Withell and Secretary, Department of Social Services (Social services second review)
[2020] AATA 4910
•4 December 2020
Withell and Secretary, Department of Social Services (Social services second review) [2020] AATA 4910 (4 December 2020)
Division:GENERAL DIVISION
File Number: 2019/5836
Re:Robert Withell
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member P J Clauson AM
Date:4 December 2020
Place:Brisbane
the Reviewable Decision is affirmed.
..............................[SGD]....................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Disability Support Pension – DSP – Qualification – Spinal Impairment – Lower Limb Impairment – Mental health impairment – Whether Impairments are fully treated, diagnosed and stabilised – whether impairments merit 20 points – whether program of support requirements are satisfied
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) Determination2011
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
REASONS FOR DECISION
Senior Member P J Clauson AM
4 December 2020
On 24 September 2018, the Applicant lodged his claim for Disability Support Pension (“DSP”) listing his medical conditions as “persistent left L5 and S1 radiculopathy due to ongoing L5/S1 disc prolapse” and “left hip pain post-surgery”.[1]
[1] Exhibit 1, T43, pages 206 to 237.
The Tribunal had before it and considered medical reports, Certificates and assessments as set out below:
·Dr Kylie Gallagher, Neurosurgical Resident, Department of Neurosurgery, Princess Alexandra Hospital, dated 1 December 2011;[2]
·Dr Leigh Atkinson AO, Neurosurgeon and Pain Management Physician, dated 20 December 2011;[3]
·Dr Malcolm Foxcroft, Psychiatrist, dated 30th April 2012;[4]
·Princess Alexandra Hospital Summary of Discharge, dated 23 October 2015;[5]
·Medical Certificate of Dr Dragan Milosavljevic, General Practitioner, dated 18 January 2018;[6]
·Medical Certificate of Dragan Milosavljevic, General Practitioner, dated 29 May 2018;[7]
·Disability Support Pension Medical Assessment Recommendation, dated 27 October 2018;[8]
·Medical Certificate of Dr Dragan Milosavljevic, General Practitioner, dated 14 December 2018;[9]
·Medical report of Dr Michael Atalla, General Practitioner, dated 11 July 2019;[10]
·Report of Gillian Bensley, Psychologist, dated 30 January 2020.[11]
[2] Exhibit 1, T18, page 93.
[3] Exhibit 1, T19, pages 94-110.
[4] Exhibit 1, T24, pages 136 to 152.
[5] Exhibit 1, T29, pages 167 to 172.
[6] Exhibit 1, T37, page 199.
[7] Exhibit 1, T40, page 203.
[8] Exhibit 1, T44, pages 238 to 239.
[9] Exhibit 1, T46, page 242.
[10] Exhibit 1 T53, pages 256 to 258.
[11] Exhibit 3, Letter from Gillian Bensely.
ISSUES FOR THE TRIBUNAL
The issue before the Tribunal is whether the Applicant qualified for DSP at the date of his claim, namely 24 September 2018 or within 13 weeks thereafter, that being up until 24 December 2018 (“the Qualification Period”).
HISTORY OF THE MATTER
On 24 September 2018, the Applicant lodged a claim for DSP with Centrelink in writing, including a proforma medical report by Dr Dragan Milosavljevic dated 18 September 2018.[12]
[12] Exhibit 1, T42, page 205.
On 27 October 2018, a Disability Support Pension Medical Assessment Recommendation recommended that the Applicant’s condition was manifestly medically ineligible for purposes of DSP. In relation to the issues attaching to the Applicant’s lumbosacral pain and left sciatica for which a discectomy was performed in 2001 with the application of regular analgesics, it was found that”
“for the purpose of this assessment, this condition is considered to be fully diagnosed as it was diagnosed by a suitably qualified medical professional. It is not considered to be fully treated and stabilised. It would be reasonable for this condition to be reviewed by a specialist if the customer continues to report significant ongoing symptoms of decline in function. Past specialist reviews are dated 2011”
In relation to the Applicant’s hip condition which confirmed a diagnosis of left hip pain post-surgery with treatment being listed as analgesics, the assessment found:
“There is insufficient medical evidence to demonstrate that the Customer has undertaken all reasonable treatments to manage this condition and maximise their functional capacity.
