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

[2023] AATA 1305

Gault and Secretary, Department of Social Services (Social services second review) [2023] AATA 1305 (23 May 2023)

Division:GENERAL DIVISION

File Number(s):      2022/4372

Re:Richard Gault

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member P Ranson

Date:23 May 2023

Place:Brisbane

The decision under review is affirmed. That means Mr Gault’s DSP application dated 19 June 2021 is unsuccessful.

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

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 – impairments not more than 20 points – where Applicant has not established conditions are stabilised

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Member P Ranson

23 May 2023

BACKGROUND

1. Mr Gault is in his late sixties and suffers from multiple heath conditions. He applied for a Disability Support Pension (“DSP”) in 2021, which was refused and is the subject of this decision. He applied for a DSP again in 2022, which has been approved. He believes his claim in 2021 should be approved because his 2022 claim was approved. The law requires each claim to be considered separately.

2. To be successful with a DSP claim, Mr Gault must demonstrate he has physical, intellectual or psychiatric conditions which are fully diagnosed, treated and stabilised and which attract at least 20 points under the relevant tables, and he must demonstrate he has a continuing inability to work.[1] All of that must occur at the date of his claim, 19 June 2021, or within 13 weeks of that date; that is, by 18 September 2021 (the application period).[2] Centrelink’s position is he does not meet or exceed these requirements.

   [1] Social Security Act 1991 section 94.

   [2] Respondent’s Statement of Facts, Issues and Contentions (SFIC), paragraph 5.2; Social Security (Administration) Act 1999 (Cth) Sch 2, Pt 2, subclause 4.

3. Mr Gault referred Centrelink’s refusal of his 2021 DSP application to the Social Security Division of this Tribunal (AAT1), which agreed with Centrelink and affirmed the decision. He then applied to the General Division of this Tribunal for a review of that decision.

4. The issues to be decided are firstly whether Mr Gault’s health conditions attracted at least 20 points having been fully diagnosed, treated and stabilised on 19 June 2021 or by 18 September 2021. If so, did he have a continuing inability to work at that time.

5. To resolve those issues, the evidence must show each condition has been diagnosed by a suitably qualified medical practitioner, which may not be a general practitioner, and whether all available treatments have been exhausted at the time of application or within 13 weeks thereafter.

6. For the following reasons, the decision under review is affirmed. That means Mr Gault’s application for a DSP in 2021 is unsuccessful.

Mr Gault’s health conditions

1. In his application on 19 June 2021, Mr Gault listed the following medical conditions, which he said were fully diagnosed, fully treated and fully stabilised and which caused him a continuing inability to work. He said these conditions commenced in approximately September 2011.

   (a)Cardiomyopathy arising from CABG (coronary artery by-pass graft) referred to by the Secretary as coronary artery disease.

   (b)Narcolepsy.

   (c)Spondylosis (referred to by the Secretary as lower back pain) and including a neck disorder, right hip osteoarthritis, concomitant gluteal and possible hamstring tendinopathy.

2. The Secretary comments in the SFIC on other conditions including:

   (i)    Nocturia and prostatomegaly; and

   (ii)    Bilateral knee osteoarthritis.

3. Each will be assessed separately in this decision by reference to the evidence provided by Mr Gault, and by the Secretary of the Department of Social Services.

How is each condition to be assessed?

1. A condition must be fully diagnosed by a suitably qualified medical practitioner to meet the requirements of the legislation. The Secretary sets out in detail in the SFIC how the terms fully diagnosed, fully treated and fully stabilised are to be assessed.

2. Paragraph 5.15 the SFIC says in determining whether a condition is fully diagnosed and fully treated, consideration must be given as to whether there is corroborating evidence of the condition, and what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next 2 years.[3]

   [3] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Table Rules) paragraph 6(5) for the purposes of paragraphs 6(4)(a) and (b) of the Impairment Table Rules.

3. Paragraph 5.16 of the SFIC states a condition is fully stabilised if:

   (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 2 years;

   (b)if the person has not undertaken reasonable treatment for the condition significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (c)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[4]

   [4] Impairment Table Rules (n 3) section 6(6).

4. In summary, a person has a continuing inability to work because of an impairment if the impairment is sufficient to prevent the person from doing any work independently of a program of support within the next 2 years and either:

   (a)the impairment is sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (b)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. [5]

   [5] Social Security Act 1991 section 94(2).

Cardiomyopathy

1. The Secretary agrees that Mr Gault’s coronary artery disease is fully diagnosed and has been since 2011 when he had a coronary artery by-pass graft (CABG). Up to January 2017 this condition was described by Dr Yong Wee, a cardiologist at The Prince Charles Hospital, as stable and no further appointments were required unless he became symptomatic again. His medication at that time included a trial of a Statin which he was unable to tolerate.[6]

   [6] T17.

2. Mr Gault said at the AAT1 hearing this condition had worsened and his medication had been increased. He said Dr Wee wanted to undertake two further operations since arrhythmia had been found, which suggests further medical intervention was contemplated, although the timing of that was not identified. That suggests treatment of his cardiomyopathy was, at that time, continuing or was planned, making it not fully treated and stabilised.

3. In an undated statement, Dr Samantha McLean reports Mr Gault’s ischaemic heart disease is stable, maximally treated and has been so for more than two years.[7] Her report says he was: ‘last seen in August 2021 – enclosed’. She doesn’t say who he was last seen by in August 2021 and the report said to be enclosed was not attached to her report. Dr McLean is a general practitioner, not a cardiologist.

   [7] Exhibit 4: Undated statement by Dr Samantha McLean, filed 10 October 2022 and refiled 13 December 2022.

4. Mr Gault provided a five-page statement where he sets out his understanding of his medical conditions.[8] This statement only provides evidence about orthopaedic and cardiology conditions. He says page 5 of that statement is a letter from Dr Wee said to be in 2021 stating: “As he has remained stable, I have not made any further appointments to see him”. However, that letter from Dr Wee is referred to above and dated 12 January 2017, not 2021. Because the letter pre-dates his application by over four years it does not assist Mr Gault’s claim in June 2021.

   [8] T5; T2, pages 23 to 28.

5. Dr McLean writes on 9 March 2022 about Mr Gault’s heart condition and confirms his condition is stable.[9] She also comments he suffers shortness of breath on minimal exertion and his condition “is currently stable on his medication with recent investigations including a stable echo”. The reference to a recent echo appears to be a reference to an echocardiogram conducted by Lime Radiology on 11 August 2021, which is within the application period.[10] The report notes the procedure was carried out prior to seeing a cardiologist and the atrial flutter, aortic root and ascending aortic dilatation revealed by this procedure was not seen in a similar procedure on 21 November 2014.

   [9] T2, pages 32 to 34.

   [10] T39.

6. Importantly, Dr McLean says Mr Gault was last seen by his cardiologist in late 2021 and that is possibly what he was referring to on page 5 of his statement; however as mentioned above, that letter dates from 2017, not 2021. There is no report from Dr Wee in 2021 available for the Tribunal to consider. Given Mr Gault saw Dr Wee in late 2021, and without knowing the exact date of that consultation, it may not assist his claim if it was after 18 September 2021 unless it refers to his condition in the application period and the Tribunal’s role is not to speculate.

7. A suitably qualified medical practitioner for diagnosis of heart conditions includes a cardiologist, for example, Dr Wee. Absent a report from a cardiologist referring to his condition on 19 June 2021 or during the application period which confirms Mr Gault’s heart condition is fully treated and fully stabilised, no points can be assigned to that condition notwithstanding the comments by Dr McLean.

Narcolepsy

1. According to the Brain Foundation:

   ”Narcolepsy is a neurological disorder that causes episodes of unpreventable sleep. These episodes can occur frequently and at inappropriate times, for example while a person is talking, eating or driving. Although sleep episodes can occur at any time, they may be more frequent during periods of inactivity or monotonous, repetitive activity”. [11]

   [11] Narcolepsy - Brain Foundation <

2. At AAT1, Mr Gault gave evidence he had this condition even though he had not seen a specialist. He said that was because his doctors advised him there are no specialists for narcolepsy, which is contradicted by the medical certificates from Dr McArthur dated 6 August 2014 and 5 November 2014 which say he is awaiting specialist care.[12]

   [12] T9; T11.

3. Mr Gault’s documentary evidence is confined to Exhibit 5 which makes no reference to narcolepsy and the SFIC, which refers to the two medical certificates discussed above, none of which provides evidence this condition was fully diagnosed by a suitably qualified medical practitioner, such as a sleep specialist, much less fully treated and fully stabilised at the time of application on 19 June 2021 or during the application period. As such, no points can be assigned to this condition.

Spondylosis

1. On 13 March 2020, Mr Gault attended I-Med Radiology at Strathpine where a non-contrast examination of the lumbar spine was performed due to him experiencing lower back pain with right lower leg radiation in L5 distribution. The findings by Dr Anubhav Sarikwal were as follows:

   “There is grade 1 anterior spondylolisthesis of L4 over L5 but no evidence of any pars [interarticularis] defects seen. Background of severe osteopenia noted. Minor scoliosis with convexity to the right side of the lumbar spine. Moderately severe spondylosis with multilevel disc desiccation in the form of loss of disc height and vacuum phenomenon. There are multilevel short pedicles” ^.[13]

   [13] T23; T5, pages 2 and 3.

2. The Secretary also agrees Mr Gault’s lower back pain is fully diagnosed and asserts there is no medical evidence of specialist advice at the relevant time to support a finding this condition has been fully treated and fully stabilised.

3. The SFIC points to the medical certificate dated 18 March 2020 from Dr Archibald McArthur, who is a general practitioner, in which he says Mr Gault needs to see a spinal specialist.[14] Then on 24 March 2020, Mr Gault attended Redcliffe Hospital where he was seen by an intern who discharged him into the care of Dr McArthur for pain management and notes:

   “Pain not adequately controlled. No red flags. He has already seen multiple GPs, an acupuncturist. He already has had a neurosurgical referral made last week and is waiting to hear back about an appointment for this. He was given indomethacin 100mg PR and Endone 5mg in ED. He was able to mobilise independently with crutches.” [15]

   [14] T25.

   [15] T27.

1. Dr Christopher Fielder, who is an osteopath, writes on 14 December 2021 about Mr Gault visiting Northside Therapies on 1 April 2020 ‘complaining of acute on [sic] chronic lower back pain’.[16] He discusses the difficulties Mr Gault has with activities of daily living and concludes:

   “It is in my professional opinion that Richard [Mr Gault] will have lower back pain for the rest of his life, based on both his presentation in clinic, his imaging results and the chronic nature of his musculoskeletal disabilities”.

   [16] Exhibit 3: Supporting letter from Dr Christopher Fielder dated 14 December 2021 and filed 13 December 2021.

2. Mr Gault does see a musculoskeletal physiotherapist at Metro North Hospital where Oliver Rowley reports to Dr McLean on 24 October 2022 about his progress and says:

   “Thank you for reviewing Mr Gault regarding his right thigh pain. He was referred to the Orthopaedics Spine service last year by a GP colleague. Mr Gault reports some improvement with two physiotherapy session at North Lakes and his thigh pain is now intermittent albeit worsening again recently. After the two sessions he requested self-discharge as he was content with his symptoms and did want to further progress his management.”

3. As to the outcome he discharges Mr Gault and says:

   “Mr Gault presents with mechanical back pain and likely chronic right LS radiculopathy. He does not need further investigation or a surgical opinion in this regard. His main issue is his clinically advanced right hip osteoarthritis and concomitant gluteal tendinopathy.”

4. Despite the results of the examination of his lumbar spine by I-Med Radiology on 13 March 2020 and the recommendation of Dr McLean on 18 March 2020, he see a spinal specialist. However there is no evidence before the Tribunal Mr Gault obtained such specialist advice prior to or during the application period; rather he attended Northside Therapies on 1 April 2020, and he obtained some physiotherapy prior to attending Metro North Hospital on 24 October 2020 where he requested self-discharge ‘as he was content with his symptoms and did not to further progress his management’.

5. The above findings reveal Mr Gault’s spondylosis could not have been fully treated and fully stabilised at the time of application or during the application period because there is no report from a suitably qualified medical practitioner, such as a spinal specialist or neurosurgeon, and as such no points can be assigned to that condition for the purpose of his DSP application on 19 June 2021.

Nocturia and prostatomegaly

1. On 8 September 2021, Mr Gault was examined by Dr Joel Sequerra who is a general practitioner. A copy of his report dated 15 December 2021 addressed to Centrelink includes the results of that examination. Dr Sequerra states Mr Gault has self-reported long standing nocturia and an: “ultrasound scan was conducted on 9 September 2021 [collected on 8 September 2021] by I-Med Radiology which revealed an enlarged prostate which is likely the cause of the nocturia”. The Secretary accepts the diagnosis of prostatomegaly, but not nocturia, because the report from Dr Sequerra concludes by saying: ‘small capacity of bladder with minor increased postvoid residual. There is moderate prostatomegaly.’[17]

   [17] T2, pages 23 and 24.

2. Dr McLean says in her undated report: “He is due to see a urologist”.[18] Again, there is no evidence by a suitably qualified medical practitioner, such as a urologist, confirming the diagnosis of nocturia. She also says: “He has had an USS [Ultrasound Scan] which I enclose …” and again there is no such enclosure. Dr Sequerra diagnoses prostatomegaly but not nocturia, which appears to be self-reported by Mr Gault. A sleep study is recommended by Dr Christopher Hickey on 20 November 2019; however no results of that study, if it occurred, have been provided by Mr Gault.[19]

   [18] Exhibit 4, page 1.

   [19] T22.

3. Absent a diagnosis by a suitably qualified medical practitioner and evidence of the ongoing treatment, there can be no points awarded to these conditions for the 19 June 2021 DSP application.

Bilateral knee osteoarthritis

1. Mr Gault provided sufficient evidence with his application for this review to establish he has bilateral knee osteoarthritis, and the Secretary accepts this condition is fully diagnosed.[20]

   [20] T2, pages 25 to 27.

2. On 28 September 2017, Dr Andrew Patten, who is an orthopaedic surgeon, confirms the diagnosis in a letter to Dr McArthur and discusses the treatment including knee replacement surgery with the expectation of a lengthy recovery of up to 6 months where heavy mechanical activity should be avoided.[21] A further scan was done on 2 August 2022 at the request of Dr Patten, and Dr McClean refers to the results in her undated letter received by the Tribunal on 13 December 2022.

   [21] T18.

3. An Employment Services Assessment Report dated 10 October 2019 notes Mr Gault was waiting for bilateral high tibial osteotomies through the public health system. Importantly, the report also says: “he [Mr Gault] indicated he would not proceed with surgical intervention at this time”.[22] The Tribunal understands a high tibial osteotomy is a surgical procedure to realign the knee joint, which for some patients with knee arthritis can delay or prevent the need for knee replacement surgery later.

   [22] T21, page 167.

4. That appears to be the end of the treatment evidence, because at AAT1 and at the hearing Mr Gault said he did not have the surgery as he was seeking a better alternative such as using stem cells. Either way he said to AAT1 he did not have the funds for such procedures. Nonetheless, further procedures were recommended and that is what fully treated and fully stabilised is referring to.

5. For similar reasons to the Tribunal’s assessment of his other conditions, no points can be assigned to Mr Gault’s bilateral knee osteoarthritis because there is evidence further treatment had been recommended by Dr Patten and this had not been taken to its logical conclusion at the time of this application or during the application period.

Conclusion

1. Mr Gault said at the hearing the AAT1 decision was wrong because it failed to consider ‘a lot of evidence’. After the hearing, the Tribunal provided Mr Gault with a template to enable him to identify the relevant evidence for each of his conditions. This was an opportunity for him to identify the evidence he said was not considered. He chose not to complete the template, so the Tribunal was left to rely on the evidence contained in the T Documents (exhibit 1), the SFIC (exhibit 2) and the reports from Dr Fielder (exhibit 3) and Dr McLean (exhibit 4). The 5-page schedule provided by Mr Gault (exhibit 5) is also an attachment to the SFIC and it was considered.

2. To qualify for a DSP, as Mr Gault has done with his application on 2 September 2022, the conditions identified as contributing to the disability of the applicant must first be fully diagnosed by a suitability qualified medical practitioner, which is not always a general practitioner. Then all avenues for treatment and rehabilitation must be explored to demonstrate the conditions are fully treated and fully stabilised. For the application on 19 June 2021, being the subject of this decision, the latter has not occurred, and the former has occurred albeit not for all the conditions Mr Gault says he had at that time.

1. As stated at the outset, to be successful with a DSP claim Mr Gault must demonstrate he had physical, intellectual or psychiatric conditions which are fully diagnosed, fully treated and fully stabilised and which attract at least 20 points under the relevant tables; and (emphasis added) he must demonstrate he has a continuing inability to work. All of that had to occur at the time of application or within 13 weeks thereof.

2. As the Tribunal has been unable to assign any points to Mr Gault’s conditions there is no utility in considering whether he had a continuing inability to work.

DECISION

The decision under review is affirmed. That means Mr Gault’s DSP application dated 19 June 2021 is unsuccessful.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

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

Associate

Dated: 23 May 2023

Date of hearing:  23 January 2023
Applicant:  Self-represented

Solicitor for the Respondent:             Claire Campbell (HWL Ebsworth)