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

[2017] AATA 1132

Wright and Secretary, Department of Social Services (Social services second review) [2017] AATA 1132 (21 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1350

Re:Andrew Wright

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:21 July 2017

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical & psychological impairments –spinal conditions – lower and upper limb conditions – mental health condition – haemorrhoids – whether applicant’s impairments fully diagnosed during claim period – whether applicant’s impairments fully treated and stabilised during claim period – Tribunal not satisfied all impairments were fully diagnosed, treated or stabilised during claim period – whether spinal conditions could be assigned an impairment rating – whether applicant had continuing inability to work – decision under review affirmed   

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, sch 2

CASES

Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member J F Toohey

21 July 2017

INTRODUCTION

1. On 2 February 2015, Mr Andrew Wright applied for a disability support pension (DSP).  Centrelink decided he did not qualify and rejected his claim. On 13 November 2015, the Social Services and Child Support Division of the Tribunal affirmed Centrelink’s decision. Mr Wright seeks review of that decision.

   QUALIFICATION FOR DSP

2. To qualify for a DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the SS Act) on the day they apply or within the following 13 weeks. Mr Wright had to satisfy these criteria on 2 February 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 4 May 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.

3. To qualify for DSP during the claim period, Mr Wright had to have:

   (a)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 points or more according to the Impairment Tables in the SS Act; and

   (b)a continuing inability to work as defined in the SS Act.

4. Mr Wright’s qualification for DSP must be assessed solely by reference to the claim period: Gallacher v Secretary, Department of Social Services [2015] FCA 1123. Any changes in his conditions after this period are only relevant insofar as they may cast light on the position during the claim period: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252.

   THE IMPAIRMENT TABLES

5. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). They include instructions and rules for assessing an impairment and assigning it a rating. Depending on how it affects a person’s ability to function, an impairment may be rated between nil and 30 points.

6. An impairment rating can only be given to a condition that is permanent: paragraph 6(3).  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: paragraph 6(4). 

7. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future; and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: paragraph 6(5) and (6).

8. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).

9. In considering whether a condition was fully treated and stabilised during the claim period, the Tribunal must consider the treatment that had taken place, and was intended to take place during that period, and its likely effect. Subsequent treatment, and whether or not it was effective, is not directly relevant: Fanning and Secretary, Department of Social Services [2014] AATA 447.

   WERE MR WRIGHT’S CONDITIONS FULLY DIAGNOSED, TREATED AND STABILISED DURING THE CLAIM PERIOD?

10. Mr Wright was injured in 1974 when a yearling bullock ran into him and knocked him unconscious. He was involved in a motor vehicle accident in 1975, and a motorcycle accident in 1996.  He has a lengthy medical history that was made more complex by his diagnosis in early 2015 with Stage IV Diffuse large B-cell lymphoma, a form of non-Hodgkin Lymphoma, for which he was treated with chemotherapy from February to August 2015. 

11. Mr Wright’s lymphoma is currently in remission and he does not rely on it for the purposes of his claim for a DSP. He also has a number of other conditions on which he does not rely. With reference to the Impairment Tables, he relies on the following:

    (a)a cervical, thoracic and lumbar spinal condition;

    (b)lower limb conditions;

    (c)upper limb conditions;

    (d)a mental health condition; and

    (e)haemorrhoids.

12. The Secretary contends that only Mr Wright’s spinal condition was fully diagnosed, treated and stabilised during the claim period. The Secretary accepts that his lower limb conditions were fully diagnosed but says they were not fully treated and stabilised.  The Secretary contends that none of his other conditions was fully diagnosed, treated and stabilised. In any event, the Secretary says, Mr Wright did not have a continuing inability to work.

13. I will consider Mr Wright’s conditions in turn.

    Spinal condition

14. On 10 October 2011, Dr Vijay Maniam, orthopaedic surgeon, reported that Mr Wright suffered from chronic symptoms in the neck, lumbar spine, left hip, left thigh and both thumbs. He noted that Mr Wright suffered injuries to his spine, knees and hands in a motor vehicle accident in 1996 and that his symptoms had gradually deteriorated.

15. Dr Maniam reported that Mr Wright had “degenerative disease in the cervical spine and moderate left-sided uncovertebral arthropathy, with potential for compromise of the left C7 nerve root”. There was no radiation from the cervical spine. There were no spasmodic muscles in the cervical spine but movements were restricted.