An Employment Services Assessment may be warranted to review the recipient’s medical conditions listed in recent medical information, review work capacity and referral options.”[13]
[13] Exhibit 1, T44, pages 238 and 239 at 239.
The Total Impairment Rating therefore was zero points at that time as it was considered that neither of the conditions were fully treated and fully stabilised.
On 1 November 2018, the Department wrote to the Applicant advising him that his application for DSP had been rejected on the basis that he did not have a rating of 20 more Impairment Points.[14]
[14] Exhibit 1, T45, page 240.
The Applicant then wrote to Centrelink requesting a review of that decision. It is to be noted that the Tribunal does not have before it a copy of that request.
On 20 March 2019, an Authorised Review Officer (“ARO”) affirmed the decision under review.[15] The ARO, upon review of the Medical Assessment Recommendation Summary and other additional relevant material provided to the Department made the following findings of fact:[16]
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
· Your conditions of post-operative hip pain and L5/S1 disc prolapse are not accepted as being permanent as they have not been fully treated and stabilised.
· You do not have an Impairment Rating of 20 points or more.
[15] Exhibit 1, T48, pages 245 to 248.
[16] Ibid.
The ARO in their Reasons for Decision also stated at page 247:[17]
“I have found that your conditions of post-operative hip pain and L5/S1 disc prolapse cannot be considered permanent. There is insufficient recent medical evidence to support prognosis, treatment and functional impacts. It is unclear whether these conditions would benefit from further treatment and specialist management. As a result they are not considered fully treated and stabilised and cannot be assigned Impairment Ratings at this time.
For these reasons to be considered permanent, medical evidence from a current treating specialist would be required to confirm diagnosis, prognosis and any treatment that has been undertaken. Further evidence to suggest that all treatment options have been exhausted and that further treatment would not result in improved functional impacts which would allow you to undertake employment in the next two years would be required.
As you do not have an Impairment Rating of at least 20 points, you are not qualified for Disability Support Pension. This means the decision to reject your claim for Disability Support Pension was correct.”
[17] Ibid.
The Applicant then sought a review of the ARO’s decision from the Social Services and Child Support Division of this Tribunal (“AAT1”) and on 21 August 2019, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP.[18] The Applicant then lodged an Application for Review of Decision in the General Division of the Administrative Appeals Tribunal (“this Tribunal”) on 13 September 2019.[19]
[18] Exhibit 1, T2, page 327.
[19] Exhibit 1, T1, pages 1 to 2.
The Applicant also provided a letter from Gillian Bensley, Psychologist, in support of his Review Application dated 30 January 2020.[20]
[20] Exhibit 3, Letter from Gillian Bensley; Ibid.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.
The Social Security (Administration) Act1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case 24 September 2018. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[21] Therefore, the Relevant Period for considering whether the applicant qualified for DSP is between 24 September 2018 and 13 weeks thereafter, namely 24 December 2018 (“the Relevant Period”).
[21] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act1999 (Cth).
It is well-established (and, indeed, mandatory in a legislative sense) that the applicant’s condition, and thus assessment of attributable impairment points, must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at para. [34]:
“The Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”. (Tribunal’s underlining)
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination2011 (“the Determination”), a legislative instrument made under the Act.[22] The Tables are function-based rather than diagnostic-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[23] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[24]
[22] See section 26(1) of the Act.
[23] section 5(2) of the Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (“The Determination”).
[24] See section 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[25] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriate qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[26]
[25] See section 6(3) of the Determination.
[26] See section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(a)what treatment or rehabilitation has occurred in relation to the condition; and
(b)whether treatment is continuing or is planned in the next two years.[27]
[27] See section 6(5) of the Determination.
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 two years; or
(b)the person has not undertaken reasonable treatment for the condition:
(i)significant functional improvement to a level enabling the person to undertake work in the next two 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.[28]
[28] See section 6(6) of the Determination.
“Reasonable treatment” is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.[29]
[29] See section 6(7) of the Determination.
An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[30]
[30] See section 11(1) of the Determination.
In respect of the requirement that the applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, treated and stabilised;
(b)whether the Applicant’s conditions warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a program of support; and
(d)whether the Applicant has a continuing inability to work.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[31]
[31] See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, at page 6.
