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

[2018] AATA 876

Watts and Secretary, Department of Social Services (Social services second review) [2018] AATA 876 (12 April 2018)

Division:GENERAL DIVISION

File Number:           2017/1275

Re:Russell Watts

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member L M Gallagher
Member C Edwardes

Date:12 April 2018

Place:Perth

The decision under review is affirmed.

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

Member L M Gallagher

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant had conditions that were fully diagnosed, treated and stabilised – spinal condition fully diagnosed but not fully treated and fully stabilised – pain management program - mental health condition not fully diagnosed – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 4(2), ss 94(1), ss 94(2)

Social Security (Administration) Act 1999(Cth) - Sch 2, Cl 4(1)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, ss 5(2), ss 6(1), ss 6(3) ss 6(4)–(8), ss 8(1), Tables 4 and 5

REASONS FOR DECISION

Member L M Gallagher
Member C Edwardes

12 April 2018

INTRODUCTION

1. On 15 April 2016, Mr Watts lodged an application for Disability Support Pension (“DSP”) with the Department of Human Services (“the Department”) (T49, T54, T65, page 257).  On his claim form, Mr Watts listed his “disabilities, illnesses or injuries” as being “…a disc bulge with an anulus [sic] tear at L5S1 [sic]” (“the spinal condition”) (T49, page 189).

2. A medical report by Dr Sophie Hopkins, General Practitioner, dated 15 June 2015, prepared in support of Mr Watts’ claim for DSP (T56) listed his condition as “Back pain – L5/S1 Degenerative spondylosis + disc protrusion, Degenerative spondylosis elsewhere too,” date of onset of October 2011 and “Depression,” date of onset 2015 (T56, pages 218 and 221).

3. On 30 May 2016, a Job Capacity Assessment (“JCA”) (face to face) was undertaken by a Registered Psychologist and a Registered Occupational Therapist and a report was produced on 14 June 2016 (T55).  The JCA report states that Mr Watts’ spinal condition was fully diagnosed, but could not be regarded as fully treated or fully stabilised as “[n]ot all reasonable treatment has been attempted” (T55, page 211).  The JCA also considered medical information from Dr Hopkins regarding Mr Watts’ depression condition, which it considered the diagnosis of which was yet to be verified by a Clinical Psychologist or a Psychiatrist (T55, page 211).  The JCA found that Mr Watts did not have a continuing inability to work (“CITW”) on the basis that Mr Watts was assessed as having a future work capacity within two years with intervention of 15 – 22 hours per week (T55, page 213).

4. On 16 June 2016, the Department rejected Mr Watts’ claim for DSP on the basis that Mr Watts had been “assessed as not having an impairment rating of 20 points or more” (T57).

5. On 2 August 2016, Dr Hopkins provided a further report entitled “Medical Certificate” (T60).  In this report, Dr Hopkins states:

   This is to certify that Mr Russell Watts has a medical condition.

   His condition has been fully investigated, diagnosed and is now stabilised.

   There is no further interventional treatment planned but he will continue on regular analgesia.  His function is unlikely to significantly improve.

   I feel that despite any further treatment within the next two years, his condition will not improve as he has not greatly improved since 2011.  He has always remained positive and been fully compliant with every treatment.  He has chronic degeneration in the back and can have less pain with hydrotherapy.

   With regards to daily activities of living, he is able to wash, dress and cook.  It takes him longer but he perseveres.  He is in constant pain, he struggles to use the toilet, he is unable to partake in regular family activities.

   I would describe it as a MODERATELY SEVERE impact.

6. On 21 September 2016, the Department’s Health Professional Advisory Unit (“HPAU”) provided an opinion regarding Mr Watts potential eligibility for DSP (T62).  The HPAU was of the view that “…at this time [it] concurs with the 14/06/2016 JCA that the [spinal] condition could not reasonably be considered FTS [fully treated and stabilised]” and that  there was insufficient evidence to support a formal diagnosis in relation to Mr Watts’ purported mental health condition (T62, page 240).  In forming this opinion, the HPAU considered the evidence of Dr Hopkins at paragraph 5 above and Ms Mountford at paragraphs 38 and 48 below.

7. On 26 September 2016, an Authorised Review Officer of the Department (“ARO”) affirmed the Department’s decision dated 16 June 2016 (T63).  The ARO found that Mr Watts’ spinal condition “…cannot be considered fully treated and stabilised given the potential for further improvement from participation on [sic] a more extensive Pain Management Program” (T63, page 243).  As to Mr Watts’ mental health condition, the ARO found that as it was yet to be diagnosed by a “…psychiatrist or a doctor…confirmed by a clinical psychologist,” it lacked the credentials for the Department to accept that it had been fully diagnosed (T63, page 243). 

