Barbuto and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1953
•26 June 2020
Barbuto and Secretary, Department of Social Services (Social services second review) [2020] AATA 1953 (26 June 2020)
Division: GENERAL DIVISION
File Number: 2018/7632
Re:Salvatore Barbuto
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:26 June 2020
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that the Applicant met the eligibility requirements under s 94(1) of the Social Security Act 1991 (Cth) as at the relevant qualification period.
......[sgd]......................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – claim for disability support pension – applicant has multiple physical and psychiatric medical conditions including Crohn’s disease – whether conditions were permanent as at the qualification period – whether conditions were fully diagnosed, treated and stabilised and likely to persist for more than two years – assessment of impairment rating under Impairment Tables in respect of functional impacts arising from permanent conditions – whether continuing inability to work – eligibility requirements were met as at qualification period – reviewable decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 37
Social Security Act 1991 (Cth), ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), s 196Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534
Shi v Migration Agents Registration Authority (2008) 235 CLR 286Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member K. Parker
26 June 2020
INTRODUCTION
The Applicant, Mr Salvatore Barbuto, is a 58-year-old man who suffers from multiple long-standing physical and mental health conditions, including Crohn’s disease. On 25 September 2017 Mr Barbuto made a claim to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act).[1] On 20 December 2017 Centrelink decided to reject the claim.[2] Mr Barbuto sought review by an Authorised Review Officer of Centrelink (ARO). On 11 August 2018 the ARO affirmed Centrelink’s decision.[3] Mr Barbuto sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 17 December 2018 the AAT1 affirmed the ARO’s decision (decision under review).[4]
[1] Refer T-Documents T41.
[2] Refer T-Documents T54.
[3] Refer T-Documents T68.
[4] Refer T-Documents T2.
On 24 December 2018 Mr Barbuto sought review of the decision under review by the General Division of the Administrative Appeals Tribunal (this Tribunal).[5]
[5] Refer T-Documents T1.
On 21 January 2019, the Secretary, Department of Social Services (the Secretary) lodged a set of documents pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents) comprising 302 pages.
On 21 May 2019 Mr Barbuto lodged a medical report prepared by his treating gastroenterologist, Dr Richard La Nauze, dated 3 May 2019.
On 1 November 2019 the Secretary lodged with the Tribunal a list of authorities and a Statement of Facts, Issues and Contentions (Secretary’s SFIC).
On 3 December 2019 Mr Barbuto lodged with the Tribunal:
(a)a detailed statement dated 2 December 2019 providing evidence as to his circumstances and medical conditions, and his contentions in relation to his claim for DSP (Mr Barbuto’s Statement);
(b)a document prepared by him entitled “Daily impacts on my day to day Activities and Daily impacts on my ability to work” (Daily Impacts Statement);
(c)a report by his treating psychologist, Dr Sasha Gardiner-Crossley, dated 28 November 2019; and
(d)Mr Barbuto’s medication lists dated 15 December 2017 and 30 September 2019.
On 25 February 2020, a supplementary report by Dr La Nauze dated 3 May 2019 confirmed that the opinions he had expressed in his 3 May 2019 report (referred to in paragraph [4] above), were based on his notes and letters throughout his consultations with Mr Barbuto, with “particular reference to September to December 2017” (within which the relevant qualification period fell – see paragraph [12] below).
On the same day, the Tribunal received from the Secretary a set of medical records comprising approximately 190 pages, stated to have been produced by Dr La Nauze under s 196 of the Social Security (Administration) Act 1999 (Cth).
Three days later (i.e. on 28 February 2020), the scheduled hearing of this application commenced. The Tribunal held concerns about the late service on Mr Barbuto and the Tribunal of the medical records referred to in the above paragraph. At the commencement of the hearing, the Secretary called into dispute the opinions expressed by Dr La Nauze.
The hearing was relisted for a further half-day hearing on 6 April 2020 to provide for an opportunity for review of the 190 pages of medical records and to allow for an opportunity for the Secretary to summons Dr La Nauze to give evidence to the Tribunal. The Secretary elected not to summons Dr La Nauze and Mr Barbuto did not call this doctor as a witness.
For the reasons outlined in these Reasons for Decision, the Tribunal has decided to set aside the decision under review.
LEGISLATIVE FRAMEWORK
A claim for DSP must be assessed by reference to a specific time period. This is known as the qualification period and it runs for a period of 13 weeks commencing on the day the person lodged their claim for DSP with Centrelink. In Mr Barbuto’s case, the relevant qualification period extends from 25 September 2017 (the date that Mr Barbuto made his claim for DSP) for a period of 13 weeks ending on 26 December 2017 (Qualification Period).
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(3B)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.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means 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 person’s locally accessible labour market.
