Jillian Lukin and Secretary, Department of Social Services
[2014] AATA 563
•14 August 2014
[2014] AATA 563
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3019
Re
Jillian Lukin
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Professor P ReillyDate 14 August 2014 Place Adelaide The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a "continuing inability to work" – reports of medical practitioners and psychiatrist considered – Job Capacity Assessments conducted – decision under review affirmed.
LEGISLATION
Social Security Act 1991(Cth) ss 94(1), (2), (3), (4) and (5) and Schedule 1B
Social Security (Administration) Act 1999 (Cth) cl 4 of Schedule 2
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
SECONDARY MATERIALS
Introduction to the Impairment Tables
REASONS FOR DECISION
Senior Member R W Dunne
Professor P Reilly14 August 2014
INTRODUCTION
The applicant in this case is Jillian Lukin. On 5 June 2012, the Social Security Appeals Tribunal (“SSAT”) affirmed an earlier decision made by an authorised review officer (“ARO”) of the respondent to reject the claim for disability support pension (“DSP”) lodged by the applicant on 15 August 2011. The applicant has applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Ms Lukin was self-represented and the respondent was represented by Mr A Schatz (from the Program Litigation and Review Branch, Department of Human Services). The Tribunal admitted into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
[1] Exhibit R1.
·undated witness statement of Scarlett Lukin received at the Tribunal on 4 July 2014;[2]
·undated witness statement of Violet Lukin received at the Tribunal on 4 July 2014;[3]
·undated witness statement of the applicant received at the Tribunal on 24 June 2014;[4]
·Annexures (Numbered 1 to 11) to the respondent’s statement of facts and contentions;[5]
·medical report of Dr K Ajao, general practitioner, dated 23 March 2011;[6]
·medical report of Dr K O’Brien, consultant psychiatrist, dated 21 January 2013;[7]
·briefing letter from the respondent to Dr Ajao dated 28 March 2013;[8]
·briefing letter from the respondent to Dr O’Brien dated 30 July 2013;[9]
·letter from Dr O’Brien to the respondent dated 25 October 2013;[10] and
·medical certificate signed by Dr Ajao dated 17 February 2014.[11]
[2] Exhibit A1.
[3] Exhibit A2.
[4] Exhibit A3.
[5] Exhibit R2.
[6] Exhibit R3.
[7] Exhibit R4.
[8] Exhibit R5.
[9] Exhibit R6.
[10] Exhibit R7.
[11] Exhibit R8.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether Ms Lukin was qualified to receive DSP on the date of her claim, being 15 August 2011, or within 13 weeks, that is by 14 November 2011 (“Claim Period”).
In respect of the Claim Period, the respondent accepted that Ms Lukin had a physical, intellectual or psychiatric impairment. The respondent did not accept:
(a)that the impairment attracted an impairment rating of at least 20 points under s 94(1)(b) of the Act; and
(b)that Ms Lukin had a “continuing inability to work”, because of her impairment, within the meaning of s 94(1)(c)(i) and ss 94(2), (3), (4) and (5) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) either:
(i) the person is an Australian resident; or
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and Schedule 1B.
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
…”
Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“Administration Act”), which reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
IMPAIRMENT TABLES
The Impairment Tables, under which impairment point ratings appear, are contained in Schedule 1B to the Act. The Introduction to those Tables relevantly states:
1These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work-related impairment and this term is used throughout this document.
2These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. The Medial Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables. The question which must be asked in each and every case is ‘which body systems have a functional impairment due to this condition?’
3These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. This is measured by reference to an individual’s efficiency in performing a set of defined functions in comparison with a fully able person. In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.
4A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
owhat treatment or rehabilitation has occurred;
owhether treatment is still continuing or is planned in the near future;
owhether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
otreatment that is feasible and accessible ie, available locally at a reasonable cost;
owhere a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. …”
BACKGROUND
The material facts in this case are not in dispute and are largely extracted from the respondent’s statement of facts and contentions.
The applicant was born in 1966. She lives with her two daughters, aged 22 and 18. In her claim for DSP she claimed to be suffering from schizophrenia, hypothyroidism, hyperhidrosis, irritable bowel syndrome, depression, anxiety and heel pain (“Claimed Conditions”). She subsequently lodged a medical report by Dr K Ajao in which he stated he considered the applicant to be suffering from schizophrenia, hyperhidrosis, depression/anxiety, “IBS” and heel pains. However, Dr Ajao indicated that, apart from schizophrenia and hyperhidrosis, those conditions only had a minimal impact on the applicant’s ability to function. Dr Ajao stated that the applicant’s hyperhidrosis was “congenital” and that it resulted in “Debilitating excessive sweating”.
The applicant subsequently underwent a job capacity assessment on 14 September 2011 and the resulting report referred to each of the Claimed Conditions, except for anxiety and depression. However, only the applicant’s claimed schizophrenia was considered to be fully diagnosed, treated and stabilised to the extent that an impairment rating could be assigned. The applicant’s claimed schizophrenia was given a rating of 10 points under Table 6 of the Impairment Tables. On 18 October 2011, a decision was made to reject the DSP claim on the ground that, based on the medical evidence provided, the applicant was not eligible to be paid DSP.
On 17 January 2012, the applicant provided a further medical report by Dr Ajao. At that time, Dr Ajao considered the applicant to be suffering from hyperhidrosis, irritable bowel disease, schizophrenia, hypothyroidism and menorrhagia. In particular, Dr Ajao indicated that, at the time he prepared this report, he considered the applicant’s claimed schizophrenia, hypothyroidism and menorrhagia to be generally well managed and to cause “minimal or limited impact on ability to function”. In relation to schizophrenia, Dr Ajao stated that the applicant’s mental state was “stable at the moment”, but that she “has to stay on medication”. The applicant’s thyroid function was also considered to be stable, but the applicant had to “stay on medication”. Finally, the applicant’s menorrhagia was said to be “under investigation”.
When the decision was made to reject the DSP claim, the applicant sought a review of the decision, and on 14 February 2012 the ARO affirmed the original decision. The ARO’s findings, on the available evidence, were to the effect that:
(a)the applicant’s claimed depression and anxiety, heel pain and menorrhagia could not be accepted as being fully treated and stabilised;
(b)the applicant’s claimed schizophrenia, hyperhidrosis and irritable bowel syndrome could be accepted as being fully treated and stabilised, and the applicant’s claimed schizophrenia qualified for a rating of 10 points under Table 6 of the Impairment Tables;
(c)the applicant’s hyperhidrosis only qualified for a “nil” rating under Table 18 of the Impairment Tables;
(d)the applicant’s irritable bowel syndrome only qualified for a rating of “0” points under Table 11.2 of the Impairment Tables; and
(e)the applicant did not have a continuing inability to work in the relevant sense.
When the applicant sought a further review, the SSAT affirmed the ARO decision, based on her findings, to the effect that;
(a)while the applicant’s claimed menorrhagia had been a significant medical problem, it had been treated with surgery and, once the applicant recovered from that surgery, should be cured or largely resolved;
(b)the claimed menorrhagia was not likely to have significant impact for two years into the future and therefore did not attract impairment points;
(c)the applicant’s claimed schizophrenia qualified for a rating of 10 points under the Impairment Tables;
(d)there was insufficient evidence of irritable bowel syndrome having a significant enough impact to qualify for an impairment rating of 10 points, so it should therefore be assigned “0” points under Table 11.2 of the Impairment Tables;
(e)the SSAT was not satisfied that the applicant’s claimed hyperhidrosis interfered with normal daily activities and it should therefore only be assigned a rating of “0” points under Table 18 of the Impairment Tables;
(f)the applicant’s total impairment rating was 10 points and she therefore did not satisfy s 94(1)(b) of the Act at the relevant time; and
(g)the SSAT was not required to make any findings about work capacity because the applicant could not qualify for DSP, even if she had a continuing inability to work at the relevant time.
