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

[2022] AATA 3783

Collins; Secretary, Department of Social Services and (Social services second review) [2022] AATA 3783 (10 November 2022)

Division:GENERAL DIVISION

File Number(s):      2021/7926

Re:Secretary, Department of Social Services 

APPLICANT

Kelly CollinsAnd  

RESPONDENT

Decision

Tribunal:Mr S Evans, Member  

Date:16 September 2022  

Date of decision:     10 November 2022

Place:Sydney

The reviewable decision is set aside and in substitution it is decided that the Respondent did not qualify for the Disability Support Pension on the basis of her application dated 21 December 2020

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

Mr S Evans, Member

Catchwords

SOCIAL SECURITY — Disability support pension -  appeal by the Secretary of the Department of Social Services - whether the respondent was qualified to receive DSP –where respondent has multiple conditions – where the respondent is suffering from episodic and fluctuating impairment - whether the respondent meets the requirements of severely impaired - where some conditions are neither fully diagnosed nor treated – Whether condition fully treated and stabilised during the relevant period - respondent does not meet the requirements of the Impairments Table – decision under review set aside and substituted

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

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

Secondary Materials

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

REASONS FOR DECISION

10 November 2022

introduction

1.Kelly Collins (the Respondent) applied for Disability Support Pension (DSP) on 21 December 2020.[1] Her application was refused by an Authorised Review Officer (ARO) at the Department of Social Services (the Agency) on 2 June 2021.[2] The Respondent appealed the decision to refuse her DSP at the Social Services and Child Support division (AAT1) of the Tribunal. On 15 September 2021 the AAT1 set aside the decision of the ARO and found that the Respondent was eligible for DSP as of 21 December 2021 (the reviewable decision).[3] 

[1] T9/146

[2] T18/168

[3] T2/3

1. On 27 October 2021 the Secretary of the Department of Social Services (the Secretary) lodged an application for review the AAT1 decision with the General and Other Division of the Tribunal.[4] An order staying the implementation of the AAT1 decision was granted on 29 November 2021.

   [4] T1/2

2. For the reasons that follow, the reviewable decision will be set aside.

   legislation relevant to the application

   Qualification for Disability Support Pension

3. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.[5] Section 94 of the Social Security Act 1991 (Cth) (the Act) sets out the criteria for qualification for payment of DSP. Subsection 94(1) of the Act provides that to qualify for the DSP:

   (a) a person must have a physical, intellectual or psychiatric impairment, or impairments; and

   (b) the impairment(s) must be rated at 20 points or more in accordance with the Impairment Tables; and

   (c) the person must have a continuing inability to work as defined in the Act or is participating in a supported wage system.

   [5] Social Security Act 1991 (Cth), subsection 94(5)

4. The Impairment Tables referred to in subsection 94(1)(b) are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments. If a person’s impairment is 20 points or more under a single Impairment Table, subsection 94(3B) of the Act provides that they will be deemed to have a ‘severe impairment’.

5. Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 provides that a condition can only be assigned an impairment rating if it is considered permanent. Subsection 6(4) provides that a condition is permanent if it has been fully diagnosed by a qualified medical practitioner, fully treated and fully stabilised.

6. When applying the Tables, subsection 6(1) of the Determination requires that in assessing functional capacity:

   (1)  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.

7. Subsection 8(1) of the Determination provides that when applying the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

   The relevant period

8. When reviewing the decision, I am to consider the evidence as it relates to the 13 week period following application for DSP. As her application for DSP was made on 21 December 2020, the relevant period for the purposes of the reviewable decision is 21 December 2020 until 21 March 2021(‘the relevant period’).[6]  

   [6] Social Security (Administration) Act 1999 (Cth), Section 42 and Schedule 2, Clause 4

9. This is consistent with the approach outlined by Deputy President Handley in Fanning and Secretary, Department of Social Services[7]  in which he observed:

   Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

   [7] [2014] AATA 447, [31]

   Issue to be determined

10. The issue to be determined is whether the Respondent was eligible for DSP during the relevant period.

11. The Secretary accepts that the Respondent suffered from impairments during the relevant period and that paragraph 94(1)(a) of the Act is satisfied. Based on the evidence I agree with this assessment.

12. As such, the first issue to be determined is whether these impairments rate 20 points or more under the Impairment Tables. Should the Respondent be found to have an impairment rating sufficient to satisfy paragraph 94(1)(b) of the Act it will be necessary to determine if the Respondent has a continuing inability to work.

    background

    The Respondent’s medical conditions

13. The Respondent gave oral evidence during the hearing regarding her medical condition, how it affects her functional ability and the background to her applying for DSP.