“Impairment Tables’ are defined in s 23 of the Act to mean the tables determined by an instrument made under s 26(1) of the Act. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition, or conditions, more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Subsection 6(1) of the Determination provides that the impairment of a person must be assessed based on what they can, or could do, not based on what the person chooses to do, or what others do for the person. Subsection 6(2) also provides that the person’s medical history in relation to the condition causing the impairment must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely.
ISSUES
The issues to be determined, as at the time of the Qualification Period, are:
(a)whether Mr Barbuto had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether Mr Barbuto had a continuing inability to work; and
(e)unless the Tribunal finds that Mr Barbuto had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), whether he had satisfied the program of support requirements.
EVIDENCE BEFORE THE TRIBUNAL
Information provided by Mr Barbuto on the DSP claim form
On the DSP claim form, Mr Barbuto listed his “disabilities, illnesses or injuries” as follows:
(a)Crohn’s Disease – bowel, inflammation;
(b)Epilepsy – seizures;
(c)Anxiety, Depressive state;
(d)Hashimoto’s Disease – Thyroid;
(e)Autoimmune Neutropenia – low white blood cells, susceptible to infections;
(f)Deteriorating Lumbar Spine and Neck Condition: Sciatica; and
(g)Arthritis.
On the claim form, Mr Barbuto described his “current treatment” as follows:[6]
I am currently [receiving] specialist care from several specialist doctors, having regular daily medication, having monthly blood test, been hospitalised twice in past 4 yrs, have regular follow up appointments every 3 - > 6 months with specialists, have also had many hospital procedures done. Receive monthly osteopathic therapy.
[6] Refer T-Documents T41/157.
When asked on the form to state whether he was expecting to have an operation in the future, Mr Barbuto indicated that he was expecting to have part of his bowel removed in the affected areas with no indication as to when this might take place. He stated as the reason for this expected operation was Crohn’s disease.[7]
[7] Ibid.
On the claim form, Mr Barbuto stated that his treatment affected his ability to work or study because it impacted upon his “mobility, capacity to lift, carry, concentration, memory and communication”.[8]
[8] Refer T-Documents T41/158.
Mr Barbuto stated on the claim form that the highest level of education he had completed was Year 11 and that he had worked for the Melbourne Cricket Club doing “administrative/finance” work from 1983 to 8 September 2017.[9] He specified that some of his duties had been altered to assist him with his conditions and abilities.[10]
[9] Ibid.
[10] Refer T-Documents T41/159.
When asked on the form whether he had participated in any programs in the previous three years, to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training, Mr Barbuto indicated that he had not done so.[11]
[11] Refer T-Documents T41/159.
Mr Barbuto’s personal circumstances
Mr Barbuto is separated and has two daughters whom are in his care for part of the time. He has been fortunate, until recently, to maintain longstanding employment, despite his illnesses, at the Melbourne Cricket Club. Mr Barbuto told the Tribunal that this will be his 37th year working at the club. Based on Mr Barbuto’s reports, it seems that he is well regarded by the club and they have accommodated his limitations allowing him to maintain his employment at the club for as long as he has. He works at the club on a casual basis. At the resumed hearing, he told the Tribunal he initially worked full-time hours, but because of his condition, now he is only called in on “event days”. Mr Barbuto described that his reduction in hours occurred in 2012.
Mr Barbuto told the Tribunal that it was hard for him to be able to do a consistent number of hours of work per week. When asked about the period from 5 January 2018 where he was recorded as having worked for 59 hours in one week, Mr Barbuto said that this was at a time when he was in “dire financial stress” and worried about his rent and Christmas and that he had forced himself to do those hours. He said that his employer helped him and changed a lot of his duties and that there were a lot of fortnightly periods where he did not go to work at all. Mr Barbuto said he would typically work between five hours and eight hours per shift. He said it varied and that sometimes he would have to leave his shift early, but he was still paid for the full shift. He said that where the records stated that he had worked eight hours, that this could be over two days (i.e. four hours on one day and four hours on the next day).
From the end of September to December 2017, Mr Barbuto said he did hardly any shifts. He said he had to call in to say he could not come in to work “quite a bit”. He said he was surprised that he still had a job with the club.
Mr Barbuto said in his work at the club, he worked in the finance area with another person and that she helped him quite a lot. He said he had an offsider who was able to do some of the more physical duties for him.
At the resumed hearing, Mr Barbuto gave evidence that the Crohn’s disease was a condition that was “on and off” and he had hoped the “dear doctor” letter (meaning Dr La Nauze’s 3 May 2019 report) would have cleared this up.
Job Capacity Assessments (JCA)
Several job capacity assessments have been undertaken of Mr Barbuto in the past including in 2011, 2012, 2013, and in October 2017. The last assessment fell within the Qualification Period and is most relevant to the Tribunal’s review.
On 27 October 2017 a face to face JCA was undertaken of Mr Barbuto by a registered psychologist (assessor) and registered occupational therapist (contributing assessor). The assessor submitted a report about two months after the assessment on 20 December 2017 (2017 JCA Report).[12] At the resumed hearing, Mr Barbuto said there was only “one lady” present at the assessment.