When the applicant lodged her application for review of the SSAT decision with the Tribunal, a number of potentially relevant documents were then provided. Of those, the most important were:
(a)a medical report by Dr K O’Brien dated 21 January 2013[12] indicating that, among other things:
[12] Exhibit R4.
(i)the applicant had suffered from “chronic schizophrenia” since before 2003;
(ii)at the time this report was prepared, the applicant was taking the anti-psychotic medication “Abilify” as well as regularly attending Dr O’Brien’s psychiatric clinic;
(iii)at the time this report was prepared, the applicant’s schizophrenia had “little impact” and the applicant was suffering from other conditions which had greater impact on her level of functioning;
(iv)Dr O’Brien expected the functional impact of the applicant’s schizophrenia to persist for more than 24 months and “remain unchanged” within the following 2 years; and
(v)the applicant’s schizophrenia did not, in Dr O’Brien’s opinion, “… currently and negatively impact on her day to day functioning and general employability …”;
(b)a medical report from Dr A Bascomb received by the respondent on 29 January 2013[13] relevantly indicating that, among other things, the applicant’s claimed menorrhagia was most likely a side effect of the applicant’s schizophrenia medication;
[13] Exhibit R2, Annexure 3.
(c)a medical report by Dr Ajao dated 10 February 2013[14] providing an updated opinion on the impact of schizophrenia, hyperhidrosis, irritable bowel syndrome, dysfunctional uterine bleeding and iron deficient anaemia on the applicant’s ability to function;
[14] Exhibit R2, Annexure 4.
(d)a Job Capacity Assessment Report[15] prepared (for a new DSP claim made on 30 October 2012), after a face to face assessment on 11 February 2013 relevantly concluding, among other things, that:
[15] Exhibit R2, Annexure 5.
(i)the applicant’s schizophrenia was the only fully diagnosed, treated and stabilised condition she was suffering from;
(ii)the applicant also suffered from hyperhidrosis, menorrhagia, irritable bowel syndrome, hypothyroidism and iron deficient anaemia, but none of those conditions were considered to be fully diagnosed, treated and stabilised to the point where they could be given an impairment rating under the Impairment Tables;
(iii)the applicant’s schizophrenia should be given a rating of “zero” points under Table 5 of the NEW Impairment Tables; and
(iv)the applicant’s capacity for work within two years with intervention was 15-22 hours per week;
(e)a letter from Dr Ajao dated 15 May 2013[16] relevantly stating that, in his opinion:
[16] Exhibit R2, Annexure 6.
(i)the applicant’s claimed schizophrenia, hyperhidrosis and irritable bowel syndrome had been adequately diagnosed, treated and stabilised;
(ii)no further treatment would be beneficial at that point;
(iii)schizophrenia and hyperhidrosis should each be given a 20 point rating under the applicable Impairment Tables that applied on the DSP claim date;
(v)irritable bowel syndrome should be given a rating of “Nil” under the applicable Impairment Table;
(f)a Job Capacity Assessment report prepared after a file assessment conducted on 2 July 2013[17] relevantly concluding that, among other things:
(i)the applicant’s claimed schizophrenia and hyperhidrosis were the only Claimed Conditions that were fully diagnosed, treated and stabilised during the Claim Period;
(ii)the applicant also suffered from irritable bowel syndrome, hypothyroidism and heel pains, but none of those conditions were fully diagnosed, treated and stabilised to the point where they could be given an impairment rating under the Impairment Tables;
(iii)the applicant’s schizophrenia and hyperhidrosis conditions should each have been given a rating of “zero” points under the applicable Impairment Tables;
(iv)the applicant’s capacity for work within two years with intervention was 15-22 hours per week; and
(g)a letter from Dr Bascomb dated 5 August 2013[18] primarily addressing the applicant’s claimed menorrhagia and, in particular, referring to a proposed endometrial ablation procedure that was to be performed on 21 August 2013.
