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

[2019] AATA 5309

Fisk and Secretary, Department of Social Services (Social services second review) [2019] AATA 5309 (12 December 2019)

Division:GENERAL DIVISION

File Number(s):      2018/0442

Re:Lara Fisk

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R Maguire, Member P Ranson

Date:12 December 2019

Place:Brisbane

The Tribunal affirms the decision under review.

..........[SGD]...........        ............[SGD]................

Member R Maguire            Member P Ranson

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed

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

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Member R Maguire, Member P Ranson

12 December 2019

INTRODUCTION

1. On Monday 8 August 2016, Mrs Lara Fisk (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”)[1].

   [1] Exhibit 1, T Documents, T19, pages 114 – 145, DSP Claim form.

2. The claim was rejected on 4 February 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.

   [2] Exhibit 1, T Documents, T23, pages 155 – 156, Centrelink Notice: Rejection of DSP claim.

3. The decision was reviewed by an Authorised Review Officer (“ARO”) who affirmed the decision to refuse the application for DSP on 18 September 2017.[3]

   [3] Exhibit 1, T Documents, T33, pages 178 – 189, Authorised Review Officer Decision and Notes.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal which affirmed the decision of the ARO on 4 January 2018,[4] on the basis that whilst the Applicant satisfied s.94(1)(a) of the Act, she did not satisfy s.94(1)(b). Having made this finding, the SSCSD did not address the issue of continuing inability to work.

   [4] Exhibit 1, T Documents, T2, pages 6-13, Decision of the SSCSD (AAT1).

5. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an Application for Review received on 22 January 2018.[5]

   [5] Exhibit 1, T Documents, T1, pages 1 – 5, Application for Review.

6. The Review was heard on 24 August 2018 by Senior Member Clauson who subsequently became ill and was unable to continue with the matter. This review was subsequently reconstituted to the present members for the purpose of preparing a decision based on the evidence at the hearing.

7. At the hearing, the Applicant appeared in by telephone, was self-represented, and gave evidence under affirmation.

   THE LAW

8. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (“the Administration Act”) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).

9. The Administration Act requires that in order to receive DSP payments, an Applicant must be qualified for DSP either on the date of application, (in this instance Monday 8 August 2016) or become so qualified at some stage within the period of 13 weeks following,[6] i.e. up to Monday 7 November 2016 (“the qualifying period”).

   [6] Clause 4 of Schedule 2 of the Administration Act, discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.

10. Section 94 of the Act prescribes the criteria that must be met during the qualifying period in order to receive payment of DSP. For present purposes, the relevant part of this section is:

    94 Qualification for disability support pension

    (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 20 points or more under the Impairment Tables; and

    (c)     one of the following applies:

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

    (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

11. The Impairment Tables referred to in s. 94 of the Act are set out in the Determination made under s. 26 of the Act, and which came into force on 1 January 2012.

12. The Determination defines “impairment” thus:

    “impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”[7]

    [7] Section 3 of the Determination.

13. Section 5(2) of the Determination provides:

    (2)       The Tables:

    (a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act and

    (b)are function based rather than diagnosis based; and

    (c)describe functional activities, abilities, symptoms and limitations; and

    (d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

14. 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.[8]

    [8] Section 6(1) of the Determination.

15. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[9]

    [9] Section 6(2) of the Determination.

16. An impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent,[10] and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years.[11]

    [10] Section 6(3)(a) of the Determination.

    [11] Section 6(3)(b) of the Determination.

17. Section 8 of the Determination is headed “Information that must not be taken into account in applying the Tables.” Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[12] Moreover, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[13] The table provides the following example in this regard:

    “Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.”

    (emphasis added)

    [12] Section 8(1) of the Determination.

    [13] Section 8(2) of the Determination.

18. The determination provides that a condition is regarded as permanent, if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[14]

    [14] Section 6(4) of the Determination.

19. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[15]

    [15] Section 6 (5) of the Determination.

20. A condition is considered to be fully stabilised if: [16]

    (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 two 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 two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [16] Section 6 (6) of the Determination.

21. Reasonable treatment is treatment that is: available at a location reasonably accessible to the person; is at reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[17]

    [17] Section 6(7) of the Determination.

22. The Determination sets out that, in selecting the applicable Table,[18] it is necessary to:

    (a)identify the loss of function; then

    (b)refer to the table related to the function affected; then

    (c)identify the correct impairment rating.

    [18] Section 10 of the Determination.

23. In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[19]

    [19] Sub-sections (3) and (4) of section 10 the Determination.

24. Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[20]

    [20] Sub-sections (5) and (6) of section 10 the Determination.

25. An impairment rating can only be assigned in accordance with the rating points in each impairment table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied, and a rating cannot be assigned in excess of the maximum rating specified in each table.[21]

    [21] Section 11 of the Determination.

26. In order to have a continuing inability to work which is required to satisfy section 94 (1)(c) of the Act a person must meet the criteria of section 94 (2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity during the next 2 years or 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.

27. A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment table.[22]

    [22] Section 94(3B) of the Act.

28. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings is to be determined at the date of claim, or where a person is not qualified on that date, but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[23]

    [23] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.

    CONSIDERATION

29. The Respondent accepts that the Applicant has impairments and that paragraph 94 (1)(a) of the Act was satisfied during the qualification period.[24]

    [24] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 30.

30. The Respondent contends that none of the Applicant’s conditions were fully treated or fully stabilised during the qualification period. On that basis the Respondent contends that none of the Applicant’s resulting impairments can be rated under the Impairment Tables, and accordingly, paragraph 94(1)(b) of the Act was not satisfied.[25]

    [25] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 31.

    Psoriatic arthritis

31. The Respondent accepts that the Applicant’s psoriatic arthritis was fully diagnosed, but contends that it was not fully treated or fully stabilised during the qualification period, and therefore none of the Applicant’s resulting impairments can be rated under the Impairment Tables.

32. In support of this contention, the Respondent relies on the Applicant’s Pharmaceutical Benefits Scheme Patient Summary[26] which provides all scripts filled by the Applicant under the pharmaceutical benefits scheme between August 2013 and 12 June 2018. This showed that the Applicant had not filled any script for methotrexate between December 2014 and December 2016. The Respondent also referred the Tribunal to the Applicant’s treating general practitioners’ advice that the Applicant’s psoriatic arthritis was treated with methotrexate at 20 mg weekly in September 2015. The Applicant told Dr David Spiers on 12 December 2016 that she had “stopped all her medication (except thyroxin)” and Dr Spiers noted “Long chat re consequences of not taking medication. Agrees to take her Janumet and methotrexate so that is a start.”[27]

    [26] Exhibit 3, Attachment A to the Secretary’s Statement of Facts Issues and Contentions.

    [27] Exhibit 3, Secretary’s Statement of Issues Facts and Contentions at page 6, paragraph 34.

    See also Exhibit 1, T Documents, T36, page 208.

33. Dr Spiers did not record the precise date at which the Applicant had ceased her medication.

34. On 30 December 2016, Clinical Nurse Consultant Judy Pitts of Cairns & Hinterland Health Service District wrote to the Applicant’s GP saying in part “She was seen by Dr Rehman, who has asked her to restart her Methotrexate 20mg weekly, which may decrease at a later date.”[28]

    [28] Exhibit 2, ST Documents, ST4, page 428.

35. When the Applicant consulted Dr Zia-Ur Rehman, consultant Rheumatologist at Cairns & Hinterland Health Service District, in March 2017, he “asked her to resume methotrexate and golimumab.”[29]

    [29] Exhibit 2, ST Documents, ST4, page 434.

36. It is clear from the PBS Patient Summary, that between 3 April 2014, and 2 December 2014, the Applicant was dispensed 250 doses of methotrexate, which was sufficient to last her nearly five years

37. A report[30] from Specialist Nurse Judy Pitts of Cairns & Hinterland Health Service District to the Applicant’s GP Dr Watters dated 10 December 2015 said in part:

    “She was reviewed by Dr Reilly who has asked her to reduce her Methotrexate to 15 mg weekly for 4 weeks, and then down to 10 mg weekly. We will stay on this 10mg dose as it does seem to reduce the chance of antibodies being formed to the Golmimumab.”

    [30] Exhibit 2, ST Documents, ST4, page 425.

38. The Applicant was reviewed by her GP on 21 April 2016[31] and it was noted that her psoriatic arthritis was “Well controlled with Methotrexate 20mg weekly and Golimumba. Weaning down to 10 mg Methotrexate and weaning down Golimumab.”

    [31] Exhibit 2, ST Documents, ST4, page 298.

39. A report[32] from Consultant Rheumatologist Dr Paul Reilly of Cairns & Hinterland Health Service District to the Applicant’s GP Dr Watters dated 27 June 2016 appears to be the final medical assessment of the Applicant prior to the commencement of the qualification period. Dr Reilly stated:

    “This lady with Psoriatic arthropathy is reasonably well controlled on Golimumab, 50mg every 4 weeks, and Methotrexate, 20mg per week.”

    [32] Exhibit 2, ST Documents, ST4, page 426.

40. The Applicant was again reviewed by her GP on 8 September 2016[33] and it was again noted that her psoriatic arthritis was “Well controlled with Methotrexate 20mg weekly and Golimumba. Weaning down to 10 mg Methotrexate and weaning down Golimumab.”

    [33] Exhibit 2, ST Documents, ST4, page 304.

41. Notwithstanding this report, in her Statement of Issues Facts and Contentions[34], the Applicant stated as follows:

    “After my husband left me I went off most of my medications due to severe depression caused by the breakdown of my family situation and had my son remove my medications out of my reach as I was very concerned that I would self-harm as I have in the past with medications. I did resume my Methotrexate and other medications as soon as I felt safe enough to do so. There was no significant improvement during the period. Also please note that I have never gone against my treating rheumatologist’s advice concerning my treatment, pharmacological or otherwise. When my rheumatologist has advised me to cease medication as part of my treatment – I have, and when he has advised me to resume my medication – I have. I have fully complied with my rheumatologist and GPs medical instructions when safe to do so.”

    [34] Exhibit 5, Applicant Statement of Issues, Facts and Contentions, Item 33-36.

42. In evidence before the Tribunal, the Applicant gave evidence generally consistent with her statement set out in paragraph 41 of these reasons.[35] The Applicant stated that she went off all medications except thyroxine, and golimumab, but could not recall exactly when she stopped, but said it may have been shortly after she put in her application.[36] 

    [35] Transcript page 32 beginning at line 15.

    [36] Transcript page 32 beginning at line 40.

43. Under cross-examination, the Applicant gave evidence that her husband had left her on 27 July 2016, and she had ceased all of her medication except for thyroxin on or around that date[37]. The present application was made about two weeks later. 

    [37] Transcript page 32 lines 15 to 30.

44. The Applicant confirmed that she did not tell her GP that she had ceased medication,[38] and on 8 September 2016, the GP was still under the impression that the Applicant was still well controlled with methotrexate at 20mg weekly.[39]

    [38] Transcript page 33 beginning at line 9.

    [39] Transcript page 33 at line 25.

45. Thyroxin is prescribed to deal with Hashimoto’s Hypothyroidism.

46. Having regard to the Applicant’s evidence set out in paragraphs 41-44, the Tribunal is not satisfied that the Applicant was fully treated for any condition other than Hashimoto’s Hypothyroidism disease during the qualification period, and it is therefore not permissible[40] to consider assigning an impairment rating for any condition suffered by the Applicant other than Hashimoto’s hypothyroidism.

    [40] Section 6(4) of the Determination.

47. The Respondent had conceded that the Applicant’s Hashimoto’s Hypothyroidism was fully diagnosed, fully treated and fully stabilised during the qualification period. The Respondent relied upon the Health Professional Advisory Unit (“HPAU”) opinion report[41] and the report of Dr Watter dated 21 April 2016[42]. The HPAU report had assigned an impairment rating of zero points under DSP Impairment Table 1 – Functions requiring Physical Exertion and Stamina to the Applicant’s Hashimoto’s Hypothyroidism.

    [41] Exhibit 1, T Documents, T33 pages 178-189, at page 179, Authorised Review Officer Decision and Notes.

    [42] Exhibit 3, Respondent’s Statement of Issues Facts and Contentions at paragraphs 55-57.

48. The Applicant made no reference to her Hashimoto’s Hypothyroidism in her Statement of Facts, Issues and Contentions, and barely touched on it in her evidence. Having regard to the HPAU report, the Tribunal accepts that the Applicant has Hashimoto’s Hypothyroidism was fully diagnosed, treated, and fully stabilised during the qualification period, however in the absence of any evidence of significant resulting impairment, the Tribunal assigns a rating of zero under Table 1 – Functions requiring Physical Exertion and Stamina.

1. Whilst the Tribunal has considerable sympathy for this Applicant, for the foregoing reasons, the proper course in this review is to affirm the decision under review.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire, Member P Ranson

......[SGD].....................  

Associate

Dated: 12 December 2019

Date of hearing:	24 August 2018
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services