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

[2016] AATA 944

Bradley and Secretary, Department of Social Services (Social services second review) [2016] AATA 944 (7 October 2016)

Division	GENERAL DIVISION
File Number	2014/3215
Re	Secretary, Department of Social Services
APPLICANT
And	Louise Bradley
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	7 October 2016
Date of written reasons	28 November 2016
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision of the SSAT and substitutes a decision affirming the decision of the authorised review officer.

......................[Sgd]..................................................

Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether respondent's medical conditions were fully diagnosed, fully treated and fully stabilised during the assessment period - whether impairments attract 20 or more under the Impairment Tables - decision under review set aside.

LEGISLATION

Social Security Act 1991 (Cth), s 94

SECONDARY MATERIALS

Social Security (Tables for the assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member N A Manetta

28 November 2016

1. After delivery of my oral decision, I received a request for written reasons which I now publish.

2. This is an application by the Secretary of the Department of Social Services seeking a review of a decision of the Social Security Appeals Tribunal (SSAT).  By its decision, the SSAT overturned decisions taken in the applicant’s Department that the respondent, Ms Louise Bradley, was ineligible to receive a disability support pension under the Social Security Act, 1991 (Act).  Ms Odgers appeared for the applicant; Ms Riley appeared for the respondent.

3. As I am delivering my decision orally, I shall not quote from the legislative provisions or Impairment Tables but I note that they are familiar to the parties’ legal representatives.

   SUMMARY OF CRITICAL ISSUE

4. The SSAT found that Ms Bradley was entitled to 5 points in respect of arthritis in her hands and 20 points under Impairment Table 10 in respect of a condition I shall discuss in due course.  Ms Bradley also suffers from Hepatitis C.  Ms Bradley, as I understand matters, maintains that a further 5 points should be allocated in respect of this latter condition.  Ms Bradley did not submit before me, however, that she was entitled to 20 points from her arthritis and Hepatitis C taken in combination; and I would not find that on the evidence before me in any event.

5. Effectively, then, it became clear that Ms Bradley would be unsuccessful in her application to this Tribunal, which is bound to hear and determine the matter afresh on the evidence before it, unless she could establish that the impairment for which she had received 20 points was eligible to be considered by the Tribunal.  Furthermore, she would have to establish that the impairment arising from that condition warranted 20 points: otherwise, she was obliged by the regulatory regime to have participated in a programme of support.  It is clear she has not done so.

   SUMMARY OF CONCLUSION

6. In my opinion, it is clear that the impairment arising from Ms Bradley’s condition (which I may refer to generally as urinary incontinence and pain/irritation in the groin region) is ineligible to be considered as the underlying condition (or conditions) has (or have not) been fully diagnosed, treated and stabilised.

7. It follows from this conclusion that I must set aside the decision of the SSAT and substitute a decision affirming the decision of the authorised review officer.

   BACKGROUND FACTS

8. I shall explain my reasons for this conclusion but before doing so I set out the background facts.  Ms Bradley, who was almost 56 at the time of the hearing before me, lives in rural South Australia at Meningie.  Her three children no longer live with her and she lives alone.  From a vocational perspective, she has experience in domestic cleaning work.  In 1988, she contracted Hepatitis C, which left her weak and with night sweating.  She gave evidence before me that she feels medical professionals are hesitant to approach her on account of this condition and have treated her with disrespect on occasion.  This has caused her, understandably, a great deal of distress.  In particular, she gave evidence that on one occasion when she was hospitalised, she was mistreated by nurses on account of this condition.

9. In 2008, Ms Bradley was diagnosed with cancer of the vulva, which has clearly been a very distressing event in her life.  She was twice operated on and the cancer has not returned.  The operations have left her with an altered genital region, nerve irritation, groin sensitivity, and constant burning sensations.  She also experiences some lower limb swelling and left groin and leg pain.

   REASONS

   (i) Pain

10. In my opinion, the irritation, sensitivity, and pain arising from the operations have not been fully diagnosed, treated and stabilised and are therefore ineligible to be considered for the purposes of awarding impairment points under the applicable tables.  I accept that the cancer has been appropriately diagnosed, treated, and is stabilised but the condition of residual pain and discomfort (which on the evidence before me has resulted from the operations and not the cancer itself) has not been investigated and addressed to the requisite degree.  

11. I am not able to conclude on the evidence before me that Ms Bradley is unlikely to benefit from any further treatment for her pain.  In this connection, I note the evidence of Dr Reid.  Dr Reid was called to give evidence by the applicant.  He saw Ms Bradley in October 2014, but not as her treating physician.  In his evidence before me, Dr Reid referred to the possibility of Ms Bradley benefiting from a referral to a pain physician.  He gave evidence that he thought this would be a reasonable option to pursue, and I accept that evidence. 

12. I further accept his evidence that the degree of relief that would arise from the medicinal use of Lyrica, the most commonly prescribed drug for the management of this type of pain, is not likely to be high as a matter of general experience; but I note here that it is not a treatment that has been tried and monitored in Ms Bradley’s case.  Accordingly, I would not conclude that there would be no significant functional improvement from its use by Ms Bradley.  It seems to me that the medical evidence from Dr Reid did not exclude the possibility that Lyrica could offer some significant relief to Ms Bradley. 

13. Overall, Dr Reid’s opinion was that Ms Bradley’s management of pain should be considered by an appropriately qualified pain physician and Dr Reid indicated that he lacked qualifications to give a definite opinion on that question.  Dr Reid referred to pain being a specialised area of practice nowadays.

14. Indeed, I am struck by the fact that Ms Bradley has not been referred to a pain specialist to manage what Dr Reid saw as somewhat unusual pain and discomfort arising from Ms Bradley’s operations.  The pain and discomfort have persisted for some time.

15. Accordingly, I do not award any points in respect of the residual pain and discomfort arising from Ms Bradley’s operations as this condition has not been appropriately investigated and treated.

    (ii) Urinary incontinence

16. I now turn to Ms Bradley’s urinary incontinence.  The evidence leads me to conclude that the medical cause of her incontinence has not been properly investigated and established.  Before the SSAT, the conclusion was drawn at paragraph [32] that there was insufficient medical information to determine the question.  I agree in that conclusion, basing myself on the evidence adduced before me today.

17. Following her operations for cancer, Ms Bradley did not report at any of her follow-up appointments any difficulties with incontinence.  Dr Reid saw Ms Bradley in October 2014 as I have said, and on that occasion Ms Bradley referred to the incontinence appearing some 2 to 4 years earlier, which would place the initial episode of incontinence in 2010 at the earliest and quite possibly later.  It is clear from the SSAT’s decision at paragraph [10] that the issue of incontinence only emerged in the course of the hearing in May 2014 as a result of a social worker’s report that alluded to the issue.  Ms Bradley was advised by the presiding member to seek and obtain a letter from her treating GP.  This was provided to the SSAT.  It is dated 15 May 2014 and confirms urinary incontinence in the following terms:

    “I wish to confirm that the above person attends this clinic and sees me for her medical conditions. I can confirm that Louise suffers from marked urinary incontinence, which impedes her daily life significantly due to urge and stress incontinence. The cause of this is most likely multifactorial: haveing (sic) had 3 x vaginal deliveries, with tears, as well is surgery for VIN and post menopausal.”[1]

    [1] “T” documents: T16 at p.161.

18. I am unable to accept this statement from the treating GP.  It seems to me that the underlying causes of the urinary incontinence are not known and have not been investigated by appropriately qualified specialists.  I am unable to conclude that the incontinence is a part consequence of the operations to which the GP refers or of any other factor referred to.  The SSAT was prepared to award points under Table 10 in respect of this condition.  In my opinion, however, it is clear the cause of the urinary incontinence has not been appropriately considered by a qualified specialist (as the SSAT itself concluded). 

19. Certainly, any link between the incontinence and the operations has not been established to my satisfaction given the absence of this medical opinion; nor am I able to draw a conclusion from the sequence of events[2] that the cancer operations were a likely cause of the incontinence since there appears to be a distinct break between the end of the operations (and recovery phase) and the first appearance of incontinence. 

    [2] Assuming that this were an appropriate reasoning process.

20. In my opinion, the condition of urinary incontinence has not been fully diagnosed and the best way to manage the condition has not been determined.  I am unable to conclude on the evidence before me that no appropriate therapeutic regime or treatment would assist Ms Bradley.  In the circumstances, I do not believe any points can be awarded in respect of it.

21. It follows from these conclusions that Ms Bradley was not eligible to be awarded 20 points in respect of those medical conditions which I may consider.  She is ineligible to receive a pension.

22. I have considerable sympathy for Ms Bradley, and I wish to say that expressly.  The circumstances more generally of her life indicate to me an unfortunate degree of social isolation and a lack of meaningful interaction with others.  But I am quite clear in my mind that the statutory and regulatory preconditions for the award of a pension have not been satisfied in this case.  I would encourage Ms Bradley to seek appropriate medical advice as to the proper management of her pain, discomfort, and urinary incontinence without fear or embarrassment.

    FORMAL ORDER

23. My formal order will be to set aside the decision of the SSAT and substitute a decision affirming the decision of the authorised review officer.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

......................[Sgd]..................................................

Administrative Assistant

Dated 28 November 2016

Date(s) of hearing	15 & 22 April, 7 October 2016
Advocate for the Applicant	Mr A Parker
Solicitors for the Applicant	Dept of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc