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

[2019] AATA 5538

Drew and Secretary, Department of Social Services (Social services second review) [2019] AATA 5538 (24 December 2019)

Division:General Division

File Number(s):      2018/5514

Re:Steven Drew

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:24 December 2019

Place:Sydney

The decision under review is affirmed.

............................[sgd]............................................

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – physical & psychological impairments – applicant unable to satisfy qualification criteria under s 94 of Social Security Act 1991 – impairments not fully diagnosed, treated or stabilised – whether impairment 20 points or more – Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member

24 December 2019

INTRODUCTION 24 DECEMBER 2019

1. Steven Drew (“the Applicant”) has applied to the Tribunal for a review of a decision of the Social Services and Child Support Division of the Tribunal, which affirmed the decision of an Authorised Review Officer (“ARO”) of the Department of Social Services (“the Respondent”, also known as “Centrelink”) to cancel Mr Drew’s Disability Support Pension (“DSP”) on 3 July 2018.

   BACKGROUND TO THE PROCEEDINGS

2. Mr Drew is currently 34 years of age and lives in coastal NSW. In April 2005, when he was 20 years old, he began receiving the DSP on the basis of chronic fatigue syndrome (“CFS”) and his spinal condition.

3. In March 2018, the Applicant was sent a notice requesting information in order to review his eligibility for DSP. In June 2018, a Job Capacity Assessment (“JCA”) report was completed by an accredited exercise physiologist. In July 2018, Mr Drew’s DSP was cancelled on the basis that he did not meet the medical eligibility criteria.

4. Mr Drew has four children with his ex-partner who lives interstate. His 14 year old daughter lives with him and his current partner. Mr Drew presented at the hearing by telephone and was self-represented. I found Mr Drew to be an articulate applicant.

5. Unless otherwise stated, the findings of fact in this matter are based on the evidence of the Applicant.

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

6. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of disability support pension.

   94(1) A person is qualified for disability support pension if:

   (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) one of the following applies:

   (i) the person has a continuing inability to work;…

7. Simply put, in order to qualify for the DSP, it must first be established that Mr Drew had one or more physical, intellectual or psychiatric impairments. Second, these impairments must warrant a rating of 20 or more points under the Impairment Tables contained in the Social Security(Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Impairment Tables”). Third, he must have a ‘continuing inability to work’.

8. Noting that the complexity of the eligibility criteria means that any summary risks a degree of oversimplification, in essence to be eligible for DSP, on the day in which payment was cancelled, Mr Drew must:

   (i)Have had conditions which are “permanent”. Permanent in this context means the conditions were fully diagnosed by an appropriate medical practitioner, fully treated, fully stabilised and likely to persist for more than two years.

   (ii)For a condition to be “fully stabilised”, generally the applicant must have undertaken reasonable treatment for the condition and significant improvement to a level enabling the person to undertake work in the next two years is not expected.  

   (iii)If a condition meets these requirements, (meaning it is deemed permanent as it has been diagnosed, treated and stabilised), the medical condition can be assigned a rating against the Impairment Tables which determine the level of functional impact of an impairment.

   (iv)If an applicant is assigned an impairment rating of 20 points or more against the relevant Impairment Tables, they may qualify for the DSP.

   Continuing Inability to Work (“CITW”)

9. Mr Drew was a recipient of DSP from 6 April 2005 up until the cancellation of his pension in July 2018.

10. The Social Security Guide (“the Guide”) explains that meeting the ‘continuing inability to work’ criteria requires Mr Drew be unable to work more than 30 hours per week. The 30 hours per week rule was subsequently reduced to 15 hours per week, but the changes to this test do not apply in Mr Drew’s case because he made a claim for DSP and was receiving payment prior to 11 May 2005.

11. Based on the evidence in the JCA and The Health Professional Advisory Unit (“HPAU”) reports, the Secretary accepts that Mr Drew would not be able to work for more than 30 hours per week within the next two years. Therefore, the Secretary accepts that Mr Drew has a continuing inability to work.

    ISSUES FOR THE TRIBUNAL

12. The Tribunal must determine whether Mr Drew was eligible for DSP at the time it was cancelled. When making this assessment, the Tribunal must consider if Mr Drew meets the criteria in sections 94(1)(a) and 94(1)(b) of the Act. Specifically, at the time his DSP was cancelled:

    (a)Did Mr Drew have a physical, intellectual or psychiatric impairment; and if so

    (b)Did those impairments attract 20 or more impairment points at the time of cancellation? 

    The relevant period

13. Mr Drew’s DSP was cancelled on 3 July 2018 and in considering if it was correctly cancelled, the Tribunal must consider if he was eligible for DSP at this time.

    MR DREW’S MEDICAL CONDITIONS

14. The Secretary accepts, and based on the evidence before it the Tribunal agrees, that Mr Drew had a physical, intellectual or psychiatric impairment during the relevant period such that he satisfies section 94(1)(a) of the Act.

    Spinal conditions

15. Whilst the Secretary accepts the diagnosis of lower back pain, it is submitted that this condition attracts an impairment rating of no more than 10 points under Table 4 (Spinal Function). This table provides, in part:

    10 points - There is a moderate functional impact on activities involving spinal function.

    (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c) the person is unable to bend forward to pick up a light object placed at knee height; or

    (d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

16. The Secretary submits that the Applicant’s GP, Dr Merhulik, confirmed a ‘moderate functional impact on spinal function’. Dr Merhulik also confirmed that the Applicant can place items overhead, but cannot do this repetitively and would ‘not be able to sustain overhead activities’.

17. The HPAU report of 8 April 2019 was prepared by speaking to Dr Heise in March 2019. Dr Heise had seen the Applicant regularly since the Applicant’s DSP was cancelled. He told the medical adviser who authored the report, Dr Armstrong, that the Applicant has a standing tolerance of less than 5 minutes and that he kept changing his posture between sitting and standing and would sit for ‘ten minutes at most’[1].  

    [1] T-documents, p. 339

18. The Applicant contends he has a severe spinal impairment. A severe impairment under Table 4 is described in part as:

    The person is unable to:

    (a) perform any overhead activities; or

    (b) turn their head, or bend their neck, without moving their trunk; or

    (c) bend forward to pick up a light object from a desk or table; or

    (d) remain seated for at least 10 minutes.

19. During questioning from the Respondent, Mr Drew testified that the usual day for him involved a lot of sleeping, ‘sitting around’ and struggling to get out of bed. He said he gets his friends to drive him places and he does not shop for himself. He swims when he can, particularly in the warmer months, because he can float in the water and that is where he feels the least amount of pain. When he goes to the pool, he usually stays for half an hour. He said he cannot cook and he relies on microwave and ready meals. He said his spinal condition and sciatica prevent him from exercising which, combined with a binge eating disorder and depression, creates a vicious cycle.

20. Mr Drew does not take painkillers and is generally exhausted but finds it difficult to sleep. His friends do his grocery shopping because they know how hard it is for him to do it himself. He said he can shower by himself but cannot wash himself properly. He conceded he can wash his hair but it is at greater risk of twisting nerves in his back and could only do so for a short amount of time. Most of the time he avoids placing his arms above his head. His laundry is done by either a friend or his daughter. He watches TV and reads a lot. He says he can only watch TV for two or three minutes or so without shifting and every 20 or so minutes he needs to gets up. He sees a doctor about once a month and  that he is driven there by either a friend or his mum.

21. Mr Drew told the Job Capacity Assessor for the June 2018 JCA report that he was able to walk for 20 or 30 minutes. The JCA[2] states ‘the customer [Mr Drew] also confirmed that … he can stand for two – five minutes before needing to sit he also advised that he can reach items overhead but may not be able to do this repetitively’. Mr Drew told the Tribunal that generally, he cannot stand that long regularly because after a minute or two he is ready to ‘collapse in pain’.

    [2] T-documents, p. 269

22. When asked what condition affects his ability to stand and walk distances he told the Tribunal it was his nerves and sciatica which cause numbness in his toes and legs. He told the Tribunal that he was unable to take public transport because buses are too jerky. He is, however, able to  use taxis.

23. Mr Drew told the Tribunal that his sciatica is a degenerative condition which has become more acute since June 2018. A report by Dr Heise[3] from April 2018 confirms Mr Drew’s sciatica was fully diagnosed. Mr Drew testified  there is nothing he can do to effectively treat the sciatica until he loses weight. Until such time, he says, surgery is not an option for him. However, Dr Heise writes in his report  that  the future treatment plan includes a review by a rheumatologist. Mr Drew concedes that whilst a rheumatologist was recommended by his doctor, he is unable to afford such treatment. 

    [3] T-documents, p. 245

24. A report from Dr Marshall dated February 2004 indicates a CT scan of the Applicant’s lumbar spine showed paracentral disc bulge, most consistent with a disc herniation at L5/S1 ‘suggesting nerve root impingement’[4]. A diagnosis of left side sciatica followed.

    [4] T-documents, p. 111

25. Rheumatologist Dr Dawson wrote to Dr Merhulik in March 2005[5] in which she reported:

    [Mr Drew] is not taking any medication for pain at this time…

    His sciatica is intermittent and tends to occur after exercise. I do not believe his symptoms are severe enough to warrant prescription of a drug such as sodium valproate.

    [5] T-documents, p. 146

26. When asked if his sciatica had changed since 2005, Mr Drew replied ‘110%’. He referred the Tribunal to Dr Heise’s report which is undated but appears to be from early 2018. Whilst Dr Heise’s report lacks detail, Mr Drew said that when he sits down now he loses feeling in both his legs. Symptoms are no longer intermittent and they are much more severe.

27. Given the reported deterioration of his sciatica, Mr Drew was asked if he had considered seeing a specialist for an updated diagnosis. Mr Drew was dismissive of this suggestion. He said he cannot be given any more drugs, physiotherapy does not help and as his obesity eliminated the option of surgery, there was, in his view, no point in doing so. He contends the only positive thing he can do to manage his sciatica is lose weight and this is difficult given he has suffered from obesity for over 10 years.

28. Mr Drew does not drive much himself. As mentioned, he is driven by others including his friends and mother. Mr Drew conceded he would drive  to the Gold Coast in Queensland regularly for a period when he needed to visit his children and particularly, when he was required to do so in order to comply with family court orders.

29. Queensland is a significant distance from the Applicant’s home. Due to the necessity of making many short stops along the way, a six-hour trip would normally take Mr Drew 10 hours to drive. He was for a period making the trip regularly but he said he has never driven it by himself. He told the Tribunal that during those trips he would ‘hardly’ do any of the driving. This is summarised in the JCA report[6] where the assessor writes ‘the customer reported that he often fatigued however he is able to perform all activities of daily living independently and is seeking custody of his four children which require regular visits to Queensland from Port Macquarie. The customer confirmed that he is able to drive to Queensland on a regular basis.’

    [6] T-documents, p. 270

30. Mr Drew told the Tribunal that he currently does not own a car and he could drive for between ten and 20 minutes at a time. He said he had recently lost his drivers’ license after it had been suspended for what he described as a series of parking fines, running a red light and making an illegal U-turn. He confirmed that none of the demerit points had been lost during the trips to Queensland.

    Consideration of spinal condition

31. On the basis of the reports from Dr Heise and Dr Merhulik and the HCAU report, I am satisfied that Mr Drew meets the requirements to be allocated 10 points under Impairment Table 4.

32. Specifically in reference to his sciatica, I find this condition is fully diagnosed but not fully treated and stabilised. The 2005 reports from Dr Dawson are before the Tribunal and this  appears to be the last time the condition was considered by a specialist. Treatment was recommended shortly after the initial diagnosis and again since then.  Mr Drew  concedes that he has chosen not to act on Dr Heise’s more recent recommendation of a new referral to Dr Dawson, in spite of his contention that his condition has deteriorated significantly.

33. Furthermore, Dr Merhulik reported in June 2018 that ‘there is mild functional impact on [Mr Drew’s] mobility as a result of sciatica and that there is no evidence of a moderate functional impact’[7].

    [7] T-documents, p. 267

34. Mr Drew contends that the report from Dr Merhulik should be discounted because he had not seen Dr Merhulik ‘for more than ten years’. The Tribunal accepts Dr Merhulik’s evidence on the grounds that Mr Drew listed Dr Merhulik as his GP in a DSP review form submitted on 23 March 2018[8] and Dr Heise and Dr Merhulik both work out of the same Medical Centre.

    [8] T-44

35. The Secretary submits that no imaging for Mr Drew’s spinal condition has been performed in 13 years up to cancellation date, and there is no evidence to the contrary before the Tribunal. I note the HCAU report agrees that the lack of treatment makes it ‘somewhat difficult to assign an appropriate rating’[9], but that assessment appears to be in reference to Mr Drew’s lumbar condition. That noted, the  goes on to recommend that Mr Drew’s lumbar spine condition be allocated 10 points under Table 4.

    [9] T-documents, 9. 339

36. Mr Drew contends that his sciatica should be considered separately to his lumbar spine condition under Table 3 and that it attracts 10 points. He told the Tribunal that Dr Heise has confirmed the diagnosis and the condition is fully treated and stabilised. To this point, in February 2019, Dr Heise wrote[10] that the condition ‘is fully diagnosed, treated and stabilised’ and ‘fits the definition of moderate impairment’ and should attract 10 points under Table 3. It is difficult for the Tribunal to reconcile Dr Heise’s conclusion that the condition is fully treated and stabilised with his recommendation of a new referral to Dr Dawson[11]. Nonetheless, it is the Applicant’s contention that Dr Heise is the only reliable authority on his sciatica.

    [10] T-documents, p. 336

    [11] T-documents, p . 339

37. Mr Drew further contends that as he has never met the author of the HPAU report and not been consulted by Dr Merhulik for a decade, their evidence should be discounted. He said he is unable to walk from home and he cannot use stairs or steps without assistance. Whilst Dr Heise told the HCAU that Mr Drew would be able to bend to knee level, Mr Drew disagrees with this. Mr Drew is of the view that the pain management options for sciatica are limited to surgery and therefore there is literally nothing he can do for it.  

38. Further, it is Mr Drew’s contention that his spinal condition and sciatica ‘are two entirely SEPARATE CONDITIONS and this is what Centrelink and the Tribunal are failing to recognise’[12].

    [12] Exhibit A1

39. Both conditions have been considered in the course of this review. Cognisant I find the sciatica is not fully treated or stabilised, while Mr Drew contends that his sciatica symptoms are at least in part attributable to Table 3, I note that the Impairment Tables are such that when multiple conditions cause a common impairment, ‘a single rating should be assigned in relation to that common or combined impairment under a single Table’. The Rules for Applying the Impairment Tables state:

    Multiple conditions causing a common impairment

    …

    (6) Where a common or combined impairment resulting from two or more conditions is assessed… it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    Chronic fatigue syndrome (CFS)

40. Before the Tribunal is a Centrelink Review Form[13] from February 2005 which the Applicant has completed. In it he writes, ‘my chronic fatigue kills me ALL the time, I am CONSTANTLY lethargic & weak’.

    [13] T-documents p. 141-45

41. In November 2003, Mr Drew’s GP, Dr Merhulik, reported that the Applicant had been diagnosed with glandular fever and, in a 2005 report from Dr Dawson[14], references a diagnosis of CFS. A JCA Report from January 2010[15] lists CFS as an impairment but assigned it no impairment points because it was included in his ‘chronic pain’ condition. There is scant evidence regarding this condition, its original diagnosis, treatment or its functional impact on Mr Drew at the time his DSP was cancelled. The Secretary is also correct to note in the Respondent’s Statement of Facts, Issues and Contentions that ‘while the Applicant’s CFS is referred to as a diagnosis in numerous reports, there is no report which provides who, when and how the diagnosis of CFS was made (including whether the diagnosis was made in accordance with specific diagnostic criteria)’.

    [14] T-documents p. 136 -137

    [15] T-documents, p. 210 - 16

42. The Secretary notes ‘Dr Heise reported the Applicant engaged in rest and activity modification for one year in 2003, but has not undertaken any other treatment (in the following 14 years), is not undertaking any current treatment and has never engaged with a specialist in relation to this condition’[16]. To this point Mr Drew acknowledged that he had not discussed CFS with Dr Heise. He says he has gone to see Dr Heise for other things and he could not recall if the condition was reviewed.

    [16] Exhibit R3

1. Notably, in relation to CFS the HPAU report states:

   CFS is a clinical diagnosis made by excluding other relevant conditions with appropriate history-taking, clinical examination and investigation using specific diagnostic criteria … so this condition cannot be fully diagnosed, treated and stabilised, as of the date of cancellation. Furthermore the … criteria indicate that severe obesity and untreated depression would exclude a diagnosis of CFS [emphasis added].

2. On this basis, I am satisfied that Mr Drew’s CFS was not fully diagnosed, treated or stabilised at the time his DSP was cancelled and attracts an impairment rating of zero points.

   Mental health condition

3. Mr Drew writes[17] that he has found it difficult to seek help for his mental health condition on account of the ‘heavy stigma surrounding men and mental health’. He has, however seen a clinical psychologist for ‘PTSD, depression and anxiety including many suicidal attempts’. This may in part account for mental health not being listed as a condition in the 2010 JCA.

   [17] T-documents, p. 289

4. The Applicant says he has taken medication for his mental health in the past but it did not work. Mr Drew told the Tribunal that Dr Heise has prescribed anti-depressant medication recently but that he has yet to fill the prescription. An email from Mr Drew is before the Tribunal which is dated August 2018. It makes for difficult reading. He details his struggles, his care for his children and the battle to address his multiple health conditions. He also states that his previous appointments with a clinical psychologist followed a period of homelessness. Evidence is referenced in the HPAU report, which notes that a diagnosis of mild depression and anxiety was made by Mr Drew’s GP in April 2018.

5. The Secretary contends that at the cancellation date, Mr Drew said he had been ‘seeing people’ for his mental health issues but this had been a reference to family and friends, which he said was adequate and appropriate given the difficulty in accessing appropriate and affordable mental healthcare where he lives. Mr Drew told the Tribunal at the hearing that he had found it difficult to find a specialist who provided bulk-billing near where he lives.

6. Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. For the purposes of Table 5 (Mental Health Function) examples of corroborating evidence include reports or assessments from treating doctors. Noting this, the Tribunal has insufficient evidence to determine that Mr Drew’s mental health condition is fully diagnosed, treated or stabilised. 

   Morbid obesity

7. There is evidence in the medical history of the Applicant that he has been attempting to manage his obesity as early as 2005 when Dr Dawson makes reference to it. In the 2018 JCA it was noted that Dr Merhulik said Mr Drew weighed 190kg in December 2017 but “[Dr Merhulik] is not aware of any treatment such as referral to a dietician or weight loss exercise program”.

8. Mr Drew said he has seen a dietician on approximately four or five occasions when he was living in the Central Coast, which he dated to between 2011 and 2013. He says he has no reports from a dietician or exercise physiologist.

9. I am satisfied that Mr Drew’s morbid obesity was fully diagnosed but not fully treated and stabilised at the time his DSP was cancelled.

   Gastro-oesophageal Reflux Disease (GORD)

10. In 2005, it was recommended that Mr Drew see a surgeon regarding anti-reflux surgery and it is reported that it was a chronic condition in a report by Dr Merhulik in May 2007[18].  The most current evidence of impact to function dates back to October 2009 when Dr Harris reported that has ‘NIL’ impact on Mr Drew’s ability to function[19].

    [18] T-documents, p. 183

    [19] T-documents, p. 206

11. I am satisfied that there is no evidence this condition is fully treated or stabilised or of any impairment it may cause the Applicant. 

    CONCLUSION

12. For the reasons I have stated, I am satisfied that the impairments suffered by Mr Drew rated a total of 10 points at the time of cancellation. On this basis, the decision to cancel his DSP will be affirmed.

13. Having considered the Applicant’s history in detail both on the documents and during the hearing, I am cognisant that Mr Drew has been a recipient of DSP for the vast majority of his adult life and that he will be disappointed by the outcome of his appeal.

14. Mr Drew may apply for DSP again at any time.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...............................[sgd].........................................

Associate

Dated: 24 December 2019

Date(s) of hearing:	25 October 2019
Date final submissions received:	24 December 2019
Applicant:	By phone
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services