Dale Hansen and Secretary, Department of Social Services
[2014] AATA 538
•6 August 2014
[2014] AATA 538
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5097
Re
Dale Hansen
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms S Taglieri (Member)
Date 6 August 2014
Place
Hobart
The Application is dismissed and the decision under review is affirmed.
........................................................................
Ms S Taglieri (Member)
CATCHWORDS
SOCIAL SECURITY – Review of decision to refuse DSP; Peripheral Vascular disease, Chronic Obstructive Pulmonary disorder and drug and alcohol abuse disorder; whether permanent; Impairment points available under Impairment Tables; whether there was continuing inability to work
LEGISLATION
Social Security Act 1991 ("the SS Act")
Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Fuller v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 883
Celik v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 446
REASONS FOR DECISION
Ms S Taglieri (Member)
INTRODUCTION
The Applicant has sought review of a Decision dated 24 September 2013 of the Social Security Appeals Tribunal (“SSAT”). The SSAT affirmed a decision by an Authorised Review Officer of the Respondent, which determined that the Applicant was not eligible to receive a Disability Support Pension (“DSP”), being a pension he had applied for on 20 February 2013.[1]
At the hearing before this Tribunal on 14 May 2014, the Applicant argued that he should have been granted a DSP taking into account the 3 medical conditions he suffered from at the time of claim. He claimed to suffer from:
(a)Peripheral Vascular disease (“PVD”);
(b)Chronic Obstructive Pulmonary disorder (“COPD”);
(c)Drug and alcohol abuse disorder.
[1] See T6, Claim for DSP dated 20.2.13
The Respondent maintained that the decision to reject the Applicant’s claim for DSP was correct as he did not meet the qualification requirements of section 94(1) (b) and 94(1) (c) of the Social Security Act 1991 (“the SS Act”). In short, the Respondent did not have 20 impairment points and did not have a continuing inability to work (CITW), within the meaning of the SS Act.
The law applicable to the Applicant’s claim for DSP requires that the impairment suffered be determined according to the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”). In order to assign impairment rating for a claimed medical condition, the condition must be permanent and the impairment resulting from the condition must be likely to persist for more than two years.[2]
[2] Paragraph 6(3) of the 2011 Determination
THE EVIDENCE CONCERNING IMPAIRMENT
The medical evidence consisted of report of Dr Dixon[3], the Applicant’s General Practitioner and Dr Koshy, Cardiologist.[4] Dr Dixon identified at least two diagnosed medical conditions causing functional impairment, PVD and COPD. She considered that both would persist for more than 2 years.[5] There was evidence that the Applicant was awaiting a consultation with a vascular surgeon to explore the prospect of a surgical stent procedure to treat the PVD. Despite this, I am satisfied that both conditions ought be regarded as permanent. I have reached this conclusion because I accept on the basis of Dr Dixon’s evidence that the root cause of both diagnosed conditions is:
(d)Excessive and chronic smoking of tobacco and marijuana over many years, that is substance abuse; and
(e)Genetic susceptibility.
[3] Dated 14.1.14, T5
[4] Dated 26.8.13 and accompanying Nuclear scan report of Dr Snarski, T14 and T15
[5] Pages 17 and 20 of T Documents
The Applicant cannot alter his genetic susceptibility. There is evidence that he has been advised to cease smoking well prior to the claim for DSP but has failed to do so. The Applicant gave evidence that he has sought to cease smoking and has had counselling aimed at this. He first accessed treatment aimed at ceasing smoking tobacco and marijuana in 2011 and since then had attended 4 appointments. There is evidence that he lacks motivation to give up smoking both substances.[6] I am satisfied that the lack of motivation is largely due to personality, depression and the addictive nature of the substance abuse, based on the contents of Dr Dixon’s medical evidence[7] and the contents of the Job Capacity Assessor’s report[8]. The contents of these reports corroborates the evidence the Applicant gave about his attempts to stop smoking and using alcohol to excess.
[6] Dr Dixon’s report of 16.5.13 at page 65 of T documents
[7] T5 at page 21, in answer to question 6 and T10 at page 64 to 66
[8] T7 at page 54
There is no evidence before the Tribunal that cessation of smoking (whether tobacco or marijuana) would cause improvement in either PVD or COPD. I was invited by the Respondent to infer that stent surgery would probably improve the Applicant’s condition. I am unwilling to make such inference as the purpose of the treatment may be to prevent further deterioration. Indeed it seems from Dr Dixon’s evidence and the medical literature in evidence[9], that the advice to cease smoking is to decrease risk factors and prevent deterioration in the conditions. The facts of this case are distinguishable from the decision in Fuller v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[10] In addition, the likelihood of the stent surgery proceeding seems remote. The evidence was that the surgery would not be performed, unless the Applicant permanently gave up smoking and the prospect of that is unlikely, for the reasons expressed above. I was referred to the decision of Celik v Secretary, Department ofFamilies, Housing, Community Services and Indigenous Affairs[11]. The Respondent contended that because the Applicant had not given up smoking, he had not accepted reasonable treatment. I reject this contention, as the evidence shows that the Applicant has accessed treatment to cease smoking and any criticism made that he has not engaged often enough or genuinely, can be explained by the nature of addictive substance abuse disorders referred to further below.
[9] Page 69 to 71 of T Documents
[10] [2012] AATA 883
[11] [2013] AATA 446
The Applicant has not refused treatment and there is no evidence that he is likely to succeed in giving up smoking altogether (even if he engaged better in treatment). This being so, I cannot be satisfied on the evidence that the PVD is likely to improve to some extent in the next two years because he will have the stent surgery. The facts of this case are clearly distinguishable from Celik v Secretary, Department of Families, Housing,Community Services and Indigenous Affairs.
Dr Dixon’s report in support of the claim for DSP also identified “excess marijuana use” as a condition. It is not clear whether Dr Dixon considered this to be a separate medical condition to the COPD, but it plainly is capable of constituting a substance abuse or addictive disorder, as is evident from the contents of Dr Dixon’s later report[12]. The later report is dated 16 May 2013 and within 13 weeks of the date the Applicant claim for DSP and it is proper that I take it into account. In any event, the Respondent concedes that at the relevant time, the Applicant suffered a condition of substance abuse, but contended it was not fully treated and stabilised[13].
[12] T10, commencing at page 58 of the T Documents
[13] Paragraph 43 of the Respondent’ statement of facts, issues and contentions
I am satisfied that the condition of substance abuse is fully diagnosed, but am not satisfied that it is fully treated and stabilised. The evidence persuades me that there is likelihood of some improvement in this condition, even if he does not give up smoking tobacco and/or marijuana completely. The Applicant’s evidence was that he was accessing some treatment for the substance abuse issues and claimed to have reduced smoking. This demonstrates a small degree of improvement. His evidence was perhaps in conflict with the contents of Dr Dixon’s report of 16 May 2013, which identified the substance abuse was “worse recently”[14], but the evidence at the hearing was given about one year after Dr Dixon’s comments. On the totality of the evidence, I cannot be satisfied that there will be no likely improvement in the condition, within the two years from his claim.
[14] Page 64 of the T documents
DEGREE OF IMPAIRMENT
There were two Job Capacity Assessment reports in evidence before the Tribunal.[15] The Assessor on each occasion determined that the conditions from which the Applicant suffered were fully diagnosed, but not regarded as permanent because they were not fully treated and stabilised. I consider the conditions of PVD and COPD to be to be fully treated and stabilised for the reasons expressed above, but not the condition of substance abuse. The evidence before the Tribunal about the functional impact of the permanent conditions was contained in the reports of Dr Dixon and indeed the JCA reports. They largely corroborate the Applicant’s evidence before the Tribunal at the hearing. In summary, the evidence was as follows:
PVD: Caused by pain in his legs when he walks and has to stop to rest. He is able to walk distances up to 25 or 50 metres without pain, but then pain is experienced. He walks only short distances, a maximum of perhaps 200 metres. Otherwise he drives to all locations he has to attend.
COPD: He gets shortness of breath and has coughing fits up to two times a day. These cause him to vomit at times. He experiences wheezing and Dr Dixon identified recurrent chest infections due to this condition. Under cross-examination he stated that his general activity level is limited by shortness of breath and he spends most of his day watching TV. He spends time with his dog, but does not walk him for any distance. Instead he uses his car to go to the shops and anywhere he needs to go. He tries to keep his house clean and does very limited laundry. Some days he has no energy and stays in bed.
[15] T7, pages 50 – 56 of T Documents and T 11, pages 72 to 77 of T Documents
Assessing the degree of functional impairment by reference to the Impairment tables, I consider that the following points are to be assigned:
Table 1:
10 points, moderate functional impact on activities requiring physical exertion or stamina.
Table 3:
5 points, mild functional impact on activities requiring use of the lower limbs, by reference to the criteria is paragraph (1) of the Table.
In total the Applicant’s medical conditions cause impairment equating to 15 points, and not the required 20 points under section 94(1) (b) of the SS Act.
Given this conclusion, it is unnecessary to consider whether the Applicant has CITW and therefore satisfies the eligibility requirement in section 94(1)(c) of the SS Act. Nonetheless, I will consider and determine the issue.
