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

[2018] AATA 1279

Ware and Secretary, Department of Social Services (Social services second review) [2018] AATA 1279 (14 May 2018)

Division:GENERAL DIVISION

File Number:           2017/3022

Re:Roger Ware

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:14 May 2018

Place:Brisbane

The Tribunal affirms the decision under review.

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

Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 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)

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Member D K Grigg

14 May 2018

INTRODUCTION

1. On 17 December 2015 Mr Ware lodged a claim for Disability Support Pension (“DSP”) with an accompanying medical report from Dr Alan Grigg, General Practitioner.[1] Dr Grigg reported that Mr Ware had:[2]

   (a)lumbar and cervical spondylosis which was permanent and causing lower and mid back pain and neck pain; and

   (b)left subdeltoid bursa inflammation which was making his movements above shoulder height uncomfortable.

   [1]           Exhibit 1, T Documents, T 5, pages 51 – 84, Mr Ware’s Claim for DSP dated 17 December 2015.

   [2]           Exhibit 1, T Documents, T 20, pages 127 – 129, Report of Dr Grigg lodged 17 December 2015.

2. Mr Ware indicated in his claim form that he was on a waiting list for pain management,  physiotherapy, and, if necessary, a psychiatrist for depression resulting from his disabilities.[3]

   [3]           Exhibit 1, T Documents, T 5, page 81, Mr Ware’s Claim for DSP dated 17 December 2015.

3. A Job Capacity Assessment (“JCA”) was conducted with Mr Ware face-to-face by an accredited rehabilitation counsellor on 15 April 2016. The JCA found that:[4]

   (a)Mr Ware’s lumbar and cervical spine conditions were fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points; and

   (b)Mr Ware’s shoulder condition was not fully treated and fully stabilised.

   [4]           Exhibit 1, T Documents, T 6, pages 85 – 90, JCA report dated 1 June 2016.

4. As a result of the JCA report, the Department of Human Services (“Centrelink”) rejected Mr Ware’s claim for DSP on the basis that he did not have permanent impairments with a total impairment rating of 20 points or more.[5]

   [5]           Exhibit 1, T Documents, T 7, pages 91 – 92, Rejection of claim for DSP dated 2 June 2016.

   Claim History

5. Mr Ware sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
   Mr Ware’s medical conditions were not permanent, as defined in the
   

   [6]           Exhibit 1, T Documents, T 8, pages 93 – 97, Decision of ARO and notes dated 9 November 2016.

   Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more.[6]

6. Mr Ware then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Ware’s claim and affirmed the ARO’s decision on 6 May 2017.[7]

   [7]           Exhibit 1, T Documents, T 2, pages 6 – 10, SSCSD’s Decision and Reasons for Decision dated 6 May 2017.

7. Mr Ware has sought a review of the SSCSD’s decision by this Tribunal.[8]

   [8]           Exhibit 1, T Documents, T 1, pages 1 – 5, Application for Review of Decision dated23 May 2017.

   ISSUES FOR DETERMINATION

8. Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-

   (a)Mr Ware must have a physical, intellectual or psychiatric impairment;

   (b)Mr Ware’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[9] and

   (c)Mr Ware has a continuing inability to work.

   [9] A legislative instrument made under the Act: see s 26(1).

9. The date for determining whether Mr Ware meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 17 December 2015), unless Mr Ware becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[10] Therefore, to qualify for DSP Mr Ware must have met the Section 94 Requirements between 17 December 2015 and 17 March 2016 (“Qualification Period”).

   [10]         See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   (Cth).

10. It is important to keep in mind that medical evidence concerning the functional impact of Mr Ware’s impairments after the Qualification Period can be considered if it “cast[s] light on” the functional impact of the impairments as at the Qualification Period.[11]

    DID MR WARE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?

    [11]         See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on

    appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

    What is an Impairment?

11. The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]

    Mr Ware’s medical conditions

    [12] Determination, s 3.

    Spinal Condition

12. In September 2013 an x-ray of Mr Ware’s cervical spine indicated mild retrolisthesis of C4/C5 and mild spondylosis at multiple levels.[13]

    [13]         Exhibit 1, T Documents, T 12, page 118, X-ray report dated 5 September 2013.

13. An MRI of Mr Ware’s cervical spine in March 2014 indicated he had:[14]

    Cervical spondylosis with degenerative changes resulting in severe bilateral C4/C5… bilateral C5/C6 foraminal stenosis …compress[ing] the exiting bilateral C5 and bilateral C6 nerves.

