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

[2021] AATA 170

Whitby and Secretary, Department of Social Services (Social services second review) [2021] AATA 170 (9 February 2021)

Division:GENERAL DIVISION

File Number:2020/3506            

Re:Craig Whitby  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:9 February 2021

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)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

9 February 2021

INTRODUCTION

1. On 9 January 2019, Mr Craig Whitby (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “L5/S1 disc fusion surgery, L5/S1 disc facet screw surgery, Sciatica down left leg, Persistent lower back pain.”[2]

   [1]     Exhibit 1, T Documents, T77, pages 200-231, Claim for Disability Support Pension.

   [2]     Exhibit 1, T Documents, T77, page 223, Claim for Disability Support Pension.

2. The Applicant’s claim was rejected on 25 January 2019,[3] on the basis that the Applicant failed to provide sufficient medical evidence to assess the claim.

   [3]     Exhibit 1, T Documents, T79, pages 234-235, Centrelink Notice: Rejection of DSP claim.

3. The Applicant sought review of that decision and on 18 March 2020 an Authorised Review Officer (ARO) affirmed the decision. The ARO found that the Applicant’s chronic severe lower back pain was fully diagnosed however was not fully treated and fully stabilised.[4]

   [4]     Exhibit 1, T Documents, T91, pages 333-338, Authorised Review Officer Decision and Notes.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 12 May 2020, the SSCSD found that the Applicant’s spinal pain condition was fully diagnosed, fully treated and fully stabilised however, did not attract an impairment rating of 20 points or more under the Impairment Tables and therefore affirmed the decision to refuse his claim for DSP.[5]

   [5]     Exhibit 1, T Documents, T2, pages 5-8, 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 received on 8 June 2020.[6]

   [6]     Exhibit 1, T Documents, T1, pages 1-4, Application for Review.

6. On 22 January 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

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

   THE LAW

8. The relevant law in assessing a person’s qualification for DSP is found in the
   Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.

9. 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;[7]

   2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and

   3.does the Applicant have a continuing inability to work?[9]

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

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

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

10. Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[10]

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

11. Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a 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.[11] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.

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

12. 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:

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

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

    (c)whether treatment is continuing or planned in the next two years.[12]

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

13. A condition is considered to be fully stabilised if:[13]

    (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.

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

14. 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.[14]

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

15. 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.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]

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

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

16. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support (POS); and

    (b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and

    (c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.

17. A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[17]

    [17]    Section 94(3B) of the Act.

18. 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.[18]

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

19. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[19]

    [19]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].

    RELEVANT PERIOD

20. The Relevant Period in this matter commences on 8 January 2019, being the date, the Applicant lodged his claim for DSP, and ending 13 weeks later on 9 April 2019. 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

21. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[20] The Respondent considers the Applicant’s impairment for the purpose of the claim for DSP in question consists of a spinal condition.[21]

    [20]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 6, paragraph 36.

    [21]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-10, paragraphs 39-45.

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

    1.whether, within the Relevant Period the Applicant’s spinal condition attracted 20 points or more under the Impairment Tables; and

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

    IMPAIRMENT TABLES

23. The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.

24. Table 4 of the Impairment Tables deals with functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck and provides as follows:[22]

    Table 4 – Spinal Function

    [22]    Impairment Table 4 – Spinal Function, Part 3 of the Determination. 

Introduction to Table 4

·   Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
• a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·   In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)      The person can:

(a)      bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)      turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

5

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

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

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

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

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

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

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

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

20

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

(1)      The person is unable to:

(a)      perform any overhead activities; or

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

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

(d)      remain seated for at least 10 minutes.

CONSIDERATION

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

1. At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal. The Tribunal considers that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence. The Tribunal accepts that the Applicant’s spinal condition and the associated pain limits his mobility and ability to undertake activities.

2. Having sustained a back injury in 2012[23] the Applicant underwent an anterior L5/S1 discectomy and fusion on 10 January 2013 and an L5/S1 facet scree fusion and postero-lateral fusion on 29 May 2014.[24] There is a large volume of medical evidence before the Tribunal in relation to the Applicant’s spinal condition.

   [23]   Exhibit 1, T Documents, T18, pages 85-86, Report of Dr Day.

   [24]    Exhibit 1, T Documents, T66, pages 170-171, Report of Dr Day.

3. Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating under the Impairment Tables.[25] This point is not in contention.[26]

   [25]    A summary of the relevant evidence is set out at Exhibit 3, Secretary’s Statement of Facts & Contentions,           pages 7-8, paragraph 39.

   [26]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraph 39.

4. At the Hearing the Applicant told the Tribunal that:

   ·He had an accident in 2012 and injured his back. 

   ·After receiving a workers compensation payment, he had a three year preclusion period from being able to claim social security benefits and this impacted on his ability to be able to provide full evidence.

   ·After this preclusion period ended he went to Centrelink to claim Newstart Allowance however the officer at Centrelink suggested that he should really make a claim for the DSP due to his back condition.

   ·His surgeon and two general practitioners have said he cannot work.

   ·He does not think the opinion of the HPAU should be considered as they had not seen him, examined him or even spoken to him.

   ·He does not think the other Centrelink medical assessments should be considered as he considers that the assessors were not qualified to give an opinion nor had they examined him.

   ·He agrees that Table 4 of the Impairment Tables is the relevant table as his injury is a back injury that affects his spinal function.

   ·Each person is affected differently by their impairments and their pain and trying to assess everyone against a strict criteria will not work. The questions are too cut and dry.

   ·He should be assigned a rating of 20 impairment points.

   ·He had difficulty performing overhead activities, turning his head or bending his neck without moving his trunk, bending forward to pick up a light object from a desk or table and remaining seated for 10 minutes or more. He is not unable to do any of these things. He makes adjustments to allow for his new circumstances.

   ·It takes time to adapt to your new situation and pain. 

   ·He can sit in a car for 30 minutes and after that it is difficult and he would need to stop to get out and walk around.

   ·On the flight he took to the Philippines he was upgraded to business class which allowed him to lie down and get up and walk around when he needed to.

   ·He has learnt new ways to do things that take his condition into account. 

   ·He does not believe he could do 15 hours of work a week.

   ·He had discussed lots of different kinds of jobs with the job provider and applied for positions however he believes no employer would be prepared to allow him to take breaks every 10 minutes.

   ·His condition has worsened since he made the claim for DSP in January 2019. As he gets older his condition continues to deteriorate. Winter and different kinds of weather are particularly difficult due to the rod in his back. Everything changes each year.

5. The Respondent contends that the Applicant’s spinal condition can at most be assigned       5 points under Table 4 of the Impairment Tables. In support of this contention the Respondent relevantly relied upon the following:[27]

   [27]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraph 41.

   (a)       On 22 February 2019, the Applicant self-reported to an assessor completing an Employment Services Assessment (ESA) Report that he was able to walk around a shopping centre for 20 minutes before needing a rest, to sit on a ride-on mower for 30 minutes and to manage his personal care (T82, 240-244).

   (b)       A medical note of GP Dr Garth Kline dated 22 May 2019 indicates the Applicant had a one-month trip to the Philippines planned and on 8 September 2019 Dr Kilne reported “Good trip, no concerns” (ST30, 62, 66).

   (c)       During the AAT1 hearing on 12 May 2020 the Applicant gave oral evidence. The AAT1 recorded his evidence as follows (T2, 7-8):

   i.“He is active around his home but has learned to work within the confines of his restrictions”

   ii.“He has a number of animals on his property that he can care for (pigs, chickens and a horse) but food storage bins are elevated and he is careful with bending, twisting and moving”

   iii.“He can do some light outdoor maintenance but relies on his children to do this”

   iv.“He can do most activities around the home but has learned to pace himself and he cannot do those activities for long”

   v.“He can drive in the local area but not more than one hour in his four wheel drive”

   vi.       “He can squat but must protect and brace himself”

   vii.       “He confirmed his problem is in the lower back and not the neck”

   viii.      “He can shower himself”

   (d)      On 24 June 2020, Dr Dasari (who was treating the Applicant during the qualification period) reported that:

   “1)       He experiences discomfort with bending over and is stiff, making it    difficult to lift heavy objects

   2)        He always appears to sit stiff without any free movement in his    head/neck

   3)        He does have difficulty in performing overhead activities, with his stiff                     back

   4)        He has been noticed to get restless when has to remain seated for    more than 10 mins”

   (e)      The HPAU doctor found that the most appropriate impairment rating was 5 points under Table 4 given that the L5/S1 fusion had compromised the lumbar spine movements noting that descriptors (1)(a) and (b) would be met.

1. In a letter dated 12 February 2019, Dr Rachel Daniels provided:[28]

   [28]    Exhibit 1, T Documents, T81, pages 238-239, Report of Dr Daniels.

   Dear Centrelink,

   I am writing a letter to support [the Applicant’s] application for DSP.

   I was his treating general practitioner between 2012-2014 when he was undergoing management of his back condition.

   You would be aware of his history based on previous documentation provided. So I will only summarise.

   -This man has a severe impairment.

   -This man has been classed as having a severe impairment of 20% as per his previous treating orthopaedic surgeon Dr Day.

   -This man has reached maximal improvement.

   -This man has an ongoing inability to work.

   -This man has chronic debilitating symptoms requiring pharmacological management.

   -This man is unable to perform any overhead activities.

   -This man has difficulty with bending due to discomfort.

   -This man has difficulty sitting for more than 10 mins.

   -This man can not stand or weight beer for prolonged periods – 10-15 mins.

   …..

2. In a letter dated 12 June 2020, Dr Daniels provided:[29]

   [29]Exbibit 2, Supplementary T Documents, ST24, page 35, Report of Dr Daniels.

   To Whom It May Concern,

   Re: [the Applicant]

   I have known [the Applicant] for 7 years and was the original treating practitioner, who managed his lower back condition, including both referring him to a surgeon and monitoring his post-operative phase.

   I have not seen him for at least one yea, as I relocated to a different surgery, however he has now made contact with me again requesting a letter to support him in his appeal to gain a Disability Support Pension.

   I understand that his condition is stable and stationary and that little has changed since a few years ago when his treating surgeon, Dr Day, stated that he had a severe impairment of 20%.

   I consider that:

   -He is unable to perform any overhead activities.

   -He has difficulty sitting for more than 10 minutes.

   -He experiences discomfort with bending over, so that lifting any weight causes him discomfort.

   -His entire back is stiff, making it difficult to move his head/neck without moving his trunk.

   ………

3. The Respondent contended that the Tribunal should put not weight on the letter from Dr Daniels, providing:[30]

   42.      The Secretary acknowledges the report of Dr Daniels dated 12 February 2019 which reports on the Applicant’s functional impairment including that he is unable to perform any overhead activities, has difficulty with bending due to discomfort, difficulty sitting for more than 10 minutes and cannot stand for prolonged period (10-15 minutes)(T81, 238-239). The report makes clear that Dr Daniels was the Applicant’s treating GP from 2012 to 2014, and it is not evident that she conducted any examination of the Applicant at or around the qualification period or that she was involved in his treatment or management after 2014. Accordingly, the Secretary submits that little weight ought be given to this report, as Dr Daniels’ comments appear to be based on her historical notes and the Applicant’s self-report only.

   43.      The Secretary notes that throughout the period Dr Daniels was treating the Applicant from 2012 to 2014 the Applicant was also being managed by spinal surgeon Dr Day. Towards the end of that period on 5 December 2014 Dr Day opined that the Applicant could flex his trunk to touch past his knees, that lateral flexion was 20 degrees and trunk rotation was 30 degrees (T66, 171). Further, Dr Daniel’s evidence should be compared to that of Dr Dasari (the Applicant’s treating GP during the qualification period) who reports that the Applicant’s functional impairments are not as severe as described by Dr Daniels.

   44.      The Secretary contends that the Applicant’s self-reporting in the ESAR during the qualification period, his capacity to undertake overseas travel, and his evidence to the AAT1 that he was able to undertake most tasks around the home, was capable of light maintenance and yard work and was independent with activities of daily living such as showering himself and shopping, should all be preferred over the evidence of Dr Daniels.

   [30]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 42-44.

4. In considering the contentions of the Respondent in relation to the amount of weight that should be placed on the letters of Dr Daniels the Tribunal notes that the Patient Health Summary from Harbourtown Medical Centre includes the consultation notes of Dr Daniels for consultations with the Applicant in June 2020. These notes discuss what needs to be written by her to support a severe impairment to be met for DSP purposes, indicates that she needed to refamiliarize herself with the Applicant’s medical history and that she would provide further correspondence if required.[31]

   [31]    Exhibit 2, Supplementary T-Documents, ST29, pages 47-48, Patient Health Summary from Habourtown Medical Centre.

5. The opinion of Dr Daniels clearly contradict that of his treating general practitioner and the evidence provided by the Applicant himself.

6. Consequently, the Tribunal prefers the opinion provided by Dr Dasari on 24 June 2020 as outlined above at paragraph 29 as the Applicant’s treating general practitioner during the Relevant Period.

7. Based on the information before it, contentions made by the Respondent and evidence provided by the Applicant, the Tribunal is satisfied that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and that this condition can be assigned an impairment rating under Table 4 of the Impairment Tables.

8. While the Tribunal acknowledges the Applicant’s frustration with the way in which the eligibility requirements for being granted the DSP, in particular, the Impairment Tables are written and applied, it is the law that is in place that the Tribunal must follow.

9. Having considered the Applicant’s evidence at Hearing in particular that he is not unable to do any of the tasks outlined in the 20 point descriptors for Table 4 of the Impairment Tables, although he had difficulty if he had to perform these tasks, the Tribunal finds that the Applicant does not have 20 points under the Impairment Tables and consequently his application must fail.

10. Although it will not impact the outcome of this matter, the Tribunal considers that the appropriate impairment rating in relation to the Applicant’s spinal condition during the Relevant Period is 10 points on Table 4 of the Impairment Tables. The Tribunal is satisfied that the Applicant is able to sit in or drive a car for at least 30 minutes and that based on his spinal condition and associated pain would be unable to sustain overhead activities. That does not mean he cannot do overhead activities, rather it is reasonable that he would be unable to sustain such activities.

    Continuing Inability to Work

11. As the Tribunal has 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

12. The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

13. The Tribunal finds that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 10 impairment points under Table 4 of the Impairment Tables.

14. The Tribunal finds that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

15. Accordingly, the decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 9 February 2021

Date of Hearing:

22 January 2021

Applicant:

By telephone

Solicitors for the Respondent:

Mr Chris Murphy

Services Australia