Hayles and Secretary, Department of Social Services (Social Services second review)

[2019] AATA 4002

Hayles and Secretary, Department of Social Services (Social Services second review) [2019] AATA 4002 (5 September 2019)

Division:GENERAL DIVISION

File Number:2019/2060                     

Re:Andrew Hayles  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date of decision:                   5 September 2019

Date of written reasons:        2 October 2019

Place:Brisbane

The decision under review is affirmed.

..........................................................

Member D Mitchell

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
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services  [2015] FCA 1123
Hayles and Secretary, Department of Social Services [2017] AATA 1637

REASONS FOR DECISION

Member D Mitchell

Provided Orally:       5 September 2019
Written reasons:      2 October 2019

INTRODUCTION

1. On 15 December 2017, Mr Andrew Hayles (the Applicant) lodged a claim for disability support pension (DSP).[1] On the Applicant’s claim for DSP form[2] he lists his disabilities, illnesses or injuries as ‘head injury, brain injury 22 years ago, poor memory, depression, epilepsy’.

   [1] Exhibit 1, T Documents, T46, pages 254-283, DSP claim form.

   [2] Exhibit 1, T Documents, T46, page 279, DSP claim form.

2. The claim was rejected on 11 June 2018,[3] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 15 November 2018.[4]

   [3] Exhibit 1, T Documents, T55, pages 307-308, Centrelink Notice: Rejection of DSP claim.

   [4] Exhibit 1, T Documents, T56, pages 309-314, Authorised Review Officer Decision and Notes.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

   
   

   17 March 2019.[5]

   [5] Exhibit 1, T Documents, T2, pages 3-13, Decision of the SSCSD.

4. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 8 April 2019.[6]

   [6] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.

5. It is noted that the Applicant has made a number of claims for DSP ranging from at least 2013 and has participated in the Tribunal process in relation to at least 3 previous applications. It is clear that the Applicant has a number of conditions and has sought treatment for those conditions over a number of years.[7]

   [7] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 2-3, paragraphs 7-13; T Documents, T4-T45.

6. At the Hearing, the Applicant was self-represented. He appeared by telephone and gave evidence under affirmation. The Applicant did not call any witnesses. I consider that the Applicant openly responded to questions for the Tribunal and cross-examination for the Respondent and gave honest answers to the questions he was asked. I accept that the Applicant suffers impairments and has gained somewhat of an understanding of the DSP requirements. The Applicant took the Tribunal through the T-documents and Respondent’s Statement of Facts and Contentions in support of his contentions.

7. At the Hearing, the Respondent was represented by Ms Jacky Vetter. The Respondent did not call any witnesses.

8. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.

   THE LAW

9. The relevant law in assessing a person’s qualification for DSP is found in the
   Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.

10. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:

    1.    Does the Applicant have a physical, intellectual or psychiatric impairment;[8]

    2.    Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[9] and

    3.    Does the Applicant have a continuing inability to work?[10]

    [8]  Section 94(1)(a) of the Act.

    [9]  Section 94(1)(b) of the Act.

    [10] Section 94(1)(c) of the Act.

11. The Impairment Tables are set out in the Determination and provide that impairment ratings can only be assigned to an impairment if a person’s condition causing the impairment is permanent and the impairment that results from that condition is more likely than not in light of the available evidence to persist for more than two years.

12. Permanent takes on a specific meaning for the purposes of DSP and as such, to be considered permanent for DSP, the condition must have been fully diagnosed by an appropriately qualified medical practitioner, have been fully treated and fully stabilised and be more likely than not in light of the available evidence to persist for more than two years. As such a condition can be permanent from a perspective of being lifelong but not meet the definition under the DSP requirements.[11]

    [11] Sections 6(3) and (4) of the Determination.

13. To determine 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.[12]

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

14. A condition is considered to be fully stabilised if:[13]

    (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; 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 2 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.

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

15. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a 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.[14]

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

16. If a condition is still in a state of flux or further treatment is being recommended/undertaken it may not be considered fully treated or fully stabilised.

17. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act, further consideration is given to the Applicant’s work capacity.

18. 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 become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[15] 

    [15] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act. Interpretation consistent with: Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].

    Relevant Period

19. In this matter the Relevant Period commences on 15 December 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 16 March 2018.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    Issues

20. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[16]

    [16] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 10, paragraph 52.

21. The remaining issues for the Tribunal to consider are:

    1.Whether, within the relevant period, did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

22. It is noted that the Applicant and Respondent agreed that the Applicant had not met the program of support (POS) requirements. The Applicant subsequently contended that he has a severe impairment and therefore, he considers the POS requirements are irrelevant.

23. The Applicant in giving evidence took the Tribunal to references in the T-documents and it was clear that he was well-prepared for the Hearing. The Applicant told the Tribunal that he only wanted his epilepsy condition considered.  He told the Tribunal that he believes that his epilepsy condition should be assigned 20 points under Table 15 of the Impairment Tables, so his view is that there was no need to consider the other conditions.

24. While the Tribunal accepts the Applicant’s view it would be remiss to not at least briefly refer to the Applicant’s other conditions.

    Chronic headaches and sinusitis

25. Based on the medical evidence before the Tribunal, there is no doubt that the Applicant has a long-standing chronic headaches and sinusitis condition. This point is not in contention.[17]

    [17] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 10, paragraph 46.

26. The Respondent contends that, due to the chronicity of the condition, the Applicant’s chronic headaches and sinusitis condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and attracts an impairment rating of 10 points under Impairment Table 1 which deals with Functions Requiring Physical Exertion and Stamina. The reasoning for this was set out in detail in the Respondent’s Statement of Facts and Contentions.[18]

    [18] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 10-14, paragraphs 44-60.

27. At Hearing, the Applicant told the Tribunal he did not see how Table 1 applies because he did not consider that his conditions fit within the requirements outlined in the introduction to Table 1 of the Impairment Tables.

28. Based on the evidence before the Tribunal, I find that the Applicant’s chronic headaches and sinusitis condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can therefore be assessed under the Impairment Tables.

29. In this regard, I accept the contentions of the Respondent, that the Applicant’s chronic headaches and sinusitis condition can be assigned 10 points under table 1 of the Impairment Tables. There is no corroborating evidence that the condition causes a severe functional impairment.  I further rely on the decision of DP McDermott in Hayles and Secretary, Department of Social Services issued on 6 October 2017[19] in relation to the use of Table 1 and the assignment of impairment points.

    [19] Hayles and Secretary, Department of Social Services [2017] AATA 1637, paragraphs 15-22.

    Sensorineural hearing loss

30. The Applicant was diagnosed by Dr O’Neill, Supervising Otologist in 2013 as having bilateral tinnitus following an MRI in February 2013.[20]  Dr O’Neill reported that the Applicant had a moderate level of tinnitus disturbance and recommended a formal tinnitus therapy program, such as a Neuromonics Tinnitus Treatment and discussed hearing aids of which he said the Applicant was not too keen on.[21]

    [20] Exhibit 1, T Documents, T21, pages 140-141, Report: Alison Jackson.

    [21] Exhibit 1, T Documents, T18, pages 136-137, Report: Dr John O’Neill and T21, pages 140-141, Report: Alison Jackson.

31. In January 2016 Dr O’Neill examined the Applicant and reported that his tinnitus condition had worsened since he was last assessed and he has high frequency sensorineural hearing loss on both sides, worse on the left-hand side.[22]

    [22] Exhibit 1, T Documents, T24, page 163, Report: Dr John O’Neill.

32. The Respondent contends that the Applicant’s sensorineural hearing loss was fully diagnosed however was not fully treated and fully stabilised during the Relevant Period as there is no evidence that the Applicant has been fitted for the recommended hearing aids, or undertaken the Neuromonics Tinnitus Treatment, both of which constitute reasonable treatment for his condition. Further there is no evidence that the condition was unlikely to improve if the Applicant had undertaken recommended treatment.[23]

    [23] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 14-15, paragraphs 61-64.

33. While I accept that the Applicant’s sensorineural hearing loss was fully diagnosed at the Relevant Period, based on the evidence before the Tribunal and the fact that the Applicant himself is not pressing this matter, I find that the Applicant’s sensorineural hearing loss condition was not fully treated and fully stabilised during the Relevant Period. The evidence before the Tribunal in relation to the Applicant’s sensorineural hearing loss beyond 2016 is limited.  There is no corroborating evidence that the Applicant had engaged in recommended treatment.

34. As such I find that the Applicant’s sensorineural hearing loss condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Mental Health Conditions

35. The Applicant was diagnosed by Dr Hadikusumo, Psychiatrist on 20 December 2017 with ‘major depression in the context of multiple medical and physical issues’. At that time Dr Hadikusumo commenced the Applicant on 50 mg of amitriptyline with a view to increasing the dosage to 100 mg to help with depression and hopefully with his ongoing pain.  The doctor planned to review the Applicant in a few weeks to gauge his tolerability to the medication.[24]

    [24] Exhibit 1, T Documents, T48, pages 286-287, Report: Dr Benjamin Hadikusumo.

36. Dr Hadikusumo provided the opinion that the Applicant’s main issues and functional restrictions are not due to his mental health issues.[25]

    [25] Exhibit 1, T Documents, T48, pages 286-287, Report: Dr Benjamin Hadikusumo.

37. Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a mental health condition during the Relevant Period and that his depression was fully diagnosed at this time. This point is not in contention.[26]

    [26] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 17, paragraph 69.

38. The Respondent contends that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period and therefore cannot be assigned an impairment rating.[27]

    [27] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 17-18, paragraphs 69-72.

39. The Applicant told the Tribunal that in reality his mental health condition is currently extreme because of the DSP and Tribunal processes and he was not pressing this condition because he is relying on his epilepsy condition.

40. While I accept that the Applicant’s depression was fully diagnosed at the Relevant Period, based on the evidence before the Tribunal and given that the Applicant wishes not to press this condition as part of this application, I find that the Applicant’s depression condition was not fully treated and fully stabilised during the Relevant Period. The evidence before the Tribunal in relation to the Applicant’s depression is limited.  There is no indication that he has been referred to or engaged in psychological counselling which is usually considered reasonable treatment and further there is no corroborating evidence that significant functional improvement would not have occurred in relation to the Applicant’s depression in the next two years.

41. As such the Applicant’s depression condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Other Conditions

42. The Respondent noted that a number of other conditions had been identified, including the Applicant’s intra-articular right proximal tibia-fibula, bilateral rib fractures + L pneumothorax + pulmonary contusion and left Horner’s syndrome (collectively referred to as other conditions). The Respondent contended that there is insufficient medical evidence regarding the treatment, prognosis, symptoms and functional impact of these other conditions.[28]

    [28] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 18, paragraphs 73-74.

43. Based on the information before the Tribunal, contentions made by the Respondent and that the Applicant is not pressing these conditions, I am not satisfied that the Applicant’s other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s other conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

    Epilepsy Condition

44. On 16 May 2017, Dr Tan, Director of Neurology at the Gold Coast University Hospital provided a report making a diagnosis of probable epilepsy. Dr Tan did not perform a neurological examination at this time and recommended the Applicant commence carbamazepine and present for a follow up appointment in 6 months.[29]

    [29] Exhibit 1, T Document, T40, pages 231-232, Report: Dr Kee Meng Tan.

45. In a further report dated 13 February 2018, Dr Tan confirmed the diagnosis of the Applicant’s epilepsy and reported that the Applicant had commenced carbamazepine in the last 3 months and did not commence it in May 2017 as previously recommended and that the Applicant tolerated this medication poorly because of itch and rash.  Dr Tan recommended a low dose of levetiracetam and a follow up appointment in 4 months.[30]

    [30] Exhibit 1, T Documents, T51, page 295, Report: Dr Kee Meng Tan.

46. Based on the medical evidence before the Tribunal, there is no doubt that the Applicant was diagnosed with epilepsy during the Relevant Period. This point is not in contention.[31]

    [31] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 15, paragraph 65.

47. The Respondent contends that the Applicant’s epilepsy condition was fully diagnosed, however was not fully treated and fully stabilised at the Relevant Period as changes were being made to the Applicant’s medication. Further the Respondent contends that if the Applicant’s epilepsy condition could be considered fully diagnosed, fully treated and fully stabilised at the Relevant Period, based on the applicable evidence it should be assigned zero points noting that the Applicant’s last loss of consciousness was in February 2017 and that there has been no evidence that the Applicant continued to experience episodes of loss of consciousness or altered states of consciousness since commencing the correct medication.[32]

    [32] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 16-17, paragraphs 67-68.

1. In summary at Hearing the Applicant told the Tribunal:

   -He agrees that he has not completed a program of support but that this is irrelevant as he contends that he should be assigned 20 points for his epilepsy condition under Table 15 of the Impairment Tables.

   -He relies on the report of Dr Korol, his general practitioner dated 24 January 2019, which provides:

   I provide this letter in support of the above named patient centrelink disability support pension application in December 2017. 

   Thank you for seeing Andrew, aged 59yrs, who presents as detailed below. Who was diagnosed with epilepsy in 2017 which is permanent and severe medical condition which he is being treated and managed by Neurologist Dr Kee Meng Tan, he also suffers from chronic pain from an accident in his early 20’s, major depression, who is treated by Dr Hadikusumo, who also suffers a declinein memory and concentration from a skull fracture.  Epilepsy and chronic pain conditions are permenant and severe, fully diagnosed, fully treated, and fully stabilised.  Due to the above conditions the patient has zero hours work capacity.[33]

   -The Applicant also referred to the reviewable decision by the SSCSD dated 17 March 2019. In particular, the Applicant drew the Tribunal’s attention to paragraph 27 of that decision where the Member provided:

   The tribunal has considered the available medical evidence and Mr Hayles’ oral evidence and is of the view that the contemporary medical evidence supports the view that the epilepsy, while diagnosed by Dr Tan, was not able to be considered to be fully treated and stabilised at the date of claim in December 2017.  The tribunal recognises that Mr Hayles had episodes of loss of consciousness in February 2017 and August/September 2017 which resulted in physical injuries.  He commenced anti-epileptic medication and due to side effects was changed to a different medication in February 2018.  There is no evidence of any further episodes of loss of consciousness since commencing the levetiracetam.  The tribunal agrees that the epilepsy could now be considered as fully diagnosed, fully treated, and fully stabilised, however this was not the case in December 2017.[34]

   -He asked the Tribunal to look at the full Relevant Period, which stretches from    15 December 2017 to 16 March 2018 and he takes that above reference to the SSCSD decision in his view to support his contentions that his epilepsy condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period.

   -He contends that his epilepsy condition can be considered fully diagnosed, fully treated and fully stabilised and severe even if he had not been having seizures, that this does not change the fact that the condition is severe in his view.

   [33] Exhibit 1, T Documents, T60, pages 322-323, Report: Dr Sergiy Korol.

   [34] Exhibit 1, T Documents, T2, page 9, paragraph 27, Decision of SSCSD.

2. On cross-examination, the Applicant:

   -Confirmed that:

   ohe saw Dr Tan in May 2017 but did not commence the recommended medication until December 2017

   oDr Tan recommended in May 2017 that he take carbamazepine at 100 milligrams for a week and then 200 milligrams thereafter

   oDr Tan recommended a change of medication to low dose of levetiracetam  at 25 milligrams and that he had started to take it

   -When asked why this medication was not on Dr Korol’s letter of 24 January 2019 he said that he probably stopped taking it as his medication had changed to valpro as this would also help with headaches.

   -Said that his medication had also since then changed due to side effects and that he thought that from memory it was causing him diarrhoea, so it was changed.

   -He believes that there was nothing else that could be done for his epilepsy condition that this is a lifelong condition and it is permanent and he is going to require regular reviews.

   -Confirmed that he has had no seizures since February 2017.

   -Provided evidence that in his view the August/September 2017 episode was not an epileptic episode.

   -Stated that just because there are no seizures does not mean that his condition is not permanent. He confirmed that he does not have involuntary loss of consciousness that occurs at least once a week, outside of those that he says are normal side effects of the medication, if you read the box, although he said he cannot be sure because he does not always know.

   -His days during the Relevant Period were normal, like everybody else’s. He made breakfast, showered, got dressed, took walks along the water’s edge and could take public transport when required.

3. The Tribunal accepts the Applicant’s reference to the report of Dr Korol of 24 January 2019 however does not accept the opinion of Dr Korol as his report is not supported by the other evidence before the Tribunal. Further in relation to the reviewable decision by the SSCSD the present Tribunal’s decision must be based on the evidence before it. Even if I could find that the Applicant’s epilepsy condition was fully diagnosed, treated and stabilised, based on the evidence before the Tribunal the Applicant does not satisfy the 20 point descriptor under Table 15 of the Impairment Tables.

4. Based on the evidence before the Tribunal and the evidence provided by the Applicant at Hearing, I find that the Applicant’s epilepsy condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period as the Applicant’s medication was still being reviewed and further specialist reviews were planned by Dr Tan.

5. Accordingly, as I have found that the Applicant’s epilepsy condition is not fully treated and fully stabilised at the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition. 

   Continuing inability to work

6. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

   CONCLUSION

7. It is important to keep in mind that the Tribunal is limited to considering the Applicant’s conditions during the Relevant Period. In this case the Relevant Period is between
   15 December 2017 and 16 March 2018.  This limitation relates to the diagnosis of the conditions, progress of treatment and how the conditions impacted upon the Applicant at that time. 

8. Based on the medical evidence before the Tribunal I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act which included spinal, mental health and other conditions.

9. Based on the evidence before the Tribunal and that provided at the hearing I find that:

   (a)The Applicant’s chronic headaches and sinusitis condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 10 impairment points under table 1 of the Impairment Tables.

   (b)The Applicant’s sensorineural hearing loss, depression, epilepsy and other conditions cannot be considered permanent for the purposes of assigning impairment ratings under the Impairment Tables.

   (c)Consequently, the Applicant does not have 20 impairment points under the Impairment Tables and the requirements of section 94(1)(b) of the Act are not met.

   DECISION

10. Accordingly, the decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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Dated:  2 October 2019

Date of hearing:	5 September 2019
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers