Post by Banjo on Dec 24, 2014 11:32:07 GMT 7
Johansson and Secretary, Department of Social Services [2014] AATA 956 (22 December 2014)
DECISION
Tribunal
Member I Thompson
Date
22 December 2014
Place
Adelaide
The Tribunal sets aside the decision under review and in substitution decides that Mrs Johansson was eligible for disability support pension from 16 May 2013.
REASONS FOR DECISION
Member I Thompson
22 December 2014
Mrs Edda Johansson applied to the Administrative Appeals Tribunal for a review of a decision by Centrelink not to grant her the Disability Support Pension (DSP).
On 16 May 2013 Mrs Johansson lodged a claim for the DSP. Centrelink rejected the claim and on review the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision. The conditions which were considered in relation to Mrs Johansson’s claim concern a lumbar spine condition, a cervical spine condition, migraines and mental health issues.
ISSUES
The issue for the Tribunal is whether Mrs Johansson satisfied the qualification criteria for the DSP which are set out in s 94 of the Social Security Act 1991 (the Act) on or within 13 weeks from the date of the DSP claim. In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mrs Johansson’s claim is taken from the date of the DSP claim and 13 weeks following. The relevant assessment period is, therefore, 16 May 2013 to 15 August 2013.
Section 94 of the Act states that a person is qualified for DSP if:
(a) The person has a physical, intellectual or psychiatric impairment;
(b) The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c) The person has a continuing inability to work.
In the statement of facts and contentions lodged prior to the hearing the respondent agreed that Mrs Johansson had a requisite impairment and contended that her conditions should attract the following impairment points:
(a) Lumbar spine condition 10 points.
(b) Cervical spine condition 10 points.
(c) Migraine 5 points.
(d) Mental health issues 5 points.
Under s 94 of the Act, a person is regarded as having a “continuing inability to work” if:
they have an inability to work due to their accepted impairments for 15 hours or more a week; and
they have actively participated in a ‘program of support’.
This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single impairment table.
The Hearing
The hearing took place on 30 October 2014. Mrs Johansson was self-represented. She gave evidence. A general medical practitioner Dr Neroni, and a physician Dr Leonello, also gave evidence. Medical reports were received in evidence and they included reports and certificates from Dr Neroni, Dr Leonello, Dr Santoreneos, Dr Ng, and medical imaging reports.
Medical Evidence
Dr Neroni is a general medical practitioner. Mrs Johansson was a patient of Dr Neroni from 1999 to 2008, and then from May 2012 until the present time. She consulted Dr Neroni for treatment of multiple medical conditions including lumbar degenerative disease, migraine headaches, cervical degenerative disease, upper limb problems and depression. Dr Neroni provided medical reports which were received as exhibits. They are reports dated the 27 May 2013, 28 August 2013, 3 October 2013 and 3 April 2014. Dr Neroni gave evidence to the Tribunal by telephone.
In his report dated 3 October 2013, Dr Neroni stated that Mrs Johansson had a diagnosis of lumbar degenerative disease. Treatment was drug therapy including analgesic and anti-inflammatory tablets. Past treatment had included a lumbar fusion operation in September 2011 and left hip bursa steroid injection in November 2012. Drug therapy had continued “onwards” since September 2011. Dr Neroni had referred Mrs Johansson to a neurosurgeon Dr Santoreneos and to a physician Dr Ng. Future planned treatment was further drug therapy and the avoidance of aggravating activities. Side effects of the drug therapy treatment included sedation and difficulty with concentration. Dr Neroni described the lumbar pain and stiffness and left hip pain and stiffness as causing difficulty with standing, walking and sitting over long periods and difficulty with bending, lifting and carrying. He reported that Mrs Johansson has a long history of lumbar pain and stiffness due to degenerative disease treated by the lumbar fusion operation in 2011, together with left hip and buttock pain since 2012 due to degenerative disease in the left hip, bursitis, and Paget’s disease which was treated with steroid injection and drug therapy. He stated that the condition involving the lumbar spine affected Mrs Johansson’s endurance, movements and causes difficulty with concentration and decision making. She is unable to work or study and recently stopped part time university studies because of “medical conditions”.
In the same report Dr Neroni concluded that the condition involving the lumbar spine was fully diagnosed, fully treated and no other treatment was available. He considered that the condition would deteriorate over the next two years. He stated that Mrs Johansson’s problems with the lumbar spinal function had a severe functional impact on activities.
In the report of 3 October 2013, Dr Neroni also provided a diagnosis regarding Mrs Johansson’s migraine headaches and cervical degenerative disease. He said treatment had been through drug therapy including digesic, analgesic tablets, anti-inflammatory medication, Valium and other sedatives. Drug therapy had commenced in 2011 and was continuing. There was a cervical facet joint steroid injection in 2013. Mrs Johansson had been referred to a psychiatrist, Dr Kelly, in 2012 and to a neurosurgeon Dr Santoreneos in 2012. Future planned treatment included drug therapy and the avoidance of aggravating activities. Side effects with drug therapy included sedation and difficulty with concentration. Symptoms included constant and severe headaches, migraine headaches, neck pain, stiffness and insomnia. Dr Neroni said there was a long history of headaches and migraine headaches and increase in neck pain and stiffness. A CT scan of the cervical spine and a full bone scan had shown C5-6 and C6-7 facet joint degeneration. In terms of functional impact, Mrs Johansson had difficulty with bending, lifting and carrying. Repetitive neck activities and movements were problematic. There was difficulty with concentration and decision making. Mrs Johansson was unable to work or study due to “medical conditions”. Dr Neroni stated that the migraine headaches and cervical degenerative disease were fully diagnosed, fully treated and no other treatments were available. The condition was expected to deteriorate over two years. These conditions caused severe functional impact on activities involving the cervical spine.
In the same report of 3 October 2013, Dr Neroni referred to Mrs Johansson’s depression. He referred to a diagnosis of major depression by a psychiatrist, Dr Kelly, in 2003. Treatment was by drug therapy including anti-depressant tablets, anti-anxiety medication and sedatives. There had been psychiatric counselling on a regular basis in the past. Dr Neroni referred to the psychiatric recommendation, which had been implemented as far back as 2003, for drug therapy, psychiatric counselling and hospitalisation. He indicated that Mrs Johansson was “very compliant”. Side effects of the drug therapy included sedation and difficulty with concentration, decision making, lethargy, inability to work or study. Dr Neroni wrote there was a long history of depression secondary to chronic pain. He considered that the condition had an impact on neurological and cognitive functions and would persist for more than two years. He reported that the condition was fully diagnosed, fully treated, and causes severe functional impact on activities due to mental health function.
Dr Neroni provided a subsequent medical report dated 3 April 2014. He confirmed in that report that the medical conditions of lumbar degenerative disease, migraine headaches, cervical degenerative disease and upper limb condition, and major depression were each fully stabilised, that reasonable treatment for each condition had been undertaken, and that there was unlikely to be significant functional improvement in any of the conditions to a level enabling Mrs Johansson to undertake work in the next two years. Dr Neroni considered that the lumbar degenerative disease had a moderate functional impact on activities involving spinal function, that the migraine headaches had a mild functional impact in activities involving neurological function, that the cervical degenerative disease and upper limb condition had a moderate functional impact on activities involving the upper limb, and the depression had a mild functional impact on activities involving mental health function. Dr Neroni also referred to problems with physical exertion and stamina impairment due to chronic pain arising out of the chronic lumbar degenerative disease, upper limb disability and migraine headaches. This aspect of her condition was described by Dr Neroni as having a moderate functional impact on activities involving physical exertion and stamina.
In evidence, Dr Neroni confirmed the difficulties which Mrs Johansson had with her spinal function during the assessment period. He stated that, she needed to avoid overhead activities at home and to avoid repetitive activities that involved turning her head, bending her neck and bending forward. Dr Neroni said that the severity of the problems varied according to whether Mrs Johansson was having a bad day or a good day.
Dr Leonello wrote a report dated 21 February 2014 which was received as an exhibit. He also gave evidence by telephone. Dr Leonello is a consultant physician. Mrs Johansson had been referred to him in 1994, in 1997 and more recently in 2014. In his report Dr Leonello referred to Mrs Johansson suffering chronic depression, chronic pain problems complicated by dependency to various medications which included pethidine, narcotics, DiGesic, Mersyndol and benzodiazepines including Alepam and Temazepam. He referred to Mrs Johansson’s degenerative spinal disease and the fact that she had had a lumbar fusion in 2011 together with left pelvic pathology. In the report dated 21 February 2014 Dr Leonello stated that Mrs Johansson:
“...complains of pain throughout her body and the most severe pain is in the left buttock region. It is constant and aggravated whenever she tries to do her gardening or walks more than usual. She also has some pain in her fingers, toes and shoulders and the whole of her back and upper joints. At times, she experiences some cold sensations in her legs but there is no definite numbness or pins and needles. She admits that she was ‘addicted’ to various medications in the past including Pethidine, sleeping tablets, DiGesic, Endone, Temazepam and Alepam. She has not been able to tolerate Morphine based medications in the past because of nausea.”
In evidence, Dr Leonello stated that Mrs Johansson had become dependent on pethidine at some stage, and benzodiazepines. This led to an unfortunate, vicious cycle of increasing the dose to obtain the same benefit. But, with sensitisation of the central pain pathways, more severe pain occurs if the medication is withdrawn and the withdrawal symptoms are unpleasant.
In the conclusion to his report dated 21 February 2014, Dr Leonello stated that Mrs Johansson has evidence of degenerative spinal disease and possible left sacroiliitis. This contributes to her chronic pain which is complicated by dependency on narcotics and benzodiazepines. He also stated that Mrs Johansson has a background of major psychosocial stress and chronic depression. He concluded that:-
“... there is no cure for her chronic pain and that she should pursue ways that help her cope better with her pain and improve her function – such as physiotherapy, hydrotherapy, regular exercise programme and also cognitive behavioural therapy with a pain psychologist. ...”
Dr Santoreneos is a neurosurgeon to whom Dr Neroni referred Mrs Johansson. Dr Santoreneos wrote three reports which were received in evidence. They are reports dated 22 April 2013, 14 May 2013 and 16 July 2013[1]. Following a bone scan Dr Santoreneos reported (14 May 2013), that there was “mild to moderate C5-6 and C6-7 discovertebral degenerative changes that may contribute to neck pain.” However there was no indication for surgical intervention and he made arrangements for facet joint injections. He reported that those injections were not of any benefit (16 July 2013). His conclusion about Mrs Johansson was (report 16 July 2013) ;
“Her neurological examination remains quite normal with normal reflexes in her upper and lower limbs and normal power. She has a reasonable range of movement in her cervical spine resisting perhaps a little on extension. As of course we have discussed, previous investigations have demonstrated no obvious surgical problem. She does have degenerative multifocal disease which she will have to learn to manage. ...”
Dr Ng is a consultant physician. He wrote a report dated 27 March 2013[2] in which he stated that he knew Mrs Johansson well from previous consultations and he was aware of her complicated medical history. He noted her recent presentation of left sacroiliac joint pain. In relation to joint symptoms Mrs Johansson told Dr Ng that she had occasional pain and swelling in the proximal interphalangeal joints of her hands with some morning stiffness. According to Dr Ng, Mrs Johansson was not aware of pain in other peripheral joints. Dr Ng confirmed results of examination that were consistent with sacroiliitis, however there was no clinical evidence of an underlying connective tissue disorder. He did not arrange further follow up and suggested that Mrs Johansson monitor her progress closely and seek guidance from Dr Neroni in managing her medical problems.
Medical imaging reports were received into evidence. A report from Dr Jones and Partners dated 19 October 2010[3] referred to an examination occurring on that date with the following conclusion:
“Bulging of the lower three lumbar discs with a very marked bulge of the L5-S1 disc posteriorly and a little to the left with probable displacement and compression of the left S1 nerve root and possible displacement and compression of the right S1 nerve root. Posterior facet joint degeneration at many levels.”
A report from Dr Jones and Partners dated 15 November 2010[4] referred to an examination on that day with the conclusion that:
“Disc extrusion at L5/S1, with the disc material extended superiorly on the left paracentral aspect. The extruded disc is compromising the S1 nerve root in the lateral recess.”
A radiology report by the Central Districts Hospital dated 28 December 2012 was received in evidence [5] and referred to an examination on that day. The report referred to a clinical history of lumbar spinal fusion in September 2011 together with back and left iliac crest pain and possible sacroiliac pain. The conclusion in the report was:
“The scan appearances of the left hemipelvis are likely indicative of Paget’s disease that could contribute to the patient’s symptoms. There is no scan evidence of sacroiliitis. There is no scan evidence of complications associated with the previous spinal fusion.”
A radiology report from the Calvary Hospital dated 6 May 2013[6] referred to an examination which occurred on that day with the following findings:
“1. Mild degenerative process noted at the C1/2 anterior articulation.
2. Moderately prominent discovertebral process at C5/6
3. Mild to moderate C6/7 discovertebral degenerative process.
4. Mild to moderate C7/T1 discovertebral degenerative process.”
The report also mentioned other findings that were revealed on the scan. They included:
“... mild degenerative changes noted in multiple interspaces of the upper thoracic spine. Prominent discovertebral degenerative process noted at T7/8, bony reactivity localised to the right lateral aspect of the interspace where a bridging osteophyte is sighted.
There is persistent moderately increased bony reactivity seen in a global distribution involving the left hemipelvis similar to the previous study in 2012.
There is mild bony reactivity noted in the posterior elements of the lower lumbar spine similar to the previous study which likely relates to local stress reaction at the site of previous spinal fusion at L4/5 and L5/S1.
