Anthony Fisher and Secretary, Department of Social Services
[2014] AATA 488
•17 July 2014
[2014] AATA 488
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5405
Re
Anthony Fisher
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 17 July 2014 Place Grafton The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
DISABILITY SUPPORT PENSION – Unsuccessful application for DSP – failure to satisfy “medical criteria” – physical and psychiatric conditions not fully diagnosed, treated and stabilised – not possible to allocate impairment points – applicant made earlier, successful application for another social security payment – not reasonable to exercise discretion to deem earlier application as application for DSP – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act1999 (Cth) s 15(4A); sch 2, cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 6(3); s6(4); s6(5); s(6); s6(7)CASES
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
REASONS FOR DECISION
Senior Member Bernard J McCabe
17 July 2014
Mr Anthony Fisher lodged a claim for the disability support pension (“DSP”) on
26 April 2013. The claim was unsuccessful because the Secretary decided Mr Fisher was unable to satisfy the so-called “medical criteria” in s 94 of the Social Security Act 1991 (Cth) (“the Act”). After the Secretary’s initial decision, further evidence came to light about other medical conditions – but the applicant’s claim was still rejected. Mr Fisher has now asked the Tribunal to consider his case.Mr Fisher appeared at a Tribunal hearing in Grafton to explain his position. He was assisted by his partner, Ms Candace Garside. Both of them gave evidence about
Mr Fisher’s conditions and their impact on his functioning.I was left in no doubt that Mr Fisher currently experiences serious impairment as a consequence of his various medical conditions. I am also in no doubt he would have trouble holding down a job in the foreseeable future without effective treatment. But I am required to apply the criteria in the Act, and Mr Fisher was unable to satisfy them during the assessment period. The claim must therefore be rejected. I explain my reasons below.
MR FISHER’S HEALTH CONDITIONS FOR THE PURPOSES OF THIS APPLICATION
The respondent accepts Mr Fisher’s health conditions are properly described as:
(i)hearing loss;
(ii)attention deficit hyperactive disorder (ADHD);
(iii)pilonidal sinus;
(iv)scrotal cysts; and
(v)asthma.
At the hearing, Mr Fisher agreed asthma was not relevant for the purposes of the current application. While he has an asthma condition, it is (and was at the relevant time)
well-controlled and does not cause any impairment. He also conceded the pilonidal sinus condition should not be considered. The condition has been successfully treated for now so that it cannot be said to have been permanent during the assessment period.THE MEDICAL CRITERIA
In order to succeed in the claim for the DSP under consideration here, Mr Fisher must have been able to satisfy the criteria in s 94 of the Act within the 13-week period following the date of his application: see sch 2, cl 4 of the Social Security (Administration) Act1999 (Cth) (“the Administration Act”); also Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253. As a practical matter, he must:
(a)have a physical, intellectual or psychiatric impairment;
(b)have 20 or more points allocated under the impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”); and
(c)have a continuing inability to work within the meaning of the legislation.
The respondent concedes Mr Fisher’s hearing and scrotal cyst conditions are properly described as physical impairments for the purposes of s 94, while ADHD is properly described as a psychiatric impairment. The sticking point in this case is in relation to the allocation of impairment points in respect of each of those conditions. The Determination says an impairment rating can only be assigned in respect of a condition if the condition is permanent and the impairment that results is likely to last more than two years: s 6(3). But s 6(4) of the Determination says a condition is not permanent for the purposes of
s 6(3) unless:(a)the condition has been fully diagnosed within the meaning of s 6(5) by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated within the meaning of s 6(5); and
(c)the condition is fully stabilised within the meaning of s 6(6).
Importantly for present purposes, a condition will not be regarded as being fully stabilised unless the applicant has undertaken reasonable treatment (or unless further reasonable treatment is unlikely to result in functional improvement within the timeframe contemplated in the Determination). The expression reasonable treatment is defined in
s 6(7).The third requirement in s 94 of the Act – that the applicant have a continuing inability to work – may also be a problem in this case. It is clear the applicant had not engaged in a program of support for the required length of time before the claim was lodged. If he is not exempted from that requirement (which is found in s 94(2)(aa) of the Act) and does not have a severe impairment (that is, an impairment that attracts at least 20 points under the one impairment table: s 94(3B)), then his claim cannot succeed.
I will now address each of Mr Fisher’s conditions in turn. I emphasise I am considering the evidence which sheds light on the conditions as they were in the period April-July 2013. I am not expressing any view in these reasons as to whether Mr Fisher might qualify for the DSP at some later point.
THE HEARING LOSS CONDITION
Mr Fisher is experiencing bilateral moderate to severe hearing loss: that much is clear from an audiogram that was conducted in August 2013, and which was referred to in the useful summary of the medical evidence compiled by Dr Armstrong (exhibit 3,
pp 2 and 5). (Mr Fisher was critical of Dr Armstrong’s conclusions in relation to his case as she had not seen Mr Fisher in person, but her review of the documentary evidence appears to be thorough. I accept her summary of the evidence is reliable.) The respondent says there was some doubt as to the correct diagnosis, although it now seems clear the condition is probably secondary to otosclerosis. Otosclerosis is an abnormality in the middle ear that can lead to deafness. Dr Mupudzi (the applicant’s treating general practitioner at the time) indicated in a letter dated 4 April 2013 (exhibit 1 at p 91) that
Mr Fisher required specialist review.Dr Bravo, an ear, nose and throat surgeon wrote to Centrelink on 3 September 2013 after seeing Mr Fisher. Dr Bravo confirmed the applicant’s hearing loss but said the likely diagnosis of otosclerosis would only be confirmed following surgery. Dr Bravo indicated surgery was an option but in the meantime “the findings suggest that his hearing is amenable to rehabilitation with hearing aids”: exhibit 1 at p 136.
Mr Fisher said he does not like wearing a hearing aid. He is concerned that hearing aids will cause his hearing to deteriorate further, or more quickly. He prefers to do without a hearing aid, even though he does not read lips or understand sign language. He is also strongly opposed to any sort of surgical intervention. He claimed he was aware of evidence suggesting the proposed surgery (called a “stapedectomy”) was risky and unlikely to be of benefit – although I note the evidence he obtained from the internet and provided at the hearing included a note by Rachel Waits suggesting (at p 3) “[r]esearch shows that the general outcome of patients who have undergone surgery for otosclerosis is greatly rewarding.”
I am prepared to accept the applicant’s condition was fully diagnosed at the time of the assessment, even if it had not been confirmed in the absence of a surgical intervention. I am not satisfied the condition was fully treated and fully stabilised in circumstances where the applicant refused to wear hearing aids. The use of hearing aids was clearly a form of reasonable treatment that was (and is) readily available to the applicant. The benefits to be had from hearing aids were obvious at the hearing. Mr Fisher was wearing a hearing aid when the Tribunal sat in Grafton. While he noted he experienced some of the difficulties commonly associated with hearing aid use (e.g., he had trouble hearing the conversation when background noise was present), he was clearly able to participate effectively.
I am satisfied it would be inappropriate to assign an impairment rating to Mr Fisher’s hearing loss condition on the basis that the condition had not been fully treated or fully stabilised during the assessment period.
THE ADHD CONDITION
Mr Fisher has a long history of mental illness. I was provided with a sheaf of documents that recorded his interactions with mental health specialists in the early 1990s and subsequently. He referred to a number of documents that were held on a sealed file he wanted me to consider. He said these documents demonstrated there was a diagnosis of ADHD made many years ago, and that the treatment options – most obviously medication – had all been exhausted.
The applicant’s long-term psychiatric history was summarised in a letter provided by
Dr Budd, a paediatrician who last saw Mr Fisher in 1998 (exhibit 1 at p 146ff). Dr Budd did not expressly endorse the diagnosis of ADHD, although he certainly conceded it was possible. He reported the applicant had been taking Ritalin. I note Mr Fisher was able to refer to some older material provided by mental health specialists in New South Wales who had seen the applicant when he was a child. Dr Gupta, a paediatrician who saw
Mr Fisher in 1992, made the provisional diagnosis that the applicant suffered from ADHD (exhibit 2 at p 4).The applicant says Dr Gupta’s opinion is a diagnosis of ADHD provided by an appropriately qualified expert. But that diagnosis was given years ago, when the applicant was a child. It would be unsafe to rely on it now given the observations of
Dr Budd and the more recent opinion of Dr O’Brien, a psychiatrist who saw the applicant on 26 March 2014. Dr O’Brien described a more complicated range of symptoms.Even if I were to accept the applicant’s condition was fully diagnosed as ADHD, it had not been fully treated and stabilised during the relevant period. Dr O’Brien noted there were many options for treatment. One of them was referral to a clinical psychologist. Medication options were also discussed. Mr Fisher has agreed to consult a psychologist but he remains opposed to the use of medication. He says Ritalin in particular did not work. He prefers to manage his condition through his diet and says he should not be forced to take drug treatment he does not want.
The medical evidence – most obviously that of Dr O’Brien – suggests there are reasonable treatment options available to the applicant which may be of benefit (although I note Dr O’Brien cautioned the treatment might take some time to bear fruit.) I accept the evidence establishes Mr Fisher has tried medication before, and that it may have been unsuccessful. I also accept Mr Fisher is distrustful of doctors. But while the evidence from Mr Fisher might create doubt about the prospects for a successful outcome from further treatment, there is no medical evidence to that effect. I accept there are question marks over whether the treatment would be likely to result in a successful outcome within a two-year period.
I am not satisfied the ADHD condition was fully diagnosed during the assessment period. I also doubt it has been fully treated and fully stabilised. That means impairment ratings cannot be assigned in respect of the condition.
PILONIDAL SINUS
Mr Fisher is suffering from a pilonidal sinus condition. The condition causes painful sores in his groin that become inflamed and fester. The respondent says the condition has not been fully diagnosed, nor has it been fully treated and stabilised.
There was limited evidence available in relation to this condition. As it happens, I did not detect any serious dispute over the diagnosis: Dr Armstrong, for example, appeared to accept the diagnosis. She said surgery was a reasonable option (exhibit 3 at p 5 and exhibit 4 at p 3), which is relevant to the question of whether the condition was fully treated and stabilised during the relevant period. Mr Fisher, for his part, says surgery is pointless: it has limited chances of success and the sores quickly return.
The paucity of evidence on the file makes it difficult to determine whether the applicant’s view of treatment options is reasonable. Ultimately, it makes no difference to the outcome of the case because there is no suggestion the condition would attract 20 or more points under the relevant impairment tables if impairment points could be allocated.
Given my finding that impairment points could not be allocated with respect to the ADHD and hearing loss conditions, the application for the DSP must be rejected because it fails to satisfy the medical criteria.
OTHER MATTERS
The applicant argued he had made a claim for another social security payment,
Youth Allowance, in around 2002. He says he should have been told about the availability of DSP. He says the claim for Youth Allowance should have been deemed to be a claim for DSP pursuant to s 15(4A) of the Administration Act. That would mean his DSP could be commenced from that date – which might result in a significant payment of arrears.I have already decided the applicant was not entitled to the DSP as at the date of the assessment period that relates to this application. But he said he might have been entitled to succeed under the old rules that were applicable in 2002 when he made the original claim for an income support payment.
The power in s 15(4A) is discretionary. It is only available where the Secretary (or the Tribunal on review) decides it would be reasonable to deem the date of the application for another income support payment as being the date of an application for the DSP:
s 15(4A)(d). Too much time has elapsed since the incorrect or inappropriate claim was made – so much time, in fact, that it would now be too difficult to determine for sure whether the applicant satisfied the criteria that were then applicable. While some evidence of the applicant’s medical history has come to light, the Secretary would be prejudiced in his assessment of the application. I am satisfied it would not be reasonable to exercise the discretion in this case.CONCLUSION
The decision under review is affirmed.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 17 July 2014
Date(s) of hearing 27 June 2014 Applicant In person Solicitors for the Respondent Sparke Helmore Lawyers
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