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

[2018] AATA 4482

Sharman and Secretary, Department of Social Services (Social services second review) [2018] AATA 4482 (3 December 2018)

Division:GENERAL DIVISION

File Number(s):      2015/1818

Re:Jayson Sharman

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:3 December 2018

Place:Melbourne

The decision under review is affirmed.

........................................................................

Mr A. Maryniak QC, Member

Catchwords

SOCIAL SECURITY – claim for disability support pension – assessment of impairments – 20 point requirement not satisfied – 10 points assigned for impairment from spinal condition – other claimed conditions given no impairment points or not fully diagnosed, treated and stabilised - decision affirmed

Legislation

Social Security Act1991       

Social Security (Administration) Act 1999

Secondary Materials

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

REASONS FOR DECISION

Mr A. Maryniak QC, Member

3 December 2018

1. On 12 March 2015 the Social Security Appeals Tribunal (SSAT) affirmed a decision made by an Authorised Review Officer of Centrelink on 14 January 2015 to cancel Mr Sharman’s (the Applicant) Disability Support Pension (DSP).  On 29 June 2016 this Tribunal affirmed that decision.  Subsequent to an appeal by the Applicant on 23 August 2017 the Federal Court ordered by consent that the matter be remitted to this Tribunal (Consent Order).

2. Consistent with the concession noted on the Consent Order the parties agreed that the relevant date regarding the Applicant’s qualification for DSP was the date when the Applicant’s DSP was originally cancelled – 17 December 2014.  The Tribunal agrees.

3. At the hearing, the Applicant gave evidence that his conditions were generally unchanged currently and was not cross-examined.  Further evidence tendered comprised the T-documents as Exhibit R1 together with exhibits AA1, A1 to A6 and R2 to R7, largely comprising medical reports.

   The legislation

4. The relevant legislation is contained in:

   (a)Social Security Act1991 (the Act).

   (b)Social Security (Administration) Act 1999 (the Administration Act).

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

5. Policy advice contained in the Guide to the Social Security Law (the Guide) is also relevant.

6. Section 27(3) of the Act provides that where an assessment notice has been given to a person receiving a DSP in relation to assessing the person’s qualifications, the Secretary must apply the instrument in force at the date of the notice.

7. Section 94 of the Act sets out the qualification criteria for a DSP. It provides that a person is qualified if:

   (a)they have a physical, intellectual or psychiatric impairment(s);

   (b)that impairment(s) attract(s) an impairment rating of 20 points or more from the Impairment Tables; and

   (c)the person has a “continuing inability to work”.

8. The Impairment Tables took effect from 1 January 2012 and is therefore relevant to the determination of the current application.

9. The Impairment Tables contain rules for their application; the Rules for Applying the Impairment Tables (the Rules).  The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.

10. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.  A person’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person (section 6(1) of the Rules).

11. The Impairment Tables may only be applied after the person’s medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than 2 years (sections 6(2)-(3) of the Rules).

12. A condition is permanent if it is fully diagnosed, treated and stabilised and likely to persist for more than 2 years (subsection 6(3)-6(7) of the Rules).

13. Section 6(5) of the Rules states that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, 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 two years.

14. Section 6(6) states that a condition is fully stabilised if:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years; or

    (b)the person has not undertaken reasonable medical treatment for the condition; and

    (c)the significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment; or

    (d)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.

15. For the purposes of section 6(6) reasonable medical treatment is treatment that is:

    (a)available at a location reasonably accessible to the person;

    (b)is at a reasonable cost;

    (c)can reliably be expected to result in a substantial improvement in functional capacity;

    (d)is regularly undertaken or performed;

    (e)has a high success rate; and

    (f)carries a low risk to the person.

16. The Impairment Tables are function-based.  They describe functional activities, abilities, symptoms and limitations.  From this it follows that the “descriptors” in each table are measures of the functional impact of impairment – they are examples that assist determination of the rating that may be assigned to an impairment and, in the language of paragraph 11(1)(c), they are “the descriptors for that level of impairment”.

    Assessment Notice

17. On 12 August 2014 the Secretary issued a Notice to the Applicant pursuant to s 63 of the Administration Act, namely the Medical Report Disability Support Pension form [T12/52-65].

18. The Respondent contends and the Tribunal finds that this notice was a valid notice issued requiring completion of a questionnaire by the Applicant and his attendance for a medical examination with the report to be provided to the Secretary for the purpose of assessing his qualification for disability support pension.

19. The Tribunal finds that this notice was issued pursuant to section 63(4) of the Administration Act.

20. Section 27(3) of the Act provides that in circumstances where a person in receipt of DSP is given such a notice, their qualification is to be assessed in accordance with the instrument in force on the date the assessment notice was given.

21. The Applicant’s qualification for DSP must therefore be assessed in accordance with the Impairment Tables issued in 2011 and in force on 12 August 2014.

    Contentions

22. The Respondent accepts that the Applicant satisfies s 94(1)(a) of the Act, as he suffers from impairments arising from the following conditions:

    (a)Back condition;

    (b)Depression.

23. The Tribunal is to determine whether the Applicant’s impairment(s) can be assigned 20 points or more under the Impairment Tables – s 94(1)(b) and if so, whether he has a continuing inability to work under s 94(1)(c).

24. The Applicant contends his:

    (a)back condition causes difficulty in walking or standing for extended periods and warrants a rating of 10 points for spinal impairment and 5 points for lower leg impairment;

    (b)continence condition warrants a rating of 10 points;

    (c)mental health condition should be assigned 5 points; and

    (d)brain function impairment warrants a 5 point rating.

    Back Condition

25. The Applicant suffers from lower back pain due to an L5/S1 disc protrusion as a result of an injury sustained on 28 July 2008 [T12/58].

26. A lumbar spine MRI dated 6 May 2010 revealed spinal epidural lipomatosis and L5/S1 degenerative disc disease with disc protrusion impinging the right S1 nerve root.  Radiologist Dr Tony Tan recommended neurosurgical review.  In about August 2010, Associate Professor Gavin Davis, neurosurgeon, recommended surgery to remove the spinal epidural lipomatosis.

27. The Applicant told the SSAT that he initially had physiotherapy in the five months after July 2008 and had 12 sessions of Pilates and a further six sessions of physiotherapy around 2013 [T3/9].

28. Based upon the preponderance of evidence this Tribunal finds that at 17 December 2014 the Applicant’s back condition was fully diagnosed, treated and stabilised and more than likely to persist for more than two years.  The Respondent contended it was not fully diagnosed, treated and stabilised as the Applicant had not undertaken recommended reasonable treatment options.

29. The evidence of Dr David Elder, Mr Kenneth Myers, Mr David De Le Harpe, Dr Fadi Elsaafin, Dr Michael Fogarty and Dr Mary Wyatt, which spans a period of over five years since the back injury, has been carefully considered, including the evidence of the Applicant.  The Tribunal is of the view that the Applicant had undertaken “reasonable treatment” through recommended physiotherapy and hydrotherapy until he could no longer afford it and Pilates until pain stopped him from continuing.  (T8, T10, T12 and Ex R2). In a report dated 17 February 2014 (T10) Mr Myers considered “the opportunity for successful surgery” had long passed and Dr Wyatt in a later March 2016 report adopted a similar view (Ex A6). The Tribunal accordingly finds that surgery was not a reasonable treatment option for the Applicant to have undertaken at the date of cancellation.

    Spinal Function

30. Dr Elsaafin says the Applicant is “restricted in all activities”, “unable to carry heavy objects”, “unable to sit or stand for a prolonged time” (T12). The Respondent contended these descriptions do not relate to any functional impairment and hence cannot be utilized to assign an impairment rating.  The Tribunal acknowledges this contention and instead places weight on the Job Capacity Assessment Report of 30 October 2014 (JCA) (T13) which references numerous medical reports and is contemporaneous with the cancellation decision. The JCA says the Applicant was able to sit in a car for 30 minutes but was unable to sustain overhead activities or bend forward to pick up a light object at knee height, which accords with the relevant descriptors for a moderate impairment rating under Table 4 – Spinal Function. On the evidence, the Tribunal assigns a rating of 10 points to the spinal function impairment.

    Lower Limb Function

31. There is sufficient evidence before the Tribunal to establish that the Applicant’s back condition results in pain radiating to the lower leg (T10, T12, Ex A5, R2 and R7) and can therefore be assigned an impairment rating under Table 3 – Lower Limb Function. Dr Elsaafin’s report on 4 September 2014 [T16/60] lists the only relevant functional impairment as “unable to sit or stand for a prolonged time.”  Further, Dr Elsaafin did not refer to any relevant lower limb functional impairments in his 3 August 2015 report and the Applicant told the SSAT that he could probably walk for up to 30 minutes at a time on a flat surface and that when he uses the stairs in his home he does so slowly due to his weak right leg. 

32. Dr Wyatt reported on 8 March 2016 that the Applicant tried to walk regularly for typically 10-15 minutes but longer periods of walking aggravated his back and leg pain.  The Respondent submits that this indicates nothing regarding the Applicant’s functional limitations but, in any event, such evidence is of little weight as it is contained in a report made over a year after the cancellation date.  The Tribunal agrees.

33. Hence, the Respondent submits and the Tribunal finds on the evidence that the Applicant can walk for 30 minutes and that there is no evidence that he requires a prosthesis or walking stick to mobilise effectively. The Tribunal notes the Applicant’s submission that he has “difficulty walking or standing for extended periods”, which warrants a 5 point impairment rating. However, this does not specifically address the descriptors for a mild impairment rating under Table 3. The JCA report notes that he was able to stand for at least 10 minutes and it follows that neither of the mandatory descriptors for a 5 point rating are met. Therefore no impairment rating under Table 3 is warranted.