8. On 8 November 2016, Mr Watts applied to the Administrative Appeals Tribunal (“Tribunal”) for a first review of the ARO decision dated 26 September 2016 (T2).

9. On 17 February 2017, the Tribunal’s Social Services & Child Support Division (“AAT1”) affirmed the ARO decision dated 26 September 2016 (T2) on the basis that:

   (a)in disagreement with the ARO, Member Hyman found that Mr Watts’ spinal condition was fully treated and stabilised because Mr Watts was likely to remain in his current state, or possibly become worse, for the next two years (T2, page 8);

   (b)Mr Watts’ spinal condition met the descriptors of an impairment rating of 10 points under Table 4 and was assigned accordingly; and

   (c)Mr Watts had said that he did not intend to base his claim on a mental health condition, however even if he had wished to do so, it was impossible to take Mr Watts’ mental health condition into account without an appropriate diagnosis.

10. Given the AAT1’s findings at paragraph 9 above, it did not go on to consider whether Mr Watts had a CITW.

11. On 8 March 2017, Mr Watts applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 17 February 2017, claiming that the AAT1 decision is wrong because (T1, page 4):

    …there are more important things in living that i [sic] still cant [sic] do i [sic] keep trying but cant [sic] get certain things done or enjoy and i [sic] dont [sic] think I will ever earn enough money again to live properly there is so much more that hasnt [sic] been considered.

    RELEVANT LEGISLATION AND GENERAL PRINCIPLES

12. The statutory provisions relevant to the present matter are contained in the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999(Cth) (“the Administration Act”). 

13.     Section 94 of the Act sets out the qualification criteria for DSP. For present purposes, the three primary requirements are that a person has a physical, intellectual or psychiatric impairment (subsection 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (refer to paragraph 15 below and subsection 94(1)(b) of the Act); and that the person has a CITW (subsection 94(1)(c) of the Act).

1. In accordance with subclause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine Mr Watts’ eligibility for DSP on 15 April 2016, being the date the claim was lodged.

2. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (“impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (section 3 of the Determination)) and they describe functional activities, abilities, symptoms and limitations (subsection 5(2) of the Determination).

3. Subsection 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for two years (subsection 6(3) of the Determination).

4. For the purposes of the Impairment Tables, “permanent” does not have its usual meaning. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, be fully stabilised and be more likely than not, in light of available evidence, to persist for more than two years (subsection 6(4) of the Determination).

5. In determining whether a condition has been “fully diagnosed and fully treated”, the following facts are to be considered:

   (a)       whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)       whether treatment is continuing or is planned in the next 2 years.

   (subsection 6(5) of the Determination).

6. A condition is “fully stabilised” if:

   (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.

   (subsection 6(6) of the Determination).

7. “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 (subsection 6(7) of the Determination).

8. The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (subsection 6(8) of the Determination).

9. Self-reporting of symptoms in relation to a person’s condition can only be taken into account where there is corroborating evidence as defined in each table in the Impairment Tables (subsection 8(1) of the Determination).

10. The Introduction to Impairment Table 5 (Mental Health Function) states that the required diagnosing medical practitioner includes a psychiatrist, with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

11. The Introduction to Impairment Table 4 (Spinal Function) states that the diagnosis must be made by an appropriately qualified medical practitioner, being, for example, their treating doctor, medical specialist, physiotherapist or other rehabilitation provider.

12. In respect of the requirement that a person have a CITW, unless a person is specifically exempted from this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied, including participation in a recognised program of support and being unable to work for 15 hours or more per week.

    ISSUES

13. The issues which arise in this application are:

    (a)whether Mr Watts suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,

    (b)whether those impairments receive an impairment rating of 20 points or more under the Determination; and if so,

    (c)whether Mr Watts has a CITW, which includes the requirement to have actively participated in a program of support.

14. As the Tribunal has concluded below (refer to paragraph 66) that Mr Watts’ spinal condition has not been fully treated, the Tribunal has not addressed in considerable detail the evidence, the legislation nor the issues relevant to whether Mr Watts’ impairments receive an impairment rating of 20 points or more under the Determination and whether Mr Watts has a CITW. In these circumstances, the Tribunal is not required to do so.

