Becke and Secretary, Department of Social Services (Social services second review)
[2022] AATA 159
•4 February 2022
Becke and Secretary, Department of Social Services (Social services second review) [2022] AATA 159 (4 February 2022)
Division:GENERAL DIVISION
File Number:2021/4102
Re:Paul Becke
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:4 February 2022
Place:Brisbane
The decision under review is affirmed.
...........[SGD]....................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
4 February 2022
INTRODUCTION
Mr Paul Becke (the Applicant) lodged a claim for the disability support pension (DSP) on
17 February 2021.[1]
[1] Exhibit 1, T Documents, T58, pages 205-228, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 12 March 2021,[2] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[2] Exhibit 1, T Documents, T60, pages 232-233, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision[3] and, on 31 March 2021, an Authorised Review Officer (ARO) affirmed the decision.[4]
[3] Exhibit 1, T Documents, T61, page 234, Information About a Recent Decision.
[4] Exhibit 1, T Documents, T62, pages 235-238, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 18 May 2021, the SSCSD affirmed the decision to refuse his claim for DSP.[5]
[5] Exhibit 1, T Documents, T2, pages 3-12, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 14 June 2021.[6]
[6] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 14 January 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant.Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[7]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and
3.does the Applicant have a continuing inability to work?[9]
[7] Section 94(1)(a) of the Act.
[8] Section 94(1)(b) of the Act.
[9] Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[10]
[10] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[11] As such, a condition could be considered permanent from the perspective of it being life-long, but would not meet the definition under the DSP requirements.
[11] Sections 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[12]
[12] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[13]
(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.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[14]
[14] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]
[15] Section 6(2) of the Determination.
[16] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be 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.[17]
[17] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP and, therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for DSP is the date the person becomes qualified.[18]
[18] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[19]
[19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 17 February 2021, being the date the Applicant lodged his claim for DSP, and ended 13 weeks later on 19 May 2021. The Tribunal is, therefore, limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and, therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[20] The Respondent considers the Applicant’s impairments, for the purposes of the claim for DSP in question, consists of transient ischaemic attack (TIA) and atrial fibrillation (AF),[21] peripheral neuropathy and lower limb[22] and mental health[23] conditions (collectively, the Applicant’s conditions).
[20] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 6, paragraph 31.
[21] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 6-8, paragraphs 32-37.
[22] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 8-10, paragraphs 38-52.
[23] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 10-12, paragraphs 53-63.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so
2. did the Applicant have a continuing inability to work?
EVIDENCE
The medical evidence before the Tribunal dates back to 2013 and indicates that the Applicant likely suffered his first TIA in early 2013 and had also been diagnosed with AF. The hospital discharge referral note in relation to that incident provided for further cardiac follow up and suggested that the Applicant cease smoking, alcohol and illicit drug use to try and help reduce risk factors.[24]
[24] Exhibit 1, T Documents, T6, page 73, Discharge Referral Note.
In 2014, the Applicant suffered a further TIA.[25]
[25] Exhibit 1, T Documents, T7, page 79, Queensland Health Discharge Summary.
In a medical report dated 7 May 2015, Dr Robert Clarke, general practitioner, referred to the Applicant as having a diagnosis of AF with CVA (meaning cerebrovascular accident) and provided that future treatment was possible ablation. Symptoms of extreme fatigue were recorded. Dr Clarke noted that the condition had spontaneous onset and that alcohol was a contributing factor. Dr Clarke opined that the condition, while stable and likely to impact the Applicant for more than 24 months at that time, may improve with ablation.[26]
[26] Exhibit 1, T Documents, T8, pages 84-94, Medical Report Disability Support Pension.
In a report dated 22 March 2016, Dr Michael Prowse, rheumatologist, reported:[27]
History: Thank you for referring this 50 year old man who has painful plantar feet and numbness dorsal foot of over twelve months duration, on a continuous basis of variable severity. He also gets burning the feet and symptoms are worse at night. He has difficulties in wearing any enclosed shoe. If he walks barefoot on rough surfaces, he tells me the pain is agonising. He is known to have osteoarthritis left ankle following on from previous compound fracture years ago. You’ve trialled him on Endep 10mgs at night which helps but he is not keen on taking regular medication and he feels, paradoxically, it makes him feel depressed.