14. About two years prior to her second heart attack, the Respondent experienced pain in her neck and collapsed at home having suffered a heart attack. She was taken by ambulance to hospital where she remained for 18 days. On 4 August 2020 she had a second heart attack and regained consciousness in hospital on 7 August. She remained in hospital until 19 August and was released having had an implantable cardio-defibrillator (ICD) implanted on 18 August 2020.[8] 

    [8] T14/158

15. The Respondent now lives with the ICD, which she can feel inside her chest. She told the Tribunal the ICD makes a warning sound if she comes too close to anything magnetic and generates an audible alarm in the event the device is required to restart her heart.

16. At home the Respondent has a ‘tracer machine’ which connects to the ICD and sends monitoring information to the St George Hospital cardiology unit.

17. The Respondent takes medication to treat her heart condition as well as medication for high cholesterol, blood thinners and to treat depression and anxiety.[9]

    [9] T5/109

18. The Respondent reports frequently attending hospital since having the ICD implanted. When she is at the hospital, she is placed on an electrocardiogram machine as a matter of course. She reported last being in hospital three weeks prior to the hearing when she presented with symptoms of a hernia.  She was last admitted to hospital in relation to her heart condition in June 2022 when she was experiencing chest pain and ‘tingling’. 

    Application for DSP

19. The Respondent gave evidence that she applied for DSP after being advised to do so by a Centrelink officer in November 2020.

20. She told the Tribunal prior to her claim for DSP she was receiving Job Seeker Payment (JSP) and was regularly required to attend appointments with an employment services provider. On 8 December 2020 the Respondent was due to attend an appointment with her employment services provider and had arranged transport with a friend. Her friend was running late and the Respondent, fearing her JSP may be cancelled, began walking to the appointment. The Respondent’s daughter found her in a state of exhaustion and took her to hospital where she was provided with a medical exemption.[10]

    [10] See also ST2/220

21. The Secretary’s Statement of Facts, Issues and Contentions (the Secretary’s SoFIC) sets out the events subsequent to the Respondent lodging a claim for DSP on 21 December 2020.

22. The Respondent’s claim for DSP was rejected on 19 January 2021 as insufficient evidence was provided to assess medical eligibility.[11] On 19 March 2021 a Claim for DSP Medical Evidence Checklist was completed by cardiac electrophysiologist Dr Ali Sepahpour stating that the Respondent had an ICD implanted and that she had ‘significant difficulty moving her left arm after ICD implant’.[12]

    [11] T20/177

    [12] T11/151

23. On 22 March 2021 the Respondent requested a review of the decision to reject her DSP application.[13]

    [13] T20/178

24. On 1 April 2021 an DSP Medical Eligibility Assessment Recommendation directed a Job Capacity Assessment (JCA) report be completed.[14] The JCA concluded the Respondent’s heart condition was fully diagnosed, treated and stabilised and determined a rating of nil points under Table 1 - Functions requiring Physical Exertion and Stamina (Table 1) was appropriate. A rating of 5 points under Table 2 - Upper Limb Function (Table 2) was assigned on the basis of the difficulty the Respondent had using her left arm.[15]

    [14] T12/153

    [15] T14/160

25. On 11 May 2021 a letter was sent to the Respondent confirming the rejection of her claim.[16] The decision was subsequently reviewed and affirmed by an ARO on 2 June 2021.[17] The Respondent sought review of the ARO’s decision at AAT1. 

    [16] T15/164

    [17] T18/168

    The reviewable decision

26. On 15 September 2021 the AAT1 found that the Respondent had an impairment rating of 20 points under Table 1 and a continuing inability to work on the basis of her having a severe degree of functional impairment.[18]

    [18] T2/7

27. Having found the Respondent had a severe impairment, the AAT1 set aside the ARO’s decision with the direction that the Respondent satisfied the eligibility criteria in paragraphs 94(1)(a),(b) and (c) of the Act and entitled to DSP.[19]

    [19] T2/8

    impairment tables

28. The reviewable decision granted the Respondent DSP on the basis of her heart condition warranting an impairment rating of 20 points under Table 1. As the Tribunal is reviewing the decision de novo, I am not bound by the reasoning or findings of the original decision maker and have taken into account new evidence of both parties which was not before the AAT1.

29. It is not in dispute that the Respondent’s cardiac condition of ischaemic heart disease is fully diagnosed, treated and stabilised and eligible to be assigned an impairment rating. Based on the evidence I agree.

30. In reviewing the AAT1 decision, I note that the reasons provided indicate she self-reported not being able to do ‘heavy housework including vacuuming and laundry’ and that the ICD ‘interferes with her capacity to carry groceries, change sheets and to do housework’.[20]

    [20] T2/6-7

31. Table 1 provides that there is a ‘severe functional impact on activities requiring physical exertion or stamina’ if:   

    (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.

