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

Carmody and Secretary, Department of Social Services (Social services second review) [2015] AATA 1011 (23 December 2015)

Division

GENERAL DIVISION

File Number(s)

2014/5944

Re

Robert Carmody

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Dr T Nicoletti, Senior Member

Date 23 December 2015

Place Sydney
The decision under review is affirmed.

...............................[sgd].........................................
Dr T Nicoletti, Senior Member
CATCHWORDS
Social Security – Disability Support Pension – whether applicant was eligible to receive DSP during claim period – whether applicant has 20 points under the impairment tables – whether applicant has a continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991 s 94

Social Security (Administration) Act s 13, schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr T Nicoletti, Senior Member
23 December 2015
FACTS

On 24 April 2014, Mr Carmody lodged a claim for DSP based on the following medical conditions:
·lower back pain;
·fluid retention to both legs;
·arthritis to the knees;
·shortness of breath;
·haemachromatosis; and
·hernia.
On 20 May 2014, a job capacity assessment was conducted. The job capacity assessor (JCA) found that Mr Carmody’s hypertension was fully diagnosed, treated and stabilised, and attracted 5 impairment points under Table 1 - Functions requiring physical exertion and stamina.
However, the JCA found that Mr Carmody’s haemochromatosis, depression, chronic obstructive pulmonary/airways disease (COPD/COAD) and diabetes were not fully diagnosed, treated and stabilised as at the date the claim was lodged, or when the JCA was conducted. Mr Carmody was also assessed as having a baseline work capacity of 0- 7 hours per week, increasing to 15- 22 hours per week within two years with intervention.
On 13 June 2014, the Department of Human Services (Department) decided that Mr Carmody did not qualify for DSP.
On 25 June 2014, Mr Carmody requested a review of the Department’s decision.
On 24 July 2014, the Authorised Review Officer (ARO) affirmed the Department’s decision.
On 1 August 2014, Mr Carmody applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision.
On 14 October 2014, the SSAT affirmed the decision of the ARO. Notably, whilst the SSAT agreed with the JCA’s finding that Mr Carmody’s hypertension was fully diagnosed, treated and stabilised, it disagreed that the condition attracts an impairment rating of 5, and instead determined that the correct impairment rating was nil.
The SSAT also disagreed with the JCA regarding Mr Carmody’s COPD/COAD, determining that it was fully diagnosed, treated and stabilised and attracted 10 impairment points on Table 1 of the Impairment Tables.
The SSAT also determined that Mr Carmody’s:
a)depression could not be assigned an impairment rating because its diagnosis had not been confirmed by a psychiatrist or clinical psychologist; and
b)haemochromatosis and diabetes mellitus were not fully treated, diagnosed or stabilised.
On 17 November 2014, Mr Carmody applied to this Tribunal for review of the SSAT’s decision.
LEGISLATION
The legislation applicable to this matter is contained within:
·the Social Security 1991 Act (Act);
·the Social Security (Administration) Act 1999 (Administration Act);
·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables); and
·the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Determination).
Section 13(1) of the Administration Act provides:
(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
Schedule 2, subclause 4(1) of the Administration Act provides:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Section 94(1) of the Act sets out the criteria for qualification for DSP and provides, relevantly:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…….
The Impairment Tables contain 'Part 2 - Rules for applying the Impairment Tables' which must be satisfied before an impairment rating can be assigned.
Paragraph 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent.
Paragraph 6(4) of the Impairment Tables specifically defines the word “permanent” for the purposes of paragraph 6(3) and provides that a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner;
·has been fully treated;
·has been fully stabilised; and
·is more likely than not, in light of available evidence, to persist for more than 2 years.
Paragraph 6(5) of the Impairment Tables provides that in determining whether a condition is fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b), the following must be considered:
(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.
Paragraph 6(6) of the Impairment Tables provides that a condition is fully stabilised if either:
(a) the person has undertaken reasonable treatment tor 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) if the person has not undertaken reasonable treatment tor the condition:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment, or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of paragraph 6(6), “reasonable treatment” is defined in paragraph 6(7), as follows:
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
ISSUES
The Tribunal is required to decide whether on 24 April 2014, the date of claim, or within 13 weeks of that date, Mr Carmody met the qualification criteria for disability support pension and in particular, whether:
·he had a permanent physical, intellectual or psychiatric impairment,
·his impairment attracted an impairment rating of at least 20 points under the Impairment Tables; and, if so,