16. Dr Maniam also reported that Mr Wright had an aggravation of underlying degenerative disease in the lumbar spine with annular tears of L2/3 and L3/4; there was no central canal stenosis or neural exit foraminal stenosis. Lumbar spine pain projected into each buttock and Mr Wright’s movements in the lumbosacral spine were restricted.

17. Dr Maniam said Mr Wright would be treated conservatively and there was no indication, at that time, for any invasive procedures. He described the movement restriction in the cervical and lumbar spines as “moderate” and said Mr Wright would have “difficulties for manual work”.

18. In April 2013, Mr Wright’s general practitioner, Dr P S Gill, referred him to physiotherapist, Jessica Marte, for assessment and management of his neck, shoulder and thoracic pain.  On 12 April 2013, Ms Marte reported to Dr Gill that Mr Wright’s symptoms included bilateral scapular winging, “slight pain” on movements of the neck and thoracic spine, and pain and stiffness in the cervical, thoracic and lumbar spines. She thought his spinal pain was secondary to his old motor vehicle accident injury and to poor body posture. She proposed treatment in the form of exercises and joint mobilisation.

19. On 4 June 2013, Ms Marte reported to Dr Gill that, after five sessions, Mr Wright said he was feeling a lot better and had only occasional slight neck and thoracic pain, no pain on combined neck flexion and right rotation, and none on thoracic spine rotation, and he had three-quarter range of right cervical spine rotation. She recommended he continue with his postural exercises at home.

20. On 20 March 2015, a Centrelink officer spoke to Dr A Rasheed, a general practitioner at the same practice as Dr Gill, who had been treating Mr Wright. According to the officer’s record of their conversation, Dr Rasheed described the prognosis of Mr Wright’s neck and back conditions as “uncertain”. That was apparently the extent of his comments about the effect of Mr Wright’s spinal condition.

21. Around July 2016, Dr Gill referred Mr Wright to Raymond Tourany, physiotherapist, for cervical and thoracic pain. On 7 July 2016, Mr Tourany reported that Mr Wright had a limited range of motion in his cervical and thoracic spine. He said treatment was manual therapy, stretches and mobilisation techniques, with good results as Mr Wright “has had minimal to nil cervical pain and a reduction in thoracic pain throughout”.   

22. I am satisfied that Mr Wright’s spinal condition was fully diagnosed during the claim period.  I am also satisfied his spinal condition was fully treated and stabilised during that period. Given the long-standing nature of his symptoms and treatments, the fact that he had treatment after the claim period, apparently to good effect, does not change my opinion.

    Impairment rating

23. A difficulty with assessing the effect of Mr Wright’s spinal condition on his ability to function during the claim period is that it coincided with the commencement of treatment for lymphoma. As a result, it is difficult to determine with any certainty the extent to which any limitations on his ability to function were the result of his impairment or the effect of chemotherapy. 

24. A further difficulty is that the introduction to Table 4, which is used to assess impairment of spinal function, states that “self-report of symptoms alone is insufficient”; there must be corroborating evidence such as from a treating doctor, medical specialist or physiotherapist. The Secretary submits that there is no contemporaneous medical evidence to support a finding of any functional impact on activities involving Mr Wright’s spine during the claim period.  

25. The Reasons for Decision of the Social Services and Child Support Division dated 13 November 2015 show that Mr Wright told that Tribunal that his lower back pain limited his functional ability; he had been told to do regular exercises at home and attend physiotherapy to maintain mobility and flexibility but had difficulty doing this regularly because he had been feeling ill. The Tribunal accepted what Mr Wright said but concluded that, in the absence of any recent medical evidence detailing what limitations his condition had on his ability to function, it could not assign any impairment points.

26. Unfortunately, the Tribunal now is in a similar position. Mr Wright says he has difficulty and pain bending and turning from the waist and getting out of chairs, and turning, raising or lowering his head. He says he has restricted range of rotational motions of the spine and neck and difficulty working above head height, and he has constant aching throughout his spine requiring bed rest on five to ten days each month when the pain is severe. However, there is insufficient corroborating evidence from a health professional to support his evidence.

