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

Dawe and Secretary, Department of Social Services (Social services second review) [2018] AATA 2509 (27 July 2018)
Division:GENERAL DIVISION
File Number: 2017/5951
Re:Peter Dawe
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:27 July 2018
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Refusal – Inflammatory Myopathy Condition – Vestibular Neuropathy Condition – GORD Condition – whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
27 July 2018
INTRODUCTION

On 9 August 2016, Mr Peter Dawe (“Applicant”), applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T8, pages 56 – 85, Claim for DSP, dated 9 August 2016.
On 1 September 2016, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T11, pages 89-90, DSP Rejection, dated 1 September 2016.
[3] Exhibit 1, T Documents, T19, pages 103-107, ARO Decision, dated 26 April 2017.
On 30 August 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T2, pages 6-12, Decision of the Social Services & Child Support
Division, dated 30 August 2017.
Following this, the Applicant sought a second tier review of his matter by the General and Other Divisions of this Tribunal, by way of an Application dated 4 October 2017.[5]
[5] Exhibit 1, T Documents, T1, pages 1-5, Application for Review, dated 4 October 2017.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 20 March 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 9 August 2016, or within 13 weeks thereafter, being up until 8 November 2016 (“Relevant Period”).
BACKGROUND
On the Applicant’s DSP Claim Form he listed the following disabilities, illnesses or injuries:
The condition has changed to myositis and a new certificate is not due until 26/8 (as said by doctor on 4/8)
·weakness
·dizziness.[6]
[6] Exhibit 1, T Documents, T8, page 81, DSP Claim Form, dated 9 August 2016.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP certain relevant criteria set out in section 94 of the Act, must be met:
(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)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[7] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[8]
[7] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[8] Bobera and Secretary, Department of Families, Housing, Community Services and
Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[9] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[11]
[9]         Impairment Determination, s 5(1) – (2).
[10]        Impairment Determination, s 5(2).
[11]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[12]
[12] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[13]
[13] Impairment Determination, s 6(5).
A condition will be considered fully stabilised if:
(d)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 2 years; or
(e)the person has not undertaken reasonable treatment for the condition and:
(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.[14]
[14] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(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 Applicant.[15]
[15] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[16]
[16] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[17]
[17] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from Inflammatory Myopathy, Vestibular Neuropathy, Gastric and Duodenal Polyposis with Gastro-oesophageal Reflux Disorder (“GORD”) conditions and it is not in dispute that he has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[18] The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an Impairment Rating of 20 points or more under the Impairment Tables,[19] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[18] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 19 January 2018,
paragraph 23.
[19] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Inflammatory Myopathy Condition
The Secretary contends that the Applicant’s Inflammatory Myopathy condition was not fully diagnosed, fully treated and fully stabilised. Based on the medical evidence before me, I have found that the Applicant’s condition was fully diagnosed in the Relevant Period, but not fully treated and fully stabilised.
Dr Thakur, General Practitioner, diagnosed the Applicant with Inflammatory Myopathy on 12 December 2015.[20]
[20] Exhibit 1, T Documents, T13, Patient Health Summary – Clarence Medical Centre, dated
16 September 2016, page 92; T14, Medical Certificate from Dr Thakur, dated 19 September 2016, page 93.
Dr Thakur reported in three medical certificates that the Applicant’s Myositis condition was temporary and would be likely to affect his ability to work for 3-12 months.[21]
[21] Exhibit 1, T Documents, T4, Medical Certificate from Dr Thakur, dated 6 January 2016,
page 49; T5, Medical Certificate from Dr Thakur, dated 26 May 2016, page 50; T10 , Medical Certificate from Dr Thakur, dated 19 August 2016, page 88.
On 19 August 2016, Dr Thakur reported that the Applicant’s current treatment was prednisone, specialist care with Dr Lodge and Dr Ashokumar, physiotherapy and consulting with a dietician regarding symptoms management. Dr Thakur further reported that the Applicant had planned follow up appointments with Doctor Lodge, Dr Ashokumar and the dietician.[22]
[22] Exhibit 1, T Documents, T10 , Medical Certificate from Dr Thakur, dated 19 August 2016,
page 88.
On 14 September 2016, Dr Lodge, Consultant Physician, saw the Applicant and reported that he was incapacitated by a “progressive, inflammatory myopathy”.[23] Dr Lodge explained in his report that the Applicant had been extensively investigated and that the results had been largely unclear:
He has been extensively investigated for this with multiple blood tests, CT scanning and EMG. Most significantly, CK level (3644) has exceeded 10 times the upper limit of normal. Underlying aetiology remains unclear. He has been investigated for malignancy/paraneoplastic syndrome. There is a suggestion of autoimmunity with elevated ANA. There has been limited response to corticosteroids and he is currently awaiting muscle biopsy.[24]
[23] Exhibit 1, T Documents, T12, Report of Dr Lodge, dated 14 September 2016, page 91.
[24] Exhibit 1, T Documents, T12, Report of Dr Lodge, dated 14 September 2016, page 91.
Although Dr Lodge has stated that the aetiology of the condition of Inflammatory Myopathy was unclear, that is not in the Tribunal’s opinion, an impediment to a finding that the condition was fully diagnosed at the Relevant Period.
On 14 February 2017, Dr Lodge diagnosed the Applicant with polymyositis and started the Applicant on a treatment of high-dose corticosteroids and a steroid-sparing agent.[25] Although this report falls outside of the Relevant Period, Dr Thakur had diagnosed the Applicant with Inflammatory Myopathy with onset being 12 December 2015,[26] and

Dr Lodge acknowledged that the Applicant was incapacitated by a progressive, inflammatory myopathy in his report of 14 September 2016.[27]
[25]        Exhibit 1, T Documents, T17, Report of Dr Lodge, dated 14 February 2017, page 101.
[26]        Exhibit 1, T Documents, T13, Patient Health Summary – Clarence Medical Centre, dated
16 September 2016, page 92; T14, Medical Certificate from Dr Thakur, dated 19 September 2016, page 93.
[27]        Exhibit 1, T Documents, T12, Report of Dr Lodge, dated 14 September 2016, page 91.
Based on the medical evidence before me, I have found that the Applicant’s condition was fully diagnosed in the Relevant Period, but not fully treated and fully stabilised as the underlying aetiology of the Applicant’s condition was unclear and he was awaiting a muscle biopsy. Therefore, I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Vestibular Neuropathy Condition
The Respondent contends that the Applicant’s Vestibular Neuropathy condition was not fully diagnosed, fully treated and fully stabilised. I accept the Respondent’s contention based on medical evidence and the Impairment Determination that the Applicant’s Vestibular Neuropathy Condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.
The Introduction to Table 11 of the Impairment Determination states that:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist.[28]
[28] Impairment Determination, Introduction to Table 11.
The Applicant has provided to the Tribunal a report from Dr Lodge that is dated

14 February 2017. In the report, Dr Lodge states that the Applicant has chronic vestibular neuropathy but that:
CT and MRI brain scans have been unhelpful with establishing a definitive diagnosis.[29]
[29] Exhibit 1, T Documents, T17, Report of Dr Lodge, dated 14 February 2017, page 101.
On 17 November 2017, Dr Grewcock stated that the Applicant had been diagnosed by

Dr George, a Neurologist, with Left Vestibular Neuropathy in 2014.[30] This is corroborated in the Applicant’s Patient Health Summary from the Clarence Medical Centre.[31]
[30] Exhibit 2, Letter from Dr Grewcock – Clarence Medical Centre, dated 17 November 2017.
[31] Exhibit 1, T Documents, T13, Patient Health Summary – Clarence Medical Centre, dated
16 September 2016, page 92.
On 6 January 2016 and 26 May 2016, Dr Thakur reported that the Applicant had left side Vestibular Neuropathy that had a date of onset of 6 November 2014, was temporary and would be likely to affect his ability to work for 3-12 months.[32]
[32] Exhibit 1, T Documents, T4, Medical Certificate of Dr Thakur, dated 6 January 2016, page
49; T5, Medical Certificate of Dr Thakur, dated 26 May 2016, page 50.
Dr Thakur reported that the Applicant’s current treatment was physiotherapy and oral medications. Dr Thakur further reported that the Applicant had planned review with a Specialist Neurologist and ENT.[33] There is no evidence before me that the Applicant saw an ENT.
[33] Exhibit 1, T Documents, T4, Medical Certificate of Dr Thakur, dated 6 January 2016, page
49.
I accept the Respondent’s contention that the Applicant’s Vestibular Neuropathy condition had not been diagnosed in the way prescribed by the Impairment Determination, which is a mandatory diagnostic requirement.[34] Further, the Applicant has not provided any medical information in relation to treatment or the impact of this condition at the Relevant Period. As such, I cannot be satisfied that this condition is fully treated and fully stabilised.
[34] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 19 January 2018,
paragraph 39; Impairment Determination, Introduction to Table 11.
GORD condition
The Respondent contends that the GORD condition was not fully diagnosed, fully treated and fully stabilised. I accept the Respondent’s contention based on medical evidence that the Applicant’s Vestibular GORD Condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.
The Tribunal notes that the Applicant has indicated in his evidence to this Tribunal that he does not want his GORD condition considered in this review. For completeness, I will discuss this condition briefly.
On 14 September 2016 and 14 February 2017, Dr Lodge confirmed that the Applicant had a GORD condition and stated that:
He is undergoing gastroscopic surveillance…particularly given recent discovery of intestinal metaplasia involving a duodenal polyp, just distal to the pylorus.[35]
[35] Exhibit 1, T Documents, T12, Report of Dr Lodge, dated 14 September 2016, page 91;
T17, Report of Dr Lodge, dated 14 February 2017, page 101.
On 19 August 2016, Dr Thakur stated that the Applicant had a planned Gastroscopy with Dr Thompson.[36] Dr Thakur stated on a medical certificate dated 19 September 2016 that the Applicant had a planned Gastroscopy in November.[37]
[36] Exhibit 1, T Documents, T10, Medical Certificate of Dr Thakur, dated 19 August 2016,
page 88.
[37] Exhibit 1, T Documents, T14, Medical Certificate of Dr Thakur, dated 19 September 2016,
page 93.
Based on the material before me, I am not satisfied that the Applicant’s condition was fully diagnosed, as outside the Relevant Period he still required gastroscopic surveillance. Further, the Applicant has not provided any medical information in relation to treatment or the impact of his condition at the Relevant Period. As such, I am not satisfied that this condition is fully treated and fully stabilised.
CONCLUSION
On the basis of the evidence before me, I am not satisfied that the Applicant’s impairments were fully treated and fully stabilised during the Relevant Period.
Therefore, I am unable to assign the Applicant any Impairment Rating Points under the Impairment Tables and as a consequence, the Applicant does not satisfy the requirement under section 94(1)(b) of the Act. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work.
DECISION
For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

..........................[SGD]..............................................
Associate
Dated: 27 July 2018

Date of hearing: 20 March 2018

Applicant: By Telephone

Advocate for the Respondent: Claire Campbell

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 2509

27 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	20 March 2018
Applicant:	By Telephone
Advocate for the Respondent:	Claire Campbell
Solicitors for the Respondent:	Sparke Helmore