    EVIDENCE

15. The matter was heard in Perth on 20 February 2018.  Mr Watts appeared in person with the support of his son and was self-represented.  The Secretary was represented by Mr Christopher Bishop from Mills Oakley Lawyers.

16. The Tribunal received the following evidence:

    ·the Applicant’s written submissions dated 7 August 2017, with attachments (A1);

    ·the Applicant’s written submissions in reply dated 1 December 2017, with attachment (A2);

    ·a 262 page set of T documents (T1 – T65) (R1); and

    ·the Secretary’s statement of facts, issues and contentions dated 15 September 2017, with attachments (R2).

17. At hearing, the Tribunal heard oral evidence from Mr Watts (in person) and Ms Janice Mountford, Advanced Scope Physiotherapist (by telephone and whose reports appear at T44, T45 and attached to A2).

18. Following the hearing, Mr Watts provided additional evidence regarding his involvement with Disability Employment Services, his claim for Total and Permanent Disablement with TAL Life Limited and additional medical information from Dr Sophie Hopkins.

19. Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.  Relevant aspects of the evidence are referred to below.

20. Mr Watts and Ms Mountford gave the following affirmed evidence at hearing, including during cross examination by Mr Bishop:

    Mental health condition

21. Mr Watts stated that if his mental health condition “comes up” during the hearing, then he would like the Tribunal to address it in its decision.

    Spinal condition

    Mr Watts

22. Mr Watts said that he had participated in two pain management programs before he applied for DSP, including the two day Self Training Educative Pain Session (“STEPS”) program[1]. 

    [1] Mr Watts was referred to and assessed by the “360º health + community” two-day STEPS program on 17 February 2015 (T42, page 134).

23. Mr Watts said that he had attempted the Pain Understanding and Management Program (“PUMP”) at the Fiona Stanley Hospital before, however after participating for “a few days,” the chair he was sitting on broke and he fell on all fours and suffered further injury to his back.  Mr Watts said after he fell, he ended up in the Emergency Department at the Fiona Stanley Hospital where had had “scans,” which showed he had suffered three disc protrusions, one with a tear.

24. Mr Watts said that he was scheduled to soon commence the PUMP pain management course for a second time, and that he “knows what’s involved” in that course.

25. Mr Watts said that he had “no faith” in Ms Mountford’s comments on the radiological findings regarding his MRI scan.  Mr Watts said that in Ms Mountford’s report dated 27 November 2015 (T44, page 139) she states “…[t]here was no nerve compression in the lumbar spine,” (emphasis added) however in another letter of the same date commenting on the same scan (T45, page 140, and in A2) she states (contradictorily in Mr Watts’ view) that the scan showed “…some slight compression of the right L5 nerve root” (emphasis added).

26. When asked by Mr Bishop if he was able to carry out the activities in Table 4 of the Determination, Mr Watts said that he “was unable to do 99% on all four of those things” (being the four descriptors listed (a) to (d) under the severe functional impairment rating on Table 4 of the Impairment Tables).

27. Mr Watts said that through the STEPS program, he has learned to adjust and while he can remain seated for 10, 15 or even 20 minutes at a time, doing so necessarily involves a postural change.

28. When asked by Mr Bishop, Mr Watts said that he had driven his car to the hearing before this Tribunal, a journey which had taken approximately 40 minutes.  Mr Watts said that in order to do so, he wore a back brace to aid his comfort.

29. Mr Watts said that since he had made some adjustments to his home in 2011/2012, there is nothing at his home that requires him to reach overhead to perform domestic activities.

30. Mr Watts said that at the time of his claim for DSP, he did some of his own washing, however he could not hang it out on an outdoor clothes line. Rather, Mr Watts said, he hung his clothes on a retractable line in an undercover area.

31. Mr Watts said that he was able to wash his own hair.

32. Mr Watts said that while he was living with others at the time of his claim for DSP, he now lives alone.

    Ms Mountford

33. Ms Mountford stated that her role as an Advanced Scope Physiotherapist (at Fiona Stanley and Sir Charles Gairdner Hospitals) was to assess patients on the neurosurgeon’s waitlist and decide, with the surgeon’s input whether further imaging was necessary, a “physical triage” as it was put.

34. As to her purported contradiction in terms raised by Mr Watts (refer to paragraph 38 above), Ms Mountford said that:

    (a)where a significant nerve compression exists, a surgeon can perform a procedure to decompress it;

    (b)where a slight nerve compression exists, there is no promise that surgery will help; and

    (c)regarding her comment that, in relation to Mr Watts’ MRI, there was “no nerve compression”, that language was “sloppy” and from Mr Watts’ 2014 and 2015 radiology, it appeared there was no significant nerve compression in the sense that there was nothing to operate on.

