U'Brien and Secretary, Department of Social Services (Social services second review)

[2017] AATA 638

U'Brien and Secretary, Department of Social Services (Social services second review) [2017] AATA 638 (28 April 2017)

Division:GENERAL DIVISION

File Number(s):  2016/6033

Re:Jeffery U'Brien

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:28 April 2017

Date of written reasons:        5 May 2017

Place:Canberra

The decision under review is affirmed.

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

Mr S. Webb, Member

SOCIAL SECURITY – claim for disability support pension – chronic pain and depression - assessment of impairments – minimum threshold of 20 points not made out – no severe impairment – active participation in a program of support requirement not met – decision affirmed

Social Security Act 1991, s 94

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

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mr S. Webb, Member

5 May 2017

1. Jeffery U’Brien drove trucks. Some years ago, he injured his back. The injury was treated surgically, but he was left with chronic pain. He has not returned to work and claimed disability support pension (DSP). A delegate of the Secretary rejected his claim. This decision was affirmed on review. Mr U’Brien is not happy with this result and he has applied for further review.

2. The application came on for hearing, and Mr U’Brien gave oral evidence. I gave an oral decision at the conclusion of the hearing. Mr U’Brien requested written reasons, which follow.

   Reasons

3. Mr U’Brien’s DSP claim is to be determined under s 94 of the Social Security Act 1991 (the Social Security Act).

4. For his claim to succeed, all of the applicable qualification criteria must be satisfied on the day he lodged the claim (20 October 2015), or within 13 weeks thereafter to 19 January 2016 (the qualification period). The main DSP qualification criteria are –

   94 Qualification for disability support pension

   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies:

   (i) the person has a continuing inability to work;

   …

   Impairment

5. The Secretary accepts, correctly, that Mr U’Brien had physical and psychiatric impairments when he lodged his DSP claim.

6. On the evidence of Dr Gavaghan[1] and Dr Chen[2] (treating general practitioners), Professor Webster (a consultant physician)[3] and, subsequently, Dr Ferris (a pain management specialist and anaesthetist),[4] it is quite clear that Mr U’Brien experienced chronic pain in his mid-thoracic and lumbar spine that restricted his movement and his ability to undertake activities of daily living. It is probable that these impairments impacted upon Mr U’Brien’s functional capacity on the day he claimed DSP.

   [1] Exhibit A2.

   [2] T6.

   [3] T4

   [4] T10.

7. Furthermore, on the evidence of Dr Webster, Dr Gavaghan, Dr Chen, and subsequently Dr Donaldson (a clinical psychologist),[5] it is probable that Mr U’Brien experienced chronic depression that impaired his mental health function when he claimed DSP and during the qualification period.

   [5] T9.

8. This being so, the first essential qualification criterion for DSP under s 94(1)(a) is satisfied.

   Assessment under the Impairment Tables

9. In order to satisfy the second qualification criterion set out in s 94(1)(b), Mr U’Brien’s impairments must achieve a rating of 20 or more points under the Impairment Tables. These Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ‘Impairment Determination’).

10. The Impairment Determination is to be applied in accordance with rules set out in Part 2. These include a bar on assigning a rating under the Impairment Tables unless the impairment is likely to persist for at least two years and it results from a ‘permanent’ medical condition, being a condition which has been fully diagnosed, fully treated and fully stabilised.

11. The Secretary argues that Mr U’Brien’s impairments result from two conditions, chronic back pain and depression, that were not fully diagnosed, fully treated and fully stabilised during the qualification period.

12. Mr U’Brien gave evidence that these conditions had been diagnosed and treated over several years by a number of doctors, including pain specialists, and at least two psychologists. When he understood that his unsupported account of such treatment was not sufficient, he sought time to obtain his medical records from the Milton Medical Practice in order to give the Tribunal further evidence of treatments he had undertaken prior to making his DSP claim on 20 October 2015. Mr U’Brien asked for the hearing to be held over as his symptoms of pain were such that he was unable to continue. With the consent of the Secretary’s representative, I acceded to these requests and set a timetable for further materials to be provided by both parties.

