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

[2015] AATA 679

Williams and Secretary, Department of Social Services (Social services second review) [2015] AATA 679 (8 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0118
Re	Paul Williams
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	8 September 2015
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

Social Security – Disability Support Pension – whether Applicant eligible to receive DSP – whether Applicant has 20 points under the Impairment Tables – whether conditions are permanent – whether conditions are fully diagnosed, treated and stabilised – whether Applicant has a continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Member

8 September 2015

BACKGROUND

1. Mr Williams is 50 years old. In a work-related accident in 2004 he suffered several fractures including compression fractures of two thoracic vertebrae.

2. On 18 September 2013 Mr Williams lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

3. Mr Williams’ claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

4. In these proceedings Mr Williams seeks review of the decision of the SSAT dated 29 August 2014.

5. At the hearing Mr Williams was self-represented and able to give oral evidence.

   ISSUES

6. In order to qualify for DSP, Mr Williams must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 18 September 2013 and 18 December 2013 (the claim period).

7. Section 94(1) of the Act provides that 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;…

8. The Respondent concedes and the Tribunal accepts that Ms McDonald suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

    ·fully treated (paragraph 6(4)(b)), and

    ·fully stabilised (paragraph 6(4)(c)), and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

11. The Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

12. In a Centrelink Medical Report dated 16 September 2013 Dr Karim, GP, lists “anxiety with depression” and “ chronic back pain, pain radiates to the left thigh”  as  conditions with the most functional impact.

13. At the hearing Mr Williams told the Tribunal that he also suffers pain in his left shoulder, left hip, and both knees.

14. For present purposes I accept that Mr Williams suffers a spine condition, an upper limb condition, a lower limb condition and a mental health condition.

15. In respect of the spine condition the Respondent submits that during the claim period this condition was not fully treated and stabilised, meaning that a rating under the Impairment Tables cannot be applied.

16. Alternatively, if the Tribunal finds that Mr Williams’ spine condition was permanent within the meaning of the Impairment Determination, the Respondent submits that there was only a mild functional impact on activities involving spinal function with a rating of 5 points under Impairment Table 4.

17. In respect of Mr Williams’ other conditions the Respondent submits that, during the claim period, these conditions were not fully diagnosed, fully treated and fully stabilised with the effect that a rating under the Impairment Tables cannot be applied.

18. The Respondent also submits that if the Tribunal finds that during the claim period Mr Williams’s rating under the Impairment Tables was 20 points or more he did not satisfy section 94(1)(c) of the Act in that he did not have a “continuing inability to work”.

19. Therefore the definitive issue which the Tribunal must consider is whether, during the claim period Mr Williams had a rating of 20 points or more under the Impairment Tables and if so whether he had a “continuing inability to work”.

    IMPAIRMENT RATING

    Spine condition

20. Mr Williams told the Tribunal that he has suffered intermittent pain between the shoulder blades and constant pain in the lower back since his work related injury in 2004.  The pain in the lower back often radiates down the left leg, is made worse with prolonged standing or sitting, causes significant sleep disturbance and has been generally unresponsive to all forms of treatment including large doses of narcotic analgesia. 

21. Mr Williams was not able to provide the Tribunal with a clear understanding of his impairment during the claim period.  He was uncertain about his physical tolerances and it was difficult to distinguish between past and present symptoms.  He said that his symptoms had increased over time but had taken no pain medication for about the last 18 months because of an apparent intolerance to several narcotic analgesics.

22. Mr Williams told the Tribunal that he has lived with his 77 year old mother for about the last three years. She does all the household chores but he is able to drive her to the supermarket and to medical appointments.  He agreed that during the claim period he was able to care for himself without assistance, but more recently has had difficulty in putting on his shoes and socks.

23. Mr Williams confirmed that he told the SSAT that he had some difficulty with overhead height activities but was able to “reach up to take a book from a shelf or a plate from a cupboard at head height”. He also gave evidence that he experiences pain when bending down to pick up light objects, when driving he is able to move his head from side to side and is able to look up and down and over his shoulder.

24. Mr Williams also told the SSAT that he was able to “mow the lawn and whipper snip the edges”. At the hearing before me Mr Williams explained that he mowed the lawn with a ride on mower that he had purchased at about the time he moved in with his mother. He said that it took 30 minutes to mow the lawn and about 1 - 1.5 hours to do the edges with frequent short breaks.

25. The SSAT noted that Mr Williams was observed to bend forward to pick up his belongings on the table in front of him and did not need assistance to get up out of his chair.

    Medical Evidence

26. In a letter dated 14 June 2005, Dr Bentivoglio, Orthopaedic Surgeon, notes that Mr Williams

    “fell off a mezzanine floor on 21 July 2004. As a result of this he sustained compression fractures of T4 and T9, a comminuted fracture of his left scapula (he no longer has much in the way of symptoms in his left scapula region) as well as a most unusual left iliac fracture……he continues to experience symptoms present in both in the interscapular region but mostly in his left buttock region with occasional radiation into his left knee.”

27. Dr Bentivoglio notes that on physical examination “there was not a great deal to find” and comments that he “is unsure as to where this gentleman’s pain is coming from at this stage”.

28. In a letter dated 18 July 2005 Dr Bentivoglio notes that a recent x-ray of the hip and pelvis region shows no significant abnormality and a bone scan shows increased uptake in the L5/S1 facet joint. In a letter dated 26 October 2005 he notes that Mr Williams recently had a left sided L5/S1 facet injection which resulted in excellent improvement however this improvement only lasted for one week.

29. The report of a CT scan of the lumbar spine performed on 19 March 2012 notes the following:

    “no significant disc protrusion, canal stenosis nor outlet foraminal narrowing is seen. Asymmetric right sided disc bulge is seen at the L3/4 and L4/5 levels and is abutting the exiting nerves. This is of doubtful significance as I note the patient’s symptoms are left sided”

30. In a letter dated 28 March 2012 Dr Paoloni, Sports Physician, notes that Mr Williams has “chronic debilitating neck pain due to C6/7 foraminal stenosis” and that his condition has stabilised but that there is no indication for surgery.

31. A x-ray of the cervical spine performed on the 5 April 2012 for “pain left side of neck and upper shoulder” is reported as showing “cervical spondylosis with degenerative changes at C6/C7” and “osteophyte encroachment upon the foraminae at this level”.  

32. In a letter dated 18 April 2012 Dr Paoloni notes that Mr Williams’ chronic lumbopelvic pain is stable and that “he should continue to walk for exercise, stretch the hamstrings and gluteals”. He also notes that “Neck ROM causes pain and reproduces his left shoulder symptoms with neck extension”. I note that Dr Paoloni does not provide any assessment of functional impairment in either of his letters.

33. A CT scan of the lumbar spine performed on 27 June 2013 is reported as showing “relatively mild changes. No specific cause for left sided radiating pain or LBP identified.”

34. A letter dated 23 August 2013 confirms an appointment at the Department of Pain Medicine Liverpool Health Service on the 22 October 2013. Mr Williams told Tribunal that he did not attend that appointment and did not pursue another appointment for reasons that were somewhat unclear.

35. In his report of 16 September 2013 Dr Karim notes that Mr Williams is awaiting to see the Pain Clinic at Liverpool hospital and describes impact on ability to function as “unable to frequent bending of his back, prolong standing/sitting exacerbates the pain, unable to walk through stairs without pain” [sic]. In a supplementary report dated 28 March 2014 Dr Karim describes impact on ability to function as “constant pain, unable to sit or stand prolong, unable to walk long distance” [sic].

36. In a letter dated 22 August 2014 Dr Karim notes examination findings for “spines” as follows:

    “He is unable to pick up any light object by bending down without severe pain. He can move trunk from side to side with mild pain. He can turn his head to look to the sides or upwards”

    Consideration

37. On consideration of the evidence before the Tribunal I am satisfied that during the claim period Mr Williams suffered from cervical spondylosis which was permanent within the meaning of the Impairment Determination, so that a rating under Impairment Table 4 can be applied.

38. With respect to Mr Williams’ ‘chronic low back pain’ the evidence, in my view, tends to suggest that, during the claim period, this condition was not fully diagnosed, fully treated and fully stabilised. The medical evidence provides no satisfactory explanation for the claimed severity of Mr Williams’ symptoms or the apparent failure of all forms of treatment.

39. For present purposes, however, I will accept that during the claim period Mr Williams suffered a “lower back condition” that was permanent for the purposes of the Impairment Determination so that a rating under the Impairment Table 4 can be applied.

40. The difficulty in the application of Table 4 is that, in my view, the evidence before the Tribunal in respect of Mr Williams’ spine conditions does not provide a satisfactory assessment of his functional impairment during claim period. 

41. Mr Williams’ evidence at SSAT hearing suggests a mild functional impact on activities involving spinal function. His self-reported symptoms before this Tribunal suggest a moderate functional impact which is not corroborated by the contemporaneous medical evidence which can best be described as incomplete and does not address the relevant descriptors in Table 4.

42. Notwithstanding the difficulties I am satisfied that that during the claim period Mr Williams’ spine conditions did have a significant impact on his activities of spinal function and, for present purposes, I will accept that he had a rating of 10 points under Impairment Table 4.

    Upper limb condition

43. Mr Williams told the Tribunal that he first suffered pain in his left shoulder about 3 years ago. He described intermittent stabbing pain that radiates to his left arm and hand which is associated with a sensation of “pins and needles”.

44. Mr Williams attributes these symptoms to a “pinched nerve” in the cervical spine. I note that this is consistent with the opinion expressed by Dr Paoloni as noted above.

45. In a Centrelink report dated 13 January 2012 Dr Singh, GP, notes movement of the left shoulder restricted to 90 degrees abduction but provides no definitive diagnosis.

46. In his two medical reports Dr Karim makes no mention of any upper limb condition.

47. I am satisfied that Mr Williams’ left upper limb symptoms are related to his cervical spine condition and that consideration of a rating under Impairment Table 2 is not warranted.