I note he is a ten per day smoker and alcohol intake is about 50 grams per day.
……
Discussion: Firstly, I agree it’s likely he has a painful sensory neuropathy. Alcohol may be implicated. I have checked EPG, ANA, ANCA, homocysteine and glucose tolerance test and will organise nerve conduction studies. I have asked him to have a trial with Lyrica 75mgs twice daily. I have strongly advised marked reduction alcohol intake and smoking cessation. I would like to review.
[27] Exhibit 1, T Documents, T15, pages 114-115, Report of Dr Prowse.
Further on 31 March 2016, Dr Prowse reported that the nerve conduction studies were unremarkable apart from borderline bilateral carpal tunnel syndromes. Dr Prowse opined that the Applicant’s symptoms were very suggestive of a painful peripheral neuropathy, as no alternative explanation had been found. Dr Prowse noted that the Applicant had not trialled Lyrica yet, despite him encouraging him to do so, and that he had strongly emphasised the importance of a marked reduction in the Applicant’s alcohol consumption and suggested a referral to a neurologist.[28]
[28] Exhibit 1, T Documents, T17, page 118, Report of Dr Prowse.
On 28 July 2016, the Applicant was referred by Dr Nevenka Stancevic, general practitioner, under a GP Mental Health Care Plan to Mr Jan Wetzel, counsellor and accredited mental health social worker, for an opinion and management regarding depression and social issues.[29]
[29] Exhibit 1, T Documents, T22, pages 133-134, Referral to Mr Wetzel.
On 27 February 2017, Mr Wetzel reported that the Applicant had attended 9 counselling sessions since 4 August 2016. Mr Wetzel provided the following clinical summary:[30]
[The Applicant] experienced increased anxiety and suicidal thoughts, constant pain in his feet and feelings of suffocation and social isolation. [The Applicant] believed his medication did not work. He slept for about two hours at night and self medicated with alcohol.
[30] Exhibit 1, T Documents, T23, page 135, Report of Mr Wetzel.
Following treatment, Mr Wetzel reported that:[31]
[The Applicant] reported reduction of feelings of anxiety, improvement of sleep and no suicidal thoughts. His court hearing was scheduled for February 2017. [The Applicant] decided to go travelling in the meantime and making contact once back and in need for more counselling. I have not heard of [him] since.
….
I believe [the Applicant’s] mental health difficulties were situational, his biggest stressor was the breakdown of his relationship. [The Applicant] himself did not agree with my assessment. However, his overall situation improved and the treatment approach had a positive impact on [the Applicant].
[31] Exhibit 1, T Documents, T23, page 136, Report of Mr Wetzel.
On 20 September 2019, the Gladstone Mental Health Intake Team wrote to the Applicant, following a referral received from the emergency department for depression and suicidal ideation. The letter outlined that the Applicant’s case was discussed with the multi-disciplinary team which included a consultant psychiatrist, social worker, clinical nurses, occupational therapist and registrar doctor and, as a result, the Applicant was referred back to his general practitioner, Dr Robert Scanlan, together with a safety plan.[32]
[32] Exhibit 1, T Documents, T37, page 161, Letter to Applicant from Gladstone Mental Health Intake Team.
In a GP Mental Health Treatment Plan completed by Dr Scanlan on 30 September 2019, it was noted that the Applicant’s presenting issues were:[33]
Feels constantly depressed and miserable, lost all hope. Unable to see any way out of his situation. Has lost job, caravan business and girlfriend. Has had a lot of conflict with local tow company and police. Has chronic painful feet from alcohol overuse neuropathy and from severe OA of ankle related to old fracture.
[33] Exhibit 1, T Documents, T39, pages 164-166, GP Mental Health Treatment Plan.
The GP Mental Health Treatment Plan provided Alcohol and Drug Use and Depression as the primary care diagnosis, and indicated that interventions and treatments would include interpersonal therapy, cognitive and behavioural interventions, benzodiazepines and anxiolytics, and occasional Valium (5mg).[34]
[34] Exhibit 1, T Documents, T39, pages 164-165, GP Mental Health Treatment Plan.
In August 2020, the Applicant was seen by Dr Johan Kuyler, consultant neurologist, who reported that, in his opinion, the tests indicted no evidence of large fibre peripheral neuropathy.[35] Dr Kuyler noted that the Applicant had a variable alcohol intake up to 12 beers and a bottle of red wine, but on average, 24 beers over the period of week, and that the Applicant reported sleeping better after a half a bottle of wine.[36]
[35] Exhibit 1, T Documents, T47, Pages 180-181, Report of Dr Kuyler.
[36] Exhibit 1, T Documents, T48, page 182, Report of Dr Kuyler.
Dr Kuyler reported that he canvassed with the Applicant management of the peripheral neuropathy from a lifestyle perspective, pain modification approaches including antiepileptic treatments, antidepressants and potentially Mexitil, which would need to be cleared by his cardiologist. Dr Kuyler recommended that, as a last resort, a pain clinic could be considered as they have access to CBD.[37]
[37] Exhibit 1, T Documents, T48, page 183, Report of Dr Kuyler.
In a further report dated 7 December 2020, Dr Kuyler wrote:[38]
I could state that I could not find treatable/reversable causes for his small fibre peripheral neuropathy, which is therefore idiopathic and most likely genetic in view of the history from his mother.
…..
He then enquired about disability grants. I can state that one has to prove they have taken all the available treatments according to diagnosis but say this would not disqualify him from working.
It was made very clear that one could only state that he failed treatment after the pain clinic could prescribe all the super specialised therapies.
[38] Exhibit 1, T Documents, T50, pages 186-187, Report of Dr Kuyler.
The Applicant was treated by Dr Scanlan, or other general practitioners from the same clinic, from October 2014. Dr Scanlan provided a number of letters and completed a number of medical certificates in relation to the Applicant’s claimed conditions.[39]
[39] Exhibit 1, T Documents, T2, pages 13-18; T24, page 137; T26-T31, pages 147-152; T34-T35, pages 157-159; T40, pages 167-168; T42-45, pages 170-174; T49, page 185; T51-52, pages 188-190; T63, page 239 and T65, page 242, Letters and Medical Certificates of Dr Scanlan.
In a letter dated 30 September 2019, and further provided again under the date
22 April 2021,[40] Dr Scanlan provided a list of the Applicant’s past medical history which included:[41]·2013 TIA
·2015 Plantar fasciitis
·26/03/2018 Atrial fibrillation
·23/05/2018 Mild, Acute Tachycardia
·31/08/2018 Anxiety/Depression
·28/02/2019 Peripheral neuropathy, likely due to alcohol excess, untreatable.See neurology report.
[40] Exhibit 1, T Documents, T2, page 13, Letter from Dr Scanlan.
[41] Exhibit 1, T Documents, T40, pages 167-168, Letter of Dr Scanlan.
Dr Scanlan further provided:[42]
[The Applicant] suffers from severe left ankle pain day and night, and chronic foot pain and hypersensitivity from neuropathy, such that he is unable to wear any enclosed footwear ever. He is also suffering from frequent bouts of atrial fibrillation which are poorly controlled by medication and he has so far declined to try surgical ablation which has a high failure rate. He requires cardiology attention in hospital quiet often, unpredictably. As a result of all of these conditions, he is permanently unfit for all work. He is also currently suffering from severe depression.
[42] Exhibit 1, T Documents, T2, page 13, Letter from Dr Scanlan.
In a letter to Centrelink, dated 14 January 2021, Dr Scanlan provided:[43]
[The Applicant] suffers badly from severe progressive neuropathy, which is hereditary, stable, fully diagnosed and untreatable. See the results of radiology and blood tests and nerve conduction studies from Dr Kuyler the neurologist.
[The Applicant] also suffers from atrial fibrillation, anxiety and depression which are also fully diagnosed and stable on treatment.
Due to these conditions he is unfit for all work for over 2 years.
