Igor Grabovsky and Secretary, Department of Social Services
[2014] AATA 522
[2014] AATA 522
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0740
Re
Igor Grabovsky
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 31 July 2014 Place Sydney (1) The Tribunal sets aside the decision under review refusing Mr Grabovsky’s claim for the Disability Support Pension (DSP) and remits the matter to the Respondent with a direction that Mr Grabovsky’s eczema is fully diagnosed, treated and stabilised and so should be assessed for the assignment of impairment points under Table 14 of the Impairment Tables.
(2) Prior to making its assessment, the Respondent should invite Mr Grabovsky to provide further evidence about the impact of his eczema on his ability to function.
(3) Having made its assessment, if Mr Grabovsky’s conditions attract at least 20 impairment points, the Respondent should then proceed to determine whether he has a continuing inability to work with a view to its ultimate determination as to whether Mr Grabovsky is qualified for the DSP.
.........[Sgd]...............................................................
Deputy President RP Handley
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether condition is permanent – whether condition fully treated and stabilised during the relevant period
PRACTICE AND PROCEDURE – medical evidence from outside the relevant period that the condition was intractable – whether Tribunal can consider evidence outside the relevant period in determining the correct and preferable decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 35
Social Security Act 1991 (Cth) ss 42, 94, 94(1), 94(2), 94(5)
Social Security (Administration) Act 1999 (Cth) s 13, cl 4 Sch 2SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President RP Handley
31 July 2014
Mr Grabovsky has applied to the Tribunal for the review of a decision of the Social Security Appeals Tribunal (SSAT) to affirm a decision of Centrelink to refuse his claim for the disability support pension (DSP).
BACKGROUND
Mr Grabovsky was born in 1961 and is aged 52. He lives with his wife. He last worked as a video editor in July 2006 and is currently receiving newstart allowance.
Mr Grabovsky lodged a claim for the DSP on 21 December 2012, having first contacted Centrelink about this on 13 December 2012. In his claim, Mr Grabovsky listed heart attack(s), heart surgery, eczema, diabetes and stress as his medical conditions. In the Treating Doctor’s Report accompanying his claim, dated 20 December 2012, his General Practitioner (GP), Dr Chrystina Bilinsky diagnosed him as suffering from IHD (Ischaemic Heart Disease) with a date of diagnosis of 1 August 2006, hypertension, hyperlipidaemia, diabetes and eczema. She said Mr Grabovsky has decreased physical endurance and suffers extreme fatigue and poor concentration. Treatment comprises ongoing medication and a cardiac rehabilitation program. The condition is likely to persist for more than 24 months and requires regular cardiology assessment. Contributing factors are his hypertension and hyperlipidaemia.
Dr Bilinsky said Mr Grabovsky’s eczema was diagnosed in 2007-2008. The main cause of the condition is exposure to environmental irritants. The condition is treated with moisturisers, steroid cream, and, in the case of an infection, with antibiotics, and it prevents him working in dusty environments and he is also unable to tolerate exposure to industrial chemicals. The condition is likely to persist for more than 24 months. Dr Bilinsky made no further mention of the treatment or effect of diabetes.
A report by a Job Capacity Assessor (JCA) dated 9 January 2013 found that Mr Grabovsky’s IHD was fully diagnosed, treated and stabilised and attributed an impairment rating of 10 points. However, she found that Mr Grabovsky’s eczema was not fully diagnosed, treated and stabilised because of the lack of corroborating evidence from an appropriately qualified medical practitioner. The JCA found that given the functional impacts of his permanent medical condition, Mr Grabovsky has a future work capacity of 15-22 hours per week.
On 22 January 2013, Centrelink decided to reject Mr Grabovsky’s claim for DSP on the ground that his conditions had been assessed as not attracting the required 20 impairment points. On 9 October 2013, an Authorised Review Officer (ARO) affirmed the decision.
Mr Grabovsky applied for a review of this decision by the SSAT. In an accompanying letter, Mr Grabovsky said he has suffered eczema since childhood, was first diagnosed in the 1970s, and that the condition sets limitations on his employment prospects
On 9 January 2014, the SSAT decided to affirm the ARO’s decision. On 11 February 2014, Mr Grabovsky applied to the Administrative Appeals Tribunal for a review of the SSAT decision.
LEGISLATION AND ISSUES
For his application to succeed, Mr Grabovsky must qualify for the DSP on the date of his claim, being 21 December 2012, or within 13 weeks, that is by 25 March 2013: s 42 and clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act). This is referred to as ‘the relevant period’. Section 13 of the Administration Act provides for the date of claim to be the date on which the person first contacted Centrelink about making a claim, provided the claim form is lodged within 14 days of that contact.
Pursuant to s 94(1) of the Social Security Act1991 (the Act), to qualify for the DSP during the relevant period, a person:
(a)must have a physical, intellectual or psychiatric impairment, or impairments,
(b)which are rated at 20 or more points according to the Impairment Tables, and
(c)must have a continuing inability to work as defined in the Act.
The term ‘continuing inability to work’ is defined in s 94(2). The word ‘work’ is defined in s 94(5) as meaning work of at least 15 hours a week at award wages or above which exists anywhere in Australia.
The Respondent accepts that Mr Grabovsky suffers from IHD, hypertension, diabetes, and eczema, thereby satisfying s 94(1)(a) of the Act. However, the Respondent contends that Mr Grabovsky’s conditions did not attract an impairment rating of 20 points under the Impairment Tables during the relevant period (s 94(1)(b)), and that he did not have a continuing inability to work as defined in the Act.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination).
The following subparagraphs of clause 6 are relevant in relation to the assessment of impairment ratings:
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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; 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.
Note: For reasonable treatment see subsection 6(7)..
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
APPLICATION FOR A CONFIDENTIALITY ORDER
At the commencement of the hearing Mr Grabovsky applied for a confidentiality order to be made in respect of the proceedings on the ground that details of his medical conditions were under consideration. I explained to Mr Grabovsky that the Tribunal is required to conduct hearings in public (pursuant to s 35(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act)) unless satisfied that it is desirable to conduct the hearing in private because of the confidential nature of any evidence or matter or for any other reason (s 35(2) of the AAT Act). In my view, Mr Grabovsky’s medical conditions are not of a particularly sensitive nature and, there being no other relevant ground, I denied his application.
MR GRABOVSKY’S MEDICAL CONDITIONS
Mr Grabovsky said he had been treated unfairly by Centrelink and it is the unfairness of that treatment and of what he alleged was the Department trying to cover up its mistakes that are the focus of his application for review. He said the ARO did not conduct the review properly as a result of failing to consider further evidence in relation to his eczema. The ARO recorded in his notes that he did not request further evidence about Mr Grabovsky’s conditions because Mr Grabovsky was deemed to have a capacity for work of 15 or more hours a week. Mr Grabovsky said the ARO was obliged to make a decision about the assessment of his medical conditions before proceeding to make a decision on his continuing inability for work.
Ischaemic Heart Disease
The Respondent accepts that this condition is permanent and submits that 10 impairment points should be attributed to this condition under Table 1. In the Treating Doctor’s Report dated 20 December 2012, Dr Bilinsky noted that Mr Grabovsky is treated for this condition by a Cardiac Surgeon, Dr Marshman. Dr Bilinsky said the effect of this condition on Mr Grabovsky’s ability to function is decreased physical endurance on exertion and poor concentration.
Mr Grabovsky did not dispute the assessment of 10 points accepted by the Respondent, and having had regard to the evidence before the Tribunal, in my view, such an assessment is appropriate. The relevant Table for assessment of Mr Grabovsky’s IHD is Table 1 - Functions requiring Physical Exertion and Stamina, and descriptors for an assessment of 10 points are set out below.
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Eczema
Mr Grabovsky’s main concern was what he alleged was an unfair assessment of his eczema. In the Treating Doctor’s Report dated 20 December 2012, Dr Bilinsky said the main cause of Mr Grabovsky’s eczema is exposure to environmental irritants as a result of which he is unable to work in dusty environments or to tolerate industrial chemical exposure. Dr Bilinsky said past treatment for this condition had been moisturisers, steroids and antibiotics in the case of an infection. Future/planned treatment involved the regular use of emollients and avoiding irritants. She stated that the condition is expected to persist for more than 24 months and is likely to fluctuate.
Mr Grabovsky said he has suffered from eczema since childhood but, until the time of his heart attack, it was very mild. However, when, after his heart attack, he initially gained 20kgs in weight, his eczema returned and now has a significant effect on him. He said he has, in the past, consulted a specialist at Beecroft about the condition but the specialist has now closed his practice. Mr Grabovsky said at the time the decision was reviewed by the ARO, he was prepared to provide additional specialist evidence to Centrelink about this condition if Centrelink was prepared to pay for this. Centrelink was not, however, prepared to consider obtaining further evidence.
I note the JCA’s report states:
Given the lack of corroborating medical information from an appropriately qualified medical practitioner, this condition is not considered FDTS [fully diagnosed, treated and stabilised] as per DHS Guidelines.
I indicated to Mr Grabovsky that on the basis of Dr Bilinsky’s evidence, I was satisfied that the condition of eczema had been diagnosed. Ms James, for the Respondent, contended that while Dr Bilinsky had diagnosed the condition, there was no evidence to establish that all appropriate treatment had been undertaken. The Respondent therefore submits that the condition has not been fully diagnosed, treated and stabilised as required by the Impairment Tables; it cannot, therefore, be regarded as permanent and impairment points cannot be attributed to the condition.
In my view, given the longstanding nature of Mr Grabovsky’s condition, and evidence of a diagnosis, treatment regime and effect on ability to function from Mr Grabovsky’s GP, who has been treating him since 1 August 2006, the JCA’s assessment is incorrect. In my view, in the particular circumstances of this case, it is not reasonable to expect Mr Grabovsky to obtain an assessment from a specialist for the purposes of his claim for DSP.
I do not agree with the Respondent’s contention as to treatment. I am satisfied from Dr Bilinsky’s evidence, noting that the stated date of onset of Mr Grabovsky’s IHD is 1 August 2006, that during the relevant period, he had suffered from eczema in its present form for some years. Eczema is by its nature a condition that can fluctuate and I am satisfied from Dr Bilinsky’s evidence that Mr Grabovsky has had and is having appropriate treatment for his condition and, to the extent that his condition can be stabilised, this has occurred. Dr Bilinsky stated that the impact of the condition on Mr Grabovsky’s ability to function is expected to persist for more than 24 months. Thus, the diagnosis, treatment regime and effect on ability to function are clear and should be accepted.
I note that the Introduction to Table 14 – Functions of the Skin, states that diagnosis of the condition must be made by an appropriately qualified medical practitioner. In my view, in circumstances where a person has been suffering from eczema for some years, a person’s treating doctor is such a person and corroborating evidence of the person’s impairment from such a person is sufficient. In Mr Grabovsky’s case, the only additional information provided by Dr Bilinsky in the Treating Doctor’s Report on the effect of this condition on Mr Grabovsky’s ability to function is that he is unable to work in dusty environments or to tolerate industrial chemical exposure. I invited Mr Grabovsky to tell me how the condition affects him so that I could make an appropriate assessment of his condition against the descriptors for different levels of impairment points in Table 14, but he declined to do so. He contended that I was not qualified to do so. He contended that at least 10 impairment points should be attributed to his eczema and that he satisfied the descriptors for subparagraphs (1)(a), (b) and possibly (d). He declined to elaborate further.
The Introduction to Table 14 and the descriptors for 10 impairment points are set out below.
Table 14 – Functions of the Skin
Introduction to Table 14
· Table 14 is to be used where the person has a permanent condition resulting in functional impairment related to disorders of, or injury to, the skin.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a medical specialist (e.g. dermatologist or burns specialist) confirming diagnosis of dermatological conditions or burns;
o assessments or reports from practitioners specialising in the treatment and management of these conditions such as dermatologists, burn specialists, clinical nurse consultants or nurse practitioners
Points
Descriptors
10
There is a moderate functional impact on activities requiring healthy, undamaged skin.
(1) Regarding the adaptations to several daily activities that the person has to make, at least one of the following applies:
(a) the person has moderate difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. moderate allodynia) and needs to wear protective gloves for most tasks, avoid contact with all detergents and soaps, or avoid repetitive tasks involving use of the hands;
(b) the person has moderate difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(c) the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(d) the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).
Contrary to Mr Grabovsky’s submission, the role of the decision-maker in these matters includes making an assessment of the level of impairment attributable to ‘permanent’ conditions on the basis of the evidence, and assigning the corresponding impairment points. As stated above, Mr Grabovsky declined to provide me with any further information about how his eczema affects his ability to function. Given the limited information provided by Dr Bilinsky in the Treating Doctor’s Report, I am, as a result, unable to make relevant findings about the impact of the eczema on Mr Grabovsky’s ability to function and, as a result, to make an impairment assessment. Ms James submitted that, Mr Grabovsky having declined to provide further information to the Tribunal for this purpose, I should affirm the decision under review. In my view, that is not the preferable outcome.
I am satisfied that the appropriate outcome in this case is for me to remit the matter to the Respondent with a Direction that Mr Grabovsky’s eczema is fully diagnosed, treated and stabilised and that the Respondent should undertake an assessment of that condition’s functional impact on him with a view to assigning impairment points to the condition under Table 14. Before making such an assessment, the Respondent should invite Mr Grabovsky to submit any further evidence for the purposes of its making this assessment.
If the Respondent, having made such an assessment, assigns Mr Grabovsky’s eczema at least 10 impairment points so that he satisfied s 94(1)(b) of the Act during the relevant period, it will, at that point, need to determine whether he had a continuing inability to work pursuant to s 94(1)(c). As Ms James pointed out in her Statement of Facts, Issues and Contentions, only conditions assessed as ‘permanent’ and to which an impairment rating has been assigned under the Tables, can be considered when assessing whether a person has a continuing inability to work. In the case of Mr Grabovsky’s eczema, this has not yet occurred.
DECISION
The Tribunal’s decision:
(1)The Tribunal sets aside the decision under review refusing Mr Grabovsky’s claim for the DSP and remits the matter to the Respondent with a direction that Mr Grabovsky’s eczema is fully diagnosed, treated and stabilised and so should be assessed for the assignment of impairment points under Table 14 of the Impairment Tables.
(2)Prior to making its assessment, the Respondent should invite Mr Grabovsky to provide further evidence about the impact of his eczema on his ability to function
(3)Having made its assessment, if Mr Grabovsky’s conditions attract at least 20 impairment points, the Respondent should then proceed to determine whether he has a continuing inability to work with a view to its ultimate determination as to whether Mr Grabovsky is qualified for the DSP.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ......[Sgd]..................................................................
Associate
Dated 31 July 2014
Date(s) of hearing 21 July 2014 Date final submissions received 21 July 2014 Applicant In person, Self-represented Solicitors for the Respondent Ms L James, DHS Program Review Litigation Branch
4
0
0