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

[2019] AATA 4255

Walk and Secretary, Department of Social Services (Social services second review) [2019] AATA 4255 (21 October 2019)

Division:GENERAL DIVISION

File Number:2019/2930           

Re:Leslie Walk  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:21 October 2019

Place:Brisbane

The decision under review is affirmed.

...............................[SGD]...........................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Member D Mitchell

21 October 2019

INTRODUCTION

1. On 4 May 2018, Mr Leslie Walk (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]

   [1] Exhibit 1, T Documents, T16, pages 111-142, Claim for DSP.

2. The claim was rejected on 20 June 2018, on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.[2] This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 18 December 2018.[3]

   [2] Exhibit 1, T Documents, T18, pages 145-146, Notice: Rejection of your claim for DSP.

   [3] Exhibit 1, T Documents, T19, pages 147-151, Decision and Notes of the ARO.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on 24 April 2019.

4. The SSCSD found that:[4]

   (a)The Applicant had impairments caused by lumbar back pain, neck pain and a right shoulder injury.

   (b)The Applicant did not have any permanent conditions.

   (c)There was a lack of corroborative evidence.  Even based on the Applicant’s self-reporting alone, the maximum impairment rating attributable to his conditions was 5 points under Table 2 and 10 points under Table 4. This would have resulted in a total of 15 points.

   [4] Exhibit 1, T Documents, T2, pages 4-20, Decision of the SSCSD.

5. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 21 May 2019.[5]

   [5] Exhibit 1, T Documents, T1, pages 1-3, Application for Review of Decision.

6. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.

   THE LAW

7. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant.

8. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

   1.Does the Applicant have a physical, intellectual or psychiatric impairment;[6]

   2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[7] and

   3.Does the Applicant have a continuing inability to work?[8]

   [6] Section 94(1)(a) of the Act.

   [7] Section 94(1)(b) of the Act.

   [8] Section 94(1)(c) of the Act.

9. The Impairment Tables are set out in the Determination. Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[9]

   [9] Section 6(3) of the Determination.

10. Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP the condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[10] As such, a condition could be considered permanent from the perspective of being life-long, but still not meet the definition under the DSP requirements.

    [10] Sections 6(3) and (4) of the Determination.

11. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must 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 2 years.[11]

    [11] Section 6(5) of the Determination.

12. A condition is considered to be fully stabilised if:[12]

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

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

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

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

    [12] Section 6(6) of the Determination.

13. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[13]

    [13] Section 6(7) of the Determination.

14. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[14] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[15]

    [14] Section 6(2) of the Determination.

    [15] Section 8(1) of the Determination.

15. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act, further consideration is given to the Applicant’s work capacity.

16. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[16]

    [16] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

    RELEVANT PERIOD

17. The Relevant Period in this matter commences on 4 May 2018, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 3 August 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    ISSUES

18. Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period. Therefore, the Applicant has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[17]

    [17] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 8, paragraph 4.22.

19. The remaining issues for the Tribunal to consider are:

    1Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and

    2If so, did the Applicant have a continuing inability to work?

    CONSIDERATION

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

    Applicant’s Evidence

20. At the Hearing, the Applicant gave evidence under affirmation. He was clearly frustrated by the DSP process. The Applicant told the Tribunal that he did not understand the requirements and it is clear to him that he cannot work.

21. At the Hearing, the Applicant told the Tribunal that:

    ·He was a boiler maker and had worked all of his life.

    ·He had built his own house.

    ·He has had lots of x-rays which show he has things wrong with him.

    ·It takes him one and a half hours to get anywhere from where he lives and he cannot afford fuel.

    ·He has not been sent to see doctors through Medicare and he cannot afford to see them privately.

    ·He has worn out bones. He saw a man once (physiotherapist) who gave him a massage that did not help.

    ·He cannot do things around his home, so he cannot work.

    ·He has been unemployed for eight and a half years. He has been to job networks through that time and has never once been sent for an interview. They tell him that no one will hire him.

    ·Since making his DSP claim everything has gotten worse and he has got new conditions, including blockages in his legs and cataracts.

    ·He has not seen a psychiatrist. He does not believe he is depressed just upset that he cannot do what he used to.

    ·He has issues with his knees and hips and besides getting x-rays, the only treatment he has had in relation to them has been to go back to his general practitioner. The issue is wear and tear.

    ·He has an issue with his hand locking up.

    ·He has not seen the specialists referred to in the letters from Dr Surendar Advani, as they are not covered by Medicare and he cannot afford to see them privately.

    ·He has not taken the Targin that Dr Advani prescribed him, as he believes it is addictive. He has a highly addictive personality, so he just went to the chemist and got the strongest over the counter medication and they work to help with his pain.

    ·He has broken bones in his neck.

    ·The Royal Brisbane and Women’s Hospital has told him that his cervical spine condition is not life threatening so there is no need for surgery. However, he did not see them. He sent through his x-rays and that was their advice.

    ·He saw a physiotherapist once and then he could not stand up the next day.

    ·He does not know if he has been referred to a pain management clinic. He has not done pain management classes.

    ·There is nothing that can be done with his shoulder as it is just wear and tear.

    ·He does not believe he has ever been told to go to Rockhampton for treatment.

22. On cross-examination, the Applicant was asked whether he remembered his Hearing with the SSCSD. He was also asked whether he answered questions honestly at that Hearing and if he agreed with the information set out in the SSCSD’s decision. The Applicant said that he did not remember the Hearing word for word, however he could not see why the decision would not be an accurate record.

    Spinal Conditions

23. Based on the medical evidence before the Tribunal, there is no doubt that the Applicant has both lumbar (lower back) and cervical spine (neck) conditions (collectively referred to as spinal conditions). This point is not in contention.[18]

    [18] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 8-12, paragraphs 4.24-4.41.

24. A CT scan of the Applicant’s cervical spine was undertaken on 28 August 2012 and concluded that:[19]

    Fractures of spinous process of C4 and C5 vertebrae. No other bony injury noted. The disc osteophyte complex at C5-C6 level is indenting and compressing the thecal sac with narrowing of anterior subarachnoid space. Marked narrowing of left neural foramen and moderate narrowing of right neural foramen is noted at C5-C6 level. Further evaluation with MRI may be performed.

    [19] Exhibit 1, T Documents, T5, page 66, CT cervical spine report and findings of Dr Vinod Attarde.

25. A further CT scan of the Applicant’s cervical spine was undertaken on 31 July 2013 and concluded that:[20]

    There is evidence of pervious trauma at C2 lamina as well as healed fracture of the C4 spinous process. No recurrent injury is seen. Significant spondylo-degenerative changes are also seen in the midcervical spine with changes similar to the last time.

    [20] Exhibit 1, T Documents, T7, page 68, CT cervical spine and findings of Dr Nandan Srivastava.

26. In a Centrelink Medical Report for DSP form dated 8 January 2014, Dr Nilesh D’Crus, general practitioner, diagnosed old fracture C4-C5 and osteoarthrosis C5-C6. He provided that the “Future/planned treatment” was pain specialist review, neurosurgical clinic review (RBWH) and physiotherapy if tolerated.[21]

    [21] Exhibit 1, T Documents, T9, pages 75-82, Medical Report: Dr Nilesh D’Crus – DSP.

27. In Centrelink Medical Certificates dated 30 April 2014[22] and 5 July 2016,[23] Dr D’Crus and Dr Advani respectively indicated that the Applicant was on a surgical waitlist in relation to his cervical spine. In multiple Centrelink Medical Certificates dated between January 2013 and September 2016, the Applicant’s general practitioners referenced different referrals being made to see specialists in relation to the Applicant’s cervical spine.[24]

    [22] Exhibit 1, T Documents, T22, page 160, Medical Certificate: Dr Nilesh D’Crus.

    [23] Exhibit 1, T Documents, T22, page 169, Medical Certificate: Dr Surendar Advani.