13. Mr U’Brien filed additional medical records.[6] The hearing resumed.

    [6] Exhibit A2.

    Spinal impairment and chronic pain

14. Mr U’Brien’s spinal impairment and chronic pain resulted from a 2004 back injury that was surgically treated in 2008. The mechanisms underlying Mr U’Brien’s thoracic and lumbar spine pain are explained by Professor Webster in his 15 July 2010 report. The primary symptom affecting Mr U’Brien’s functional capacity during the qualification period was chronic low back pain.

15. On Dr Chen’s 20 October 2015 report, it appears that Mr U’Brien’s chronic pain condition was diagnosed in October 2009.[7] This is consistent with Dr Gavaghan’s clinical note on 30 December 2009.[8] Mr U’Brien informed me that Dr Gavaghan referred him to a pain specialist, Professor Webster. On 15 July 2010, Professor Webster, a consultant physician, reported his assessment of Mr U’Brien’s pain and related conditions, and he recommended further treatment. The clinical records in Exhibit A2 reveal that the treatment recommendations Professor Webster made were implemented, with prescription of increasing doses of analgesic and other medications over ensuing years to 2015 by Dr Gavaghan and Dr Yang.

    [7] T6 folio 86.

    [8] Exhibit A2.

16. On 11 February 2015, Mr U’Brien came under Dr Chen’s care following departure of Dr Yang from the medical practice Mr U’Brien had been attending since 30 December 2012 after moving from Blacktown. On Mr U’Brien’s evidence, he was suffering from chronic pain symptoms without relief and Dr Chen suggested that it “couldn’t do any harm” to consult a pain management specialist in the hope of finding more effective treatment options. It appears that Dr Chen referred Mr U’Brien to Dr Ferris some time before 20 October 2015, on which day Mr U’Brien claimed DSP. Mr U’Brien obtained an appointment with Dr Ferris in February 2016, after the qualification period had elapsed.[9] I understand that Dr Ferris administered cortisone injections to Mr U’Brien’s low back without any positive effect. Mr U’Brien explained that he had been given injections of this kind before and after surgery in March 2008, also without any positive effect and, if he had known what treatment Dr Ferris intended, he would not have agreed to it. As it happened, Mr U’Brien declined further injections Dr Ferris proposed.

    [9] T13 folio 108 refers.

17. I do not accept that Dr Chen’s referral of Mr U’Brien to Dr Ferris should be taken to imply that his low back pain condition was not fully diagnosed, fully treated and fully stabilised. Although evidence of the medical history of this condition is sparse, it is sufficient to establish that Mr U’Brien’s spine and pain conditions had their origin in 2004 and progressed in 2008, when Mr U’Brien required surgical treatment for a prolapsed disc at the L2/L3 level. By the time Mr U’Brien came under Dr Chen’s care, these conditions were fully diagnosed, fully treated and fully stabilised. Dr Chen’s referral to Dr Ferris does not change this assessment. The present materials do not establish that treatment proposed and administered by Dr Ferris was reliably expected to improve Mr U’Brien’s spinal function or his functional capacity, such that he would be capable of working 15 or more hours per week within two years.

18. As it turned out, Dr Ferris’ treatment did not produce a positive change in Mr U’Brien’s spine or pain conditions, or in the level of his functional capacity to work. On 24 March 2016, Dr Ferris made the following report –

    “In my opinion [Mr U’Brien] is unlikely to improve to the extent that you [sic – he] will be able to return to work. My management is aimed at improving his quality of life, improve his ability to perform activities of daily living and reduce his reliance on medication to control his pain.”[10]

    [10] T10 folio 103.

19. Dr Ferris’ treatment came to an end in or about April 2016.

20. I am reasonably satisfied that Mr U’Brien’s spine and pain conditions were fully diagnosed, fully treated and fully stabilised on 20 October 2015, the day he claimed DSP.

21. There is very scant medical evidence detailing the nature and extent of impairments resulting from these conditions at that time.