Elsewhere there are also degenerative changes also in the small joints of both hands, elbows, shoulders, sternoclavicular joints, knees, and small joints of both feet.”
The report concluded:
“1. There are degenerative changes noted in multiple levels of the cervical vertebra ... The facet joints however do not appear metabolically active.
There is persistent increased bony reactivity seen in the left hemipelvis with appearances in keeping with Paget’s disease. The level of bony reactivity is similar to the last study in 2012. No scan evidence of Paget’s disease elsewhere.”
Evidence of Mrs Johansson
Mrs Johansson gave evidence which was consistent, detailed and helpful to the Tribunal in assessing her situation. Mrs Johansson has a long history of employment including work in the retail sector. She held executive positions with David Jones where she worked full-time for eight years and she was also self-employed at one stage in the retail sector. She worked for Telecom full-time for about seven years. She studied for a Batchelor of Social Science and she graduated in 2006 after full time study. She worked for the Salvation Army and later established a counselling business. Subsequently she commenced a post graduate masters degree in social work in February 2013 which she has not completed. It came to an end by September 2013 because of the difficulties with her health. Ideally she wanted work where she could dictate her own hours. As she stated in her evidence:
“I have always wanted to be self-funded and self-employed. That’s the way I was brought up. It wasn’t my choice to become fragile and I had to hang up my boots, one could say, before my time”.
In her evidence, Mrs Johansson described the long-term persistent difficulties she has had with her health. The lumbar pain affects her daily. The symptoms fluctuate and some days are worse than others. She said that she has experienced pain in her cervical spine for about ten years. She stated that she has suffered headaches and pain between her shoulder blades. In fact she suffers pain regularly throughout her body, as she described it in her evidence:
“I have pain all over my body because of the medication that I have taken. Dr Leonello has explained to me that I have sensitised all my periphery nerves so I have pains everywhere in my legs, my feet. On top of my feet actually hurts quite a bit; my knees, my shoulders, wrists everything.”
Mrs Johansson described the migraines as occurring about twice a week, then they improved and were only occurring about once a month. However the pattern worsened and she was suffering migraines due to shoulder pain and pain in her neck and described them as occurring on a weekly basis. When she gets a migraine she takes sleeping tablets and three Mersyndol Fortes or Panadene Fort and she lies down in a dark room for 24 hours.
Mrs Johansson gave evidence about the effects on her health during the assessment period, between 16 May 2013 and 15 August 2013. She was having difficulties with her spine which included problems with bending over and kneeling. Sometimes she could not get in and out of a car on her own. She had problems carrying a shopping bag. Bending over and picking up objects was also problematic. She could not move her shoulders freely. She did not have the strength to remove items from a high shelf in the pantry. That inability caused her stress and anguish. She did not hang out washing because of pain in her shoulders and arms. She derived assistance by using a walker to get around and it helped to relieve pain in her back and arms. During the assessment period she was taking lots of sleeping tablets to assist her to sleep without pain. She was also taking medication for anxiety. Medication was administered daily. There were about 25 tablets all up per day and pethidine. She felt “very, very depressed”[7]. She said that she did not think she was suicidal but she preferred to stay in bed. If she got out of bed she would be in her pyjamas all day. She wouldn’t eat. She lost interest in her hygiene. Her social activities were restricted. There were occasions when she attempted to reduce the intake of medication by staying indoors, drinking lots of water and resting. She and her husband travelled to Italy between October 2013 and December 2013 with the intention of visiting a sick elderly relative. She described the difficulties that she had managing the flight together with the health problems that she endured while she was in Italy.
CONSIDERATION
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. Section 6 of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.
Table 4 of the Impairment Tables concerns spinal function. The introduction to Table 4 states that it should be used:
“Where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.”
The introduction to Table 4 also states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner. The corroborating evidence of the person’s impairment may include a report from the persons treating doctor and may include:
“a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, ...”
For a moderate functional impact on activities involving spinal function, the rating is ten impairment points. For a severe functional impact activities involving spinal function, 20 impairment points are allocated. Table 4 sets out those descriptors as follows:
Points
Descriptors
...
10
There is 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 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.
...
In a Job Capacity Assessment report dated 1 July 2013[8] ten points were recommended for Mrs Johansson’s spine condition. A Health Professional Advisory Unit (HPAU) assessment was conducted after the Job Capacity Assessment and a report dated 30 September 2013 was received in evidence as an exhibit. [9] The assessment recommended ratings of ten points to Mrs Johansson’s lumbar spine condition, ten points to her cervical spine condition, five points to the psychiatric disorder and five points for the migraine.
The HPAU assessment referred to the descriptors in Table 5 in relation to mental health function and Table 1 in relation to migraine headaches.
In his report dated 3 October 2013 Dr Neroni suggested that Mrs Johansson should have an impairment rating of twenty points for the lumbar spine condition and twenty points for the cervical spine condition which included a long history of headaches and migraines with increased neck pain and stiffness. In a letter to Centrelink dated 14 September 2013, Dr Neroni stated that in his view the mental health impairment would attract a rating of five points. Accordingly he considered that Mrs Johansson’s total impairment rating should be 45 points.
Subsequently in his report dated 3 April 2014 Dr Neroni reconsidered the impairment ratings and concluded that the lumbar degenerative disease should attract ten points, that the migraine headaches should attract five points, that the cervical degenerative disease and upper limb condition should attract ten points and major depression should attract a rating of five points. In addition Dr Neroni considered that there was a moderate functional impact on activities requiring physical exertion or stamina which would lead to a rating of ten points. On that approach an overall rating of 40 points would apply.
Table 1 of the Impairment Tables refers to functions that require physical exertion and stamina. It refers to conditions that are commonly associated with cardiac or respiratory impairment and provides, as examples, cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain. Table 1, allocating 5 points for mild functional impact on activities requiring physical exertion or stamina is as follows:
Points
Descriptors
5
There is mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
...
Table 5 of the Impairment Tables refers to mental health function. The introduction to Table 5 states that it is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition and that includes recurrent episodes of mental health impairment. The introduction to Table 5 also acknowledges that the signs and symptoms of mental health impairment may vary over time and that for mental health conditions that are episodic the rating that best reflects the persons overall functional ability is appropriate and needs to take into account the severity, duration and frequency of the episodes or fluctuations. Mild functional impact on activities involving mental health function attracts five points as set out in Table 5 as follows:
Points
Descriptors
...
5
There is mild functional impact on activities involving mental health function.
(2) 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 require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
...
In the statement of facts and contentions, which was filed prior to the hearing, the Respondent submitted that the findings of the HPAU assessment should be applied and that, in particular, Mrs Johansson’s conditions should attract a total of 30 points being ten points for the lumbar spine condition, ten points for the cervical spine condition, five points for psychiatric disorder and five points for migraines.
