with stooping. He can make a sandwich, or heat up noodles or spaghetti and prepare oat cereal for breakfast. He can empty the top shelf of the dishwasher, but avoids the lower shelf, and generally his wife loads up the dishwasher at night. They have moved a lot of things at home to a more convenient height for easier access. He does not sweep or mop.
Mr Seyfang essentially agreed with this as being an accurate description of what he could do at the time he saw Dr Long, although as I understood his evidence, some of these things he was only able to do after he moved house and therefore after the end of the assessment period.
The question of whether being able to do some of the activities described by Dr Long during the assessment period amounts to being able to “perform light day-to-day household activities” within the meaning of Table 1 is a difficult one. In my view, there is a reasonable argument that, during the assessment period, Mr Seyfang could not perform household activities “normally and on a repetitive or habitual basis”, and therefore met this part of the criteria for a 20 point rating under Table 1.[18]
[18] Determination, subs 11(3).
However, in order to satisfy the requirements for a 20 point rating, I note that Mr Seyfang would also need to establish that he was likely to have difficulty “sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours”. I note that the SSAT did not address this second limb of the criteria for a 20 point rating under Table 1.
Unfortunately for Mr Seyfang, he faces a number of difficulties in meeting this requirement.
One of the main problems for him is that there is very little evidence addressing this criterion. There was reference in the evidence to how long Mr Seyfang could sit for, and the preponderance of the evidence is to the effect that at the relevant time he could sit for up to three hours, albeit in his recliner rather than an ordinary chair. During his evidence Mr Seyfang acknowledged having been able to sit for three hours in his recliner, and although it did not relate specifically to the assessment period, in his report of 1 May 2015, Dr Ng expressed the opinion that Mr Seyfang would have difficulty with “prolonged sitting, 3 hours or more”. Mr Seyfang also explained to Dr Long and in his oral evidence that he was able to use a laptop in his recliner, and after the assessment period had undertaken study in this way.
There is some evidence that Mr Seyfang had more difficulty sitting in more upright chairs, including in a car and at church, and he explained in his evidence that “stooping” caused great pain in his thoracic spine. Although it was not specifically addressed in any of the evidence, I infer that sitting in a more upright chair may have been more difficult for Mr Seyfang due to the need to position his thoracic spine further forward. However, this was not specifically corroborated by any of the medical evidence.
It is also difficult to infer that any doctor who has considered this issue regarded Mr Seyfang as satisfying descriptor 1(b) of the 20 point rating in Table 1 by reference to his inability to sit and work in an ordinary chair for up to three hours, or perhaps his difficulty focussing. Indeed, each and every doctor who has been asked to consider the application of Table 1 has indicated that Mr Seyfang attracted a rating of less than 20 points under that Table. As I have already referred to, Dr Long is of the view that he attracted a rating of 10 points, Dr Armstrong also assessed him as attracting 10 points, and Dr Ng concluded that he “would score closer to 20 rather than 10”, but did not indicate that he satisfied the criteria for a 20 point rating.
In the event, I have ultimately concluded that even if I was satisfied that Mr Seyfang met descriptor 1(a)(iv) for a 20 point rating under Table 1, the evidence does not allow me to be positively satisfied that he met descriptor 1(b) as it does not establish that, during the assessment period, he was likely to have difficulty performing sedentary tasks for a continuous shift of three hours.
I have accordingly concluded that, as at the assessment period, Mr Seyfang did not meet the criteria for a 20 point rating under Table 1, although he met the criteria for a 10 point rating and he also met the criteria for a 10 point rating under Table 4. Unfortunately for Mr Seyfang however, as he did not have an impairment attracting 20 points under the Impairment Tables, he did not satisfy sub 94(1)(b) of the Act and did not qualify for DSP at the time he lodged his claim or within 13 weeks of that date. In light of that conclusion, it is unnecessary for me to consider whether Mr Seyfang had a continuing inability to work within the meaning of subs 94(1)(c) of the Act.
In these circumstances, I am obliged to set aside the decision of the SSAT and substitute a decision that, as at the date of his claim for DSP and within 13 weeks of that date, Mr Seyfang did not satisfy the qualification requirements contained in s 94 of the Act.
DECISION
The Tribunal sets aside the reviewable decision of the Social Security Appeals Tribunal dated 11 February 2014 and decides in substitution for that decision that Mr Seyfang did not satisfy the qualification requirements for disability support pension contained in subsection 94(1) of the Social Security Act 1991 as at the date of his claim on 22 April 2013 or within 13 weeks of that date.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........ [Sgd] ..........................................
Associate
Dated 18 April 2016
Dates of hearing
1, 2 and 18 March 2016
Solicitors for the Applicant
Dr S Thompson
Sparke Helmore Lawyers
Solicitors for the Respondent
Ms S Del Canto
Welfare Rights Centre (SA) Inc.
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