·he had a continuing inability to work for 15 or more hours a week.
CONSIDERATION
The Respondent contends that during the relevant claim period, Mr Carmody did not qualify for DSP.
In support of his application to the Tribunal, Mr Carmody provided:
a)a letter from himself;
b)a letter from his general practitioner, Dr Clahane, dated 16 January 2015; and
c)clinical notes from Dr Clahane dated 30 January 2015 and photographs.
This information was provided to a JCA, who conducted a file assessment on 10 March 2015 (JCA file assessment).
The JCA file assessment determined that:
a)the medical condition of hypertension was fully diagnosed, treated and stabilised, but did not attract any impairment points under Table 1;
b)the medical condition of COPD/COAD was fully diagnosed, treated and stabilised, and attracted 10 impairment points under Table 1;
c)the medical conditions of haemochromatosis, depression, diabetes, ischaemic heart disease and alcohol dependence were not fully diagnosed, treated and stabilised; and
d)Mr Carmody was found to have a baseline work capacity of 8 to 14 hours per week, increasing to 15 to 22 hours per week within two years with intervention.
On 14 April 2015, Mr Carmody lodged further medical evidence, comprising:
a)a letter from Dr Kim Nolan dated 24 February 2015; and
b)a medical certificate of Dr Clahane dated 27 March 2015.
The Respondent concedes that at the time the claim was made, Mr Carmody suffered from hypertension, COPD/COAD, depression, haemochromatosis, diabetes, ischaemic heart disease and alcohol dependence, and he therefore satisfies paragraph 94(1)(a) of the Act.
The Respondent accepts that Mr Carmody’s:
a)hypertension was fully diagnosed, treated and stabilised, but attracted an impairment rating of nil under Table 1; and
b)COPD/COAD was fully diagnosed, treated and stabilised, and attracted 10 impairment points under Table 1.
However, the Respondent contends that the conditions of depression, haemochromatosis, diabetes, ischaemic heart disease and alcohol dependence were not fully diagnosed, treated and stabilised during the claim period, and therefore cannot be assigned an impairment rating.
Hypertension
The Respondent contends that Mr Carmody’s hypertension did not cause him any functional impairment. The symptoms recorded in Dr Clahane’s medical reports dated 17 April 2014, 8 May 2014 and 1 August 2014 which can be attributed to hypertension are:
·reduced concentration;
·occasional migraines; and
·allied vascular headaches.
The JCA report dated 6 June 2014 stated that Mr Carmody’s hypertension:
a mild functional impact on activities requiring physical exertion as he experiences occasional symptoms (headaches) when performing physically demanding activities however has been able to maintain most work and domestic activities.
However, the SSAT found that there was no adverse functional impact on activities involving physical exertion from Mr Carmody’s hypertension.
The Respondent contends that there is no evidence that Mr Carmody’s condition would have any functional impact on his ability to:
·undertake exercise appropriate to his age for at least 30 minutes at a time, and
·complete tasks that require some physical activity.
Further there does not appear to be any evidence of a functional impairment that would warrant assigning an impairment rating of 5, 10 or 20 points under Table 1.
I am therefore satisfied that although Mr Carmody’s hypertension may have been fully diagnosed, treated and stabilised, it does not attract an impairment rating under Table 1 of the Impairment Tables.
Chronic Obstructive Pulmonary/Airways Disease (COPD/COAD)
The Respondent contends that Mr Carmody’s COPD/COAD results in a moderate functional impairment.
Dr Clahane’s medical report dated 8 May 2014 stated that the condition was generally well managed and caused minimal or limited impact on Mr Carmody’s ability to function.
The JCA report dated 6 June 2014 found that the condition was not fully diagnosed, treated and stabilised “due to minimal details about diagnosis, treatment (current or recommended) no clear details for prognosis and treating doctor indicating in the medical report minimal impact”.
The medical report of Dr Clahane of 18 September 2014 stated that the date of onset of the condition was 18 September 2005, and the date of diagnosis was 6 July 2009. The report noted the symptoms as: 'progressive dyspnoea aggravated by physical exertion, note, this patient is a builder by profession', and stated that the condition was likely to deteriorate in the next two years.
At the SSAT hearing, Mr Carmody stated that because of his COPD/COAD:
·he experiences breathing difficulties and is required to stop and rest when walking any distance, such as to his letterbox, taking the garbage bins out or grocery shopping’
·he is unable to mow the lawn for more than a few minutes at a time; and
·he is unable to clean or vacuum his home.
On the basis of this evidence, the SSAT determined that Mr Carmody’s COPD/COAD resulted in a moderate functional impairment. The JCA file review agreed with this conclusion and noted that:
“…the customer has indicated that he is able to walk without physical assistance with time to stop and rest, can perform self care activities, used public transport without assistance and perform light household tasks if he takes time to rest so he therefore does not meet the criteria for a 20 point rating.”
The Respondent accepts that this evidence demonstrates that Mr Carmody’s condition was correctly assessed by the SSAT as attracting 10 points under Table 1. The Respondent further contends that there is no evidence that the condition satisfied the criteria for a severe impairment under Table 1, which requires that during the claim period, Mr Carmody was unable to walk around a shopping centre without the assistance of another person; or walk from the carpark into the shopping centre without the assistance of another person; or use public transport without assistance; or perform light day-to-day household activities.
Based on the medical evidence, I am satisfied that Mr Carmody’s COPD/COAD was fully diagnosed, treated and stabilised during the claim period, and attracts an impairment rating of 10 under Table 1 of the Impairment Tables.
Depression
The Respondent contended that Mr Carmody’s depression was not fully diagnosed, treated and stabilised.
In his medical report dated 8 May 2014, Dr Clahane noted that Mr Carmody suffered from “Acute and Chronic Depression” and commenced treatment, counselling and psychotherapy in 2012. He stated that the condition affected Mr Carmody’s “concentration and interpersonal relationships”.
Dr Clahane's subsequent medical report dated 18 September 2014 recorded Mr Carmody’s depression as affecting his cognitive function, endurance and communication and noted that his treatment included counselling, medical monitoring and support. Dr Clehane stated that Mr Carmody’s depression:
“...has commenced, progressed, been treated and stabilised now. Depression was precipitated by progressive well documented multiple physical ailments which impacted heavily on work ability”.
A letter from Dr Clahane dated 16 January 2015 stated that the date of onset of Mr Carmody’s depression was 14 November 2012 and the date of diagnosis was 17 April 2014. The letter further stated that “the depression is most likely exacerbated and perpetuated by (a) chronic alcoholism up to 15 schooners daily (b) his overall chronic ill health”..
The letter also stated that Mr Carmody had not been referred to a specialist because there was no psychiatrist readily available in the Port Macquarie area for patients like Mr Carmody, and Mr Carmody could not afford to attend a clinical psychologist.
The JCA file review stated that Mr Carmody reported taking no medication and that his treatment was limited to monitoring by his general practitioner. According to the job capacity assessor, during the claim period, psychiatrists were in attendance at the hospital in Mr Carmody’s local area, and clinical psychologists practised in the area and accepted referrals from doctors under a mental health care plan.
The medical evidence indicates that Mr Carmody’s depression was not fully diagnosed, treated or stabilised during the claim period because:
·Mr Carmody did not consult a psychiatrist or clinical psychologist for diagnosis and treatment of his condition, as required under the Introduction to Table 5 of the Impairment Tables;
·there is no evidence that, apart from monitoring by his general practitioner, that Mr Carmody received treatment for the condition; and
·there was no assessment as to how the condition affected Mr Carmody’s ability to function.
On that basis, I conclude that Mr Carmody’s depression was not fully diagnosed, treated and stabilised, and I am therefore unable to assign an impairment rating under the Impairment Tables.
Haemachromatosis
The Respondent contends that Mr Carmody’ haemachromatosis was not fully diagnosed, treated and stabilised.
The job capacity assessment report stated that Mr Carmody’s haemochromatosis was a permanent condition that involved “multiple” treatments. The symptoms were reported as “general debilitation”.
The JCA concluded that the condition was fully diagnosed, but not fully treated or stabilised on the basis that there were “minimal medical details regarding treatment and prognosis”.
The SSAT did not consider the condition due to the “paucity of medical evidence”.
I am also unable to assess Mr Carmody’s haemachromatosis, and must conclude that the condition was not fully diagnosed, treated or stabilised during the claim period due to:
·the lack of medical evidence relating to treatment and prognosis;
·the lack of medical evidence as to how the condition impacted on Mr Carmody’s ability to function.
Ischaemic Heart Disease
The Respondent contends that Mr Carmody suffered from ischaemic heart disease which is not fully diagnosed, treated and stabilised.
This condition was not recorded in Mr Carmody’s claim for DSP.
The GP Management Plan prepared by Dr Crawford on 11 October 2010 stated that Mr Carmody was at higher risk of a “coronary event” and that risk reduction measures were discussed with Mr Carmody, “including diet, smoking cessation and lifestyle modification”.
The medical report of Dr Chris Alexopoulos, a cardiologist, dated 22 July 2011 confirmed the diagnosis ischaemic heart disease and concluded:
“The emphasis remains of course with lifestyle measures in particular with a view to smoking cessation and weight reduction. Mr Carmody also drinks alcohol in excess and I have emphasised the importance of cutting back on this too.”
The medical report also recorded medication to treat the condition, and noted that after a year Mr Carmody would cease the medication and continue “with aspirin long term”.
Dr Clahane reported in a letter dated 16 January 2015 that Mr Carmody 'underwent angioplasty x 2 and a stent implacement [sic] of the anterior descending artery in 2011'.
However, there is no evidence of the symptoms or functional impact of the condition during the claim period.

The SSAT concluded that the condition did not “at present interfere with Mr Carmody's ability to function” and did not consider the condition any further.
Based on the available medical evidence, whilst the condition appears to have been fully diagnosed by a cardiologist, I cannot conclude that it was fully treated or stabilised during the claim period because:
·there is insufficient evidence of the treatment of the condition; and
·there is no evidence that Mr Carmody made any effort to address the lifestyle factors which were associated with the condition (for example, chronic alcoholism, smoking); and
·there is no evidence that the condition affected Mr Carmody’s ability to function.
Diabetes Mellitus
The Respondent contended that Mr Carmody suffers from diabetes mellitus, which is not fully diagnosed, treated and stabilised.
This condition was not recorded in Mr Carmody’s claim for DSP, nor was it recorded in the medical reports of Dr Clahane dated 7 September 2012 and 17 April 2014, or in the Dr Crawford’s GP Management Plans of Dr Crawford.
At the JCA assessment, Mr Carmody stated that he took medication 3 times daily for the condition and had his blood sugar levels regularly checked by Dr Clahane.
Dr Clahane’s medical report dated 8 May 2014 stated that Mr Carmody had “Non-Insulin Dependent diabetes mellitus” which was generally well managed and would cause minimal or limited impact on his ability to function. Dr Clahane’s letter dated 16 January 2015 stated that the condition was “exacerbated by the patient's lifestyle” and the prognosis was:
“...very dubious due to the patients ongoing other medical problems, added to the fact of his excessive alcohol consumption contained a great deal of carbohydrate and his marked pathologically proven hepatocellular dysfunction which in turn could in fact prejudice his pancreatic function.”
The JCA file review found the condition was not fully diagnosed, treated or stabilised due to minimal details about diagnosis and treatment, current excessive consumption of alcohol and no evidence of referral to a diabetes specialist or associated allied health practitioner.
I am unable to conclude that Mr Carmody’s diabetes was fully diagnosed, treated or stabilised during the claim period because:
·there is insufficient medical evidence regarding the diagnosis of the condition; and
·there is insufficient medical evidence regarding Mr Carmody’s treatment.
Alcohol Dependence
The Respondent contends that Mr Carmody suffered from alcohol dependence which was not fully diagnosed, treated and stabilised.
Dr Clahane's report of 8 May 2014 stated that Mr Carmody’s alcoholism was an underlying cause of, or contributed to, his depression Dr Clahane’s letter dated 16 January 2015 stated that Mr Carmody had chronic alcoholism and drank up to 15 schooners of alcohol per day.
During the SSAT hearing, Mr Carmody told the SSAT that he has a few drinks every day but denied that he was a chronic alcoholic.
The JCA file review found that Mr Carmody’s alcoholism was not fully diagnosed, treated or stabilised.
Based on the available medical evidence, I cannot conclude that Mr Carmody’s alcohol dependence was fully diagnosed, treated or stabilised during the claim period because:
·there was no formal diagnosis of the condition; and
·there is no evidence that Mr Carmody was treated for the condition; and
·there is no evidence that the condition affected Mr Carmody’s ability to function.
Other conditions
The Respondent contends that Mr Carmody suffered from other conditions, including a cyst at the tail of the pancreas, an aortic aneurysm, a cyst on the dome of the liver, diverticulosis, a small simple cyst on the right kidney and chronic skin conditions, none of which were fully diagnosed, treated and stabilised during the claim period.
The letter of Dr Clahane dated 16 January 2015 stated that Mr Carmody suffered from chronic liver condition. Dr Kim Nolan, to whom Mr Carmody was referred by Dr Clahane, recorded the following conditions afflicting Mr Carmody in her report dated 24 February 2015:
·The existence of a 10mm cyst on the tail of the pancreas (but the report noted that the “pancreas otherwise defines normally”;
·A 57mm intrarenal aortic aneurysm;
·A 14mm cyst at the dome of the liver;
·A small simple cyst in the right kidney; and
·Diverticulosis.
These conditions were not referred to in Mr Carmody’s claim for DSP and none of the previous medical reports refer to these conditions.
There is no evidence of a formal diagnosis of these conditions, or that Mr Carmody was treated for these conditions during the claim period. There is also no evidence that these conditions affected Mr Carmody’s ability to function.
On this basis, I am unable to assign an impairment rating to these conditions.
DOES MR CARMODY SATISFY SECTION 94(1)(B) OF THE ACT?
The qualification criterion for DSP in section 94(1)(b) of the Act requires that Mr Carmody’s physical, intellectual or psychiatric impairments attract an impairment rating of 20 points or more under the Impairment Tables.
Based on the medical evidence submitted to this Tribunal, I am satisfied that Mr Carmody’s hypertension was fully diagnosed, treated and stabilised during the claim period, but did not attract an impairment rating under the Impairment Tables.
Further, I am satisfied that Mr Carmody’s COPD/COAD was fully diagnosed, treated and stabilised during the claim period and attracted an impairment rating of 10 points under Table 1 of the Impairment Tables.
I am not satisfied that any of the other medical conditions were fully diagnosed, treated or stabilised during the claim period, and am therefore unable to assign impairment ratings to these conditions.
On the basis of my determinations in paragraphs 84 to 86 above, a total impairment rating of only 10 points can be assigned to Mr Carmody’s medical conditions, and therefore Mr Carmody does not satisfy section 94(1)(b) of the Act and, on that basis, does not qualify for DSP.
For completeness, given that Mr Carmody does not satisfy section 94(1)(b) of the Act and therefore does not qualify for DSP, it is not necessary for me to consider section 94(1)(c) of the Act, which would have required me to assess Mr Carmody’s continuing ability to work.
DECISION
The decision under review is affirmed.

I certify that the preceding 89 (eighty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr T Nicoletti, Senior Member
...................................[sgd].....................................
Associate
Dated 23 December 2015

Date(s) of hearing 28 July 2015

Applicant In person

Solicitors for the Respondent Department of Human Services

[2015] AATA 1011

23 December 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security - Disability Support Pension

Impairment Tables

Continuing Inability to Work

Division	GENERAL DIVISION
File Number(s)	2014/5944
Re	Robert Carmody
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Dr T Nicoletti, Senior Member
Date	23 December 2015
Place	Sydney

Date(s) of hearing	28 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services