Centrelink’s decision which was conveyed by letter dated 30 September 2013 to Mrs Johansson, allocated ten points under the Impairment Tables for spinal disease and associated pain, five points for migraine headaches, five points for depression, making a total impairment rating of 20 points. Without an impairment rating of 20 points or more under a single impairment table, it followed that Mrs Johansson must have actively participated in a program of support in the 36 months prior to the claim being lodged.
The SSAT considered that Mrs Johansson’s conditions attracted an overall impairment rating of 15 points, which comprised a rating of ten points under Table 4 for the lumbar degenerative disease and the cervical degenerative disease with migraine headaches and a rating of five points under Table 5 for mild functional impact from her mental health condition. In relation to Mrs Johansson’s lower and upper back problems the SSAT referred to two conditions. It described the lumbar degenerative disease as condition 1 and the cervical degenerative disease with migraine headaches as condition 2. The SSAT reviewed both condition 1 and condition 2 separately and then for the purpose of an impairment rating, provided a cumulative figure of ten points to cover both conditions.
In closing submissions the respondent maintained its position that Mrs Johansson’s mental health condition should attract 5 points and the migraine condition should also attract 5 points. However the respondent acknowledged that it would not be correct to assign points to the cervical condition and separately assign points in relation to the lumbar condition. The respondent acknowledged that the lumbar and cervical spine conditions should be assessed globally and an impairment rating applied to the global, functional impact of those spinal conditions. The Tribunal considers that the logic of that approach is correct. The respondent argued that the overall finding should be 10 impairment points for the spinal conditions. Accordingly the respondent submitted that Mrs Johansson’s conditions, in total, attract a rating of 20 points. However the respondent submitted that Mrs Johansson does not qualify for 20 impairment points to be assigned to a single condition under one table. Accordingly the respondent contended that Mrs Johansson had to meet the remaining criteria for a ‘continuing inability to work’ which include a requirement to undertake a program of support.
In view of the history and complexity of Mrs Johansson’s medical conditions it is not surprising that unanimity of opinion has been elusive for those attempting to allocate points under the Impairment Tables. However, the Tribunal has had the benefit of oral evidence from Dr Neroni and Dr Leonello. On consideration of all of the medical evidence together with the evidence given by Mrs Johansson concerning her spinal condition, the Tribunal finds that she sustained a severe functional impact on activities involving spinal function during the assessment period. Twenty points under Table 4 is the appropriate rating. The Tribunal is satisfied that Mrs Johansson had a severe functional impact arising out of difficulties with her lumbar spine and cervical spine that together led to an inability to perform overhead activities, turn her head, bend her neck without moving her trunk and bending forward to pick up light objects. While there may well have been some fluctuations in the symptoms from day to day, as one might expect, there is abundant and convincing evidence from Mrs Johansson, Dr Neroni, and Dr Leonello to support a conclusion that Mrs Johansson was severely affected in functional impact because of the conditions which she suffered in both her cervical spine and her lumbar spine. This conclusion is strengthened further by the reports from the neurosurgeon Dr Santoreneos, the report from the consultant physician Dr Ng and the medical imaging reports referred to earlier.
The Tribunal agrees with the respondent’s submission that 5 points be assigned under Table 5 to Mrs Johansson’s mental health problems and that 5 points be assigned to the migraines under Table 1.
Section 94(3B) of the Act states that:
“A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.”
The Tribunal considers that Mrs Johansson’s total impairment rating is 30 points comprising 20 points under Impairment Table 4 (spinal function), 5 points under Impairment Table 5 (Mental health function) and 5 points under Table 1 (migraine headaches). With an impairment rating of 20 points under a single impairment table, it follows that Mrs Johansson has a severe impairment within the meaning of s 94(3B) of the Act. In relation to the question of whether Mrs Johansson has a continuing inability to work, the fact that she has a severe impairment means that she did not have to meet the requirement of actively participating in a program of support. Without having to make a finding about it the Tribunal notes, however, that the evidence suggests that Mrs Johansson participated in programs of support for a combined period of slightly more than 8 months, which is less than the period which would otherwise be required.
The Tribunal must also determine whether Mrs Johansson has a continuing inability to work noting that s 94(5) of the Act defines work as work:
“(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the persons locally accessible labour market.”
Dr Neroni stated in his report dated the 27 May 2013 that Mrs Johansson’s lumbar condition was fully diagnosed and treated and the condition was expected to deteriorate over the next two years. Similarly, Dr Neroni stated that the cervical degenerative disease and the migraine headaches were fully diagnosed and treated and he expected the condition to deteriorate over the next two years. He confirmed that the condition of depression, which had been diagnosed by a psychiatrist, was also likely to persist for more than two years. Dr Neroni confirmed all those conclusions in a report dated 28 August 2013[10].
A Job Capacity Assessment report dated 29 May 2013 was received in evidence. The report followed a face to face assessment by a Centrelink officer with Mrs Johansson. The assessor noted that Mrs Johansson was currently studying for a masters degree in social work. The assessor commented that a work capacity at base line of 8-14 hours per week could be expected and within two years, with intervention, capacity for work could increase to 15-22 hours per week. The rationale was:
“future work capacity is more likely to increase with assistance from disability specific intervention for assistance to identify appropriate employment that accommodates the medical limitations imposed by clients permanent medical condition as well as post placement support to ensure she is able to manage and sustain duties”.[11]
It is important to note that Dr Neroni is the long-term, treating medical practitioner. He has considerable knowledge of each aspect of Mrs Johansson’s medical condition. His assessment and reports were thorough. The Tribunal accepts the evidence of Dr Neroni concerning Mrs Johansson’s overall impairment and her lack of capacity for work. The substantive basis for Dr Neroni’s opinions is supported by other medical evidence which includes reports from Dr Leonello, Dr Santoreneos, Dr Ng and the medical imaging reports. The Tribunal considers that Mrs Johansson’s lumbar and cervical conditions would of themselves prevent her from working at least 15 hours per week. The unpredictable and debilitating migraines would also have an adverse impact on her ability to predict when she might be available for work and on her actual performance of the work. The Tribunal does not consider that Mrs Johansson would be able to retain employment at 15 hours per week even with support and training. Each of her medical conditions are of long duration. They cause significant impairment both individually and cumulatively. It follows that Mrs Johansson has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined above the Tribunal finds that Mrs Johansson’s lumbar spinal condition and cervical spinal condition were fully diagnosed, fully treated and fully stabilised during the assessment period. The Tribunal finds that the applicable rating for the spinal condition is 20 points, the applicable rating for the mental health function is 5 points, and the applicable rating for the migraine headaches is 5 points. Accordingly, the Tribunal finds that the criterion in s 94(1)(b) of the Act is satisfied.
Mrs Johansson has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single impairment table.
In view of the finding that Mrs Johansson has a severe impairment within the meaning of s 94(3B), there is no need for her to have actively participated in a program of support within the meaning of s 94(3C).
In all of the circumstances the Tribunal is satisfied that Mrs Johansson has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Mrs Johansson is qualified to receive the disability support pension from 16 May 2013.
DECISION
Tribunal
Member I Thompson
Date
22 December 2014
Place
Adelaide
The Tribunal sets aside the decision under review and in substitution decides that Mrs Johansson was eligible for disability support pension from 16 May 2013.
REASONS FOR DECISION
Member I Thompson
22 December 2014
Mrs Edda Johansson applied to the Administrative Appeals Tribunal for a review of a decision by Centrelink not to grant her the Disability Support Pension (DSP).
On 16 May 2013 Mrs Johansson lodged a claim for the DSP. Centrelink rejected the claim and on review the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision. The conditions which were considered in relation to Mrs Johansson’s claim concern a lumbar spine condition, a cervical spine condition, migraines and mental health issues.
ISSUES
The issue for the Tribunal is whether Mrs Johansson satisfied the qualification criteria for the DSP which are set out in s 94 of the Social Security Act 1991 (the Act) on or within 13 weeks from the date of the DSP claim. In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mrs Johansson’s claim is taken from the date of the DSP claim and 13 weeks following. The relevant assessment period is, therefore, 16 May 2013 to 15 August 2013.
Section 94 of the Act states that a person is qualified for DSP if:
(a) The person has a physical, intellectual or psychiatric impairment;
(b) The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c) The person has a continuing inability to work.
In the statement of facts and contentions lodged prior to the hearing the respondent agreed that Mrs Johansson had a requisite impairment and contended that her conditions should attract the following impairment points:
(a) Lumbar spine condition 10 points.
(b) Cervical spine condition 10 points.
(c) Migraine 5 points.
(d) Mental health issues 5 points.
Under s 94 of the Act, a person is regarded as having a “continuing inability to work” if:
they have an inability to work due to their accepted impairments for 15 hours or more a week; and
they have actively participated in a ‘program of support’.
This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single impairment table.
The Hearing
The hearing took place on 30 October 2014. Mrs Johansson was self-represented. She gave evidence. A general medical practitioner Dr Neroni, and a physician Dr Leonello, also gave evidence. Medical reports were received in evidence and they included reports and certificates from Dr Neroni, Dr Leonello, Dr Santoreneos, Dr Ng, and medical imaging reports.
Medical Evidence
Dr Neroni is a general medical practitioner. Mrs Johansson was a patient of Dr Neroni from 1999 to 2008, and then from May 2012 until the present time. She consulted Dr Neroni for treatment of multiple medical conditions including lumbar degenerative disease, migraine headaches, cervical degenerative disease, upper limb problems and depression. Dr Neroni provided medical reports which were received as exhibits. They are reports dated the 27 May 2013, 28 August 2013, 3 October 2013 and 3 April 2014. Dr Neroni gave evidence to the Tribunal by telephone.
In his report dated 3 October 2013, Dr Neroni stated that Mrs Johansson had a diagnosis of lumbar degenerative disease. Treatment was drug therapy including analgesic and anti-inflammatory tablets. Past treatment had included a lumbar fusion operation in September 2011 and left hip bursa steroid injection in November 2012. Drug therapy had continued “onwards” since September 2011. Dr Neroni had referred Mrs Johansson to a neurosurgeon Dr Santoreneos and to a physician Dr Ng. Future planned treatment was further drug therapy and the avoidance of aggravating activities. Side effects of the drug therapy treatment included sedation and difficulty with concentration. Dr Neroni described the lumbar pain and stiffness and left hip pain and stiffness as causing difficulty with standing, walking and sitting over long periods and difficulty with bending, lifting and carrying. He reported that Mrs Johansson has a long history of lumbar pain and stiffness due to degenerative disease treated by the lumbar fusion operation in 2011, together with left hip and buttock pain since 2012 due to degenerative disease in the left hip, bursitis, and Paget’s disease which was treated with steroid injection and drug therapy. He stated that the condition involving the lumbar spine affected Mrs Johansson’s endurance, movements and causes difficulty with concentration and decision making. She is unable to work or study and recently stopped part time university studies because of “medical conditions”.
In the same report Dr Neroni concluded that the condition involving the lumbar spine was fully diagnosed, fully treated and no other treatment was available. He considered that the condition would deteriorate over the next two years. He stated that Mrs Johansson’s problems with the lumbar spinal function had a severe functional impact on activities.
In the report of 3 October 2013, Dr Neroni also provided a diagnosis regarding Mrs Johansson’s migraine headaches and cervical degenerative disease. He said treatment had been through drug therapy including digesic, analgesic tablets, anti-inflammatory medication, Valium and other sedatives. Drug therapy had commenced in 2011 and was continuing. There was a cervical facet joint steroid injection in 2013. Mrs Johansson had been referred to a psychiatrist, Dr Kelly, in 2012 and to a neurosurgeon Dr Santoreneos in 2012. Future planned treatment included drug therapy and the avoidance of aggravating activities. Side effects with drug therapy included sedation and difficulty with concentration. Symptoms included constant and severe headaches, migraine headaches, neck pain, stiffness and insomnia. Dr Neroni said there was a long history of headaches and migraine headaches and increase in neck pain and stiffness. A CT scan of the cervical spine and a full bone scan had shown C5-6 and C6-7 facet joint degeneration. In terms of functional impact, Mrs Johansson had difficulty with bending, lifting and carrying. Repetitive neck activities and movements were problematic. There was difficulty with concentration and decision making. Mrs Johansson was unable to work or study due to “medical conditions”. Dr Neroni stated that the migraine headaches and cervical degenerative disease were fully diagnosed, fully treated and no other treatments were available. The condition was expected to deteriorate over two years. These conditions caused severe functional impact on activities involving the cervical spine.
In the same report of 3 October 2013, Dr Neroni referred to Mrs Johansson’s depression. He referred to a diagnosis of major depression by a psychiatrist, Dr Kelly, in 2003. Treatment was by drug therapy including anti-depressant tablets, anti-anxiety medication and sedatives. There had been psychiatric counselling on a regular basis in the past. Dr Neroni referred to the psychiatric recommendation, which had been implemented as far back as 2003, for drug therapy, psychiatric counselling and hospitalisation. He indicated that Mrs Johansson was “very compliant”. Side effects of the drug therapy included sedation and difficulty with concentration, decision making, lethargy, inability to work or study. Dr Neroni wrote there was a long history of depression secondary to chronic pain. He considered that the condition had an impact on neurological and cognitive functions and would persist for more than two years. He reported that the condition was fully diagnosed, fully treated, and causes severe functional impact on activities due to mental health function.
Dr Neroni provided a subsequent medical report dated 3 April 2014. He confirmed in that report that the medical conditions of lumbar degenerative disease, migraine headaches, cervical degenerative disease and upper limb condition, and major depression were each fully stabilised, that reasonable treatment for each condition had been undertaken, and that there was unlikely to be significant functional improvement in any of the conditions to a level enabling Mrs Johansson to undertake work in the next two years. Dr Neroni considered that the lumbar degenerative disease had a moderate functional impact on activities involving spinal function, that the migraine headaches had a mild functional impact in activities involving neurological function, that the cervical degenerative disease and upper limb condition had a moderate functional impact on activities involving the upper limb, and the depression had a mild functional impact on activities involving mental health function. Dr Neroni also referred to problems with physical exertion and stamina impairment due to chronic pain arising out of the chronic lumbar degenerative disease, upper limb disability and migraine headaches. This aspect of her condition was described by Dr Neroni as having a moderate functional impact on activities involving physical exertion and stamina.
In evidence, Dr Neroni confirmed the difficulties which Mrs Johansson had with her spinal function during the assessment period. He stated that, she needed to avoid overhead activities at home and to avoid repetitive activities that involved turning her head, bending her neck and bending forward. Dr Neroni said that the severity of the problems varied according to whether Mrs Johansson was having a bad day or a good day.
Dr Leonello wrote a report dated 21 February 2014 which was received as an exhibit. He also gave evidence by telephone. Dr Leonello is a consultant physician. Mrs Johansson had been referred to him in 1994, in 1997 and more recently in 2014. In his report Dr Leonello referred to Mrs Johansson suffering chronic depression, chronic pain problems complicated by dependency to various medications which included pethidine, narcotics, DiGesic, Mersyndol and benzodiazepines including Alepam and Temazepam. He referred to Mrs Johansson’s degenerative spinal disease and the fact that she had had a lumbar fusion in 2011 together with left pelvic pathology. In the report dated 21 February 2014 Dr Leonello stated that Mrs Johansson:
“...complains of pain throughout her body and the most severe pain is in the left buttock region. It is constant and aggravated whenever she tries to do her gardening or walks more than usual. She also has some pain in her fingers, toes and shoulders and the whole of her back and upper joints. At times, she experiences some cold sensations in her legs but there is no definite numbness or pins and needles. She admits that she was ‘addicted’ to various medications in the past including Pethidine, sleeping tablets, DiGesic, Endone, Temazepam and Alepam. She has not been able to tolerate Morphine based medications in the past because of nausea.”
In evidence, Dr Leonello stated that Mrs Johansson had become dependent on pethidine at some stage, and benzodiazepines. This led to an unfortunate, vicious cycle of increasing the dose to obtain the same benefit. But, with sensitisation of the central pain pathways, more severe pain occurs if the medication is withdrawn and the withdrawal symptoms are unpleasant.
In the conclusion to his report dated 21 February 2014, Dr Leonello stated that Mrs Johansson has evidence of degenerative spinal disease and possible left sacroiliitis. This contributes to her chronic pain which is complicated by dependency on narcotics and benzodiazepines. He also stated that Mrs Johansson has a background of major psychosocial stress and chronic depression. He concluded that:-
“... there is no cure for her chronic pain and that she should pursue ways that help her cope better with her pain and improve her function – such as physiotherapy, hydrotherapy, regular exercise programme and also cognitive behavioural therapy with a pain psychologist. ...”
Dr Santoreneos is a neurosurgeon to whom Dr Neroni referred Mrs Johansson. Dr Santoreneos wrote three reports which were received in evidence. They are reports dated 22 April 2013, 14 May 2013 and 16 July 2013[1]. Following a bone scan Dr Santoreneos reported (14 May 2013), that there was “mild to moderate C5-6 and C6-7 discovertebral degenerative changes that may contribute to neck pain.” However there was no indication for surgical intervention and he made arrangements for facet joint injections. He reported that those injections were not of any benefit (16 July 2013). His conclusion about Mrs Johansson was (report 16 July 2013) ;
“Her neurological examination remains quite normal with normal reflexes in her upper and lower limbs and normal power. She has a reasonable range of movement in her cervical spine resisting perhaps a little on extension. As of course we have discussed, previous investigations have demonstrated no obvious surgical problem. She does have degenerative multifocal disease which she will have to learn to manage. ...”
Dr Ng is a consultant physician. He wrote a report dated 27 March 2013[2] in which he stated that he knew Mrs Johansson well from previous consultations and he was aware of her complicated medical history. He noted her recent presentation of left sacroiliac joint pain. In relation to joint symptoms Mrs Johansson told Dr Ng that she had occasional pain and swelling in the proximal interphalangeal joints of her hands with some morning stiffness. According to Dr Ng, Mrs Johansson was not aware of pain in other peripheral joints. Dr Ng confirmed results of examination that were consistent with sacroiliitis, however there was no clinical evidence of an underlying connective tissue disorder. He did not arrange further follow up and suggested that Mrs Johansson monitor her progress closely and seek guidance from Dr Neroni in managing her medical problems.
Medical imaging reports were received into evidence. A report from Dr Jones and Partners dated 19 October 2010[3] referred to an examination occurring on that date with the following conclusion:
“Bulging of the lower three lumbar discs with a very marked bulge of the L5-S1 disc posteriorly and a little to the left with probable displacement and compression of the left S1 nerve root and possible displacement and compression of the right S1 nerve root. Posterior facet joint degeneration at many levels.”
A report from Dr Jones and Partners dated 15 November 2010[4] referred to an examination on that day with the conclusion that:
“Disc extrusion at L5/S1, with the disc material extended superiorly on the left paracentral aspect. The extruded disc is compromising the S1 nerve root in the lateral recess.”
A radiology report by the Central Districts Hospital dated 28 December 2012 was received in evidence [5] and referred to an examination on that day. The report referred to a clinical history of lumbar spinal fusion in September 2011 together with back and left iliac crest pain and possible sacroiliac pain. The conclusion in the report was:
“The scan appearances of the left hemipelvis are likely indicative of Paget’s disease that could contribute to the patient’s symptoms. There is no scan evidence of sacroiliitis. There is no scan evidence of complications associated with the previous spinal fusion.”
A radiology report from the Calvary Hospital dated 6 May 2013[6] referred to an examination which occurred on that day with the following findings:
“1. Mild degenerative process noted at the C1/2 anterior articulation.
2. Moderately prominent discovertebral process at C5/6
3. Mild to moderate C6/7 discovertebral degenerative process.
4. Mild to moderate C7/T1 discovertebral degenerative process.”
The report also mentioned other findings that were revealed on the scan. They included:
“... mild degenerative changes noted in multiple interspaces of the upper thoracic spine. Prominent discovertebral degenerative process noted at T7/8, bony reactivity localised to the right lateral aspect of the interspace where a bridging osteophyte is sighted.
There is persistent moderately increased bony reactivity seen in a global distribution involving the left hemipelvis similar to the previous study in 2012.
There is mild bony reactivity noted in the posterior elements of the lower lumbar spine similar to the previous study which likely relates to local stress reaction at the site of previous spinal fusion at L4/5 and L5/S1.
Elsewhere there are also degenerative changes also in the small joints of both hands, elbows, shoulders, sternoclavicular joints, knees, and small joints of both feet.”
The report concluded:
“1. There are degenerative changes noted in multiple levels of the cervical vertebra ... The facet joints however do not appear metabolically active.
There is persistent increased bony reactivity seen in the left hemipelvis with appearances in keeping with Paget’s disease. The level of bony reactivity is similar to the last study in 2012. No scan evidence of Paget’s disease elsewhere.”
Evidence of Mrs Johansson
Mrs Johansson gave evidence which was consistent, detailed and helpful to the Tribunal in assessing her situation. Mrs Johansson has a long history of employment including work in the retail sector. She held executive positions with David Jones where she worked full-time for eight years and she was also self-employed at one stage in the retail sector. She worked for Telecom full-time for about seven years. She studied for a Batchelor of Social Science and she graduated in 2006 after full time study. She worked for the Salvation Army and later established a counselling business. Subsequently she commenced a post graduate masters degree in social work in February 2013 which she has not completed. It came to an end by September 2013 because of the difficulties with her health. Ideally she wanted work where she could dictate her own hours. As she stated in her evidence:
“I have always wanted to be self-funded and self-employed. That’s the way I was brought up. It wasn’t my choice to become fragile and I had to hang up my boots, one could say, before my time”.
In her evidence, Mrs Johansson described the long-term persistent difficulties she has had with her health. The lumbar pain affects her daily. The symptoms fluctuate and some days are worse than others. She said that she has experienced pain in her cervical spine for about ten years. She stated that she has suffered headaches and pain between her shoulder blades. In fact she suffers pain regularly throughout her body, as she described it in her evidence:
“I have pain all over my body because of the medication that I have taken. Dr Leonello has explained to me that I have sensitised all my periphery nerves so I have pains everywhere in my legs, my feet. On top of my feet actually hurts quite a bit; my knees, my shoulders, wrists everything.”
Mrs Johansson described the migraines as occurring about twice a week, then they improved and were only occurring about once a month. However the pattern worsened and she was suffering migraines due to shoulder pain and pain in her neck and described them as occurring on a weekly basis. When she gets a migraine she takes sleeping tablets and three Mersyndol Fortes or Panadene Fort and she lies down in a dark room for 24 hours.
Mrs Johansson gave evidence about the effects on her health during the assessment period, between 16 May 2013 and 15 August 2013. She was having difficulties with her spine which included problems with bending over and kneeling. Sometimes she could not get in and out of a car on her own. She had problems carrying a shopping bag. Bending over and picking up objects was also problematic. She could not move her shoulders freely. She did not have the strength to remove items from a high shelf in the pantry. That inability caused her stress and anguish. She did not hang out washing because of pain in her shoulders and arms. She derived assistance by using a walker to get around and it helped to relieve pain in her back and arms. During the assessment period she was taking lots of sleeping tablets to assist her to sleep without pain. She was also taking medication for anxiety. Medication was administered daily. There were about 25 tablets all up per day and pethidine. She felt “very, very depressed”[7]. She said that she did not think she was suicidal but she preferred to stay in bed. If she got out of bed she would be in her pyjamas all day. She wouldn’t eat. She lost interest in her hygiene. Her social activities were restricted. There were occasions when she attempted to reduce the intake of medication by staying indoors, drinking lots of water and resting. She and her husband travelled to Italy between October 2013 and December 2013 with the intention of visiting a sick elderly relative. She described the difficulties that she had managing the flight together with the health problems that she endured while she was in Italy.
CONSIDERATION
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. Section 6 of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.
Table 4 of the Impairment Tables concerns spinal function. The introduction to Table 4 states that it should be used:
“Where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.”
The introduction to Table 4 also states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner. The corroborating evidence of the person’s impairment may include a report from the persons treating doctor and may include:
“a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, ...”
For a moderate functional impact on activities involving spinal function, the rating is ten impairment points. For a severe functional impact activities involving spinal function, 20 impairment points are allocated. Table 4 sets out those descriptors as follows:
Points
Descriptors
...
10
There is 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 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.
...
In a Job Capacity Assessment report dated 1 July 2013[8] ten points were recommended for Mrs Johansson’s spine condition. A Health Professional Advisory Unit (HPAU) assessment was conducted after the Job Capacity Assessment and a report dated 30 September 2013 was received in evidence as an exhibit. [9] The assessment recommended ratings of ten points to Mrs Johansson’s lumbar spine condition, ten points to her cervical spine condition, five points to the psychiatric disorder and five points for the migraine.
The HPAU assessment referred to the descriptors in Table 5 in relation to mental health function and Table 1 in relation to migraine headaches.
In his report dated 3 October 2013 Dr Neroni suggested that Mrs Johansson should have an impairment rating of twenty points for the lumbar spine condition and twenty points for the cervical spine condition which included a long history of headaches and migraines with increased neck pain and stiffness. In a letter to Centrelink dated 14 September 2013, Dr Neroni stated that in his view the mental health impairment would attract a rating of five points. Accordingly he considered that Mrs Johansson’s total impairment rating should be 45 points.
Subsequently in his report dated 3 April 2014 Dr Neroni reconsidered the impairment ratings and concluded that the lumbar degenerative disease should attract ten points, that the migraine headaches should attract five points, that the cervical degenerative disease and upper limb condition should attract ten points and major depression should attract a rating of five points. In addition Dr Neroni considered that there was a moderate functional impact on activities requiring physical exertion or stamina which would lead to a rating of ten points. On that approach an overall rating of 40 points would apply.
Table 1 of the Impairment Tables refers to functions that require physical exertion and stamina. It refers to conditions that are commonly associated with cardiac or respiratory impairment and provides, as examples, cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain. Table 1, allocating 5 points for mild functional impact on activities requiring physical exertion or stamina is as follows:
Points
Descriptors
5
There is mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
...
Table 5 of the Impairment Tables refers to mental health function. The introduction to Table 5 states that it is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition and that includes recurrent episodes of mental health impairment. The introduction to Table 5 also acknowledges that the signs and symptoms of mental health impairment may vary over time and that for mental health conditions that are episodic the rating that best reflects the persons overall functional ability is appropriate and needs to take into account the severity, duration and frequency of the episodes or fluctuations. Mild functional impact on activities involving mental health function attracts five points as set out in Table 5 as follows:
Points
Descriptors
...
5
There is mild functional impact on activities involving mental health function.
(2) 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 require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
...
In the statement of facts and contentions, which was filed prior to the hearing, the Respondent submitted that the findings of the HPAU assessment should be applied and that, in particular, Mrs Johansson’s conditions should attract a total of 30 points being ten points for the lumbar spine condition, ten points for the cervical spine condition, five points for psychiatric disorder and five points for migraines.
Centrelink’s decision which was conveyed by letter dated 30 September 2013 to Mrs Johansson, allocated ten points under the Impairment Tables for spinal disease and associated pain, five points for migraine headaches, five points for depression, making a total impairment rating of 20 points. Without an impairment rating of 20 points or more under a single impairment table, it followed that Mrs Johansson must have actively participated in a program of support in the 36 months prior to the claim being lodged.
The SSAT considered that Mrs Johansson’s conditions attracted an overall impairment rating of 15 points, which comprised a rating of ten points under Table 4 for the lumbar degenerative disease and the cervical degenerative disease with migraine headaches and a rating of five points under Table 5 for mild functional impact from her mental health condition. In relation to Mrs Johansson’s lower and upper back problems the SSAT referred to two conditions. It described the lumbar degenerative disease as condition 1 and the cervical degenerative disease with migraine headaches as condition 2. The SSAT reviewed both condition 1 and condition 2 separately and then for the purpose of an impairment rating, provided a cumulative figure of ten points to cover both conditions.
In closing submissions the respondent maintained its position that Mrs Johansson’s mental health condition should attract 5 points and the migraine condition should also attract 5 points. However the respondent acknowledged that it would not be correct to assign points to the cervical condition and separately assign points in relation to the lumbar condition. The respondent acknowledged that the lumbar and cervical spine conditions should be assessed globally and an impairment rating applied to the global, functional impact of those spinal conditions. The Tribunal considers that the logic of that approach is correct. The respondent argued that the overall finding should be 10 impairment points for the spinal conditions. Accordingly the respondent submitted that Mrs Johansson’s conditions, in total, attract a rating of 20 points. However the respondent submitted that Mrs Johansson does not qualify for 20 impairment points to be assigned to a single condition under one table. Accordingly the respondent contended that Mrs Johansson had to meet the remaining criteria for a ‘continuing inability to work’ which include a requirement to undertake a program of support.
In view of the history and complexity of Mrs Johansson’s medical conditions it is not surprising that unanimity of opinion has been elusive for those attempting to allocate points under the Impairment Tables. However, the Tribunal has had the benefit of oral evidence from Dr Neroni and Dr Leonello. On consideration of all of the medical evidence together with the evidence given by Mrs Johansson concerning her spinal condition, the Tribunal finds that she sustained a severe functional impact on activities involving spinal function during the assessment period. Twenty points under Table 4 is the appropriate rating. The Tribunal is satisfied that Mrs Johansson had a severe functional impact arising out of difficulties with her lumbar spine and cervical spine that together led to an inability to perform overhead activities, turn her head, bend her neck without moving her trunk and bending forward to pick up light objects. While there may well have been some fluctuations in the symptoms from day to day, as one might expect, there is abundant and convincing evidence from Mrs Johansson, Dr Neroni, and Dr Leonello to support a conclusion that Mrs Johansson was severely affected in functional impact because of the conditions which she suffered in both her cervical spine and her lumbar spine. This conclusion is strengthened further by the reports from the neurosurgeon Dr Santoreneos, the report from the consultant physician Dr Ng and the medical imaging reports referred to earlier.
The Tribunal agrees with the respondent’s submission that 5 points be assigned under Table 5 to Mrs Johansson’s mental health problems and that 5 points be assigned to the migraines under Table 1.
Section 94(3B) of the Act states that:
“A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.”
The Tribunal considers that Mrs Johansson’s total impairment rating is 30 points comprising 20 points under Impairment Table 4 (spinal function), 5 points under Impairment Table 5 (Mental health function) and 5 points under Table 1 (migraine headaches). With an impairment rating of 20 points under a single impairment table, it follows that Mrs Johansson has a severe impairment within the meaning of s 94(3B) of the Act. In relation to the question of whether Mrs Johansson has a continuing inability to work, the fact that she has a severe impairment means that she did not have to meet the requirement of actively participating in a program of support. Without having to make a finding about it the Tribunal notes, however, that the evidence suggests that Mrs Johansson participated in programs of support for a combined period of slightly more than 8 months, which is less than the period which would otherwise be required.
The Tribunal must also determine whether Mrs Johansson has a continuing inability to work noting that s 94(5) of the Act defines work as work:
“(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the persons locally accessible labour market.”
Dr Neroni stated in his report dated the 27 May 2013 that Mrs Johansson’s lumbar condition was fully diagnosed and treated and the condition was expected to deteriorate over the next two years. Similarly, Dr Neroni stated that the cervical degenerative disease and the migraine headaches were fully diagnosed and treated and he expected the condition to deteriorate over the next two years. He confirmed that the condition of depression, which had been diagnosed by a psychiatrist, was also likely to persist for more than two years. Dr Neroni confirmed all those conclusions in a report dated 28 August 2013[10].
A Job Capacity Assessment report dated 29 May 2013 was received in evidence. The report followed a face to face assessment by a Centrelink officer with Mrs Johansson. The assessor noted that Mrs Johansson was currently studying for a masters degree in social work. The assessor commented that a work capacity at base line of 8-14 hours per week could be expected and within two years, with intervention, capacity for work could increase to 15-22 hours per week. The rationale was:
“future work capacity is more likely to increase with assistance from disability specific intervention for assistance to identify appropriate employment that accommodates the medical limitations imposed by clients permanent medical condition as well as post placement support to ensure she is able to manage and sustain duties”.[11]
It is important to note that Dr Neroni is the long-term, treating medical practitioner. He has considerable knowledge of each aspect of Mrs Johansson’s medical condition. His assessment and reports were thorough. The Tribunal accepts the evidence of Dr Neroni concerning Mrs Johansson’s overall impairment and her lack of capacity for work. The substantive basis for Dr Neroni’s opinions is supported by other medical evidence which includes reports from Dr Leonello, Dr Santoreneos, Dr Ng and the medical imaging reports. The Tribunal considers that Mrs Johansson’s lumbar and cervical conditions would of themselves prevent her from working at least 15 hours per week. The unpredictable and debilitating migraines would also have an adverse impact on her ability to predict when she might be available for work and on her actual performance of the work. The Tribunal does not consider that Mrs Johansson would be able to retain employment at 15 hours per week even with support and training. Each of her medical conditions are of long duration. They cause significant impairment both individually and cumulatively. It follows that Mrs Johansson has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined above the Tribunal finds that Mrs Johansson’s lumbar spinal condition and cervical spinal condition were fully diagnosed, fully treated and fully stabilised during the assessment period. The Tribunal finds that the applicable rating for the spinal condition is 20 points, the applicable rating for the mental health function is 5 points, and the applicable rating for the migraine headaches is 5 points. Accordingly, the Tribunal finds that the criterion in s 94(1)(b) of the Act is satisfied.
Mrs Johansson has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single impairment table.
In view of the finding that Mrs Johansson has a severe impairment within the meaning of s 94(3B), there is no need for her to have actively participated in a program of support within the meaning of s 94(3C).
In all of the circumstances the Tribunal is satisfied that Mrs Johansson has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Mrs Johansson is qualified to receive the disability support pension from 16 May 2013.
