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

[2016] AATA 148

Ioannou and Secretary, Department of Social Services (Social services second review) [2016] AATA 148 (15 March 2016)

Division	GENERAL DIVISION
File Number	2015/4086
Re	Despina Ioannou
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan
Date	15 March 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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Miss E A Shanahan

Social Security – pensions, benefits and allowances – disability support pension claim – multiple conditions – impairment rating attracted 10 points – other conditions not fully diagnosed, treated and stabilised – decision affirmed

Legislation

Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Administration) Act 1999

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Miss E A Shanahan

15 March 2016

1. Mrs Ioannou lodged a claim for the disability support pension (DSP) on 30 October 2014.  Her claim was supported by a report from her treating general practitioner Dr M Dhillon, attesting to her medical conditions these being Hepatitis B cirrhosis, hypertension and arthritis. The impact of these conditions on Mrs Ioannou’s ability to function and in particular her work capacity was considered by Dr Dhillon to be uncertain. 

2. Following the performance of a job capacity assessment (JCA) on 8 December 2014, Mrs Ioannou’s claim for the DSP was rejected by a Centrelink delegate on 11 December 2014.  At her request, an authorised review officer (ARO) conducted a review on 23 February 2015 and affirmed the decision to reject Mrs Ioannou’s claim for DSP.  The rejection was based on Mrs Ioannou’s failure to attract an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), as required by s 94(1)(b) of the Social Security Act 1991 (the Act).

3. On 8 July 2015 Mrs Ioannou applied for a review of this decision by the Social Security and Child Support Division of the Administrative Appeals Tribunal (Tier 1 of the AAT). The claim was rejected and the ARO decision was affirmed by the Tier 1 of the AAT. The Tier 1 of the AAT determined that her only condition that was fully diagnosed, treated and stabilised was the Hepatitis B cirrhosis, which attracted an impairment rating of 10 points under the Impairment Tables.

4. Mrs Ioannou applied to the General Division of the Administrative Appeals Tribunal (Tier 2 of the AAT) for a further review on 12 August 2015.

5. At the hearing Mrs Ioannou was self-represented. Mr Tim Noonan, Senior Solicitor with the Department of Human Services, appeared for the Secretary. The Tribunal was provided with the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  Mrs Ioannou gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

6. Mrs Ioannou last worked as a factory hand in 1978. Thereafter, she has reared and cared for her children. Her husband worked full time but retired on 25 October 2014 at the age of 65 years and 8 months.

7. Mrs Ioannou was diagnosed with hypertension in 2007. Investigations following a bout of jaundice in 2013 revealed she had Hepatitis B-caused cirrhosis of the liver. In 2015 she was diagnosed with inflammatory polyarthropathy and possibly osteoarthrosis. She complains of severe lethargy and weakness.  Her lethargy is such that she often requires assistance with her household duties from one of her three children. 

8. Mrs Ioannou’s joint pains are widespread but particularly severe in the back and both legs.  She has on occasion noted some swelling of both knees.  She has found Panadol-Osteo to be of no benefit whatsoever. She had been receiving treatment in the form of medication for her hypertension; but for reasons that are not clear to the Tribunal this has been suspended.  Since her episode of jaundice, Mrs Ioannou has attended the Austin Hospital Hepatitis Clinic on a regular basis and has been successfully treated with the medication Entecavir. As of 24 November 2014, this clinic reported that she was extremely well, her Hepatitis B viral load was no longer detectable and her liver function test results had returned to normal. The Clinic plans to continue six monthly screening of Mrs Ioannou for the complications of Hepatitis B cirrhosis, namely oesophageal varices and hepatoma. It was anticipated that after her review in February 2015 she would only need to be seen on a six monthly basis. 

9. Despite having joint pains since approximately 2012, Mrs Ioannou had had little in the way of investigation and treatment had been confined to medication with Plaquenil. She did not tolerate the Plaquenil, although at the time of her application Dr Dhillon stated her arthritis was well controlled and did not result in any incapacity. The hypertension present since 2010 was certified as being well controlled with the use of Micardis 4mg daily.  Dr Dhillon said that the hypertension produced symptoms of lethargy but no attempt was made to differentiate between the lethargy due to cirrhosis and the lethargy due to hypertension. The long term functional impact of all of Mrs Ioannou’s conditions was rated as being uncertain by Dr Dhillon.

10. The JCA performed on 8 December 2014 by an exercise physiologist found that Mrs Ioannou’s Hepatitis B cirrhosis was fully diagnosed, treated and stabilised. Based on Table 1 of the Impairment Tables relating to Functions requiring Physical Exertion and Stamina, Mrs Iaonnou attracted an impairment rating of 10 points. 

11. Given Dr Dhillon’s assessment, the assessor considered Mrs Ioannou’s hypertension and arthritis to have minimal functional impact and therefore did not attract an impairment rating.  It was estimated that Mrs Ioannou could work 8 to 14 hours per week at the time of her application, rising to 15 to 22 hours per week in two years’ time. The type of work recommended was less skilled, light manual work, such as bench assembly duties. 

12. There is no evidence that the status of Mrs Ioannou’s hepatitis has changed since the report from the Austin Hospital on 24 November 2014. It would appear to be fully treated and stabilised and attracts a 10 point impairment rating. 

13. Since the rejection of her claim for the DSP, Mrs Ioannou has been referred to a consultant rheumatologist, Dr M Mundae, who has made a provisional diagnosis of mixed inflammatory polyarthropathy and osteoarthrosis (i.e. degenerative arthritis commensurate with her age). The inflammatory polyarthropathy is said to affect mainly the small joints of Mrs Ioannou’s hands and the left knee; with degenerative changes being most apparent radiologically in the neck, shoulders and right knee.  Despite this, Dr Mundae has described Mrs Ioannou’s range of movement in her joints as extremely good. Her reflexes are intact, with no evidence of neurological deficit; and some mild tenderness in the spine and paraspinal area was detected (ST1). Prednisolone was prescribed as treatment for the inflammatory arthritis; but Mrs Ioannou did not take this medication as she was worried about any effect it might have on her liver disease. 

14. A bone scan has outlined the areas of inflammatory polyarthropathy. Dr Mundae has written to the Austin Hospital Hepatitis Clinic seeking advice as to the use of the medication Sulfasalazine to help with Mrs Ioannou’s arthritis, provided it does not have any deleterious effect on her hepatitis. Apparently no reply has been received as yet. 

15. While Mrs Ioannou was taking Micardis for her hypertension, this has been ceased by her general practitioner. As a result her blood pressure has been fluctuating and higher readings have been recorded. As an example, Dr Mundae recorded it as 170 systolic and 92 diastolic on 22 September 2015.  Mrs Ioannou thinks Dr Dhillon may put her back on the Micardis when she next sees him. 

    ORAL EVIDENCE BEFORE THE TRIBUNAL

    Mrs Ioannou

16. As is my normal practice I asked Mrs Ioannou if she understood why her claim for DSP had been rejected. She did not have any understanding of the reasons for its rejection. In particular, she did not understand the concept of the need for the medical conditions to be fully diagnosed, treated and stabilised. Apparently, this had never been explained to her. 

17. Mr Noonan and I then explained to her as fully as we could in layman’s language why she had not qualified for the DSP. Following this explanation, she said she fully understood the concept and the reasons why her claim had been rejected. 

18. Mrs Ioannou confirmed the information provided in various medical reports and that she had no idea why her hypertension medication had been ceased. Mrs Ioannou did seem to understand that her arthritis was not currently being treated because of her adverse reaction to Plaquenil and the delay in decision-making regarding suitable
    anti-inflammatory medication. She confirmed she had not taken the Prednisolone that had been prescribed   

    RELEVANT LEGISLATION

19. Section 94 provides for the criteria for qualifications for the DSP and states:

    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 of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

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

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

    The period under which the Tribunal has the jurisdiction to review the decision of Tier 1 of the AAT is covered by clauses 3 and 4 of Part 2 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) and is limited to 13 weeks after the date of application. In this case, the period of review is from 12 November 2014 to 12 February 2015 inclusive.

    SUBMISSIONS

20. Mr Noonan addressed the detailed Statement of Facts and Contentions provided by the Secretary. Based on the facts relating to the impairment rating attracted by Mrs Ioannou’s medical conditions, Mr Noonan sought an order affirming the decision made by Tier 1 of the AAT on 8 July 2015. 

    TRIBUNAL’S DELIBERATIONS

21. Based entirely on the medical data before the Tribunal, which Mrs Ioannou does not challenge, it is clear that her impairment rating has been correctly determined at 10 points, as her Hepatitis B caused cirrhosis is fully diagnosed, treated and stabilised and is the cause of her lethargy and functional incapacity.  The Tribunal notes that her liver function test results are now normal and that her viral load is undetectable.  Hopefully, this bodes well for her prognosis. 

22. Mrs Ioannou’s joint pain has not been fully investigated or treated. It would appear that the current diagnosis is mixed degenerative and inflammatory arthritis, which to date has not been adequately treated and therefore does not attract an impairment rating.

23. Similarly, Mrs Ioannou’s hypertension which was being treated in 2012 and 2013 is now fluctuating and, at the best, unstable. As far as she is aware, consideration is being given to reinstituting her medication. Thus her hypertension is clearly not fully treated nor is it stabilised; and it therefore cannot be assigned an impairment rating. 

24. Mrs Ioannou satisfies s 94(1)(a) of the Act in that she has three diagnosed conditions, namely Hepatitis B cirrhosis of the liver, hypertension and polyarthropathy. Her total impairment rating is 10 points based on the determination of the JCA as affirmed by the ARO and Tier 1 of the AAT.

25. Mrs Ioannou does not meet the definitional requirement for classification as having a serious incapacity from one disease condition under s 94(1)(b) of the Act that is one attracting an impairment rating of 20 points. It is therefore not necessary for the Tribunal to consider other factors, such as her continuing incapacity for work under s 94(1)(c) and that she has not undertaken a program of support as required by the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.

26. The Tribunal affirms the decision under review.

I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Associate

Dated   15 March 2016

Date of hearing	25 February 2016
Applicant	In person
Advocate for the Respondent	Tim Noonan
Solicitors for the Respondent	Department of Human Services