I accept that the Applicant had an impairment or impairments for the purpose of section 94(1)(a) of the Act. I propose to deal with the calculation of Impairment Points by reference to each of the Applicant’s various medical conditions.
Spinal Function - Table 4 and Lower Limb Function - Table 3
The Applicant suffers from spinal and lower limb conditions which the Tribunal agrees are fully diagnosed and for which he has received surgical intervention.
It was reported on 1 December 2011 by Dr Kylie Gallagher, Neurosurgical Resident, Princess Alexandra Hospital, that the Applicant had undergone an L5/S1 discectomy procedure in April and that an MRI examination indicated that no further disc protrusion issues postoperatively and with no neurological cause for the recurrent pain in his left groin. It was noted in that report that his pain was “greatly exacerbated by flexion and grinding of his left hip joint”. Dr Gallagher also noted that she had referred the Applicant to the Princess Alexandra Hospital Orthopaedic Clinic for evaluation of his hip condition as a cause of his discomfort and that as no pathology was disclosed by the MRI regarding the neurosurgery procedure, he was discharged from that clinic.[32]
[32] Exhibit 1, T18, page 93.
It was noteworthy that in her report Dr Gallagher seemed to attribute the Applicant’s groin pain to his left hip discomfort.
The Applicant, it appears, underwent a course of postoperative physiotherapy at Combo Health Physio, as evidenced in the report of Marshall Chen, Physiotherapist, dated 30 May 2011[33] wherein it was noted that the Applicant was suffering lower back pain and stiffness. The Tribunal notes that in Mr Chen’s report, the Applicant first consulted him on 24 May 2011, some six days prior to the report being prepared. It was reported that he had been receiving treatment by way of:
·Hydrotherapy;
·AROM exercise;
·TENS;
·Acupuncture;
·Heath Therapy;
·Strengthening exercise;
·Core stability exercise.
and that his improvement was slow and he still suffered pain at that time. It was planned that a further two or three months more hydrotherapy and core stability exercises would be undertaken to help his return to normal function.
[33] Exhibit 1, T11, page 69.
This report is the only formal evidence before the Tribunal relating to any postoperative physiotherapy administered to the Applicant.
The Tribunal also notes the long history of the lumbar spinal condition dating back to 2007 when the Applicant underwent an L5/S1 lumbar disc procedure in the Princess Alexandra Hospital on 23 October 2007, a further microdiscectomy on 28 October 2010 and the final lumbar L5/S1 surgery noted above.[34]
[34] Exhibit 1, T19, pages 94 to 110.
The Tribunal notes also that in Dr Atkinson’s report,[35] he opines that the Applicant would require:
“Further medical treatment, preferably by a Pain Medicine Specialist, to adjust his medications and to help him manage his ongoing pain. In my view, there is no place for any further local surgical procedures or any lumbar fusions in the low lumbar spine.”
[35] Ibid, page 108.
Dr Atkinson made the further observation that:
“... Mr Withell would benefit from a multidisciplinary pain management programme and an assessment and possibly a trial of a dorsal column stimulator to reduce his pain.”
Dr Atkinson considered that this treatment would have a 60% chance of being effective and, if effective, would be likely to reduce his pain between 30% and 50%.[36]
[36] Ibid, page 108.
The Tribunal also notes Dr Atkinson’s opinion that the nature of Mr Withell’s lumbar condition renders him not capable of following his former occupation as a Building Labourer and that this incapacity was permanent.[37]
[37] Ibid, page 106 and at 110.
The Tribunal has no other evidence before it regarding the Applicant’s undertaking any further physiotherapy treatment other than that provided by Mr Chen in May 2011 nor, is there any evidence of the recommended Pain Specialist treatment from Dr Atkinson being undertaken by the Applicant relative to his lumbar spinal condition.[38]
[38] Transcript of Proceedings, page 7.
The Applicant underwent a total left hip replacement procedure in the Princess Alexandra Hospital in 2015 due to severe osteoarthritis in the left hip. The Discharge Summary dated 23 October 2015 from the Princess Alexandra Hospital[39] notes that the Applicant would be followed-up postoperatively in the Outpatients Department and to follow physiotherapy instructions.[40] The Tribunal notes that no further specialist treatment appears to have been received since the Applicant’s discharge date and this was in fact confirmed at hearing by the Applicant in his oral evidence.