    [14]         Exhibit 1, T Documents, T 14, page 120, MRI report dated 6 March 2014.

14. An MRI of Mr Ware’s lumbar spine in January 2015 indicated he had:[15]

    Bilateral spondylosis of LV5 with associated grade 1 spondylolisthesis. Dehydrated lumbar invertebral discs. Modic type II changes at L5/S1. Impingement of the left L5 exiting nerve root. Mild to moderate facet joint OA at L5/S1.

    [15]         Exhibit 1, T Documents, T 15, page 121, MRI report dated 12 January 2015.

15. An MRI of Mr Ware’s thoracic spine in February 2015 indicated he had:[16]

    Vertebral haemangioma at DV6. Mild disc bulge at T4/5. No spinal stenosis or nerve root compression.

    [16]         Exhibit 1, T Documents, T 16, page 122, MRI report dated 9 February 2015.

16. In June 2015 Dr Jason Papacostas, Neurosurgeon, reported that:[17]

    [17]         Exhibit 1, T Documents, T 18, pages 124 – 125, Report of Dr Papacostas dated 22 June 2015.

    ·Mr Ware described constant pain in the:

    ocervical region, with associated constant headaches on a daily basis;

    othoracic region, which is the most severe of his pain and which can often radiate around to the chest wall;

    olumbar region with an associated burning numbness sensation with radicular pain involving both upper and lower extremities;

    ·Mr Ware has been medicating with analgesics including Tramadol, Panadol Osteo, and Panadeine and has had no other intervention or allied health input;

    ·Mr Ware described difficulties performing most duties around the home whereby he is unable to assist laundry duties or mow the lawns;

    ·Mr Ware says he is able to dress himself, but requires assistance from time to time;

    ·Mr Ware was able to stand on his heels and toes and had a reasonable range of motion of his cervical spine although he was in pain;

    ·Mr Ware was able to flex the lumbar spine to approximately 80° with some discomfort;

    ·straight leg raising on the lower extremities was limited to 70° on the left and to 80° on the right;

    ·he reviewed Mr Ware’s MRIs and found that Mr Ware’s sensory changes with distribution of his pain with the predilection for the medial aspect of the hands would not be in keeping with [the MRI] findings. Mr Ware states that although the pain in this area… fluctua[tes], it is certainly the most severe pain that he experiences… the distribution… of [Mr Ware’s] pain is not consistent with an L5 radiculopathy;

    ·he had arranged for Mr Ware to undergo dynamic plain imaging to categorise any changes with regards to his listhesis;

    ·he referred Mr Ware to a chronic pain specialist to rationalise his medication and provide him with options for trying to lead a more functional existence; and

    ·he recommended physiotherapy to help with his chronic pain issues.

17. In July 2015 Dr Papacostas reported that:[18]

    (a)the dynamic plain imaging demonstrated no dynamic slip at L5/S1 where Mr Ware has the bilateral pars defect;

    (b)the pain in the lower extremities is not consistent with an L5 radiculopathy;

    (c)for completeness he had requested a CT-guided left L5 nerve root block to see if it alleviates any of the symptoms;

    (d)Mr Ware was yet to see a physiotherapist; and

    (e)he had re-referred him to the pain specialist.

    [18]         Exhibit 1, T Documents, T 19, page 126, Report of Dr Papacostas dated 20 July 2015.

18. In February 2016, Dr Grigg confirmed that Mr Ware had tried pain management and physiotherapy with only slight progress (there is no other information regarding this pain management). Dr Grigg reports that in his opinion neurosurgical opinion is not warranted and long term physio therapy and heavy doses of analgesics is not the answer. Dr Grigg believes lifestyle is important and there may be a role for long term uses of agents such as Lyrica. Dr Grigg believes Mr Ware has reached maximal rehabilitation and is precluded from most forms of traditional employment.[19]

    [19]         Exhibit 1, T Documents, T 25, pages 136 – 138, Report of Dr Grigg dated 6 February 2016.

19. In March 2016 Dr Grigg reported that:[20]

    (a)Mr Ware still had thoracic and lumbar spine pain and that he avoided repetitive lifting and long periods of standing;

    (b)the prognosis for how long the symptoms would affect Mr Ware’s capacity to work or study was uncertain;

    (c)Mr Ware was treating the condition with Brufen, Lyrica and Tramadol.

