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

Stephens and Secretary, Department of Social Services (Social services second review) [2019] AATA 206 (21 February 2019)
Division:General Division
File Number(s): 2018/2261
Re:Philip Stephens
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Member I F Thompson
Date:21 February 2019
Place:Adelaide

The Tribunal affirms the decision under review.
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Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether medical conditions fully diagnosed, fully treated and fully stabilised during the assessment period - whether an impairment rating of 20 points or more existed under the Impairment Tables - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth),
Social Security (Administration) Act 1999 (Cth)
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 ( December
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Secondary Materials
Social Security (Tables for the Assessment of Work-related
Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member I F Thompson
21 February 2019
INTRODUCTION

The Applicant, Mr Philip Stephens, lodged a claim for disability support pension (DSP) on 21 August 2017.[1] Centrelink rejected Mr Stephens’ claim in the first instance and Mr Stephens requested a review of that decision. On 29 January 2018, an authorised review officer (ARO) of Centrelink subsequently affirmed that decision.[2] Mr Stephens later requested a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 10 April 2018, AAT1 affirmed the decision on review.[3] Mr Stephens then applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a second review.
[1]    Exhibit 1, T12, 167 – 196.
[2]    Exhibit 1, T3, 13.
[3]    Exhibit 1, T2, 5 – 12.
The hearing took place on 7 December 2018. Mr Stephens was unrepresented. He attended the hearing by telephone from his residence at Port Pirie. Ms L Odgers represented the Respondent, the Secretary Department of Social Services (the Secretary). The Tribunal received in evidence the documents lodged by the Secretary in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) together with various medical reports and other documents. Mr Stephens called one witness, Ms R Kennedy, about his participation in a program of support.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (Cth) (the Act) relevantly provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment, and if that impairment attracts a rating of 20 points or more under the impairment tables.
The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (Cth). The assessment period in this case is 21 August 2017 to 20 November 2017 (the Assessment Period).
Further, s 94(2) of the Act requires that a person has a continuing inability to work which will be satisfied if:
a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
The impairment tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The Secretary’s submissions
The Secretary accepted that Mr Stephens suffers from an impairment from low back pain, left wrist fusion, type 2 diabetes, pulmonary emboli, dilated aortic root, reduced lung capacity, kidney stones and obstructive sleep apnoea, and therefore satisfies s 94(1)(a) of the Act.
The Secretary contended that:
a)Mr Stephens could be assigned an impairment rating of 10 points under the Impairment Tables for the condition of low back pain;
b)There was insufficient medical evidence to support a finding that Mr Stephens could be assigned any points for the left wrist fusion;
c)The type 2 diabetes was not fully stabilised and therefore could not be assigned an impairment rating; and
d)The condition of sleep apnoea was not fully diagnosed, treated and stabilised and could not be assigned impairment points. Further, that no impairment points should be assigned to the other conditions, namely pulmonary emboli, dilated aortic root and reduced lung capacity, and kidney stones, because of insufficient contemporaneous medical evidence.
Accordingly, the Secretary contended that Mr Stephens did not have a continuing inability to work and did not qualify for a DSP during the Assessment Period.
The main issue for determination is whether Mr Stephens’ impairments can be assigned 20 points or more under the Impairment Tables. However, consideration must first be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the Assessment Period before determining an assessment rating. This is because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.
THE IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings to the level of functional impact of impairments on DSP claimants. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Clause 6 of the Impairment Tables contains the rules for applying the various impairment tables. Clause 6(3) states that an impairment rating can only be assigned to an impairment if:
a)The person’s condition causing that impairment is permanent; and
b)The impairment that results from the condition is more likely than not, in light of available evidence, to persist for more than two years.
Clause 6(4) provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Clause 6(5) provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Clause 6(6) relevantly states that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for each of Mr Stephens’ conditions will be considered in turn by reference to the appropriate Impairment Tables.
EVIDENCE OF MR STEPHENS
Mr Stephens is 64 years of age. He resides at Port Pirie, South Australia, with his partner and two sons, aged 19 and 15. For 35 years he worked as a painter until he had an accident at work in June 2014, as a result of which he fractured his back. Many years earlier he had been employed as a youth worker. Until mid-2014 he was continuously engaged in work. However, due to his medical conditions he had been unable to work since that time.