22. Mr U’Brien gave evidence which was largely consistent with impairments report by a Job Capacity Assessor on 28 January 2016.[11]

    [11] T7.

23. I am satisfied that Mr U’Brien’s spine and pain impairment has a moderate impact on activities involving his spinal function. The present evidence does not support a higher level impact, at the severe or extreme levels under Table 4. By Mr U’Brien’s own account, he could undertake some overhead activities during the qualification period, such as washing his head, even though he experienced difficulty hanging washing on a line for example. He could turn his head, but experienced difficulty doing so more on the left than the right. He could pick up shopping items at desk height, such as a 3 litre container of milk, but he would have to kneel to pick up items on lower shelves. He could remain seated in a car for up to an hour and a half, but he would require a break after about one hour.

24. This, in my assessment, is consistent with a moderate functional impact, attracting a rating of 10 points under Table 4.

25. Mr U’Brien’s lower limb impairment is secondary to the spine and pain conditions. The present evidence is consistent with a mild impact on lower limb function. With reference to the qualification period, Mr U’Brien was able to walk around a shopping centre, albeit leaning on a shopping trolley. He was able to drive and to walk from the car park into the supermarket where he shops. He was able to walk to buy a newspaper at his local shops, although he finds it hard to walk back up a hill. He was able to negotiate stairs, but used a rail if one was present. He was able to stand for about 10 minutes.

26. In my assessment, Mr U’Brien’s spine and pain conditions have a mild impact on his lower limb function. The present materials are consistent with a rating of 5 points under Table 3. A higher rating is not presently made out.

    Depression

27. In her report of 20 October 2015, Dr Chen reported that Mr U’Brien’s depression condition began in 2009. On her report, it appears that the diagnosis was ‘presumptive’ at that time. Future treatment included antidepressant medication and “to consider psychologist ref if needed”.[12]

    [12] T6 folio 90.

28. On 10 March 2016, Karen Donaldson, a clinical psychologist, reported that Mr U’Brien had been referred for psychological assessment and treatment by Dr Chen, and that he had attended three sessions by that date. She confirmed a diagnosis of “Severe Depression”.[13]

    [13] T9 folio 102.

29. In the Secretary’s submission, Mr U’Brien’s depressive disorder cannot be taken to be fully diagnosed or fully treated and fully stabilised during the qualification period.

30. In part, I agree. While his depressive disorder was diagnosed by Dr Gavaghan and Dr Chen well before the qualification period, evidence from a clinical psychologist was not obtained until after the qualification period had ended. Even if I accept that the condition was ‘fully diagnosed’ it is quite clear that, on 3 May 2016, Dr Chen suggested further psychological treatment under a mental health care plan.[14] That being so, I do not think it can properly be said that Mr U’Brien’s psychological condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period, which ended on 19 January 2016.

    [14] T12 folio 106.

31. Mr U’Brien gave evidence that he thought that he had been assessed by a psychiatrist or a psychologist before and after surgery on his spine in March 2008, but he could not recall much about it. When closely questioned about this, Mr U’Brien explained tests that were consistent with those that might be applied when assessing the genuineness of his complaints of pain, rather than an assessment of his psychiatric or psychological condition.

32. Mr U’Brien informed me that he is adverse to psychological treatment, and no amount of talking is going to assist his pain.

33. Considering all this, I am not persuaded that Mr U’Brien’s psychological condition can be taken as ‘permanent’ during the qualification period, or that any resulting impairment of his psychological or mental function was likely to persist for more than two years. This is because, at that time, Mr U’Brien had not yet consulted or obtained treatment from Ms Donaldson which occurred from March 2016.

34. Even if I am wrong about this, or if I had formed a different conclusion, it would not assist Mr U’Brien’s case. The present materials are consistent with a rating of 0 points under Table 5. While, by Mr U’Brien’s own account, he has some difficulty with interpersonal relationships and he does not engage in social or recreational activities, other descriptors at the 5 point level are not presently made out. It is possible that the nature and extent of impairment of his mental health function is greater than the present materials suggest, but this would require further and better evidence from those involved in treating that condition.

