Elvira Grasso and Secretary, Department of Social Services
[2014] AATA 781
•24 October 2014
[2014] AATA 781
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4808
Re
Elvira Grasso
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member
Date 24 October 2014 Place Sydney The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Mr D Letcher QC, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions- Disability support pension – Whether applicant's condition fully diagnosed, treated and stabilised – Whether applicant's impairment is rated 20 points or more under the Impairment Tables – Impairment rating of nil points – Decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999, s 4(1)
Social Security Act, s 94(1)(a), 94(1)(b), 94(1)(c), 94(2)(aa)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011), cll 6(4), 6(5), 6(6), 6(7)
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Hughes and Secretary Department of Social Services [1991] AATA 533
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
24 October 2014
INTRODUCTION
The applicant, Ms Grasso claimed disability support pension ("DSP") on 14 February 2012. A Centrelink officer rejected the Applicant’s DSP claim. On 13 September 2012 the Social Security Appeals Tribunal ("SSAT") affirmed the Centrelink officer’s decision. The Applicant applied to this Tribunal on 26 October 2012 seeking a review of the SSAT decision.
LEGAL BACKGROUND
Unlike many other reviews undertaken by the Tribunal, this Tribunal is not able to undertake a hearing based upon the state of the applicant's health conditions at the hearing date. The applicant's state of disability at the time of the hearing is not the issue. Under Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the role of the AAT is to decide whether the applicant establishes a case for DSP at the time of the notice to claim DSP was made or in the 13-week period thereafter: Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. Therefore, the relevant period in question is from 14 February 2012 to 15 May 2012 (“the relevant period”). That is, the applicant's health conditions as assessed after 15 May 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal except in so far as they throw light on the conditions during the relevant period.
The relevant legislative provisions are contained in section 94(1) of the Social Security Act 1991 (Cth) (“the Act”):
94 Qualification for disability support pension
1A 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;
…
The respondent accepts that the Applicant has physical impairments and satisfies section 94(1)(a) of the Act. She specified in the DSP application the conditions of :
(i)Conn's syndrome secondary to an adrenal tumour;
(ii)Diabetes mellitus;
(iii)Hypertension; and
(iv)Cervical spondylosis
For an impairment rating to be assigned, the conditions causing the impairment must be considered "permanent". Clause 6(4) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”) provides that the condition causing the impairment is “permanent” if it is:
(i)fully diagnosed by a health practitioner qualified to make such a diagnosis;
(ii)fully treated – meaning given all reasonable treatment;
(iii)fully stabilised- significant improvement unlikely within the next two years; and
(iv)the condition is more likely than not, in light of available evidence, to persist for more than 2 years
Unless the condition causing the impairment satisfies each of the criteria in (a), (b), (c) and (d), it cannot be given an impairment rating under the Impairment Tables.
Clause 6(5) of the Impairment Tables provides further guidance in deciding whether a condition has been “fully diagnosed” and “fully treated”. The following must be considered:
1)whether there is corroborating evidence of the condition; and
2)what treatment or rehabilitation has occurred in relation to the condition; and
3)whether treatment is continuing or is planned in the next two years.
In deciding whether a condition is “fully stabilised”, the Tribunal must consider whether the person has undertaken reasonable treatment (within the meaning of clause 6(7) of the Impairment Tables); and whether any further reasonable treatment is likely to lead to significant functional improvement enabling the person to undertake work in the next two years (clause 6(6) of the Impairment Tables).
In order to establish a “continuing inability to work” (“CITW”) where the person's impairment is not a severe impairment, the Tribunal must be satisfied that the applicant has actively participated in a "program of support" (as specified in Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011), and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years (section 94(2)(aa) of the Act).
However, an assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is "permanent" (as defined above), it will not be taken into account when assessing CITW.
ISSUES
The questions before the Tribunal for determination are:
1)whether the Applicant’s impairments attract an impairment rating of 20 points or more under the Impairment Tables pursuant to section 94(1)(b) of the Act; and, if so
2)whether the Applicant has a CITW pursuant to s 94(1)(c) of the Act.
FACTUAL BACKGROUND
The applicant is a 45-year old nurse who worked full-time, often on rotating shifts, in hospitals until January 2010. She then suffered recurrent hypoglycaemic episodes with high insulin levels, raised blood pressure, palpitations and muscle weakness. She became morbidly obese and housebound, had a fulltime carer and was grossly restricted in her activities. She has not worked since January 2010.
The applicant has a tumour of the adrenal gland resulting in Conn's syndrome of labile hypertension, muscular weakness and metabolic disturbance. In addition, or partly as a result of the tumour, she has Type II diabetes and morbid obesity. She complains of cervical spondylosis causing pain and restriction in her neck.
The applicant gave evidence by telephone from her home in the presence of her cousin who is her full-time carer. The applicant said she was unable to attend the hearing in person because she cannot walk distances or stand for any periods of time. She also said that she cannot sit in one position, has recurrent "hypos" (low blood sugar episodes) and has extremes of high blood pressure.
The applicant said that from January 2010 she has been almost wholly immobilised without physical assistance. She maintains that she has not refused adrenal tumour surgery but her doctors have refused to operate. On questioning she said that the risks of general anaesthetic and surgery to remove the tumour were greater than any expected benefit. She said she was unable to lose weight because she was unable to exercise, required frequent food to forestall “hypos” and she saw no prospect of her medical conditions improving. The applicant's carer gave evidence to the same effect.
The medical reports tendered by the respondent gave a different picture. Dr Kidson, endocrinologist and Dr Campbell, endocrine surgeon, noted that they had urged the applicant before and during the relevant period to engage in exercise, weight loss and Metformin therapy to make adrenal surgery safer. They believed that this surgery would benefit her and would at least reduce her hypertension.
The applicant told the doctors that she had followed this advice but the records showed that she had not. On 1 September 2012 she told Dr Kok, her treating Endocrinologist, that she had been going for one hour to the gymnasium (but agreed in her evidence that she had not attended a gymnasium since 2010). Dr Kok noted that she was "resistant" to taking Metformin and he had "tried to convince her to go back on" it. He asked her to start exercising as much as she could tolerate. Four days later, Dr Campbell noted that her weight was static and she told him that "the exercise is going well".
The applicant called Dr Philippa Harvey-Sutton, specialist occupational physician, who saw the applicant once on 22 January 2014. The doctor took the view that it was the applicant's obesity which restricted her functioning. She described the obesity as secondary to the other health conditions, being Conn's syndrome, diabetes mellitus and hypertension. However, because she did not have specialist qualifications in the fields of the other conditions (e.g. endocrinology) she stated that she was unable to express any views as to the effects, treatability or duration of any of those underlying conditions.
I found this unwillingness to venture any opinion an unusual approach for an occupational physician. I note that obesity was not a condition indicated on the DSP application form. Dr Harvey-Sutton believed that morbid obesity was defined as a Body Mass Index (BMI) of over 44, although she was unable to point to any published standard or protocol to that effect. There was no doubt that the applicant was at all relevant times morbidly obese.
I also found novel Dr Harvey-Sutton’s opinion that the obesity was "fully treated" because the endocrinologists had advised the applicant to exercise, diet and take Metformin (a diabetes treatment influencing metabolic disturbance). The receipt of that advice, in Dr Harvey-Sutton’s opinion, constituted full treatment. The fact that the applicant did not follow the advice did not affect Dr Harvey-Sutton's view. She said that in the past a doctor would insist that a treatment be followed but more recently the patient's view had to be accepted and frequently the patient did not act on the advice. I find it difficult to accept that a doctor "fully treated" a condition by giving advice which the patient did not put into effect. Even if the doctor felt unable to do more, that did not mean that the condition was correctly described as being "fully treated".
The applicant's evidence was that she had lost a few kilograms, which Dr Harvey-Sutton agreed was "only minimal". The only exercise the applicant did was walking within the house property attended by the carer. The endocrinologists' reports indicated that the applicant ceased or reduced the dose of Metformin, despite advice to continue and to increase it.
Dr Harvey-Sutton believed that the condition of morbid obesity was likely to remain unchanged for over 24 months – which indeed was the case. However, this situation was brought about by the applicant’s refusal to comply with simple and reasonable medical advice. In fact, the applicant did not tell the truth to her doctors. She did not undertake an exercise program, did not have an effective diet and did not take the Metformin as prescribed.
In my view, the obesity was not "fully treated" within the relevant period. Nor were the other health conditions relied upon in the DSP application. The consensus of medical opinion is that the obesity is secondary to the other conditions and the loss of function is directly attributable to those conditions. The morbid obesity affects the cervical spondylosis by putting extra stress on that area of the spine and by restricting neck movement. Effective treatment of the labile hypertension from Conn's Syndrome and the hypoglycaemic episodes from the diabetes was not undertaken because the applicant declined (or was unable) to follow the advice of her treating doctors. Her stated reason for declining surgery on the tumour (that the risk was greater than any likely benefit) is not supported by any medical opinion.
My conclusion from the evidence is that the applicant and her carer prefer their own view of the nature and management of her health conditions. The problem is that they believe there is no means of improving or curing those conditions although the expert clinicians disagree and offer clear alternatives. In Re Hughes and Secretary Department of Social Services AATA 533, 16 August 1991 the Tribunal held that, where the applicant could have taken some simple measures to reduce the level of incapacity but declined to do so, it did not regard the injury as ”permanent” within the meaning of the Act. In the present case, I regard the applicant's refusal to follow specialist medical advice, which is likely to lead to improvement, as a major factor in each of her health conditions being not “fully treated". I believe her failure to follow the advice is unreasonable and unjustifiable.
CONCLUSION
None of the health conditions relied upon in the application for DSP are "fully treated" and hence they are not “permanent” within the meaning of the Act and Impairment Tables. Unless and until the applicant’s conditions are “permanent” they cannot be assigned an impairment rating. The applicant has not satisfied section 94(1)(b) of the Act. Therefore, it is not necessary for the Tribunal to consider the issue of CITW under section 94(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher QC, Senior Member ...........................[sgd].............................................
Associate
Dated 24 October 2014
Dates of hearing 12 and 18 August 2014 Solicitors for the Applicant Mr S Sutherland, Logical Legal Solicitors Solicitors for the Respondent Dr S Thompson, Sparke Helmore
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