Donaghue and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 162
•22 March 2013
[2013] AATA 162
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4384
Re
MATTHEW DONAGHUE
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 22 March 2013 Place Brisbane The Tribunal affirms the decision under review.
.................[Sgd]...............................................
Ms Mary Desses, District Registrar
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Condition fully diagnosed, treated and stabilised – Condition permanent – Impairment Tables – No impairment of 20 points or more – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
INTRODUCTION
The applicant, Mr Matthew Donaghue, suffers from epilepsy. On 24 April 2012, Mr Donaghue expressed his intention to claim disability support pension (“DSP”) and subsequently lodged a claim on 26 April 2012. On 23 May 2012, the respondent rejected the claim on the basis that Mr Donaghue was assessed as having less than 20 impairment points.
On 25 July 2012, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 30 August 2012.
The application for review of the decision by the Administrative Appeals Tribunal (“AAT”) was lodged on 28 September 2012.
APPLICANT'S CASE AND CONTENTIONS
Mr Donaghue was diagnosed with epilepsy when he was 15 years old. He was determined not to let the condition rule his life. He did not let the condition prevent him from pursuing a career and has been employed, mostly in full-time jobs, all of his adult life. Mr Donaghue was managing well; he had very few seizures, held a driver’s licence until 2008 and had worked in the hospitality industry for most of his life. About two years ago he decided to change jobs and commenced working for WorkCover Queensland (“WorkCover”). The decision to change jobs was prompted by his desire to cease shift work and find a nine-to-five job. Mr Donaghue's epilepsy had started to become less well-controlled and he was suffering from seizures every couple of months. He thought that as well as changing his medication, changing jobs and ceasing shift work may help reduce the stress in his life and help stabilise his epilepsy.
Changing jobs did not work; Mr Donaghue's epilepsy continued to deteriorate. The frequency of his seizures, both grand mal and petit mal, increased. Mr Donaghue said that, with the wisdom of retrospect, quitting his work at WorkCover was the worse decision he made. He was not under any pressure to leave other than the pressure he self-imposed. His employer tolerated his seizures. Each time he had a seizure, an ambulance was called and he was taken to hospital. His supervisors never spoke to him about his seizures, however, he felt bad about the fact that he did not carry his weight or fair share of work when he had seizures. He was aware his employer was trying to run a business.
After leaving WorkCover Mr Donaghue returned to working in hotels. At the hearing Mr Donaghue said that he was working at the Indooroopilly Services Club and the Royal Exchange Hotel a total of 40 hours a week after he first left WorkCover. During working hours Mr Donaghue had four seizures, an ambulance was called and he was taken to the Royal Brisbane Hospital. He decided to cut his working hours back to 10 hours a fortnight after he was shown a video of himself having a seizure. This was because he thought about the damage to his brain cells that must be happening during a seizure.
Mr Donaghue is currently working 10 hours a fortnight because that is the number of hours he thought Centrelink allowed him to work and still qualify for DSP. Mr Donaghue told me he felt capable of working 10 hours a week. He said he prefers to keep his working commitments to 10 hours a week to keep the possibility of having a seizure in public as low as possible. He wants to get the management of his seizures better under control before he commits to more working hours. He is embarrassed about the possibility of having a seizure in public, such as on public transport.
Although he can do many activities of daily living, Mr Donaghue contends he should not have to work and use public transport, enduring the fear of the possibility that he may have a seizure whilst in pubic and unaccompanied on his way to and from work.
Mr Donaghue described how epilepsy affects him. He has grand mal seizures where his whole body shakes and he loses consciousness. Although Mr Donaghue has previously claimed that this type of seizure had been occurring as frequently as once a month, he agreed when questioned that they might not have been that frequent. Mr Donaghue said that his wife was familiar with how to care for him when he had a seizure and, therefore, it was rarely necessary for an ambulance to be called, hence his seizures prior to his separation from his wife in April 2012 were not all documented. Mr Donaghue also experiences sudden unpredictable movements of his limbs. He has been advised not to use his iron by his doctor. He also has periods of mental absences when his mind blanks out. This can happen several times a week.
Mr Donaghue shares a home with a friend, however the relationship is very independent and Mr Donaghue is responsible for his own cooking and self-care. This friend was sharing the house with Mr Donaghue and his wife prior to the couple’s separation in April 2012. His friend pays less rent and therefore is happy to do more of the cleaning. The property has a pool, however Mr Donaghue is unable to use the pool or clean it unless someone else is present. Mr Donaghue was mowing the lawn until recently when he had a seizure. The lawn mower was lost during that incident. Mr Donaghue’s landlord has recently given him notice to quit the premises on the basis that he is unable to maintain the garden and lawn. Mr Donaghue said this is because he has no lawn mower.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for disability support pension. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:
·must have a physical, intellectual or psychiatric impairment;
·his impairment must be of 20 points or more under the Impairment Tables;[1] and
·he must have a continuing inability to work.
[1] See Social Security Act 1991 (Cth), s 23, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
Under sch 2, cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the applicant made the claim or within 13 weeks of that date. For Mr Donaghue’s claim for DSP, that period is from 24 April 2012 to 24 July 2012.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), which was made by the Minister pursuant to sub 26(1) of the Act on 6 December 2011, it is necessary to determine whether Mr Donaghue’s condition or conditions can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.[2]
[2] See cl 6(3) of the Determination
A condition is permanent if it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.[3]
[3] See cl 6(4) of the Determination.
Mr McQuinlan, for the respondent, accepts that Mr Donaghue’s epilepsy is a condition that is fully diagnosed, treated and stabilised and is permanent. The Secretary considers the appropriate table to assess the condition under is Table 15 of the Impairment Tables contained in the Determination, which refers to “Functions of Consciousness”. I accept that this is the appropriate impairment table for a condition such as epilepsy.
The descriptors and corresponding points under Table 15 relevant to this matter are set out as follows:
Table 15 – Functions of Consciousness
Points Descriptors 0 There is no functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.
(1) The person does not experience loss of consciousness or an altered state of consciousness during waking hours when occupied with a task or activity.
5 There is a mild functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.
(1) The person:
(a) either:
(i) has rare episodes of involuntary loss of consciousness, which:
(A) occur no more than twice per year; and
(B) do not usually require hospitalisation; or
(ii) has episodes of altered state of consciousness, which:
(A) occur no more than twice per year; and
(B) do not usually requiring hospitalisation; and
(b) is able to perform most activities of daily living between episodes; and
(c) may have restrictions on a driver’s licence due to the medical condition.
10 There is a moderate functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.
(2) The person:
(a) either:
(ii) has episodes of involuntary loss of consciousness:
(A) which occur more than twice each year but not every month; and
(B) which require the person to receive first aid measures and occasionally emergency medication or hospitalisation; or
(ii) has episodes of involuntary altered state of consciousness:
(A) which occur at least once per month; and
(B) which are less than 30 minutes in duration; and
(C) during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and
(b) is able to perform many activities of daily living between episodes; and
(c) is unlikely to be granted a driver’s licence and may have other safety-related restrictions on activities; and
(d) is not able to attend work, education or training activities on a full‑time basis and is restricted due to safety issues in the work‑related activities that they can undertake.
20 There is a severe functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.
(1) The person:
(a) either:
(i) has episodes of involuntary loss of consciousness:
(A) which occur at least once each month; and
(B) which require the person to receive first aid measures and may require emergency medication or hospitalisation; or
(ii) has episodes of altered state of consciousness:
(A) which occur at least once per week; and
(B) during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and
(b) is unable to perform many activities of daily living between episodes; and
(c) cannot obtain a driver’s licence on medical grounds and has other safety-related restrictions on activities; and
(d) is unable to attend work, education or training activities, for at least 15 hours per week.
If an impairment falls between two impairment ratings the lower of the two ratings must be assigned. The higher rating must not be assigned unless all the descriptors for the level of the impairment are satisfied.[4]
[4] See cl 11(1)(c) of the Determination.
CONSIDERATION
In the medical report supporting Mr Donaghue’s application for DSP, completed by Dr Jasveer Bali on 19 April 2012, there was no mention of a mental health condition. Mr Donaghue was referred to see a psychologist and a psychiatrist in early July 2012. In a letter dated 28 August 2012, clinical psychologist Dr Amber Fitzell stated that Mr Donaghue did not commence treatment for his mental health problems until 26 July 2012. As this was after the 13 week qualifying period and the condition was not fully treated, it is not able to be given an impairment rating.
Dr Bali also noted that Mr Donaghue has diverticulitis, a condition that was stated to be generally well-managed and cause minimal or limited impact on his ability to function. It therefore cannot be given an impairment rating.
Neurologist Dr Dan McLaughlin has been treating Mr Donaghue for his epilepsy since March 2012. In his report dated 31 January 2013, Dr McLaughlin said Mr Donaghue self-reported experiencing generalised tonic clonic seizures on average once or twice a month. This is inconsistent with the frequency reported in the job capacity assessment of Ms Vanessa Knowles on 8 May 2012, in which she recorded that the last seizure was on 5 May 2012 and the one prior was three months earlier. Ms Knowles noted that the frequency of seizures was every two to three months. At the SSAT hearing, Mr Donaghue said that until March 2012 he was having grand mal seizures approximately every two months, which increased after March 2012 to once or twice a month. He attended hospital for his seizures on 5 May, 6 August and 20 August.
Under cross-examination, Mr Donaghue confirmed that the frequency of his seizures was the same as that reported by Ms Knowles. I find that during the 13 week period in question, Mr Donaghue was having episodes of involuntary loss of consciousness more than twice a year but not every month.
Mr Donaghue is totally independent in regard to all activities of daily living. Although his general practitioner may have advised him not to use his iron, I note that Dr McLaughlin does not prohibit this activity but notes that Mr Donaghue is anxious about undertaking it. Until three weeks prior to this hearing Mr Donaghue was mowing his own lawn. Apart from cleaning the pool and swimming without another adult present there are few activities Mr Donaghue cannot undertake. I find that Mr Donaghue can perform most activities of daily living between epileptic episodes.
Mr Donaghue told me he lost his driver’s licence in 2008 after he was involved in a car accident. He did not reapply for a licence and is not eligible to apply until he is seizure-free for a 12-month period. I find that Mr Donaghue is unlikely to be granted a driver’s licence as a result of his epilepsy.
After working for WorkCover for 18 months, Mr Donaghue gave up his full-time job at WorkCover and commenced full-time hospitality work. He was not pressured to give up the work at WorkCover and there is no suggestion that he was unable to complete that work competently or successfully. Mr Donaghue resigned from WorkCover only weeks before applying for DSP. I do not accept that during the 13-week period in question Mr Donaghue was not able to attend work, education or training activities on a full-time basis. I accept that he is restricted due to safety issues in the hospitality industry; however, entering that industry was a choice that Mr Donaghue did not have to make. He has skills that make him suitable for employment in a similar job to the WorkCover job that he resigned from.
When considering the rating from Table 15 in the Determination, all the descriptors of a level must be satisfied before that rating can be assigned. Mr Donaghue meets most of the requirements for the allocation of 10 points from Table 15, however the fact that he was able to work on a full-time basis during the relevant time period means that he does not satisfy all of the descriptors. I find that the most appropriate impairment rating from Table 15 is 5 points. As Mr Donaghue does not have 20 impairment points he does not meet the requirements for DSP in s 94 of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.
....................[Sgd]....................................................
Associate
Dated 22 March 2013
Date of hearing 13 February 2013 Applicant In person Advocate for the Respondent Mr R McQuinlan, Departmental Advocate
0
0
0