    [24] Exhibit 1, T Documents, T22, pages 156-172, Medical Certificates for the period 8 January 2013 to 5 April 2017.

28. In a Centrelink Medical Certificate dated 30 September 2016, Dr Advani reported that in relation to the Applicant’s cervical spondylosis, he had not tried any treatment for his pain and that planned treatment included – pain specialist referral, psychologist and physiotherapist.[25] This treatment was still planned in a Medical Certificate dated 5 April 2017.[26]

    [25] Exhibit 1, T Documents, T22, page 170, Medical Certificate: Dr Surendar Advani.

    [26] Exhibit 1, T Documents, T22, page 172, Medical Certificate: Dr Surendar Advani.

29. An x-ray of the Applicant’s lumbosacral spine was undertaken on 2 August 2017 and indicated that there were degenerative changes in the Applicant’s lumbar spine.[27]

    [27] Exhibit 1, T Documents, T13, pages, 97-98, X-ray lumbosacral spine, right hand and left hip report and findings of Dr Vikrim Sagar.

30. The Tribunal notes that references to the Applicant’s lumbar spine condition on Centrelink Medical Certificates date back to January 2013.[28]

    [28] Exhibit 1, T Documents, T22, pages 156-172, Medical Certificates for the period 8 January 2013 to 5 April 2017.

31. In a letter dated 14 March 2018, Mr Scott Davis, physiotherapist, outlined that he saw the Applicant in relation to increased pain levels in his neck, lower back and right shoulder. Mr Davis recommended that the Applicant undertake pain management classes. He considered that the classes would be beneficial to the Applicant.[29]

    [29] Exhibit 1, T Documents, T14, page 99, Report: Scott Davis, Physiotherapist.

32. In a Centrelink Medical Report for Assessor dated 20 March 2018, Dr Advani, diagnosed the Applicant’s “condition with most impact” as being “lumbar back pain, possibly due to lumbar spondylosis”.[30] Dr Advani provided that this was a presumptive diagnosis with further investigations/test being planned to confirm the diagnosis.

    [30] Exhibit 1, T Documents, T15, page 103, Medical Report: Dr Surendar Advani.

33. In the 20 March 2018 report, Dr Advani provided:[31]

    [31] Exhibit 1, T Documents, T15, pages 103-104, Medical Report: Dr Surendar Advani.

    ·current treatment included:

    ophysiotherapy that commenced on 14 March 2018;  

    oreferral to an occupational therapist on 20 March 2018;

    oplanning to send the Applicant to a psychologist on GPMHP; and

    oprescribing Targin on 20 March 2018.

    ·future/planned treatment was:

    oreferral to a psychologist, physiotherapist and occupational therapist for chronic pain.

34. The Respondent contended that based on the medical evidence the Applicant’s cervical spine condition was fully diagnosed, however his lumbar spine condition was not fully diagnosed at the Relevant Period.[32]

    [32] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 8, paragraphs 4.24-4.25 and 4.27.

35. The Respondent contended that neither the Applicant’s lumbar or cervical spine conditions were fully treated and fully stabilised during the Relevant Period. The Respondent submitted that there is no evidence before the Tribunal that the Applicant had engaged with the recommended specialists (including a psychologist, physiotherapist, neurologist and pain specialist) or with analgesics. There is no evidence to suggest that such engagement and treatment would not be expected to result in significant functional improvement to a level enabling the Applicant to undertake work in the 2 years following the Relevant Period. The Respondent contended that the Applicant had not undergone reasonable treatment as recommended by his treating practitioners.[33]

    [33] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 8-11, paragraphs 4.26 and 4.29-4.36.

36. I accept that the Applicant’s cervical spine condition was fully diagnosed at the Relevant Period. However, based on the evidence before the Tribunal, I am not satisfied that his lumbar spine condition was fully diagnosed at the Relevant Period as Dr Advani provided a presumptive diagnosis only indicating that further investigations were required.