    Continence Function Condition

34. As at 17 December 2014 conflicting views remained as to the causal relationship between the Applicant’s back condition and his bowel incontinence.  Dr Tan, Dr Wyatt, Dr Elder, Dr Elsaafin and the consultant neurosurgeon at the Austin Hospital in 2010 agree with the causal connection.  Mr De La Harpe suggested pain could be related to the incontinence.

35. However, Kenneth Myers (R2) doubted any connection, recommended review by a gastroenterologist and doubted that a laminectomy would be required for incontinence of bowel function.  Also Mr Fogarty was “not convinced” by the suggested causal connection (R4).

36. In light of the conflicting evidence before the Tribunal, and the fact that the Applicant has not had his condition reviewed by a gastroenterologist, the Tribunal cannot be satisfied that the Applicant’s bowel incontinence is a consequence of his back condition and hence the Tribunal finds the continence condition cannot be regarded as fully diagnosed, treated and stabilised as at 17 December 2014.

    Depression / Mental Health Condition

37. The Applicant’s depression was diagnosed by Dr Elsaafin on 15 September 2009 due to his back condition, who noted that it was also diagnosed by a Centrelink psychologist (Ex 3, A3, T12, T7).

38. However, in relation to diagnosis of mental health conditions the Guide to the Social Security Law requires: 

    The diagnosis of the condition must be made by an appropriate qualified medical practitioner.  This includes a general practitioner or a psychiatrist.  Where the appropriately qualified medical practitioner is not a psychiatrist, the diagnosis must be made by a general practitioner with evidence from a clinical psychologist.  (3.6.3.50).

39. On the evidence before the Tribunal, the only report of a clinical psychologist is that of Dr Mary Lazaridis dated 12 February 2016, which states that the Applicant was referred to her by Dr Elsaafin in January 2015 “because he was experiencing [a]nxiety and [d]epression – since September 2014 – in context of work related back injuries and difficulties with Centrelink” (A4).  Dr Lazaridis saw the Applicant on 8 February 2015 and reported that the Applicant was suffering from depression and anxiety.  However, all this took place after the cancellation date.

40. Dr Lazaridis’ report is not evidence of the Applicant’s depression being fully diagnosed, treated and stabilised at the cancellation date.  The depression appears only to have developed to an extent requiring the assistance of Dr Lazaridis in September 2014 and there is no evidence that the Applicant continued to have psychotherapy or adequately trialled anti-depressant medication, if at all, within the relevant period.

41. Therefore, on the evidence before the Tribunal the Applicant’s condition of depression was not fully diagnosed, treated and stabilised as at 17 December 2014 and therefore no impairment rating can be assigned.

    Brain Function Impairment

42. As at 17 December 2014 the Applicant was enduring chronic back pain and lack of sleep related to his back condition (T10, T12, R4).  He contends that as a result his daytime alertness and ability to concentrate or focus was impaired to warrant 5 points under Table 7 – Brain Function  (T12, R4, A6).

43. Dr Myers recorded on 17 February 2014 that the Applicant’s pain “markedly interferes with his sleep” and assessed the Applicant as having a 5% impairment for reduced daytime alertness under the “AMA guides to the evaluation of permanent impairment” but not, relevantly, the Impairment Tables.  Also, such an impairment is not a descriptor in the Impairment Tables and Dr Myers does not address any of the required descriptors for an assignment of at least 5 points under the Impairment Tables.

44. Although the Applicant asserts some difficulties with attention and concentration it is not clear on the evidence whether these symptoms are caused by the Applicant’s back condition or his depression, as discussed above, or both.  If there is a combined effect from multiple conditions the Tribunal notes it would be confined to assessing any impairment under a single table in accordance with Rule 10(5) of the Impairment Tables.

45. The Respondent submits and the Tribunal agrees, in light of its finding regarding the Applicant’s depression above, that it is not possible on the evidence to conclude the cause of any brain function impairment until such time as the depression is fully diagnosed, treated and stabilised.

46. In the circumstances no impairment rating is assigned for the brain function condition.

    CONCLUSION

47. In summary, the Applicant has an impairment rating of 10 points under Table 4 relating to his spinal function.

48. As the Applicant does not have an impairment rating of 20 points or more under the Impairment Tables, he does not satisfy s 94(1)(b) of the Act.

49. As a result, there is no requirement to consider whether or not he has a “continuing inability to work” under s 94(1)(c).

50. The Applicant, if so advised, may consider making a new claim for the DSP if his circumstances and the consequential medical evidence have changed since the cancellation date.

    DECISION

51. The Tribunal affirms the decision under review.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

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

Associate

Dated: 3 December 2018

Date of hearing:	1 June 2018
Counsel for the Applicant:	Andrew Roe
Advocate for the Respondent:	Mr Nam Nguyen
Solicitors for the Respondent:	Sparke Helmore