Campara and Secretary, Department of Social Services (Social services second review) - [2019] AATA 3571

Campara and Secretary, Department of Social Services (Social services second review) [2019] AATA 3571 (17 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1679
Re:Jiulio Campara
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:17 September 2019
Place:Sydney

The reviewable decision is affirmed.
.............................[SGD]...........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification criteria – residency requirements – Applicant resided in Italy during qualification period – Applicant deemed as Australian resident under Italian Agreement – whether Applicant has physical, intellectual or psychiatric impairment – Applicant suffers from myocardial infarction and hypertension, fibromyalgia and obstructive sleep apnoea – whether impairments attract a rating of at least 20 points under the Impairment Tables – myocardial infarction and hypertension fully diagnosed, treated and stabilised – applicant able to walk around a shopping centre or supermarket without assistance, walk from carpark into a shopping centre or supermarket without assistance, use public transport without assistance and perform light day to day household activities – myocardial infarction and hypertension attracts a rating of 10 points under Table 1 – fibromyalgia diagnosed but not fully treated and stabilised – applicant has not undertaken reasonable treatment for fibromyalgia – no rating can be assigned for fibromyalgia – sleep apnoea diagnosed, not fully treated and stabilised – applicant has not taken reasonable treatment for sleep apnoea – no rating can be assigned for sleep apnoea - Applicant is not severely disabled as defined by s 23(4B) of the Social Security Act 1991 – reviewable decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) s 29
Social Security (International Agreements) Act 1999 (Cth) Sch 2
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 ss 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 8(1), 11(1)(c), Table 1
Social Security Act 1991 (Cth) ss 23(4B), 94(1)(a), 94(1)(b), 94(1)(ea)
CASES
Nelson and Secretary, Department of Social Services [2016] AATA 721
Spry and Secretary, Department of Social Services and Anor [2014] AATA 722
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Agreement on Social Security between Australia and the Republic of Italy Art 1(f)
Guide to Social Security Law Instruction 3.6.3.10
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
17 September 2019
The reviewable decision

Mr Campara, an Australian citizen, has mainly resided in Italy since 2012. He lodged a claim for the Disability Support Pension (DSP) on 28 July 2016 when he was 63 years of age. It was rejected on 3 March 2017. An Authorised Review Officer (ARO) affirmed that decision on 25 July 2017. On 7 March 2018, the Social Services and Child Support Division of this Tribunal (AAT1) affirmed the ARO’s decision. This Tribunal is reviewing the decision of AAT1.
Issues
Mr Campara must satisfy the qualification criteria for DSP at the date he lodged his DSP claim or within 13 weeks of that date, that is within the period 28 July 2016 to 27 October 2016 (the qualification period).
The qualification criteria that Mr Campara must meet are that he:
·Satisfied the residency requirements or was otherwise entitled to DSP under an international agreement; and
·Had a physical, intellectual or psychiatric impairment, and, if so,
·That impairment or impairments, attract an impairment rating of at least 20 points; and
·Has a continuing inability to work.
The regulatory scheme
The regulatory scheme is set out in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act), the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Government policy is set out in the Guide to Social Security Law (the Guide).
Residential requirements
Mr Campara did not dispute that he was a resident of Italy during the qualification period and was not an Australian resident in Australia, which is the usual circumstance of an applicant for DSP.[1] He therefore relies on Schedule 2 of the International Agreements Act. On 23 April 1986, Australia and Italy entered into the Agreement on Social Security Between Australia and the Republic of Italy (the Italian agreement).
[1] See s 29 of the Administration Act; s 94(1)(ea) of the Act.
In summary the Italian Agreement deems a person who has been an Australian resident who is in Italy, to be an Australian resident and in Australia, thus permitting the person to lodge a claim for DSP. Mr Campara meets the residential requirement.
However, in order to be granted DSP under the Italian Agreement, Mr Campara must be able to demonstrate that he is ‘severely disabled’ under the Act because Article 1(f) of the Italian Agreement provides:
Disability support pension – means, in relation to Australia, the payment made under the legislation of Australia to people who are considered to be severely disabled under that legislation.
Meaning of severely disabled
Subsection 23(4B) of the Act provides that, for the purposes of the Act, a person is 'severely disabled' if:
(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 of all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b)the person is permanently blind.
The meaning of 'totally unable to work” in s 23(4B) of the Act is not expressly defined. The Tribunal will return to this issue after considering whether he meets the other qualification criteria for DSP.
Does Mr Campara have a physical, intellectual or psychiatric impairment?
