White and Secretary, Department of Social Services (Social services second review)
[2024] AATA 623
•9 April 2024
White and Secretary, Department of Social Services (Social services second review) [2024] AATA 623 (9 April 2024)
Division:GENERAL DIVISION
File Number(s): 2023/4082
Re:Wayne White
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:9 April 2024
Place:Canberra
The decision under review is affirmed.
…[SGD]……………………………………………………………………………..
Mr S. Webb, Member
Catchwords
SOCIAL SERVICES – application for Disability Support Pension – impairments – threshold for assignment of impairment ratings – permanence of conditions – chronic pain symptoms from underling medical conditions – further reasonable treatment recommended – impairments likely to persist for more than 2 years – cervical and lumbar spine conditions not permanent – evidence of functional impairment resulting from permanent left shoulder condition not sufficient to assign impairment rating – qualification thresholds not met – decision affirmed
Legislation
Social Security Act 1991, s 26, s 94
Social Security (Administration) Act 1999, s 42, Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Secretary, Department of Social Services v Sziva [2019] FCA 23
REASONS FOR DECISION
Mr S. Webb, Member
9 April 2024
Wayne White lodged a claim for Disability Support Pension (DSP). A delegate of the Respondent Secretary refused the claim. Mr White sought review by an Authorised Review Officer and, when the decision was affirmed, he applied for AAT first review. The decision was again affirmed. Mr White applied for AAT second review, commencing these proceedings.
The question whether Mr White’s DSP claim should be accepted turns on whether he meets the qualification thresholds for DSP set out in s 94 of the Social Security Act 1991 (Act).
Facts
Mr White was born in September 1971.
For many years, Mr White worked as a security guard.
In or about 2015, Mr White experienced pain in his cervical spine, lumbar spine, and shoulders.
On 10 October 2018, Dr Gupta (a radiologist) reported the results of an ultrasound of Mr White’s left shoulder and a CT scan of his lumbar spine, including:
ULTRASOUND LEFT SHOULDER
Indication:
Persistent pain, history of left shoulder reconstruction.
Findings:
A full thickness tear of the supraspinatus tendon measuring 11x10mm is seen.
…
Comment:
Full thickness tear of the anterior to posterior supraspinatus tendon and subacromial bursitis.
CT LUMBAR SPINE
Clinical indication:
Low back pain.
…
Findings:
…
L4/5: Mild disc herniation with bilateral facet arthropathy causing thecal sac impingement and mild to moderate bilateral foraminal narrowing. No nerve compression. Mild central spinal stenosis.
L5/S1: Diffuse disc bulge and bilateral facet arthropathy causing thecal sac impingement abd mild bilateral foraminal narrowing and mild to moderate central spinal stenosis. No significant nerve compression. Soft tissue appear normal.
Comment:
Mild lumbar spondylotic changes with disc bulge at L4/5 and L5S1 levels as described. No significant nerve compression is seen.[1]
[1] T4, folios 115-116.
On 17 October 2019, Dr Lyons (a radiologist) reported the result of an Xray of Mr White’s cervical spine, including:
Clinical:
Sudden onset mostly to the right side.
Report:
Moderate disc height narrowing at C6/7 with mild marginal syndesmophytes.
…
Bilateral mild foraminal stenosis at C6/7.[2]
[2] T5, folio 117.
On 16 April 2020, Dr Bardon (a radiologist) reported the results of a CT scan of Mr White’s cervical spine, including:
There is multilevel loss of intervertebral disc height most marked at C6-7 where there is associated moderate to severe uncovertebral joint arthropathy.
There is multilevel facet joint arthropathy most marked on the right at C2-3 (severe).
…
There is bony neural exit foraminal stenosis on the right at C2-3, bilaterally at C3-4 and C6-7 and on the left at C7-T1 where there is suspected contact of the exiting neural elements.
…
There is multilevel cervical spondylosis contributing to the neural exit foraminal stenosis at multiple levels as described.[3]
[3] T6, folio 118.
In June 2020, he ceased employment.
On 30 June 2020, Dr Brednya (Mr White’s treating general practitioner) referred Mr White to Dr Hasher Kadavil in Gosford and Dr Hema of the Tamworth Integrated Pain Management Service. The doctor set out the following medical history:
[Mr White] has a long history of pain affecting his both shoulders and neck. In 2018 his main problem was left shoulder, he had diversifications confirming ligamentous injuries (Full thickness tear of the anterior to posterior supraspinatus tendon and subacromial bursitis) and had opioids and steroid injections.
Over the course of 2019 he started to experience more pain in his neck and right shoulder.
He also had opiates and steroid injections with only short lived improvements.
His doses of opioids went up gradually.
I have attached his recent investigation reports.
…
Past Medical History:
2016 Chronic neck and shoulder pain
10/10/2018 L4/5 and L5/S1 disc prolapse
10/10/2018 Tear of anterior to posterior supraspinatus[4]
[4] T7, folios 136-139.
Mr White gave oral evidence he did not consult Dr Kadavil because he could not afford to do so, but he has subsequently consulted other doctors.
There is no evidence from Dr Hema before the Tribunal.
On or about 30 June 2020, Mr White lodged a claim for DSP.[5] In the claim form, Mr White referred to “constant non stop pain” and the effects of pain medications. He stated “Due to high dose of pain medication ? surgery to stop further deterioration” and “possible surgery T.B.A”.[6] He nominated Dr Brednya and Dr Sean Khoury (a P.R.P Toukley doctor) as doctors who “could tell [Centrelink] about [his] disability or medical conditions”.[7]
[5] T7.
[6] T7, folios 131 - 132.
[7] Ibid, folio 132.
There is no evidence from Dr Khoury before the Tribunal. Mr White did not provide and Centrelink did not call for relevant medical evidence from Dr Khoury.
On 21 August 2020, Mr White’s DSP claim was assessed and found to be manifestly medically ineligible by a psychologist.[8] The assessor recorded Mr White had Multilevel cervical spondylosis, a Full thickness tear left shoulder and Mild lumbar spondylitic changes which were noted to be Permanent. This notwithstanding, the assessor decided Mr White’s conditions were not fully diagnosed, treated and stabilised and stated:
It would be reasonable to expect that engaging in further reasonable treatment for his back/neck/shoulder aimed at improving the claimant’s management of the conditions, symptoms and impact on daily function would occur within the next 2 years and may result in substantial functional improvement.[9]
[8] T8.
[9] Ibid, folio 142.
On 2 September 2020, a psychologist Alison conducted a File Assessment Job Capacity Assessment (JCA).[10] The assessor reported Mr White had a Baseline Work Capacity of 15-22 hours per week associated with symptoms of his medical conditions, endurance limitations and physical restrictions and stated:
With disability-specific intervention, such as DES-DMS the claimant’s work capacity is likely to increase to the 23-29 hours per week bandwidth over the next 2 years, due to an increased ability to manage medical conditions in the workplace.[11]
[10] T9.
[11] Ibid, folio 146.
The assessor listed the following interventions identified for Mr White:
(a)Disability management education/counselling (H59);
(b)Injury management (H57);
(c)Pain management program (M55);
(d)Vocational assessment/counselling (V52);
(e)Vocational rehabilitation (V51); and
(f)Secondary rehabilitation (M54).[12]
[12] Ibid, folio 147.
In the period from 20 June 2020 to 5 July 2023, Dr Brednya certified Mr White was unfit for work or study due to Severe neck pain and L4/5 and L5/S1 disc prolapse.[13] I note in passing the extracted Centrelink records before the Tribunal (printed on 31 March 2023) refer to Mr White being unfit for work from 20 June 2020 to 15 April 2023.[14]
[13] T10, folios149-162, 165 and 167.
[14] T28, folios 259-263.
On 15 July 2022, Dr Brednya referred Mr White to Dr Russo of the Hunter Pain Clinic. Dr Brednya stated:
I have attached letter from his pain clinic in Tamworth but he is unable to reduce Durogesic to 12 [Mr White was using a Durogesic 25 patch]. Previously he was seen by surgeon who advised against surgical treatment. He also had some physio and steroid injections.[15]
[15] T12, folio 169.
On 4 August 2022, Mr White applied for release of his superannuation benefits. The application included information certified by Dr Brednya in respect of Mr White’s incapacity caused by chronic severe neck pain and L4/5 and L5/S1 disc prolapse.[16] Dr Brednya stated Mr White had “Degenerative arthritic changes in spine” which had been treated with analgesia, physiotherapy and steroid injections.[17] Dr Robin Diebold (an orthopaedic surgeon) and Dr Hema Rajappa (a Hunter Integrated Pain Clinic doctor) had been involved in management of Mr White’s condition.[18]
[16] T15, folio 185.
[17] Ibid, folio 186.
[18] Ibid.
Dr Brednya set out the following restrictions: “He is unable to remain in upright position and his [sic: has] limitations in lifting”;[19] “Persistent pain limits his mobility”;[20] and set out what Mr White can and cannot do[21]:
[19] Ibid.
[20] Ibid, folio 187.
[21] Ibid.
Physical Function
Can Do
Partly Do (…)
Cannot Do
Manual Dexterity
√
Lifting
√
Sitting
10-15 min
Standing
10-15 min
Walking
Up to 30 min
Bending/Crouching
√
Reaching at shoulder height
√
Reaching above shoulder height
√
Kneeling/Crawling
√
Driving
Up to 40 min
Neck movement
Limited
Squatting
√
It was Dr Brednya’s opinion:
[Mr White] has had pain in neck and shoulders for several years and despite treatments it has not improved. I don’t think it will improve in the future.[22]
[22] Ibid, folio 180.
On 15 August 2022, Dr Brednya certified Mr White’s severe neck pain and his L4/5 and L5/S1 disc prolapse were Temporary exacerbation of permanent condition and Mr White was awaiting specialist review.[23] In consideration of the information Dr Brednya provided In Mr White’s superannuation release application, it is not clear what the doctor was referring to as a temporary exacerbation of a permanent condition. The doctor was not called to give oral evidence. Doing the best with this material, it is probable Mr White suffered from a temporary increase in symptoms or impairment consistent with an exacerbation, although it is not clear if his underlying degenerative condition worsened.
[23] T10, folio 160.
On 31 August 2022, Mr White lodged a further claim for grant of DSP.[24]
[24] T16.
On 7 September 2022, Dr Cillian Suiter (a Hunter Pain Specialists pain medicine physician) reviewed Mr White on referral by Dr Brednya and reported:
[Mr White] has a longstanding history of lower back and neck pain. He tells me they are both equally painful and constant in nature. He describes neck pain mainly as right sided and he also complains of radicular right arm pain and paraesthesia in the right arm. His neck movements are restricted and he occasionally suffers from migraines two or three times per week.
He describes his lower back pain as a constant, dull ache but he will occasionally get intermittent. More severe electric type pain, and he gets intermittent right leg radicular pain. It is exacerbated by activities and is affecting his quality of life.
…
[Mr White] has previously attended the Tamworth Integrated Pain Service, where he was comprehensively assessed and given multiple conservative non-pharmacological strategies to deal with his pain. Unfortunately, after 12-18 months he was discharged from that Service and was unable to wean off his opioids. He has previously had CT guided cervical facet joint injections at C2/3 and C3/4 with no benefit.
He has previously tried CBD oil, again with no benefit.
…
I had a long discussion with [Mr White] regarding medication. I discussed that I would be along the opinion of the Tamworth Integrated Pain Service that opioids are generally unhelpful in chronic pain, particularly strong conventional mu opioids e.g (Fentanyl, Morphine, Methadone, Codeine, Oxycodone). Fentanyl patches, in particular, are inappropriate in non-cancer pain management and therefore I told [Mr White] that I would be advising you to wean off the Fentanyl patches completely, regardless if this leads to an initial flare in pain…
I think, however, it would be appropriate to replace his Fentanyl patch with an atypical opioid such as Palexia or Buprenorphine (Norspan patch)…
Tramadol is an appropriate drug to use but I would advise ceasing it to reduce the risk of Serotonin Syndrome given he takes a high dose of Amitriptyline.
I would advise stopping the Tramadol altogether and reducing his Fentanyl patch to 12.5mcg/hr and commencing Palexia SR 100mg b.d. for a week and then stopping the Fentanyl patch altogether and uptitrating the Palexia on a weekly basis to a maximum of 250mg twice daily if required.
…
In terms of interventions, I think he could benefit from lumbar medial branch treatment and so I am going to provide him with a quote for a lumbar medial branch block and potential radiofrequency treatments to see if we can give him a bit of relief with his lower back pain. The same procedure can also be carried out in the cervical spine. After such a procedure, if he gets relief, then it would be important for him toe engage meaningfully with physiotherapy to address his movement patterns.
Finally, as his last imaging is from 2018, I have given him a referral form for MRI scan of the cervical and lumbar spine…[25]
[25] T17, folios 204-206.
On 9 September 2022, a Centrelink assessor (a psychologist) recommended a JCA to further assess medical eligibility and apply an impairment rating/s if appropriate.[26]
[26] T18, folio 208.
On 10 October 2022, a JCA was undertaken by an Accredited Exercise Physiologist (the JCA report was submitted on 31 October 2022).[27] The assessor reviewed medical information provided by Dr Brednya and Dr Suiter reported, in respect of Spinal Disorder - Other:
The claimant reported that they [Dr Brednya and Dr Suiter] have agreed to two lots of surgeries [medial branch block] when available and affordable. Thus, this condition is considered permanent, verified and fully diagnosed only. This is due to the information provided for this condition suggests that the claimant has not reached maximal treatment for the condition.[28]
…
In regards Baseline work capacity, the claimant has a reduced work capacity (8-14 hours per week). Work, even in moderation, is not achievable i.e. for a continuous shift of 3 hours, with the normal demands of a job.
…With specific intervention work capacity will increase to 15-22 hours per week. Based on evidence presented (medical information, work history and the claimant’s self-reported tolerances), disability specific intervention primarily in the form of future medical/health treatment/s e.g. surgery. And then help to find suitable employment (roles that adhere to the claimants limitations), will likely result in the claimant achieving this work capacity within 24 months…[29]
[27] T19.
[28] Ibid, folio 213.
[29] Ibid, folio 215.
On 22 December 2022, Mr White’s DSP claim was rejected.[30]
[30] T27, folio 248.
On 27 January 2023, Dr Brednya certified the prognosis of Mr White’s Severe neck pain and L4/5 and L5/S1 disc prolapse was unclear.[31]
[31] Ibid, folio 165.
On or about 21 February 2023, Mr White requested review of the decision to reject his DSP claim by an Authorised Review Officer (ARO).
On 25 March 2023, the ARO decided not to change the decision.[32] The ARO reported Mr White’s spinal conditions and his shoulder condition had not been fully treated and fully stabilised, and no impairment rating could be assigned.
[32] T20.
On 27 March 2023, Dr Suiter issued Mr White a medical certificate in which he reported diagnoses of Neck pain and Chronic low back pain.[33] The doctor certified Mr White’s neck pain began on 4 January 2016 and was permanent, and his chronic low back pain began on 10 September 2018 and was permanent. Past treatment was stated to be Opioids, comprehensive pain interdisciplinary treatment. Current treatment was atypical opioid (Palexia). Planned treatment at the time was to continue with Palexia treatment.
[33] T10, folio 166; T21, folio 232.
Also on 27 March 2023, Dr Suiter reported to Dr Brednya:
[Mr White] has now managed to wean off his conventional opioids including the Fentanyl patch which is excellent. He is now taking Palexia slow release 200mg twice daily and Palexia immediate release 50mg 1 or 2 daily p.r.n. I think this is a reasonable regime…
He is still complaining of lower back pain as well as neck pain and likely cervicogenic headaches.
Unfortunately he is struggling financially a bit so was unable to get MRI scans of the cervical and lumbar spine… I think given [Mr White’s] chronic pain and the fact he has been through comprehensive public pain clinics with interdisciplinary treatment his condition is certainly likely to persist beyond 2 years…
… I have advised [Mr White] to cease smoking as smoking only worsens pain outcomes.[34]
[34] T1, folio 8.
On 28 March 2023, Mr White lodged an application for review of this decision in the Social Services and Child Support Division of the Tribunal (AAT first review).[35]
[35] T21.
On 4 April 2023, Dr Brednya certified Mr White’s Severe neck pain and L4/5 and L5/S1 disc prolapse were Permanent.[36]
[36] T10, folio 167.
On 17 April 2023, Dr Brednya reported:
This is to confirm that Wayne White 51 yrs suffers from chronic pain since August 2018 and has had different treatment approach – physiotherapy, simple and opioid analgesia, local corticosteroid injections, surgical review.
Despite all these his symptoms persist and recent review by pain management specialist confirmed that his condition is likely to persist and not improve.[37]
[37] T1, folio 7.
On 5 May 2023, the AAT first review decided to affirm the ARO decision rejecting Mr White’s DSP claim.[38]
[38] T2.
On 8 June 2023, Mr White lodged an application for further review by the Tribunal.[39]
[39] T1.
On 19 June 2023, Dr Kim Williams (a radiologist) reported the results of MRI scans of Mr White’s cervical and lumbar spine to Dr Brednya and Dr Suiter.[40] Dr Williams reported A Neurosurgical review may assist.[41]
[40] T24 .
[41] Ibid, folio 237.
On 29 June 2023, Dr Suiter reported to Dr Brednya and said:
[Mr White] had an MRI of the cervical spine which showed multiple level degenerative changes, facet arthropathy as well as severe C7/T1 foraminal stenosis on the left.
…
MRI of the lumbar spine also shows widespread degenerative changes and potential neural impingement as well.
He is using Palexia 250mg but is still in considerable pain despite this.
Management
I would suggest continuing with the Palexia however if additional analgesia is required, it would be reasonable to consider the addition of a Norspan patch 5mcg/hr and that can be uptitrated to a maximum of 20mcg/hr in addition to the Palexia.
I would also suggest neurosurgical referral in the public system in his catchment with regards to his upper limb neurological symptoms and neuropathic pain affecting the arms as he may be a candidate for neurosurgical intervention.[42]
[42] T25, folio 238.
Dr Suiter reiterated his recommendation for neurosurgical opinion in respect of Mr White’s neck pain in a medical certificate dated 30 June 2023.[43]
[43] T26, folio 239.
On 10 August 2023, Dr Suiter reported:
In terms of his activities of daily living, he is severely affected by his chronic pain. He is unable to sit or stand for prolonged periods of time for example no longer than 10 minutes. He struggles with overhead activities and tells me he needs assistance with showering and shopping and is unable to drive. Fortunately, he has a supportive friend who supports him with these activities. He uses a walking stick for mobilising.
…
During his consultations and assessments with us here in the clinic, we focused on harm minimisation and rotating off his high dose conventional opioids to less potent atypical opioids that are more suitable for chronic non-cancer pain. He has had more recent imaging recently particularly the MRI of the cervical spine showing severe foraminal stenosis and I think that warrants neurosurgical opinion. Neurosurgical intervention may give relief form [sic] upper limb neuropathic pain and upper limb neurological symptoms but his overall chronic pain condition and disability particularly in the lower back will most likely persist.
There is no other specific treatment planned from a pain clinic perspective. I think his chronic pain and associated disability is a long standing issue that will continue and will be life long…[44]
[44] Exhibit 2, report by Dr Suiter, 10 August 2023.
On 28 September 2023, Dr Brednya reported Mr White’s Past Medical History including Gastro-Oesophageal Reflux Disease (GORD) on 26 September 2022.[45]
[45] Exhibit 3, report by Dr Brednya, 28 September 2023.
Issues
Under the start day rules set out in s 42 and Schedule 2 of the Social Security (Administration) Act 1999, DSP is only payable where a claimant satisfies the qualification thresholds on the day on which the claim is made or within 13 weeks thereafter.[46]
[46] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
For DSP to be payable to Mr White in this case, he must be found to have qualified for DSP on 31 August 2022, the day he made the claim, or before 1 December 2022 (qualification period).
The qualification thresholds for DSP are set out in s 94 of the Act, relevantly:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) …
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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 program of support within the next 2 years.
…
(3B) A person’s impairment is 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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
…
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
(5) In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Impairment
Mr White pressed his claim on the basis of pain-related impairments of his neck and lower back. He questioned why attention should be paid to his shoulder conditions as he did not refer to these in the claim.
The Secretary accepts Mr White suffered from physical impairments during the qualification period. While the Secretary does not clearly identify the specific nature of the physical impairments, I understand the Secretary to be referring to physical impairments of Mr White’s cervical and lumbar spine and his left shoulder.
The existence of a physical, intellectual or psychiatric impairment is to be determined on the available evidence of the person’s functional capacity.
On the evidence of Dr Brednya, Dr Suiter and the radiological imaging reports before the Tribunal, Mr White suffers from the following impairments:
(a)reduced cervical spine movement due to chronic neck pain as a result of degenerative changes in his cervical spine, including:
(i)multilevel facet joint arthropathy most marked on the right at C2-3 (severe);[47]
[47] T6, folio 118.
(ii)bony neural exit foraminal stenosis on the right at C2-3, bi-laterally at C3-4 and C6-7 and on the left at C7-T1 where there is severe foraminal stenosis;[48]
[48] Ibid; T25, folio 238.
(iii)multilevel cervical spondylosis contributing to neural exit foraminal stenosis at multiple levels;[49]
[49] Ibid.
(b)reduced lumbar spine movement due to chronic low back pain as a result of degenerative changes in his lumbar spine, including:
(i)mild lumbar spondylotic changes with disc bulge or prolapse at L4-5 and L5-S1;[50]
(ii)facet joint arthropathy and a diffuse disc bulge at L5-S1;[51]
(iii)bilateral exit foraminal narrowing at L4-5, possibly contacting exiting left L4 nerve root;[52] and
(c)reduced right upper limb function due to right upper limb radicular pain and paraesthesia;[53]
(d)reduced right shoulder movement due to severe pain radiating into the right shoulder;[54]
(e)reduced left shoulder movement due to a full thickness tear of the anterior and posterior supraspinatus tendon and subacromial bursitis;[55]
(f)reduced right lower limb function due to intermittent right leg radicular pain.[56]
[50] T4, folio 116; T7 folio 139.
[51] T17, folio 205.
[52] T24, folio 237.
[53] T17, folio 204.
[54] T10, folio 157.
[55] T17, folio 205; T4, folio 115.
[56] T17, folio 204.
I am satisfied Mr White suffered from physical impairments affecting his cervical and lumbar spine, his left and right shoulders, his right upper limb and his right lower limb during the qualification period.
Mr White suffered from occasional cervicogenic or migraine headaches, two to three times per week during the qualification period.[57] On Dr Brednya’s evidence, Mr White suffered from GORD during the qualification period.
[57] Ibid.
There is insufficient evidence to determine if Mr White’s headaches and GORD conditions caused impairment during the qualification period for the purposes of s 94(1)(a) of the Act, although that possibility remains open.
Impairment rating
The next consideration is whether Mr White’s impairments warrant a rating of 20 or more points under the applicable Impairment Tables determined under s 26 of the Act.
I note the applicable Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) which was in effect when Mr White lodged his DSP claim.
The Secretary asserts Mr White’s conditions were not fully treated and stabilised during the qualification period and, for this reason, no rating can be assigned to any resulting impairments under the Determination.
The sharp point underlying these submissions requires careful consideration of the preliminary provisions set out in the Determination and the Rules for applying the Impairment Tables set out in Part 2 of the Determination (Rules), in particular:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must 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.
Applying the Tables
(2) The 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.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fullystabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is 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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
As can be seen, a rating can only be assigned to an impairment if the condition causing the impairment is permanent and the impairment is more likely than not to persist for more than 2 years. Under s 6(9)(b) and (c), any impairment resulting from diagnosed chronic pain, which is referred to as a condition, is to be assessed using the Tables relevant to the area of function affected. The word condition is defined in s 3 to mean ‘a medical condition’.