    [20]         Exhibit 1, T Documents, T 21, page 130, Medical certificate of Dr Grigg dated 5 March 2016.

20. In August 2016 Dr Grigg confirmed that Mr Ware had been referred to a pain clinic in October 2015 but that he was still waiting to be seen. Dr Grigg says the pain clinic has informed Mr Ware that he had a further three to nine months wait for an appointment.[21]

    [21]         Exhibit 1, T Documents, T 23, pages 132 – 134, Report of Dr Grigg dated 27 August 2016.

21. On 29 August 2016 the pain clinic at the Princess Alexander Hospital confirmed that “An assessment of the clinical urgency of your patient will be undertaken within the next five (5) working days. You will be notified of the outcome of this categorisation process and either placement on the waitlist or the offer of an appointment in due course”.[22]

    [22]         Exhibit 1, T Documents, T 24, page 135, Letter from PA Hospital to Dr Grigg dated 29 August 2016.

22. Mr Ware was assessed by a pain specialist again in May 2017. Dr Surethra Samankar, Pain Medicine Fellow, reported, among other things, that Mr Ware had a booking for an Allied Health Assessment and arranged for him to see a Consultant Psychiatrist for medication optimisation.[23]

    [23]         Exhibit 6, Report of Dr Samankar dated 30 May 2017.

    Upper limbs – shoulder

23. In January 2014 an x-ray and ultrasound of Mr Ware’s left shoulder indicated he had a degree of subdeltoid bursitis and impingement. Dr Blaise O’Connell, Radiologist, reported that Mr Ware may respond to a steroid or Marcaine injection under ultrasound guidance.[24]

    [24]         Exhibit 1, T Documents, T 13, page 119, Ultrasound report dated 29 January 2014.

24. In March 2014 Mr Ware had an ultrasound guided injection of Marcaine and Celestone into the left subdeltoid bursa.[25]

    [25]         Exhibit 10, Ultrasound report dated 11 March 2014.

25. An ultrasound of Mr Ware’s shoulders in August 2016 indicated he had a degree of subdeltoid bursitis bilaterally with associated impingement, mild degenerative changes of the acromioclavicular joint and minor calcification of the left subscapularis tendon. Dr O’Connell reported that Mr Ware may respond to a steroid or Marcaine injection under ultrasound guidance.[26]

    [26]         Exhibit 1, T Documents, T 22, page 131, Ultrasound report dated 22 August 2016.

    Other

26. Mr Ware indicated in his claim form that he had depression resulting from his disabilities.[27]

    [27]         Exhibit 1, T Documents, T 5, page 81, Mr Ware’s Claim for DSP dated 17 December 2015.

27. In August 2017 Mr Ware was diagnosed with severe obstructive sleep apnoea.[28]

    [28]         Exhibit 9 , Report of Dr Prasad dated 7 August 2017.

    Conclusion on Impairments

28. The Secretary accepts that Mr Ware suffered from a physical impairment for the purposes of section 94(1)(a) at the Qualification Period.[29]

    [29]         Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 March 2018, para 5.1.

29. In light of the above medical evidence the Tribunal finds that during the Qualification Period, Mr Ware suffered from a Spinal Impairment and a Shoulder Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.

30. In relation to the sleep apnoea condition, it was diagnosed after the Qualification Period and had not been fully treated therefore it cannot be considered the purposes of this DSP application.

31. In relation to the depression condition, there is no medical evidence before the Tribunal and therefore it cannot be considered the purposes of this DSP application.

    DO MR WARE’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?

    How are Impairment Ratings Assessed?

32. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[30] They are function based[31] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[32]

    [30] Determination, s 4(2) and 5(2)(a).

    [31] Determination, s 5(2)(b) and (c).

    [32] Determination, s 5(2)(d).

33. An Impairment Rating can only be assigned to an impairment if:[33]

    (a)Mr Ware’s condition causing that impairment is “permanent”; and

    (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    [33] Determination, see s 6(3).

34. Mr Ware’s condition/s can only be considered “permanent” for the purposes of the Determination if the following conditions are satisfied:[34]

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    [34] Determination, see s 6(4).

35. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[35], the following must be considered:[36]

    (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 2 years.

    [35] For the purposes of ss 6(4)(a) and (b) of the Determination.

    [36] Determination, see s 6(5).

