Janette Daoud and Secretary, Department of Social Services

[2014] AATA 713

[2014] AATA  713

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4322
Re	Janette Daoud
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	30 September 2014
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – severe functional impact – program of support - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

Dr Ion Alexander, Member

30 September 2014

BACKGROUND

1. On 21 June 2012 the applicant, Ms Janette Daoud, lodged a claim for Disability Support Pension (DSP) on the basis that her various medical conditions were having an impact on her ability to function. The conditions as described in her claim included “bronchiectasis, asthma, eczema, depression and arthritis”.

2. Ms Daoud’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, she did not satisfy s 94(1)(b) in that she did not have an impairment rating of at least 20 points under the Impairment Tables.

3. In its decision of 1 August 2013, the Social Security Appeals Tribunal (SSAT) found that Ms Daoud had a combined impairment rating of 20 points in respect of two medical conditions, 10 points for “bronchiectasis” under Impairment Table 1 and 10 points for “back pain” under Impairment Table 4.

4. The SSAT, however, found that during the claim period Ms Daoud did not have a severe impairment within the meaning of the Act and did not satisfy section 94(2)(aa) of the Act in that she had not actively participated in a program of support. Therefore did not qualify for DSP. Ms Daoud seeks review of this decision. At the hearing before this Tribunal, she was represented by counsel.

5. I note that Ms Daoud was granted DSP from 31 July 2014 after having completed 18 months in an approved program of support.

   ISSUES

6. In order to qualify for DSP Ms Daoud must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999. The claim period relevant to Ms Daoud’s application is between 21 June 2012 and 19 September 2012.

7. It is agreed that, during the claim period, Ms Daoud satisfied s 94(1)(a) of the Act, in so far as she had impairments arising from the following medical conditions:

   (a)A respiratory condition – bronchiectasis /asthma;

   (b)A spinal condition – back pain;

   (c)A skin condition; and

   (d)A mental health condition- adjustment disorder with anxiety.

8. The respondent accepts that, during the claim period, the respiratory, spinal, and skin conditions were permanent within the meaning of the Act.

9. In respect of Ms Daoud’s spinal condition the respondent contends that the correct rating under Impairment Table 4 is 10 points. This is not contested by Ms Daoud.

10. In respect of Ms Daoud’s skin condition the respondent contends that the correct rating under Impairment Table 14 is nil. This is not contested by Ms Daoud.

11. In respect of the mental health condition the respondent contends that during the claim period this condition was not permanent within the meaning of the Act and that an impairment rating could not be assigned.

12. Ms Daoud disputes this contention, however, at the hearing the parties agreed that the resolution of this matter does not turn on this issue.

13. In respect of Ms Daoud’s respiratory condition the respondent contends that the correct rating under Impairment Table 1 is 10 points and that, during the claim period, her total impairment rating was 20 points so that she satisfied s 94(1)(b) of the Act.

14. However, as Ms Daoud did not have a severe impairment, that is, 20 points or more under a single Table, the respondent contends that she did not satisfy s 94(2)(aa) of the Act as she had not actively participated in a program of support. The respondent therefore contends that she did not qualify for DSP during the claim period.

15. Ms Daoud contends that during the claim period she did have a severe impairment and that 20 points under Table 1 was the preferred impairment rating.

16. Alternatively if the Tribunal finds that she did not have a severe impairment during the claim period, Ms Daoud contends that she was actively participating in an approved program of support and had satisfied the requirements of s 5 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the  AP Determination).

17. At the hearing the parties agreed that this matter can be settled with  the resolution of two issues:

    (a)Did Ms Daoud  have a ‘severe impairment’ with an impairment rating of at least 20 points under Table 1 during the claim period; and, if not,

    (b)Did Ms Daoud satisfy the requirements of s 5 of the AP Determination during the claim period.

    MS DAOUD’S RESPIRATORY CONDITION

    Ms Daoud’s Evidence

18. Ms Daoud gave oral evidence to the Tribunal during her hearing. She stated that she lives with her four children, two sons now aged eight and 14, and two daughters now aged 19 and 22.  During the claim period all of the children were still at school and Ms Daoud conceded that at that time she was their primary carer.