There is a question whether Mr White’s impairments are caused by degenerative, arthritic and other physical changes in his cervical and lumbar spine, and in his left shoulder, or by a chronic pain condition for the purposes of s 6(9)(b). No doubt, Mr White’s impairments are affected by his experience of pain, and much of his pain symptomatology has a chronic quality. Mr White has experienced chronic neck and lower back pain for several years, and he has obtained ongoing treatment for pain symptomatology, including multidisciplinary pain management treatment. Dr Brednya referred to chronic neck and shoulder pain,[58] Chronic severe neck pain[59] and severe neck pain,[60] and persistent pain.[61] Dr Sunil referred to Chronic pain – neck and chronic pain – Back pain L5/S1 IVDT. Dr Suiter referred to Mr White suffering with chronic neck and back pain and his longstanding history of lower back and neck pain.[62] References of these kinds to ‘chronic pain’ do not amount to a diagnosis of a chronic pain condition, rather they are descriptions of symptoms caused by Mr White’s underlying medical conditions. As Dr Suiter’s evidence clearly reveals, Mr White has symptoms including radicular pain in his right upper and right lower limbs and intermittent, more severe electric type pain in his lower back.[63] He has symptoms in his left shoulder which are the result of a torn supraspinatus tendon and bursitis. Considering all this, I am not persuaded Mr White’s pain symptomatology is itself a medical condition for the purposes of s 6(3)(a).
[58] T12, folio 169 and T15, folio 180.
[59] T15, folios 177 and 185.
[60] T10, folio 159 for example.
[61] T15, folio 187
[62] T17, folio 204.
[63] Ibid
When applying the Rules, it is the underlying medical condition which causes impairment in each affected area, albeit mediated by pain, which must be considered when determining the permanency of conditions under s 6(4) for the purposes of s 6(3)(a).
It is to be noted the question posed by s 6(3)(a) is directed to the permanence of a condition, whereas the question posed by s 6(3)(b) has a different focus which is directed to the likely persistence for more than 2 years of each resulting impairment.
Permanence of conditions
Mr White asserts his conditions are permanent and he has followed medical recommendations. He argues he obtained treatments recommended by his general practitioner and specialists in 2020 and 2021, and this should be sufficient to establish his conditions were fully treated and fully stabilised during the qualification period.
The Secretary asserts Mr White’s spinal and shoulder conditions were not fully treated and fully stabilised on the day he claimed DSP or within the qualification period. As Mr White first consulted Dr Suiter during the qualification period and engaged in follow up consultations outside that period, the Secretary submits Mr White’s treatment was then ongoing. The Secretary contends Dr Suiter provided treatment recommendations in respect of radiological scans, medication adjustments and surgical recommendations which had not been undertaken before the qualification period came to an end. For this reason, the Secretary argues Mr White’s conditions cannot be found to have been fully treated and stabilised.
Prior to the qualification period, Mr White’s treating doctors diagnosed the following medical conditions:
(a)degenerative spondylotic changes in his cervical spine contributing to neural and foraminal stenosis at multiple levels;
(b)degenerative spondylotic changes in his lumbar spine and L4-L5 and L5-S1 disc prolapse with detailed changes apparent in radiological scans on 10 October 2018; and
(c)a full thickness tear of Mr White’s supraspinatus tendon and subacromial bursitis in Mr White’s left shoulder.
Mr White obtained medical treatment for these conditions prior to the qualification period. On Dr Brednya’s evidence, the treatments included including analgesic medications, physiotherapy, steroidal injections and multi-disciplinary pain management, and Dr Diebold and Dr Rajappa were involved in managing Mr White’s conditions. I note, when referring Mr White to Dr Marc Russo (a Hunter Pain Clinic doctor) on 15 July 2022, Dr Brednya stated:
Previously he was seen by surgeons who advised against surgical treatment.[64]
[64] T12, folio 169.
Mr White gave oral evidence he consulted Dr Khoury (an orthopaedic surgeon) who provided steroid injection treatment but advised against surgery. No evidence from any surgeon Mr White consulted prior to or during the qualification period has been placed before the Tribunal.
While specific details of Mr White’s previous consultations with surgeons are not apparent on the available documentary evidence, the evidence given by Dr Brednya and Dr Suiter, which is uncontroverted, is consistent with Mr White’s evidence about the existence and result of such consultations.
Dr Suiter reported Mr White was comprehensively assessed by the Tamworth Integrated Pain Service in 2020 and he was given multiple conservative non-pharmacological strategies to deal with his pain over an 18 month period. Mr White was discharged from that Service as he was unable to wean off opioid analgesics prescribed for his pain. Mr White was treated with CT guided cervical facet joint injections at C2/3 and C3/4 without any benefit. He used CDB oil, also without benefit.
On Dr Suiter’s evidence the mu opioids Mr White was prescribed, including Tramadol and Fentanyl patches, were not appropriate for non-cancer pain management. Dr Suiter provided an additional relevant explanation in his report on 10 August 2023:
During his consultations with us here in the clinic [Hunter Pain Specialists], we focussed on harm minimisation and rotating off his high dose conventional opioids to less potent atypical opioids that are more suitable for chronic non-cancer pain.[65]
[65] Exhibit 2, page 1.
Thus, it can be understood the change from conventional opioid analgesic treatment to atypical opioid treatment, including Palexia, with the possible addition of Amitriptyline and Lyrica, was for harm minimisation purposes. The fact these medication changes occurred after the qualification period does not lead to a conclusion his conditions were not fully treated before the change was made. There is no firm basis on which to assert the change in medication was for a different purpose than the conventional opioids he was previously prescribed, or that it was likely to lead to improvement of Mr White’s conditions or his related pain symptomatology. I am satisfied the change in medication was recommended by Dr Suiter to reduce risks of harm to Mr White of long-term and ongoing use of opioid medications for non-cancer pain management.
On 7 September 2022, Dr Suiter reported further interventions he thought Mr White could benefit from, namely a lumbar medial branch block and potential radiofrequency treatments, a procedure the doctor reported can also be carried out in the cervical spine.[66] It is not clear if the doctor provided Mr White with a quote for these procedures as suggested in his report. On Mr White’s evidence, Dr Suiter informed him he would require surgery, but he could not afford this as a private patient.[67]
[66] T17, folio 206.
[67] Exhibit 1.
It appears Dr Suiter’s suggestion of medial branch treatment was to see if we can give him a bit of relief. I note that the proposed medial branch block treatment was linked to the possibility of radiofrequency treatment. Treatments of this kind, involving injection of an anaesthetic to block the affected medial branch and, if successful, the ablation of related nerves using radiofrequency, may possibly provide pain relief as Dr Suiter suggested and, where successful may lead to reduced impairment. In all likelihood it was for this reason Dr Suiter thought it important for Mr White to engage with physiotherapy if the treatments were successful.
Mr White asserts, even though he agreed to undertake the proposed medial branch block treatment, the option was taken away after that. He alleges he was subsequently told by Dr Suiter the proposed treatment may have no benefit and it was off the table. There is no contemporaneous or objective evidence which directly supports this allegation. Dr Suiter’s report on 10 August 2023 lends some indirect support to Mr White’s account:
When I first reviewed him in September 2022, he had ongoing pain and disability from his degenerative changes within the spine and had previously undergone CT guided cortisone injections and multidisciplinary pain clinic treatment so there was no further specific treatment planned at that time although he had ongoing physical impairments.[68]
[68] Exhibit 2, page 1.
On Mr White’s evidence, it is not clear when and for what reason the treatment proposal was discontinued. Doing the best with the available evidence, it is likely this occurred in Mr White’s second consultation with Dr Suiter on 27 March 2023, well after the qualification period. Mr White accepted that on 27 March 2023 Dr Suiter discussed options for managing his conditions and related pain, and he recommended Mr White should cease smoking as smoking only worsens pain outcomes.[69]
[69] T1, folio 8.
I accept the proposed treatments were not curative treatments for Mr White’s degenerative spinal conditions, and there is no basis in the available evidence to find they are reasonable treatments which Mr White should have undertaken. Nevertheless, I am satisfied Dr Suiter considered the proposed treatments might have some benefit in reducing Mr White’s symptoms and related functional impairments at the time they were proposed.
For this reason, it is probable Mr White’s cervical and lumbar spine conditions cannot be found to have been fully treated and fully stabilised for the purposes of s 6(3)(a) and (4)(b) and (c) during the qualification period.
Subsequent developments after the qualification period, but within 2 years of Mr White lodging his DSP claim, confirm this conclusion in respect of his cervical spine condition and the neurological symptoms in his upper limbs. On 19 June 2023, further MRI scans of Mr White’s cervical and lumbar spine were reported by Dr Kim Williams. Following review on 29 June 2023, Dr Suiter reported:
I would also suggest neurosurgical referral in the public system in his catchment area with regards to his upper limb neurological symptoms and neuropathic pain affecting the arms as he may be a candidate for neurosurgical intervention.[70]
[70] T25, folio 238.
On 10 August 2023, Dr Suiter reported:
Neurosurgical intervention may give relief from upper limb neuropathic pain and upper limb neuropathic symptoms but his overall chronic pain condition and disability particularly in the lower back and hips will most likely persist.
There is no other treatment planned from a pain clinic perspective. I think his chronic pain and associated disability is a long standing issue that will continue and will be life long…[71]
[71] Exhibit 2, page 2.
Mr White informed the Tribunal he is currently looking to find a neurologist surgeon and:
It was stated to me this surgery will not be a fix all, it is purely to hopefully give me some pain relief. It has also been suggested that, in the near future, I will have to undergo injections on a daily basis to numb affected areas, although this will leave me ‘floppy’ as it was put to me.[72]
[72] Exhibit 1.
Mr White’s evidence on this latter point relating to injections is not referred to in the medical evidence before the Tribunal.
The persistent and degenerative nature of Mr White’s cervical and lumbar spine conditions is likely to require continuing treatment and medical management as his condition progresses. In all likelihood, these conditions will require regular medical review by Mr White’s treating doctors to monitor progress and to consider options to assist managing the effects of further degenerative changes, including pain relief and further treatment. Consistent with this, Mr White’s treatment regimen over the period following the qualification period has included specialist consultations with Dr Suiter, MRI scans and the suggestion of referral for neurosurgical review and possible treatment of his upper limb neuropathic symptoms.
I accept Dr Suiter’s evidence Mr White’s overall chronic pain condition, particularly in his lumbar spine, is likely to persist. There is no evidence of further treatment planned for Mr White’s left shoulder condition.
Considering these matters and the question whether Mr White’s conditions were fully treated for the purposes of his DSP claim, I am satisfied his cervical and lumbar spine conditions were not fully treated on or before the end of the qualification period. Mr White’s left shoulder condition was fully treated at that time.
That being so, considering the matters set out in s 6(5) for the purposes of s 6(4)(b), I am satisfied Mr White’s cervical and lumbar spine conditions were not full treated on the day he lodged his DSP claim or during the qualification period. This is so even though the treatment may not be curative or directed to all elements of the cervical spine condition.
On the question whether Mr White’s left shoulder condition was fully stabilised on the day he claimed DSP or in the qualification period, there is only scant relevant evidence. Mr White made clear his DSP claim was not made on the basis of his left shoulder condition. I am satisfied Mr White undertook reasonable treatment for his left shoulder condition, including an ultrasound on 10 October 2018, which was recommended by Dr Brednya.
The available evidence does not establish any further reasonable treatment of his left shoulder condition is likely to result in significant functional improvement to a level enabling Mr White to undertake work in the following 2 years.
Applying s 6(6) for the purposes of s 6(4)(c), I am satisfied Mr White’s left shoulder condition was fully stabilised on the day he lodged the DSP claim.
In conclusion of these considerations, I am satisfied Mr White’s cervical and lumbar spine conditions were not permanent for the purposes of s 6(3)(a) of the Determination. It follows that the impairments caused by these conditions cannot be assigned a rating under any Table in the Determination. Only Mr White’s left shoulder condition can be found to be permanent before the end of the qualification period.
Persistence of impairments
The evidence of Dr Brednya and Dr Suiter clearly establishes Mr White’s cervical and lumbar spine, lower limb and left shoulder impairments are likely to persist for more than 2 years from the date on which he lodged his DSP claim and the succeeding qualification period.
The likely persistence of impairments does not mean the underlying medical condition must be taken to be permanent. Different thresholds apply to the question of permanence of conditions under s 6(4) of the Determination. It can readily be accepted the level or severity of functional impairments resulting from a progressive degenerative condition might be mediated by treatment. Thus, while a condition might result in impairments which are likely to persist for more than 2 years, the level or severity of the impairment cannot be assessed for the purposes of the Determination and s 94(1)(b) of the Act unless the condition has been fully treated and fully stabilised.
Assignment of impairment rating
As I have said, the impairments resulting from Mr White’s cervical spine and lumbar spine conditions cannot be assigned an impairment rating.
Only impairments resulting from Mr White’s left shoulder condition can be assessed under the Tables set out in the Determination.
The relevant Table is Table 2 – Upper Limb Function:
Introduction to Table 2
· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
· 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 purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
o a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
o results of diagnostic tests (e.g. X-Rays or other imagery);
o results of physical tests or assessments.
· For the purposes of this Table upper limbs extend from the shoulder to the fingers.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
There is only scant relevant evidence in respect of functional impairments resulting from Mr White’s left shoulder condition and what he can do using his left upper limb. On the available evidence, it is probable Mr White experiences upper limb functional impairment as a result of neuropathic or radiological symptoms caused by his cervical spine condition. In this context, the available evidence does not distinguish or clearly specify functional impairment of his left upper limb function as a result of his left shoulder condition.
Consequently, I am unable to determine the nature and extent of Mr White’s upper limb functional impairment due to his left shoulder condition. Considering the descriptors specified in respect of mild, moderate, severe and extreme functional impairment levels, the available evidence does not establish Mr White meets these thresholds. On Dr Brednya’s evidence[73], it is likely Mr White has a left upper limb functional impairment in respect of lifting and reaching above shoulder height, although the degree of impairment attributable to his left shoulder condition is not clear. Even proceeding on the assumption the impairment is attributable to his left shoulder condition, at the highest, it would permit a finding he had difficulty with two of the four activities specified at the mild functional impairment level, but this does not amount to a finding he had some difficulty with most of the specified activities, such that a 5 point rating could be assigned.
[73] See T15, folio187 for example.
In conclusion on this point, the present evidence is not sufficient to support assignment of any points under Table 2 in respect of functional impairments resulting from Mr White’s left upper limb condition. Even if I am wrong and a rating of 5 points should be assigned, this does not assist Mr White and it does not result in any different decision in respect of his application.
I am satisfied Mr White does not meet the 20-point threshold set out in s 94(1)(b) of the Act.
That being so, his DSP claim does not meet the statutory requirements and it must be refused.
In these circumstances, it is not necessary to proceed further to consider whether Mr White meets the continuing inability to work threshold in s 94(1)(c) and the participation in a program of support requirements in particular.
Decision
The decision under review is affirmed.
I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
...[SGD].....................................................................
Associate
Dated: 9 April 2024
Date(s) of hearing: 15 December 2023 Date final submissions received: 8 February 2024 Applicant: Self-represented Solicitors for the Respondent: Ms C Campbell, HWL Ebsworth Lawyers
0
1
0