36. A condition is fully stabilised[37] if:[38]

    (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[39]; or

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

    [37] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

    [38] Determination, see s 6(6).

    [39]         For reasonable treatment see s 6(7) of the Determination.

37. Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

38. Before applying the Tables, Mr Ware’s medical history in relation to the condition causing the Impairments, must be considered.[40]

    [40] Determination, see s 6(2).

    IS MR WARE’S SPINAL IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

39. The medical evidence clearly establishes that Mr Ware’s Spinal Impairment was fully diagnosed prior to the Qualification Period. The question is whether the Spinal Impairment was fully treated and fully stabilised during the Qualification Period.

40. The Secretary submitted in writing that it was accepted that the Spinal Impairment was fully treated and fully stabilised, relying on a report from Dr Moore.[41] Dr Moore is a general practitioner with the Health Professional Advisory Unit of the Department of Human Services. Dr Moore was asked to review Mr Ware’s file in December 2017 and provide a report for this hearing.[42]

    [41]         Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 March 2018, para 6.1.

    [42]         Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 March 2018, Annexure B, Report of Dr Moore

    dated 24 January 2018.

41. The Tribunal does not understand why a report from Dr Moore was necessary.

42. Dr Moore concluded, based on a file assessment, that Mr Ware’s Spinal Impairment was fully treated because she did not believe that pain management, “whilst desirable”, would improve Mr Ware’s pain. The Tribunal gives little weight to this evidence because Dr Moore:

    (a)is not a specialist;

    (b)gave a contrary opinion to the repeated recommendation of Dr Papacosta;

    (c)relies on the fact that neurosurgery was not recommended;

    (d)relied on a report from Dr Grigg that no further treatment will assist, yet that report was written 18 months after the Qualification Period;

    (e)makes no reference to the fact that when Mr Ware ultimately attended the pain clinic that Mr Ware refused to follow their advice (which was that he needed to be weaned off an extremely addictive, high dose of Oxycontin, and that he needed to see a psychologist);[43]

    (f)did not contact Dr Papacosta to ascertain why he thought pain management would assist; and

    (g)appears to be forming her opinion in hindsight, and without all of the relevant information.

    [43]         Mr Ware told the Tribunal that the pain specialist told him he was on the second highest level of Oxycontin. Mr

    Ware said he refused this advice because he experienced withdrawal symptoms when reducing the Oxycontin and therefore would not continue with the program and his general practitioner, Dr Grigg, was managing his medication instead.

1. The Tribunal finds that, based on the evidence available, Mr Ware’s Spinal Impairment, cannot be considered permanent during the Qualification Period, because Mr Ware had not commenced the treatment recommended by Dr Papcosta, namely specialist pain management and physiotherapy treatment.

   IS MR WARE’S SHOULDER IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

2. The medical evidence establishes that Mr Ware’s Shoulder Impairment was fully diagnosed prior to the Qualification Period. The question is whether the Shoulder Impairment was fully treated and fully stabilised during the Qualification Period.

3. The Secretary submitted that Mr Ware’s Shoulder Impairment was not fully treated and stabilised, because it had been recommended that Mr Ware have ongoing injections and specialist review.[44]

   [44]         Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 March 2018, paras 6.4-6.5.

4. At the hearing Mr Ware said he was told by the radiologist not to have any more injections because they were not working. There is no corroborating evidence of this advice. Mr Ware also acknowledged that after the Qualification Period, in or around April 2017, he started physiotherapy treatment which was continuing.

5. The Tribunal agrees with the Secretary that, based on the evidence available, Mr Ware’s Shoulder Impairment, cannot be considered permanent during the Qualification Period because Mr Ware had not had any specialist review and had not commenced physiotherapy. Therefore, no Impairment Rating can be assigned.

   WERE MR WARE’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?

6. To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Mr Ware’s Impairments were not permanent and no Impairment Rating can be assigned. Mr Ware does not satisfy section 94(1)(b).

   DID MR WARE HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?

7. As the Tribunal has concluded that Mr Ware’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period it is not necessary to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) of the Act.

   CONCLUSION

8. Mr Ware’s claim fails. His impairments were not permanent during the Qualification Period and as a result he did not qualify for DSP.

9. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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

Associate

Dated: 14 May 2018

Date of hearing:	20 April 2018
Applicant:	In person
Advocate for the Respondent:	Mr Jake Kyranis
Solicitors for the Respondent:	Department of Human Services