27. Leaving aside the requirement for corroborating evidence of functional impact, I would find, on the basis of Mr Wright’s evidence, that his spinal condition rated somewhere between five (mild functional impact) and 10 (moderate functional impact) points. I accept that, during the claim period, he had some difficulty turning his trunk or moving his head, and some difficulty looking upwards.  Those impacts would be sufficient to rate five points. A rating of 10 points requires that a person be unable to sustain overhead activities, have difficulty moving their head to look in all directions, be unable to bend forward to pick up a light object placed at knee height, or need assistance from another person to get up out of a chair. I am not satisfied on the information before the Tribunal that Mr Wright satisfied that description during the claim period.

28. The introduction to the Impairment Tables instruct that, if an impairment is considered as falling between two impairment ratings, the lower of the two must be assigned, and the higher rating must not be assigned unless all the descriptors for that level of impairment is satisfied: cl 11(1)(c). Following this instruction, the most that Mr Wright’s spinal impairment could be rated during the claim period would be five points.

    Lower limb conditions

29. Mr Wright has several conditions affecting his lower limbs. He has chondromalacia of both knees, arthritis of the right ankle, spurs on the left ankle and mild gluteal tendinosis. The Secretary accepts that his conditions were fully diagnosed during the claim period but says they were not fully treated and stabilised.

30. On 11 December 1997, Dr Maniam provided a report in connection with an insurance claim following Mr Wright’s motorcycle accident in 1996. Dr Maniam reported that Mr Wright suffered the following injuries: crushed right ankle and right knee; pain in the right hip; bruises around the posterior chest wall; left knee pain; sprain of the thumbs and fingers on both sides; neck pains; and lumbar spine pain. He concluded that Mr Wright suffered from residual problems in the knees, right hip and pelvis, mid back and neck.  He thought most of Mr Wright’s problems were stable and he would recover from his spinal injury, but he was “not so optimistic in relation to the knees and the right ankle”.

31. In his report dated 10 October 2011, Dr Maniam reported that Mr Wright’s hips, and the patella glide and tilt, were restricted.

32. Ms Marte’s reports in 2013 to Dr Gill do not refer to lower limb problems, and Mr Tourany’s report in July 2016 also does not mention lower limb problems. That is not to say that Mr Wright was not experiencing problems, only that there is an absence of contemporaneous evidence.

33. In reports to Dr Gill dated 4 December 2015 and 8 September 2016, Dr Kirtan Ganda, endocrinologist, said Mr Wright had paraesthesia and pain in the lower limbs, particularly the feet (more on the left than the right) which preceded chemotherapy for non-Hodgkin’s lymphoma. He had numbness of the left leg and both feet which was probably peripheral neuropathy. He said the cause of Mr Wright’s pain was not known although it sounded neuropathic in origin. He thought an MRI scan might be needed to rule out multiple sclerosis and that he might also require nerve conduction studies. This suggests that further investigations were required and that the lower limb conditions were not fully diagnosed during the claim period.  However, the Secretary does not take issue with this aspect of Mr Wright’s claim and I will accept his condition was fully diagnosed.

34. I accept the Secretary’s submission that there is insufficient evidence of treatment of Mr Wright’s lower limb conditions during the claim period to find that they were fully treated and stabilised.  As a result, they cannot be given an impairment rating.

35. Even if I was satisfied that Mr Wright’s lower limb conditions were fully treated and stabilised during the claim period, I cannot see that they could rate more than five points on Table 3 (Lower Limb Function). 

36. Mr Wright says the main problem in his lower limbs is sciatica which sometimes makes it hard to lift his feet, especially going upstairs. He makes himself walk to his local shops, a distance of approximately 2.5 kilometres, but says he is not much good for anything after that. He has a loss of feeling in the front of his left foot and has to lock his ankle and knees which causes problems in his hip and knees.  After standing for four to five minutes, he finds it increasingly difficult to stand and he has to move around on the spot. He has varicose veins in his right leg which he describes as bearing “the brunt of everything”.  He has constant aching in both legs with frequent swelling in the lower limbs due to varicose veins.

37. Based on Mr Wright’s description, he would rate at most five points (mild functional impact) on Table 3, because he has some difficulty climbing stairs and, I accept, is unable to stand for more than 10 minutes. His impairment would not rate 10 points (moderate functional impact). A rating of 10 points means that a person is unable to walk far outside their home and needs to drive or get other transport to local shops; or be unable to use stairs or steps without assistance; or be unable to stand for more than five minutes.

    Upper limb conditions

38. Mr Wright fractured the elbow joint in his left arm in the 1975 motor vehicle accident. In 1982 his right wrist was fractured during an altercation. In 1989 he dislocated his right shoulder in a sporting accident.  In 1996 he injured his thumbs, wrists and shoulders.

39. Dr Maniam’s report dated 10 October 2011 refers to normal movements of Mr Wright’s shoulders. Ms Marte’s report of 12 April 2013 refers to bilateral scapular winging for which exercises were suggested.

40. The Secretary says Mr Wright’s upper limb conditions were not fully diagnosed, treated and stabilised during the claim period and cannot be assigned an impairment rating. 

41. Mr Wright says that, as a result of his injuries, he has weakness, pain and cramps in his thumbs, hands, wrists and forearms; sporadic difficulty manipulating lids and buttons, and writing; sporadic numbness and tingling; bruised feeling and pain down the outer fingers and arms in both forearms; and restricted motion of both thumbs, his right wrist, left forearm, and right shoulder.  He has difficulty in pain reaching above head height and has to be careful when doing things such as going out or shopping.

42. Giving evidence before the Tribunal, Mr Wright said that, most of the time, the description in Table 2 (Upper Limb Function) of 0 points describes how his conditions affect him.  Table 2 provides that 0 points are given where “the person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty”. 

43. Mr Wright says he has difficulty with some of the activities that rate five points (mild functional impact) on Table 2. He has trouble lifting and gripping objects most of the time, but only occasional difficulty handling very small objects. As a rating of five points requires that a person has difficulty with most of the activities described in that part of the Table, the functional impact of this condition would be rated 0.

44. Even if I accept that Mr Wright’s upper limb conditions were fully diagnosed during the claim period, there is insufficient evidence before the Tribunal on which to be satisfied that his conditions were fully treated and stabilised during the claim period.  However, even if I accepted they were fully treated and stabilised, they would rate no more than 0 points.

    Mental health condition

45. Mr Wright has spent almost his whole life in institutions. He describes his upbringing as leaving him “cynical and withdrawn with antisocial tendencies and some evidence of personality disorders”. He questions whether he may have some traits of minor autism. 

46. A number of tentative diagnoses have been made of Mr Wright’s mental health condition. In a report to Dr Gill on 27 January 2009, Wendy Bailey, clinical psychologist, reported that she had assessed Mr Wright “for Bi-Polar and he seems to fit the criteria”.  She said it was important that he be assessed by a psychiatrist to confirm the diagnosis and review his medication.

1. On 28 May 2009, Mr Wright saw Dr Monir Younan, psychiatrist. Dr Younan reported that there was a strong family history of psychiatric disorders in close family members, which it is not necessary to recount here. He described Mr Wright’s difficult family relationships and manifestation of antisocial behaviour from a young age. He concluded that “the diagnosis of his condition was not totally clear”. He thought Mr Wright was likely suffering from bipolar disorder but he could not confirm that diagnosis at the time. He thought it likely Mr Wright became psychotic secondary to drug usage and said in treatment it was essential that he stop smoking marijuana. He prescribed medication and said he would review Mr Wright in a few weeks’ time. 

2. In December 2013, Mr Wright saw Nasreen Ajam, registered psychologist, who thought that he might have traits of oppositional defiance disorder and antisocial personality disorder. She recommended he see a psychiatrist for diagnosis and treatment, a suggestion which Mr Wright rejected. She encouraged Mr Wright to continue seeing her for further assessment and to engage in cognitive behavioural therapy.  It does not appear that he took up her suggestion.

3. Mr Wright gave evidence that he took the medication prescribed by Dr Younan for six months without noticing any benefit, and he stopped taking it. He says he has undergone a vast amount of counselling and group therapy in the past and he does not feel it does him any good. He has considerable insight into his condition and believes that, during the claim period, it was as stable as it will ever get.

4. The Secretary says Mr Wright’s mental health condition was not fully diagnosed, treated and stabilised during the claim period.  I have to agree. Even allowing for the uncertainty of psychiatric diagnosis, the evidence of diagnosis during the claim period is tentative at best. I accept what Mr Wright says about the medication that Dr Younan prescribed, and I understand his reluctance to undergo further group therapy or counselling. However, even allowing that his condition was fully diagnosed, there is no medical information before the Tribunal to support the conclusion that his condition was fully treated and stabilised during the claim period.  It follows that it cannot be given an impairment rating.

   Haemorrhoids

5. Mr Wright says he has suffered from this problem since the mid to late 1970s. He underwent a haemorrhoidectomy in 1980. He believes the cause to be his upbringing in institutions. His condition leads to prolapse, leakage, swelling, soiling and smell, and has added to his social withdrawal because he finds it highly embarrassing. His condition is exacerbated by stress.

6. Mr Wright says his condition was fully treated and stabilised before he began treatment for non-Hodgkin’s lymphoma. I accept that his condition became unstable around that time.  A report dated 11 March 2016 from Dr David Lubowski, consultant surgeon, shows that Mr Wright had large prolapsed haemorrhoids and fibroepithelial anal polyps, and he was arranging for Mr Wright to be admitted to hospital for further examination and appropriate treatment.

7. The Secretary submits that Mr Wright’s haemorrhoids were not fully diagnosed, treated and stabilised during the claim period. I do not think it can be said his condition was not fully diagnosed, given its lengthy history, including surgery in 1980. The question is whether it could be considered fully treated and stabilised, given what happened around the time of, and after, the claim period.  

8. I do not think a condition which was previously stable for a long period can be said to be not fully treated and stabilised because it subsequently deteriorates or requires further treatment. I will accept, for the purposes of this decision, that Mr Wright’s haemorrhoids were fully diagnosed, treated and stabilised during the claim period.

   Impairment rating

9. Table 13 is used to assess continence function.  Given the findings I have made above, Mr Wright’s haemorrhoid condition would need to rate 20 points in order for him to have a total impairment rating of 20 points or more (there is no rating of 15 points in the Impairment Tables). As it applies to Mr Wright, Table 13 requires that, for a rating of 20 points (severe functional impairment on maintaining continence of the bowel), at least one of the following applies: the person’s condition may affect the comfort or attention of co-workers; or the person has minor leakage from the bowel, meaning enough faecal matter to soil underwear or a continence pad but not outer clothes, every day; or a major leakage from the bowel, meaning enough faecal matter to fully soil underwear or a continence pad at least weekly.

10. Mr Wright gave evidence that his condition deteriorated after his chemotherapy treatment, after the claim period. Now when his prolapse swells, it leaks and smells, and this can happen on four to five days each month; and at times he can have accidents twice a day.  I have no reason to doubt what he says but, on this basis, I am not satisfied his condition can be rated as severe for the purposes of the Impairment Tables.

    CONTINUING INABILITY TO WORK

11. As it applies to Mr Wright, s 94(2) of the SS Act provides that person has a continuing inability to work because of an impairment if the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years, and either:

    (a)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years; or

    (b)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 two years.

12. Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage, and that exists in Australia, even if not within the person's locally accessible labour market: s 94(5). The Tribunal is not to have regard to the availability to the person of a training activity, or the availability of work in the person's locally accessible labour market: s 94(3).

13. A further requirement that applies in most cases is that a person has actively participated in a program of support for at least 18 months in the three years immediately before applying for DSP: s 94(2)(aa). Mr Wright met this requirement when he applied for DSP, meaning it is not in dispute in this case.

14. The Secretary relies on the report of a Job Capacity Assessment conducted on 18 March 2015 in which the assessor found that, from 20 March 2015 to 18 September 2015, Mr Wright had a temporary work capacity of 0 to 7 hours, “to allow [him] to engage in further treatment for his condition of lymphoma”. The assessor considered that Mr Wright had a “baseline work capacity” of 8 to 14 hours per week and a capacity for work within two years with intervention of 15 to 22 hours per week.

15. I have difficulty with that submission. Mr Wright had been diagnosed with stage IV lymphoma and was to undergo chemotherapy. It is not clear how an assessment of capacity of 8 to 14 hours per week six months later could be made, let alone that Mr Wright would have capacity of 15 to 22 hours within two years. However I accept the Secretary’s submission that only conditions which were fully diagnosed, treated and stabilised during the claim period could be taken into account in assessing Mr Wright’s work capacity for the purposes of DSP. 

    CONCLUSION

16. I have sympathy for Mr Wright. He has a number of serious medical conditions and has completed a program of support. It is by no means clear that he has the capacity for employment attributed to him. However, I can only assess the application before me and, unfortunately, I cannot be satisfied that Mr Wright qualified for DSP during the claim period.

17. For these reasons I affirm the decision under review. 

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated: 21 July 2017

Date(s) of hearing:	3 May 2017 and 10 July 2017
Applicant:	In person
Solicitors for the Respondent:	J Eslick, Department of Human Services