[12] Refer T-Documents T53/174.
The assessor concluded that Mr Barbuto suffered from the medical condition of “Crohn’s Disease” which the assessor considered to be a permanent condition, being fully diagnosed, treated and stabilised and “unlikely to improve significantly with next 2 years with ongoing, optimal management”.[13]
[13] Refer T-Documents T53/176.
At the resumed hearing, in answer to a question by the Tribunal Mr Barbuto confirmed that he had told the assessor that he had the symptoms as described by his doctors (i.e. abdominal pain, severe inflammatory joint pain, bouts of diarrhoea, weight loss, weakness, anorexia and bowel bleeding) and that he had provided the following further account to the JCA assessors of the impact of those symptoms on his life, specifically, as described by the assessor on page 2 of the 2017 JCA Report:[14]
[Mr Barbuto]…can have good and bed weeks. He reported that abdominal pain, frequent bowel movements and fatigue often interfere with his ability to leave the house and he is unable to plan ahead or be reliable for activities/events. He reported significant symptoms of fatigue and weakness, limiting his ability to perform activities of daily living, such as housework, shopping. He reported that he performs only very light activities such as cooking and washing up on a regular basis and is unable to perform more moderate activities such as mowing, gardening, vacuuming, changing sheets on bed. He reported that his 9 and 11 year old children stay with him fortnightly and they assist by vacuuming and changing beds. He reported that he has to pay to have his lawn or garden attended to. The client reported that any shopping is kept to short/brief trips and he is often too fatigued to walk around the shopping centre.
[14] Refer T-Documents T53/175.
The assessor also stated in this report that Mr Barbuto had reported the following in relation to his work activities and history:[15]
Client reported that he has worked in a finance/admin role for the past 34 years, up until September 2017 when he left on sick leave and has been unable to return. He reported that he was working F/T until 2012, following which he reduced his hours to P/T (2-3 days/wk on good weeks). He reported significant difficulties with reliability due to his condition, but stated that his employer was very supportive and allowed him the flexibility to work the days that he felt well enough. He hopes to return to work on less hours.
[15] Refer T-Documents T53/183.
The assessor assigned an impairment rating of 10 points under Table 10 for a moderate functional impact on digestive function; and a further 10 points under Table 1 for moderate functional impact on functions requiring physical exertion and stamina.
The assessor concluded that Mr Barbuto suffered from the condition of “Epilepsy – Grand Mai (Tonic-Clonic)”. The assessor considered that this condition was fully diagnosed but not fully treated and stabilised. The assessor considered that “with Neurologist review, appropriate medication and ongoing counselling support, the functional impact of this condition is likely to improve further within 2 years”. Accordingly, no impairment rating was assigned in respect of any impairment arising from this condition by the assessor.
The assessor considered the claim made by Mr Barbuto that he was suffering from a psychological (or psychiatric) disorder and concluded that there was insufficient medical information to determine whether such condition was fully diagnosed, treated or stabilised. Accordingly, no impairment rating was assigned in respect of any impairment arising from this condition by the assessor.
The assessor concluded that Mr Barbuto was fully diagnosed with a “spinal disorder – other” referring to the diagnosis provided by his treating general practitioner, Dr A Hore, that he suffered from “lumbar spine disc prolapse with sciatica. Onset 2006”. The assessor considered there was insufficient medical information available to determine whether this condition was fully treated and stabilised.
The assessor concluded that Mr Barbuto had been fully diagnosed with the condition of Hashimoto-Thyroiditis. However, the assessor considered that this condition was not fully treated and stabilised as it had only been recently diagnosed (on 18 September 2017) and Mr Barbuto was still undertaking regular reviews to establish optimal medication levels. Accordingly, no impairment rating was assigned in respect of any impairment arising from this condition by the assessor.
The assessor concluded that Mr Barbuto had been fully diagnosed with the condition of “autoimmune neutropenia” in 2014 and “osteoarthritis” of the neck in 2016. However, the assessor considered that there was insufficient medical information provided to determine whether those two conditions had been fully treated and stabilised. Accordingly, no impairment ratings were assigned by the assessor in respect of any impairment arising from those conditions.
CONSIDERATION
Considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 (Harris) at paragraph [1]:[16]
…the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[16] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether, as at the time of the Qualification Period, Mr Barbuto had a physical, intellectual or psychiatric impairment(s). Impairment is defined by s 3 of the Determination – see paragraph [15] of these Reasons for Decision.
Both parties agreed that this requirement was met by Mr Barbuto. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because Mr Barbuto’s medical conditions resulted in a loss of functional capacity, which affected his ability to work as outlined in further detail below.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr Barbuto must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, considering the available evidence, to persist for more than two years.
Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, fully treated and fully stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
Crohn’s Disease
The Tribunal finds that Mr Barbuto’s condition of Crohn’s disease is permanent as it is fully diagnosed, treated and stablished and more likely than not, based on the medical evidence of Dr La Nauze, to persist for more than two years as at the time of the Qualification Period.
The Secretary agreed that Mr Barbuto’s Crohn’s disease was “longstanding” and was fully diagnosed, treated and stabilised as at the Qualification Period.[17] However, the Secretary contended that this condition caused no functional impairment during the Qualification Period, based on “the available evidence” and in particular, the “contemporaneous records and reports” of Dr La Nauze.[18] In support of this contention, the Secretary referred to the following medical evidence:
[17] Refer paragraph [4.23] of the Secretary’s SFIC.
[18] Refer paragraph [4.25] of the Secretary’s SFIC.
(a)Dr La Nauze’s advice to Dr Hore on 11 February 2015, that Mr Barbuto’s last colonoscopy in December 2014 was “normal”; there was “no active disease”; and that “hopefully [Mr Barbuto] would stay in sustained remission”;
(b)Dr La Nauze’s report on 24 February 2016 that Mr Barbuto had been doing well in respect of his Crohn’s disease “with no signs or symptoms to suggest recurrence or relapse”;
(c)Dr La Nauze’s report on 6 September 2016 that Mr Barbuto’s bowels remained normal and that he had “minimal gastrointestinal symptoms”;
(d)Dr La Nauze’s report on 18 October 2016 that Mr Barbuto had experienced “slight increase in bowel frequencies and abdominal discomfort but it may just be related to the reduction on codeine rather than anything else more specific such as a possible flare of Crohn’s disease”;
(e)Dr La Nauze’s report on 15 November 2016 that Mr Barbuto had recovered from his infectious illness which he suspected was “pyelonephritis” and that testing did not reveal any active Crohn’s disease or related complications. Dr La Nauze referred to Mr Barbuto having symptoms of bloating and upper abdominal burning which the doctor suspected was reflux and related to his medication since being discharged from hospital;
(f)Dr La Nauze’s report on 24 January 2017 recording that Mr Barbuto had been in “complete remission for a number of years now” and questioning the diagnosis of Crohn’s disease;
(g)Dr La Nauze’s report on 18 May 2017 that Mr Barbuto had experienced “intermittent abdominal symptoms that are mild”. The doctor considered some of those symptoms may have been reflux related and recommended that Mr Barbuto commence taking Nexium. In this letter, Dr La Nauze recorded that Mr Barbuto had ceased taking Azathioprine at the end of March with no specific change in his symptomatology;
(h)Dr La Nauze’s report on 27 July 2017 that Mr Barbuto’s medication has been ceased “about six months ago and he was clinically well without any endoscopic features of Crohn’s disease for some time”;[19]
(i)on the same date, Dr La Nauze’s referral of Mr Barbuto to Dr Bianca St John, endocrinologist, noting that Mr Barbuto had experienced a recent “gastrointestinal illness (hopefully not a flare up of his Crohn’s disease)”;[20]
(j)Dr La Nauze’s report on 21 September 2017 that Mr Barbuto’s “abdominal symptoms still continue a little but have not progressed” and that he would “hold off on doing any specific treatment for his Crohn’s disease”; and
(k)Dr La Nauze’s report on 16 November 2017 that Mr Barbuto’s Crohn’s disease “continues to remain quiescent and there has been no change in his abdominal symptoms”.
[19] Refer T-Documents T38/129.
[20] Refer T-Documents T39/130.
The Tribunal considers that it is not appropriate to consider the above letters in isolation or to take them out of context. Instead, the Tribunal notes that Dr La Nauze has provided opinions and observations about Mr Barbuto’s condition of Crohn’s disease, in some of his other reports, which give an impression that Mr Barbuto’s condition and symptomatology as at the Qualification Period, is more problematic:
(a)on 16 October 2017 (falling within the Qualification Period), Dr La Nauze reported as follows:[21]
[21] Refer T-Documents T45/166.
Sam Barbuto is a long term patient of mine. He suffers from Crohn’s disease. This is a chronic medical condition without any cure and has a relapsing and remitting course over time. His current effects from his disease are recurrent abdominal pain and he occasionally needs admission to hospital for and severe inflammatory joint point (sic) that can limit the amount he can move. His is currently on treatment for this including salazopyrin.
These factors do limit his ability to maintain work;
(b)in the report by Dr La Nauze on 16 November 2017 (falling within the Qualification Period) referred to by the Secretary in paragraph [48(k)] above, the doctor also recorded that Mr Barbuto’s main issues continued to be related to his “generalised fatigue and tiredness as well as his arthritis”;
(c)on 8 February 2018, Dr La Nauze reported (albeit written about one month after the Qualification Period) stating that Mr Barbuto had seen a rheumatologist who was preferring “enteropathy related arthritis”, for which Mr Barbuto was trialling prednisolone and methotrexate. Dr La Nauze stated that Mr Barbuto was “still troubled by significant fatigue and some days has trouble getting out of bed” and that it was “limiting his functional capacity to carry out normal living activities as well as working”;
(d)on 13 February 2018, Dr La Nauze reported that Mr Barbuto’s condition of Crohn’s disease was permanent and had affected both his health and ability to function in day to day activities including in the workplace. While this report was written about one month after the end of the Qualification Period it provided a detailed account of general nature of Mr Barbuto’s condition:
The condition was first diagnosed in 2002 and has been confirmed on colonoscopy and histopathology. He’s had multiple areas of the bowel affected including the ileum, colon and rectum. His disease is being controlled on immunosuppressive medications and he’s had complications related to these including neutropenia. His Crohn’s disease has also affected areas of the body outside the gastrointestinal system including severe polyarthropathy of an inflammatory nature.
His current symptoms are that of ongoing abdominal pain, severe fatigue and ongoing joint pain and stiffness from his arthritis. These are impacting on his daily activities including the ability to work as it’s affecting his concentration interrupted by both fatigue and pain as well as frequent days where he has trouble getting out of bed.
Sam will continue to be under my care for ongoing management. This disease has an unpredictable nature with high probability of relapsing and requiring further adjustment or treatment and or hospitalisation and or surgery over time.
(e)in the report provided by Dr La Nauze to the Tribunal dated 3 May 2019 (albeit after the qualification period but specifically referring to a period between September 2017 and December 2017), provided the following account of Mr Barbuto’s gastrointestinal medical condition:
1.1What date did you first start treating Mr Barbuto?
November 2012 – first started treating Mr Barbuto in Frankston Hospital Gastroenterology Outpatient Clinic
1.2Please provide the diagnosis and date of onset of Mr Barbuto’s condition/s.
Mr Barbuto was admitted to Frankston Hospital in October 2012 after an acute onset of a two week illness of diarrhoea and abdominal pain. Diagnostic testing that included blood test, abdominal imaging (CT scans), colonoscopy and biopsy diagnosed inflammatory bowel condition (Crohn’s disease).
1.3Were these conditions expected to persist for more than two years from the qualification period?
Yes. Crohn’s disease is a chronic condition without a cure and has a relapsing and remitting course.
1.4Were there any functional difficulties arising from the conditions, expected to persist for more than 2 years from the qualification period?
Yes. As Crohn’s disease is a chronic medical condition without cure it has a relapse and remitting course and at times expecting functional difficulties to continue and persist for more than two years after the qualification period.
1.5Describe the treatment that Mr Barbuto had received for the condition/s prior to the qualification period. Please include details of the date/s on which relevant treatments were undertaken and for how long such treatments were undertaken.
October 2012 – initial hospital admission for diagnosis of Crohn’s disease with initial treatment being intravenous hydrocortisone switched to oral Prednisolone tapering dose and Mesalazine.
February 2013 – further hospital admission requiring additional course of IV hydrocortisone and then switched to tapering oral Prednisolone. Mesalazine continued. Azathioprine commenced on admission.
February 2013 – January 2017 – azathioprine continued (dose reduced due to neutropaenia).
June 2015 – referred to Peninsula Health Community Centre for Dietitian review.
January 2017 – azathioprine ceased due to concerns of ongoing neutropaenia as well as assessment of inactive disease (gastroscopy and colonoscopy normal, normal mucosal biopsies, normal MR Enterography and normal faecal calprotectin).
1.6Was Mr Barbuto fully compliant with all the treatment recommendations?
Yes. He was compliant with all treatment recommendations.
1.7Were there any further investigations, specialist referrals or treatments yet to be undertaken for any of Mr Barbuto’s conditions during the qualification period? Were such treatments expected to result in any change to the severity or frequency to Mr Barbuto’s symptoms within two years of qualification period, if so to what extent?
It was recommended that Mr Barbuto see a Rheumatologist for assessment of his suspected inflammatory arthritis. These treatments were not expected to result in any change in the severity of frequency of his Crohn’s disease symptoms within two years of qualification period.
…
1.9Provide a detailed description of the symptoms suffered by Mr Barbuto as well as frequency and severity of symptoms. Please describe with examples how such symptoms impact Mr Barbuto’s ability to carry out everyday activities…
In reference to the symptoms of Mr Barbuto during the qualification period he was suffering from abdominal pain, increased bowel frequency, diarrhoea with associated urgency, generalised fatigue and severe muscular and joint pain.
These symptoms affected his day to day life significantly. The diarrhoea frequency results in multiple and unpredictable toilet visits making planning social and required activities of daily living very difficult. His generalised fatigue, joint pain limits mobility affecting most aspects required of daily living including carry on at home tasks such as gardening, lawn mowing and limiting his ability to go to the shops for groceries. In addition to fatigue and pain it makes it difficult to maintain concentration and also remain in one position or place for periods of time.
Hence the above contribute to decrease concentration, ability to think clearly as well as affecting his mood causing depressive state or lack of motivation.
