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

[2016] AATA 852

Brady and Secretary, Department of Social Services (Social services second review) [2016] AATA 852 (28 October 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1457
Re	Debbie Brady
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri, Member
Date	28 October 2016
Place	Hobart

The decision under review is affirmed.

........................................................................

Ms S Taglieri, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and stabilised – whether impairments attract 20 points or more on Impairment Tables – emphysema – osteoarthritis - bursitis– not qualified for DSP – decision affirmed.

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security and other Legislation Amendment Act 2011

CASES

Celik and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 446

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

REASONS FOR DECISION

Ms S Taglieri, Member

28 October 2016

1. By application dated 18 March 2016, Ms Brady seeks review of a decision to reject her claim for disability support pension (“DSP”). The claim had been made to the Department on 29 September 2015 and rejected by the Respondent. Subsequently the Social Services and Child Support Division was invited to conduct a review of the Respondent’s decision and it affirmed it.

2. The ultimate issue to be determined is whether the decision to reject Ms Brady’s claim for DSP was the correct or preferable decision and that question is to be decided afresh. The Tribunal must consider whether within 13 weeks of the claim[1], Mrs Brady satisfied the qualification requirements prescribed by the Social Security Act 1991 (“the SSA”). It would only be warranted to set aside the decision being reviewed, if it so satisfied.

   [1] Sections 41 & 42 of the SSA and Schedule 2 of the Social Security (Administration) Act 1999

3. At the hearing conducted by the Tribunal, Ms Brady appeared self-represented and the Respondent was represented by Counsel.

   APPLICABLE LAW

4. After 1 January 2012, changes effected by the Social Security and other Legislation Amendment Act 2011 and the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the 2011 Determination”) apply to claims for DSP, including Ms Brady’s claim.

5. To qualify for DSP, Ms Brady needed to persuade the Tribunal relevantly that she:

   “(a) had a physical, intellectual or psychiatric impairment; and

   (b)  had an impairment equating to 20 points or more under the Impairment Tables  and Rules under section 26 of the SS Act as applied from 1 January 2012; and

   (c)  had a continuing inability to work (“CITW”) or be participating in a supported wage system administered by the Health Department, of which notice has been given to the Respondent; and

   (d)  was over the age of 16 years; and

   (e)  was an Australian resident”.[2]

   [2] Section 94(1)(a) to (e) of the Social Security Act 1991

6. It was apparent from the Respondent’s Statement of Facts, Issues and Contentions, that the Respondent conceded the qualification requirements noted at paragraphs (d) and (e) above but disputed those at (a) to (c). This positon was confirmed during the hearing by Counsel for the Respondent.

   EVIDENCE BEFORE THE TRIBUNAL

7. The Tribunal received T documents by consent, comprising of 90 pages. Ms Brady sought to rely upon a short report of Dr Stuart Lynch dated 24 March 2016 (“the March report”). Counsel for the Respondent objected to the report’s admission on grounds that it was irrelevant, having been prepared well after the 13 week qualification period. Despite this, the report refers to examination on 30 September 2015 and a condition of Emphysema assessed at the time. As the report includes Dr Lynch’s opinion as to Ms Brady’s condition within the qualification period, it is considered relevant.

8. The extent to which the March report assists the Tribunal given its limited content and in the absence of Dr Lynch being called will affect its weight. However, it is not inadmissible and the Tribunal received it into evidence.[3]

   [3] Page 3 of T documents (T1)

9. Ms Brady also sought to rely upon a document entitled “Disability Support Pension Medical Appeals Factsheet”[4] which she said had been marked up by Dr Lynch “about 3 months” previously. Ms Brady’s purpose in relying on the document was unclear. On questioning from the Tribunal, she stated that it was Dr Lynch’s assessment of the impairment points that were attributable to her conditions of Emphysema and osteoarthritis, and that it ought to persuade the Tribunal that she suffered from impairment equating to 20 impairment points.

   [4] Exhibit A1

10. Counsel for the Respondent objected to the document’s admission into evidence on similar grounds to the objections relating to the March report. The ultimate question of whether Ms Brady satisfied the qualification criteria is for the Tribunal. Expert medical opinion may assist the Tribunal in determining the question, but it can never replace the Tribunal’s function. Further, because Dr Lynch was not called to express his views and explain the markings up and the meaning of them on the document, it does not constitute expert medical opinion. Nevertheless, as the Tribunal is not bound by the rules of evidence, it received the document but only as a document which had been marked up by Dr Lynch referring to conditions of Emphysema and osteoarthritis and which was given by him to Ms Brady.

11. The Tribunal also received a referral letter from Dr Lynch to Dr Bishop relating to Ms Brady dated 22 January 2016.[5] Counsel for the Respondent relied upon this to demonstrate that Dr Lynch had stated that the condition of Emphysema from which Ms Brady suffered was “mild”.

    [5] Exhibit R1

    CONSIDERATION OF ISSUES AND CONTENTIONS

12. Ms Brady argued that on account of her suffering from Emphysema and osteoarthritis/bursitis of the hips, she suffered impairments that warranted assignment of 20 impairment points. She conceded that the condition of Depression had only arisen recently and had not been diagnosed within 13 weeks of her claim for DSP.[6]

    [6] Page 2 of T documents (T1)

13. Ms Brady’s arguments were general and to the effect that based on her self-reported symptoms and the views of Dr Lynch, she ought to receive DSP.

14. The Respondent argued that the evidence failed to establish that Ms Brady suffered from medical conditions that were fully diagnosed, treated and stabilised as required by the 2011 Determination.[7] Consequently, no impairment points could be assigned for either Emphysema or osteoarthritis/bursitis of the hips.

    [7] As required by Rule 6(4), 6(5) and 6(6) of the 2011 Determination

15. Further, the Respondent contended that even if impairment points should be assigned for the medical conditions, Ms Brady still did not qualify for DSP because she had failed to demonstrate that she had continuing inability to work[8].

    [8] As required by section 94(2) of the SSA

16. In relation to the condition of Emphysema from which Ms Brady suffers, the Tribunal is satisfied that the condition has been diagnosed by Dr Lynch and confirmed by radiology.[9] It is also satisfied that the Emphysema is fully treated and stabilised.  The effect of Dr Lynch’s views which are not contradicted is that treatment available is management with medications and they are being utilised for symptoms but will not improve function. Rather, ability to function is expected to deteriorate notwithstanding compliance with use of medications which have continued to be utilised.[10]

    [9]Pages 50 and 70 of T documents (T8 and T 13)

    [10]Page 72 of T documents (T13) and  Exhibit A1

17. Although there had been referral to a respiratory specialist, Dr Mestitz, after diagnosis in September 2015, Ms Brady stated at the hearing that no change in treatment was initiated  or suggested thereafter. She was not challenged about this and the Tribunal accepts that to be the case. The Tribunal also accepts that Ms Brady has cut back on smoking as noted in the report of the Job Capacity Assessor.[11]

    [11] Page 60 of T documents (T10)

18. Counsel for the Respondent submits that the brief duration for which there has been treatment within the 13 week qualification period necessarily means the condition is not fully treated and stabilised. At the time of the Job Capacity Assessment in October 2015, the condition of Emphysema was considered not fully treated or stable.

19. However, there is no evidence that Ms Brady has refused treatment, or that there is any particular treatment available that may cause functional improvement. The evidence is to the contrary, because Dr Lynch opines there will be functional deterioration.[12]

    [12] Page 72 of T documents (T13)

20. Taking into account the provisions of the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension forming part of the 2011 Determination and the available evidence, the Tribunal is persuaded that Ms Brady’s condition of Emphysema should be regarded as fully diagnosed, treated and stabilised within the qualification period. It is satisfied that it is appropriate to assign impairment points under Table 1 of the Impairment Tables contained in the 2011 Determination.

21. Accepting Dr Lynch’s medical evidence about Ms Brady’s condition of osteoarthritis/bursitis of the hips[13], the Tribunal accepts that the condition is fully diagnosed, treated and stabilised. There is radiological evidence confirming the diagnosis and treatment with medication is managing symptoms. No further treatment is identified for the condition and Dr Lynch opines deterioration in functional impact.  I am satisfied that the osteoarthritis of the hip is a permanent condition and ought be considered under Table 3 of the Impairment Tables contained in the 2011 Determination.

    [13] Page 75 of T documents (T13)

22. In regard to both medical conditions referred to above, the evidence before the Tribunal is far removed from the line of authorities such as Celik and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs[14], where a claimant refuses treatment.

    [14][2013] AATA 446

23. Further, having regard to the approach required as stated in Fanning and Secretary, Department of Social Services[15], the totality of the evidence including that of the treatment undertaken and likely to reasonably occur, establishes that there is unlikely to be significant functional improvement, notwithstanding the relatively short period in which treatment has been undertaken.  In my view, the short duration of treatment per se does not alone determine whether a condition can be said to be “fully treated and stabilised”.

    [15] [2014] AATA 447 at paragraph 33

24. The evidence about the functional impacts of the conditions from which Ms Brady suffers is very scant.  The reports of Dr Lynch refer to “shortness of breath, tired” and “easily gets chest infections” in so far as the condition of Emphysema is concerned[16]. Relating to the osteoarthritis of the hips, he merely states there is “pain on walking and limited capacity to walk,” and “pain in both hips with painful movement, pain to work as a cleaner.”[17]

    [16] Pages 51 and 71 T documents (T8 and T13), Exhibit A1

    [17] Pages 54 and 74 of T documents (T8 and T13)

25. Statements made by Ms Brady to Dr Lynch are the likely source of the information referred to in the preceding paragraph. The functional impact in regard to the osteoarthritis is that pain impacts on movement. Ms Brady stated at the hearing that pain in the hips causes restricted ability to sit, but this is not referenced in Dr Lynch’s reports.

26. Pain related to the condition of osteoarthritis of the hips is relevant to the assessment of permanent impairment where it causes functional impact in the lower limbs. The Tribunal is entitled to have regard to the Guidelines issued by the Respondent in relation to the Tables forming part of the 2011 Determination.[18]  Pages 17 to 19 inclusive of the Guidelines have been taken into account for determining Ms Brady’s permanent impairment.   

    [18] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

27. With regard to the condition of Emphysema, the Tribunal finds that there is permanent impairment equating to mild functional impact, being 5 points as assessed under Table 1 of the 2011 Determination. The Tribunal is guided by section 3.6.3.10 of the Guidelines and has taken into account the very limited evidence available about the effect of symptoms Ms Brady experiences, being shortness of breath and fatigue. The description of the impact of the symptoms is accepted as mild given the initial views of Dr Lynch which are preferred over the content of the March 2016 report. There is insufficient evidence with appropriate corroboration to be persuaded that the functional impact is any greater.

28. The reports of Dr Lynch mention two diagnoses for the hips, osteoarthritis and bursitis. As they cause common functional impact, they ought not to be separately assessed under Table 3 if they are actually separate diagnoses, which is not entirely clear. There is effectively no evidence about the functional impact of the conditions on the lower limbs. Dr Lynch states it to be soreness on walking, painful movement and limited ability to work as a cleaner[19].  Although this corroborates what Ms Brady told the Job Capacity Assessor, it provides no guidance to the Tribunal in assessing whether impairment points ought to be assigned under Table 3. 

    [19] Pages 54 and 74 of the T documents (T8 and T13)

29. Ms Brady gave evidence at the hearing that the painful hips impacted on her ability to sit for more than 10 to 15 minutes, but this is uncorroborated and does not persuade the Tribunal that any impairment points are warranted under the 2011 Determination.

30. Although the Tribunal is satisfied that osteoarthritis of the hips is a permanent medical condition, it is not satisfied that it caused functional impact and so no impairment points are applicable for this condition.

    CONCLUSION

31. Ms Brady does suffer permanent impairment on account of Emphysema, but only 5 points are applicable under the Tables contained in the 2011 Determination. As such, the qualification requirement referred to at paragraph 5(b) of these reasons is not satisfied. Accordingly the decision to reject Ms Brady’s claim for DSP is the correct one.

32. Given this conclusion, it is unnecessary to further consider whether Ms Brady satisfied the other qualification requirements of section 94 of the SSA.

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member

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Administrative Assistant - Legal

Dated October 2016

Date(s) of hearing	6 October 2016
Applicant	In person
Counsel for the Respondent	Brian Sparkes