CITW?
Whether the Applicant satisfied the requirement of section 94(1) (c) of the SS Act at the relevant time, requires consideration of whether he had demonstrated a continuing inability to work within the meaning of section 94(2) of the SS Act. At the hearing before me, I gave the Respondent leave to make submissions in relation to whether the Applicant met the requirement of active participation in a program of support.[16] By letter dated 16 May 2014, the Respondent conceded that he did, but maintained that the Applicant did not meet the requirement of CITW, because the conjunctive requirements in section 94(2) (a) and (b) of the SS Act were not satisfied.
[16] As required by section 94(2)(aa)
In essence the Respondent relied on the evidence contained in the JCA reports to demonstrate that regardless of what impairment points the Applicant was allowed for the conditions from which he suffered, he did not meet all of the conjunctive requirements to demonstrate CITW.
EVIDENCE ABOUT ABILITY TO WORK
The evidence about the Applicant’s work capacity at the relevant time he claimed DSP is scarce. He gave evidence that he left school and went into his family’s scrap metal business. There was no evidence of other work experience, qualifications or skills. It appears from the content of the JCA report dated 4 March 2013, that he worked in the scrap metal industry until ceasing work in perhaps 2011 to care for his mother who then died in around 2012.
In response to questions from the Tribunal, he indicated that he had purchased a little truck, with a view to doing some work with that, but he had trouble getting up and down from it and had not gone into business. He stated his only skills were in scrap metal work, which was manually demanding. He could not envisage any work that he would be capable of doing. His evidence was largely consistent with the content of the JCA reports. He was not cross-examined about work capacity.
At the time of the first JCA in March 2013, the opinion of the Assessor was that the Applicant had capacity to work 15-22 hours per week in moderate less skilled work. Examples of such work were given as process worker, stock filler, light courier work. Further, the Assessor expressed the view that within 2 years, work capacity was likely to expand to 23-39 hours per week in such moderate less skilled work.
The Applicant had another JCA performed on 31 May 2013 and it was in evidence at the hearing before the Tribunal. A different Assessor identified the same three medical conditions identified in the claim for DSP and Dr Dixon’s reports, but this time assessed work capacity of only 8 to 14 hours for Light less skilled work. The Assessor further opined that with intervention, he was likely within two years to be capable of light less skilled work for 15 hours or more per week. The intervention identified related to the Applicant being given counselling and support to improve the addictive conditions of substance abuse relating to tobacco, marijuana and alcohol.
Although I am not satisfied that such intervention would improve his physical conditions of PVD and COPD (because there is no evidence permitting that conclusion), I am satisfied that the intervention may well cause changes to motivation and reliability and reduce depressive symptoms. This conclusion is open and can properly be drawn from the contents of Dr Dixon’s reports and the contents of the JCA reports.
The Respondent contended that the Applicant had baseline capacity for 30 hours of work. That was based on the finding of the JCA that there was no fully diagnosed, treated and stabilised condition. As I have concluded otherwise, I do not accept that contention. However, I am satisfied that with intervention to address the addictive substance abuse conditions, his reliability is likely to improve such that he reasonably ought to be able to participate in training and subsequently engage in light less skilled work for 15 hours per week or more within two years.
The evidence of the Applicant under cross-examination tended to suggest that he may not be capable of maintaining any improvement in reduction of use of alcohol, tobacco and marijuana, but the evidence demonstrated that he had made some improvements. His evidence was that he had reduced his tobacco smoking, had engaged in drug and alcohol counselling and he expected to continue to attend the appointments for such counselling into the future. In view of this evidence, I consider the Applicant is likely to be capable of engaging in training activities directed to light less skilled work.
There was no evidence that even with training activities of such kind, he would not be capable of any work independently of a program of support within 2 years of the claim. As such he does not meet the second conjunctive requirement in section 94(2) contained in 94(2) (b) of the SS Act, although he meets the first, contained in section 94(2) (a) of the SS Act.
The result of my conclusions about CITW is that, if contrary to what I have concluded, the Applicant could be assigned at least another 5 impairment points relating to the substance abuse condition and therefore met the 20 point requirement in section 94(1 )(b) of the SS Act, he would still not have qualified for DSP because he did not meet the CITW requirement in section 94(1) (c) of the SS Act.
CONCLUSION
The Application is dismissed and the decision under review is affirmed for the reasons above.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member) ........................................................................
Administrative Assistant
Dated 6 August 2014
Date(s) of hearing 14 May 2014 Applicant In person Solicitors for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch
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