37. Based on the medical evidence before the Tribunal and that provided by the Applicant at Hearing, I find that the Applicant’s spinal conditions were not fully treated and fully stabilised during the Relevant Period. The Applicant has not engaged in recommended treatment, nor is there any evidence before the Tribunal to suggest that such treatment would not result in significant functional improvement.

38. As such, the Applicant’s spinal conditions cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Shoulder Condition

39. There are references to the Applicant’s shoulder condition in Centrelink Medical Certificates dating back to 2013.[34] An x-ray and ultrasound were taken of the Applicant’s right shoulder on 28 August 2012. Dr Amit Sidana’s conclusion was:[35]

    Supraspinatus and subscapularis tendinopathy with acromioclavicular joint osteoarthritis with subacromial-subdeltoid bursitis with fluid around the biceps tendon sheath with calcific foci in the biceps tendon sheath.

    [34] Exhibit 1, T Documents, T22, pages 156-172, Medical Certificates for the period 8 January 2013 to 5 April 2017.

    [35] Exhibit 1, T Documents, T6, page 67, X-ray right shoulder report and findings of Dr Vinod Attarde; Ultrasound right shoulder report and findings of Dr Amit Sidana.

40. As outlined in paragraph 31 above, Mr Davis provided that he saw the Applicant on       14 March 2018, in relation to increased pain levels in his neck, lower back and right shoulder. Mr Davis recommended that the Applicant undertake pain management classes, as he considered these would be of benefit to the Applicant.[36]

    [36] Exhibit 1, T Documents, T14, page 99, Report: Scott Davis, Physiotherapist.

41. In the Centrelink Medical Report for Assessor dated 20 March 2018 (referred to in paragraph 32 above), Dr Advani reported the Applicant had osteoarthritis of the shoulder and that he had been referred to see orthopaedic surgeons at the Royal Brisbane Women’s Hospital and Rockhampton orthopaedic clinic in 2015 for this condition.[37]

    [37] Exhibit 1, T Documents, T15, pages 104-105, Medical Report: Dr Surendar Advani.

1. There is no further medical evidence before the Tribunal in relation to the Applicant’s shoulder condition.

2. The Respondent contended that the Applicant’s shoulder condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period on the basis that there is no evidence from a specialist in respect of a diagnosis, treatment or prognosis of the shoulder condition.[38]

   [38] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 12, paragraph 4.42-4.45.

3. Based on the evidence before the Tribunal, I find that the Applicant’s shoulder condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period as the he has not undertaken recent specialist review or engaged in reasonable treatment during the Relevant Period.

4. As such, the Applicant’s shoulder condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

   Other Conditions

5. At the Hearing, the Tribunal noted that in the evidence there were references to the Applicant having other conditions. These may include: severe depression, heavy alcohol consumption, alcohol hepatitis, knee, hips and wrist conditions (collectively referred to as other conditions).

6. The Respondent contended that there was insufficient evidence in relation to the Applicant’s other conditions to be able to accept them as impairments.[39]

   [39] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 13, paragraphs 4.49-4.51.

7. There is limited evidence before the Tribunal in relation to the Applicant’s other conditions.

8. Based on the evidence before the Tribunal, I find that the Applicant’s other conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period.

9. As such, the Applicant’s other conditions cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

   Continuing Inability to Work

10. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

11. Based on the medical evidence before the Tribunal, I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act which included spinal, shoulder and other conditions.

12. Based on the evidence before the Tribunal and that provided at the Hearing, I find that the Applicant’s spinal (including lumbar and cervical spine), shoulder and other conditions cannot be considered permanent for the purposes of assigning impairment ratings under the Impairment Tables.

13. Consequently, the Applicant does not have 20 impairment points under the Impairment Tables and the requirements of section 94(1)(b) of the Act are not met.

14. Accordingly, the decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............................[SGD].............................

Dated: 21 October 2019

Date of Hearing:	11 October 2019
Applicant:	By phone
Solicitors for the Respondent:	Mr Ben Dube Department of Human Services