    Lower limb condition

48. Mr Williams told the Tribunal that he has had pain in his left knee for 1 to 2 years and that recently his right knee had also become painful. He claims that he is now so disabled because of his knees that he can no longer walk and needs a motorised chair which he recently purchased.

49. Mr Williams told the SSAT  as follows:

    “he gets sharp  pain in his knees when he walks, but not with every step. The more he is on his feet the more pain he is in. Mr Williams cannot kneel or squat because he is likely to get increased pain and fall over. He has to go up or down stairs in sideways fashion. Mr Williams is able to walk to the bus stop 100 metres away. He drives with his mother to the supermarket and is able to walk in the mall, take a trolley, collect their items, go through the checkout and return to their home with the shopping bags”

    Medical evidence

50. In a letter dated 30 April 2013 Dr Karim provides a referral for Mr Williams to Dr Dave, an Orthopaedic Surgeon to assess and advise on further treatment for pain in the left knee which had been present for more than 2 months. The letter notes that x-ray and ultrasound showed no abnormality.

51. Mr William’s told the Tribunal that he did not see Dr Dave.

52. An MRI scan of the left knee is reported on 14 February 2014 as showing “an undisplaced horizontal tear of the posterior horn of the medial meniscus”.

53. In a letter dated 12 March 2014 Dr Kahil, Orthopaedic Surgeon, notes that Mr Williams’ “left knee MRI showed stable cleavage tear of the posterior horn of the medial meniscus” and that he would need surgery. Because Mr Williams was unable to afford a Private Hospital Dr Kahil suggested that Mr Williams be referred to a public Orthopaedic Surgeon.

54. Mr Williams told the Tribunal that he did not pursue the option of surgery because he is unable to tolerate narcotic analgesics, so that postoperative pain management would be difficult.

55. An MRI of the right knee performed on the 24 January 2015 is reported as showing a “grade 3 horizontal flap tear of the posterior horn of the medial meniscus”.

    Consideration 

56. The medical evidence clearly demonstrates that Mr Williams’ lower limb conditions were not fully diagnosed until after the end of the claim period. Generally this would be sufficient to conclude that a rating under Impairment Table 3 cannot be applied.

57. As Mr Williams’ left knee condition was diagnosed about 2 months after the end claim period it could be argued that a rating under Impairment Table 3 is warranted.

58. Even if I were to accept that Mr Williams’ left knee condition was fully diagnosed during the claim period and it was reasonable for him to refuse to pursue surgical treatment there is, in my view, insufficient corroborative evidence to allow for a reasonable assessment of functional impact of this condition during the claim period.

59. Accordingly I am satisfied that a rating under Impairment Table 3 cannot be applied.

    Mental health condition

60. Mr Williams told the Tribunal that he was diagnosed with depression about 20 years ago by his then GP. He was started on treatment with Zoloft but stopped taking this medication because of side effects and lack of benefit.

61. In 2013 Mr Williams was admitted to hospital following an attempted suicide. After discharge he was referred to a psychologist for follow up. He attended the psychologist very 2 weeks on about eight occasions but stopped going when she moved her practice to another location where there were “too many steps”.

62. In early 2014 Mr Williams was referred to a Consultant Psychiatrist, Dr McCarron. Mr Williams said that he saw Dr McCarron on only two occasions and stopped going because he felt that it was not helping.

    Medical evidence

63. In a brief letter Ms Luca, registered Psychologist, notes that in June 2013 Mr Williams was referred for psychological therapy for treatment of severe depression, anxiety and previous suicidal ideation and suicide attempts. She notes that there have been regular therapy sessions which are planned to continue and that Mr Williams is on antidepressant medication. Ms Luca provides no other relevant information.

64. I note that Ms Luca is not endorsed by the Australian Health Practitioner Regulation Agency (AHPRA) as a clinical psychologist.

65. In his report of 16 September 2013 Dr Karim makes a diagnosis of “anxiety with depression” and notes current treatment as Zoloft 100 mg daily and counselling. In his report of 28 March 2014 Dr Karim notes that Mr Williams had an appointment to see Dr McCarron on the 10 March 2014.

66. In a letter dated 10 March 2014 Dr McCarron, consultant psychiatrist, concludes that Mr Williams suffers chronic depression and recommends continuing treatment with Zoloft.

    Consideration

67. The Introduction to Impairment Table 5 states that the Table is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition” and stipulates that “the diagnosis must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

68. As Mr Williams’ mental health condition had not been diagnosed by a psychiatrist or Clinical Psychologist prior to or during the claim period a rating under Impairment Table 5 cannot be applied.

    DECISION

69. For reasons set out above I am satisfied the during the claim period Mr Williams did not have a rating of 20 points or more under the Impairment Tables. Therefore he did not satisfy section 94(1(b) of the Act and was not eligible to receive DSP.

70. The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 8 September 2015

Date(s) of hearing	23 July 2015
Applicant	In person
Solicitors for the Respondent	Ms Hehir, Department of Human Services