1.10Did Mr Barbuto have a continuing inability to work or undertake training for 15 hours per week within two years from the qualification period?
Mr Barbuto’s symptoms have remained relatively unchanged from the qualification period hence he has continued to have the inability to work or undertake required training for 15 hours per week.
The Secretary contended that the Tribunal should not accept, as an accurate reflection of Mr Barbuto’s condition as at the Qualification Period, the opinion of Dr La Nauze as expressed in his 3 May 2019 report because it is inconsistent with his reports leading up to and during the Qualification Period. The Secretary contended that the contemporaneous reports stated that Mr Barbuto’s Crohn’s disease was inactive and that any ongoing abdominal symptoms were mild and likely due to other causes.
The Tribunal does not consider this to be a fair characterisation of the evidence. The symptoms suffered by Mr Barbuto were not limited to abdominal symptoms but instead, included symptoms of severe fatigue which were recorded as a continuing significant issue that Mr Barbuto was battling with over a long period of time including during the Qualification Period; and also symptoms of arthritis which his rheumatologist considered on balance were stemming from enteropathy related arthritis. Those symptoms also continued to plague Mr Barbuto as corroborated by Dr La Nauze in his report dated 16 November 2017 and again on 8 February 2017 when he next examined Mr Barbuto.
The Secretary contended that the reports made during the Qualification Period had suggested that Mr Barbuto’s pain and fatigue were likely due to other conditions. The Tribunal accepts the opinion expressed by Mr Barbuto’s specialist rheumatologist, who at the time preferred the view that his arthritis was “enteropathy related arthritis” and notes that “enteropathy” is a reference to disease of the intestine, especially the small intestine, and that Dr La Nauze had expressly stated that Mr Barbuto’s Crohn’s disease has affected areas of his gastrointestinal tract, including his ileum, noting that the ileum is the third portion of the small intestine, between the jejunum and the caecum. For this reason, the Tribunal finds that the fatigue and arthritis that continued to affect Mr Barbuto for an extended period, including during the Qualification Period, was his condition of Crohn’s disease.
This conclusion is also consistent with the evidence that was given by Mr Barbuto at the hearing. Mr Barbuto was cross-examined at length on both hearing days. The Tribunal found Mr Barbuto to be a straightforward and credible witness. He gave evidence, which the Tribunal accepts, that the fatigue caused by his condition had affected him greatly, with many days or sometimes weeks (as was the case during the Qualification Period), that he was unable to work on account of his tiredness and there were days when he was so fatigued he was unable to get out of bed. The Tribunal finds that those symptoms had caused Mr Barbuto to frequently call into work, if he was scheduled to work, to say that he would not be coming in.
The Tribunal considers that the relevant Impairment Tables by which to assign an impairment rating due to functional impact of Mr Barbuto’s Crohn’s disease is Table 10 and Table 1.
The Introduction to Table 10 provides (among other things) as follows:
Symptoms of digestive conditions include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue.
Personal care needs associated with digestive conditions include, but are not limited to, the need to take medications when symptoms occur, care of special feeding equipment (e.g. Percutaneous Endoscopic Gastrostomy (PEG) button or special feeding tube), special diets or feeding solutions, strategies to relieve pain, additional toileting and personal hygiene needs.
Table 10 is reproduced below:
Points
Descriptors
0
There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) The person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.
5
There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least one of the following applies:
(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b) the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
10
There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a) the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b) the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;
(c) the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
20
There is a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a) the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b) the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;
(c) the person’s condition may affect the comfort or attention of co-workers;
(d) the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.
30
There is an extreme functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a) the person’s attention and concentration at a task are continually interrupted or reduced by pain or other symptoms or care needs associated with the digestive or reproductive system condition (e.g. pain or other symptoms are present all or most of the time);
(b) the person is unable to sustain work activity or other task for more than 1 hour without a break due to symptoms of the digestive or reproductive system condition;
(c) the nature of the person’s condition is likely to affect co-workers adversely;
(d) the person is rarely able to attend work, education or training activities due to the digestive or reproductive system condition.
The Tribunal considers Mr Barbuto’s circumstances satisfy at least two of the descriptors set out in (1)(a) to (d) for the 20-point rating under Table 10 and that, as at the Qualification Period, there was a severe functional impact on Mr Barbuto’s work-related or daily activities due to symptoms or personal care needs associated with his digestive condition of Crohn’s disease.
Firstly, the Tribunal is satisfied that due to the symptomatology suffered by Mr Barbuto due to his intermittent abdominal pain, severe fatigue and pain caused by his arthritis, all stemming from the Crohn’s disease, Mr Barbuto was frequently (twice or more per month) absent from work due to his digestive system condition as at the Qualification Period. The Tribunal accepts Mr Barbuto’s evidence and finds that there were many days, and sometimes weeks, when he called into work to say that he is unable to attend and that the reason for this was on account of the above symptoms. This finding is supported by the following evidence:
(a)Mr Barbuto’s report to the JCA assessor who undertook the 2017 JCA assessment as outlined in paragraph [35] in these Reasons for Decision;
(b)Mr Barbuto’s description of his absenteeism as stated in a letter dated 19 February 2018 as follows:[22]
[22] Refer T-Documents T61/199.