19. Ms Daoud explained that she had chest problems before emigrating from Iraq and that they became worse after she arrived in Australia. About seven to eight years ago she started seeing Dr Johnson on a regular basis every two to three months.

20. Her current treatment includes daily antibiotic (Doryx) which she has only been taking for about one year, additional antibiotic (Augmentin Duo) for episodic chest infections which occur three to four times per year and regular bronchodilator therapy (Seretide, and Ventolin). 

21. Symptoms associated with the episodic infections include increased cough, fever, chest pain, and shortness of breath and during 2013 she coughed blood for the first time. Also when she gets the infections she claims to be bedridden.

22. Ms Daoud stated that her condition has become worse over the last five years but denied ever being admitted to hospital because of her respiratory infections. She stated that she went to hospital “ last year for my neck and that was because of coughing and I had a very bad headache”

23. Ms Daoud stated that her daughters do most of the cooking, cleaning, washing and shopping and have done so for some time.

24. Ms Daoud explained that she can heat food in the microwave, can make a light breakfast for herself, put clothes in the washing machine and do some limited mopping on some days.  She goes shopping with her daughters but can only walk for five or six minutes before needing to rest. She only travels on public transport when accompanied and can walk more than 100 metres but is limited to climbing five steps.

25. In cross examination Ms Daoud conceded that she did not like to use public transport because of the risk of infection and a fear of getting lost.

26. Ms Daoud’s daughter, Mariana Daoud, also gave evidence.  Her evidence supported her mother’s evidence, in that, she confirmed that she and her older sister were responsible for most of the daily household duties and described similar limitations on Ms Daoud’s daily activities. However, in my view, her evidence did not provide a convincing description in distinguishing between current impairment and impairment during the claim period.

    Medical Evidence

27. In a letter dated 19 May 1998 Dr Mann , chest physician,  noted that Ms Daoud had developed  pneumonia  in April 1998 and following treatment with antibiotics  her chest x-ray had cleared.

28. Dr Mann stated that Ms Daoud had no past history of asthma, chronic bronchitis, pneumonia or pleurisy and that on physical examination she looked well and her chest was clear. He also noted that spirometry was normal and that a CT of the chest on 15 May 1998 showed some remaining alveolar opacity but no bronchiectasis.

29. In a letter dated 30 June 2009 Dr Johnson, respiratory physician, notes normal spirometry and lung volumes.

30. In a letter dated 10 February 2010 Dr Johnson noted that Ms Daoud “has an occasional cough” which had been treated with Doryx (tetracycline antibiotic) and Seretide which was ceased a month earlier.

31. Dr Johnson noted that on examination her chest was clear and stated that he was not sure what to make of her symptoms and arranged for a CT of the neck.

32. In a letter dated 11 May 2010 Dr Johnson notes normal spirometry with no change since 30 June 2009.

33. In a letter 12 May 2010 Dr Johnson notes that Ms Daoud was still coughing a little sputum which he thought was from bronchiectasis and suggested treatment with Amoxil at the first sign of infection but no long term antibiotics.

34. In a letter dated 23 November 2010 Dr Johnson noted that Ms Daoud had respiratory tract infections three times in the last four months and that she had a cough every day and had minimal shortness of breath on exertion.

35. In a Centrelink Medical report dated 2 September 2011 Dr Guirguis, general practitioner, lists bronchiectasis and asthma as conditions with most impact, notes current symptoms as “short of breath, cough, productive sputum, weak physical ability and wheezy chest” and describes impact on ability to function as “ unable to do physically demanding work (whether indoor or outdoor)”.

36. In a very brief letter dated 29 March 2012 Dr Johnson states “[t]his lady has severe bronchiectasis which results in frequent chest infections and pneumonia. It also causes shortness of breath on exertion”.

37. In a medical certificate dated 4 May 2012 Dr Guirguis describes symptoms as “cough is worse waking up at night, fever, chest pain, wheezing, mucoid sputum, haemoptysis, dyspnoea, anorexia and malaise”.

38. In a Centrelink Medical Report dated 25 May 2012 Dr Guirguis lists chronic bronchiectasis as a condition with most impact and notes current symptoms as “cough, short of breath, weak, dizzy, mucoid sputum, fever, risk of septicaemia and death”  and describes impact on ability to function as “very weak physically  so cannot undertake physical tasks”.

39. Dr Guirguis notes current treatment as “recurrent use of antibiotics and hospital admissions”.

40. In a second Centrelink medical report dated 25 May 2012 Dr Guirguis diagnoses asthma as a condition with most impact on the basis of “recurrent episodes of cough and wheeze that is different form bronchiectasis”.

41. Dr Guirguis does not provide any explanation to support this diagnosis.

42. In a very brief letter dated 7 June 2012 Dr Johnson notes “[t]his lady has bronchiectasis which causes daily cough with sputum. She has recently been more unwell with pneumonia in the right lung. This has caused more coughing and shortness of breath”.

43. In a Centrelink Medical Report dated 8 August 2012 Dr Guirguis lists bronchiectasis as a condition with most impact and describes impact on ability to function as “cannot attend to physical tasks due to gross weakness and shortness of breath”.

44. The report of a CT scan of the chest performed on 21 September describes “a segmental area of bronchiectasis at the right lower lobe associated with some peribronchial inflammatory changes” and possibly an area of pneumonitis in right middle lobe.

45. In a letter dated 27 September 2012 Dr Johnson states that Ms Daoud has bronchiectasis which causes “a daily cough productive of sputum and chronic lung infection” and that “she is short of breath and has recurrent chest infection and pneumonia”.

46. Dr Johnson states that Ms Daoud’s condition is not curable, requires frequent antibiotics and that she is compliant with her treatment. He adds that her condition will not improve in the future and that pulmonary rehabilitation would not be helpful.

47. In an undated letter, received by Centrelink on 30 August 2012, Dr Tallapragada, general medicine intern, states that “Mrs Daoud has been ill and presented to Fairfield Hospital on 5-08-211. She was an inpatient till  -08-2012”.

48. The document is of little value as there is no description as to Ms Daoud’s symptoms, no mention of any diagnosis or treatment and does not actually indicate when she was discharged.

49. In a report dated 19 February 2014 Dr Ng, occupational physician, notes that Ms Daoud was diagnosed with bronchiectasis and had told him that she had been hospitalised for her lung conditions “for a few occasions and the last one was 3 weeks inpatient treatment in August 2012”.

50. I note that this is not consistent with Ms Daoud’s evidence to the Tribunal and not supported by any documentary evidence.

51. Ms Daoud told Dr Ng that she continues to have a productive cough and experiences shortness of breath on mild physical exertion on a daily basis and that she would cough up blood.

52. Dr Ng provided a supplementary report dated 9 April 2014 in response to a request by Ms Daoud’s Legal Aid representatives to assess her impairment with regard to her respiratory function as at September 2012.

53. Dr Ng concludes that in September 2012 Ms Daoud’s impairment rating under Table 1 is 20 points.

    Other Evidence

54. The Tribunal has been provided with five Job Capacity Assessment (JCA) reports dated 24 June 2010, 6 October 2011, 3 July 2012, 18 July 2013 and 18 August 2014.

55. In the report of 24 June 2010 the assessor notes that Ms Daoud “reports experiencing reoccurring bouts of pneumonia caused by her condition, 3-4 times a year, leading to hospitalisation for approximately 10 days”.

56. I note again that at the hearing Ms Daoud denied that she had been admitted to hospital for any  respiratory infections 

57. The assessor recommended an impairment rating of nil points.

58. In the report of 6 October 2011 the assessor remarks that a treating doctors report (TDR) states that the client reports “episodes of shortness of breath, wheezing, episodes of fever and coughing, fatigue, poor endurance, difficulty with mopping, gardening and vacuuming”.

59. I was unable to find this statement in the medical reports provided to the Tribunal, however, I note that in this JCA report and the previous report there is reference to a TDR dated 8 June 2010 which was not included in section 37 documents.

60. The assessor states that “following consultation with the client’s Thoracic Physician, the FEV1/FVC ratio is normal, the FEV1 is normal and the FVC is normal. Therefore a rating of nil points has been assigned”.  

61. In the report of 3 July 2012 the TDR’s remarks in respect of the respiratory condition   of appear to be exactly the same as the remarks in the October 2011 assessment.

62. However, the assessor notes that “ the client reported being able to manage tasks at home not involving more heavy tasks (such as mopping and vacuuming ) with assistance from daughter  when needed. She is also able to drive, use public transport and walk around a shopping centre”.

63. The recommended impairment rating was 10 points under Impairment Table 1.

64. In the report of 18 July 2013 the assessor noted that the client reported that “she is able to walk for 5-7 minutes and has difficulty climbing stairs” and that “she has a drivers licence but usually has her daughter drive her” but “did not report any difficulties with using public transport”.

65. The assessor notes a moderate functional impact on activities requiring physical exertion and stamina and recommends a rating of 10 point under Impairment Table 1

66. In the JCA report of 18 August 2014 the assessor notes symptoms as “recurrent chest infections with chronic cough and increased sputum production, headaches, unable to sustain physical activity and difficulty with house chores, assisted by daughters”.

67. The assessor concludes that Ms Daoud suffers moderate functional impact on activities requiring physical exertion and stamina and recommends a rating of 10 points under Table 1.

68. However, the assessor appears to have confused the descriptors between moderate and severe impact and therefore this assessment is of little assistance.  

    CONSIDERATION

69. Ms Daoud contends that during the claim period she was severely impaired and that her rating under Impairment Table 1 was 20 points.

70. Counsel for Ms Daoud makes the following submissions:

    ·“Table 1 actually has changed and it’s clearly about  functions requiring physical exertion or stamina and is not confined to respiratory conditions”;

    ·“everyone has agreed that both her respiratory condition and her spinal condition  are rateable. If that condition causes an impairment, a functional impairment, it’s the functional impairment which is assessed and the tables are quite clear that it’s the functional impairment not the condition that gets assessed”; and

    ·“where two or more 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 so in terms of Table 1 you will have to determine whether it is the case that she can’t do any of those things because of the impairment caused by her spinal condition and her respiratory problems”.

71. Although I agree with elements of Counsel’s submission, I am not persuaded that functional impairment should be considered as somehow disconnected from a diagnosed medical condition.

72. The Determination defines “impairment” as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.

73. Paragraph 6 stipulates that the 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 and an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent, that is, fully diagnosed, fully treated and fully stabilised.

74. In my view the Determination clearly requires a direct association with a diagnosed medical condition and the impairment caused by that condition.

75. In her oral submissions Counsel for the Applicant, in applying the descriptors in Table 1, appeared to rely primarily on Ms Daoud’s own evidence and the supportive evidence provided by her daughter.

76. I note that paragraph 6(1) of the Determination states that “the impairment of a person must be assessed on the basis of what the person can, or could do, not what the person chooses to do or what others do for the person”.

77. In considering Ms Daoud’ evidence I had some difficulty in understanding what she was actually able to do during the claim period and what she shoes to do  particularly  when compared with more recent times. 

78. Furthermore, the Introduction to Impairment Table 1 states that self- report alone of symptoms is insufficient and that there must be corroborating evidence of the person’s impairment.

79. The given examples of corroborating evidence for the purposes of the Table include but are not limited to, a treating doctor’s report, a medical specialist report and results from performance testing.

80. In my view there is a clear inference that corroborating evidence requires some form of assessment by an independent health care professional.

81. A difficulty in this matter is that the impairment must be assessed as it was two years ago, during the claim period, and therefore, contemporaneous medical documents are likely to be of most assistance.

82. The medical evidence confirms that Ms Daoud has suffered from bronchiectasis for several years and that she suffers frequent episodes of acute infection. Her current treatment includes regular bronchodilators, daily antibiotic and additional antibiotics for acute infections.

1. In evidence before the Tribunal are nine letters from Dr Johnson which are succinct at best and refer to bronchiectasis, shortness of breath, chronic cough and recurrent infections. They provide no meaningful assessment of functional impairment either during the acute episodes of infection or during the intervening periods.

2. Relevantly, however, as the treating respiratory specialist Dr Johnson makes no reference to a separate condition of asthma.

3. Dr Guirguis provides various reports which I find somewhat unhelpful. The reports are inconsistent with other evidence, Ms Daoud’s symptoms are listed with no consideration as to whether the symptoms relate to episodes of acute infection or to intervening periods and there is no meaningful assessment of functional impairment.

4. I also find the reports of Dr Ng to be somewhat unhelpful. Doctor Ng saw Ms Daoud on one occasion more than 12 months after the end of the claim period and in his first report of 19 February he focussed on Ms Daoud’s musculoskeletal condition. He provided no assessment in respect of her respiratory condition.

5. In a letter dated 25 March 2014 Ms Daoud’s Legal Aid representative asked Dr Ng to provide an assessment of Ms Daoud’s impairment regarding “her respiratory function” as at September 2012 on the basis that he had been instructed that in September 2012 she “only caught public transport with another person not by herself”.

6. In his report of 9 April 2014 Dr Ng concludes that in September 2012 Ms Daoud had an impairment rating of 20 points under Table. In my view, he does not provide a satisfactory explanation for this conclusion.

7. I note that in the JCA report of 3 July 2012, which was submitted during the claim period,  the assessor records that Ms Daoud reported being able to do tasks which were considered by the assessor to be consistent with an impairment rating of 10 points under Table 1.

8. I accept that the during the claim period Ms Daoud’s respiratory condition did have functional impact on activities requiring physical exertion or stamina, but I am not persuaded that there is sufficient evidence before the Tribunal to allow me to conclude that the functional impact was “severe functional impact” as set out in Impairment Table 1.

9. Therefore, I find that, during the claim period the preferred rating under Impairment Table 1 was 10 points.

   PARTICIPATION IN A PROGRAM OF SUPPORT

10. The requirements for active participation in a program of support are set out in s 5 of the Social Security (Requirements and Guidelines –Active Participation for Disability Support Pension ) Determination 2011 (the  AP Determination).

11. Subsection 5(5) of the AP Determination states that:

    “This subsection is satisfied in relation to a person and a program of support if:

    (a)   At the relevant date of claim, is participating in the program of support; and

    (b)   The person is prevented, solely because of his or her impairment from improving his or her capacity to find, gain or remain in employment through continued participation in the program.”

12. It is agreed that during the claim period Ms Daoud was actively participating in an approved program of support and she therefore satisfied s 5(5)(a) of the AP Determination.

13. Counsel for Ms Daoud submitted that Ms Daoud also satisfied s 5(5)(b) as she had well documented medical barriers as far back as 2010 which prevented her improving her work capacity and that there was nothing suggested by the program of support providers as to how the barriers could be modified. Also, Dr Johnson had advised that her respiratory condition was not curable and that “pulmonary rehabilitation would not be helpful in this condition”.

14. I read nothing in the AP Determination which would suggest that the purpose of participation in a program of support is to modify medical barriers or provide medically oriented rehabilitation.

15. I read s 5(5)(b) to mean that the purpose of participation is to improve the capacity of a person with mild to moderate impairment to find, gain or remain in employment and not to modify or improve their impairment.

16. I note that despite her impairment, Ms Daoud was able to complete 18 months in a program of support during 2013 and 2014 and in her oral evidence she did concede that she had better knowledge with respect to job seeking and interviews as result of the program.

17. In conclusion I am not persuaded that the evidence before the Tribunal is sufficient to support a conclusion that during the claim period Ms Daoud was prevented solely because of her impairment form improving her capacity to find or gain employment by participating in the program of support. Therefore she did not satisfy s 5(5)(b) of the AP Determination.

    DECISION

18. For the reasons set out above, I find that during the claim period Ms Daoud did not have an impairment rating of 20 points or more under Table 1 and that she did not satisfy s 5 of the AP Determination. This means that she did not qualify for DSP during the claim period.

19. The decision under review is affirmed.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 30 September 2014

Date(s) of hearing	30 September 2014
Counsel for the Applicant	Ms K Sant
Solicitors for the Applicant	Legal Aid New South Wales
Solicitors for the Respondent	Dr Stephen Thomspon, of Sparke Helmore