Mr Stephens gave evidence to the Tribunal regarding the problems that he has in his daily activities. His back condition has been a major difficulty. He had extensive treatment for the condition including cortisone injections, physiotherapy, participation in pain management clinics, and that he currently takes medication to try to control the pain. Both at the time of making the DSP claim, and currently, his back causes him continuous pain. He cannot climb ladders or do very much in his yard. Overhead activities are restricted. He does what he can but he needs to rest. His activities are confined to providing minimal help around the house. He tries to assist with meal preparation.
Mr Stephens said that his back pain interferes with self-care. Sometimes he needs assistance with dressing, for example doing up buttons. The difficulties that he has with dressing are caused by his back condition. Bending and turning are problematic. He improvises by wearing slip-on shoes. Sometimes he cannot dry his legs and feet after a shower. He drives an automatic vehicle, however he generally confines driving to short, local, trips. As a passenger in a vehicle, he can travel from Port Pirie to Adelaide for a journey of some two hours; however he needs a couple of breaks during the trip.
Mr Stephens told the Tribunal that his left wrist has been frozen following an operation in 1994. He learnt to use his right hand when he was working as he cannot bend the left wrist. The fingers on his left hand are nimble; however he cannot bend the wrist. He improvises through use of the right hand which enables him to pick up objects. For example, he can pick up a carton of milk. And he can type using a finger on his right hand.
He told the Tribunal that his sleep is satisfactory, however he also snores. He had a sleep apnoea test early in 2018. He experiences shortness of breath intermittently. He says he can go for a month or so without any difficulty. Then the shortness of breath may occur again.
Mr Stephens was diagnosed with diabetes about 10 years ago. He takes medication for his diabetes and he does not think that it has a negative impact on his day-to-day life.
He consulted his general medical practitioner in 2018 for depression and he was told that he suffers from anxiety and depression.
Mr Stephens takes a range of medication to deal with the problems that he has with pulmonary embolisms, blood pressure, cholesterol, diabetes, depression and kidney stone prevention.
On an average day, Mr Stephens watches television, walks around the house, perhaps around the block as well and listens to music. He does not have an active social life and he prefers to keep to himself. He said his back condition is the main problem. A five-minute walk around the block causes a burning pain in the back and he takes medication to numb the pain.
Mr Stephens commenced a program of support at Port Pirie in mid-2016. Ms Kennedy supervised his participation in the program. He undertook job search and discussed options for vocational training. However, he was not able to find suitable employment. The severity of his back condition and the restrictions which it caused were part of the problem. The lack of suitable vocational options in his local area was also a problem.
The evidence which Mr Stephens provided to the Tribunal was comprehensive and consistent. He was an impressive and honest witness. He did not seek to exaggerate his difficulties. Plainly he suffers from a variety of problems arising out of several health conditions and those have a major impact on his day-to-day activities and routines.
CONSIDERATION
It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:[4]
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
[4] Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34].
In addition, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services, DP Handley stated:[5]
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
[5] Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 [33].
Back pain
Medical reports which were received in evidence outlined the history of the low back pain which Mr Stephens has suffered. In brief, they confirm that he had a compression fracture of the L1, L2 and T12 vertebra which was diagnosed in June 2014. The diagnosis was confirmed by the Royal Adelaide Hospital Spinal Unit.[6] Mr Stephens was treated with medication which included Lyrica (pregabalin) and Panadeine Forte.[7] Because of facet joint arthroplasty, a series of facet joint injections were scheduled.[8] By August-November 2017, Mr Stephens’ spinal fracture was reported by Dr SV Retnaswamy to be stabilised.[9]
[6]   Exhibit 1, T14, 212.
[7]   Exhibit 1, T14, 199 – 225 (various references).
[8]   Exhibit 1, T14, p 220 – 221.
[9]   Exhibit 1, T14, p 224 – 225.
Dr Retnaswamy is Mr Stephens’ general medical practitioner. He wrote a report dated 23 August 2018 which included a comment about the back pain secondary to spinal fractures diagnosed in 2014.[10] He confirmed that Mr Stephens had received cortisone and other specialised management and that the condition is now stabilised and no further treatment is likely to lead to any improvement. The report included observations about the restrictions which Mr Stephens has in his daily activities because of back pain. It causes difficulties with bending and twisting the trunk and lifting objects. In order to cope with the back pain, Mr Stephens frequently changes positions while sitting over a period of time. Dr Retnaswamy wrote that Mr Stephens was unable to sustain overhead activities and unable to bend forward to pick up objects at knee height.
[10] Exhibit 2.
The Tribunal refers to the Job Capacity Assessment Report, submitted 8 November 2017 (JCA report).[11] The JCA report outlined Mr Stephens’ pattern of daily activities. It is largely consistent with Mr Stephens’ evidence about his daily routines, recreational and domestic activities. The JCA report considered that there was a moderate functional impact on activities involving spinal function.
[11] Exhibit 1, T9, p 123 – 132.
The Tribunal accepts that the back condition was fully diagnosed, fully treated and fully stabilised at the time of Mr Stephens’ DSP claim and during the Assessment Period.
Table 4 – Spinal function of the Impairment Tables (Table 4) is to be used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following:

(a)    the person is unable to sustain overhead activities (e.g. accessing items overhead height); or

(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

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

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

Severe functional impact on activities involving spinal function attract 20 points as set out in Impairment Table 4 as follows:

Points

Descriptors

20

There is a severe functional impact on activities involving spinal function.

(1) The person is unable to:

(a)    perform any overhead activities; or

(b)    turn their head, or bend their neck, without moving their trunk; or

(c)    bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

Having heard Mr Stephen’s evidence and taking into account the medical evidence presented, the Tribunal accepts the accuracy of Dr Retnaswamy’s conclusion about the spinal condition. The Tribunal finds that there is a moderate functional impact on activities involving the spinal function.
Based on all of the evidence relating to the spinal condition a rating of 10 impairment points under Table 4 is appropriate.
Left wrist
A report from Dr N Hussain dated 1 July 2014 referred to Mr Stephens’ left wrist condition.[12] The report noted that the wrist was frozen following a bone graft and he was not able to flex, extend or move the left wrist. His dominant hand was the left-hand.
[12] Exhibit 1, T11, 145 – 155.
In his report dated 23 August 2018 Dr Retnaswamy referred to severe osteoarthritis of the left wrist which was fused by surgery.[13] He reported that there was no movement possible in the left wrist because of stiffness, that the condition is stable and Mr Stephens has had the maximum available treatment. Dr Retnaswamy wrote that Mr Stephens could manage most daily activities which involve the use of the hands. However, the report noted also that he has difficulty picking up heavier objects such as a two litre carton of liquid, and difficulty reaching out to pick up objects.
[13] Exhibit 2.
In the Secretary’s statement of facts and contentions, it was asserted that the left wrist fusion was fully diagnosed treated and stabilised in the Assessment Period, however there was insufficient medical evidence to support a finding that Mr Stephens should be assigned any impairment points.
At the hearing before the Tribunal, having heard Mr Stephens evidence, Ms Odgers maintained that there was insufficient corroborative evidence to assign impairment points. However, in the alternative, if an impairment rating was to be made, she contended that the rating could be five impairment points.

Impairment – Table 2 of the Impairment Tables (Table 2) is used where a person has a permanent condition that results in functional impairment when performing activities that require the use of hands or arms. Self-report of symptoms alone is insufficient and the diagnosis of the condition must be made by an appropriately qualified medical practitioner.
A mild functional impact on activities involving use of hands or arms attracts five points as set out in Table 2 as follows:

Points

Descriptors

5

There is a mild functional impact on activities using hands or arms.

(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)    handling very small objects (e.g. coins);

(c)    doing up buttons;

(d)    reaching up or out to pick up objects.

The Tribunal accepts that the left wrist condition was fully diagnosed, fully treated and fully stabilised at the time of DSP claim and during the Assessment Period. The appropriate rating is five points under Table 2.
Diabetes and kidney stones
Mr Stephens has type 2 diabetes. The condition is specified in the medical report for the DSP compiled by Dr Hussain in July 2014.[14] Dr Hussain wrote that Mr Stephens is ‘diabetic and on medication.’[15]
[14] Exhibit 1, T11, 145 – 155.
[15] Ibid 154.
Similarly, in a report for the DSP claim compiled by Dr D Martin,[16] reference is made to type 2 diabetes, managed by medication.[17] This reference is contained in the report’s section regarding other medical conditions, that are generally well-managed and have a minimal impact on Mr Stephens’ ability to function. Mr Stephens gave evidence about worsening sugar levels caused by recurrent kidney stone conditions which were painful and sickening. He thought that he has made a complete recovery. He may be prone to flare-ups and medical advice recommends checking by an ultrasound every six months.
[16] Exhibit 1, T11, 156 – 166.
[17] Ibid 165.
On the medical evidence available to the Tribunal, and noting Mr Stephens’ evidence, the condition is fully diagnosed, treated and stabilized. However, in accordance with cl 6(8) of the Impairment Tables: ‘The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.’
On all of the evidence available to the Tribunal, and while acknowledging the pain and distress that the kidney stone problems have caused from time-to-time, it would not be correct to assign any impairment rating for the diabetes condition during the Assessment Period.
Sleep apnoea
The medical evidence is contained in a report dated 23 July 2018 by Dr R Antic, a respiratory and sleep physician to whom Mr Stephens was referred.[18] His general practitioner, Dr Retnaswamy had previously indicated in a report, dated 10 November 2017, that Mr Stephens suffers from obstructive sleep apnoea. [19].
[18] Exhibit 3.
[19] Exhibit 1, T14, 225.
Mr Stephens told the Tribunal that he had trialled a machine without success:
Had a machine on trial, but I couldn’t use it, I don’t like things on my face, blowing air into my nose passage, I tried three to four nights , I was awake more than I was sleeping.
The evidence before the tribunal is not sufficient to find that the condition of sleep apnoea was fully diagnosed, treated and stabilised during the Assessment Period. Accordingly it cannot be assigned impairment points.
Other conditions
Mr Stephens had multiple pulmonary emboli following the fracture of the back in 2014.
A report from a cardiologist, Dr K Mishra, in March 2015 indicated that issues with shortness of breath related to the pulmonary emboli.[20] According to the JCA report, submitted 8 November 2017, Mr Stephens had indicated that he had ‘not undergone a lung function test for some time’ and that following past lung function assessments he continues to use a preventer and blue puffer for exacerbations.[21] Dr Retnaswamy reported that Mr Stephens experiences shortness of breath and fatigue in daily activities.[22]
[20]   Exhibit 1, T14, 213.
[21]   Exhibit 1, T9, 126.
[22]   Exhibit 2.
Mr Stephens’ evidence indicated that he may go for a month without experiencing shortness of breath. When he does experience breathlessness it tends to occur because of a change in the weather, or when his back problems flare up. In all, however, he attributed his back condition as the cause and focus of most of his difficulties.
On consideration of all of the evidence, the Tribunal agrees with the Secretary that there is insufficient, contemporaneous medical evidence to assign impairment points to the other conditions, namely pulmonary emboli, dilated aortic root and reduced lung capacity. The evidence about mental health relates to a time subsequent to the Assessment Period.
CONCLUSION
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined, the Tribunal finds that Mr Stephens’ spinal condition was fully diagnosed, fully treated and fully stabilised during the Assessment Period. The appropriate rating for the spinal condition is 10 impairment points.
The Tribunal finds that Mr Stephens’ left wrist condition was fully diagnosed, fully treated and fully stabilised during the Assessment Period. The appropriate rating for the left wrist condition is five impairment points.
With a total of 15 impairment points. Mr Stephens does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the Assessment Period. Accordingly, he does not satisfy s 94(1)(b) of the Act.
In these circumstances it is not necessary to consider whether or not, during the Assessment Period, Mr Stephens had a continuing inability to work within the meaning of s 94(1)(c) of the Act.
As Mr Stephens was not qualified for DSP at the time he lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.
Mr Stephens’ case was well prepared and well presented at the hearing. The Tribunal’s decision does not imply an underestimation of the difficulties with which Mr Stephens has to contend. The evidence of Ms Kennedy was directed principally to the issue about participation in a program of support. Ultimately that issue does not require a determination in view of the finding on the impairment points. However, Ms Kennedy’s evidence also confirmed the difficulties which Mr Stephens has endured with multiple problems with his health over several years, and the perseverance which he has shown in trying to address those problems.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member I F Thompson

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Administrative Assistant
Dated: 21 February 2019
Date of hearing: 7 December 2018

Counsel for Applicant: Self-represented
Counsel for Respondent: Ms. Odgers, Department of Human Services

[2019] AATA 206

21 February 2019

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