I have quite regularly had to be absent from work and other commitments due to abdominal pains, frequent bowel movements and chronic fatigue which often interfere with my ability to leave the house. I am quite often unable to plan ahead or be reliable for activities, events or work. I have done very few work shifts since September 2017 and have missed several weeks of work.
(c)records kept by his employer of the number of hours per fortnight for which he was paid. Of relevance to the Qualification Period (and immediately leading up to and immediately after this period), those records (which were not disputed by the Secretary) showed that Mr Barbuto was paid for the following hours during the periods stated below, noting that he was not paid for any hours of work between 29 September 2017 and 5 January 2018 (and 16 February 2018 to 20 March 2018) and that otherwise, his hours fluctuated greatly demonstrating that at times he was unable to work more than 8, 12, 16, 17 or 18 hours per fortnight:[23]
[23] Refer T-Documents T82/283.
(i)9 June 2017 – 19 hours per fortnight;
(ii)23 June 2017 – 41 hours per fortnight;
(iii)7 July 2017 – 24 hours per fortnight;
(iv)21 July 2017 – 32 hours per fortnight;
(v)4 August 2017 – 24 hours per fortnight;
(vi)18 August 2017 – 8 hours per fortnight;
(vii)1 September 2017 – 17 hours per fortnight;
(viii)15 September 2017 – 8 (or 16) hours per fortnight;
(ix)29 September 2017 – 8 (or 16) hours per fortnight;
(x)5 January 2018 – 59 hours per fortnight;
(xi)19 January 2018 – 12 hours per fortnight;
(xii)2 February 2018 – 18 hours per fortnight;
(xiii)16 February 2018 – 8 hours per fortnight; and
(xiv)30 March 2018 – 14 hours per fortnight.
(d)Mr Barbuto’s evidence at the resumed hearing, which the Tribunal accepts, that his employer would always make sure it had a backup (or Plan B) in place in case Mr Barbuto called in sick, and his further evidence that there were many instances where he had done so and that Plan B needed to be implemented; and
(e)Mr Barbuto’s evidence, which the Tribunal accepts, that due to financial hardship he “pushed himself” to work on a full-time basis (see entry of 59 hours in one fortnight for the date of 5 January 2018), and by doing so it had a severe impact on his physical and emotional health causing him to take a period of 20 days off work to recover (noting that no entries were recorded between 16 February 2018 to 30 March 2018).[24]
[24] Refer second page of Mr Barbuto’s Daily Impacts Statement.
Secondly, the Tribunal also considers that Mr Barbuto’s “condition may affect the comfort or attention of co-workers”. Mr Barbuto consistently gave evidence, which the Tribunal accepts, that his employer had allocated a fellow employee to undertake the duties that Mr Barbuto was unable to perform on account of his symptoms, such as the more physical duties that he was unable to do on account of his fatigue and pain from arthritis. The Tribunal is satisfied that this would have detracted from the attention that his co-worker was able to afford to his or her own work responsibilities and duties, when helping Mr Barbuto.
The Tribunal accepts Mr Barbuto’s evidence that he has had to inform his employer about his conditions and that this has affected his co-workers as they have had to reallocate his work area so that he is closer to the toilets, he had to take constant toilet breaks and that what he described as “embarrassing digestive movements and noises” effected the comfort and attention of his co-workers.[25] The Tribunal accepts the evidence of Dr La Nauze who stated, by reference to the Qualification Period, that Mr Barbuto’s diarrhea frequency resulted in “multiple and unpredictable toilet visits making planning social and required activities of daily living very difficult” and that it was difficult for him to maintain his concentration and to remain in one position or place for periods of time.
[25] Refer first page of Mr Barbuto’s Daily Impacts Statement.
The Secretary had an opportunity to summons Dr La Nauze to test him about this evidence, in between the two hearing days, but elected not to do so. The Tribunal notes that Dr La Nauze is a specialist gastroenterology and his description of Mr Barbuto’s symptoms in reference to the Qualification Period carried great weight. The Tribunal acknowledges that there were letters written by Dr La Nauze at different times which seemed to be inconsistent with his 3 May 2019 medical report. However, the very nature of a Crohn’s disease is that it is a chronic and fluctuating condition as described by Dr La Nauze. The Tribunal considers that the discrepancies in Dr La Nauze’s various correspondence and reports, can be explained by the fact that Mr Barbuto was expected to have presented to his treating physicians at different times with different symptoms of varying degrees. This does not lead to a conclusion that the condition had become asymptomatic altogether, or that it was having no functional impact across the board on Mr Barbuto’s digestive function.
