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

Bensemann and Secretary, Department of Social Services (Social services second review) [2017] AATA 1462 (14 September 2017)
Division:GENERAL DIVISION
File Number: 2017/0040
Re:Alexander Bensemann
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:14 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Member D K Grigg
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 – whether continuing inability to work - 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)
REASONS FOR DECISION
Member D K Grigg
14 September 2017
INTRODUCTION

On 20 January 2016 Mr Bensemann lodged a claim for Disability Support Pension (“DSP”) (his medical conditions were not listed).[1]
[1] Exhibit 1, T Documents, T 63, pages 141 – 170, Mr Bensemann’s Claim for DSP dated 20 January 2016.
On 7 June 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Bensemann by a physiotherapist. The JCA concluded that Mr Bensemann’s medical conditions (coronary artery disease and prostate cancer) were not fully treated and stabilised.[2]
[2] Exhibit 1, T Documents, T 65, pages 176 – 181, JCA Report dated 16 June 2016.
As a result of the JCA report the Department of Human Services (“Centrelink”) rejected Mr Bensemann’s claim for DSP on 23 June 2016.[3]
[3] Exhibit 1, T Documents, T 66, pages 182 – 183, Letter from Centrelink dated 23 June 2016.
Claim History
Mr Bensemann sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Bensemann’s medical conditions did not have a total impairment rating of at least 20 points.[4]
[4] Exhibit 1, T Documents, T 68, pages 188 – 194, Decision of ARO dated 9 August 2016.
On 23 August 2016 Mr Bensemann sought a review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[5] The SSCSD rejected Mr Bensemann’s claim and affirmed the ARO’s decision on 24 November 2016.[6]
[5] Exhibit 1, T Documents, T 70, page 197, Application for Review of Decision dated 18 September 2016.
[6] Exhibit 1, T Documents, T2, pages 3- 8, SSCSD’s Decision and Reasons for Decision dated 24 November 2016.
Mr Bensemann has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-2, Mr Bensemann’s Application for Review dated 4 January 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Bensemann must have a physical, intellectual or psychiatric impairment;
(b)Mr Bensemann’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Bensemann must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Bensemann meets the Section 94 Requirements is the date the claim is lodged (in this instance as at 20 January 2016), unless Mr Bensemann becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, to qualify for DSP Mr Bensemann must have met the Section 94 Requirements between 20 January 2016 and 20 April 2016 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
Mr Bensemann complained during the hearing that no-one at Centrelink told him that he should obtain a treating doctor’s medical report and that his impairments are assessed during a limited 13-week Qualification Period. While I can appreciate that the social security jurisdiction and its requirements can be difficult to understand and appreciate, ignorance of the legal requirements does not assist Mr Bensemann in his DSP claim. “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[10]
[10] See Brian Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 115 at [17]; Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451; Barnard and Secretary, Department of Social Services [2016] AATA 436 at [47]; Scott v Secretary, Department of Social Security [1999] FCA 1774 and on appeal Scott and Another v Secretary, Department of Social Security [2000] FCA 1241.
It is important to keep in mind that medical evidence concerning the functional impact of Mr Bensemann’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[11]
DID MR BENSEMANN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]
Mr Bensemann’s medical conditions
[12] Determination, s 3.
Cardiac Conditions
In 2011 Mr Bensemann sustained an inferior myocardial infarction.[13]
[13] Exhibit 1, T Documents, T 7, page 52, Medical Report of Dr Upananda Bopitiya dated 30 January 2012.
In May 2012 Mr Bensemann had a coronary artery bypass graft as a result of severe right coronary artery disease.[14]
[14] Exhibit 1, T Documents, T 16, page 66, operation report dated 16 May 2012.
In 2013 Dr Bopitya diagnosed Mr Bensemann with an ascending aorta aneurysm.[15]
[15] Exhibit 1, T Documents, T 28, pages 87 – 89, letter from Dr Bopitiya to Professor Elliott dated 7 February 2013.