[39] Exhibit 1, T29, page 167.
[40] Ibid, page 168.
The Applicant also told the Tribunal that he had been to a Physiotherapist in about 2016/ 2017 he thought for about 12 months but that she eventually told him she felt that there was no further benefit for him to be had in continuing with that treatment. The Applicant confirmed that he had only consulted his General Practitioner, Dr Wright, after the hip replacement procedure but had not consulted any other specialist since then.
The Applicant’s evidence was that his principal concern now was a pain and mobility condition, agreeing with Mr Murphy for the Respondent that it was a combination of a mechanical issue and a pain issue. He confirmed that he had been using Oxycontin for about two years but had taken himself off it and was now using Tramadol only.
The Applicant confirmed that he had been referred to a Pain Specialist by his then Brisbane GP Doctor Wright in 2015[41] and that it was a single appointment. However, no following appointments were arranged. In fact, it was more of an interview to establish whether or not the Applicant would have been a suitable candidate for a Pain Specialist programme.
[41] Transcript pf Proceedings, page 8, line 15.
The Applicant, in response to a question by the Tribunal as to whether he had been told that he was a suitable candidate for the Pain Specialist Programme, made the following response:
“Well, he didn’t say that I was a suitable candidate, he said that I met the criteria for it (sic), and then for me to go back in there for them to - to follow up on it then.”[42]
[42] Transcript of Proceedings at page 8.
The Applicant expanded further upon this by stating:
“… I needed to go in there with the - with the information from the hospital and stuff like that so they could confirm that I was possibly a candidate for the pain management clinic, and I was supposed to get back to them again.”
The Applicant confirmed to the Tribunal that he had not seen a Pain Specialist but that his General Practitioner was now attempting to make an appointment with a Pain Specialist in either Inglewood or Warwick. It is thus clear to the Tribunal that this recommended step in treatment for the Applicant’s spinal and lower limb conditions had not been taken by the Applicant as at the Qualification Period.
The Applicant’s post-surgical treatment has consisted of, for want of a better term, monitoring of his spinal and lower limb conditions by his General Practitioners without any interventions by specialists which may perhaps have indicated to the Tribunal the “level of completeness” that such treatment had reached and whether it had resulted in the conditions being fully stabilised at the Qualification Period.
The Tribunal has before it a number of Medical Certificates signed by the Applicant’s General Practitioner, Dr Miloslavljevic.
These Certificates by Dr Miloslavljevic are:
·18 January 2018;[43]
·18 April 2018;[44]
·29 May 2018;[45]
·18 June 2018;[46]
·18 September 2018[47].
[43] Exhibit 1, T37, page 199.
[44] Exhibit 1, T38, page 200.
[45] Exhibit 1, T40, page 203.
[46] Exhibit 1, T41, page 204.
[47] Exhibit 1, T42, page 205.
Without going into the contents of each Certificate, it is sufficient to note that each of them notes the Applicant’s conditions of discectomy L5/S1, lumbar spine pain issues radiating down the left leg and a left hip replacement. The treatment for these conditions is described in general terms as analgesics. It is to be noted that no report listed refers to any recommended specialist intervention, such as Pain Specialist treatment. Thus, it is the opinion of this Tribunal that as at the Qualification Period, the Applicant had not exhausted all “reasonable” treatments, especially that of a Pain Management Programme for both his lumbar spine and lower limb condition. Thus, it is the situation that the Applicant’s spinal and lower limb conditions could not in such circumstances be considered fully treated and fully stabilised.
Functional impairment is assigned in the case of the Applicant’s conditions under the Impairment Tables, Table 3, Lower Limb Function, and Table 4, Spinal Function.
In order for any Impairment Rating to be assigned to the Applicant’s lower limb function, it is necessary to meet the descriptors as set out in Table 3 below, likewise, for any Impairment Rating to be assigned to the Applicant’s spinal function condition, the descriptors as set out in Table 4 below must be met.
Table 3 of the Social Security Impairment Tables sets out the requirements for the DSP for impairments of the lower limbs:
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
30
There is an extreme functional impact on activities using lower limbs.
(1) The person is unable to mobilise independently.