The Secretary, Department of Social Services (the Secretary) accepts that Mr Campara satisfies the requirement that he has physical, intellectual or psychiatric impairments during the qualification period pursuant to s 94(1)(a) of the Act.
Impairment rating of 20 points or more
Section 94(1)(b) of the Act requires that a person’s impairment or impairments attract 20 points or more under the Impairment Tables which provide that:
·a person's impairment is to be assessed on the basis of what the person can, or could do, rather than on the basis of what the person chooses to do or what others do for the person (subsection 6(1));
·an impairment rating can only be assigned if a condition causing that impairment is 'permanent' and likely to persist for more than two years (subsection 6(3));
·a 'permanent condition' is one that is fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised and likely to persist for more than 2 years (subsection 6(4));
·when determining whether a condition is fully diagnosed and treated, a decision maker must consider the following:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next 2 years
(subsection 6(5)).
·a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition and either:
(i) significant functional improvement to a level enabling the person to undertake work in the next two 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.
(subsection 6(6))
·'Reasonable treatment' means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
(subsection 6(7)).
·If a condition is found to be permanent, symptoms reported by a person can only be taken into account where there is corroborating evidence (subsection 8(1)).
·if an impairment falls between two impairment ratings, the lower rating is to be assigned and the higher rating must not be assigned unless all the required descriptors for that level of impairment are satisfied (subsection 11(1)(c)).
The evidence
The evidence before the Tribunal included:
·The documents provided by the Secretary pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “T” documents) which included correspondence from, and forms filled out by Mr Campara, many medical reports, including many in Italian. Translations were provided of some of those reports.
·Two reports dated 26 July 2018 and 24 August 2018 from Dr Howard, Mr Campara’s treating general practitioner in Australia from about 2002 until Mr Campara moved to Italy in 2012. Dr Howard then saw Mr Campara on few occasions and received some letters from him.
·Mr Campara’s oral evidence.
The conditions
It is accepted that Mr Campara suffers from three types of medical condition: myocardial infarction and hypertension, fibromyalgia, and obstructive sleep apnoea. Before dealing with each individually, it is useful to set out Mr Campara’s relevant responses to questions about his medical condition on 16 September 2016, during the qualification period and parts of a letter he wrote of the same date. They are the best contemporaneous records of his evidence.
Mr Campara provided the following responses to questions:
·Takes painkillers for his fibromyalgia, which he had to change after his heart attack.
·Had tests to see that he may have more blockages on 11 October 2016.
·Due to his fibromyalgia, which causes severe leg pain, he has difficulties often with standing, all the time with walking, all the time with climbing stairs, sometimes driving a car and using public transport.
·He cannot lift anything because he cannot force himself due to his heart attack and fibromyalgia his shoulders ache. He has difficulty often picking up and handling objects, all the time lifting and carrying, often bending and operating every day appliances or machinery.
·He often has difficulties concentrating. He does not sleep well because of his sleep apnoea and is always tired and so cannot concentrate very long and has real trouble remembering things since his heart attack. He sometimes has difficulties interacting with others, often attending work or other appointments and sometimes to understand or follow instructions.
·Due to medication and his heart attack he runs out of breath even when walking or talking for a while continuously. He has difficulties sleeping all the time, sometimes breathing, often caring for others, and no problem managing his personal affairs or caring for himself.
·In a workplace, his illnesses would often make it difficult for him to physically complete tasks.
·Is unable to work due to his health problems and will never be able to start part-time or full-time work or study.
·Has to have lots of rest because of his illnesses; without rest he cannot function at all.
In his letter dated 16 September 2016, Mr Campara provided the following additional information:
·Fibromyalgia caused constant pain all over, especially in his legs and back; he was constantly fatigued. He keeps the pain under reasonable control using medication.
·Sleep apnoea causes him to be constantly exhausted and so all he does is rest.
·As a result of his heart attack, he cannot even walk for 50 metres without running out of breath; he has to rest every so often walking up steps.
Myocardial Infarction and Hypertension
The Secretary accepted that Mr Campara’s myocardial infarction and hypertension were fully diagnosed, treated and stabilised during the qualification period but contended that the impairments arising from these conditions attract an impairment rating of no more than 10 points under Table 1- Functions requiring Physical Exertion and Stamina (Table 1).
Translations of several reports from the Cardiology Department of the A. Pugliese Hospital, Catanzaro, show that Mr Campara suffered an acute myocardial infarction and had stents implanted on 29 February 2016. A report prepared by Dr Marco Vatrano concluded:
Effective angioplasty with drug-eluting stent on posterolateral branch. Final angiogram showed excellent result.
A translation of a report dated 20 June 2016, Dr Calabro (a medical consultant of the Italian National Pension Scheme) stated:
·Mr Campara’s main conditions were arterial hypertension (6 years) treated by medication and post-infarct ischemic cardiopathy.
·He ceased work on 1 December 2011.
·He is not capable of carrying out any work.
·He is capable of working at a screen and was autonomous in the exercise of his professional activity at home.
·Mr Campara’s previous job was as a tradesman - carpenter, and he can carry out his last full-time work, is capable of carrying out work adjusted to his condition, and is capable of carry out full-time work adjusted to his condition.[2]
·In accordance with the laws of his country of residence, his employment disability for his last work is partial; 67% disability.
·It was impossible to state whether his condition would improve or whether interventions such as rehabilitation or occupational retraining could improve his capacity to work.
[2] T16, p201-203
The inconsistencies in that report about Mr Campara’s capacity to work are obvious. The Tribunal gives little weight to that aspect of the report.
On 8 September 2016, Dr Genovese completed a Treating Doctor’s Report form which was printed in English and Italian. He completed it in Italian. The form included 148 questions. A translation of the answers to 12 questions was in evidence. Some of the answers in the form that were not translated were in the form of crosses in boxes and numerals which the Tribunal could understand. Dr Genovese has been treating Mr Campara since 19 March 2016. He reported that Mr Campara:
·Had suffered an acute anterolateral myocardial infarction with ST elevation which had been treated with angioplasty and medicated stents on the interventrical anterior branch and posterior lateral branch; arterial hypertension.
·After surgery to implant the stent, and following treatment with medication, is able to live a normal life.
·Suffers slight shortness of breath on exertion.
·Cannot carry out work activities which involve stress and physical exertion.
·Cannot complete physically active tasks around his home and community without difficulty.
·Can walk to local facilities.
·Cannot walk to local facilities without stopping to rest.
·Can walk from a carpark into a shopping centre without assistance.
·Can walk around a shopping centre without assistance.
·Cannot climb a flight of stairs.
·Can use public transport without assistance.
·Is physically capable of performing light household activities such as folding and putting away laundry.
·Can perform day to day household activities without difficulty such as changing sheets on a bed or sweeping paths.
·Can move around inside the home without assistance.
On 3 March 2017, after the qualification period, Dr Howard reported that Mr Campara is unable to work in any capacity due to his medical conditions.
On 7 March 2018, Mr Campara reported to the AAT1 that he could walk from the car park into the supermarket, could walk around the supermarket using a trolley for support, and could change the sheets on a bed.
On 26 July 2018, almost two years outside the qualification period, Dr Howard reported about Mr Campara:
·His symptoms, which are daily and of a severe nature, are a combination of his ischaemic heart disease, fibromyalgia and sleep apnoea.
·He gets very short of breath on minimal exertion; finds it difficult to walk up hills or stairs or do moderate activity for 10 minutes or more.
·He has reduced concentration, poor sleep and profound fatigue and on some days, has difficulty getting out of his house.
·Was unable to work in any capacity.
·Had a severe functional impact under Table 1 in relation to the combination of his cardiac and respiratory problems, and fibromyalgia.
Dr Howard noted that his comments related to appointments with Mr Campara throughout 2012, a visit in March 2015, another visit in February 2017, and the occasional letter that Mr Campara sent him.
On 24 August 2018, Dr Howard reported that the Mr Campara fits descriptor (1)(a)(i) of the 20 point rating in Table 1, that he is unable to walk around a shopping centre or supermarket without assistance.
The Secretary contends that "assistance" refers to assistance from another person and not from an object or physical aid. This is supported in the Guide at Instruction 3.6.3.10 which provides:
The 20- and 30-point ratings in Table 1 use the term 'assistance'. 'Assistance' means assistance from another person, rather than any aids or equipment the person has and usually uses.
The Secretary referred to the following AAT decisions where that interpretation of assistance has been adopted: Summers and Secretary, Department of Social Services [2014] AATA 165, and, specifically in relation to Table 1 in Spry and Secretary, Department of Social Services and Anor [2014] AATA 722 and Nelson and Secretary, Department of Social Services [2016] AATA 721.
Mr Campara told AAT1 on 7 March 2018 that when he made his claim in July 2016 he was slowly improving with medication after his heart attack, he became tired on walking and suffered shortness of breath on stairs, but no angina. He could walk from the carpark into the supermarket, walk around the supermarket using a trolley for support, and could change the sheets on a bed.
When asked about Dr Genovese’s answers before this Tribunal, Mr Campara said the following. He changed the sheets with his wife’s help. He knelt beside the bed and tucked in the sheets on his side. He went grocery shopping with his wife’s help. They parked in the disabled space five meters from the door, got a trolley which he held, and his wife held his arm. He was woken at about 2 or 3 am for the AAT1 hearing. He had fibromyalgia and his head was in a fuzz. He could not remember what happened that night.
Mr Campara said that Dr Genovese had not asked him one question, had just filled out the form, and returned it to him after two or three days. He did not agree with anything Dr Genovese had written. He did not agree that he had slight shortness of breath or that he could walk to local facilities. He said that he could walk to local facilities with his wife. In 2016 he could just walk around the house without his wife’s assistance and had seats everywhere. He could not walk around a shopping centre or catch public transport without assistance.

Mr Campara said that until 27 October 2016, he spent most of his time in bed resting. He would get up for a little breakfast. His wife stood nearby while he showered to make sure he did not fall over if he became dizzy. He dressed sitting on the bed. He did no chores. He does no laundry. He is able to catch public transport with his wife holding his arm. Walking around the house is a struggle. She is attached to him anywhere he walks. Once every six months he travels by bus 100 kilometres to go to the hospital where he was operated on. It takes a full day. He could do little work in late 2011 because of his fibromyalgia. He has been unable to do any work at all and is even worse since his heart attack. He loved his cabinet making and joinery. He cannot do anything, which frustrates him to death. He worked from age 14. In February 2017 he and his wife returned to Australia because of a family emergency, they caught a long distance bus, which was very comfortable, from where they live to Rome, crossed the road and caught the train to the airport which took 30 minutes. The bus ride took eight hours. His wife held his arm as they walked through the airport. He had no strength because of his heart attack and the pain in his legs from fibromyalgia was unbelievable. His blood pressure can drop. He had to sit down and perhaps take medication.
The most reliable evidence is contemporaneous evidence. Mr Campara’s evidence to AAT1 was 17 months after the qualification period. The hearing in this Tribunal was two and a half years after the qualification period. His evidence has changed. Dr Howard’s evidence was about two years after the qualification period. He had not been Mr Campara’s treating doctor during the qualification period, and since 2012 had seen Mr Campara in March 2015 and February 2017, and received the “occasional letter”. The Tribunal prefers Dr Genovese’s assessment in 2016 as Mr Campara’s treating doctor during the qualification period.
It follows that there was a moderate functional impact on activities requiring physical exertion or stamina in accordance with Table 1 – Functions requiring Physical Exertion and Stamina and accordingly 10 points is the appropriate rating.
Mr Campara does not satisfy the severe functional impact criteria for which a rating of 20 points would be given, because during the qualification period he was able to walk around a shopping centre or supermarket without assistance, and walk from the carpark into a shopping centre or supermarket without assistance and use public transport without assistance and perform light day to day household activities.
Fibromyalgia
The Secretary accepts the Applicant's fibromyalgia was fully diagnosed but contends it was not fully treated and stabilised during the qualification period.
The diagnosis was made by Dr Wenman, consultant physician in gastroenterology and internal medicine, at the end of 2011 beginning of 2012. Mr Campara said that he last saw Dr Wenman a week before he moved to Italy on 26 January 2012. There were three medical reports from Dr Wenman in evidence, dated 3 November 2011, 29 November 2011 and 13 January 2012.
In the 3 November 2011 report, Dr Wenman stated that Mr Campara’s predominant symptom was severe fatigue and ongoing moderate stress which was a result of both fibromyalgia and sleep apnoea. The predominant finding on examination was moderate tenderness over both sacroiliac joints.
Dr Wenman wrote:
I strongly suspect that this man suffers from obstructive sleep apnoea and fibromyalgia syndrome he may have ankylosing spondylitis and at this stage the likely cause of the elevated ferritin is related to fatty liver disease.
In his 29 November report, Dr Wenman’s opinion was that Mr Campara not only had fibromyalgia but may have gero-negative arthritis as well and issued a trial of therapy with Plaquenil, with review in January 2012. On review, Dr Wenman reported:
All of his autoimmune studies have returned with normal results except his CPK level is 691. This may indicate an underlying polymyositis. I have therefore repeated the tests to check if its persistently raised if so then further investigations such as EMG + muscle biopsy may be required.
Mr Campara said that he did not have the test for polymyositis and has not “gone down that line”. He takes medication for the fibromyalgia, depending on the pain. The only treatment is pain control and rest and whatever exercise he can do.
The investigations Dr Wenman recommended were for a condition other than fibromyalgia. He had diagnosed fibromyalgia.
The reports from doctors in Italy do not refer to fibromyalgia. In a letter dated 18 September 2017, Mr Campara stated that Dr Genovese prescribes his pain killer for fibromyalgia, Tachidol, which contain 500 mg paracetamol and 30 mg codeine and did not mention it in his report because he thought the heart attack would have been sufficient to qualify for DSP.
On 21 September 2012, Dr Howard reported in a “Treating Doctor’s Statement for Total and Permanent Disability” that Mr Campara’s past and present treatment for fibromyalgia was rest, gentle exercise and the exclusion of other conditions. He noted that Mr Campara was responding to treatment slowly and the condition was likely to persist for years.
On 26 July 2018 Dr Howard reported that he had not seen Mr Campara much since 2012, and could not comment on what treatment he had undertaken in Italy or elsewhere. He noted that usual treatment for fibromyalgia includes physiotherapy, analgesia and lifestyle modification. Dr Howard reported that best results for treatment of fibromyalgia are expected from physiotherapy and occupational therapy. He noted that while the condition is life-long, some improvement of a mild to moderate nature could be expected.
Mr Campara told the Tribunal that he was in constant email and telephone contact with Dr Howard who would keep check and control his fibromyalgia. The Tribunal understood Mr Campara to say that he sent blood tests to Dr Howard. That is not consistent with Dr Howard’s reports.
When asked about Dr Howard’s opinion that the best treatment would include physiotherapy, Mr Campara said that is not available where he lives and he has no money to pay for it. His wife massages him as often as she can, and while she was in Australia, his son and a friend do the massage. Later, he said that he has a friend who is a masseur who comes. When asked about occupational therapy for fibromyalgia, Mr Campara said they do not have that in Italy.
There was no suggestion in the evidence that Mr Campara had used massage as a form of treatment until he was questioned about physiotherapy during the hearing. His evidence that physiotherapy and occupational therapy were unavailable to him was unconvincing and uncorroborated. While he also said that he could not afford such treatment, the Tribunal is not persuaded that he has investigated such treatment. Taking into account Dr Howard’s evidence, the Tribunal finds that Mr Campara has not undertaken reasonable treatment for fibromyalgia. It has not been fully treated and stabilized and accordingly, no rating can be assessed under the Impairment Tables.
Sleep apnoea
The Secretary accepts the Applicant's sleep apnoea was fully diagnosed, but contends there is insufficient evidence to consider it fully treated and stabilised during the qualification period.
On 29 November 2011, Dr Wenman reported that Mr Campara’s predominant symptom is severe fatigue and ongoing moderate severe stress and there is chronic insomnia. He reported that the Mr Campara’s sleep study was very abnormal and he was waiting for assessment by Dr Williams for a Continuous Positive Airway Pressure (CPAP) trial. On 18 January 2012, Dr Wenman reported that Mr Campara was currently having a CPAP trial.
Mr Campara told the Tribunal that he did not have $2,500 to buy a sleep apnoea machine and has not seen a doctor about sleep apnoea since the trial. He has had no other treatment for sleep apnoea.
While the Tribunal accepts that Mr Campara may have run out of money after a few years in Italy, it does not accept that he could not afford a sleep apnoea machine when he had the trial in early 2012. He seems to have chosen not to do anything about it. Given the impact the condition has on his functioning, that is apparent from Dr Wenman’s and Dr Howard’s reports, as well as his own evidence, seeking treatment may be very beneficial to him.
Mr Campara has not undertaken reasonable treatment for sleep apnoea.
The Tribunal concludes that sleep apnoea has not been fully treated and stabilised. No rating can be given to sleep apnoea.
Conclusion
Mr Campara’s impairments during qualification period attract a total impairment rating of 10 points. He does not satisfy s 94(1)(b) of the Act, which requires a rating of 20 points. He does not qualify for DSP. Given the Tribunal’s findings, Mr Campara cannot be considered to be severely disabled for the purposes of the Italian Agreement.
Decision
The reviewable decision is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[SGD]........................................
Associate
Dated: 17 September 2019

Date(s) of hearing: 18 March 2019

Applicant: By telephone

Solicitors for the Respondent: Ms E Ulrick, Department of Human Services

Date(s) of hearing:	18 March 2019
Applicant:	By telephone
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services