In October 2015 Dr Dougal McClean, Cardiologist, reported that Mr Bensemann has chronic atrial fibrillation with poor rate control and suggested some changes to his medication.[16]
[16] Exhibit 1, T Documents, T 61, page 138, report of Dr McClean dated 28 October 2015.
In March 2016 Mr Bensemann attended at the emergency Department of the Gold Coast Hospital complaining of palpitations and shortness of breath. The hospital reported that he had atrial fibrillation and that the symptoms he was experiencing were likely to be secondary to alcohol use.[17]
[17] Exhibit 1, T Documents, T 64, pages 171-172, Gold Coast hospital discharge summary dated 17 March 2016.
Prostate Cancer
In 2006 Mr Bensemann was diagnosed with prostate cancer[18] and subsequently had a transrectal ultrasound guided prostate biopsy in March 2013.[19]
[18] Exhibit 1, T Documents, T 27, page 86 report of Dr Jane MacDonald dated 16 January 2013.
[19] Exhibit 1, T Documents, T 29, page 90, report of Dr Frank Kueppers dated 11 March 2013.
In May 2013 it was determined that Mr Bensemann’s PSA levels had risen to such a degree that continued surveillance was no longer appropriate management. However, due to a high chance of morbidity and the possibility of mortality due to his ongoing angina, Dr Scott Babington, Radiation Oncologist, determined that surgery was not appropriate and that radical radiation therapy was the alternative treatment.[20]
[20] Exhibit 1, T Documents, T 33, pages 95 – 96, report of Dr Babington dated 14 May 2013.
Mr Bensemann had radiation therapy in June-July 2013.[21]
[21] Exhibit 1, T Documents, T 35, page 99, Radiation Treatment Summary dated 30 July 2013.
Dr Babington reported in May 2015 that Mr Bensemann’s PSA was well controlled.[22]
[22] Exhibit 1, T Documents, T56, page 131, Report of Dr Babington dated 15 May 2016.
Peri-Rectal Bleeding
In May 2015 Dr Babington reported that Mr Bensemann was having peri-rectal bleeding, “particularly when he has frequent bowel motions which happen every so often” and suspected he may have “an element of radiation proctitis as well”.[23]
[23] Exhibit 1, T Documents, T56, page 131, Report of Dr Babington dated 15 May 2016.
Medical records indicate that in May 2015 Mr Benson was to be referred for a colonoscopy.[24]
[24] Exhibit 1, T Documents, T72, page 219, medical history dated 15 May 2015.
Depression and Post-traumatic Stress Disorder
In February 2015 Dr London, Mr Bensemann’s General Practitioner reported that Mr Bensemann had depression and anxiety.[25]
[25] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, Attachment A,
Treating Doctor's Report outside Australia by Dr London dated 20 February 2015.
In September 2016 Mr Bensemann was referred to Ms Suzanne Riggs, Clinical Psychologist for assessment management and counselling. In October 2016 Ms Riggs reported that she had seen Mr Bensemann on 5 separate occasions and that he was suffering from:[26]
(a)a depressive disorder which developed as a result of his heart attack in 2011 because he found that his lifestyle was severely restricted;
(b)post-traumatic stress disorder resulting from a number of life-threatening experiences from when he was in the police force; and
(c)moderate alcohol use disorder which developed as a form of self-medication.
[26] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, Attachment A, Report
of Suzanne Riggs dated 28 October 2016.
In November 2016 Ms Riggs reported that Mr Bensemann had:[27]
(a)made some progress although his DASS (depression anxiety and stress scale) results did not show it; and
(b)reduced his alcohol intake quite significantly and was finding things to do to fill his time.
[27] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, Attachment A, Report
of Suzanne Riggs dated 9 November 2016.
Alcohol Dependency
In February 2015 Dr London, Mr Bensemann’s General Practitioner reported that Mr Bensemann had alcohol dependency.[28]
[28] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, Attachment A,
Treating Doctor's Report outside Australia by Dr London dated 20 February 2015.
In March 2016 the Gold Coast Hospital reported that Mr Bensemann had atrial fibrillation and that the symptoms he was experiencing were likely to be secondary to alcohol use.[29]
[29] Exhibit 1, T Documents, T 64, page 172, Gold Coast hospital discharge summary dated 17 March 2016.
Ms Riggs reported:
(a)in September 2016 that Mr Bensemann had moderate alcohol use disorder;[30] and
(b)that in November 2016 Mr Bensemann had reduced his alcohol intake quite significantly.
[30]Exhibit 2, Secretary’s Amended Sttement of Facts and Contentions dated 1 August 2017,Attachment A, report of Suzanne Riggs dated 28 October 2016 and 9 November 2016.
Conclusion on Impairment
The Secretary accepts that Mr Bensemann suffers from impairments for the purposes of section 94(1)(a) as at the Qualification Period.[31]
[31] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, para 24.
Considering the above medical evidence, I find that during the Qualification Period Mr Bensemann suffered a Cardiac Impairment and a Prostate Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
I discuss the Alcohol Dependency condition, Mental Health conditions and Peri-rectal bleeding Condition further below.
DOES MR BENSEMANN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[32] They are function based[33] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[34]
[32] Determination, s 4(2) and 5(2)(a).
[33] Determination, s 5(2)(b) and (c).
[34] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[35]
(a)Mr Bensemann’s condition causing that impairment is “permanent”; and
(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.
[35] Determination, see s 6(3).
Mr Bensemann’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[36]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[36] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[37] the following must be considered:[38]
(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.
[37] For the purposes of ss 6(4)(a) and (b) of the Determination.
[38] Determination, see s 6(5).
A condition is fully stabilised[39] if:[40]
(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[41]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[39] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[40] Determination, see s 6(6).
[41] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Mr Bensemann’s Cardiac Condition permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Bensemann’s Cardiac Impairment was fully diagnosed, treated and stabilised during the Qualification Period.[42]
[42] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, para 33.
The medical evidence set out in paragraphs 13 to 17 above supports a finding that Mr Bensemann’s Cardiac Impairment was permanent.
Therefore, an Impairment Rating can be assigned for this condition.
Using the Impairment Tables
I have to assess the level of impact of Mr Bensemann’s Cardiac Impairment against the descriptors[43] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[44]
[43] Determination, see ss 3 and 5(3).
[44] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[45]
[45] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[46]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[46] Determination, see s 7.
I must not take into account the following information in applying the Tables:[47]
(a)symptoms reported by Mr Bensemann in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Bensemann’s local community.
[47] Determination, see s 8.
Which Tables are appropriate are determined by:[48]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[48] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[49]
[49] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[50]
[50] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[51]
[51] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[52]
[52] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date
In February 2015 Dr London, Mr Bensemann’s General Practitioner, prepared a report addressing the Descriptors in Table 1 of the Determination and reported that Mr Bensemann can:[53]
(a)walk independently to local facilities;
(b)walk independently from a car park into a shopping centre;
(c)walk around shopping centres without assistance;
(d)climb a flight of stairs;
(e)use public transport without assistance;
(f)perform light household duties; and
(g)move around inside the home without assistance.
[53] Exhibit 2, Attachment A, Treating Doctor's Report outside Australia by Dr London dated 20 February 2015.
Dr London also reported that Mr Bensemann:[54]
(a)has a low exercise tolerance;
(b)has dizziness when raising arms above his head;
(c)could not maintain regular employment involving any physical exertion;
(d)can only maintain “modest activities”; and
(e)can work between 8 and 14 hours per week in sedentary or low-impact work.
[54] Exhibit 2, Attachment A, Treating Doctor's Report outside Australia by Dr London dated 20 February 2015.

At the hearing Mr Benson disputed some of Dr London’s February 2015 report regarding the functional impact of his cardiac condition. Mr Bensemann says that:
(a)when he referred to an ability to walk independently from a car park he meant no more than 10 feet;
(b)he cannot walk around shopping centre without assistance;
(c)when it comes to being able to walk up a flight of stairs, it depends on the number of stairs. Mr Bensemann says he can walk up approximately 5 stairs.
