DYGC and Secretary, Department of Social Services (Social security second review)

[2024] ARTA 179

DYGC and Secretary, Department of Social Services (Social security second review) [2024] ARTA 179 (23 December 2024)

Applicant/s:  DYGC

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2023/3250

Tribunal:General Member A. Maryniak KC

Place:Melbourne

Date:23 December 2024 

Decision:The Tribunal affirms the decision under review.

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

General Member A. Maryniak KC

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A)–201(1B) of the Social Security (Administration) Act 1999 (Cth).

Catchwords

SOCIAL SECURITY – application for disability support pension – whether qualified – whether impairment attracts rating of 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – decision under review affirmed.

Legislation

Administrative Review Tribunal Act 2024 (Cth)
Impairment Tables and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
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)

Statement of Reasons

1. The Applicant, represented by Victoria Legal Aid, seeks review of a decision dated 30 March 2023 affirming an earlier decision rejecting her claim for a disability support pension (DSP).  The claim was lodged on 24 November 2021 (CD). Pursuant to the relevant legislative provisions discussed below the applicable qualifying period is 24 November 2021 to 24 February 2022 (QP).

   ISSUES IN CONTENTION

2. Discussions with the parties have resulted in a narrowing of issues to be determined by the Tribunal consistent with ss 9, 49 and 53 of the Administrative Review Tribunal Act 2024 (Cth). Two agreed questions are before the Tribunal for determination:

   (a)As at the CD or within the QP did the Applicant have a severe impairment attracting an impairment rating of 20 points under Table 1 – Functions requiring Physical Exertion and Stamina, pursuant to s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act)?

   The parties further agree and the Tribunal finds that only if this first question is answered in the affirmative will the Tribunal need to proceed to consider and determine the second agreed question being:

   (b)Whether the Applicant had a continuing inability to work pursuant to s 94(1)(c)(i) of the Act.

3. The parties agree and the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act. It is further agreed and the Tribunal is satisfied that the Applicant’s impairment of Postural Orthostatic Tachycardia Syndrome (POTS) was permanent at the CD, pursuant to ss 6(3) to 6(7) of the Rules for the application of the Impairment Tables (the Rules).[1] It is accepted by the Respondent and the Tribunal is satisfied that the Applicant’s condition of POTS is fully diagnosed, treated and stabilised pursuant to paragraphs 6(4)(a) and (b) and 6(6) of the Rules.

   [1] See Part 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

   LEGISLATIVE FRAMEWORK

4. The hearing is de novo and to be determined upon the body of evidence now before the Tribunal. At the outset the Tribunal appreciates that POTS has had a significant impact upon the health of the Applicant and has presented many challenges to her. The task of the Tribunal is to determine the questions in issue according to law. The Tribunal is to consider the relevant provisions of the Act, the Social Security (Administration) Act 1999 (Cth) and Table 1 of the Impairment Tables and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth).

5. Table 1 of the Impairment Tables in force from 1 January 2012 and prior to 1 April 2023 is to be applied: s 27(2) of the Act. The Tables are function rather than diagnosis based, focussing upon loss of functional capacity in a claimant. Since the Applicant’s condition is permanent an impairment rating may be applied: ss 6(3)–6(7) of the Rules. If an impairment is considered as falling between 2 impairment ratings, such as 10 and 20 points, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that higher level of impairment are satisfied: s 11 of the Rules.

6. To be allocated 20 points the Tribunal must be satisfied that during the QP the Applicant satisfied the following:[2]

   [2] Part 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

   Points            Descriptors

   20There is a severe functional impact on activities requiring physical exertion or stamina.

   (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)…

   (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)

7. The parties agreed and the Tribunal is satisfied that (1)(a)(ii) is not relevant on the material before the Tribunal. It is implicitly accepted that the Applicant was able to perform that task during the QP as the Applicant did not put this in issue. So far as the remaining tasks in (1)(a) are concerned, the Tribunal must assess all the evidence which relates to the nature and extent of any impairments the Applicant had within the QP and make relevant findings of fact as to whether or not the Applicant should be allocated 20 points under Table 1. If the Tribunal concludes that the Applicant was unable to do any one of those remaining tasks during the QP then 20 points will be allocated.

   CONSIDERATION

8. The Tribunal has considered the documentary evidence comprising exhibits A1 to A3, R1 and R2 together with the testimony of the Applicant, Dr Jennifer Coller, Dr Rahul Samanta and the written and oral submissions of the parties.

9. The Applicant sets out the development of her POTS condition prior to the QP in her witness statement,[3] and gave some testimony about it. On 20 December 2021, within the QP, Dr Hamer, her then treating cardiologist, reported that the Applicant’s symptoms since 2018 included ‘light headedness or faintness occurring frequently’ sometimes causing her to ‘collapse unconscious’. She also developed ‘a degree of physical fatigue and mental fogging, affecting her concentration and memory over time’.[4]

   [3] Exhibit A1, [8]–[14], [20].

   [4] T9 pp.45–6.

10. The Applicant in her Statement of Facts, Issues and Contentions highlights various earlier assessments of the Applicant’s impairment, mainly based upon information provided by the Applicant including a Job Capacity Assessment Report of 30 March 2022,[5] and a government-contracted doctor report of 8 April 2022.[6] Such reports, as then informed, recommended that allocation of an impairment rating of 20 points. However, such reports did not have the benefit of the totality of evidence now before the Tribunal, hence they are of very limited weight in the balancing task the Tribunal has to perform in assessing all of the evidence now before it. Further, consistent with this observation, the Respondent does not concede before this Tribunal that the Applicant should be allocated 20 points under Table 1.

    [5] T12.

    [6] T13.

11. Dr Coller has been the Applicant’s treating cardiologist since October 2022, some 7 months after the QP. The Applicant relies upon Dr Coller’s letter dated 26 June 2024.[7] Dr Coller states, inter alia, that whilst formerly under the care of Dr Hamer the Applicant’s:

    … medication regime, including midodrine and ephedrine were being administered via private script, meaning that [the Applicant] was required to pay hundreds of dollars out of pocket for them, in addition to covering the costs of multiple private specialists and expenses of living away from home.

    The only means by which she could pay for these medications was by working – while this was an extremely challenging and confronting prospect for her due to her severe fatigue, brain fog and syncopal episodes, she had no choice if she were to maintain any quality of life.

    This motivation behind the Applicant working during the QP mirrors the reasoning she outlined in her witness statement and her testimony. The Tribunal accepts that these circumstances during the QP were challenging, however such circumstances are not relevant to the task of assessing the Applicant’s functional capabilities within the QP, in order to allocate the appropriate points to any impairment under Table 1. Of critical relevance to this task is an examination of the Applicant’s working duties and capabilities, and associated functional abilities, which are evidenced from actual work shifts she performed throughout the QP, as discussed below.

    [7] Exhibit A2.

12. In the absence of the details of the extent of the shifts and hours worked by the Applicant both during the QP and beyond, Dr Coller was of the view that if, during the QP, the Applicant had worked for 15 hours a week that ‘would have posed a significant risk of syncope and injury’. If she was to:

    … undertake work for at least 15 hours a week, she would have needed to be able to work part time, pace herself and have regular breaks (not usually provided in the industries in which she was working). She would need to have (sic) maintain adequate hydration and had (sic) access to her medications at all times. Due to significant brain fog, she would also have struggled to maintain concentration for the purposes of training.

13. Dr Coller testified as to her qualifications, properly accepting she was not an Occupational Health Physician. She stated that Dr Hamer had provided her with a handover document of 36 pages regarding the Applicant. This document was not before the Tribunal. Dr Coller’s retrospective views of the Applicant’s symptoms and related impairments within the QP were to a large extent based upon self-reporting by the Applicant, supplemented by some limited information from Dr Hamer. For example, the Applicant’s significant ‘work life’ during the QP was essentially not discussed by Dr Coller with Dr Hamer. However, Dr Hamer did report on 20 December 2021,[8] during the QP, that the Applicant’s ‘ability to work is affected by her work environment, although appropriate changes to the requirements in the workplace has (sic) been successful in allowing her to work part time’. Dr Hamer would have known the Applicant had been working significant hours in the weeks prior to him reaching this conclusion in his report. He was of the opinion that with adjustments the Applicant was working successfully. Dr Hamer has since retired and the Tribunal was informed that the Applicant was unable to locate him to further assist the Tribunal during the hearing, regarding the Applicant’s actual impairments during the QP. Further, the Tribunal notes no general practitioner treating the Applicant during or around the QP provided any evidence in this regard.

    [8] T9.

14. Dr Coller was of the opinion that the Applicant’s POTS symptoms would have been present during the QP. Dr Coller maintained her view that the Applicant’s risk of injury through syncopal events remained even in light of the fact that the Applicant had worked within a range of 14.4 hours to up to 50 hours per week during the QP and beyond.

15. The Applicant relied upon further opinion evidence from Dr Samanta who wrote a letter on 2 December 2022, about 9 months after the QP, noting the Applicant’s ‘significant impairment of her ability to do day to day activities’.[9] Interestingly, Dr Samanta wrote that the Applicant ‘will not be able to work more than 15 hours per week for the next few years [from at least 2 December 2022] and this is likely to be chronic’. He then stated that from the date of her diagnosis by a colleague on 29 July 2019 the Applicant’s ‘impairments resulting in her ability to work were consistent … when she was diagnosed’.

    [9] Exhibit A3.

16. Both Dr Coller and Dr Samanta’s opinion evidence as to the Applicant’s actual impairments during the QP are of limited weight. This is especially so when compared to a critical component of evidence now before the Tribunal, which they did not have access to prior to forming their opinions. That more recent evidence provides a complete picture of the Applicant’s working history at the Shepparton Club both during the QP and beyond, being the Shepparton Club Timesheets Report (SCTR),[10] the detail of which the Applicant accepts as accurate. In addition to this, from late 2021 within the QP the Applicant was also working significant hours as a swimming instructor for Advance Fitness.[11] There is a disconnect between the evidence of the Applicant’s working capabilities and the views of Dr Coller and Dr Samanta discussed above.

    [10] See ST2 pp.195–285.

    [11] Annexure D to the Respondent’s Statement of Facts, Issues and Contentions; ST1.

17. The SCTR provide an essentially contemporaneous snapshot of the Applicant’s functional capabilities during the QP. The Applicant accepts the correctness of the details of hours worked which comprise the SCTR. Whilst acknowledging that adjustments were made, and without even including the additional work the Applicant was able to do as a swimming instructor during the QP, the Tribunal notes the Applicant was able to complete about 31 reception shifts of between 8.5 hours and 2.5 hours within the QP. Further, the Applicant was able to work as a bartender for about 18 shifts of between 8.5 hours and 2.5 hours,[12] with a couple of those shifts being in the gaming section. In total, throughout the QP, the Applicant worked about 286 hours at the Club, hence averaging about 22 hours per week. Importantly, the Applicant was capable of working shifts for between 2 and up to 5 days consecutively on a number of occasions during the QP. This reality is contrary to information the Applicant provided which formed the basis of the Job Capacity Assessment Report.[13] The Tribunal is of the opinion that the SCTR is the best evidence of the Applicant’s working life throughout the QP and, albeit accepting that adjustments were made, is a true reflection of her functioning abilities in respect of allocating points under Table 1 of the Impairment Tables.

    [12] See SCTR, or 13 shifts as per the Respondent’s Closing Submissions.

    [13] See T12 p.58.

18. As the Respondent highlighted during closing submissions, the duties involved with the reception shifts were not sedentary but were varied and required some physical exertion and stamina. Even more compelling is the fact that the duties involved with the bartending shifts, even allowing for adjustments as to breaks and hydration/medication and the like, would have required even more physical exertion and stamina. 

19. The Tribunal balances this forensically compelling evidence against the non-independent medical opinion evidence which post-dates the QP and the evidence of the Applicant herself. Whilst the Tribunal accepts the very real challenges the Applicant faced during the QP and her reasons for working to, inter alia, pay for expensive medications, on balance the Tribunal gives the SCTR greater weight. Informed by such critical evidence the Tribunal must assess what the Applicant’s functional capabilities were during the QP.

20. The reality is the Applicant was able to work for considerable hours and shifts during the QP. The Applicant was able to successfully perform significant shifts with some intensity and regularity. In addition, the Applicant did some shifts as a swimming instructor during the QP, albeit with adjustments, accepting that such work within the pool was less challenging for the Applicant. 

21. The clear evidence of the Applicant’s working life during the QP satisfies the Tribunal that the Applicant would not have been so severely functionally impacted to be unable to perform the tasks within 1(a)(i), (iii) and (iv) during the QP, in order to be allocated 20 points. Further, the necessity for the Applicant to pace herself and approach such tasks with caution, consistent with her condition and the approach she took to her working life, does not mean that she was unable to perform such tasks. Accepting that after some shifts the Applicant would have been very tired due to her condition, the Tribunal does not accept this would have been true throughout the QP. The Tribunal notes, with the Applicant’s condition known to cause brain fog and to affect memory in a negative way, that her recollections within the QP should be given limited weight.

22. Accordingly, in light of these findings it is unnecessary for the Tribunal to consider 1(b) regarding 20 points in Table 1.

    CONCLUSION

23. Therefore, the Tribunal is not satisfied that the Applicant should be allocated 20 points for her condition under Table 1 of the Impairment Tables. However, the Tribunal is satisfied that the Applicant should be allocated 10 points. Without 20 points, s 94(1)(b) is not satisfied and since the requirements of s 94 are cumulative, s 94 is not satisfied. Therefore the Applicant has no entitlement to the DSP as the qualification criteria set out in s 94 are not met.

24. In such circumstances it is unnecessary for the Tribunal to consider any further matters in issue in this Application.

25. As was made clear during the hearing, the Applicant may lodge any further application for a DSP in the future, if she is advised to do so.

26. Finally, the Tribunal notes that the Applicant’s condition has recently stabilised to an extent permitting her to fly to Brazil, South America, she having flown out between the closing of evidence and the resumed hearing for final submissions in this Application.

    DECISION

27. The Tribunal affirms the decision under review.

1.       I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC

……………………[sgd]………………………
Associate

Dated: 23 December 2024

Date(s) of hearing:	18, 19 & 28 November 2024
Counsel for the Applicant:	Ms Gemma Cafarella
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	HWL Ebsworth Lawyers