Table 4 sets out the requirements of the DSP for impairments of the spine:
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.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
The Applicant’s evidence to this Tribunal was that during the Qualification Period from September to December 2018 he was living alone in Inglewood and that he would clean and cook as best as he could and that he was assisted by an elderly friend who would come and assist him. His daughter would come from Brisbane once a week to help out and do the washing. He said he did manage (as he did at the time of hearing), but “I couldn’t do much myself”. His friend drove him to the shops to go shopping and they would do the shopping together. His friend would sometimes do the shopping for him unless he wanted to accompany him. He would walk with his friend around the shop with a trolley and the Applicant would support himself with a walking stick.
The Applicant’s evidence was that he would use the walking stick generally but was able to go to the toilet and get back to his feet sometimes without the walking stick. And some days he stated that he could not walk at all. His mobility depended on how he felt on any particular day. He indicated that he would not be able to mow lawns or do work such as that.
The Tribunal was provided with a medical assessment of the Applicant’s functional impairment by his GP, Dr Michael Atalla dated 11 July 2019 (some seven months past the Qualification Period)[48] and does not allude to the Applicant’s level of functioning during the Qualification Period. However, this report does make observations as to the Applicant’s functional capacities relating to the lower limb and spinal conditions as at the date of the report.
[48] Exhibit 1, T53, pages 256 to 258.
In relation to the Applicant’s lower limb condition, the report states:
“He is able to walk 200 metres without aid, before he has to stop and rest.
He is able to walk unaided around the house.
A friend gives him a lift to the shops and carries his sopping (sic).
He has difficulty kneeling and needs help to knee (sic) and to rise again but cannot squat.
He can stand unaided for 10 minutes
He manages stairs to his house holding the rail.
He can stand up for (sic) the sitting position unaided.”[49]
[49] Ibid, pages 256 and 257.
This report also notes that, in relation to the Applicant’s spine condition:
“He has difficulty bending. He can carry up to 5kg but not to lift it up from the floor. He can brush his hair, but has difficulty reaching above his head or turning his trunk around. He had no problem with bladder or bowel control.”[50]
[50] Ibid, page 257.
It was noted by the Tribunal that these aspects relating to his lower limb and spinal conditions were confirmed by the Applicant who also stated that some aspects had improved to a degree since the Qualifying Period. He confirmed to the Tribunal that his ability to walk unaided had improved since the Qualifying Period. He also confirmed that even though his walking ability had improved, he suffered sufficient pain on some days that he could only sit around. The Applicant also confirmed that as at the Qualifying Period, he was able to reach down to his knees and straighten up but found it difficult and painful and stated that as at the date of hearing it was still painful.
The Applicant confirmed to the Tribunal that he could sit for up to 15 to 20 minutes but had to use a stick to get up or hold the table for support to do so. The Applicant presumably suffers from pain during this manoeuvre as he stated:
“… Yes, it destroys me.”[51]
[51] Transcript of Proceedings, page 12, line 40.
The Tribunal has considered the medical evidence and the Applicant’s oral evidence at the hearing in relation to the spinal condition and lower limb condition and has concluded that neither condition can be considered to be fully treated and fully stabilised. The Applicant’s conditions are apparently the source of his pain and his pain appears to be the main cause of his discomfort postoperatively. It is impossible for the Tribunal to make the correct and preferable decision until the Applicant has undertaken all reasonable treatment for his condition. In this Applicant’s case, this will require a specialist pain treatment programme to be pursued as recommended, but never engaged with since, it could be said, 2011 when Dr Atkinson noted and recommended that process of treatment for the Applicant.
Following his 2015 hip replacement procedure, the pain has continued without any specialist intervention or complementary treatment. The Tribunal takes note of the Applicant’s evidence before it that his current General Practitioner is attempting to arrange a referral to a Pain Management Specialist as confirmation of its view that as at the Qualifying Period, the Applicant’s conditions of the spine and lower limbs were not fully treated and fully stabilised.
The Tribunal, therefore, is unable to assign any Impairment Rating to either of the Applicant’s spinal condition or lower limb condition as at the Qualifying Period.
Mental Health Condition - Table 5
The Applicant suffers from a longstanding diagnosed Adjustment Disorder with mixed depressed, anxious and irritable mood. The Tribunal accepts this diagnosis as set out in a report of Dr Malcolm Foxcroft dated 30 April 2012.[52]
[52] Exhibit 1, T24, pages 136 to 152 at 151 and 152.
The question to be decided by the Tribunal is whether the Applicant’s condition was fully treated and fully stabilised as at the Qualifying Period.
Dr Foxcroft, in his report, noted that the Applicant was suffering from depression which was causing some increase in his concentration difficulties and thus having a partial impact on his capacity to work.[53]
[53] Ibid, page 149.
Dr Foxcroft indicated that the treatment he suggested for the Applicant was:
“Mr Withell should continue to attend the clinical psychologist. He should have at least 10 further sessions of treatment on a fortnightly basis, the cost of which would be $240.00 per session. He should also continue on his antidepressant medication, currently Pristiq 50 mg daily. The cost of this would be $35.00 per month under the Pharmaceutical Benefits Scheme. He is likely to require this medication for at least the next two years. He should also continue on his other medication, including Temazepam for sleep. The cost of this is also $35.00 a month under the Pharmaceutical Benefits Scheme.”[54]
[54] Ibid, page 150.
It is noted by the Tribunal that there is no evidence that the Applicant undertook the consultations with a Clinical Psychologist as recommended in Dr Foxcroft’s report.
The Applicant saw a Registered Psychologist, Gillian Bensley, on 16 December 2017, who provided various case notes and reports contained in attachment “A” the Respondent’s SFCS document.[55]
[55] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions.
This material indicates that the principle purpose of the Applicant’s initial consultation with Ms Bensley was for grief and loss counselling on 6 December 2017. Ms Bensley noted that the Applicant was scheduled for a follow-up appointment in January and that she had encouraged him to speak to his General Practitioner about going back on antidepressant medication to assist him.
The notes also record the fact that the Applicant had not seen a Counsellor or Psychologist for a very long time prior to this consultation.
Ms Bensley notes also that she saw the Applicant as arranged on 18 January 2018 and that:
“Bob has had a pleasant couple of weeks over Xmas staying with his daughter and ex-wife. Gave him a good break, and he was glad not to be at home at this time of the year with the recent losses.
We got back however, he felt overwhelmed (e.g. Centrelink paperwork, financial strain) and his mood worsened again. He was able to change some of his thinking (he was very self-critical), stopped ruminating as much, and things have improved a little again. Seems like CBT [cognitive behavioural therapy] may be a helpful intervention for him.
Bob is happy to restart anti-deps and pain meds, also plans to enquire about adult ADHD meds as he was on these before and found a great improvement in memory and concentration. He will discuss with GP.
plan - See in two weeks, cbt/ grief and loss counselling.”[56]
[56] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, attachment 2.
The forward plan for the Applicant was noted to be for Ms Bensley to see him again in two weeks and mention CBT and grief and loss counselling.
Ms Bensley again consulted with the Applicant on 1 February 2018 on which occasion she noted:
“Bob reported today that he is feeling better, attributes this to starting meds and reducing his rumination.”
This note also alludes to a discussion with the Applicant about starting a more formal program of CBT “and/or starting some grief counselling”. It appears, however, that the Applicant was happy to leave things as they were but would check with Ms Bensley in a month. Ms Bensley agreed to this course of action.
The evidence before the Tribunal is that the Applicant did not see Ms Bensley again until sometime past the Qualifying Period, namely on 23 October 2019, when he was again referred for psychological therapy and assessment. Ms Bensley’s notes also refer to the Applicant seeking a letter of support for his DSP application. The note also makes reference to:
See him again in two weeks, CBT.
It is to be noted that the gap between consultations with Ms Bensley between February 2018 and October 2019 resulted from the Applicant’s allotment of appointments for his mental health treatment exhausting until he was reallocated a further course of consultation.
The Applicant was again seen by Ms Bensley on 4 December, 2019 and her note relating to that appointment dated 8 December 2019 records that:
“His mood has improved a little using the CBT techniques explored in our last session. We continued with CBT in this session.”
This note also states that the plan was to see the Applicant in two weeks and to continue to use CBT and that she had agreed to write a letter of support for the Applicant in his attempt to claim the DSP.
Ms Bensley, in her note of 18 January 2018, made mention of the Applicant’s willingness to restart his anti-depressants and that he planned to enquire about the ADHD medication (dexamphetamine) that he had been prescribed before moving to Queensland. He indicated that it had been beneficial in improving his memory and concentration function. When he moved to Queensland he could not be prescribed it as it had not apparently been approved in Queensland for adult use according to his testimony.[57]
[57] Transcript of Proceedings, page 15, line 17.
The Applicant’s testimony to the Tribunal was that he was hoping to see a Psychiatrist so that he could have his condition re-evaluated and perhaps arrange suitable ADHD medication. He confirmed to the Tribunal that the last time he saw a Psychiatrist was 2012 for WorkCover, when he consulted Dr Foxcroft but had only consulted Psychologists since then.
81. The Applicant agreed when asked by Mr Murphy if he agreed with the statement in Ms Bensley’s letter of 30 January 2020[58] that he commenced formal CBT on 23 October 2019. Table 5 sets out the relevant descriptors for mental health impairments.
PointsDescriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that requires intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
30
There is an extreme functional impact on activities involving mental health function.
(1) The person has extreme difficulties with most of the following:
(a) self care and independent living;
Example 1: The person needs continual support with daily activities and self care.
Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.
(b) social/recreational activities and travel;
Example: The person is unable to travel away from own residence without a support person.
(c) interpersonal relationships
Example: The person has extreme difficulty interacting with other people and is socially isolated.
(d) concentration and task completion
Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.
Example 2: The person has extreme difficulty in completing tasks or following instructions.
(e) behaviour, planning and decision-making;
Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.
Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training sessions other than for short periods of time.
[58] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment A.
Given the evidence before the Tribunal relating to the Applicant’s mental health condition, both oral and in Ms Bensley’s clinical notes and her supporting letter of 30 January 2020, the Tribunal cannot conclude that the Applicant’s mental condition as at the Qualifying Period was fully treated and stabilised. The Tribunal acknowledges Ms Bensley’s view that she considered the condition to be fully treated and fully stabilised as at December 2017, however, agrees with the Respondent’s contention on this point that hers was a view taken in retrospect and one that is not in relation to the Qualifying Period which is the period from which the Tribunal cannot stray in its consideration of the condition. There is a decided paucity of evidence as at the Qualifying Period to support a decision that the condition was fully treated and fully stabilised.
The Tribunal’s view in this regard is further supported by the evidence before it that as at September 2018, Ms Bensley was clearly of the view that CBT was a treatment that may have resulted in a not insignificant improvement in the functional impairment. However, it was not until sometime later namely, October 2019 and well past the Qualifying Period, that a course of CBT was started. Notwithstanding that the CBT was met with ultimately it would appear, limited success, it was “reasonable” treatment that was recommended to try to bring the condition to a fully treated and fully stabilised status.
The Tribunal has decided therefore that as at the Qualifying Period, the Applicant’s mental health condition was fully diagnosed but was not fully treated and fully stabilised as required by the legislation.
SUMMARY OF IMPAIRMENT POINTS AS AT THE QUALIFYING PERIOD
Spinal Condition - Table 4 - Fully diagnosed, not fully treated or fully stabilised.
Lower Limb Condition - Table 3 - Fully diagnosed, not fully treated or fully stabilised.
Mental Health Condition - Table 5 - Fully diagnosed, not fully treated or fully stabilised.
As the Applicant does not have a total of 20 or more Impairment Points under the Tables, he does not satisfy the requirement under Section 94(1)(b) of the Act (the second of the requirements for DSP). He therefore does not qualify for DSP via this application.
Continuing Inability to Work
Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for this Tribunal to consider whether he satisfies the remaining criteria for DSP.
ADDITIONAL OBSERVATION
Although the Applicant has failed to reach 20 points or more via this application, it is noted that his conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent and persuasive medical evidence.
CONCLUSION
The Applicant does not qualify for DSP because his conditions cannot be assigned any Impairment Points during the Relevant Period.
DECISION
Accordingly, the decision under review is affirmed.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
................................[SGD]........................................
Associate
Dated: 4 December 2020
Date(s) of hearing: 30 September 2020 Date final submissions received: 08 June 2020 Applicant: by phone Solicitors for the Respondent: Mr C Murphy, Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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