In April 2015 medical records indicate that Mr Bensemann’s exercise tolerance had improved and he could now perform 3 hours of hard physical work before he needed a break.[55]
[55] Exhibit 1, T Documents, T 72, page 221, Medical History dated 8 April 2015.
In November 2015 medical records indicate that Mr Bensemann had had a few episodes of angina and was feeling generally very tired.[56]
[56] Exhibit 1, T Documents, T 72, page 215, Medical History dated 8 April 2015.
The JCA report of June 2016 indicates that Mr Bensemann said:-[57]
·his endurance for walking is poor
·he is independent in personal care activities of daily living
·he does his own shopping and cooking
·he does not have any medical restrictions on his driver’s license
[57] Exhibit 1, T Documents, T 65, page 177, JCA report dated 16 June 2016.
At the hearing before me Mr Bensemann disputed the JCA report because he says he does not do his own shopping, the JCA only met with him once.
In August 2016 Mr Benson told the ARO that:[58]
(a)he can walk 900 m with one break before returning home to rest for an hour;
(b)on good days he prepares meals and freezes them for future use; and
(c)he does not do household chores and shops for groceries with his son.
[58] Exhibit 1, T Documents, T 68, pages 188 – 189, decision of ARO dated 9 August 2016.
Mr Bensemann says he cannot recall the conversation he had with the ARO.
In November 2016 Mr Benson told the SSCSD that:[59]
(a)he is fatigued before he even starts the day;
(b)he goes for a walk each day as recommended by his cardiologist but he needs to rest after 200 m;
(c)he will often cook his meals at lunchtime as he is too tired at the end of the day;
(d)he cannot do the housework or even his own washing;
(e)his son drives him to the shops and drops him off at the door and he has to lean on a trolley as he gets a shortness of breath;
(f)his son has to reach anything higher or lower as he gets dizzy reaching up or bending down.
[59] Exhibit 1, T Documents, T2, pages 5 – 6, decision of SSCSD dated 24 November 2016
At the hearing Mr Benson said that:
(a)he is fatigued before he even starts the day and at the end of the day;
(b)he will often cook his meals at lunchtime as he is too tired at the end of the day;
(c)he does not perform any household duties;
(d)his son drives him to the shops and drops him off at the door and he has to lean on a trolley as he gets a shortness of breath;
(e)his son has to reach anything higher or lower as he gets dizzy reaching up or bending down;
(f)he can use public transport but he does not do so often; and
(g)he would not be able to sustain work-related task of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
I note that between 2015 and 2016 Mr Benson undertook 7 international flights.[60] Mr Bensemann gave evidence that someone always assisted him to the gate and collected him at the other end. He also says that one flight he ended up having to go straight to the hospital afterwards. This is confirmed by a hospital record.[61] I find that the ability to travel alone (which he admitted he did on all but one occasion) indicates that he is not totally incapacitated as a result of his Cardiac Impairment.
[60] Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 1 August 2017, Attachment C,
Department travel records.
[61] Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 1 August 2017, Attachment D,
Hospital record dated 14 March 2016
Relevant Impairment Table and Impairment Rating
The relevant table is Table 1 of the Determination, which deals with Functions requiring Physical Exertion and Stamina.
The introduction to Table 1 provides that:
· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
o results of exercise, cardiac stress or treadmill testing.
The Secretary submits that an appropriate Impairment Rating for Mr Bensemann’s Cardiac Impairment is no more than 10 points.[62] The Secretary says that:
(a)the JCA report is contrary to the evidence given by Mr Bensemann to the ARO and the SSCSD but that it is closer in time to the Qualification Period and therefore more weight should be given to it. I accept that it is closer in time to the Qualification Period, however the JCA only saw Mr Bensemann once, whereas Dr London had been his treating doctor for several years and therefore his report should also be given weight even though it was prepared 11 months prior to the Qualification Period;
(b)there is evidence that Mr Bensemann had the capacity to mow the lawn.[63] At the hearing Mr Bensemann clarified this by saying it was only a small amount of lawn and he ended up have to go to the emergency department later in the morning following the mowing;
(c)there is evidence that Mr Bensemann can get up onto a ladder. However the Secretary’s submission omitted the fact that the medical report shows that on the occasion he had climbed a ladder, the ladder slipped out from underneath him.[64] Mr Bensemann says he slipped on the ladder because he felt dizzy;
(d)there is evidence that Mr Benson was sexually active which has relevance to an assessment of his general activity level. However when one looks at the medical records it shows that Mr Bensemann was not sexually active and had suffered erectile dysfunction for years.[65] When questioned, the Secretary submitted that because Mr Bensemann wanted to be sexually active and because the doctor prescribed Viagra, he could therefore be considered to be able to be sexually active. This is not a valid or persuasive argument.