32. The Secretary argues that the Respondent’s impairment should be rated at most 5 points under Table 1.[21]

    [21] Secretary’s Statement of Facts, Issues and Contentions dated 6 June 2022, [5.20]

33. In a medical report dated 12 February 2022 Dr Sepahpour confirms the Respondent’s diagnosis of ‘heart failure’ as a chronic condition. He writes in part: 

    With regards to Mrs Collins' cardiac condition, she has significant impairment of her left ventricular systolic function, which would be expected to be a permanent problem. This would generally be considered to be heart failure with reduced ejection fraction, and patients with this type of condition require continuing medical therapy. The symptoms can vary from being relatively mild to severe, with restriction in physical activity ranging from mild to, on some occasions, complete debilitation. It is difficult to comment on the expected time course, as many patients can be stable, although some can have intermittent episodes of decompensated heart failure. Currently, Mrs. Collins' heart failure is under adequate control. Nevertheless, this is a chronic condition and compared with people in her age group, she would be far more likely to be medically unfit for work duties that involve heavy physical exertion.[22]

    [22] ST3/340

34. Dr Sepahpour also confirms that the Respondent has suffered from issues with her left arm, which as of February 2022 had not been formally assessed:

    With regards to her left arm symptoms, this is not in my area of speciality. She clearly has symptoms that have arisen from the time she had the implantable cardioverter-defibrillator fitted about 18 months ago. I have been requesting this to be investigated but, presumably due to all of the difficulties that we have all faced in the last 2 years with COVID restrictions, she has not had formal assessment. I have referred her to one of my colleagues for nerve conduction studies of the left upper limb. I would expect the left upper limb symptoms to gradually improve but it is very difficult to comment on this situation without having an expert neurology opinion or at least nerve conduction studies.[23]

    [23] ST3/340

35. The Respondent has been attending Dapto Medical Centre for many years and continues to do so. Her medical records from the Dapto Medical Centre are in evidence before the Tribunal.[24]  

    [24] See ST2/213-339

36. The records relevantly include that on 11 June 2020 general practitioner Dr Amit Chauhan recorded the Respondent described pain ‘shooting up and down’ her lower back area.[25] On 7 July 2020 Dr Mohammad Shahid recorded that the Respondent had attended and reported ‘doing well no chest pain’.[26] 

    [25] ST2/224

    [26] ST2/224

37. On 4 November 2020 Dr Suresh Bheri recorded that the Respondent was seeking a Centrelink certificate and told him she could not work has she had a defibrillator inserted 2 months ago. Following the consultation he recorded ‘[n]o chest pains dizzy on and off’ in her medical records.[27]

    [27] ST2/221

38. On 8 July 2020 Dr Chauhan made a note that the Respondent had ‘no issues’ and that she had requested a letter to ‘continue [horse] riding’.[28] On 12 November 2020 Dr Chauhan records that the Respondent was advised to not ride horses and to avoid lifting more than 10kg.[29]

    [28] ST2/223

    [29] ST2/221

    The Respondent’s evidence

39. At the hearing, the Respondent gave evidence that that she is passionate about horses and horse riding. She was devastated she could no longer ride following the onset of her heart condition. She confirmed that she would have continued riding after having the ICD implanted but the owner of the property where her horses were kept was not prepared to have her do so out of concern for her health.

40. In her Statement of Facts, Issues and Contentions dated 13 July 2022 (the Respondent’s SoFIC) the Respondent submits she lacks the ‘capacity to perform light day to day household duties which are undertaken by family members as a consequence of her pain and lack of stamina’ and is assisted by her daughter when shopping. As she requires the assistance of her daughter when shopping, she argues she meets 1(a)(i) of Table 1.[30]

    [30] Respondent’s Statement of Facts, Issues and Contentions dated 13 July 2022, [48]

41. When questioned by the Secretary’s representative, the Respondent gave evidence that the left side of her body is not as strong as her right side and she is limited to lifting a maximum of 10kg. She said that she is always with one of her children when she shops for groceries. She can hold a basket of shopping, but will lean on a shopping trolley until her daughter takes over. She generally does not carry shopping bags to the car, preferring to rely on her children but can do so if required. She confirmed she was able to walk for 20 minutes without being out of breath or sore and on occasion she can do so for 30 minutes. If she paces herself, she can walk most distances without experiencing symptoms. She confirmed that she does not experience shortness of breath while performing light duties such as hanging and folding laundry.

42. The Respondent’s evidence was that she is able to perform all of the light physical activities set out in Table 1 without experiencing symptoms of shortness of breath, fatigue or cardiac pain. She explained that the pain she experienced in her left side had more impact on her functional ability and capacity than any symptoms of physical exertion or stamina due to her heart condition.

    Consideration

43. In her SoFIC the Respondent maintains that she suffers from a severe impairment which warrants 20 points under Table 1, consistent with the findings of AAT1. 

44. She argues the Secretary’s conclusion that the impairment arising from her ischaemic heart disease warrants an impairment rating of 5 points is in part attributable to Dr Chauhan at Dapto Medical Centre not recording significant symptoms of pain in a series of ten medical appointments between 11 June 2020 to 8 December 2020. [31]

    [31] Respondent’s Statement of Facts, Issues and Contentions dated 13 July 2022, [37]

45. In her oral evidence I found the Respondent to be a credible witness who gave a frank account of her condition and her capabilities as well as the limitations imposed by her medical condition. In general, her oral submissions were consistent with the medical evidence.

46. The Secretary contends that the medical evidence does not substantiate the Respondent’s statements reported in the reviewable decision. Specifically, that she was not able to perform ‘heavy housework including vacuuming and laundry’ or that the ICD ‘interferes with her capacity to carry groceries, change sheets and to do housework’.[32] 

    [32] Secretary’s Statement of Facts, Issues and Contentions dated 6 June 2022, [5.5]

47. Following review of the ICD on 19 March 2021, Dr Sepahpour reported that the Respondent had ‘no significant cardiac symptoms, specifically no chest pain, dyspnoea, palpitations, syncope or presyncope’. However, he also reported that since the ICD was implanted, the Respondent experienced continuous pain at the wound site which caused her to have difficulty moving her left arm. He notes that she has ‘had to modify her work environment with her horses’.[33] 

    [33] ST2/245

48. Dr Sephapour’s later report of 12 February 2022 confirms that the Respondent’s heart condition was well managed but that ‘symptoms can vary from being relatively mild to severe, with restriction in physical activity ranging from mild to, on some occasions, complete debilitation’.[34]

    [34] ST3/340

1. The Respondent argues the fact that her condition is well managed and treated simply means her medication combined with the ICD is preventing her from undergoing a further heart attack. She suffers from a fluctuating condition and while Dr Sepahpour reported she had no significant cardiac symptoms on 19 March 2021, this does not establish they were not severe on other occasions.

2. When determining an appropriate impairment rating for the Respondent’s heart condition, I take into account subsection 11(4) of the Determination which provides that:

   When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

3. The Respondent gave evidence of having looked for work and seriously considered working at a restaurant. She would willingly have taken work at the restaurant, but her potential employer was unable to offer her a position owing to liabilities which may result from employing her given her heart condition.

4. Dapto Medical Centre records do not include reference to the Respondent experiencing shortness of breath, cardiac pain or fatigue when performing light physical activities. The medical records do not support a finding that the Respondent was unable to perfom any of the activities required for an impairment rating of 20 points under Table 1. The Respondent’s oral evidence at the hearing was consistent with this finding, except in the event of a medical emergency, in which case she would be totally incapacitated.

5. Based on the evidence and with reference to subsection 11(4) of the Determination, I am satisfied that the overall functional impact of the impairment caused by the Respondent’s heart condition is mild and appropriately rated 5 points under Table 1. I make this finding on the basis of her having occasional difficulty with walking without stopping to rest or performing physically active tasks but being able to perform most work-related tasks, other than tasks involving heavy manual labour.

6. In relation to the pain in her left shoulder and arm, I note Dr Sepahpour reports on 23 July 2021 that the Respondent ‘has had chronic issues with pain in the left shoulder and arm’ since the ICD was implanted[35]. This is consistent with her oral evidence that the left side pain caused her the most discomfort and restriction.  

   [35] T19/172

7. However, in February 2022 Dr Sepahpour writes that he had requested the Respondent undergo investigation into her left arm pain and suggested a referral for nerve conduction studies. Noting that it is not his area of specialty and that the Respondent ‘has not had [a] formal assessment’, he writes that ‘it is very difficult to comment on this situation without having an expert neurology opinion or at least nerve conduction studies’.[36] 

   [36] ST3/340

8. As at the date of hearing, the Respondent had not undertaken the testing recommended by Dr Sepahpour and there is no evidence of a formal diagnosis of this condition. Paragraph 6(3)(a) of Part 2 of the Determination requires that a condition be permanent in order to be assigned an impairment rating. Subsection 6(4) provides that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.

9. Without a formal diagnosis, I am not satisfied that the Respondent’s arm and shoulder pain was eligible to be assigned an impairment rating during the relevant period.

   Conclusion

10. For the reasons set out above I am satisfied that the Respondent’s impairments are rated a total of 5 points during the relevant period. As she does not meet the requirement in section 94(1)(b) she cannot meet the eligibility criteria for grant of DSP and the reviewable decision will be set aside.

    Decision

11. The reviewable decision is set aside and in substitution it is decided that the Respondent did not qualify for the Disability Support Pension on the basis of her application dated 21 December 2020. 

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 10 November 2022

Date(s) of hearing:	16 September 2022
Solicitors for the Applicant:	Matt Gauci
Respondent:	In person