As at the Qualification Period, the Tribunal notes that Mr Barbuto remained under an intense medication regime for his Crohn’s disease and other conditions. The Tribunal accepts the chart of daily medication provided by Mr Barbuto before the hearing indicating that, as at 15 December 2017 (falling with the Qualification Period), his daily medication for his Crohn’s disease alone included:
(a)eight tablets of Sulfasalazine 500mg;
(b)eight tablets of Panadeine Forte (paracetamol 500mg/codeine 30mg);
(c)one tablet of prednisolone 20mg; and
(d)one tablet of amitriptyline (endep) 25mg.
Subsection 11(4) of the Determination specifically provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments; considering the severity, duration and frequency of the episodes or fluctuations as appropriate. An assessment based on that approach, leads the Tribunal to accept the opinions and reports made by Dr La Nauze in his 3 May 2019 report, as reflecting the overall functional impacts of Mr Barbuto’s Crohn’s disease. This evidence, in conjunction with Mr Barbuto’s evidence referred to above and the reports he had made to the JCA assessor who undertook the 2017 JCA (see paragraphs [34] and [35]), satisfy the Tribunal that the descriptors in subparagraphs (1)(c) and (d) for a 20-point rating under Table 10 apply to Mr Barbuto.
Accordingly, the Tribunal finds that there was a severe impact on Mr Barbuto’s digestive function resulting from his Crohn’s disease and therefore, the Tribunal assigns 20 points to him under Table 10 of the Impairment Tables.
Therefore, without needing to consider Mr Barbuto’s many other conditions and impairments arising from them, the Tribunal concludes that as at the Qualification Period, Mr Barbuto met the requirements under s 94(1)(b) of the Act.
“Continuing inability to work” requirements
The next task for the Tribunal is to consider whether as at the Qualification Period, Mr Barbuto had a “continuing inability to work” under s 94(1)(c) of the Act, as defined by ss 94(2) and (3).
Unless a person has a “severe impairment” (i.e. they have 20 or more impairment points under any one impairment table), a person must show that they “actively participated in a program of support” within the meaning of s 94(3C) of the Act prior to making their claim for DSP. It is not necessary for Mr Barbuto to meet the “program of support” requirements as the Tribunal assigned 20 impairment points to Mr Barbuto under one table, being Table 10, due to the functional impact of his Crohn’s disease on his digestive function.
The Tribunal must consider whether Mr Barbuto’s impairment arising from his Crohn’s disease is of itself sufficient to prevent him from doing any work or training activity independently of a program of support within the next two years. As set out above in paragraph [13], “work” is defined in the Act to mean work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.
Mr Barbuto was (and still is) very fortunate to have a longstanding employer who has demonstrated a high level of support for Mr Barbuto and willingness to accommodate his medical conditions. Others in the workplace adjusted their own duties to assist him to complete his duties that might impose a strain on him. Even in that “sheltered” environment, Mr Barbuto struggled. There were long blocks of time when Mr Barbuto was unable to attend work including for a lengthy period during the Qualification Period on account of the symptoms arising from his Crohn’s disease. At other times, work records indicated that in many of the fortnightly periods Mr Barbuto did not work more than 15 hours per week. The Tribunal accepts Mr Barbuto’s evidence that on one occasion when he attempted to work “full-time” hours (in January 2018), consequently he paid the price for it and his health deteriorated to the point that he could not work for a month shortly afterwards.
The assessor who undertook the 2017 JCA assessment reached a view that Mr Barbuto’s baseline work capacity was eight to 14 hours per week and that he had a temporary work capacity of zero to seven hours. The assessor stated:[26]
…A Baseline and With Intervention work capacity of 8-14 hrs/wk is recommended based on clients permanent health conditions which significantly limit endurance, stamina, physical tolerances, concentration and ability to cope with stress. With DES-ESS workplace interventions and support and assistance to manage impact of conditions, the clients work capacity is expected to remain stable.
[26] Refer T-Documents T53/185.
In that context, the Tribunal accepts Dr La Nauze’s evidence as follows:
Mr Barbuto’s symptoms have remained relatively unchanged from the qualification period hence he has continued to have the inability to work or undertake required training for 15 hours per week.
Based on the evidence referred to in the above three paragraphs, the Tribunal finds that Mr Barbuto has a “continuing inability to work” as defined under the Act as at the Qualification Period. Accordingly, the Tribunal concludes that at that time, Mr Barbuto met the requirements under s 94(1)(c) of the Act.
CONCLUSION
The Tribunal sets aside the decision under review and in substitution, decides that as at the Qualification Period, Mr Barbuto met the eligibility requirements under subsections 94(1)(a), (b) and (c) of the Act.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
[sgd]........................................................
Associate
Dated: 26 June 2020
Dates of hearing:
28 February 2020 & 6 April 2020
Applicant:
In person
Representative for the Respondent: Ms Anneliese Massey
Sparke Helmore Lawyers
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