    Overall impairment rating

35. During the qualification period, Mr U’Brien’s impairments attract a total rating of 15 points under the Impairment Tables. This means that his DSP claim must fail – it does not satisfy the second essential qualification criterion set out in s 94(1)(b) of the Act, which requires a rating of 20 points or more.

    Continuing inability to work

36. The Secretary argues that Mr U’Brien does not satisfy the third essential qualification criterion for DSP under s 94(1)(c), relating to a continuing inability to work.

37. There are three things to address on this point.

38. Firstly, the present evidence does not establish that Mr U’Brien had a ‘severe impairment’ attracting a rating of 20 or more points under a single Impairment Table during the qualification period. I note Dr Chen’s recent report on 11 January 2017 that Mr U’Brien “indicated to me that he has a severe functional impact so he is unable to perform any overhead activities”. This simply recounts what Mr U’Brien told Dr Chen well after the qualification period. Dr Chen does not provide any other explanation of the functional impact she describes, by way of clinical assessment, for example. Furthermore, the doctor does not report that the ‘severe functional impact’ was present during the qualification period. The details attributed to Dr Chen in a Job Capacity Assessment report on 28 January 2016[15] do not change this conclusion.

    [15] T7 folio 95.

39. Secondly, the present materials do not establish that Mr U’Brien actively participated in a program of support for the purposes of s 94(2)(aa) of the Social Security Act and the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 prior to lodging his DSP claim on 20 October 2015. By his own account, he was subject to a compensation preclusion period and claimed DSP as soon as that period came to an end – he had not commenced or undertaken a ‘program of support’ prior to doing so.

40. Thirdly, Job Capacity Assessments were reported on 28 January 2016 and 9 May 2016. In each case, it appears that the assessor considered that Mr U’Brien’s ‘baseline work capacity’ of 8 to 14 hours per week could be increased to 15 to 22 hours per week within 2 years with “disability specific intervention as outlined in the report including counselling”.[16]

    [16] T7 folio 97 and T13 folio 111.

41. That said, it is difficult to comprehend the rationale for this increase in work capacity when the rationale for the baseline work capacity of 8 to 14 hours was reported to be –

    “The client would be unable to complete physically demanding work roles involving heavy manual labour due to the risk of exacerbating his medical conditions. He would experience significant difficulty sustaining full time employment due to symptoms of severe pain, lethargy and poor physical tolerances. The client would benefit from working in lighter types of employment which do not cause exacerbations of pain.”[17]

    [17] T7 folio 97.

42. Conceivably, the reference to ‘disability specific intervention’ and ‘counselling’ may have related to pain management treatment. Even if this is correct, the 24 March 2016 report of Dr Ferris clearly points to a different conclusion – in his opinion, it was unlikely that Mr U’Brien’s pain condition would improve to the extent that he could return to work. Dr Ferris’ assessment is consistent with medical certificates issues by Dr Chen that clearly state Mr U’Brien was unfit for work or study.[18]

    [18] See T12 folio 106 for example.

43. Nonetheless, even if I was to accept that Mr U’Brien’s impairments prevented him from doing any work, being work of 15 or more hours per week, and undertaking a training activity for the purposes of s 94(2)(a) and (b), this would not mean his DSP claim would succeed.

44. Without satisfying the requirement for active participation in a program of support within the three years immediately before claiming DSP, he does not satisfy the third essential qualification criterion for DSP under s 94(1)(c).

    Conclusion

45. Much as I am sympathetic to Mr U’Brien’s plight, as I explained during the hearing, his 20 October 2015 DSP claim fails for two reasons – during the qualification period following the claim, he does not meet the requirement for 20 points under the Impairment Tables; and he does not meet the requirement for active participation in a program of support during the three-year period prior to lodging the claim.

    Decision

46. The decision under review is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Associate

Dated: 5 May 2017

Dates of hearing:	23 February 2017; 28 April 2017
Date final submissions received:	28 April 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services