Death and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1107
•18 July 2017
Death and Secretary, Department of Social Services (Social services second review) [2017] AATA 1107 (18 July 2017)
Division:GENERAL DIVISION
File Number: 2017/0208
Re:Roy Death
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:18 July 2017
Place:Brisbane
The Tribunal sets aside the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review set aside.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gallacher V Secretary, Secretary, Department of Social Services [2015] FCA 1123
Harris V Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Negri and Secretary, Department of Social Services [2016] FCA 879
Re Summers and Secretary, Department of Social Services [2014] AATA 165Secretary, Department of Employment and Workplace Relations V Harris (2007) 97 ALD 534
Secondary Materials
Guide to Social Security Law, the Family Assistance Guide (2016, Cth)
REASONS FOR DECISION
Member D K Grigg
18 July 2017
INTRODUCTION
On 18 July 2016 Mr Death lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as follows:[1]
·chronic obstructive pulmonary disease
·haemochromatosis – high iron levels in blood which also causes skin condition
·alcoholism
·prostrate obstruction
[1] Exhibit 1, T Documents, T 19, pages 122 – 152, Mr Death’s Claim for DSP dated 18 July 2016.
Mr Death claimed that these conditions affect his ability to work because he is “unable to walk further than 50 m [because he] can’t breathe”.[2]
[2] Exhibit 1, T Documents, T 19, page 147, Mr Death’s Claim for DSP dated 18 July 2016.
The Department of Human Services (“Centrelink”) rejected Mr Death’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[3]
[3] Exhibit 1, T documents, T-20, pages 153 – 154, rejection of claim for DSP dated 19 July 2016.
Mr Death had previously claimed DSP in October 2015[4] but a Job Capacity Assessment (“JCA”) conducted in January 2016 concluded that Mr Death’s medical conditions did not attract 20 points or more under the Impairment Tables.[5] There has been no job capacity assessment since Mr Death’s current DSP claim.
[4] Exhibit 1, T documents, T10, pages 67 – 95, claim for DSP dated 1 October 2015.
[5] Exhibit 1, T Documents, T 14, pages 106 – 111, JCA Reported dated 8 January 2016.
Claim History
Mr Death sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Death’s medical conditions did not attract 20 points or more under the Impairment Tables.[6]
[6] Exhibit 1, T Documents, T 23, pages 157 – 163, Decision of ARO dated 5 September 2016.
Mr Death lodged an application for review with the Social Services and Child Support Division (“SSCSD”) on 23 September 2016.[7] The SSCSD rejected Mr Death’s claim and affirmed the ARO’s decision on 14 December 2016.[8]
[7] Exhibit 1, T Documents, T 28, page 169, confirmation of application for review dated 14 October 2016.
[8] Exhibit 1, T Documents, T2, pages 9 – 13, SSCSD’s Decision and Reasons for Decision dated 14 December
2016.
Mr Death has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, pages 1– 8, Ms Death’s Application for Second Review dated 13 January 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Death must have a physical, intellectual or psychiatric impairment;
(b)Mr Death’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[10]
(c)Mr Death has a continuing inability to work.
[10] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Death meets the Section 94 Requirements is the date of the claim (in this instance as at 18 July 2016), unless Mr Death becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[11] Therefore, in order to qualify for DSP Mr Death must have met the Section 94 Requirements between 18 July 2016 and 17 October 2016 (“Qualification Period”).
[11] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Death’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[12]
DID MR DEATH HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[12] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[13]
[13] Determination, s 3.
Mr Death’s medical conditions
In October 2015 Dr Andrew Herborn, General Practitioner and Medical Superintendent at Tully Hospital, provided a treating doctors report confirming that Mr Death had chronic obstructive pulmonary disease and alcohol dependency.[14] Dr Herborn also reported that Mr Death had Porphyria Cutania Tarda (a skin disorder) which was generally well managed and caused Mr Death minimal or limited impact on his ability to function.
[14] Exhibit 1, T documents, T 11, pages 96 – 103, Treating Doctor's Report: Dr Herborn dated 22 October 2015.
A CT scan of Mr Death’s chest in November 2015 showed pulmonary scarring on a background of severe emphysematous lung changes.[15]
[15] Exhibit 1, T documents, T 12,page 104, CT chest report dated 16 November 2015.
In February 2016 Dr Herborn provided a Verification of Medical Conditions Report confirming that Mr Death had severe COPD - polycythaemia and alcoholism.[16]
[16] Exhibit 1, T documents, T 16, pages 113 – 115, Verification of Medical Conditions: Dr Herborn dated 22 February
2016.
Dr Rakesh Gilhotra, Cardiologist, confirmed in September 2016 that Mr Death’s COPD – emphysema was at the end stage and fairly advanced. Dr Gilhotra also confirmed that Mr Death had HEF negative haemochromatosis.[17]
[17] Exhibit 1, T documents, T 26, page 167, report: Dr Gilhotra dated 28 September 2016.
A further CT scan of Mr Death’s chest in February 2017 showed extensive emphysematous changes in both lung fields.[18]
[18] Exhibit 3, CT chest report dated 18 February 2017.
The Secretary accepts that Mr Death suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[19]
[19] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 June 2017, para [22].
Conclusion on Impairment
In light of the above evidence I conclude that at the Qualification Date Mr Death suffered Impairments, namely COPD and alcohol dependency, for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
Whilst acknowledging that Mr Death suffers from haemochromatosis which resulted in Porphyria Cutania Tarda, there is no evidence to establish that this condition affects his functional capacity or caused impairment during the Qualification Period. Dr Herborn reports that this condition causes minimal or limited impact on Mr Death’s ability to function. [20] At the hearing Mr Death said his iron levels, which originally caused the Porphyria Cutania Tarda, had recently changed. He says that he now has low iron levels and is having regular monitoring blood tests. Mr Death did acknowledge that this condition is not relevant to this DSP claim as the condition has not been fully treated and is not fully stabilised.
DOES MR DEATH’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[20] Exhibit 1, T documents, T 11, pages 96 – 103, Treating Doctor's Report: Dr Herborn dated 22 October 2015.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[21] They are function based[22] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[23]
[21] Determination, s 4(2) and 5(2)(a).
[22] Determination, s 5(2)(b) and (c).
[23] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[24]
(a)Mr Death’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[24] Determination, see s 6(3).
Mr Death’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[25]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[25] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[26] the following must be considered:[27]
(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.
[26] For the purposes of ss 6(4)(a) and (b) of the Determination.
[27] Determination, see s 6(5).
A condition is fully stabilised[28] if:[29]
(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 2 years; or
(b)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[30]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[28] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[29] Determination, see s 6(6).
[30] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Mr Death’s medical history, in relation to the condition causing the Impairments.[31]
[31] Determination, see s 6(2).
IS MR DEATH’S COPD IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Secretary concedes that Mr Death COPD Impairment was fully diagnosed, treated and stabilised during the Qualification Period.[32]
[32] Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 June 2017, para 31.
Dr Herborn reported in October 2015 that the impact of Mr Death COPD impairment was expected to persist for more than 24 months and that the effect of his condition would have on Mr Death’s ability to function within the next 2 years was uncertain because it depended upon whether or not Mr Death quit smoking.[33] Dr Herborn confirmed that this condition is permanent and irreversible in February 2016,[34] August 2016[35] and May 2017.[36]
[33] Exhibit 1, T Documents, T 11, page 98, Treating Doctor's Report: Doctor Herborn dated 22 October 2015.
[34] Exhibit 1, T Documents, T 16, pages 113 – 115, Verification of Medical Conditions: Dr Herborn dated 22 February
2016.
[35] Exhibit 1, T Documents, T 22, page 156, Medical Certificate Dr Herborn dated 18 August 2016.
[36] Exhibit 2, Secretary's Statement of Facts and Contentions dated 12 June 2017, Attachment A, Report of Dr
Herborn dated 29 May 2017.
That Mr Death’s COPD Impairment is permanent has also been confirmed by Dr Gilhotra, Mr Death’s cardiologist, “COPD – emphasema end stage” .[37]
[37] Exhibit 1, T documents, T 26, page 167, Report: Dr Gilhotra dated 28 September 2016.
Based on the medical evidence it is clear that during the Qualification Period, Mr Death’s COPD Impairment was permanent for the purpose of the Act and an Impairment Rating can therefore be assigned.
Using The Impairment Tables
I have to assess the level of impact of Mr Death’s COPD impairment against the descriptors[38] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[39]
[38]Determination, see ss 3 and 5(3).
[39] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
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.[40]
[40] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[41]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[41] Determination, see s 7.
I must not take into account the following information in applying the Tables:[42]
(a)symptoms reported by Mr Death in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Death’s local community.
[42] Determination, see s 8.
Which Tables are appropriate are determined by:[43]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[43] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[44]
[44]Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[45]
[45]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[46]
[46]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[47]
[47]Determination, see s 11(5).
Evidence Identifying The Loss Of Function
An Employment Services Assessment Report reported in September 2015 that Mr Death was observed to become short of breath with walking from the waiting room to the interview room and also became short of breath while talking on the interview.[48]
[48] Exhibit 1, T Documents, T 9, pages 64 – 65, Employment Services Assessment Report dated 18 September
2015.
Mr Death claimed in his DSP application that this condition affect affects his ability to work because he is “unable to walk further than 50 m – can’t breathe”.[49]
[49] Exhibit 1, T Documents, T 19, page 147, Mr Death’s Claim for DSP dated 18 July 2016.
Dr Herborn reported in October 2015 that Mr death has poor physical endurance and can only walk about 50 m and that he was unable to do labouring type work.[50]
[50] Exhibit 1, T Documents, T 11, pages 97 – 98, Treating Doctor's Report: Dr Herborn dated 22 October 2015.
Dr Saeid Ahmadpour reported in December 2015 that Mr death had breathing difficulty and was unable to walk more than 100 m due to shortness of breath.[51]
[51] Exhibit 1, T documents, T 13, page 105, medical certificate of Dr Ahmadpour dated 11 December 2015.
The JCA report reported in January 2016 that: [52]
(a)Mr Death has dyspnoea and poor physical endurance;
(b)Mr Death was observed to become short of breath with walking from the waiting room to the interview room and also became short of breath while talking during the interview; and
(c)there is no evidence that Mr Death’s condition impacts on sedentary tasks or concentration.
[52] Exhibit 1, T Documents, T 14, page 107 – 108, JCA Report dated 8 January 2016.
The JCA concluded that the COPD was having a moderate functional impact on activities requiring physical exertion or stamina.[53]
[53] Exhibit 1, T Documents, T 14, page 108, JCA Report dated 8 January 2016.
In February 2016 Dr Albert Liebenberg reported that Mr Death had chronic breathing difficulty and could not walk greater than 100 m due to shortness of breath.[54]
[54] Exhibit 1, T documents, T 15, page 112, medical certificate Dr Liebenberg dated 2 February 2016.
In March 2016 Dr Herborn reported that Mr Death has very poor exercise capacity.[55] in August 2016 Dr Herborn reported that Mr Death’s exercise tolerance was less than 20 metres.[56]
[55] Exhibit 1, T documents, T 17, page 116, medical certificate of Dr Herborn dated 16 March 2016.
[56] Exhibit 1, T documents, T 22, page 156, medical certificate of Dr Herborn dated 18 August 2016.
In September 2016 Dr Gilhotra reported that Mr Death is unable to do any kind of work and noted that his driving license had also been suspended.[57] In October 2016 Dr Gilhotra reported that Mr Death “was unable to do any kind of work now or the future even for 2 – 3 hours because of his underlying lung condition”.[58]
[57] Exhibit 1, T documents, T 24, page 164, Report of Dr Gilhotra dated 21 September 2016; T 26, page 167, Report
of Dr Gilhotra dated 28 September 2016.
[58] Exhibit 1, T documents, T 29, page 171, Report of Dr Gilhotra dated 12 October 2016.
In Mr Death’s application for review by this Tribunal he says that he:[59]
·can walk 20 m with stopping every few meters to catch breath
·has continued coughing day and night
·lives with his brother who is assisting him with daily chores, including shopping, cleaning and cooking.
·is able to use taxis for transport but not buses and trains.
[59] Exhibit 1, T documents, T1, page 3, application for 2nd review of decision dated 13 January 2017.
Sheena Kyte, Mr Death’s sister, provided a statement and gave evidence to the Tribunal saying that Mr Death:[60]
[60] Exhibit 1, T documents, T1, pages 5 – 8, application for 2nd review of decision, emails from Sheena Kyte dated
29 December 2016 and 31 December 2016.
·is not even able to walk 20 m.
·has continuous coughing all day and night and that he sits up most nights for hours because of this.
·has not been able to return to work for nearly 2 years because his condition has deteriorated… It is only a matter of time before he has an oxygen tank
·cannot walk in the supermarket without assistance and that he has immense difficulty and leans on the trolley.
·cannot walk from the car park without assistance and and can only do so if he stops every couple of steps to get his breath.
·has difficulty walking the length of a small yard to collect mail from the mailbox
·has all of his meals and housecleaning done by his brother
·can hang some washing on the line himself with difficulty
·can walk without assistance but requires him to stop every few minutes to catch his breath.
Mr Death told the Tribunal that his condition has deteriorated since January 2016. He said that he has now given up smoking and in the future hopes to qualify for an oxygen tank he can use at home. Mr Death says that he often lies down as it makes it easier to breathe and that he simply cannot work in his current condition.
Relevant Impairment Table And Impairment Rating
Table 1 of the Determination, which deals with Functions requiring Physical Exertion and Stamina, is the relevant Table.
The introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac
failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing
Mr Death submits that an Impairment Rating of 20 points is the appropriate rating.
The Secretary relies on the JCA which found that an appropriate impairment rating for Mr Death’s COPD impairment was 10 points.[61] However, the JCA was conducted in January 2016, which is six months prior to the date of the DSP claim. Since that time the medical evidence indicates that Mr Death’s condition has deteriorated and Dr Gilhotra says Mr Death cannot work at all, and that he has end stage COPD – emphasema.
[61] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 June 2017, para 32.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities requiring physical exertion or stamina.
The Descriptors for an Impairment Rating of 10 points are:
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)ie unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive orget other transport to local shops or community facilities; or
(ii)has difficulty in performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-relted tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities requiring physical exertion or stamina.
The Descriptors for an Impairment Rating of 20 points are:
(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.
There is no doubt that Mr Death usually experiences shortness of breath and fatigue when performing light physical activities. However, the question is whether Mr Death can walk and use public transport without assistance.
The Secretary submits that the words “without assistance” in the Descriptors for 20 points mean without the assistance of a person in accordance with the Guide to Social Security Law, the Family Assistance Guide (“the Guide”) which is used by the Department.[62] The Secretary says there is no evidence that Mr Death requires assistance from a person.
[62] See 3.6.3.10 of the Guide to Social Security Law.
“Assistance” is not defined in the tables or in the Act.
The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[63]
[63] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
I also note the comments of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 70, that:
....the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
Part 3.6.3.10 of the Guide to Social Security Law (“Guide”) states that “Assistance means assistance from another person rather than aids or equipment the person has and usually uses”.
I note that the Guide’s interpretation was applied by the Tribunal in Re Summers and Secretary, Department of Social Services [2014] AATA 165 in relation to Table 3 of the Determination. However, Table 3 is expressed quite differently to Table 1, which is the table under consideration here, because it expressly refers to its application to persons needing assistance even when they already use aids and equipment. That language is not found in Table 1.
The Macquarie Dictionary Online defines “assistance” as “the act of assisting; help; aid” and “aid” is defined as “someone or something that aids or yields assistance”. I see no reason or basis to import the additional words “from a person” after “without assistance” to Table 1.
The evidence of Mr Death and Ms Kyte is Mr Death does require the assistance of railings and shopping trolleys and needs help walking very short distances.
The Secretary submits that although Dr Herborn and Dr Gilhotra have reported that Mr Death cannot work in any capacity, they did not specifically make reference to the descriptors.
However, as Bromberg J said in Negri v Secretary, Department of Social Services [2016] FCA 879:
43. The examples [in the descriptors] are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
44. The proper course is to consider the "particular examples" (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact-no, mild, moderate, severe, or extreme-applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.
Dr Herborn reports that, as of December 2016, Mr Death’s “COPD was of such severity that he was and remains incapable of…employment in any capacity”.[64]
[64]Exhibit 2, Secretary’s Statement of Facts Issued and Contentions – Attached letter from Dr Herborn dated 29 May 2017.
Given the severity of Mr Death’s COPD Impairment and the medical practitioners repeated assertions that he cannot work in any capacity, I find that an appropriate Impairment Rating under Table 1 is 20 points.
IS MR DEATH’S ALCOHOL DEPENDENCY IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence supports a finding that Mr Death’s alcohol was fully diagnosed during the Qualification Period.[65] This is not disputed by the Secretary.[66]
[65] Exhibit 1, T Documents, T11, page 99, Report of Dr Herborn dated 22 October 2015; T22, page 156, Medical
Certificate of Dr Herborn dated 18 August 2016 noting alcohol dependence syndrome which had lasted for years.
[66] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 12 June 2017, para 42.
Mr Death has attempted detox in the past and had counselling for some months. However, he informed the ARO in May 2016,[67] and confirmed before the Tribunal, that he has returned to drinking and is not currently having any treatment. Mr Death explained that because he recently quit smoking his doctor wants him to focus on that before attempting any further alcohol detox.
[67] Exhibit 1, T Documents, T18, page 121, ARO Notes dated 5 May 2016.
In the circumstances, this condition cannot be considered fully treated and fully stabilised and therefore is not a permanent condition for the purposes of the Act and no impairment rating can be assigned.
DID MR DEATH HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Death’s COPD Impairment was permanent therefore it is necessary for me to consider whether Mr Death had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Mr Death’s Impairment has attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)).
In the case of a severe impairment a person has a continuing inability to work pursuant to section 94(2) if:
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(iii)(the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(iv)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The medical evidence indicates that Mr Death’s COPD Impairment in and of itself is sufficient to prevent the person from undertaking a training activity during the next 2 years.
The Secretary conceded at the hearing that in the event that Mr Death’s condition was found to be severe, the evidence supported a finding that he would have a continuing inability to work.
Therefore, I find that as at the Qualification Period Mr Death had a continuing inability to work under section 94(1)(c)(i).
CONCLUSION
Mr Death satisfied the Section 94 Requirement and therefore qualified for DSP during the Qualification Period.
The decision under review is set aside.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
...........................[Sgd].............................................
Associate
Dated 18 July 2017
Date of hearing
Applicant
3 July 2017
By Phone
Solicitors for the Secretary Department of Human Services
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