[43] Exhibit 1, T Documents, T51, page 188, Report of Dr Scanlan.
Dr Ken O’Brien, social worker, provided his support for the Applicant’s claim for DSP in a letter dated 28 January 2021, which outlined that he had been seeing the Applicant since 1 September 2020.[44] In a follow up discharge summary, dated 4 August 2021, Dr O’Brien outlined:[45]
[44] Exhibit 1, T Documents, T54, page 192, Report of Dr O’Brien.
[45] Exhibit 2, Supplementary T Documents, ST3, page 4, Discharge Summary of Dr O’Brien.
Changes in Condition
[The Applicant] began engaging with Dr O'Brien on September 1st, 2020 with his first round of sessions which ended on February 25th, 2021. His second round began May 26th, 2021 and concluded July 29th, 2021. [The Applicant] initially demonstrated higher levels of tenacity and resilience that rapidly declined due to unfavourable feedback from Centrelink regarding his application for specific assistance. This feedback occurred just prior to the final scheduled session of his most recent round. Dr O'Brien reports that throughout the last quarter of his sessions, [the Applicant] demonstrated increasing levels of anxiety and depression that acerbated his isolation and feelings of rejection and low worth, which, in turn, acerbated his anxiety and depression.
Communications with [the Applicant’s] medical specialist and General Practitioner confirm his worsening neuropathic pain. Notes from these communications are also on [the Applicant’s] file.
Persisting Problems
Due to the deteriorating physical condition of [the Applicant’s] neuropathy in his feet, Dr O'Brien reports limited success in providing sustainable strategies to support [the Applicant’s] self-regulation of his emotions, thoughts and behaviours. [The Applicant] also states that while the intensity of his neuropathic pain remains unacknowledged by government agencies and other invested parties, he experiences increasing levels of anxiety and depression, isolation and frustration.
Recommendations
[The Applicant’s] increasing intensity of neuropathic pain is a certain prohibitor of any sustainable implementation of meaningful mental health strategies. Therefore a favourable outcome for his application for support and assistance from Centrelink is strongly recommended to allow [the Applicant] to progress with his self-regulation goals.
In a letter dated 9 August 2021, Dr Scott Jenkins, psychiatrist, reported that he assessed the Applicant on 27 July 2021, and confirmed the diagnosis of major depression with anxiety and chronic pain that occurs in the context of AF, repeated TIA’s, peripheral neuropathy, atherosclerosis and osteoarthritis. Dr Jenkins reported that the Applicant’s current treatment consisted of Valium 5mg, Endep 10mg and Palexia 100mg and that he had past contact with psychologists and optimal treatment, and indicated he agreed with the opinion of
Dr O’Brien.[46][46] Exhibit 2, Supplementary T Documents, ST4, page 5, Medical Report of Dr Jenkins.
Dr Jenkins opined that the Applicant met all the criteria for 20 points for disability for his major depression with anxiety and chronic pain and was not fit to work or train in any capacity for at least the following 2 years and that he fully supported the Applicant’s claim for DSP.[47] Dr Jenkins also completed a medical questionnaire in relation to the Applicant’s mental health condition, dated 9 September 2021, which outlined his opinion that the Applicant’s level of impairment was severe.[48]
[47] Exhibit 2, Supplementary T Documents, ST4, page 5, Medical Report of Dr Jenkins.
[48] Exhibit 2, Supplementary T Documents, ST7, pages 8-15, Questionnaire Responses from Dr Jenkins.
In a letter dated 2 December 2021, Dr Scanlan provided that the Applicant:[49]
.. has severe chronic pain in his feet due to peripheral neuropathy, but is unable to attend a pain clinic as our closest pain clinic is Nambour, which is a 5 hour drive from Agnes Water, and that is unattainable for him due to the time and distance. He is unable to be in a vehicle for any time over an hour, as it aggravates his pain greatly.
[49] Exhibit 5, Letter from Dr Scanlan.
In a medical questionnaire in relation to the Applicant’s mental health condition dated
3 September 2021,[50] Dr Scanlan opined that it was unlikely that reasonable treatments for the Applicant’s mental health condition such as ongoing counselling or changes to medication would result in a significant improvement in his level of impairment within 2 years.[51] Dr Scanlan provided the following reason:[52][The Applicant] has a permanent impairment of the use of his legs which prevents many normal activities and that causes ongoing anger and resentment related to grieving the loss of capacity, as well as severely limited earning capacity and social activity.
[50] Exhibit 6, Questionnaire responses from Dr Scanlan, pages 1- 8.
[51] Exhibit 6, Questionnaire responses from Dr Scanlan, page 1.
[52] Exhibit 6, Questionnaire responses from Dr Scanlan, page 1.
Dr Scanlan further opined that the Applicant had a continuing inability to work and was unable to engage in a program of support. Dr Scanlan formed the view that the Applicant’s functional impairment in relation to his mental health was severe in accordance with Table 5 of the Impairment Tables.[53]
[53] Exhibit 6, Questionnaire responses from Dr Scanlan, page 3.
At Hearing, the Applicant gave evidence under affirmation and openly answered the Tribunal’s questions. The Applicant told the Tribunal:
·TIA and AF are different conditions. AF occurs when he is stressed, and he tries to control it in his own way, because the medication that had been prescribed did not work.
·TIA is a stroke, and he has had three of them. TIA can be related to the AF because, what happens in a physical sense, is the heart does not beat properly, which can cause small clots.
·Alcohol is a form of self-medicating because it actually assists him in being able to calm down, so he does not agree that alcohol adversely affects his conditions.
·The neuropathy is his big problem because it is chronic pain 24/7.
·He does not agree with the Respondent’s or doctor’s emphasis on his alcohol consumption.
·He would be happy to go back to work if there was a cure for his neuropathy condition, but there is not.
·He use to be very active and was once “a proud fella”.
·He was last gainfully employed in late 2015 as a caretaker in a caravan park; however, he only lasted 4 weeks because he could not deal with the pain.
·Medications give some slight pain relief, but they also have the effect of slowing down his mental function.
·He would not be able to work from an OH&S perspective.
·After the ablation surgery was explained to him by a heart surgeon at the Royal Brisbane Women's Hospital, he decided he did not want the surgery as he understood that it is not always successful the first time, which would lead to further surgeries being required or ending up in the AF situation permanently instead of intermittently.
·When in AF, it is extremely debilitating as it is difficult to get your breath; you cannot walk upstairs and have to lay down and immobilise yourself. He has had this happen to him maybe twice in a fortnight and then maybe not for another two months. He is not prepared to take the risk of the surgery.
·He does not take medication for AF, instead he has a pill in the pocket approach, where if he feels an episode coming on, he then takes the medication to try and prevent it.
·He does not regularly see Dr Hermann Wittmer (being the last cardiologist he has consulted), because there is no point as there is nothing else they can do, as he will not have the surgery.
·He lives in a camper trailer on an unpowered site and relies on his solar power.
·He is approximately 40-50 feet away from the amenities block.
·Every walk is a hard walk for him.
·When he goes shopping, he uses a trolley to help stabilise him and only buys a few things. He has a friend that helps him by getting things he needs.
·He takes 200mg of Palexia twice a day to help with the pain and a blood thinner because of his previous TIA’s.
·He had not been offered any alternatives to attending a pain clinic in Nambour.
·He takes amitriptyline when he is having a bad day, but he does not want to take addictive drugs if he does not have to.
·He is currently on $640 a fortnight.
·His alcohol consumption varies, he can go days without it. He cannot afford to drink every single day.
·It is Dr Jenkin’s opinion that 4 full strength beers a day is drinking to excess, that is his opinion that is all.
·Alcohol, when it is practically affordable, is a form of self-medication.
On cross-examination, the Applicant:
·Said he tries and avoids taking amitriptyline which is prescribed to treat his anxiety.
·When put to him that amitriptyline is a tricyclic antidepressant and nerve pain medication and, as such, was not intended to treat anxiety, said that he disagrees because it does nothing for his nerve pain or to relieve any pain at all.
·Could not point to any evidence where any doctor had said he only had to take medication they prescribed when he felt like it.
·Said that the last time he saw Dr Wittmer or any cardiologist would have been maybe 2017.
·Said that it is always suggested, when the question of his alcohol consumption arises, that he cuts down; however, his intake is negligible based on affordability.
·He agreed that the report of Dr Kuyler that described that he drank around 24 beers a week and a bottle of wine was probably correct.
·When asked if his doctors had said that was too much, said any doctor would tell you that. No doctor had told him directly he should drink less, they have just suggested he should probably drink less.
·Said it is not about having medical qualifications in relation to knowing what alcohol consumption should be, it is about a person, an individual, and knowing what helps them and what does not help them.
·Said it is what is effective to help them in pain relief, in trying to relieve depression and anxiety. It is what that person knows within – what he knows within himself about what works and what does not.
·Said he only takes alcohol when he is not taking medication.
·Said he was not “here to be questioned about alcohol intake”.
·He did not take any steps to investigate, nor did his doctor make any referrals to, a pain specialist after he was discharged from Dr Kuyler, because there is none in Bundaberg that he is aware of.
·Said he had not considered or spoken about accessing any kind of pain service or pain specialist using telehealth because it had not been offered to him.
·Said that Dr Clarke’s opinion that alcohol contributes to his AF was wrong, because what puts him into AF is stress and duress.
·Said his mother has suffered from AF for a lot of her life, she is now 78 years old.
·Said his mother has been through two ablation surgeries which failed, and they are now looking at the possibility of having a pacemaker put in; however, there are complications with that. This is why he does not want the ablation surgery.
RESPONDENT’S CONTENTIONS
The Respondent’s contentions at Hearing were consistent with those expressed in its Statement of Facts, Issues and Contentions[54] filed prior to the Hearing. In summary, the Respondent contended that the Applicant’s conditions were fully diagnosed during the Relevant Period; however, were not fully treated and fully stabilised.
[54] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions.
In relation to the Applicant’s TIA and AF, the Respondent contended that:[55]
35.The Secretary contends that while the Applicant has experienced these medical conditions for a number of years, they were admittedly during the qualification period poorly controlled by medication and requiring cardiology attention and supervision. By the Applicant’s own admission he was not under the care of a cardiologist. The Secretary also notes Dr Clarke’s reference that alcohol is a contributing factor, and contends that a decision-maker ought to be satisfied that this is no longer the case before considering the condition is fully treated and fully stabilised.
36.While Dr Scanlan opines that surgical ablation is high risk, there is no specialist opinion in the available material in support of that view.
37.In light of the foregoing, the Secretary contends that the Applicant’s TIA and atrial fibrillation conditions, while fully diagnosed, were not fully treated and fully stabilised as at the end of the qualification period. No impairment rating can be assigned.
[55] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 7-8, paragraphs 35-37.
In relation to the Applicant’s peripheral neuropathy and lower limb conditions, the Respondent contended:[56]
…. that the Applicant’s peripheral neuropathy condition was not fully treated and fully stabilised at the end of the qualification period. While Dr Scanlan takes the view that the condition is untreatable, Dr Kuyler who is a specialist in the relevant field considered in August 2020, that lifestyle modifications, pain modification approaches, antidepressants and a pain clinic as a last resort were all possible treatments to be considered. He expressly refers to a pain clinic as being a centre where “all the super specialised therapies” are prescribed in a subsequent report written approximately three months before lodgement of the Applicant’s DSP claim.
[56] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraphs 49.
In relation to the Applicant’s mental health condition, the Respondent contended:[57]
62.The Secretary accepts that the Applicant has an appropriately diagnosed mental health condition as is required under the Introduction to Impairment Table 5 which concerns mental health function. However, the Secretary considers that given the reported severity of the Applicant’s condition, unless and until such time as a specialist opinion was sought and obtained, it is not the case that the Applicant’s mental health condition could be considered fully treated and fully stabilised. Not until that review took place in July 2021 with Dr Jenkins could it reasonably be concluded that no further or alternate treatment would result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years.
63.The Secretary also considers that the impact of the Applicant’s admittedly significant intake of alcohol has not been adequately canvassed by his treating doctors in terms of the impact that it may or may not have on his mental health and the efficacy of any treatments he had undertaken or was continuing with. This is a significant consideration, and one the Secretary contends weighs against this Tribunal finding that the Applicant’s anxiety and depression condition was fully treated and stabilised during the qualification period.
[57] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 12, paragraphs 62-63.
The Respondent submitted that it accepted that the Applicant’s TIA and AF are separate conditions. The Respondent contended that there is medical opinion that alcohol has had an effect on the Applicant’s conditions as a contributing factor and, by the Applicant’s own admission, he has previously, and has ongoingly, continued to consume what can be considered as a significant amount of alcohol.
The Respondent contended that given the Applicant’s complicated and severe medical conditions, a medical practitioner is best placed to assess how to best to approach both the treatment of those conditions and how to approach the treatment of the symptoms arising from his medical conditions. The Respondent submitted that one of the recommendations that the Applicant’s medical practitioners and reviewing specialist have given quite consistently is that he needs to reduce his alcohol consumption because it is a contributing factor to his health.
The Respondent further contended that pharmacology is a relevant treatment and needs to be consistently taken in accordance with medical opinion as recorded in the reports and prescriptions; however, by the Applicant’s own evidence, he is not taking the medication that he is prescribed for particular conditions in the manner that those medications are prescribed, which is also shown in the pharmaceutical benefits scheme extracts.
The Respondent contended that, in a situation where the Applicant is not fully treated and his function is in decline or is being affected by a number of different factors including a lack of adhering to treatment recommendations, his alcohol consumption (because he disagrees that it has a negative effect on his conditions), and he has not consulted with a pain specialist or pain clinic, the Tribunal cannot be satisfied that he is at a point where ultimately his conditions are permanent within the meaning of the Act and that his function, as it was in the Relevant Period, was as stable and as good as it was going to get.
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Based on the evidence before the it, the Tribunal finds that the Applicant’s conditions were fully diagnosed during the Relevant Period. This finding is not disputed.
The present issue for the Tribunal really comes down to whether the Applicant’s conditions can be considered permanent for the purposes of applying the Impairment Tables. The Tribunal accepts that the Applicant’s conditions, in particular, his TIA, AF, peripheral neuropathy and lower limb (and resulting pain) conditions are long lasting and incurable and, as such, in the common meaning of the word, are considered to be permanent. It is, however, the definition of permanent, as found in the Act, to which the Tribunal must have regard.
Section 6(4) of the Determination provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is more likely than not, in light of the available evidence, to persist for more than 2 years.
As such, after examination of the evidence before it, the Tribunal may well find that for the purposes of the Act, a long lasting, incurable condition is not permanent for the purposes of the Act.
Where a condition is not considered to be permanent, it cannot be assigned an impairment rating under the Impairment Table.
In order for a condition to be considered fully treated and fully stabilised, a person must have undertaken all reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years, or where they have not undertaken such treatment because there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The Tribunal does not doubt the pain levels, anxiety or depression experienced by the Applicant during the Relevant Period or at present, or that his conditions cause him functional impairment. The Tribunal also does not dispute that the Applicant’s conditions are long standing and that his TIA, AF, peripheral neuropathy and lower limb (and resulting pain) conditions are long standing and incurable. This does not; however, mean that the Applicant’s conditions are fully treated and fully diagnosed so that a point has been reached where, as the Act requires, the true extent of the resulting functional impairments have been identified and can be assessed pursuant to the Impairment Tables.
The issue for the Applicant in this matter is that the medical evidence makes reference to:
·his being prescribed medication for all of his conditions;
·specialist recommendations in relation to his TIA, AF, peripheral neuropathy and lower limb conditions that he reduce his alcohol consumption;
·a recommendation that he attends a pain management clinic in relation to his peripheral neuropathy and lower limb conditions;
however, the Applicant’s own evidence is that he does not take the medication as prescribed, does not consider his alcohol consumption to be an issue or to negatively impact upon his conditions, and he has not engaged in any form of pain management treatment.
The Tribunal accepts that the proposed ablation treatment for the Applicant’s AF condition is not reasonable treatment given the Applicant’s evidence at Hearing. The Tribunal understands that the Respondent does not dispute this view.
The Tribunal notes that Dr Scanlan, the Applicant’s treating general practitioner, has, in a report dated 14 January 2021, in subsequent reports, and in a response to a questionnaire opined that the Applicant’s conditions were fully treated and fully stabilised. However, the Tribunal notes that Dr Scanlan is silent on the Applicant’s adherence to the prescribed medication, or his alcohol use, and whether it continues to impact upon the Applicant’s conditions. Further, Dr Scanlan provided a letter stating that physical attendance at a pain management clinic was not reasonable; however, did not provide any information in relation to whether attendance by telehealth or referral to a pain specialist had also been considered.
While the Tribunal accepts that adherence to prescribed medication, attendance at a pain management clinic or with a pain specialist will not cure the Applicant’s TIA, AF, peripheral neuropathy and lower limb conditions, what they have the potential to achieve is an improvement in the Applicant’s functional capacity in relation to those conditions as well as the Applicant’s mental health condition. To what extent is unclear, as there is no evidence before the Tribunal from a specialist or from Dr Scanlan that provides an opinion in relation to potential functional improvement should the recommended treatment actually be undertaken or whether such treatment continues to be recommended.
The Applicant’s personal view that he is best placed to manage his conditions by using the prescribed medication as he sees fit and self-medicating with alcohol does not, of itself, provide a basis for the Tribunal to be satisfied that the recommended treatment is unlikely to provide a significant functional improvement that may enable the Applicant to undertake work or training within 2 years.
The Tribunal notes the report and questionnaire provided by Dr Jenkins. Dr Jenkins first saw the Applicant after the Relevant Period and has not, in his report or response to the questionnaire, provided an opinion in relation to the Applicant’s mental health during the Relevant Period. Nor does it appear that Dr Jenkins has considered the impact of the Applicant’s alcohol consumption or refusal to adhere to the pharmaceutical treatment recommended may have upon his mental health.
Dr Jenkins does, however, make it clear that the Applicant’s mental health issues are directly related to his physical conditions. The Tribunal notes that this opinion is also expressed by Dr Scanlan in his response to the questionnaire. While such a conclusion is expected, it further complicates matters where those physical conditions are, of themselves, not fully treated and fully stabilised. As such, in the absence of medical evidence to the contrary, their ongoing effect on the Applicant’s mental health will not be known until such time as they are fully treated and fully stabilised. The Tribunal notes that the questionnaire completed by Dr Scanlan relates to the Applicant’s mental health function; however, mostly with reference to his physical conditions – further muddying the waters.
The assessment of eligibility for DSP is a point in time assessment and, as such, unless evidence produced after the Relevant Period provides reference to the diagnosis, treatment, stability and resulting functional impact of the Applicant’s conditions during the Relevant Period, it offers little weight to the present claim. Consequently, due to the timing of
Dr Jenkins treatment of the Applicant and the resulting report and response to questionnaire, the Tribunal considers that they are of little assistance to the Applicant in the present matter.Based on the evidence before it, the Tribunal is not satisfied that any of the Applicant’s conditions could be considered fully treated and fully stabilised during the Relevant Period. Consequently, the Tribunal is unable to assign an impairment rating to the Applicant’s conditions.
The Tribunal notes that it is open to the Applicant to make a new claim for DSP at any time to re-test his eligibility.
Continuing Inability to Work
As the Tribunal has found that the Applicant does not have a total of 20 impairment points, either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
Based on the evidence before it, the Tribunal finds that the Applicant’s conditions were fully diagnosed; however, were not fully treated and fully stabilised during the Relevant Period and, therefore, could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is, therefore, unable to assign impairment points for these conditions.
The Tribunal finds that, for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..........[SGD]....................................
Associate
Dated: 4 February 2022
Date of Hearing: 14 January 2022 Applicant: By phone Solicitors for the Respondent: Ms Maleah Underhill
Services Australia
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