35. As to her comments that Mr Watts “…may benefit from a more extensive Pain Management Programme” (T44, page 139), that he “…might respond to another course at Pain Management” and “…it may be worthwhile reconsidering [the PUMP Programme]” (T45, page 140) (clarity over which was sought by Mr Watts in A1), Ms Mountford said that when the “door to surgery is shut,” a pain management program is always recommended as part of a holistic approach to treatment, “so as not to leave [a patient] in limbo.”

36. When asked by Mr Watts as to when an activity is considered to be an overhead activity, Ms Mountford stated that any activity whether the arm is more than parallel to the ground, past eye level, is an overhead activity, which includes washing one’s hair and putting one’s arm on their head.

37. When asked by Mr Bishop about the PUMP programme, Ms Mountford stated that it was her understanding that this was a four-week program[2] conducted out of Fremantle Hospital.  Ms Mountford said that she was unable to comment further on the specifics of the PUMP program as she did not work at Fremantle Hospital.  Ms Mountford said however, that Sir Charles Gairdner Hospital offered a five-week, 3 days per week pain management programme which provided education on areas such as physical exercise, pacing and psychology and that Mr Watts “would get more from (a programme like) this than from a 2 day program” (referring to the two-day STEPS programme that Mr Watts has completed).

    [2] The PUMP programme is a 5-week pain management program (R2, Attachment A).

38. When asked by Mr Bishop, Ms Mountford said that as surgery was not an option for Mr Watts, she would recommend Mr Watts complete a (further) pain management program given that; this would be her normal course of action, and Mr Watts’ pain is reportedly significant.

39. When asked by Mr Bishop to elaborate on her comment that “it may be worthwhile reconsidering [the PUMP Programme]” (T45, page 140, refer also to paragraph 48 above), Ms Mountford said that the intent behind the program is to manage pain rather than cure it, to increase functioning with the pain that a person suffers and that this “may be worthwhile” to Mr Watts in the sense that he would need to close the door (on this approach) before others fully open.

1. When asked by the Tribunal, Ms Mountford said that if Mr Watts were to complete the PUMP programme, as it is a very comprehensive course it would not likely be offered to him again in the same facility.  While there would be a period of “top ups,” the programme would have an “end date” and Mr Watts would not be “on the books for life.”

   CONSIDERATION

   Whether Mr Watts suffered from a physical, intellectual or psychiatric impairment or impairments

2. It is not in dispute and the Tribunal finds on the evidence that at the date of claim, Mr Watts suffered from a spinal condition (as defined in paragraph 1 above).

3. As such, the Tribunal finds that Mr Watts satisfies subsection 94(1)(a) of the Act.

   Whether Mr Watts’ impairments receive an impairment rating of 20 points or more

   Mental health condition

4. In relation to Mr Watts’ mental health condition, the Tribunal notes the available medical information by Dr Hopkins, as considered by the JCA (refer to paragraph 3 above).

5. The Tribunal notes that Mr Watts informed the AAT1 that he did not intend to base his claim on a mental health condition and that he has not seen a psychologist or a psychiatrist.

6. Before this Tribunal, Mr Watts stated that if his mental health condition “comes up” during the hearing, then he would like the Tribunal to address it in its decision (refer to paragraph 34 above).

7. The Tribunal finds that while Dr Hopkins has noted that Mr Watts suffers from a mental health condition, in the absence of evidence of the corroborative diagnostic evidence required by Table 5 of the Impairment Tables (refer to paragraph 23 above), Mr Watts’ mental health condition cannot be found to be fully diagnosed, cannot be considered permanent within the definition of subsection 6(4) of the Determination and cannot be allocated a rating of points under the Impairment Tables.

   Spinal condition

8. In relation to Mr Watts’ spinal condition (as defined in paragraph 1 above), it is not in dispute and the Tribunal finds on the evidence that Mr Watts suffered from this condition on the date of claim and that this condition was fully diagnosed on this date.  The Tribunal refers to the medical reports of Dr Gemma Carroll dated 9 November 2011 (T8, page 34) and Dr Sophie Hopkins dated 15 June 2015 (T56, page 218) in this regard.