EVIDENCE
[17] Exhibit R2, Annexure 7.
[18] Exhibit R2, Annexure 8.
Evidence of Ms Lukin
It was Ms Lukin’s evidence that she left high school when she was 17 years old in or about 1983 and between that time and the date she married in about May 1990 she worked in about 14 jobs, although most of them were part-time or casual positions. Her first full-time job was as a beautician and she worked in that field for a number of years, but she left this employment because of the impact of her excessive sweating. Her periods of employment were between 1980 and 1990, but she became chronically tired. She said she suffered from anxiety, had been unsettled for years, and her conditions had not varied since the Claim Period. Her menorrhagia had been treated and there had been positive treatment for her irritable bowel syndrome, which she also suffered from. Apart from her irritable bowel syndrome and hypothyroidism, she said she also suffered from “random regulars”, such as bronchitis and a sore ankle.
Ms Lukin said that her daughter, Violet, had hyperhidrosis too, but to a lesser degree. She said Violet’s hyperhidrosis was uncomfortable and difficult to deal with, but she was able to get through her school years. In or about November 1992, when her older daughter was 14 months old, she said she experienced a sudden onset of schizophrenia and she described her experiences at that time in her hand-written statement.[19] She said it took about four years to be fully diagnosed with schizophrenia and her doctor ultimately settled on that condition. She began taking medication to manage her psychiatric symptoms, but she had a number of relapses in her early years due to periods when she went off her medication. Ms Lukin said her general practitioner was Dr Ajao, but she first met Dr O’Brien on 8 April 2004.
[19] Exhibit A3.
In relation to her irritable bowel syndrome, Ms Lukin said that that condition was adversely affected by her schizophrenia and became worse in stressful situations. In those stressful situations, she sweated excessively and her hyperhidrosis “stays on”. She said she had suffered from excessive sweating on her hands since her teenage years, but she had not accessed any treatment for this condition in the past. She said there was a choice to go to surgery and she wanted to, but she said she wasn’t “wet” enough to go ahead. She had met with Mr Craig Jurisevic, cardiothoracic surgeon, but had not gone back to him for treatment as she had made the decision that she did not want to proceed. She then said she had met Mr Jurisevic with and for her daughter and not for herself. She said it was unsuitable for her to undertake surgery. Her daughter had researched treatment on the internet and she had surgery on 21 August 2013.
When Mr Schatz referred her to the Job Capacity Assessment report dated 14 September 2011,[20] Ms Lukin said the following observations in the report were all true. They read:
“…
The JCA report of the 14/04/11 by Julie Southwell provided the following description of the condition and this was confirmed by the assessor with Jillian Lukin on the 14/09/11 ‘Customer reported the condition does not prevent any self care, ADL or domestic tasks or tasks such as shopping. However, customer stated it does impact on socialising and employment due to excessive perspiration of the face, chin, underarms, groin area, hands and legs which predominately occur on a daily or multiple times throughout the day when customer is either excited, nervous or hot. Customer stated they have had the condition since a teenager and reported their daughter also has the condition. Customer stated it impacts on their confidence as they often has to change out of their clothing due to excessive perspiration and wetting of clothes.’
…”
[20] Exhibit R1, page 60.
When asked about the household tasks she could do with her hyperhidrosis, Ms Lukin said that cleaning was too hard and caused sweating. Washing up was very hot for her and she tired quickly. Housework generally was also hard, as was driving.
When she was reminded that a dermatologist (Dr Waidrowski) had been suggested by Dr Ajao for the applicant’s daughter, Ms Lukin said that she thought “dry glove” treatment would help her, as it had been good for her daughter and she said she would try that treatment. When questioned by Professor Reilly, Ms Lukin said that her hyperhidrosis had not changed over the years. There were no days when sweating did not occur. The amount of her sweating depended on the temperature. On a cool day, she was dry for a time. When asked about other treatments for her hyperhidrosis, the applicant said that she had not undertaken iontopheresis treatment.
Evidence of Dr Ajao
It was Dr Ajao’s evidence that he met the applicant on 4 February 2011 and he provided a medical report on 23 March 2011.[21] He acknowledged that the applicant’s schizophrenia was generally well managed and the condition was mentally stable. When questioned further by Mr Schatz, Dr Ajao said that he should refer to the applicant’s psychiatrist. He said that, as a general practitioner, the applicant should be managed by someone else. When referred to Dr O’Brien’s medical report dated 21 January 2013 and his letter dated 25 October 2013,[22] Dr Ajao said that he had not seen those documents. He said that he now had Dr O’Brien’s documents, but he had not spoken to him. He said that Dr O’Brien was the best person to give advice regarding the applicant. He agreed that the applicant’s schizophrenia should not get any impairment points. When referred to Dr O’Brien’s medical report dated 21 January 2013, Dr Ajao said that he agreed with Dr O’Brien’s opinion that the applicant’s psychiatric diagnosis did not currently and negatively impact upon her day to day functioning. When referred to his own letter dated 15 May 2013,[23] Dr Ajao said that Dr O’Brien’s opinion of “zero” points under the Impairment Tables should be accepted. When referred to his medical certificate dated 17 February 2014,[24] he agreed that the condition “recurrent enteritis” was permanent, not temporary. He said a colonoscopy had been undertaken a month ago and taking “Gastro Stop” had been a great help.
[21] Exhibit R3.
[22] Exhibit R7.
[23] Exhibit R2, Annexure 6.
[24] Exhibit R8.
Evidence of Dr O’Brien
In giving his evidence, Dr O’Brien was referred to his medical report dated 21 January 2013. He said that the opinion expressed in his report had not altered and that there had been no change for a long time. He confirmed that he saw the applicant on 14 July 2011, 13 September 2011 and 20 December 2011. He said her psychiatric condition (schizophrenia) was quite stable during that period.
Dr O’Brien said that he first met the applicant on 8 April 2004 and saw her twice a year or every three months. His view was still the same as expressed in his letter of 25 October 2013.[25] When questioned about his use of the expression “somatise” in his letter, he explained that the applicant showed concern about various symptoms and had asked him for his views as a consultant. He said that the applicant appeared to be preoccupied with the various conditions. This was not psychological or organic. The applicant was simply preoccupied with the symptoms. He said he was not aware of a worsening of the applicant’s symptoms for schizophrenia and irritable bowel syndrome. It was necessary for the applicant to take medication all the time to stabilise her paranoid schizophrenia. He said she had a variety of physical symptoms, but there could be no assignment of impairment points on a functional basis.
[25] Exhibit R7.
When Ms Lukin questioned Dr O’Brien in relation to her various physical symptoms, he provided her with his views as a consultant psychiatrist. In relation to her psychiatric condition, Dr O’Brien said that his main function was to monitor the applicant’s schizophrenia and watch out for any relapse.
Evidence of Mr Bruce Greer (Job Capacity Assessor and Registered Psychologist)
Mr Greer was referred to his Job Capacity Assessment report dated 2 July 2013.[26] He confirmed that the report had been based on the papers and was not a face to face assessment of the applicant. Mr Greer said that in preparing his report he placed significant weight on the views of Dr O’Brien and also Dr Ajao. When referred to the letter from Mr Jursevic to Dr Ajao dated 26 May 2011,[27] he said that he could not be sure whether the letter related to the applicant or her daughter. When referred to Dr Ajao’s medical report dated 17 January 2012 and to his diagnosis for the applicant’s hyperhidrosis, Mr Greer questioned whether there were other options and whether the condition may not be fully treated and stabilised. When referred to the witness statement of Violet Lukin,[28] he noted that she said:
“… I plan to save for a home Iontopheresis machine, and mum will be able to use it too.”
He said that there were new treatments for hyperhidrosis and that the applicant should try those new treatments. In those circumstances, the applicant’s hyperhidrosis could not be said to the fully treated and stabilised. When referred to his report,[29] he noted what was said about the applicant’s irritable bowel syndrome, when he said in the report:
“… In discussion with contributing assessor, Ms Sally Sharrad, DHS Registered Nurse, it was agreed that the condition is not fully treated and stabilised as there has not been a referral to a Gastroenterologist to confirm the condition or to a dietician to assist with the management of triggers and minimising the impacts of the condition.”
He said he could not see why the applicant’s irritable bowel syndrome could be said to be fully treated and stabilised.
[26] Exhibit R2, Annexure 7.
[27] Exhibit R1, page 98.
[28] Exhibit A2.
[29] Exhibit R2, Annexure 7, page 58.
CONSIDERATION
Is the applicant qualified to receive DSP during the Claim Period from 15 August 2011 to 14 November 2011?
As inferred in paragraph 3 of these reasons, in order to qualify for DSP, Ms Lukin must satisfy the relevant requirements of s 94 of the Act. In the case of DSP, it is implicit in cl 4(1) of Schedule 2 to the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the Claim Period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the Claim Period. This is supported by the judgement of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations.[30] The learned Judge stated (in paragraph 1) that, as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “any subsequent change in her health is irrelevant to the questions which arise in this proceeding except in so far as it may cast light on the position at the relevant time.”
[30] [2007] FCA 404.
In Ms Lukin’s case, the relevant Claim Period for consideration of her DSP claim is 15 August 2011 to 14 November 2011, and the primary question is whether she satisfied the relevant criteria in s 94 at any time during the Claim Period, rather than whether she may currently satisfy those criteria.
One of the relevant criteria for DSP is whether the applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see s 94(1)(b) of the Act). In order to be assessed under the Impairment Tables, the Tribunal must be satisfied that the condition is “permanent” for the purposes of clauses 4, 5 and 6 of the Introduction to the Impairment Tables. The Introduction to the Impairment Tables outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These requirements are:
(a) the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised;
(b) the condition must be considered to be permanent;
(c) once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years; and
(d) a condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
When the applicant lodged her DSP claim, she claimed to be suffering from schizophrenia, hypothyroidism, hyperhidrosis, irritable bowel syndrome, depression, anxiety and heel pain. Before lodging her claim, her general practitioner (Dr Ajao) had provided a medical report on 23 March 2011 in which he acknowledged that the applicant’s schizophrenia was generally well managed and the condition was mentally stable and her other conditions of hyporthyroidism and hyperhidrosis were also generally well managed and caused minimal or limited impact on her ability to function. Both the applicant and Dr Ajao agreed that her psychiatrist (Dr O’Brien) was the best placed person to express an opinion on her psychiatric state during the Claim Period. Dr Ajao also agreed, during his evidence, that Dr O’Brien’s opinion to the effect that the applicant did not qualify for any impairment points under Table 6 of the Impairment Tables during the Claim Period should be preferred to his own opinion in his medical report dated 15 May 2013. In examining the applicant a month before the Claim Period, a month after the start of the Claim Period and a month after the end of the Claim Period, this gave Dr O’Brien a good perspective on the state of her psychiatric condition over the entire period. Although the ARO and the SSAT assessed the applicant’s schizophrenia as attracting 10 impairment points under Table 6 of the Impairment Tables, the Tribunal is of the view that the evidence of Dr O’Brien, as the applicant’s long-serving psychiatrist, should be preferred, and that a “zero” rating is appropriate.
In relation to the applicant’s condition of hyperhidrosis, the respondent did not dispute that it caused her significant discomfort and embarrassment over the years. In its statement of facts and contentions, the respondent contended that no more than 10 points could be assigned to the applicant’s claimed hyperhidrosis under Table 18 of the Impairment Tables. In his closing submissions, Mr Schatz submitted that the Tribunal ought to apply a “nil” rating under Table 18. Before the Job Capacity Assessor on 4 November 2009[31] the applicant said that she had not accessed any treatment for her hyperhidrosis in the past. However, on 26 May 2011, she saw Mr Craig Jurisevic, cardiothoracic surgeon, for discussion of her hyperhidrosis. In giving her evidence, Ms Lukin claimed that the primary purpose of that consultation was to ask Mr Jurisevic to assess her daughter and to discuss surgical options for her daughter. Mr Jurisevic’s letter to Dr Ajao is inconsistent in certain respects and reads:[32]
“Thank you for referring Jillian Lukin for discussion of her hyperhidrosis. Jillian has other psychiatric conditions which require her to take Abilify and she has significant palmar, axillary and general hyperhidrosis. Jillian attended the meeting with her daughter Violet, more as a supporting person rather than looking for surgery herself. I discussed the surgical options with Jillian and at this point in time she is not keen to proceed. She was keen for her daughter Violet to discuss this in detail with me. I haven’t made arrangements to review Jillian again but I will await contact from her regarding her daughter.”
[31] Exhibit R2, Annexure 11.
[32] Exhibit R1, page 98.
Although there are inconsistencies in the letter, the Tribunal is of the view that the applicant attended the meeting for discussion about her own hyperhidrosis and that her daughter (Violet) came as a supporting person rather than looking for surgery herself. Mr Jurisevic’s letter was addressed to Dr Ajao, as the applicant’s general practitioner, and was not intended as a discussion of her daughter’s condition. On this basis, it seems clear that the applicant was not keen to proceed herself in relation to her hyperhidrosis and, in these circumstances, it could not be said that the condition had been fully treated and stabilised. As such, the applicant’s hyperhidrosis would not rank any impairment points under Table 18. The Tribunal’s view is supported by Dr Ajao’s medical report dated 17 January 2012[33] which states that the applicant was reviewed by a cardiothoracic surgeon in May 2011. There is further evidence relating to Violet that suggests she is saving up for an iontopheresis machine and that she intends to share that with the applicant: see paragraph 25 above.
[33] Exhibit R1, page 84.
The language in clauses 4, 5 and 6 in the Introduction to the Impairment Tables is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “it is unlikely (emphasis added) that there will be any significant functional improvement with or without reasonable treatment, within the next two years”. While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the Claim Period, is not directly relevant to the Tribunal’s decision. For example, in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Tribunal stated at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illness or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”[emphasis added]
In relation to the applicant’s hyperhidrosis, the respondent has submitted that the applicant’s condition was not fully treated and stabilised during the Claim Period and that any resulting impairment of skin function could not be assigned points under Table 18. The respondent also submits that, in relation to each of the other Claimed Conditions, they are either not fully diagnosed, treated and stabilised during the Claim Period or, if they were, they did not qualify for impairment points in any event due to their limited impact on the applicant’s ability to function at that time.
CONCLUSION
As each of the applicant’s Claimed Conditions were not fully diagnosed, treated and stabilised when she lodged her claim for DSP and during the Claim Period, the requirements of Schedule 1B are not satisfied and it is not possible to assign an impairment rating under the Impairment Tables pursuant to s 94(1)(b) of the Act. It follows that she was not qualified for DSP at the time she made her claim and during the Claim Period.
Having so decided, it is not necessary for the Tribunal to consider whether the applicant also had a continuing inability to work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne, Professor P Reilly ..........................[Sgd]..............................................
Administrative Assistant
Dated 14 August 2014
Date(s) of hearing 10 and 11 July 2014 Applicant In person Advocate for the Respondent Mr A Schatz Solicitors for the Respondent Department of Human Services
1
2
0