[62]         See Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 1 August 2017, para 34.
[63]         See Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 1 August 2017, Attachment D,
Hospital record dated 14 March 2016.
[64]         Exhibit 1, T Documents, T1, page 217, Medical History dated 13 July 2015.
[65]         Exhibit 1, T Documents, T 72, page 221, Medical History dated 8 April 2015.
Mr Bensemann submitted at the hearing that an appropriate rating for his cardiac impairment is 20 points.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The corroborating evidence indicates that Mr Bensemann’s ability to function as a result of his Cardiac Impairment has deteriorated since February 2015. The question is what is the best assessment of his ability to function as at the Qualification Period. Given that:
(a)both Dr London and the JCA consider that 10 points is an appropriate rating;
(b)there is no corroborating medical evidence that Mr Bensemann could not sustain a shift of 3 hours in a clerical, sedentary or stationary role; and
(c)Mr Bensemann confirmed at the hearing that he can use public transport without assistance;
a 20 point impairment rating is not appropriate.
The evidence supports an Impairment Rating of 10 points for Mr Bensemann’s Cardiac Impairment.
Is Mr Bensemann’s Prostate Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr Bensemann’s Prostate Impairment was fully diagnosed, fully treated and fully stabilised during the Qualification Period and therefore an Impairment Rating can be assigned. The Secretary concedes that Mr Bensemann’s Prostate Impairment is permanent.[66]
[66] Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 1 August 2017, para 37.
Evidence Identifying the Loss of Function at the Qualification Date
Mr Bensemann reported to the ARO in August 2016 that his Prostate Impairment was having no impact on his ability to function.[67]
[67] Exhibit 1, T Documents, T 68, page 193, ARO Notes dated 9 August 2016.
There is no corroborating evidence that Mr Bensemann’s Prostate Impairment is having any functional impact therefore a zero-point rating is the appropriate Impairment Rating.
Is Mr Bensemann’s Mental Health Impairment permanent and likely to persist for at least 2 years?
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.
In February 2015 Dr London, confirmed that Mr Bensemann had not had his mental health impairment diagnosed by a clinical psychologist.[68]
[68] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, Attachment A,
Treating Doctor's Report outside Australia by Dr London dated 20 February 2015.
Mr Bensemann did not consult a Clinical Psychologist until after the Qualification Period. Therefore it cannot be found that Mr Bensemann was fully diagnosed during the Qualification Period. Further the evidence provided by Ms Riggs would indicate that treatment is still ongoing and that there have been some signs of improvement. Therefore, even if the condition had been fully diagnosed, it had not been fully treated and fully stabilised during the Qualification Period. As a result no impairment rating can be assigned for this condition.
Is Mr Bensemann’s Peri-Rectal Bleeding Condition permanent and likely to persist for at least 2 years?
The medical evidence available indicates that Mr Bensemann was suffering from this condition in May 2015, and that it may be a result of the radical radiation treatment he had to treat to his prostate cancer. Dr Babington reported in 2015 that Mr Bensemann was having peri-rectal bleeding, “particularly when he has frequent bowel motions which happen every so often”. At the hearing Mr Bensemann says he is still suffering from perirectal bleeding which occurs 3 to 4 times a week.
The Secretary submits that this condition is not fully diagnosed, treated, and stabilised and points out that in particular, the ARO Notes indicate that given Mr Bensemann told the ARO that his prostate condition is having no functional impact it could be rated at zero. At the hearing Mr Bensemann said that he thought the ARO was referring to his PSA levels not to his peri-rectal bleeding. I can understand his confusion as they are separate conditions. However, I note that there is no reference in the ARO report to any peri-rectal bleeding condition. Mr Bensemann said that he had not understood that he would not obtain a full hearing at the ARO and that he was also suffering from the effects of alcohol at the time.
Irrespective of what was and was not discussed before the ARO the evidence supports a finding that as at May 2015 Mr Bensemann was diagnosed with peri-rectal bleeding. The evidence of Mr Bensemann regarding how often it occurs is also consistent with Dr Babington’s report. Mr Bensemann said there is nothing that can be done about it and that as a result he had not been to see a doctor about it in the during the Qualification Period. As referred to earlier Mr Bensemann says he if he had known about the relevance of the 13 week period he would have attended a doctor’s surgery at that time to obtain the necessary corroborative evidence of the condition.
On the evidence available I am prepared to find that Mr Bensemann’s perirectal bleeding impairment was fully diagnosed. However, there is no evidence of any treatment received, what the recommended treatment actually is, nor is there any evidence whether or not this condition can be considered stabilised. The evidence simply indicates that further investigations (in the form of a colonoscopy) were planned and had yet to occur. In those circumstances I am unable to find that this condition is permanent for the purpose of the Act and I am unable to assign an impairment rating.
Is Mr Bensemann’s Alcohol Dependency Condition permanent and likely to persist for at least 2 years?
In relation to the alcohol dependency condition I find that this condition is not permanent for the purpose of the Act and therefore cannot be considered for the purposes of this DSP application. While I find that the condition has been diagnosed, there is no medical evidence confirming what treatment has been undertaken or whether this condition has stabilised. I also note that there is evidence that since consulting with Ms Riggs, Mr Bensemann has reduced his alcohol intake and is making improvements. However, this has all occurred after the Qualification Period. Mr Bensemann submitted that he first had a 3-month intensive hospital treatment in 1980. This is confirmed by Dr London. Mr Bensemann submits that there is no treatment for alcohol dependency and that “once an alcoholic, always an alcoholic”. However, alcoholics can engage in treatments so that they stop drinking or, at least, reduce their alcohol intake. Mr Bensemann indicated he has been to Alcoholics Anonymous but there is simply no corroborating evidence concerning the treatment and status of this condition. Mr Bensemann stated in the hearing that you do not tell people about AA because it is meant to be anonymous. The anonymity of AA is flexible for the individual participant and certainly does not preclude discussing your dependency with your doctor. Further, the evidence shows that Mr Bensemann did tell Ms Riggs about the condition. I also note that iin February 2015 Dr London, reported that Mr Bensemann declined a referral to alcohol and drug services and has had no treatment that he was aware of since 1980.[69] Further, despite Mr Bensemann’s evidence at the hearing that this condition has a severe impact on his ability to function, Dr London reported that Mr Bensemann’s alcohol dependency:
(a)does not cause him to have any difficulty with self-care and independent living;
(b)does not cause him to have difficulty with social/recreational activities and travel;
(c)does not cause him to have difficulty with interpersonal relationships;
(d)does not cause him to have difficulty with concentration and task completion;
(e)does not overtly cause him to have difficulty with behaviour, planning and decision-making.
[69] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 1 August 2017, Attachment A,
Treating Doctor's Report outside Australia by Dr London dated 20 February 2015.
I note that Dr London reported in February 2015 that he had only recently become aware of Mr Bensemann’s alcohol dependency and that Mr Bensemann has no motivation to change the level of alcohol consumption at that stage.
In those circumstances I am unable to find the alcohol dependency condition has been fully treated and fully stabilised. I find therefore that the condition is not permanent for the purposes of the act and no impairment rating can be assigned.
DID MR BENSEMANN HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Bensemann’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Mr Bensemann’s claim fails. His impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.......................[Sgd].................................................
Associate
Dated: 14 September 2017

Date of hearing: 4 September 2019

Applicant: By phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1462

14 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	4 September 2019
Applicant:	By phone
Solicitors for the Respondent:	Department of Human Services