9. As to whether Mr Watts’ spinal condition was fully treated at the date of claim, the available evidence is that:

   (a)Dr Hopkins considers that Mr Watts can have less pain with hydrotherapy (refer to paragraph 5 above);

   (b)Ms Mountford is of the view that surgery is not indicated for Mr Watts, however, that being the case and as a matter of course, recommends a more extensive pain management programme, which may or might be of benefit (T44, page 139, T45, page 140, refer to paragraphs 48, 51 and 52 above);

   (c)in light of Ms Mountford’s opinion at subparagraph 61(b) above, the JCA was of the view that it was reasonable to expect Mr Watts would attempt this intervention, namely, a more extensive pain management program and therefore Mr Watts’ spinal condition could not be considered fully treated (T55, page 211).  The HPAU opinion is along the same vein and considered the evidence of Dr Hopkins and Ms Mountford (T62, refer to paragraph 6 above);

   (d)Mr Watts attempted the PUMP program at Fiona Stanley Hospital on 27 June 2017 (over a year after his claim for DSP was lodged) for four days but was unable to complete the program due to an increase in his pain (R2, Attachment A), which Mr Watts states came about following an incident where he fell from his chair (refer to paragraph 36 above); and

   (e)Mr Watts is scheduled to participate in the PUMP program for a second time.  According to Ms Mountford, if Mr Watts were to complete the PUMP program, there would be a period of “top ups,” following which his involvement in the program would eventually cease (refer to paragraph 53 above).

10. In paragraphs 47 and 48 of its Statement of Facts, Issues and Contentions (R2), the Secretary contends that Mr Watts’ spinal condition cannot reasonably be found to be fully treated and cannot be assigned an impairment rating under the Impairment Tables in circumstances where:

    a.The HPAU opinion concludes the applicant’s symptomatology is not in keeping with the radiological findings;

    b.The previously completed pain management programme consisted only of four sessions, over two days in February 2015;

    c.It was concluded in November 2015 that surgery was not recommended and having reached that conclusion, it was recommended that the applicant complete a more extensive pain management program;

    d.The applicant did not commence the more extensive five week pain management programme until June 2017; and

    e.The applicant has less pain with hydrotherapy but there is no evidence that the applicant continues to receive that treatment.

11. At hearing, Mr Bishop also contended the Secretary’s view at paragraph 62 above was supported by Dr Hopkins’ opinion on 15 June 2015 that a slight improvement in Mr Watts’ ability to function was expected within 2 years of that date (T56, page 220) and by the fact that the pain management course completed by Mr Watts previously was in 2015 and hence well prior to him lodging his claim for DSP.

12. Mr Watts, however, contended that he disagrees with the Secretary’s view, that his spinal condition has been fully treated on the basis of Dr Hopkins’s opinion (T60, refer to paragraph 5 above) and also the numerous doctors and other non-medical practitioners who provided opinions in the years prior to him lodging his claim (A2).

13. Having considered the available evidence and the parties’ contentions, the Tribunal finds there is no evidence that at the date of claim Mr Watts had adequately explored all reasonable treatment options, which on Ms Mountford’s evidence would arguably include an extensive pain management program. In this regard, the Tribunal also noted that Mr Watts was shortly to commence such a program, which by subsection 6(5)(c) of the Determination, renders Mr Watts’ treatment as “continuing or is planned in the next 2 years.”

14. As such, the Tribunal finds that on the date of claim, Mr Watts’ spinal condition was fully diagnosed, but not fully treated or fully stabilised and his functional impairment cannot be rated under the Impairment Tables.

    Whether Mr Watts has a continuing inability to work

15. Based on paragraphs 54 to 66 above, the Tribunal finds that as Mr Watts’ spinal condition cannot be considered fully diagnosed, fully treated and fully stabilised, he fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not strictly required to proceed to consider whether Mr Watts’ impairments did at the date of a claim, achieve an impairment rating of 20 points or more under subsection 94(1)(b) of the Act or whether Mr Watts has a CITW in satisfaction of subsection 94(1)(c) of the Act.

    CONCLUSION

16. Mr Watts does not qualify for DSP as the Tribunal has found that none of his claimed conditions were fully diagnosed, fully treated and fully stabilised at the date of claim and therefore cannot be considered permanent or be allocated points under the Impairment Tables.

    DECISION

17. The decision of the AAT1 dated 17 February 2017, which affirmed a decision of an ARO of the Department dated 26 September 2016 to reject Mr Watts’ application for DSP lodged on 15 April 2016, is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher, Member C Edwardes

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

Associate

Dated: 12 April 2018

Date of hearing:	20 February 2018
Applicant:	In person
Counsel for the Respondent:	Mr Christopher Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers